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Is Sex Discrimination Hiding In Your Health Plan?
There have been several cases in recent years that have accused health plans of discriminating on the basis of sex with regards to covering birth control. But now we're seeing cases pop up that claim, by not offering infertility treatments to women, health plans are guilty of sex and pregnancy discrimination.
An employee was a member of her company's self-insured health plan. While employed, she tried both artificial insemination (IUI) and in vitro fertilization (IVF) to get pregnant. Although she became pregnant twice, she miscarried both times. Her health plan covered a variety of infertility products such as ovulation kits and oral fertility drugs, as well as nearly all surgical infertility treatments. But it specifically excluded coverage for IUI, IVF, and embryo or fetal implants.
Although the company recognized that the employee had an illness as defined under its health plan and her procedures were "medically necessary," it refused to reimburse her for the procedures or the fertility drugs and tests related to the procedures. The employee then took the company to court claiming discrimination.
Both the trial and appeals court found that the plan did not discriminate against women. Said the court: "Under Title VII, the proper inquiry in reviewing a sex discrimination challenge to a health benefits plan is whether sex-specific conditions exist, and if so, whether exclusion of benefits for those conditions results in a plan that provides inferior coverage to one sex." Infertility is a gender-neutral condition and the health plan's exclusions did not discriminate specifically against women. Case dismissed. (Saks v. Franklin Covey Co., 2nd Cir., No. 00-9598, 2003)
Pause for employers: Make sure your health benefits plans aren't discriminating on the basis of sex. As long as similar surgical infertility treatments are denied coverage for both male and female employees, you can steer clear of legal liability.
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