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Women nationwide can sue Wal-Mart for failing to cover birth control pills

A federal judge in Atlanta has granted class-action status to a sexual discrimination lawsuit against Wal-Mart that alleges the nation's largest private-sector employer fails to provide payment for birth control pills.

The lawsuit accuses the department store giant of violating Title VII of the Civil Rights Act of 1964 by denying women workers insurance coverage for birth control.

However, U.S. District Judge Julie Carnes also narrowed the scope of the lawsuit by restricting the eligibility of class members to women employees working for Wal-Mart after March 2001, who were also using prescription birth control pills. Originally, the lawsuit asked Carnes to allow male workers with spouses who use birth control pills to join the class, as well as women workers who wanted to use the pills but didn't because Wal-Mart's health insurance plan doesn't cover them.

"The judge did certify the lawsuit, but she did not rule on the merits of the case," says Wal-Mart spokesperson Bill Wertz, who says the company believes its prescription drug plan does comply with the law.

The lawsuit was filed on Oct. 16, 2001, in the United States District Court in the Northern District of Georgia on behalf of Wal-Mart manager Lisa Smith Mauldin. It accuses the department store giant of violating Title VII of the Civil Rights Act of 1964 by denying women workers insurance coverage for birth control. Mauldin, a 22-year-old divorced mother with two children, earns approximately $12 an hour, according to the National Women's Law Center, co-counsel in the case. Attorneys say the $32 per month that Mauldin pays out-of-pocket for her birth control pills has become so much of a financial burden that she only buys them when she can afford them.

"In refusing to cover contraceptives, Wal-Mart is denying basic medical care to its women employees," says Janine Pollack, a partner at Milberg, Weiss, Bershad, Hynes & Lerach, lead counsel for the plaintiff. "For many women like the plaintiff, the $30-a-month cost of birth control pills is a significant financial burden and creates a barrier to obtaining quality health care."

Catch-22

The Catch-22 is that Wal-Mart offers its employees a self-insured health plan, meaning that the company — not an insurer — assumes 100 percent of the risk. These plans do not come under the jurisdiction of the state, but rather they are regulated by the federal government under the Employee Retirement Income Security Act (ERISA).

Unlike other companies that have lost legal battles over the issue of contraceptive coverage, Wal-Mart does not cover Viagra.

While Georgia law requires that any fully-insured health insurance plan that provides coverage for prescription drugs to also provide coverage for contraceptives, federal law does not require nonfederal employers to provide prescription contraceptives as part of an overall prescription drug benefit.

Unlike other companies that have lost legal battles over the issue of contraceptive coverage, Wal-Mart does not cover Viagra, a drug used to treat male sexual dysfunction. In June 2001, a federal court in Seattle ruled in Erickson vs. Bartell Drug Co. that the exclusion of prescription contraceptives discriminates against women because it offers less complete coverage to female employees than to male employees. Bartell Drug did cover Viagra prescriptions for its male workers while denying prescription birth control to its women workers.

Precedents point the way

Reproductive and women's rights groups have a history of trying to force employers to cover contraceptives in health insurance. The tenor of the debate escalated after the introduction of Viagra, which some insurers cover. Since 1998, Congress has required that all health insurance plans for federal employees cover prescription contraceptives.

A body of case law has been mounting that says the omission of contraceptive coverage is unlawful in some cases. On Dec. 12, 2000, the Equal Employment Opportunity Commission ruled that it's against federal law for employers to exclude contraceptives from their health insurance plans when those plans cover other preventive treatments such as vaccinations, routine physical examinations, and dental care.

"Women around the country are coming forward to demand that their employers add prescription drug contraceptives to their health insurance plans," says Judith C. Appelbaum, vice president and director of employment opportunities with the National Women's Law Center. "The law is on the side of working women on this issue."

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