• Non-Coverage of Contraception Spurs Challenges
  • May 2, 2003 | Author: Ingrid Nyberg Culp
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • Insurance coverage for prescription contraceptives has become a hot topic in courts and legislatures. In the last few years, employees have successfully attacked employer health care plans as unlawfully discriminatory for not providing coverage for prescription contraceptives. Many states are enacting contraceptive equity laws. In response, employers are reviewing their health care plans and expanding them to cover prescription contraceptives.

    Increasing Legal Challenges

    Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating on the basis of sex, pregnancy, childbirth, and related medical conditions in the terms and conditions of employment, including fringe benefits. Two federal district courts, including one in Minnesota, have addressed whether excluding prescription contraceptives from health care coverage constitutes unlawful sex discrimination under Title VII. Both courts ruled that it may. The Equal Employment Opportunity Commission (EEOC) supports this position.

    In EEOC v. United Parcel Service, Inc., the United States District Court of the District of Minnesota ruled that the EEOC could proceed with a suit alleging that United Parcel Service (UPS) violated Title VII by excluding oral contraceptives from its health benefit plan. The EEOC had filed suit on behalf of a male UPS employee who was denied coverage for his wife's oral contraceptive prescription to treat a hormonal disorder.

    The EEOC alleged that the plan had a disparate impact on female employees and the spouses of male employees because treatment for male hormonal disorders was not excluded from coverage. UPS claimed that the EEOC could not establish that the health plan had a discriminatory impact because the exclusion for oral contraceptives was gender-neutral. The court ruled that although the oral contraceptive exclusion was applied to both male and female employees, only females were burdened by the exclusion.

    In Erickson v. The Bartell Drug Company, the United States District Court for the Western District of Washington held that an employer violated Title VII when it excluded coverage for prescription contraceptives from its generally comprehensive health care plan. Granting summary judgment to a class of female employees, the court stated, "Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered." The court further stated that "[t]he special or increased healthcare needs associated with a woman's unique sex-based characteristic must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that [the employer's] prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII." The court ruled that a benefit plan must provide the same level of comprehensiveness in its offerings to female and male employees, even if the employer must incur additional costs.

    At least three other companies are being challenged on this issue. A class of female employees sued Wal-Mart for sex discrimination, alleging that its policy of excluding coverage for prescription contraceptives and devices under its health care plan violates Title VII. A flight attendant for American Airlines filed a charge of discrimination with the EEOC, claiming that the company discriminated against female employees by not covering prescription birth control, infertility treatments and routine Pap tests while covering Viagra. Employees of Dow Jones also filed a charge of discrimination.

    States Adopting Equity Laws

    The issue has gained the attention of federal and state legislatures. Twenty states have enacted contraceptive equity laws or regulations regarding private sector health insurance plans: Arizona, California, Connecticut, Delaware, Georgia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, Rhode Island, Texas, Vermont, and Washington. Congress and several other states are considering contraceptive equity bills. Minnesota has not enacted a contraceptive equity law, although, like Title VII, the Minnesota Human Rights Act prohibits sex discrimination in employment and benefits.

    The practice of excluding prescription contraceptives from health plan coverage is coming under increasing attack. Employers should examine their health insurance plans to determine whether they could face challenge.