Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Employers Can Deny Coverage for Certain Infertility Treatments

By ALM Staff | Law Journal Newsletters |
October 07, 2003

An employer's medical plan that denies coverage for certain female-only infertility procedures does not violate either the Pregnancy Disability Act (PDA) or Title VII of the Civil Rights Act of 1964. The Second Circuit, in a ruling of first impression, concluded that neither are violated. Saks v. Franklin Covey Co., 2003 WL 122396 (2d Cir. 1/15/03) (Martin, Parker, and Sotomayor, Cir. Judges).The employer's self-insured medical plan in this case provided benefits for 'medically necessary' procedures. The plan covered a variety of infertility products and procedures benefiting both men and women, but expressly excluded coverage for 'surgical impregnation procedures' such as in vitro fertilization. Plaintiff-appellant Rochelle Saks received various infertility treatments, including in vitro fertilization. The plan declined to reimburse her for procedures related to her attempts to be surgically impregnated. Saks sued, lost before the district court, and appealed the denial of her sexual discrimination and PDA claims.


The Second Circuit affirmed. The court first considered Saks' PDA claim. The court acknowledged that the PDA provides protection against discrimination based on pregnancy and 'related medical conditions.' It rejected the notion, however, that the PDA was intended to create a new protected category based solely on reproductive capacity. This could not be, reasoned the court, because 'reproductive capacity is common to both men and women '.' In contrast, 'the PDA requires that pregnancy, and related conditions, be properly recognized as sex-based characteristics of women.' Therefore, concluded the court, to extend protection under the PDA to both men and women would be incompatible with PDA's purposes. In short, the mere fact that a plan provides inferior coverage for infertility treatment does not mean it is violative of the PDA.


The court began its Title VII analysis by noting that the circumstances in this case were somewhat unique ' in vitro fertilization is performed only on women, but treats infertility, a condition that afflicts both men and women. The court gave as an example a male suffering from low sperm count. In that case, the infertile male's healthy female partner would need to undergo artificial insemination. 'Because male and female employees afflicted by infertility are equally disadvantaged by the exclusion of surgical impregnation procedures, we conclude that the Plan does not discriminate on the basis of sex.' In reaching this conclusion, the court distinguished this circumstance from that faced by the Supreme Court in International Union v. Johnson Controls, 499 U.S. 187 (1991), which struck down a fetal protection policy that required women to prove their inability to become pregnant to gain certain jobs. This policy, reasoned the court, was a disadvantage to women only in contrast to the plan here, which limited coverage to both men and women equally.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

Fresh Filings Image

Notable recent court filings in entertainment law.