Your Move, Hobby Lobby: The EEOC Says Not Covering Birth Control Through Employee Health Insurance May Be Discrimination

The EEOC says failing to provide contraceptive coverage in a prescription drug plan may constitute gender and pregnancy discrimination, thus potentially making it what some of us might call "illegal."

As we're all reeling in the collective fog of the horrible SCOTUS decision in the Hobby Lobby case and the subsequent aftermath, there's a bright spot. A clearing, if you will, on the horizon. Residents of San Francisco know this feeling well, the moment when you think that just for an instant, the gloom might lift. Except that unlike San Francisco, the fog may actually vanish this time, because the Equal Employment Opportunity Commission (EEOC) just issued a PRETTY BIG BURN.

Let's back up a minute here, though. The EEOC is responsible for ensuring that everyone gets a fair shake in the workplace, and for distributing those impossible-to-read posters in your breakroom (well, actually, your employer probably gets them from a third party who uses EEOC language). This government agency sets and enforces policy in accordance to guidance from advisors, legislation, and caselaw. And they've finally issued some guidelines on pregnancy nondiscrimination that have been a long time coming -- as in, it's been over 30 years since they issued policy guidance on how not to be a dick to pregnant people in the workplace. (Hint: Don't fire them.)

There are several different statutes that could apply to pregnancy discrimination, including the Americans with Disabilities Act (while pregnancy isn't a disability, some aspects can be disabling, and obviously complications can quickly turn a pregnancy into a medical condition -- which entitles pregnant women to consideration under the ADA). In addition, the EEOC considered Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.

Most of the information in the policy is pretty much what you'd expect. Ho hum, don't fire pregnant people because they're pregnant, provide reasonable workplace accommodations, you can't force them to take leave while they're still able and willing to work, the usual. Additionally, once that baby arrives, employers aren't allowed to discriminate against breastfeeding parents, which means NO MORE PUMPING IN THE BATHROOM for the love of all that is right in the world. (See also: No more pumping in the janitorial closet, etc etc.)

Now, I by no means want to underplay this. This is HUGE, and it will lead to very positive changes in the workplace for pregnant people. Now that we have a policy and clear guidelines, we can start talking about serious enforcement, and taking employers to the cleaners when they don't respect the civil rights of their pregnant employees. Employers won't be able to hide behind not knowing that they were discriminating (seriously guys?) or other pathetic defenses, and the EEOC will be able to take direct action against employers who are mistreating their pregnant employees.

So, basically, good news.

But, my friends, this is a rollercoaster that only goes up (to radically misquote John Green), because it gets REAL in footnote 40 (see, always read the footnotes, kids). The skinny, translated from Wonk to English by Jessica Mason Pieklo at RH Reality Check, is this: Failing to provide contraceptive coverage in a prescription drug plan may constitute gender and pregnancy discrimination, thus potentially making it what some of us might call "illegal." That could open the door to a whole flood of tort suits against employers, like, say... let's see, who wouldn't provide basic preventative care to their employees? Oh, that's right, HOBBY LOBBY.

Because here's the thing: Workers really get screwed by policies like those at Hobby Lobby and other firms demanding a contraceptive exemption. Most of them are working at low or minimum wage, and they cannot afford to pay for medications like these on their own, or they're going to eat through their minimal salaries covering them. (Some BC is VERY expensive, and "why don't you just use the cheaper option" isn't viable if a patient doesn't respond well to a given drug.) Thanks to their employer health coverage, many aren't going to qualify for financial assistance with reproductive health care unless they lie on application materials. Which is a horrible position to be in.

Pieklo cautions that it's not time to bust out the party horns just yet, because this isn't a new strategy, and it's actually even hit the courts before. (Birth Control: 0, Fundies: 1, if you're wondering.) It's possible that the decision in this recent case could even create more of a justification for employers to refuse access to contraception to their employees, which would be, well, awful.

Nonetheless, though, the EEOC has issued an opinion, and it's crystal clear. It wants none of this discrimination nonsense, and it's ready to kick back on it. While this opinion pertains specifically to pregnancy discrimination (after all, if pregnancy IS a medical condition under the law, then preventative care is part of treatment for that condition, and that's all contraceptives are), it could also potentially be widened. Birth control, as we know, has many applications, including as a means to control fibroids, endometriosis, hormonal acne, and other medical issues.

While defending the right to access birth control on the grounds that it's also used for other things sets up a slippery slope, because of course people should be able to receive contraceptives for their intended purposes, it does bolster the overall argument. If an employer is providing an insurance plan that includes preventative care, which insurance plans must do under ACA, then employees should be able to access any and all preventative care under said insurance plan.

Is birth control a contraceptive that happens to control acne, or an acne medication that happens to prevent pregnancy? Either way, it serves the needs of many different patients in many different settings, making it an extremely versatile tool to have in the prescription toolbox -- and the EEOC thinks patients have a right to access it through employee health plans, even if the Supreme Court doesn't.

Welcome to checks and balances, my friends.