Exclusion of Prescription Contraception Is Sex Discrimination
July 3, 2001
On June 12, 2001, the United States District Court for the Western District
of Washington ordered an employer to offer coverage for prescription
contraception and related services to the same extent and terms as other drugs,
devices and preventative care. See Order Granting Plaintiff's Motion for Summary
Judgment, Erickson v. The Bartell Drug Co. (W.D. Wash., June 12, 2001). The
District Court decision follows the December 14, 2000, decision of the U.S.
Equal Employment Opportunity Commission finding merit in two charges of
discrimination alleging that an employer's failure to offer insurance coverage
for the cost of prescription contraceptive drugs and devices violated Title VII
of Civil Rights Act as amended by the Pregnancy Discrimination Act (PDA). See
"EEOC Renders Decision on Contraception Coverage," Amee Shah, Holland
& Knight Employment Law Letter, March 2001, Vol. 11, Issue 2.
In a decision authored by Judge Lasnik, the court determined that, since only
women can get pregnant and use prescription contraception, the exclusion of
prescription contraception from coverage under an insurance plan violates Title
VII by using sex-based characteristics to limit the benefits to women. The court
found that the ability to prevent pregnancies is an important health issue for
women and must be included in a generally comprehensive prescription plan. The
fact that contraception is voluntary and preventative is irrelevant when the
employer covers a number of preventative drugs under its plan. Also irrelevant
is the fact that pregnancy is not a disease or illness.
Judge Lasnik, in noting that the Western District of Washington was not the
first tribunal to consider the lawfulness of excluding coverage of prescription
contraception, pointed to the EEOC's decision of December 14, 2000. Judge Lasnik
found that the EEOC's overall interpretation of Title VII as amended by the PDA
correlated with the court's conclusion that exclusion of prescription
contraceptives from a generally comprehensive insurance policy constituted sex
discrimination under Title VII because it provided for unequal treatment.
The order states that, while Title VII does not require employers to offer
any particular type or category of benefit, once an employer chooses to offer a
prescription plan, the employer has a legal obligation to make sure the plan
does not discriminate. The plan must provide equally comprehensive coverage for
both sexes and cannot discriminate on sex-based characteristics, including the
ability to become pregnant. Limiting the scope of employee benefits by excluding
prescription contraception from coverage is not a defense to discrimination.
Similarly, excluding all family planning drugs in an attempt at neutrality does
not excuse excluding prescription contraceptives, since no true neutrality
exists. The fact that Viagara may also be excluded from coverage is irrelevant,
and the court felt it might later be determined to violate male employees'
rights under Title VII.
This decision by the Western District of Washington is not legally binding on
many employers. Notably, 13 states, California, Delaware, Connecticut, Georgia,
Hawaii, Iowa, Maine, Maryland, Nevada, New Hampshire, North Carolina, Rhode
Island and Vermont, have passed legislation mandating insurance coverage of
contraception where a policy covers prescription drugs or devices. Employers
should be aware that the trend appears to be that excluding prescription
contraception from an insurance plan violates Title VII or state law.
For more information please contact Amee Shah at 1-888-688-8500 or at ashah@hklaw.com.
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