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Published: 2008-03-26

Failure to Provide Birth Control in Health Plans Constitutes Sex Discrimination



A Washington State federal judge ruled company health insurance plans that cover most prescription drugs but not birth control pills illegally discriminate against women. This was the first federal challenge to employers who do not cover birth control in their health insurance coverage, and the decision could influence employer-provided benefits at other companies nationwide.

In a case brought by a 27-year-old pharmacist, the federal judge ruled that Seattle-based Bartell Drug Company's insurance plan violated sex-discrimination provisions of Title VII of the 1964 Civil Rights Act ("Title VII") and the 1978 Pregnancy Discrimination Act ("PDA") because it did not provide contraceptives under its health plan.

"Bartell's prescription drug plan discriminates against Bartell's female employees by providing less complete coverage than that offered to male employers," the judge 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 fundamental and immediate healthcare needs uncovered."

Analyzing other discrimination cases, the judge said led him to believe that Title VII "requires employers to recognize the differences between the sexes and provide equally comprehensive insurance coverage, even if that means providing additional benefits to cover women-only expenses."

The judge said the PDA "is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to become pregnant." Read in the context of Title VII, "it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs."

If the decision is upheld on appeal, the ruling means that Bartell, which self-funds its insurance plans, must cover each of the available options for prescription contraception to the same extent and on the same terms, that it covers other drugs, devices, and preventative care for non-union employees. Those would include FDA-approved prescription contraceptives such as birth-control pills, Depo-Provera injections, Norplant implants, intrauterine devices and diaphragms. The company would not have to cover over-the-counter contraceptives such as condoms. In addition, the company must cover contraceptive-related services such as the initial visit to the prescribing physician and any follow-up visits or outpatient services. The ruling may also open the door to coverage of such procedures as fertility treatment or in-vitro services, Bartell's attorney argued, but the judge did not address those issues.

In December 2000, the Equal Employment Opportunity Commission ("EEOC") declared that two employers violated the PDA by failing to cover contraceptives while including other preventative treatments and Viagra - in health plans. Contraception, the EEOC stated, is "a means to prevent, and control the timing of, the medical condition of pregnancy." The EEOC further said the PDA protects women against discrimination because they have the ability to become pregnant, not just because they are already pregnant. Click here for Thompson.Coe article on related EEOC decision.