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EEOC (Not ADA)

Court rules denial of contraceptive benefits is prohibited sex discrimination - Erickson v. Bartell Drug Co., --- F.Supp.2d ----, 2001 WL 649651 (W.D. Wash. 2001)

This case raises an issue of first impression in the federal courts: whether the selective exclusion of prescription contraceptives from defendant's generally comprehensive prescription plan constitutes discrimination on the basis of sex. The defendant's benefit plan is self-insured and covers all prescription drugs, including a number of preventative drugs and devices, such as blood-pressure and cholesterol-lowering drugs, hormone replacement therapies, prenatal vitamins, and drugs to prevent allergic reactions, breast cancer, and blood clotting. The plan specifically excludes from coverage a handful of products, including contraceptive devices, drugs prescribed for weight reduction, infertility drugs, smoking cessation drugs, dermatologicals for cosmetic purposes, growth hormones, and experimental drugs.  The plaintiff claims that this constitutes discrimination under Title VII, 42 U.S.C. 2000e et seq., as amended by the Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000e(k).

This is a ruling on cross motions for summary judgment. The court analyzes this case by looking only at the plaintiff's claims, and grants the plaintiff's motion, ordering that defendant:

"... 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. It is further ORDERED that Bartell shall offer coverage for contraception-related services, including the initial visit to the prescribing physician and any follow-up visits or outpatient services, to the same extent, and on the same terms, as it offers coverage for other outpatient services for its non-union employees."

The court's analysis is convincing, when limited to the plaintiff's arguments.  After reviewing the history and case precedent for Title VII and the PDA, the court held that defendant's:

"... exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, 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 the 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. Even if one were to assume that Bartell'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."

From a medical and public policy perspective, this is a good ruling.  It may not be good law, however, in that the opinion is singularly silent on employment benefits law, specifically ERISA and its presumption that employers have broad latitude to select health care benefits.  This has been litigated extensively with regard to limitations on benefits for HIV treatment, with many courts finding that special limits on HIV treatment do not violate the Americans with Disabilities Act, despite HIV being a covered condition.  Since the ADA is construed much as is Title VII, it is at least an open question whether ERISA would shelter the employer's decision to not offer contraceptive benefits.  It is not clear from the case whether the defendant failed to raise this issue, or the court ignored it in the opinion.

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