• EEOC and Contraceptives Coverage
  • May 1, 2003 | Author: Robert F. Simon
  • Law Firm: Vedder, Price, Kaufman & Kammholz, P.C. - Chicago Office
  • The Equal Employment Opportunity Commission ("EEOC") recently ruled that the Title VII of the Civil Rights Act of 1964 requires employer sponsored health benefit plans to cover prescription contraceptives if they also cover preventive care services for other medical conditions, such as hypertension. The EEOC's position, if adopted by the courts, has significant implications for employers.


    Surveys indicate that slightly less than half of all employer sponsored group health plans cover prescription contraceptives. For years, Planned Parenthood, the National Organization for Women, and other groups have been urging Congress to enact legislation requiring all employer group health plans to cover the cost of prescription contraceptives. However, the pro-posed legislation has found only limited support among members of Congress.

    Recently, proponents of the legislation have adopted a new tactic -- convincing the EEOC and the courts that coverage of contraceptives already is required by existing law, namely Title VII of the Civil Rights Act of 1964. At least one Planned Parenthood-funded lawsuit is pending in federal court in Seattle, Washington. That law-suit, and others which are expected to be filed against employers across the country, received a boost from a recent EEOC decision finding merit to charges that an employer health plan violated Title VII by excluding coverage for prescription contraceptives.

    EEOC Decision

    The EEOC decision was issued in connection with charges of discrimination filed by two women against their employers. Each charge alleged that the employer's failure to cover oral prescription contraceptives under its health benefits plan constituted unlawful sex discrimination. The EEOC agreed.

    The EEOC began its analysis by observing that Title VII, as amended by the Pregnancy Discrimination Act of 1978, provides that discrimination "on the basis of sex" includes discrimination "on the basis of pregnancy, childbirth and related medical conditions." Under EEOC guidelines, pregnancy-related medical conditions generally must be treated the same as non-pregnancy-related medical conditions.

    The EEOC then pointed out that contraception is a means to prevent, and to control the timing of, the medical condition of pregnancy. If employer health plans cover services, drugs and devices to prevent the occurrence of other medical conditions, then those plans must also cover services, drugs and devices that prevent the occurrence of pregnancy, the EEOC reasoned. The EEOC then cited the following covered services and drugs under the two employer health plans at issue which, in the EEOC's view, necessitated coverage of prescription contraceptives:

    • vaccinations;
    • drugs to control blood pressure and cholesterol levels; and
    • preventive care for children and adults, including physical examinations and related laboratory services.

    Under the EEOC's analysis, Title VII requires the employer health plans to cover the expenses of prescription contraceptives to the same extent, and on the same terms, that the plans cover the expenses identified above.

    Much of the media coverage, and the very first paragraph of the EEOC's press release announcing its decision, has focused on the coverage of the prescription drug Viagra. However, the plans' coverage of Viagra was irrelevant to the EEOC's analysis and was mentioned only in a footnote to the EEOC's decision. The EEOC's position, if adopted by the courts, is expected to require employer health plans to cover prescription contraceptives even if the plan excludes Viagra and similar prescription medications used to treat sexual dysfunction.

    Significantly, unlike a statute or regulation, the EEOC's decision does not have the force and effect of law. The courts, in addressing individual lawsuits challenging plan exclusions of contraceptives, are likely to consider, but will not be bound by, the EEOC's interpretation of Title VII articulated in the recent EEOC decision.