00-2467, 00-2587, 00-3098 Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C.

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“Bilow argues that even if the gross-up program was not an ERISA plan, sec. 510 should still apply as long as she made a reasonable, good-faith claim that the program was covered by ERISA and that an ERISA violation had occurred. In making this argument, Bilow asks us to borrow from Title VII’s-anti-retaliation provision, which has been interpreted to prohibit retaliation against an employee who makes a reasonable good-faith claim that wrongful discrimination has occurred, even if the claim ends up being meritless.

“Under some circumstances, courts do borrow aspects of Title VII law to use in interpreting ERISA. See, e.g., Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 576 (7th Cir. 1998) (utilizing McDonnell Douglas in the ERISA context). Nonetheless, this must be done with caution, as there are significant differences between ERISA and Title VII, and there are even differences between the anti-retaliation provisions of the two statutes. The most important of these is the fact that, unlike a Title VII retaliation plaintiff, an ERISA retaliation plaintiff must demonstrate that the employer had the specific intent to violate the statute and to interfere with an employee’s ERISA rights. See Lindemann v. Mobil Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998). With such a requirement, it is logical to infer that an ERISA plan is a condition precedent to an ERISA retaliation claim. Without an actual ERISA plan, it would be rather difficult to find that an employer specifically intended to violate an employee’s rights under something that only arguably existed.

“Bilow alleged that the firm discriminated against her in the administration of the gross-up program by assuming, because she is a woman, that her spouse provided the health insurance for their family, and by not making the same assumption for married male partners.

“This assumption was clearly made no later than 1993. Thus, on the face of things, Bilow filed her November 1998 EEOC charges well after the 300-day limitation period had passed.

“Indeed, without belaboring the point, we find that not only on the face of the matter, but in all other ways, Bilow’s charges were late. Equitable tolling does not apply here, as a reasonable person exercising due diligence would have discovered long before five years had elapsed that she was not receiving almost $5,000 a year … to which she was entitled.”

Appeals from the United States District Court for the Northern District of Illinois, Castillo, J., Diane P. Wood, J.