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

clevercupcakes/Flickrclevercupcakes/FlickrFor 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." 

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  • Dave Krueger||

    Are those cupcakes a human right? If so, where's mine?

  • Swiss Servator, Alles Klar||

    Guess we see the Donkey's issue for 2014 mid-terms.

  • Cliché Bandit||

    We live in a dictatorship...just not sure if it is the dick or the tator driving.

  • AlmightyJB||

    I hear millenials love tyranny if it works in their favor.

  • sarcasmic||

    Most people do.

  • AlmightyJB||

    Hence the problem

  • Obama's Buttplug||

    But nestled deep within is language that could allow employees whose health plans don't cover contraception to file an employment discrimination complaint

    So the updated guidelines on the rights of pregnant employees also covers the rights of the unpregnant?

  • WTF||

    Yes. Because FYTW. That's also where the government gets the constitutional authority to even be allowed to interfere in and dictate the terms of employment in the first place - the FYTW clause.

  • SugarFree||

    You should treat every gun as if it is loaded.

  • WTF||

    And never point it at anything you don't intend to shoot.

  • Bo Cara Esq.||

    A typically loathsome corporatist law, and surely the Hobby Lobby ruling should apply to it, but I will say I can't see how contraceptives are not 'related to pregnancy.' Their entire purpose is pregnancy related, namely to prevent them.

  • PapayaSF||

    They mean "not related to treating pregnancy."

  • ||

    This is underpants gnome logic of the sort that finds wheat that never leaves the farm where it was grown affecting "interstate commerce". Why not follow this to its logical conclusion? Since all of us have to be born in order to participate in society, everything is related to pregnancy. All regulation is justifiable under title VII. QED.

  • Hugh Akston||

    So did the Obama administration just make it employment discrimination to not cover employee birth control?

    Nope. The Administration has no knowledge of this, and certainly no involvement. This is the work of one rogue department administrator. If you listen carefully, you can hear their hard drive crashing even now.

  • WhatAboutBob||

    Obama will learn about this when he reads then newspapers!

  • ||

    Hugh, if a hard drive crashes and there's no one there to verify it actually was ever backed up like it was supposed to be, does anyone hear it or get punished?

    Here endith the Zen government lesson for today, grasshopper.

  • Rhywun||

    if an employer's health insurance plan covers preventive care for medical conditions other than pregnancy, [...], then prescription contraceptives also must be covered

    So basically, "pregnancy" is a disease. Got it.

  • Auric Demonocles||

    I thought it was a parasitic infection?

  • AlmightyJB||

    Only if it's a boy

  • PapayaSF||

    Clearly one solution is to drop coverage for preventive care. Or is that illegal now?

  • AlmightyJB||

    Not sure if this has already been linked.

    http://thefederalist.com/2014/.....n-america/

  • PapayaSF||

    Interesting.

  • Plàya Manhattan.||

    I'm pretty sure the supreme court ruled on this.

  • sarcasmic||

    They made a narrow ruling on the ACA. These regulations came about from a different Act, so I doubt the ruling applies.

  • Notorious G.K.C.||

    That's what they're betting on. Given the Obama administration's stellar record of victories in religious-freedom cases, I'm sure they'll prevail!

  • Plàya Manhattan.||

    Neither set of regulations came from an act of congress. They were administrative regulations made by unelected bureaucrats, which are fucking bullshit.

  • sarcasmic||

    You know what I meant.

  • AuH20||

    Thank god we have a Constitutional Scholar in the White House!

  • Scarecrow Repair||

    Too bad he's not a medical expert too, or he wonder why contraceptives are mandated for pregnant women only. Or even an expert on barns and horses.

  • Auric Demonocles||

    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

    Does this mean my company doesn't need to provide contraceptive coverage, since it doesn't provide coverage for things to prevent my hiking injuries (e.g. backpacking boots)?

  • Pro Libertate||

    Mine has no kayaking coverage.

  • Auric Demonocles||

    Those bastards. They are denying you access to life vests?!?

  • The Last American Hero||

    Don't let them know you go outside. Your behavior could be deemed risky and either invalidate your policy or get you bumped into a higher risk pool.

  • Plàya Manhattan.||

    Along those lines, I could sure use a GoPro helmet, because lord knows I'm going to do something stupid and dangerous with my GoPro.

    /Triple backflips off of cliff

  • Pro Libertate||

    I know some want the results this order is trying to get, but think about the point of having a legislature. It's so representatives of different groups can consider, review, debate, and vote on matters that affect people across the country. If we make it okay to skip that process, then one person or a few people can arbitrarily do, well, anything. Just as legally, a president could, I dunno, ban abortion.

    I say nothing about the rules that are supposed to govern any law or rule making.

  • MegaloMonocle||

    Hobby Lobby would be in compliance with the new requirements, as they do cover contraception.

    Just not all contraception.

    I would think that having a box of condoms in the break room would be the mandatory provision of anti-pregnancy devices.

    Weak sauce, feds.

  • creech||

    Haven't you seen enough tv? Male bosses get it on with their powerless secretaries in the supply closet, not the break room.

  • Auric Demonocles||

    No, no, no! Condoms don't count as birth control, because a super tiny segment of women need hormonal birth control for reasons other than family planning.

    Also they're too cheap.

  • ||

    Why do you hate Women Elizabeth Nolan Brown? Why?

  • Brandybuck||

    "Because prescription contraceptives are available only for women..."

    While it's not a prescription, vasectomies are medical procedures covered under many health plans. The only reason the EEOC considers lack of contraception coverage to be discriminatory is by narrowing the definition to only cover prescriptions.

    In other words, they're playing Calvinball.

  • ||

    +1 I Win.

  • LarryA||

    Women may get the contraception, but men certainly participate in using it.

  • Zombie Jimbo||

    "a senior legal analyst with RH Reality Check"

    There's a solid unbiased source for you!

  • GILMORE||

    Does this mean free condom-dispensers in the bathroom? No!?

    00000000

    SHOCKED FACE

    00000000

    Because really, I'm *dying* to find new ways to have things I don't use deducted from my paycheck. Regular old 'healthcare' wasn't enough! I DEMAND MORE PAYROLL DEDUCTIONS! I want to never have to know my *actual pay* anyway.

    It seems the New Political Chess Game is,

    "Propose Free Shit! for valued-constituency (the chicas)- AND DARE YOUR OPPONENT TO OPPOSE THE FREE SHIT, thusly making for a Win-Win of Welfare-esque proportions*

    *in the sense that there are no real beneficiaries other than the politicians.

  • ||

    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.

    That is quite possibly the most insipid thinking I have seen on the subject of government mandated healthcare, and that is saying something. There is so much wrong with the "logic" it is hard to know where to start. By this reasoning a plan that excludes cosmetic breast augmentation has to be covered because only women get that too. An insurance plan that does not pay for birth control does not discriminate on the basis of gender, it discriminates on the basis of, horrors, medical necessity. By the way, a plan that doesn't cover contraceptives for female employees doesn't cover it for the spouses or daughters of male employees either so that argument that it discriminates against female employees is utterly and completely specious. And finally, the Fluke Codicil: women who want contraceptives are more than welcome to go buy them on their own.

  • ||

    "as with other fringe benefits, employers who offer employees health insurance must include coverage of pregnancy, childbirth, and related medical conditions."

    Huehuehue, "fringe" benefits... employers who "offer health insurance". Can we dispense with the language implying that any of this is voluntary anymore?

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