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Feb 172012

In recent days, the Obama administration has been adamant about requiring employers to provide prescription contraceptive coverage to their employees without additional cost.

What some may not realize is that aside from the “no cost” aspect, this plan is nothing new. Employers have been required to provide contraceptive coverage under their health plans for years.

So what’s all the hype? As a result of the “new” rule, women would no longer be required to pay a deductible or co-payment for prescription contraceptives.

Back in 2000, the EEOC issued a ruling that that employers’ failure to provide contraceptive coverage as part of employer-sponsored health plans providing coverage of other prescription drugs and preventative services was a violation of the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act which outlaws – among other things – gender discrimination.

The EEOC stated then that exclusion of prescription contraceptives from coverage violated Title VII, whether the contraceptives were being used for birth control or other medical purposes. The EEOC leadership and Attorney General at the time publicly committed to enforcement of this interpretation of Title VII as law.

Several court cases ensued and it was found that women disproportionately bear the “adverse economic and social consequences of unintended pregnancies,” rendering the exclusion of prescription contraceptives from health plans discrimination under the Pregnancy Discrimination Act.

While exclusion of contraceptives from insurance coverage may seem “neutral”, the burden is in fact placed on women since only they have the capacity to become pregnant. The majority of cases found the exclusion to constitute sex discrimination.

However, later cases disagreed with the EEOC decision claiming that it did not present a persuasive basis for comparing contraception to the broad range of other preventative treatments and services.

While these cases go against the principles reflected in the 2000 EEOC ruling, not much doubt is present regarding contraception’s necessity as medical treatment and that women bear disproportionate health burdens when it is either unaffordable or unavailable.

The EEOC does not stand alone in their ruling on the issue. Numerous states have similar legislation that in many instances includes religious exemptions such as those proposed in Obama’s new plan which would enable religious institutions to hold firm to their beliefs and opt of directly providing and paying for contraceptives. Insurance companies would offer the coverage directly to ensure all employees receive equal access to free contraceptive services.

Title VII prohibits religious organizations to discriminate based on race, sex (including pregnancy-related conditions), national origin or religion in regards to pay or benefits and the EEOC has specifically addressed the issue in the context of fringe benefits. The Title VII Bona Fide Occupational Qualification(BFOQ) exemption as it applies to religious employers is limited to hiring and employment and does not allow religious employers to discriminate in regards to pay or benefits once an employee has been hired.

So, regardless of what occurs in our nation’s capital, and despite religious affiliation, withholding contraceptive coverage from any employee health plan which includes prescription and preventative care benefits likely runs afoul of anti-discrimination laws.

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