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Political Science 353 Moot Court Paper
Standridge v. Union Pacific R.R. Co.
_____________________________________________________________________________
The EEAC'S amicus curiae in support of defendants-appellants
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IN THE
Supreme Court of the United States
Fall Term, 2011
_________________
BRANDI STANDRIDGE, ET AL.,
Plaintiffs-Appellees,
v.
UNION PACIFIC RAILROAD COMPANY, ET AL.,
Defendants-Appellants.
__________________________
On Appeal from the United States District Court
for the District of Nebraska
__________________________
BRIEF AMICI CURIAE
OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF DEFENDANTS-APPELLANTS
__________________________
Equal Employment Advisory Council
1501 M Street, NW Suite 400
Washington DC, 20005
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Table of Authorities
Cases
1. Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)
2. Erickson v. Bartell Drug Co., 141 F. Supp.2d 1266 (W.D. Wash. 2001)
3. International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)
4. Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996)
5. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)
6. Norfolk & Western Railway v. American Train Dispatchers' Association, 499 U.S. 117 (1991)
7. Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997)
Federal Statutes
8. Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)
9. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.42 U.S.C. § 2000e-2(a)
Other Authorities
10. Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of
Abortion and Infertility Services and the ADA (1996) Boston University School of Law.
American Journal of Law & Medicine
11. Review Conceiving Equality: Infertility-Related Illness Under the Pregnancy Discrimination
Act Copyright (c) 2010 Georgia State University
Georgia State University Law
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Interest of Amicus Curiae
The Equal Employment Advisory Council (EEAC) is a nonprofit employer association
founded in 1976 that helps facilitate guidance and aid its member companies to meet, exceed,
and comply with Equal Employment Opportunity obligations, as well as dealings with
Affirmative action. The EEAC is currently made up of over 300 corporations with a staff that is
geared toward the proactive help needed in keeping with compliance issues. The EEAC strives to
be a proactive organization that can assist companies in compliance issues in a number of ways
including filing of Friend-of-the court briefs in important employment related cases.
All employees of the EEAC are subject to Title VII and all other equal employment
statutes. Because companies that make up the EEAC offer employees and, in most cases, their
dependents with some sort of health plan that usually consists of some sort of inclusion for a
health plan, there is a definite need and interest to see to it that this case be ruled on and have the
correct outcome for all of those families and countless others that stand to be affected by its
ruling. The EEAC and its companies are all subject to the ruling of the court in regard to the
way that future plans and programs are constructed, notwithstanding the cost as well to
implement and introduce new comprehensive plans that meet future criteria that has yet to be
determined. We believe that because this case deals with something that most people, even out of
umbrella of the EEAC, will possibly be affected by, it is our duty to ensure that the appropriate
steps are taken to ensure proper legislation is constructed, not sweeping reform from the bench of
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the Supreme Court. It is our opinion that legal steps need to be taken and previous precedents
need to be taken into account.
Because of these reasons, this issue is extremely important for the EEAC, as well as all of
the nationally covered employees and dependants alike. The ruling of this case can and will have
implications that extend much further than just the grasp of the EEAC and it's companies, and
because of the experience the EEAC brings in the area employment rights and public policy, it is
these reasons that we hold an interest and familiarity with this case.
Statement of the Case
This case is a class action lawsuit on behalf of "all" females employed by the Union
Pacific Railroad Company after February 9, 2001, that had been enrolled in some type of health
insurance plan for the use of prescription contraceptives with some part to specifically and with
the purpose of preventing pregnancy. In re: Union Pac. R.R. Empl. Prac. Litig., 378 F. Supp.2d
1139, 1140 (D. Neb. 2005). The plaintiffs believe that they are victims of discrimination at the
hands of Union Pacific by them excluding coverage for prescriptions contraceptives, such as
birth control pills, and by doing so are in violation of Title VII of the Civil Rights Act (Title
VII), as amended by the Pregnancy Discrimination Act (PDA). Union Pacific offers and provides
health insurance benefits to its union represented employees through, five different plans. Id. at
1141. These plans provide coverage as long as the issue is deemed "medically necessary", and
are given for treatment of a specific injury, sickness, or pregnancy.
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The Defendant's argument is as follows. While the plans exclude contraceptives used in
the aiding of preventing pregnancy, they do cover those needs that may arise from complications
from pregnancy as well procedures that fall under the classification of "medically necessary".
The plans will also cover complications including skin diseases, menstrual disorders and any
unavoidable health risks associated with pregnancy. The lower courts have ruled in partial
judgment for the Plaintiff's stating that pregnancy is a "disease" and that Union Pacific's
prescription plans violate Title VII because they are not equal in the amount of medical care and
emphasis that they place on treating the prevention of pregnancy as opposed to other comparable
diseases that seem to pose a considerably equal health risk. Union Pacific has filed a timely
appeal to this ruling.
Summary of Argument
The Pregnancy Discrimination Act (PDA) was amended to Title VII of the Civil Rights
Act of 1964 (Title VII) to include that discrimination "on the basis of sex" includes
discrimination "because of or on the basis of pregnancy, childbirth, or related medical
conditions" (8). The language included in the PDA is certainly broad and does not contain any
mention of contraceptives, and it doesn't state that the term "medical conditions" extends to the
concept of prevention of pregnancy. In fact, as seen in Norfolk & W. Ry. v. American Train
Dispatchers' (6) the term "related medical conditions" should only refer to those conditions
directly related to "pregnancy" and "childbirth". The courts have also ruled in this manner as
shown in Piantanida v Wyman(7), Krauel v. Iowa Methodist Med. Ctr.(4)
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The decision for women to avoid a pregnancy is completely different than the need for a
woman to be treated for a complication that arises after conception, due to pregnancy. Therefore
it is clear that choosing to use a contraceptive does not indicate a "medical condition" in any way
shape or form. Trying to categorize using contraceptives as the same treatment as pregnancy is in
no way equal. Seeing how these two "conditions" are completely different, it is only fitting that
the use of contraceptives would not fall under the umbrella of the constrictions of the PDA.
The lower courts ruled in error when they made the decision to label pregnancy as a
"disease"; additionally, employers should not be responsible for ensuring their employees
contraceptive techniques are covered except in the rare case of treating complications or
symptoms of pregnancy. The steps taken in the prevention of, or in preparation for, a pregnancy
should not be up to the employer to cover. As stated before, the PDA does not include a
provision that mandates coverage for contraceptives of any kind. Even if it did include such a
provision, Union Pacific would not be liable on the basis of discrimination.
The clear language in the PDA states that the companies must treat pregnancy, childbirth,
and any complications that might arise in a "neutral" way. Union Pacific is not discriminating
against women by not covering only the contraceptives that affect them. They are in fact refusing
to cover any of similar treatments for men or women that are not directly related to the birthing
of a child or complications that might arise from those things specified.
The courts can also find themselves in a very precarious position if they make a habit of
ruling in such important issues from the bench, without allowing proper input from the
governmental body that has been set apart to do this very thing. Only Congress can enact laws,
and it is irresponsible of the courts to rule on an issue with such magnitude that will stretch into
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the sphere of the private sector, influencing the way that companies do business and how they
operate their coverage plans. In a market that is as volatile as the prescription drug market, it
would be difficult to make a ruling that adequately took into consideration all those that would
be effected by it.
Argument
I.
THE LOWER COURTS ARE WRONG IN THIER RULING THAT
UNION PACIFIC'S PRESCRIPTION PLAN IS IN VIOLATION OF
TITLE VII AS AMENDED BY THE PREGNANCY
DISCRIMINATION ACT FOR DENIAL OF SERVICE
A.
Using contraceptives as a method of controlling or preventing childbirth is
not a "medical condition" and therefore should not be covered by Title VII
and PDA.
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination in
employment on the basis of race, color, religion, sex and national origin. 42 U.S.C. 2000e-2(a).
The Pregnancy Discrimination Act amended Title VII to provide discrimination "on the basis of
sex" and even goes so far as to include any discrimination that might deal with pregnancy, child
birth, or the complications or effects thereof. The plain language in the PDA excludes any
specific information regarding the inclusion of contraceptive programs for the distinct purpose of
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attaining or preventing pregnancy. The fact that this statute is so vague leads us to believe that it
was not the intention of Congress to protect women and men from this type of action. It can only
be assumed that even if such wording was included, that Union Pacific still would not be liable
because this issue does not deal with discrimination in any way.
In Krauel v. Iowa Methodist Medical Center(4), the court found that infertility was not a
medication that was "related to" pregnancy and childbirth when applied to the PDA. The same
than can be said about "related medical conditions". They should be characterized by those
things that happen after conception, not within the boundaries of keeping oneself from getting
pregnant or attempting to unnaturally stimulate conception.
Looking at this case objectively, it is easy to see that even with the contraceptive issue
aside, Union Pacific has handled this situation of coverage as gender neutral. The prescription
plan does not only limit women from using preventive elective contraceptives but also limits
males as well. It is well known that infertility isn't an affliction that only affects one gender nor
are birth control pills the only method of contraception. The plan, therefore, would seem to stand
in that light as well as being a blanket coverage with equal exclusions from both sexes.
If the courts have ruled that infertility is not a medical condition because there is an
absence of conception, then it is a logical step to rule that someone who is avoiding pregnancy
through contraceptive care would also not have any medical condition that would qualify them
for treatment under this plan.
In Piantanida v. Wyman Center(7), the courts have used the term "social role" to describe
the attributes of a male or female that enters into a role of childbearing. The courts have stayed
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away from describing this action as a medical condition. Although women are the only ones that
can carry a child, both men and women may opt into the "social role" and adopt this role with
childbirth. Both responsible males and females alike engage in activities through various means
to keep from having unplanned pregnancies. The burden of this action does not just fall on one
gender therefore this plan is accurate in its gender-neutral approach.
The lower courts made a mistake in prematurely classifying pregnancy as a "disease". As
the Krauel case (4) illustrates, although there can be changes in the body from pregnancy and
certainly some complications that can occur, it is not the same as labeling it a "disease". It is, in
most cases, a choice. It is hard to believe that the courts can rule in one instance and call
pregnancy a "disease" and at the same time also rule that it is nothing more than carrying a baby.
Even the agency that has been put forth to regulate the statutes of Title VII (EEOC) don't believe
that pregnancy is a disability or a "disease" as it has been described. The EEOC states that the
Americans with Disabilities Act (ADA) does not cover pregnancy because “pregnancy is not the
result of a physiological disorder” and “is not an impairment,” let alone a disability. 29 C.F.R.
pt. 1630 app. § 1630.2(h) (interpretive guidance); EEOC Compl. Man. § 902.2(c)(2), Definition
of the Term Disability (Feb. 1, 2000).
Of course there are instances where coverage would be needed for complications that can
arise from the act of childbirth through conception. Those specific circumstances would in fact
be covered by both the statute as well as most coverage plans available today to the public and
private sectors. A health prescription plan that excludes prescription contraceptives for both male
and female the same is not in violation of the PDA and therefore the lower courts were wrong in
their initial ruling, and it should be overturned.
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II.
RULING ON A CASE AS SENSITIVE AS THIS REQUIRES DEBATE AND
INPUT FROM THE PRIVATE SECTOR. THE COURTS SHOULD NOT
ENFORCE LEGISLATION FROM THE BENCH, BUT RATHER SHOULD LET
THE SYSTEM MAKE CHANGES AS NECISSARY.
It has already been established that congress shall be the only body that enacts and makes
laws; therefore, it is important to remember the ramifications that come with a ruling of this
magnitude. The courts have an opportunity to affect the outcome of legislation, not by ruling in
favor of the plaintiff's but rather to overturn the lower courts and allow the private sector the
right to have a open debate about future plans and the direction that the sector as a whole would
like to move toward. Considering that there has not yet been any government mandates set
within the parameters of health insurance coverage, it is only fitting that they get a chance to hear
all sides before irreversible precedent is set.
A.
THE PDA DOES NOT MANDATE THAT AN EMPLOYER'S PERSCRIPTION
PLAN COVER CONTRACEPTIVES. IT IS FOR CONGRESS TO DECIDE THE
PARAMATERS IF COVERAGE IS INDEED REQUIRED IN THE FUTURE.
If indeed there is reason to believe that there should be a mandate made to ensure the
coverage in health insurance plans for contraceptive plans this should be left up to congress.
There are many reasons why it is not only irresponsible for a court to make a decision that will
without a doubt affect millions of people as well as the countless companies that are already
struggling in this current economic climate. Enacting legislation from the bench without giving
the public a chance to hold an open forum is problematic at best.
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In Sex, Lies, and Health Insurance, author D' Andra Millsap outlines the sensitive issues
that are at stake in this debate. She writes, " Employer-provided health insurance is the backbone
of the American health care system. Approximately four of five workers in the United States rely
on health insurance provided in the workplace". Making drastic changes to the dynamic that is
already in place could spell disaster for millions of Americans who could see changes to their
healthcare plans. Not only would this potentially change the coverage afforded, but also the
amount of people that could afford insurance, as there is sure to be a hike to expand to the ever
growing number of conditions that would suddenly need to be remedied.
Further illustrations of the inconsistencies of the courts can be seen in The Georgia State
University Law Review Conceiving Equality: Infertility-Related Illness Under the Pregnancy
Discrimination Act "The Hall decision is only one example of the inconsistency among federal
courts' recognizing the importance of protecting gender equality and antidiscrimination policies
while grappling with newer challenges of infertility treatments and illness in the workplace." The
courts have not yet come to a census on what does and does not constitute discrimination, and
until that point is made it is irresponsible to create a global mandate from the bench without
further debate and public input.
Conclusion
With the information that has been supplied above, it is our belief that the
prescription coverage debate is not yet over, but there is reason to believe that
Union Pacific is not liable with regards to discrimination. America was founded on
the belief that things have their proper channels to ensure that mistakes are not
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being made. We may find that there is more to be done in the area of health
insurance coverage with regards to contraceptives but that is to be decided by
congress and the public opinion that follows. For these and other reasons stated
above, the Equal Employment Advisory Council respectfully submits this Amicus
Brief for the reversal of the lower court's decision.
Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and
Infertility Services and the ADA (1996). Web. 11 Nov. 2011.
<http://www.lexisnexis.com.libproxy.boisestate.edu/hottopics/lnacademic/>.
About NCLC | National Chamber Litigation Center. Web. 18 Nov. 2011.
<http://www.chamberlitigation.com>.
DeVries, Nichole. "Conceiving Equality: Infertility-Related Illness Under the Pregnancy Discrimination
Act." (2010). Web. 18 Nov. 2011.
<http://www.lexisnexis.com.libproxy.boisestate.edu/hottopics/lnacademic/>.
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