The Obama Administration May Have Just Made It Illegal Not to Cover Employee Birth Control

For the first time in a few
decades, the Equal Employment Opportunity Commission (EEOC) has
issued updated guidelines
on the rights of pregnant employees. In general, the new
guidelines are pretty ho-hum—mostly a way of coalescing the
patchwork of existing pregnancy-related protections (such as the
Pregnancy Discrimination Act and the Family and Medical Leave Act)
into one guidance document. But nestled deep within is language
that could allow employees whose health plans don’t cover
contraception to file an employment discrimination
complaint. 

In a section of the document on health insurance, the EEOC notes
that “as with other fringe benefits, employers who offer employees
health insurance must include coverage of pregnancy, childbirth,
and related medical conditions.” This is an explicit part of the Pregnancy
Discrimination Act. But that act is mum on the subject of
contraception. In contrast, the new EEOC guidance says that
employee health insurance plans “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.”

Another section of the EEOC guidance addresses contraception in
more detail: 

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.

… 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.

So did the Obama administration just make it employment
discrimination to not cover employee birth control? And how will
this work in relation to employers that object to covering
contraception on religious grounds?

A footnote of the EEOC document mentions the Hobby
Lobby case and the Religious Freedom Restoration Act. But
it provides no clarification on how those relate to the EEOC
guidelines, merely stating “this enforcement guidance … does not
address whether certain employers might be exempt from Title VII’s
requirements under the First Amendment or the RFRA.” This seems to
leave the door open for workers bringing sex-based employment
discrimination complaints against employers that don’t cover birth
control—and a whole new round of fighting over contraception
coverage in the federal courts. 

Federal courts have previously addressed whether Title
VII and the Pregnancy Discrimination Act prohibit employers
from excluding contraception coverage. “Before Hobby
Lobby at least one federal
court reasoned that failing to cover contraception wasn’t
employment discrimination because contraception is not ‘related to
pregnancy,'”
points out Jessica Mason Pieklo, a senior legal analyst with RH
Reality Check. But several other courts ruled the
opposite way. “The question of just how far the Hobby
Lobby decision will reach is very much an open one, as
these guidelines make clear,” adds Pieklo. “We won’t know until the
lawsuits start.”