In December 2000, the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, the federal law prohibiting sex discrimination in employment, ruled that an employer that does not cover prescription contraceptives in a generally comprehensive prescription drug plan is discriminating against women in the fringe benefits they provide. Since then, several district courts around the country have reached the same conclusion, and many companies - including Wal-Mart, the nation’s largest private employer - have begun providing contraceptive coverage for their employees. This coverage is not only fair - it is cost effective for employers.
But, last week, the Court of Appeals for the Eighth Circuit, in a 2-1 decision, rejected the views of the EEOC, reversed the Nebraska district court and found no discrimination against women in the employer’s failure to cover prescription contraceptives. In re: Union Pacific Railroad Employment Practices Litigation. The court’s 2-1 vote is a stark reminder of the importance of who our judges are - the decision was written by one of President Bush’s appointees, joined by a Reagan appointee, and the dissent was written by a Clinton appointee.
The good news is that Union Pacific recently changed its plan to include prescription contraceptives, and has announced that it would not take away the coverage following the court of appeals decision. But this erroneous court decision leaves women in the states it covers (Nebraska, North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas) without the legal protection they should have under Title VII so that all covered employers do the right thing.