Wisconsin AG Requires Health Plans to Cover Contraceptives

August 26, 2004 (PLANSPONSOR.com) - Wisconsin employers that provide prescription drug coverage must include coverage of contraceptives.

In an August 16 letter to Helene Nelson, Wisconsin’s Secretary of Health and Family Services, Attorney General PegLautenschlager said the exclusion of contraceptives from an employer’s benefit program that otherwise provides prescription drug coverage is a violation of Wisconsin law prohibiting sex discrimination in employment and in higher education.

Lautenschlager pointed to violations of the Wisconsin Fair Employment Act (WFEA) an employer would incur by excluding contraceptive coverage in the company’s prescription drug coverage. Additionally, the state’s attorney pointed to federal precedent that affirms such an exclusion is discriminatory. T he United States Supreme Court in Newport News Shipbldg. & Dry Dock Co. v. EEOC , 462 U.S. 669 (1983) held that Title VII of the Civil Rights Act of 1964 prohibits sex and pregnancy discrimination in employee benefits programs and the United States Court of Appeals for the 7 th Circuit has ruled that Title VII requires employers to provide the same leave benefits to husbands with pregnant wives as they provide to employees whose spouses are sick or injured in EEOC v. Joslyn Mfg. & Supply Co. , 724 F.2d 52 (7 th Cir. 1983).

“These state and federal cases, in conjunction with the provisions of the WFEA, demonstrate a clear direction in the law to prohibit discrimination against women because of their unique pregnancy-related medical needs.”

Further, Lautenschlager said the United States Equal Employment Opportunity Commission (EEOC) has addressed the issue and held that “denying prescription drug coverage for contraceptives constitutes sex discrimination under Title VII, the federal counterpart to the WFEA.”

“The EEOC found that the exclusion of prescription contraceptives from a plan that otherwise provided for prescription drug coverage constitutes sex discrimination regardless of whether the contraceptives are used for birth control or other medical purposes. The exclusion amounts to sex-based discrimination, according to the EEOC, because prescriptive contraceptives are available only to women and only women can become pregnant,” Lautenschlager’s opinion said.

Absent from Lautenschlager’s opinion was any exemptions, including for organizations that are morally against birth control methods .

A copy of the opinion can be found at http://www.doj.state.wi.us/ag/opinions/2004_08_16.asp .