Railroad Must Cover Birth Control

In a sharply critical ruling, a Nebraska federal district judge said Union Pacific Corp. illegally discriminated against female employees by barring prescription contraceptive coverage from its health plans -- even as it underwrote the cost of Viagra and drugs for male-pattern baldness.

The judge’s decision, issued Friday, is the latest victory for women’s rights advocates in a series of battles fought in state legislatures and courtrooms over the issue of contraceptive access.

U.S. District Judge Laurie Smith Camp in Omaha did not order the nation’s largest railroad to immediately begin covering contraception for female employees or the wives of male workers, but did rule that the company’s policy violates the 1964 Federal Civil Rights Act.

Later rulings will flesh out the remedies Union Pacific must adopt to comply with the law, which bars employers with 15 or more workers from discriminating on the basis of sex.

A spokesman for Omaha-based Union Pacific, however, said that the railroad would probably appeal the ruling in part because union representatives chose not to seek contraceptive coverage as part of their most recent labor agreement. For now, the company plans no changes in its healthcare plans.

Roberta Riley, one of the lawyers for Planned Parenthood of Western Washington who represented the railroad’s female employees in the class action, said she was elated by the decision. “It’s heartening to see that this judge did understand,” she said.

Two female Union Pacific engineers, from Idaho and Missouri, brought the sex discrimination claim three years ago, asking the company to reimburse them for out-of-pocket expenses for Food and Drug Administration-approved birth control medication in the same way it reimburses men for impotence drugs and other gender-specific conditions.

Friday’s ruling extends the reach of a 2001 federal court decision that applies only in western Washington state. In that case, female employees of a local drugstore chain won a court order requiring the company to provide contraceptive-related services to women on the same basis that it offers coverage for other outpatient services and prescription drugs.

After the 2001 decision, many U.S. companies began to offer contraceptive coverage. The decision also helped spark laws in many states requiring employers to cover the cost of birth control pills, diaphragms and other medically prescribed devices. California passed a similar law in 1999.

Those statutes do not apply to large self-insured corporations such as Union Pacific, which are bound by federal insurance laws instead. Federal legislation that would require healthcare plans to cover all forms of prescription contraception and related outpatient medical services has been stalled in Congress.

Union Pacific employs 49,000 workers nationwide, including 6,000 in California. The ruling affects not only the company’s 1,300 female employees covered by collective bargaining agreements but, according to lawyers for the plaintiffs, also wives of male union workers.

In its briefs, the railroad justified its decision to exclude birth control coverage by arguing that “because fertility is ‘normal,’ contraception is not ‘medically necessary.’ ” Company health plans do cover contraceptives if prescribed for a “non-contraceptive purpose,” such as the treatment of skin diseases or menstrual disorders.

In a 16-page decision granting summary judgment to the plaintiffs, the judge agreed that pregnancy is normal, but noted, “There is also no doubt that pregnancy is a condition that has a profound impact on a woman’s health.”