When Cosmo Kramer (Michael Knight) of Seinfeld J was diagnosed with a low sperm count, he went from briefs to boxers, albeit briefly, as per doctor's orders. If Kramer were employed, would his employer's health benefit plan be required by the discrimination statutes to provide coverage for that "fertility treatment" (purchase of boxers)? Or, more realistically, is coverage required if a woman were to undergo artificial insemination, in vitro fertilization and/or in utero insemination for infertility?
The Second Circuit Court of Appeals, which covers the Western District of New York, recently clarified that the answer to each question is no.
In a case involving the situation described in the second question above, Saks v. Franklin Covey Co., Rochelle Saks underwent the three (3) surgical impregnation procedures mentioned above, and then was denied reimbursement by her employer's health benefits plan. Ms. Saks sued under, among other statutes, Title VII and the Pregnancy Discrimination Act ("PDA"). In a decision affirming the summary judgment entered against Ms. Saks, the Second Circuit summarized the analysis regarding benefits under these statutes.
Title VII prohibits discrimination based on a number of protected categories, including sex. Originally, Title VII was interpreted as only requiring that protected class employees have equal access to whatever health benefits the employer or its plan chose to provide. Congress responded by passing the PDA, which expanded the definition of discrimination on the basis of sex to include "pregnancy, childbirth, or related medical conditions," and requires generally inclusive benefits plans to include coverage for women with pregnancy-related claims. Ms. Saks based her initial claim on her infertility which necessitated the various surgical impregnation procedures prescribed for her. The Saks noted initially that the PDA related only to the definition of sex discrimination against women because of pregnancy, childbirth or related conditions. Accordingly, an earlier case had found that discrimination based on "child-bearing capacity" was prohibited by Title VII, as amended by the PDA. The Saks Court then cited statistics showing that men and women are afflicted equally by infertility, the subject of Ms. Saks' pending claim. Therefore, the Court held that since the exclusion of surgical impregnation fertility procedure benefits would disadvantage male and female employees equally, there was no Title VII/PDA violation.
Ms. Saks also made a discrimination claim based on the fact that surgical impregnation procedures are actually performed on women, not men. However, the Court's conclusion that no discrimination occurred remained, because female employees, or the female spouse of male employees, might be prescribed the identical surgical impregnation procedures for the same condition, infertility. The Court also noted that treatment by surgical impregnation requires the participation of both the male and female partners. Thus, as male and female employees would still be equally disadvanted by the lack of surgical impregnation fertility procedure coverage, the Court found no Title VII/PDA violation.
It is apparent from the Court analysis that employers need to be careful when selecting what benefits are available to their employees in order to avoid the substantial penalties available under Title VII. To that end, a small bit of advice can help employers avoid feeling like the four main Seinfeld TM characters at their series-ending trial.
Reprinted with permission of the Daily Record 2002 ©