8th Circuit Rules That Title VII Does Not Require Insurance Coverage for Prescription Contraceptives

A divided Eighth Circuit panel has held that Union Pacific Railroad is not liable for sex discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, for its failure to include coverage for prescription contraception in its health benefit plans. (Via How Appealing.)  Here is an excerpt from the decision:

Following Krauel, we hold that contraception is not related to pregnancy for
PDA purposes because, like infertility treatments, contraception is a treatment that is
only indicated prior to pregnancy. Contraception is not a medical treatment that
occurs when or if a woman becomes pregnant; instead, contraception prevents
pregnancy from even occurring. See Merriam-Websters Collegiate Dictionary 271
(11th ed. 2005) (defining contraception as the deliberate prevention of conception
or impregnation). As in Krauel, the result in Johnson Controls does not require
coverage of contraception because contraception is not a gender-specific term like
potential pregnancy, but rather applies to both men and women like infertility.
In conclusion, the PDA does not require coverage of contraception because
contraception is not related to pregnancy for PDA purposes and is gender-neutral.

Judge Bye dissented:

The Court ends with the following pronouncement in footnote five: Union
Pacific provides an equal policy for its female and male employees. Ante at 15. This
is a good place to begin. When one looks at the medical effect of Union Pacifics
failure to provide insurance coverage for prescription contraception, the inequality of
coverage is clear. This failure only medically affects females, as they bear all of the
health consequences of unplanned pregnancies. An insurance policy providing
comprehensive coverage for preventative medical care, including coverage for
preventative prescription drugs used exclusively by males, but fails to cover
prescription contraception used exclusively by females, can hardly be called equal.
It just isn't so.

The 8th Circuit was unpersuaded by an EEOC ruling issued in 2000, which found that an employer's failure to provide insurance coverage for prescription contraceptives in a plan that covers other prescription drugs, devices, and preventive care is unlawful sex discrimination under Title VII. The federal district court for the Western District of Washington ruled similarly in 2001 in Erickson v. Bartell Drug Co.

"One of the major barriers to universal contraceptive access is the high out-of-pocket cost to individual women whose health plans do not cover contraception. Retail costs for supplies alone can run approximately $360 per year for oral contraceptives, $180 per year for the Depo-Provera®, $450 for the Norplant and $240 for an IUD. In addition, the bulk of the cost for some of the most effective methods must be paid up front." (Cover My Pills!)  A study commissioned by The Guttmacher Institute found that "[t]he added cost for employers of providing this coverage corresponds to $1.43 per month, which represents a mean increase of less than 1% in employers' costs of providing employees with medical coverage."

Read the 8th Circuit's full opinion.