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					Standridge v. Union Pacific R.R. Co. (In re Union
  Pac. R.R. Employment Practices Litigation)
            Draft opinion for Justice John Roberts



                                      Justin Jensen
                                   Professor Hausegger
                                       11/12/2011




Prior History: On Writ of Certiorari from the United States Court of Appeals for the Eighth

                                         Circuit.

          Disposition: Affirm Court of Appeals for the Eighth Circuit’s Decision
                                                                                                   2


                                  INTRODUCTION
       The case before us, Standridge v. Union Pacific R.R. Co. (In re: Union Pacific Railroad

Employment Practices Litigation) brings forth issues related to alleged sexual discrimination

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as

amended by the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k). Brandi

Standridge and Kenya Phillips are class representatives who sued Union Pacific Railroad

Company for failing to provide prescription contraceptives to female employees through one of

the five health plans the company offers through its collective bargaining agreements with its

work force. The health plans do provide for medical services such as “routine physical exams,

tetanus shots and drug and alcohol treatments, they exclude coverage of allergy serum,

immunization agents, biological sera and drugs that treat infertility.” All of the Union Pacific

health plans “exclude male and female contraceptive methods, prescription and non-prescription,

when used for the sole purpose of contraception.” The company does however cover

contraception when it is deemed “medically necessary for a non contraceptive purpose such as

regulating menstrual cycles, treating skin problems or avoiding serious health risks associated

with pregnancy.” The individuals bringing suit against Union Pacific “used prescription

contraception for contraceptive purposes (preventing pregnancy), and the health plans did not

cover the costs of their contraception.” Union Pacific employs nearly 1,500 females of child-

bearing age under the collective bargaining agreement health plans. Two other women also

brought suit against Union Pacific for the same reasons and the cases were consolidated and

moved to the District Court in Nebraska where they received class certification. The court

specified the class as, “all females employed by Union Pacific Railroad Company after February

9, 2001, enrolled in one of the Agreement Plans who used prescription contraception, at least in
                                                                                                    3


part for the purpose of preventing pregnancy, without insurance reimbursement from said Plan.”

(The above paragraph relied heavily on Gruender).

       The District Court of Nebraska gave “partial summary judgment, finding that Union

Pacific’s failure to cover prescription contraception did constitute a violation of Title VII, as

amended by the PDA.” The District Court reasoned that the lack of contraceptive coverage was

discriminatory against women and referred to the language and purpose of the PDA. They also

cited the Equal Employment Opportunity Commission’s (“EEOC”) “interpretation of the PDA’s

application to prescription contraception and reasoning from other District Court decisions.”

The District Court did reject Union Pacific’s argument that the “denial of all contraception

results in equal treatment of men and women and that contraception deals with fertility and is not

a medical condition “related to” pregnancy; that Union Pacific’s covered benefits are treatment-

related, not preventive; and that there is no medical necessity for contraception with respect to

fertility because pregnancy is a normal human condition.” (The above paragraph relied heavily

on Gruender).

       As a result of theses finding, the lower court ruled in favor of Standridge that Union

Pacific had violated Title VII, as amended by the PDA. The courts reasoning stated that Union

Pacific “treats medical care women need to prevent pregnancy less favorably than it treats

medical care needed to prevent other medical conditions that are no greater threat to employees’

health than is pregnancy” (In re Union Pac. R.R. Employment Practices Litig., 378 F. Supp. 2d

1139, 1149 (D. Neb. 2005)). Union Pacific has appealed this ruling here to the Supreme Court

where we will review the findings of the District and Appeals Courts. “Union Pacific argues that

the PDA does not require contraception to be included in its health care coverage and that its

health care coverage does not discriminate against women in violation of Title VII” (Gruender).
                                                                                                        4




                                LEGAL QUESTIONS
        The legal question at hand in Standridge v. Union Pacific R.R. Co. concerns whether or

not the exclusion of contraceptive coverage for the use of family planning from the employers

five health insurance plans violates Title VII as amended through the Pregnancy Discrimination

Act (PDA). To determine if a violation has occurred I recommend that you examine the PDA’s

application to Title VII by looking at its true legislative intent and its eventual interpretation by

the Equal Employment Opportunity Commission (EEOC) and the timing of this interpretation.

As well as by examining Title VII itself for any violations that may have occurred in this matter

by Union Pacific. Previous lower court decisions regarding this subject matter may also be

pertinent in determining the proper scope of Title VII and the PDA. I also urge you to look into

the effects this ruling may or may not have upon employers in all sectors of work. Also, as to if

this is even a relevant question worth the courts time to be considering, as it could be viewed as a

federalism issue between the federal government and that of the many states. It is well known

that many aspects of health care regulation and insurance minimums are left to the states to

determine necessary levels of coverage and enforce regulations and violations of various health

laws.




                                       ARGUMENT
        I have cautiously reviewed the above mentioned issues pertaining to Title VII and the

PDA and established what the precedents are and where scholars stand pertaining to

contraceptive coverage by employers though the views are mixed. Here, I will outline my
                                                                                                  5


argument for my recommendation that you affirm the Eighth Circuit Court of Appeals decision.

I base this recommendation on the belief that Union Pacific did not violate Title VII as both

genders are treated equally, nor was the PDA violated as the act is silent on the matter of

contraceptives. Along with the limited implications a ruling on this matter would have for

society and the workplace as a whole; which can be derived from statistics on coverage of female

contraceptives in the work place today. The following is my analysis of the previously

mentioned theories and interpretations which I base my recommendation to you upon.



I.     BASED ON REVIEW OF THE PDA AND THE PRECEDENT SET FORTH BY

THE EIGHTH CIRCUIT COURT OF APPEALS, I FIND THAT THE DEFENDANT

UNION PACIFC IS NOT IN VIOLATION OF THE PDA.



1.

A.     Union Pacific argues on this matter that the District Court ruled incorrectly when it

determined that the PDA required contraceptive coverage. They also argue that the PDA is only

applicable to discrimination of women for medical conditions that arise once the individual

becomes pregnant. Standridge feels the PDA applies because contraception is “related to

pregnancy. While Union Pacific is of the belief that contraceptives are not related because the

use of them is entirely related to before a women becomes pregnant. One distinction the Appeals

Court points out that I believe worth noting is that “Union Pacific excludes all types of

contraception, whether prescription, non-prescription or surgical and whether for men or women,

unless an employee has a non-contraception medical necessity for the contraception” (Gruender).

This is an important distinction because it shows the company is not denying coverage to one
                                                                                                    6


gender but to both female and male employees. Because of this distinction we are better able to

determine if a violation of Title VII as amended by the PDA occurred. (The above paragraph

relied heavily on Gruender).

B.     In order to determine if a violation has occurred by not providing contraceptives, a close

examination of the wording from Title VII and the PDA is needed. Title VII tells us the

following, “it shall be an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex” (42 U.S.C. § 2000e-2(a)(1)). The PDA was

created to amend Title VII as a reaction to our ruling in Gen. Elec. Co. v. Gilbert in which we

ruled an exclusion of pregnancy benefits did not violate Title VII. The congressional PDA

amendment to Title VII now states,

       “The terms “because of sex” or “on the basis of sex” include, but are not limited

       to, because of or on the basis of pregnancy, childbirth, or related medical

       conditions; and women affected by pregnancy, childbirth, or related medical

       conditions shall be treated the same for all employment related purposes,

       including receipt of benefits under fringe benefit programs, as other persons not

       so affected but similar in their ability or inability to work . . . . This subsection

       shall not require an employer to pay for health insurance benefits for abortion,

       except where the life of the mother would be endangered if the fetus were carried

       to term, or except where medical complications have arisen from an abortion” (42

       U.S.C. § 2000e(k)).

It is through this definition that we must now determine if the language is sufficient to warrant

the requirement of coverage of contraceptives in employee’s health insurance plans for the
                                                                                                    7


purpose of family planning. We must determine how related, if at all, contraceptives are to the

medical condition of pregnancy. I suggest using rulings set forth by the Eighth Circuits decision

in this case and our own precedent from Krauel v. Iowa Methodist Medical Center as our guiding

precedents when determining if Union Pacific violated the PDA.

C.     In Krauel v. Iowa Methodist Medical Center we “held that a medical condition that

prevents pregnancy is insufficiently related to pregnancy and childbearing for treatment to be

required by the PDA. We further concluded that contraceptives were gender neutral because

they are used by both men and women” (Harvard Law Review). Using our precedent from that

case, the Eighth Circuit “concluded that the phrase “related medical conditions” in the PDA

refers only to medical conditions associated with “pregnancy” and “childbirth,” the specific

terms that precede the general phrase… Infertility is “strikingly different” from pregnancy and

childbirth because infertility prevents conception, while pregnancy, childbirth and medical

conditions related to them can occur only after conception. Therefore, Krauel holds that

infertility is “outside of the PDA’s protection because it is not pregnancy, childbirth, or a related

medical condition” (Gruender). In my examination, the Eighth Circuit’s interpretation and

application of Krauel v. Iowa Methodist Medical Center in this case is consistent with how I

think you should view this issue.

D.     Following the logic of the outlined decision above, I recommend taking up whether

contraception can be related to or a condition of pregnancy under the PDA. To this question, the

court should find that it is not related. There is no tangible connection between the two. Though

contraceptives may prevent pregnancy, it is not a medical condition of pregnancy itself. If it

were a medically necessary treatment once one had become pregnant then it would be related.

As the use of contraceptives falls outside of the pregnancy term it must not be related. Another
                                                                                                        8


argument for this can be made from the Jennifer Erickson v. The Bartell Drug Company case, the

defense, albeit unsuccessfully argued “contraceptive devices do not violate Title VII or the PDA

because contraceptives were voluntary, preventative, did not treat or prevent an illness or

disease, and control of one's fertility was not pregnancy, childbirth, or related medical conditions

under the PDA.” If you were to accept a broader view on the matter, obviously Union Pacific

would be in violation of the PDA. I believe you will follow the same more narrow logic in

determining the two are unrelated.



2.

A.      We must now consider the legislative intent of the PDA as well as the Equal Employment

Opportunity Commission’s interpretation of it. The legislature passed the PDA in response to

our findings in Gilbert and intended to protect pregnant women in the workplace. The idea that

they intended to include contraceptives by leaving the language broad and silent on the matter is

erroneous. If they had intended for its coverage there should have been some mention of it. The

court is to interpret law and where there is lack of it, it is not the courts responsibility to imply

the law. It is also flawed the legislature contends it was meant to be in there when there is no

history of contraception being mentioned in the development of the act. Without a specific

directive in the act towards contraceptives, the acts silence on the matter leaves the court no

room to expand the PDA to contraceptives being covered under employee’s health insurance

plans. (The above paragraph relied heavily on Gruender).

B.      I also urge the court to give no deference to the EEOC’s finding that “Respondents have

engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of

1964, as amended by the Pregnancy Discrimination Act, by failing to offer insurance coverage
                                                                                                    9


for the cost of prescription contraceptive drugs and devices” ("Decision on Coverage of

Contraception"). The EEOC is a government bureaucracy with no delegated law making power

on the subject. Therefore, the court is not subject to any of their findings but should look at their

interpretation for any insights it may offer. In addition, the Eighth Circuit also found “the EEOC

did not issue any guidance on the issue of coverage of prescription contraception until 22 years

after the enactment of the PDA. The delay brings into question the consistency and

persuasiveness of the EEOC’s position” (Gruender). This is another area where I think it can be

pointed out that obviously there was no thought of contraceptives of any kind being included in

the PDA and that it has been an afterthought as prescription contraceptive has grown in

popularity within our society.

C.      Based on these facts, I recommend you rule in favor of Union Pacific as it has been

shown that no violation of the PDA may have occurred because contraceptives and pregnancy

are not related. Furthermore, that the silence in the PDA upon this issue shows no intent for

contraceptives to be included in the PDA and that the lack of power in the EEOC does not bind

the court to its interpretations.



II.     BASED ON MY ANALYSIS CONCERNING VIOLATION OF TITLE VII IN

GENERAL, I DO NOT BELIEVE UNION PACIFIC’S EXCLUSION OF

CONTRACEPTIVE COVERAGE DISCRIMINATED AGAINST WOMEN. I

RECOMMEND THE EIGHTH CIRCUIT RULING BE AFFIRMED IN THIS MATTER

AS WELL.
                                                                                                    10


1.

A.     In Title VII we find that employment decisions based on sex are prohibited. What is at

conflict here is that when the employer acts not on the bases of sex classification that there is no

violation. Union Pacific, by excluding contraceptive coverage to both genders clearly is not

basing that distinction on a sex classification as both sexes are prone to the exclusion.

Standridge is challenging Title VII claiming disparate treatment amongst the genders at Union

Pacific. As we know, to prove disparate treatment Standridge must show that other employees

outside of their protected class are all similarly situated and being treated preferentially. This is

what we must determine next. (The above paragraph relied heavily on Gruender).

B.     In determining if there is a case to be made for disparate treatment against Title VII, we

must compare Union Pacific’s health plans and establish if there are any significant differences

to the plans and what they cover. The District Court’s method of determining a difference

“compared the medicines or medical services that prevent employees from developing diseases

or conditions that pose an equal or lesser threat to employees’ health than does pregnancy”

(Gruender). The District Court then found Union Pacific to be in violation of Title VII because

the male employee’s plans tended to cover more preventive medicines than the female plan. I

recommend the Supreme Court not follow this precedent as the interpretation is much too broad

as Union Pacific argues. The lower court classifies pregnancy as a disease under this stance and

though the Eighth Circuit declined to address the issue of pregnancy as a disease, I insist the

Supreme Court go as far as to determine it is not a disease to set precedent in any future cases as

to if it is. (The above paragraph relied heavily on Gruender).

C.     It is of my opinion and recommendation that clearly any rational person can see that

pregnancy is not disease. It is the creation of life and should not be viewed as a hindrance. A
                                                                                                   11


disease has true negative impacts that may last a life time and limit that life time. Granted some

women experience medical issues during a pregnancy but are we to think that is a disease?

Furthermore, those complications would be subject to medical insurance coverage under Title

VII and the PDA as they occur when the female subject is actually pregnant. The lower courts

judicial activism by expanding the idea of contraceptives which are the matter at hand into a

ruling claiming contraceptives should be covered as a preventative medicine to pregnancy is

greatly unsound.

D.     The Harvard law Review said of the Eighth Circuit decision, “In Union Pacific, the

proper analysis would have compared the extent to which the plans cover treatments that are sex-

specific in that they treat or prevent conditions that only men or women can suffer, rather than

focusing exclusively on contraceptives” (Harvard Law Review). I recommend that the Court

should focus exclusively on contraceptives, as that is the matter brought before us. It is of my

recommendation that the court not look to be as active as the law review suggests by going

outside of the facts before us looking for violations. The court should consider the issue brought

before it which in this case is the exclusion of contraceptives.



2.

A.     I also recommend you look into the developments in contraceptive coverage as the

number of companies covering contraceptives in their health plans is growing and states are

mandating their own rules on the issue. Im not entirely sure this is even a matter the Court

should be addressing, as it can and has been being dealt with on a state to state basis. Not every

discrepancy in insurance law needs a federal mandate. As long as a company treats their

employees equally and does not violate Title VII or the amended PDA in Title VII, I do not see a
                                                                                                  12


need for a sweeping ruling on this case. People are free to choose the companies they work for

and the states they live in. Those companies should be allowed to shape their health plans as

they see best as long as they are not discriminatory. Additionally, states should be free to

compete with one another as well. If one state mandates coverage and another does not, that

should be left to their prerogative and allows reflection of their constituents, people are allowed

to move freely amongst the states and can reside where they feel their needs are most met.

B.     Chad Pugh of the American Journal of Law & Medicine wrote on the Eight Circuits

ruling and stated,

       “While Standridge allows employers to drop coverage for prescription

       contraception, the ruling is unlikely to have such an effect for a number of

       reasons. First, most states already require health plans acquired from commercial

       insurers to provide contraception coverage. Accordingly, Standridge will likely

       not affect employer health plans in these states. Second, recent studies indicate

       that it is less costly for employers to cover prescription contraceptives than to

       cover a pregnancy. One study from the Guttmacher Institute reported that

       prescription contraceptives cost about $ 350 per year in comparison to an average

       cost of $ 10,000 per pregnancy. Thus, employers are unlikely to drop coverage

       for contraceptives if it will increase their overall costs. Lastly, contraceptive

       coverage has essentially become standard practice for most employers. In 2005,

       89% of employers covered contraceptives in their health insurance plans.

       Competition for employees creates strong incentives to provide contraception

       coverage. In fact, even Union Pacific now provides contraception coverage, and

       it has recently announced that it has no plans to drop coverage for prescription
                                                                                                  13


       contraception notwithstanding the Standridge ruling. Therefore, Standridge is

       unlikely to significantly alter employer health care plans” (Pugh).

As you can see from this excerpt, any sweeping rulings made by the court would be

unnecessary as society is already moving in that direction and in order to compete for

employees, businesses health packages including contraceptive coverage will increase.

Allowing this to naturally happen will also avoid lawsuits from any religious

organizations that refuse to offer contraceptive coverage do to their religious beliefs. The

court would be best served to affirm the Eighth Circuit decision and allow the democratic

process to play out.



III.   CONCLUSION

       In the preceding argument I covered why Union Pacific is not in violation of the PDA

because contraceptives are in no way related to the actual event of a pregnancy. As well as

outlined why rulings from the EEOC are irrelevant and discussed the silence from Congress on

contraceptives in the PDA. Also Covered were my arguments for why Union Pacific is also not

in violation of the more general Title VII violation accusation. The company does not exclude

contraceptive to only women, it excludes them to both genders and therefore does not violate

Title VII. I furthermore discussed reasons why the Supreme Courts ruling in this matter is rather

insignificant by pointing to scholarly work suggesting a change in this area is already underway

without any active court rulings needed.

       Therefore, based on my preceding analysis of Title VII and the PDA, I believe you will

find as I have that Union Pacific is in compliance and has not violated Title VII or the PDA by

choosing to exclude female contraceptive coverage through their collective bargained health
                                                                                                   14


plans. As a result, I believe you should rule as I argued and affirm the Eighth Circuit Court of

Appeals decision.
                                                                                       15


                    TABLE OF AUTHORITIES


1. "EMPLOYMENT LAW -- TITLE VII -- EIGHTH CIRCUIT HOLDS THAT

          BENEFITS PLANS EXCLUDING ALL CONTRACEPTIVES DO NOT

          DISCRIMINATE BASED ON SEX. -- In Re Union Pacific Railroad

          Employment Practices. Litigation, 479 F.3D 936 (8Th Cir. 2007), Reh'g And

          Reh'g E.." Harvard Law Review 121.5 (2008): 1447-1454. Academic Search

          Premier. Web. 12 Nov. 2011.



2. GRUENDER, . United States. United States Court of Appeals Eighth Circuit. In re:

          Union Pacific Railroad Employment Practices Litigation. 2006. Web.

          <http://www.ca8.uscourts.gov/opndir/07/03/061706P.pdf>.



3. In re Union Pac. R.R. Employment Practices Litig., 378 F. Supp. 2d 1139, 1149 (D. Neb.

          2005)



4. JENNIFER ERICKSON, Plaintiff, v. THE BARTELL DRUG COMPANY, Defendant.
                                  No. C00-1213L
    UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
                      WASHINGTON, SEATTLE DIVISION
  141 F. Supp. 2d 1266; 2001 U.S. Dist. LEXIS 7550; 85 Fair Empl. Prac. Cas. (BNA) 1569
                              June 12, 2001, Decided
                                June 12, 2001, Filed
                                                                                       16


5. Pugh, Chad. "Employers May Exclude Contraception Coverage from their Health

          Insurance Plans - Standridge v. Union Pacific Railroad Company." American

          Journal of Law & Medicine. 33.350 (2007): n. page. Web. 12 Nov. 2011.

          <http://www.lexisnexis.com.libproxy.boisestate.edu/hottopics/lnacademic/>.



6. United States. Equal Employment Opportunity Commission (EEOC). Decision on

          Coverage of Contraception. 2000. Web.

          <http://www.eeoc.gov/policy/docs/decision-contraception.html>.

				
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