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Georgia woman sues Wal-Mart for failing to cover contraceptives

A Georgia woman has filed a sexual discrimination lawsuit against Wal-Mart, charging that the nation's largest private sector employer fails to provide payment for prescription contraceptive drugs.

Brought on behalf of Wal-Mart manager Lisa Smith Mauldin, the lawsuit accuses the department store giant of violating Title VII of the Civil Rights Act of 1964 for failing to provide coverage of prescription contraceptive drugs and devices, such as diaphragms and IUDs. The lawsuit, which seeks class action status, was filed on Oct. 16, 2001, in the United States District Court in the Northern District of Georgia. Wal-Mart has more than one million employees.

Georgia law
Since 1999, Georgia law has required that any fully insured health insurance plan that provides coverage for prescription medications to also provide coverage for any drug or device federally approved as a contraceptive.

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).

Federal law does not require nonfederal employers to provide prescription contraceptives as part of an overall prescription drug benefit.

Mauldin is a 22-year-old divorced mother with two children who earns approximately $12 an hour, according to the National Women's Law Center, co-counsel in the case. Attorneys say the $29.84 per month that Mauldin pays out of pocket for her birth control pills became so much of a financial burden that she stopped using them for several months.

"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."

Wal-Mart spokesperson Bill Wertz says he has not seen the lawsuit and could not comment on the specific allegations. He did say, however, that Wal-Mart believes its prescription drug plan does comply with the law. According to Wertz, the department store giant is self-insured (pays 100 percent of its employees' health insurance claims) and does not cover Viagra prescriptions for men.

"We generally don't cover very many preventive measures for men or women," Wertz says.

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, the pill for male impotence, which some insurers cover. Since 1998, Congress has required that all health insurance plans for federal employees cover prescription contraceptives.

"The law is on the side of working women on this issue."

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.

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.

"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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