Chalk Talk-Prescription Contraceptives: Educate Yourself on the Discrimination You May Be Suffering Because You Work for a Private Educational Institution

By Danner, Cheryl A. | Journal of Law and Education, October 2002 | Go to article overview
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Chalk Talk-Prescription Contraceptives: Educate Yourself on the Discrimination You May Be Suffering Because You Work for a Private Educational Institution


Danner, Cheryl A., Journal of Law and Education


I. Introduction

In a profession employing primarily women, prescription contraceptive coverage is an issue that affects nearly everyone employed in the educational field. It would seem logical that the benefits of avoiding unwanted pregnancies outweigh the cost of providing insurance that covers contraceptives. So why don't many private insurers who have otherwise comprehensive prescription drug plans cover contraception?

From the Offices of the Equal Employment Opportunity Commission (EEOC), reaching into the federal courtrooms and out onto the floors of Senate Committee hearings, this political controversy over mandatory coverage of prescription contraceptives has exploded in the past year.

The first spark of this debate flared when the EEOC issued a decision in December, 2000, finding that a self-insured employer "engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, 42 U.S.C. (sec) 2000e et seq., by failing to offer insurance coverage for the cost of prescription contraceptive drugs and devices."1 While this decision is not binding, it provides guidance to courts, which often afford these findings great deference.2

Soon after the EEOC made its ruling, a federal district court in the state of Washington, in an unprecedented ruling, agreed with the EEOC and issued an injunction ordering the employer to cover all five methods of FDA approved prescription contraceptives "to the same extent and on the same terms that it covers other drugs and devices."3 Furthermore, the court ordered that the employer also provide coverage for contraceptive-related services, including visits to physicians.4

Finally, a debate that has been dormant in Congress since 1998 has been reintroduced in the form of the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC).5 This bill was presented to the Senate most recently on September 10,(6) and passed through the House of Representatives Appropriations Committee on September 19, 2001.(7) If passed, EPICC would require all health insurance plans, including those privately owned, to cover each of the five FDA approved prescription contraceptives and devices, as well as contraceptive related services.8 The outcome of this debate affects the lives of countless men and women who receive insurance coverage for themselves and their families through their employers.

Each of these legislative and judicial actions is founded upon Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). Title VII, requires in part,

"women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of fringe benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work."9

Throughout this paper, I will discuss Erickson v. Bartell Drug Co., the first case to challenge an employer's failure to provide contraceptive coverage to women as discriminatory, as well as proposed legislation involving contraceptive coverage. In addition, I will explore several alternatives legislators must consider when deciding whether to implement any kind of legislation involving mandatory coverage. Finally, I will offer suggestions including possible amendments to EPICC, which would provide a maximum number of women access to means of contraception, while protecting the fundamental rights of the employers.

II. Discussion

A. When Employers Deny Women Coverage of Prescription Contraceptives, They are Violating Title VII of the Civil Rights Act of 1964

Jennifer Erickson was a pharmacist at a self-insured drug company.10 Though her company's prescription drug company was otherwise comprehensive, even covering several types of preventative medication, the plan specifically excluded contraception and contraceptive devices from coverage.

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