Some Health Plans Violate Title VII and Other Non-Discrimination Laws

As insurance companies and self-insured employers struggle to comply with Obamacare, many are forgetting about the requirements of Title VII and other nondiscrimination laws. 

Obamacare requires that women receive certain preventive services (e.g., sterilization and testing for chlamydia, gonorrhea and HPV) without having to pay deductibles, copays and coinsurance, but is silent about whether similar services should be provided to men without charge. See 42 USC § 300gg-13(a)(4); 26 CFR § 54.9815-2713T(b)(1); 29 CFR § 2590.715-2713(b)(1); 45 CFR § 147.130(b)(1). In fact, Obamacare guidelines "exclude services relating to a man's reproductive capacity, such as vasectomies and condoms." See 78 FR 8456, 8458, n. 3. By following these guidelines, some health plans now provide that men must pay deductibles, copays and coinsurance for such things as sterilization procedures and sexually transmitted disease testing while women receive these services without additional cost.

Yet, even though Obamacare provides for different treatment of men and women, it does not supersede Title VII. Obamacare emphasizes that it should not be "construed to invalidate or limit the rights, remedies, procedures, or legal standards available to individuals aggrieved under . . . title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)."
Public Law 111-148, 111^th Cong., 2d. Sess., § 1557(b) (2010). In other words, male and female employees must be treated the same under the employer's health plan. See City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978); Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 103 S. Ct. 3492, 77 L. Ed. 2d 1236 (1983). In addition, if the employer's plan provides coverage to spouses, the male and female spouses must be treated the same. See Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 103 S. Ct. 2622, 77 L. Ed. 2d 89 (1983). An unanswered question is whether male dependents can be treated differently from female dependents given that the different treatment is sex-based. See 42 U.S.C. § 2000e-2(h), (m).

Of course, Title VII is not the only non-discrimination law. State and local non-discrimination laws can impose liability on an uninformed employer.