Erickson V. Bartell Drug Co.: A Roadmap for Gender Equality in Reproductive Health Care or an Empty Promise?

Abstract

In this article, I explore the longstanding exclusion of reproductive health treatments, such as prescription contraception and infertility benefits, in employment-based health plans, and I consider whether such exclusions constitute gender discrimination in violation of Title VII. While differences in the forms and purposes of each suggest that Title VII challenges to prescription contraception are more likely to be successful, the comparison highlights several factors that would bolster Title VII claims for each. For example, both exclusions reflect gender stereotyping based on notions of motherhood and sexual freedom pervasive in the employment and health care contexts. Both exclusions have significant adverse and unique health effects on women, despite the fact that there may also be gender neutral effects. Finally, despite commonly accepted beliefs that employers are simply line-drawing based on cost, a closer look at employers' broader coverage trends reveals that their policy decisions are often inconsistent with or unsubstantiated by their purported cost concerns.