EEOC: Not Paying for Contraception is Pregnancy Discrimination
In its first change to the Pregnancy Discrimination Act guidelines for employers in 31 years, the federal Equal Employment Opportunity Commission (EEOC) declared last week that all employers who offer health insurance must cover contraception for women.
One of numerous changes, which include expanding “Pregnancy Discrimination” to encompass “discrimination based on past, present, or future pregnancy,” as well as considering pregnancy-related problems or restrictions to be covered under the Americans with Disabilities Act, the rule seems to contradict the Supreme Court’s recent ruling that closely-held private companies are not required to cover contraception, sterilization or potentially abortifacient drugs if their owners have strongly held religious beliefs that they are sinful, and that paying for them would cause the owners to sin.
Listed under the category “Potential or Intended Pregnancy,” Discrimination Against Contraception reads:
Depending on the specific circumstances, employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives.For example, an employer could not discharge a female employee from her job because she uses contraceptives.
Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. Because prescription contraceptives are available only for women, a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventive dental care, then prescription contraceptives also must be covered.
Under the Affordable Care Act, all employer-provided insurance coverage must now cover the items listed above, which means that the EEOC requires all employers to cover contraceptives as well.
The guidelines do not make any mention of religious organizations or religious beliefs. An official Q&A for employers addresses the question with the ambiguous statement that
In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently ruled that the Patient Protection and Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. EEOC’s Enforcement Guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the RFRA or under the Constitution’s First Amendment.
According to an article by Allison Goico for the law firm Dinsmore, the Enforcement Guidance document issued July 14th represent “a significant departure from the current guidelines. It was issued without public comment and over the stated dissent of two of the Commissioners, with Supreme Court and Congressional action on the horizon.” Dinsmore recommended that employers check all their policies regarding women of childbearing age against the new guidelines, as they indicate that how EEOC “is going to approach pregnancy discrimination charges, at least until the Supreme Court considers the issue next term or Congress acts.”
Only “ministerial employees” of churches or similar entities are exempt from EEOC rules. This would seem, at the very least, to open the door for almost all women employed by churches, religious organizations, and closely-held private companies owned by religious people to sue for contraceptive coverage under Title VII of the Civil Rights Act.
Tomorrow: Ohio Senate candidate Nino Vitale on the Enforcement Guidance document.
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