Magazine article Workforce

Contraception Controversy: Can Employers Refuse to Pay for the Pill?

Magazine article Workforce

Contraception Controversy: Can Employers Refuse to Pay for the Pill?

Article excerpt

To fund or not to fund? In July, Planned Parenthood brought a class-action federal lawsuit on behalf of women employees of Seattle-based Bartell Drugs, alleging that the company's failure to include female contraceptives in its employee prescription plan was a form of gender discrimination. The suit argued that the policy violated Title VII of the Civil Rights Act because the decision not to cover contraceptives, including birth-control pills, disproportionately affects women. The case raises important questions: Can a company choose to exclude a genderspecific product in its prescription plan? And what does this mean for the bill, stalled now in Congress for about four years, that would require all health plans that cover prescription drugs to cover contraceptives? (In 1998, it should be noted, Congress mandated that insurance plans cover contraceptives for federal employees). Arthur F. Silbergeld, a partner in the labor and employment practice group of the Los Angeles-based firm Proskauer Rose, sheds some light on what it all means.

Let's get a little background on this lawsuit.

This is a lawsuit that's relatively unique in that it arises under Title VII of the 1964 Civil Rights Act. It's not an accommodation claim; it's a direct claim of a discriminatory practice. It alleges that an employer, the defendant, specifically has maintained an insurance plan that excludes contraceptives. but covers other prescription drugs, and that that exclusion is sex discrimination under Title VII. According to the suit, it's sex discrimination because the effect of the exclusion is felt only by females. Presumably if there were a male contraceptive that was available only by prescription, and it were excluded from coverage, this case would have no viability.

So what's the main issue here?

In my view, the issue isn't whether it's fair or right as a matter of social policy. The narrow question is whether or not it's covered by Title VII. Insurance typically is a matter of contract that's regulated by state law. A number of states have already mandated coverage for prescription contraceptives. Congress will occasionally intervene. For instance, Congress passed a law called the Health Insurance Portability Protection Act a few years ago. That act made it a matter of federal law that if an employee is covered by insurance by Employer A and leaves to go to Employer B, Employer B's carrier can't rule out pre-existing conditions, which could discourage the individual from making the move. So the federal government has inserted itself from time to time in a non-- ERISA context when policy has an effect on job mobility. But in this case, I don't think Congress would intervene on the basis of that rationale. I don't see Congress acting under federal law.

Is this the general trend with Congress?

Given the relatively conservative bent of Congress, it's just not likely that they'd act. And the U.S. Supreme Court as a matter of principle tends to say that matters of state law should be left to the states. They're likely to say in ruling on a Title VII challenge that this is an insurance issue and not a Title VII issue. Insurance issues are state law issues and should be left to the states. And the fact that a number of states have addressed the issue is evidence enough that it's a state law issue. Again I emphasize that whether it's fair or politically correct is an entirely different issue, because as a matter of public policy, I think plans should provide contraceptives. …

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