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Risk of Pregnancy “Not Related” to Pregnancy
So rules the 8th Circuit, which clearly does not realize that all women of child-bearing age are “affected by pregnancy”, because they run the risk of becoming pregnant.
I love decisions like this, because they don’t require me to resort to any sort of weird leftist legal theory to critique the results. The 8th Circuit ignored the plain meaning of the Pregnancy Discrimination Act here, and deserve to be reversed en banc because of it.
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6 Responses to “Risk of Pregnancy “Not Related” to Pregnancy”
From the AP:
“Union Pacific’s health plans do not cover any contraception used by women such as birth control, sponges, diaphragms, intrauterine devices or tubal ligations or any contraception used by men such as condoms and vasectomies,” the court panel said in its 2-1 ruling. “Therefore, the coverage provided to women is not less favorable than that provided to men.”
I don’t know if you’ve looked at some of the rulings on fertility treatment, but their much the same. Here’s a summary about a woman named Hall, who sued for infertility treatment (sorry, no link – it’s from Dec 2006 Illinois Employment Law Letter – it’s on Lexis Nexus if you have it):
“Title VII’s ban on discrimination “on the basis of sex” was amended by the PDA to include discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” Thus, the question was whether a reasonable jury could find that infertility is included in the meaning of the phrase “related medical conditions” of the PDA so that Hall would be within a protected class under Title VII. The federal district court said she wasn’t.
The PDA protects women from pregnancy discrimination when the discriminatory condition is “unique to women,” the court stated. But infertility is a medical condition that afflicts men and women with equal frequency. Only when there’s some disparity in treatment on account of an individual’s sex does Title VII apply, the court said. The court also noted that neither the legislative history of the PDA nor the EEOC guidelines reference infertility treatments or suggest that infertility should fall with the scope of the PDA.
Noting that the Seventh Circuit hasn’t addressed the issue, the district court looked to the decisions of other circuits. The Second Circuit — covering New York, Connecticut, and Vermont — previously has held that infertility isn’t within the PDA’s protection as a “related medical condition” because inclusion would result in the anomaly of defining a class that simultaneously includes equal numbers of men and women and yet constitutes discrimination because of sex. Although the cases from other circuits involved women who were denied insurance coverage for infertility treatments that can be performed only on women, the court in this case found that their reasoning applies equally to Title VII adverse employment actions based on infertility. Thus, a woman seeking infertility treatment isn’t protected under Title VII, said the court. Hall v. Nalco Co., No. 04 C 7294 (N.D. Ill., Sept. 12, 2006).”
So the key rulings here are that women are not discriminated against because men are also not eligible for contraception or fertility treatment with those employers. So the employers are therefore equal opportunity a$$holes for not providing that kind of coverage to anyone, so no one group is discriminated against. Although it sucks (you’d think that employers would want to provide contraception rather than pay for maternity leave) it seems to be in keeping with the letter and intent of the statutes the PDA amended, does it not?
For completeness, here’s the text from CRA:
“(k) The terms “because of sex” or “on the basis of sex” include, but
are not limited to, because of or on the basis of pregnancy, childbirth,
or related medical conditions; and women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for
all employment Ârelated purposes, including receipt of benefits under
fringe benefit programs, as other persons not so affected but similar in
their ability or inability to work, and nothing in section 2000e-2(h) of
this title [section 703(h)] shall be interpreted to permit
otherwise. This subsection shall not require an employer to pay for health
insurance benefits for abortion, except where the life of the mother would
be endangered if the fetus were carried to term, or except where medical
complications have arisen from an abortion: Provided, That nothing herein
shall preclude an employer from providing abortion benefits or otherwise
affect bargaining agreements in regard to abortion. “
But as Ms. Friedman and Professor Borgmann note, the medical effects of contraception fall upon women in a unique way. Contraception prevents pregnancy, only women can get and thus be prevented from getting pregnant. That’s why the infertility argument is supremely unpersuasive to me. The dissent makes this point (page 20):
“With prescription contraception a woman controls her potential pregnancy. Such contraception is necessarily gender-related because it prevents pregnancy only in women. Without contraception, a sexually active, fertile woman is almost certain to become pregnant. Once pregnant, only the woman’s health is affected. Infertility, by contrast, is a word used to describe a number of medical conditions affecting both men and women. When a man or a woman is infertile, he or she is unable to contribute to reproduction as his or her reproductive organs do not function properly. Infertility treatments may correct the medical condition of infertility in both men and women, allowing them to effectively make the necessary contribution to reproduction. Thus, prescription contraception and infertility treatments are like apples and oranges.”
This also explains why the majority relied far more heavily on the pre- versus post-conception distinction (bogus for its own reasons) then the gender-neutral rationale.
Interestingly, coverage by many insurance companies, even employer provided ones, cover infertility treatments, but not contraceptives or birth control.
I fail to understand why companies would offer insurance to facilitate infirtile women to become pregnant, and, therefore, go on maternity leave, while at the same time stymie womem who seek to avoid pregancy in oder to stay on the job.
I have never seen an explanation for this. I do have some ideas, but since I have no proof, I’ll keep them to myself.
I do know many women, especially working women, who are stressed to the limit by the dual demands of work and home. Any measure that would ease their minds, as for example being able to plan the timing of children, is met by some evasive jargon or other.
Thanks for the dissent – shame on me for being to tired and lazy to look up the text of the ruling.
I can see the point the dissent makes and the distinction from fertility since it focuses on the capability to become pregnant rather than the utility of contraception itself to both sexes. I think either case can be argued because the text of the law is vague.
Which begs the question: Why, for example, did Congress put in the awkward term “”women affected by pregnancy” instead of “pregnant women.” It’s needlessly vague as is “related medical conditions.” Related medical conditions to an actual pregnancy or related medical conditions to a woman’s reproductive plumbing? I can think of several ways the wording could be improved while at the same time making it clear contraceptives are included in the mix. The vague wording of such laws are one of many things that annoy me about Congress.
Domajot,
I do not believe that “most insurance” would cover infertility treatments. In health care, infertility treatments are “cash and carry” medicne in that insurance does not pay for it, people pay out of their own pocket, and usually have to pay up front before the treatment.
At the hospitals where I consult, infertility is a high profit, niche market that helps OB-GYN services and groups remain profitable.
I would put infertility in the same category as lysix for your eyes, breast implants, tattoo removal, and botox in that they are elective and profitable.
Superdestroyer-
I don’t know what the overall statistics on coverage are, but I know 3 women (including my daughter) whose fertility clinic visits were covered by insurance obtained through their husbands’
employment.