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Self-Insured Employer Must Cover Prescription Contraceptives

  • July 1, 2001

In the first case of its kind, a federal court in Washington has ruled that a self-insured employer discriminated against women by not offering prescription contraceptives as part of its prescription drug benefit. The court found the employer's exclusion of contraceptive coverage violated Title VII of the 1964 Civil Rights Act prohibiting discrimination on the basis of sex and the Pregnancy Discrimination Act prohibiting discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions."

The case arose when a Seattle-based retail pharmacy chain offered a comprehensive prescription drug benefit as part of a self-insured health plan for its non-union employees. However, the plan specifically excluded certain prescription drugs, including women-only contraceptives and infertility drugs (such as Viagra).

The plaintiff claimed the employer's failure to offer non-union female workers access to prescription contraceptives violated federal law, and the federal trial court agreed, saying that an employer's comprehensive prescription drug plan must provide coverage equally for men and women. According to the court, the employer's exclusion of prescription contraceptives made its plan less comprehensive for female employees. In reaching its conclusion, the court specifically rejected the employer's argument that the decision to exclude contraceptives was based on cost, not sex. The court stated, "Cost is not . . . a defense to allegations of discrimination under Title VII."

As a remedy, the court ordered the employer to cover prescription contraceptives to the same extent that it covered other preventive drugs, as well as "contraception-related services," including the initial visit to the prescribing doctor and all follow-up and outpatient services to the same extent it covered other outpatient services. The court also noted the plan may violate Title VII by excluding Viagra, which is primarily used by men. Although excluding Viagra and other infertility drugs would seem to make the plan equally comprehensive for men and women, the court stated that infertility drugs arguably are prescribed to both men and women. Therefore, the exclusion of Viagra did not offset the exclusion of female-only contraceptives.

For now, the court's opinion applies only in western Washington state. However, the case could inspire similar lawsuits in other jurisdictions, and courts already faced with similar claims could make similar rulings. Self-insured employers should examine their prescription drug benefits to determine the precise coverage provided and whether women-only or men-only drugs are excluded. If prescription contraceptives and Viagra are not covered, employers should consider the potential cost of covering these drugs versus the potential cost of litigating discrimination claims based on their exclusion.

©2001 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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