The U.S. Equal Employment Opportunity Commission
Questions And Answers: Commission Decision On Coverage Of Contraception
What does this Commission Decision address?
- This Commission Decision addresses two charges of discrimination pending at EEOC
which challenge the employers' failure to provide health insurance coverage for
prescription contraceptives while covering a number of other preventive drugs,
devices, and services. The Commission Decision, which is based on the specific facts
in the charges under consideration, finds that the exclusion in this health plan
discriminates on the basis of sex and pregnancy, in violation of Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act.
What is the Pregnancy Discrimination Act?
- The Pregnancy Discrimination Act (PDA) was enacted by Congress in 1978 as an
amendment to Title VII to clarify that Title VII's prohibition against sex
discrimination includes discrimination on the basis of pregnancy. It was passed in
response to a Supreme Court decision which held that discrimination on the basis of
pregnancy is not sex discrimination.
What does the Pregnancy Discrimination Act require?
- The PDA requires equal treatment of women "affected by pregnancy, childbirth, or
related medical conditions" in all aspects of employment, including the receipt of
fringe benefits. It bars employers from treating women who are pregnant or affected
by related medical conditions differently from others who are similarly able or unable
to work. In a 1991 decision entitled Int'l Union, UAW v. Johnson Controls, the
Supreme Court held that the PDA protects women from discrimination because they
have the ability to become pregnant, and not just because they are already pregnant.
How is the PDA relevant to coverage of prescription contraceptives?
- Because the PDA prohibits discrimination against a woman based on her ability to
become pregnant, it necessarily covers a health plan's exclusion of prescription
contraceptives since they are a means by which a woman may control precisely that
ability to become pregnant. The PDA does not require that all employers provide
contraceptives to their employees through their health plans. It does require, however,
that employers provide the same insurance coverage for prescription contraceptives
that they do for other drugs, devices, or services that are used to prevent the
occurrence of medical conditions other than pregnancy.
What factors did the Commission look at in determining whether the Respondents' health
plan violated the PDA?
- The Commission carefully considered the particular coverage provided by the health
plan at issue. That plan covered, among other things, vaccinations; prescription drugs
to prevent the development of medical conditions, such as those to lower or maintain
blood pressure or cholesterol levels; anorectics (weight loss drugs) for those 18 years
of age and under; preventive care for children and adults; and preventive dental care.
Because each of these drugs and services is used to prevent the occurrence of a
medical condition, the Commission determined that the Respondents should cover
prescription contraceptives in the same way.
What if a woman wants to use prescription contraceptives not for birth control but for
other medical purposes?
- Oral contraceptives are widely recognized as effective in treating certain medical
conditions that exclusively affect women, such as dysmenorrhea (menstrual cramps)
and pre-menstrual syndrome. The Commission Decision recognizes that the
Respondents' exclusion of prescription contraceptives constitutes sex discrimination,
regardless of whether the contraceptives are used for birth control or other medical
purposes. Because prescription contraceptives are available only for women, 100
percent of those affected by the exclusion are women. This, by definition, constitutes
Did the Commission consider arguments by the Respondents that their exclusion of
prescription contraceptives is lawful?
- The Respondents advanced four reasons as to why their exclusion of prescription
contraceptives did not violate the law. The Commission carefully considered these
arguments but found them without merit
- First, the Respondents asserted that their insurance plan covered only abnormal
physical or mental conditions and therefore they had no obligation to cover
contraceptives. However, this argument does not hold up since the plan covers
numerous preventive drugs and services, as discussed above. In addition, it
covers surgical sterilizations and Viagra where patients complain about
decreased sexual interest or energy.
- The Respondents also stated that the exclusion was permissible because it was
based on cost considerations. However, Congress explicitly rejected a cost
defense for pregnancy and sex discrimination; in any event, the Commission
Decision cites studies that show that the cost of coverage of prescription
contraceptives is, in fact, very low and is certainly less than the cost of
- The Respondents argued that the exclusion of prescription contraceptives does
not constitute sex discrimination. However, because prescription contraceptives
are available only for women, the exclusion amounts, by definition, to sex
- Finally, the Respondents argued that the charging parties' claims are preempted
by the Employee Retirement Income Security Act (ERISA). However, while
ERISA does preempt certain state laws that regulate insurance it explicitly
exempts federal law from preemption. As a result, this argument is without
What are the next steps in processing these charges?
- The charges have been sent back to the field with instructions for further processing in
accord with the Commission Decision. This will include efforts to resolve the case
through the conciliation process.
Will EEOC identify the charging parties and the health plan at issue?
- Based on strict confidentiality provisions in the law, EEOC is prohibited from
providing any identifying information about the parties to this case.
This page was last modified on December 14, 2000.
Return to Home Page