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."