[from NYT] June 13, 2001 Judge Says Some Employers Must Cover Contraceptives By TAMAR LEWIN
In the first court ruling on the issue of gender equity in drug coverage, a federal judge in Seattle said yesterday that the Bartell Drug Company, a family-owned drugstore chain, discriminated against women when it excluded prescription contraceptives from its employee health plan.
The class-action lawsuit, filed last July by Jennifer Erickson, a 27-year-old pharmacist at Bartell, said the health insurance coverage violated the Pregnancy Discrimination Act by paying for all the basic health care needs of male employees while leaving female employees to pay for contraception.
"Male and female employees have different sex-based disability and health care needs, and the law is no longer blind to the fact that only women can get pregnant, bear children or use prescription contraception," said the judge, Robert S. Lasnik of Federal District Court, granting summary judgment to Ms. Erickson.
"The court finds that Bartell's prescription drug plan discriminates against Bartell's female employees by providing less complete coverage than that offered to male employees," Judge Lasnik ruled. "Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered."
Bartell said yesterday that it had added prescription benefits for union employees in April and would now add those benefits for nonunion employees like Ms. Erikson.
"It was never our intention to discriminate," Jean Bartell Barber, the company's chief financial officer, said, "and we had planned to offer contraceptive coverage well before this judgment."
Ms. Erickson, a pharmacy manager, said she paid about $300 a year for birth-control pills; her husband's health insurance policy, like her own, does not cover contraception.
Ms. Erickson's lawyer, Roberta Riley, of Planned Parenthood of Western Washington, said the ruling opened the way for many women to seek contraceptive coverage from their employers.
"This is a very historic case, setting a precedent that can help other women," Ms. Riley said.
Nonetheless, she said, there remains a need for federal legislation assuring contraceptive coverage because the federal sex-discrimination law covers only those women who are employed and insured by businesses with more than 15 employees.
The issue has been raised in many forums. In Congress, the Equity in Prescription Insurance and Contraceptive Coverage Act has been stalled since 1997. But many states have passed their own laws, requiring at least some employers to provide contraceptive coverage.
In December, the Equal Employment Opportunity Commission ruled in two unrelated cases that employers who offer insurance coverage for preventive health care, like drugs to lower blood pressure or cholesterol, must also cover prescription contraceptives. That ruling, however, was not binding on the courts and served only to guide judicial thinking.
Since the commission's ruling, the fight for contraceptive coverage has moved to college campuses, too. The University of Nebraska, New York University and others have recently agreed to pay for contraceptive coverage for their employees.
"The E.E.O.C. guidance showed that the handwriting was on the wall," said Marcia D. Greenberger, co-president of the National Women's Law Center. "But employers often want to see what the courts have to say. Now, with this court affirmation, I would expect that most employers would provide contraceptive coverage, especially since it costs so little."
A 1998 study by the Alan Guttmacher Institute found that the average cost of adding contraceptive coverage to a health care plan would be $1.43 per employee per month; smaller studies by insurers, however, have found higher costs.
Bartell said that to keep health care costs reasonable, it had tried to provide coverage for the health care costs employees cared about most and had chosen to exclude not just contraception, but also fertility drugs, cosmetic surgery and Viagra.
The company said that until the new ruling, there had been no legal guideline in defining discrimination.
"In the 37 years Title VII has been on the books, there had been no court ruling demonstrating that the exclusion of contraceptives constituted discrimination," Ms. Barber said, referring to the federal antidiscrimination law to which the Pregnancy Discrimination Act is an amendment.
Judge Lasnik said Bartell had not shown any bad faith or intent to discriminate. Instead, he said, the exclusion of contraception was "an unquestioned holdover from a time when employment-related benefits were doled out less equitably than they are today."
Women's rights groups put the issue of gender equity in prescription drug coverage high on their agenda after discovering that many of the same employers that excluded women's prescription contraceptives from their health plans chose to pay for Viagra, a prescription drug to fight impotence.