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Denying insurance coverage for infertility treatments that can only be performed on women is not unlawful discrimination, the 2nd U.S. Circuit Court of Appeals has ruled. Finding that the “exclusion of surgical impregnation procedures disadvantages infertile male and female employees equally,” the court said an employer who refused to pay for artificial insemination and other treatments did not violate the Pregnancy Discrimination Act (PDA). The court also found that the health insurance coverage at issue did not amount to discrimination based on sex, and affirmed a district judge’s grant of summary judgment to the employer in Saks v. Franklin Covey Co., 00-9598. Rochelle Saks had claimed that the refusal of her self-insured health benefits plan to cover infertility treatments amounted to a violation of her civil rights under Title VII of the Civil Rights Act of 1964 and the PDA, 42 U.S.C. § 2000e, which extended Title VII’s bar against discrimination “because of sex” to include pregnancy and “related medical conditions.” While employees enrolled in her health plan were allowed benefits for a number of infertility products and procedures, the plan specifically excluded artificial insemination and other surgical impregnation procedures, such as in-vitro fertilization. After Saks filed a federal suit in the Southern District of New York, Judge Colleen McMahon rejected her claims, finding that the exclusions of surgical impregnation procedures affected males and females equally. The judge also said the PDA was not violated because the plan provides equal coverage for men and women. On the appeal, Chief Judge John M. Walker said “the proper inquiry in reviewing a sex discrimination challenge to a health benefits plan” under Title VII “is whether sex-specific conditions exist, and if so, whether exclusion of benefits for those conditions results in a plan that provides inferior coverage to one sex.” Addressing Saks’ infertility discrimination claim, Judge Walker said the court had “no doubt” the phrase “related medical conditions” in the statute “clearly embraces more than pregnancy itself.” “Because reproductive capacity is common to both men and women, we do not read the PDA as introducing a completely new classification of prohibited discrimination based solely on reproductive capacity,” he said. “Rather, the PDA requires that pregnancy, and related conditions, be properly recognized as sex-based characteristics of women.” Judge Walker noted that in International Union v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court “indicated that, although discrimination based on ‘childbearing capacity’ violates Title VII as modified by the PDA, discrimination based on ‘fertility alone’ would not.” With studies showing that infertility afflicts men and women with equal frequency, Walker said, including “infertility within the PDA’s protection as a ‘related medical condition’ would result in the anomaly of defining a class that simultaneously includes equal numbers of both sexes and yet is somehow vulnerable to discrimination.” “Because such a result is incompatible with the PDA’s purpose of clarifying the definition of ‘because of sex’ and the Supreme Court’s interpretation of the PDA in Johnson Controls, we hold that infertility standing alone does not fall within the meaning of the phrase ‘related medical conditions’ under the PDA,” he said. DISCRIMINATION REJECTED The court went on to reject Saks’ sex discrimination claim, saying that “although the surgical procedures are performed only on women, the need for the procedures may be traced to male, female, or couple infertility with equal frequency.” “Because male and female employees afflicted by infertility are equally disadvantaged by the exclusion of surgical impregnation procedures, we conclude that the plan does not discriminate on the basis of sex,” Walker said. Judges Fred I. Parker and Sonia Sotomayor joined in the opinion. Darnley D. Stewart, Daniel L. Berger and Leah Guggenheimer of New York’s Bernstein Litowitz Berger & Grossmann represented Saks. Steven C. Bednar of Manning Curtis Bradshaw & Bednar in Salt Lake City represented Franklin Covey Co. Jonathan S. Franklin and Catherine E. Stetson of Hogan & Hartson in Washington, D.C., represented amicus curiae American Society for Reproductive Medicine.

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