Pendo on Infertility Discrimination in Insurance

New on Westlaw: Elizabeth A. Pendo, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination, 11 Conn. Ins. L.J. 293 (2004-2005). From the introduction:

In the last few years, the federal courts have issued important decisions under Title VII of the Civil Rights Act of 1964 ("Title VII") including the Pregnancy Discrimination Act, ("PDA") and the Americans with Disabilities Act of 1990 ("ADA") regarding insurance coverage of treatments or conditions associated with sex and disability. Notably, the Supreme Court held in the 1998 case Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after Bragdon. However, in 2003, in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit held that an employer's health plan could exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA.

The decision in Saks was a disappointment to many, particularly after the successful use of Title VII to challenge a health plan exclusion of prescription contraceptives in Erickson v. Bartell Drug Company in 2001. But Saks did not shut the door on using Title VII or the ADA to challenge an employer's exclusion of infertility treatment from its plan. Although the ADA has received more scholarly attention in this context, the decisions of the trial and appellate court illustrate the relative weakness of the ADA as a tool to challenge discrimination in the content of employer health plans because of its "equal access" test, which requires only facial neutrality, and its broad "safe harbor" provision. The decisions also illustrate that Title VII can offer significant advantages over the ADA for purposes of challenging the exclusion of infertility treatment because a facially neutral policy that simply permits equal access to the same set of benefits for male and female employees is not sufficient. Instead, employers providing coverage must provide equally comprehensive coverage for both sexes, and the additional cost of offering non-discriminatory benefits, if any, is not a defense. Although the court in Saks concluded that the employer's plan could lawfully exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA, this Article explains how other courts could analyze claims under Title VII differently, and provides a roadmap of alternative legal and factual analyses for Title VII and ADA claims that could be successfully adopted in other cases.