Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA

57 Pages Posted: 29 Sep 2008 Last revised: 29 Oct 2009

Date Written: October 27, 2009


Congress enacted the Employee Retiree Income Security Act of 1974 (ERISA) to protect employees' retirement and welfare benefits. Nevertheless, the Act has been interpreted by the U.S Supreme Court over the years to be in essence an Employers' Security Act, with employers using ERISA to shield themselves against employee benefit-related claims. The flaw in the current ERISA scheme lies at the intersection of ERISA's preemption and remedial provisions. Courts broadly interpret the preemption provisions of ERISA to invalidate employee benefits-related state laws and then force employees to depend on an inadequate, "comprehensive and reticulated" remedial scheme. This “intersectionality” problem leads to a state of affairs that is contrary to ERISA's purpose of protecting the interests of participants and beneficiaries by "providing for appropriate remedies, sanctions, and ready access to the Federal courts." To cure what currently ails ERISA, this article proposes three alternative reforms - one judicial and two legislative. The judicial approach would call for the Court to adopt a remedialist approach, which would be in line both with Congress's intent to incorporate most of the common law of trusts into ERISA, and also consistent with a modern interpretation of a remedial statute. Additionally, Congress should re-examine and reject the far-fetched analogy between ERISA, enacted in 1974, and the "days of the divided bench" analysis and provide an express and expansive definition for "appropriate equitable relief" under proposed Section 3(43). Finally, Congress should pass an ERISA Civil Rights Act under proposed Section 502(a)(11), which, like the Civil Rights Act of 1991 in the Title VII context, would permit capped, compensatory and punitive damage awards in appropriate cases.

Keywords: ERISA, remedies, preemption, employee benefits, trusts, intersectionality

Suggested Citation

Secunda, Paul M., Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA (October 27, 2009). Hastings Law Journal, Vol. 61, No. 2, 2009, Marquette Law School Legal Studies Paper No. 09-07, Available at SSRN:
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