US District Judge Laurie Smith Camp of the US District Court for the District of Nebraska in her opinion , said the exclusion violates Title VII of the Federal Civil Rights Act of 1964 and its amendment, the Pregnancy Discrimination Act (PDA). Camp said the Title VII violation came about “because it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.”
The judge pointed out in the opinion that at least one of the company’s plans covers medication for male-pattern baldness and all the plans cover medication for male erectile dysfunction and nicotine dependence. The plans also cover a host of preventive medications.
Union Pacific argued that excluding all prescription contraceptives for men and women constituted equal treatment. The judge noted in her court document that the company pointed out that prescription male contraceptives would soon be available which would force the plaintiffs “to concede that a gender-neutral exclusion of all prescription contraceptives is not discriminatory.” Camp rejected this argument since even a male contraceptive would prevent conception and pregnancy in the female partner and had no beneficial impact on the health of the male.
Speaking to the company’s argument that since fertility, conception, and pregnancy in a female is normal, contraception is not medically necessary, Smith Camp created a scenario of a hypothetical disease with similar pains and discomforts as pregnancy and childbirth.
The lawsuit was brought against the railroad company three years ago and was granted class action status by Camp in April of this year (See Union Pacific Contraceptive Coverage Suit Gets Class Action Status ). The lawsuit represents around 400 current and former female Union Pacific employees.
Union Pacific plans to appeal the decision.
The fight for prescription contraceptive coverage has been a long one. The first discrimination ruling was handed down in 2001 in Erickson v. The Bartell Drug Company. In 2000 the Equal Employment Opportunity Commission (EEOC) issued an official statement of enforcement policy that said an employer’s failure to provide insurance coverage for prescription contraceptives, when it covers other prescription drugs and devices used to prevent illness or disease, constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 (See Total Benefits: Cover My Pills ).
Since then, more employers are offering coverage for prescription contraceptives. According to a Reuters report, Roberta Riley, a staff attorney for Planned Parenthood of Western Washington who represented the plaintiffs in both the Union Pacific and Bartell Drug Company cases, said nine out of ten companies offer the coverage now compared to two out of ten in the late nineties.
The battle heated up with the introduction of Viagra and employer plans coverage of the drug for erectile dysfunction. Discrimination cases soon cropped up (See Viagra Coverage Generates Discrimination Charge ). In 2002 a California court found in the case Kaiser Foundation Health Plan Inc. v. Zingale, Cal.Ct.App. that Viagra was not medically necessary (See Court Finds Viagra Coverage Not ‘Medically Necessary’ ).
As in Union Pacific’s court case, other employers argue that they already spend more on women’s health care than men’s and that many of the medications the courts call preventive are used to treat actual conditions such as high blood pressure (See Total Benefits: Birth Control Battle ).
Since 1997, legislation continues to be brought up that would require contraceptive coverage under private health plans (See Senate Panel Considers Contraceptive Coverage ). Many states have already passed such laws.
« Hewitt: K Plan Cashouts Still Common