Analysis Law and Policy

Did the Obama Administration Just Restart the Fight Over Birth Control Coverage?

Jessica Mason Pieklo

Look closely at the footnotes, and you'll see that new EEOC guidelines related to workplace pregnancy discrimination say employers who fail to cover birth control could be guilty of employment discrimination.

For the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) has issued enforcement guidelines to protect the rights of pregnant workers.

Called the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, the guidelines have been years in the making, as federal civil rights laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Americans With Disabilities Act evolved to provide a patchwork of protections.

The bulk of the guidelines update longstanding EEOC policy and set out the fundamentals covered by the Pregnancy Discrimination Act, like the fact that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; the act also requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as other persons similar in their ability or inability to work.

The guidelines explain how the Americans With Disabilities Act’s definition of “disability” could apply to workers with impairments related to pregnancy and clarifies employers’ obligations toward pregnant workers, asserting that employers must give pregnant workers reasonable accommodations like light-duty work on the same terms as they grant such accommodations to other workers with similar temporary restrictions. They clarify that employers may not force pregnant workers who can work to take leave and explains that many pregnancy-related impairments will qualify directly for reasonable accommodations under the Americans With Disabilities Act. The guidelines also make clear that discrimination against breastfeeding workers is covered under the Pregnancy Discrimination Act.

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These are all good and important clarifications, especially because the Roberts Court is set to weigh in on the scope of an employer’s duty to accommodate pregnant workers on the job next term, and frankly I think we have reason to be nervous about that.

But buried in the guidelines and detailed, as lawyers do, in a series of footnotes, the EEOC revealed an important next front in the birth control wars:

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.

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.

Hold on. Did the Obama administration just announce, albeit in a very wonky and bureaucratic way, that employers who fail to cover contraception engage in employment discrimination? And did the administration just prop open the door for employees to file Title VII complaints against employers who refuse to cover contraceptives in the wake of the Hobby Lobby decision?

It sure looks that way.

With regard to the Hobby Lobby decision specifically, the EEOC guidelines explain:

This 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 First Amendment or the RFRA [the Religious Freedom Restoration Act].

Before we get too excited, calling an employer’s refusal to cover birth control employment discrimination isn’t necessarily new. Federal courts have taken a look at the question of whether Title VII and the Pregnancy Discrimination Act prohibit employers from refusing to cover birth control, and 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,” as it is “a treatment that is only indicated prior to pregnancy.” But others ruled that excluding prescriptive contraceptives from employers’ otherwise comprehensive prescription drug plan violated the Pregnancy Discrimination Act. So that means the federal courts are split on the issue of whether failing to cover contraception violates anti-employment discrimination laws. Thanks to the Roberts Court, employers may have a new shield to protect them from complying even if they do violate those laws.

The question of just how far the Hobby Lobby decision will reach is very much an open one, as these guidelines make clear. Can employers use the RFRA to defend against claims that failing to cover contraception constitutes employment discrimination? We won’t know until the lawsuits start, but we will likely find out soon enough.

Justice Alito’s majority opinion in Hobby Lobby insisted the ruling had limited scope, but we saw just how long that lasted. And in case anyone is quick to write off the EEOC’s position here because it is stated in a footnote, consider the footnote in which Alito cites theological law to support the Greens’ legal argument that complying with the Affordable Care Act’s coverage requirement is tantamount to sinful cooperation and thus a substantial burden on their religious beliefs. Not a full week later, the Court extended that logic and granted Wheaton College’s request to be exempt from trying to claim the exemption afforded to religiously affiliated nonprofits because the paperwork required for the exemption itself was too burdensome.

Suing employers for workplace discrimination in the wake of Hobby Lobby is certainly no magic bullet. EEOC complaints can be time-consuming and don’t guarantee a plaintiff even has the ability to later bring a lawsuit, let alone, in this case, have access to equal insurance benefits in the immediate. Then there are the exorbitant costs of litigation, and the risk that dollars spent upfront pursuing claims won’t ever be recovered.

Let’s not even get into the fact that the guidelines confirm insurance plans don’t have to cover abortion, because helping to make abortion affordable remains a political (and therefore legal) impossibility—so even with contraceptive equity, women would still face hurdles in having total and comprehensive reproductive health insurance coverage. Furthermore, with the federal circuits split on how they want to deal with sex- and gender-based discrimination under Title VII, any plaintiffs who could ultimately sue are hardly guaranteed a legal victory.

In other words, there’s a lot of work ahead. But the fact that the guidance takes on directly the issue of contraceptive coverage in the rubble of Hobby Lobby is important and recognizes the discriminatory intent behind the lawsuits challenging the contraceptive coverage requirement.

“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,” said EEOC Chair Jacqueline A. Berrien in a statement following the release of the guidance. “Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”

Coming from an administration that has been shy at times in its defense of the contraceptive coverage requirement, it’s refreshing to see at least this reaffirmation of a policy that is, fundamentally, about workplace equality. Now it’s time make sure the courts see it that way as well.

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