EEOC reverses Agency finding of no discrimination related to health plans. Complainants filed Equal Employment Opportunity (EEO) complaints alleging discrimination on the bases of sex (including pregnancy), disability (infertility), and disability by association. This was based on a Health Maintenance Plan denying them insurance coverage for certain Assistive Reproductive Technology (ART) procedures, including In-vitro fertilization (IVF). Following the initial investigation, the Agency issued a Final Agency Decision (FAD) finding that the Agency did not discriminate based on disability because the wife did not precisely articulate the underlying medical cause of her infertility, the exclusion of ART procedures was not a disability-based distinction because the exclusion was the same for all enrollees, the Plan had a policy of covering only medically necessary procedures that improve or correct a medical condition- which IVF does not do, and the exclusion fell under the safe harbor provision of the Americans with Disabilities Act because: the Health Maintenance Plan was a bona fide insurance plan that existed and paid benefits, and the ART procedures provided no medical value because they did not improve or correct the underlying condition causing the failure to reproduce. The Agency further held that the claim of discrimination on the basis of sex (pregnancy) did not fall under the purview of the Pregnancy Discrimination Act because the exclusion of ART procedures applied equally to men and women. Complainants appealed to the Equal Employment Opportunity Commission’s (EEOCs) Office of Federal Operations (OFO).

On appeal, the OFO first noted that there was ample evidence in the record to establish that the wife’s infertility constituted a disability. The OFO then found that IVF was nearly exclusively utilized for the treatment of medically diagnosed infertility from 1997 to 2000, and the exclusion of IVF was not a broad distinction that applied to a multitude of dissimilar conditions and therefore the IVF exclusion was not consistent with the Plan’s medically-necessary policy and that OPM cannot rely on this argument to justify its exclusion. The OFO reversed the Agency’s final decision finding no discrimination, and ordered the Agency to provide supplemental documentation to help the OFO determine appropriate compensatory, pecuniary, and non-pecuniary damages.

Theo B. and Cathie K. v. Office of Personnel Management, EEOC Appeal Nos. 0120033970, 0120033969 (December 21, 2018)

Federal employee attorney Kirk J. Angel represents federal employees throughout the nation.