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Employers Can Deny Coverage for Certain Infertility Treatments
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.
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