Erickson v. Bartell Drug Co., C00-1213L.

• Decision Date: 12 June 2001
• Docket Number: No. C00-1213L.,C00-1213L.
• Citation: 141 F.Supp.2d 1266
• Parties: Jennifer ERICKSON, Plaintiff, v. THE BARTELL DRUG COMPANY, Defendant.
• Court: U.S. District Court — Western District of Washington

Page 1266

141 F.Supp.2d 1266

Jennifer ERICKSON, Plaintiff, v. THE BARTELL DRUG COMPANY, Defendant.

No. C00-1213L.

United States District Court, W.D. Washington, at Seattle.

June 12, 2001.

COPYRIGHT MATERIAL OMITTED

Lynn Lincoln Sarko, Keller Rohrback, Seattle, WA, Eve C Gartner, Donna Lee, Planned Parenthood Federation of America, New York, NY, Roberta N Riley, Planned Parenthood of Western WA, Seattle, for Jennifer Erickson, on behalf of herself and all others similarly situated, plaintiffs.

James Ralph Dickens, Miller Nash Wiener Hager & Carlsen, Seattle, WA, for Bartell Drug Company, defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

LASNIK, District Judge.

The parties' cross-motions for summary judgment in this case raise an issue of first impression in the federal courts' whether the selective exclusion of prescription contraceptives from defendant's generally comprehensive prescription plan constitutes discrimination on the basis of sex.¹ In particular, plaintiffs assert that Bartell's decision not to cover prescription contraceptives such as birth control pills, Norplant, Depo-Provera, intra-uterine devices, and diaphragms under its Prescription Benefit Plan for non-union employees violates Title VII, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).²

A. APPLICATION OF TITLE VII

Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1).³ Unfortunately, the legislative history of the Civil Rights Act of 1964, of which Title VII is a part, is not particularly helpful in determining what Congress had in mind when it added protection from discrimination based on sex. The 1964 law, coming in the midst of the Civil Rights movement and the turmoil in the South, was predominately about racial fairness for blacks, not gender equity for women.⁴ In fact, the late amendment that added "sex" to one portion of the proposed civil rights law came from a powerful Congressman from Virginia who may have been attempting to derail the proposed law by adding a classification that would be seen as controversial. The two hours of humorous debate on the amendment has since been described as "Ladies Day in the House." Yet whatever the motivation of the Congressman who moved the amendment (and who later voted against the entire Civil Rights Law), once sex was added to Title VII, all future attempts to remove it or limit it were defeated.⁵

The legislative history of Title VII does not forecast how the law was to be interpreted by future courts faced with specific examples of allegedly discriminatory conduct. The truth of the matter is, Congress' intent regarding the evolution of a law is rarely apparent from fragments of legislative history. Long before this particular dispute arose, the protections of Title VII had no doubt been applied in ways that were never anticipated by the Representatives and Senators who voted for it or the President who signed it into law Nevertheless, Congress has generally chosen to interfere with the judiciary's interpretation of Title VII only where the courts attempted to restrict its application, as discussed below. What is clear from the law itself, its legislative history, and Congress' subsequent actions, is that the goal of Title VII was to end years of discrimination in employment and to place all men and women, regardless of race, color, religion, or national origin, on equal footing in how they were treated in the workforce.

In 1978, Congress had the opportunity to expound on its view of sex discrimination by amending Title VII to make clear that discrimination because of "pregnancy, childbirth, or related medical conditions" is discrimination on the basis of sex. 42 U.S.C. § 2000e(k). The amendment, known as the Pregnancy Discrimination Act ("PDA"), was not meant to alter the contours of Title VII: rather, Congress intended to correct what it felt was an erroneous interpretation of Title VII by the United States Supreme Court in General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).⁶ In Gilbert, the Supreme Court held that an otherwise comprehensive short-term disability policy that excluded pregnancy-related disabilities from coverage did not discriminate on the basis of sex. The Gilbert majority based its decision on two findings: (a) pregnancy discrimination does not adversely impact all women and therefore is not the same thing as gender discrimination; and (b) disability insurance which covers the same illnesses and conditions for both men and women is equal coverage. To the Gilbert majority, the fact that pregnancy-related disabilities were an uncovered risk unique to women did not destroy the facial parity of the coverage. The dissenting justices, Justice Brennan, Justice Marshall, and Justice Stevens, took issue with these findings, arguing that: (a) women, as the only sex at risk for pregnancy, were being subjected to unlawful discrimination; and (b) in determining whether an employment policy treats the sexes equally, the court must look at the comprehensiveness of the coverage provided to each sex. It was the dissenters' interpretation of Title VII which ultimately prevailed in Congress H.R.Rep. No. 95-948, at 2 (1978) ("Justice Brennan .. pointed out that since the plan included comprehensive coverage for males and failed to provide comprehensive coverage for females, the majority erred in finding that the exclusion of pregnancy disability coverage was a nondiscriminatory policy. Furthermore, Justice Stevens, in his dissenting opinion, argued that `it is the capacity to become pregnant which primarily differentiates the female from the male.' It is the committee's view that the dissenting Justices correctly interpreted the Act.").

The language of the PDA was chosen in response to the factual situation presented in Gilbert, namely a case of overt discrimination toward pregnant employees. Not surprisingly, the amendment makes no reference whatsoever to prescription contraceptives. Of critical importance to this case, however, is the fact that, in enacting the PDA, Congress embraced the dissent's broader interpretation of Title VII which not only recognized that there are sex-based differences between men and women employees, but also required employers to provide women-only benefits or otherwise incur additional expenses on behalf of women in order to treat the sexes the same. See, e.g., Arizona Governing Comm. for Tax Deferred Annuity and Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1084 n. 14, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983) (noting that the PDA buttresses the finding "that the greater cost of providing retirement benefits for women as a class cannot justify differential treatment based on sex").

Although this litigation involves an exclusion for prescription contraceptives rather than an exclusion for pregnancy-related disability costs, the legal principles established by Gilbert and its legislative reversal govern the outcome of this case. An employer has chosen to offer an employment benefit which excludes from its scope of coverage services which are available only to women. All of the services covered by the policy are available to both men and women, so, as was the case in Gilbert, "[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." Gilbert, 429 U.S. at 135, 97 S.Ct. 401 (quoting Geduldig v. Aiello, 417 U.S. 484, 496-97 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974)). Nevertheless, the intent of Congress in enacting the PDA, even if not the exact language used in the amendment, shows that mere facial parity of coverage does not excuse or justify an exclusion which carves out benefits that are uniquely designed for women.

The fact that equality under Title VII is measured by evaluating the relative comprehensiveness of coverage offered to the sexes has been accepted and amplified by the Supreme Court. In Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), the Supreme Court found that a health insurance plan which covered pregnancy-related costs for female employees, but not for the spouses of male employees, violated Title VII and the PDA. The court reasoned that because an employer cannot "provide complete health insurance coverage for the dependents of its female employees, and no coverage at all for the dependents of its male employees," the same result applies "even if the magnitude of the discrimination were smaller." Newport News, 462 U.S. at 682-83, 103 S.Ct. 2622. Thus, a policy which provided complete coverage to the male spouses of female employees but only partial coverage for the female spouses of male employees discriminated against the male employees. Newport News, 462 U.S. at 683-85, 103 S.Ct. 2622.

The other tenet reaffirmed by the PDA (i.e., that discrimination based on any sex-based characteristic is sex discrimination) has also been considered by the courts. The Supreme Court has found that classifying employees on the basis of their childbearing capacity, regardless of whether they are, in fact, pregnant, is sex-based discrimination. International Union, United Automobile, Aerospace and Agricultural Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 197-98, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). The court's analysis turned primarily on Title VII's prohibition on sex-based classifications, using the PDA merely to bolster a conclusion that had already been reached. To the extent that a woman's ability to get pregnant may not fall within the literal language of the PDA, the court was not overly concerned. Rather, the...