Include Birth Control in Health Plan, EEOC Says


In a significant victory for many women, the Equal Employment Opportunity Commission ruled Thursday that it is discriminatory for an employer’s health plan to not pay for contraceptives if prescription drugs and preventive care are otherwise covered.

The EEOC’s ruling does not have the force of law and applies only to the employer against whom the complaint was brought. But the agency’s determination that failing to cover contraceptives can constitute sex discrimination under the Civil Rights Act and Pregnancy Discrimination Act sends a strong signal to employers.

“At a minimum, you can be certain that employers will examine this ruling relative to their own plan and determine whether changes are needed in a systematic way,” said Paul Dennett, vice president for health policy at the American Benefits Council, which represents large and medium-size employers.


The EEOC reasoned that, because the Pregnancy Discrimination Act prohibits discrimination against women based on their ability to become pregnant, it “necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives.”

By extension, the commission said, an employer may not “discriminate in their health insurance plan by denying benefits for prescription contraceptives when they provide benefits for other drugs and devices.”

Although most health plans now cover prescription drugs, relatively few include comprehensive coverage for birth control pills and other prescription contraceptives.

Only 15% of all health plans cover all prescribed methods of contraception, according to the nonpartisan Alan Guttmacher Institute, a New York-based reproductive health research group. Only half of traditional, fee-for-service plans and preferred provider organizations cover any form of contraception. HMOs offer the most complete coverage, with about 90% covering at least one reversible method of contraception.

Reproductive health groups hailed the ruling. Marcia Greenberger, president of the National Women’s Law Center, said employers “should take heed of the EEOC decision and add coverage of contraceptives as required by law.” Greenberger’s organization represented a coalition of 60 health and women’s groups that asked the EEOC to study the issue.

The Planned Parenthood Federation of America called the decision a victory but said it is only a first step because the commission’s findings apply only to the individual employer in the case and do not assure the 60 million women of childbearing age in the U.S. that they now will have contraceptive coverage.

“Because this ruling is only binding on the employers of the two women who brought charges with the EEOC, much work needs to be done to ensure that other employers around the country start covering contraception,” said Roger Evans, director of litigation for Planned Parenthood.

The organization supports legislation pending in Congress that would require all health plans that cover prescription drugs to include prescription contraceptives. California already has such a requirement.

But the measure is strongly opposed by many employers, who fear it would raise health benefit costs, as well as the National Conference of Catholic Bishops, which rejects any form of contraception other than natural family planning, in which couples engage in sex when women are least likely to be fertile.

In the absence of congressional action, another route to mandatory coverage is through litigation on behalf of individual women. A class-action lawsuit filed by Planned Parenthood in Seattle on behalf of employees of a Washington state drugstore chain argues that employers whose plans cover other prescription drugs also must cover contraceptives. A lawyer at the National Women’s Law Center said she expects the EEOC ruling would be admitted as evidence in the case.

“We think the ruling will be very helpful,” said Judy Appelbaum, a vice president at the law center.

The EEOC finding grew out of two complaints, both filed by registered nurses who worked for the same employer. Under law, the EEOC does not divulge the identities of the employees or employers in a case.

One nurse wanted to use oral contraceptives for birth control. She also wanted medication to alleviate symptoms of dysmenorrhea, or menstrual cramping, and premenstrual syndrome. The other nurse wanted to use Depo Provera, an injectable form of birth control.

Their employer’s health plan covered a range of preventive services, including vaccinations, physicals, mammograms, dental care and drugs intended to prevent development of medical conditions such as high blood pressure. But it omitted prescription contraceptives, a category that includes birth control pills, injectable medications such as Depo Provera, intrauterine devices, diaphragms and implanted contraceptives such as Norplant.

The employer argued that its plan only covered treatment of medical conditions considered “abnormal,” that contraceptives are too expensive to cover and that the exclusion of prescription contraceptives does not discriminate between men and women, as it denies coverage to employees of both sexes. The EEOC rejected all of those arguments, including the cost of coverage issue.

“The cost defense doesn’t work legally or factually,” EEOC legal counsel Ellen Vargyas said. She said Congress has made it clear in previous legislation that it does not consider cost to be an acceptable reason for denying health coverage. As a practical matter, she said, contraceptive coverage is relatively inexpensive: about $22 per worker per year, according to a recent estimate by the Guttmacher Institute.

“You can buy years and years of prescription contraceptives for the cost of one pregnancy,” Vargyas said.

Nonetheless, employers consider cost a key issue.

“This is government again telling employers what they are going to have to cover in their health plans,” said Kate Sullivan, director of health policy for the U.S. Chamber of Commerce. “The employers say, ‘Well, maybe we should look at scaling back our coverage,’ and they are looking at how they can shift more of the costs to workers.”