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Copyright 2000 The New York Times Company  
The New York Times

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July 20, 2000, Thursday, Late Edition - Final

SECTION: Section A; Page 16; Column 3; National Desk 

LENGTH: 793 words

HEADLINE: Company's Insurance Should Pay for Contraceptives, Suit Says


   In a case that could have broad impact on health insurance coverage of contraceptives nationwide, Planned Parenthood yesterday filed a class-action lawsuit charging that a company whose insurance plan covers most prescription drugs but excludes contraceptives is illegally discriminating against its female employees.

"It's sex discrimination when male employees get their basic health care needs covered by insurance but women are forced to pay for their own," said Gloria Feldt, president of the Planned Parenthood Federation of America.

The case, brought under Title VII of the Civil Rights Act, was filed in federal court in Seattle on behalf of Jennifer Erickson, a pharmacist at the Bartell Drug Company, and all other female employees of the company, which operates 45 drugstores in Washington.

Ms. Erickson, a married 26-year-old who spends more than $300 a year out of pocket on her own contraception, said she had become troubled by the inequity as she had to tell women who came to the store that their insurance would not pay for contraceptive prescriptions.

"Every single day, I'm processing prescriptions and telling women that their pills aren't covered," said Ms. Erickson, who has worked at the drug chain for about 18 months. "Sometimes, they walk away from the counter and say they can't afford it. It really makes you sad, and then you realize your own company doesn't cover it either."

Last summer, Ms. Erickson said, she wrote to the human resources department at the family-owned Bartell's asking that contraceptive coverage be added to the policy, and was told that it was not something the company felt it should cover.

Mike McMurray, Bartell's vice president for marketing at Bartell's, said the company had worked hard to provide the health benefits its employees considered most valuable. "No medical benefits program covers every possible cost," he said, benefits its employees considered most valuable. "No medical benefits program covers every possible cost," he said, adding that Bartell, for example, does not pay for infertility drugs, Viagra or cosmetic surgery. "We strongly believe our program is a quality program for all of our employees. Our program is lawful and nondiscriminatory."

The issue of contraceptive coverage has been a rallying point for advocates for women's rights, especially since many employers who do not pay for contraception moved quickly to provide coverage for Viagra, which, at nearly $10 a pill, is used to combat impotence.

While almost all traditional indemnity insurance plans provide coverage for some prescription drugs, only about half cover any of the five contraceptive methods available by prescription -- oral contraceptive pills, the intrauterine device, Depo Provera, Norplant and the diaphragm -- all of them prescribed to women. And only about a third cover the pill, which costs about a dollar a day. Even among health maintenance organizations, which offer the most comprehensive coverage, only 39 percent cover all five methods, and 7 percent do not cover the pill.

The question of gender equity in prescription drug coverage has mostly been one for the legislatures. Since April 1998, 13 states have passed laws requiring that private insurance plans that pay for prescription drugs must also include contraceptive coverage: California, Connecticut, Delaware, Georgia, Hawaii, Iowa, Maine, Maryland, Nevada, New Hampshire, North Carolina, Rhode Island and Vermont. Similar legislation is pending in more than a dozen other states, including New York and New Jersey.

The Equity in Prescription Contraceptive Coverage Act has been stalled in Congress since 1997.

The idea of taking the matter to court, as a form of sex discrimination under Title VII, is not a new one. Indeed, a New York University law professor, Sylvia Law, argued for that strategy in a 1998 article in the Washington Law Review.

"It's perfectly clear that Title VII covers sex discrimination in health coverage," Ms. Law said this week. "The defendants may say that they're not excluding contraception for women only, they're excluding contraception for everyone, and it just happens that the only prescription contraceptives available in this country are for women."

Getting from a legal strategy to a live plaintiff took some doing. "It turns out that it's hard to find a woman who wants to sue her employer over contraceptive coverage, for all the obvious reasons," said Eve Gartner, a lawyer for Planned Parenthood. "It's not like suing when you've been fired.

"Even though the verdict will only be legally binding on this one employer," she said, "if we win, it puts everyone who doesn't provide contraceptive coverage on notice that their employees could sue."

GRAPHIC: Photo: Jennifer Erickson


LOAD-DATE: July 20, 2000

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