The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


Title VII: Contraception

November 2, 2001

Dear :

This is in response to your letter to the Department of Labor's Pension and Welfare Benefits Administration (PWBA). The PWBA forwarded your letter to the U.S. Equal Employment Opportunity Commission (EEOC or Commission) for a response.

Specifically, you asked how EEOC's recent decision on the exclusion of prescription contraceptives from a health insurance plan, and a California appellate court decision regarding the same, can be reconciled with the "latitude in plan design" given employers under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA).

At the outset, we remind you that EEOC does not enforce ERISA and we, therefore, cannot address questions of coverage under ERISA. The EEOC does enforce, among other statutes, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Title VII prohibits discrimination on the basis of race, color, sex, religion, and national origin. Part of Title VII, as you mentioned, is an amendment called the Pregnancy Discrimination Act (PDA), which explicitly requires equal treatment of women "affected by pregnancy, childbirth, or related medical conditions" in all aspects of employment, including the receipt of fringe benefits.

See 42 U.S.C. § 2000e(k). The Supreme Court has interpreted the PDA to protect women from discrimination not only because they are pregnant, but also because of their potential for pregnancy. See Int'l Union, UAW v. Johnson Controls, 499 U.S. 187 (1991).

The Commission Decision you mentioned explains that because Title VII's prohibitions cover a woman's potential for pregnancy, discrimination related to a woman's use of contraceptives - the means by which women control their potential for pregnancy - also is covered by Title VII. Thus, the Commission held that, under the facts and circumstance of the specific charges before the Commission, an employer's health plan could not deny coverage for prescription contraceptives if it did not exclude coverage for other preventive drugs, devices or services. See EEOC Decision on Contraception Decision (2000) (available at www.eeoc.gov).

Again, EEOC does not enforce ERISA, so we cannot opine on how ERISA applies to employers' decisions to provide or not provide coverage for prescription contraception in their health plans. Importantly, however, ERISA is not a defense to conduct that is unlawful under Title VII or the other EEO statutes, because ERISA does not require an employer to discriminate. Thus, assuming you are correct that ERISA gives employers wide latitude in designing health benefit plans, that latitude necessarily ends at the point where the design violates Title VII.

As to the California case you mentioned, according to our research, it has been superseded as of September 26, 2001, pending further review by the court. But it is our understanding from perusing the case that it does not involve Title VII or an analogous law; instead the case involves a constitutional challenge to California laws that require California employers to include prescription contraceptives in their health plan coverage if they generally provide employees with health insurance or disability insurance that includes prescription drug benefits. See Catholic Charities of Sacramento v. Department of Managed Health Care et al., 109 Cal. Rptr. 2d 176, 181 (2001). How the California laws at issue in the Catholic Charities case interact with ERISA simply is beyond the jurisdiction and expertise of EEOC staff.

We hope this guidance is helpful to you. Please keep in mind that this is intended as informal guidance only, and is not an official opinion of the Commission.

Sincerely,

Dianna Johnston
Assistant Legal Counsel


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