Infertility-procedure exclusion not bias

Workforce, April, 2003 by D. Diane Hatch, James E. Hall, Mark T. Kobata

While employed by Franklin Covey, Rochelle Saks was a member of the company's self-insured health plan. After she and her husband attempted unsuccessfully to have a child, Saks underwent infertility procedures. Although the company's health plan provided employee benefits for many infertility products and procedures, it specifically excluded coverage for intrauterine inseminations and in-vitro fertilization.

After the company refused to reimburse Saks for either the IUI or IVF procedures, as well as the fertility drugs and tests related to the procedures, a U.S. District Court rejected her claims that the refusal violated Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, or the Employee Retirement Income Security Act.

On appeal, the U.S. Court of Appeals for the Second Circuit agreed that the health plan does not discriminate specifically against women. "Infertility is a medical condition that afflicts men and women with equal frequency." Therefore, "[i]ncluding infertility within the PDA's protection...would result in ... defining a class that...includes equal numbers of both sexes and yet is somehow vulnerable to sex discrimination." Saks v. Franklin Covey Co., 2nd Cir., No. 00-9598 (1/15/03).

Impact: Employers should be prepared to demonstrate that any exclusion of benefits does not disproportionately affect a protected class of employees.