The United States Court of Appeals for the Second Circuit recently issued an important decision on federal antidiscrimination law in Saks v. Franklin Covey Co. There, it held that an employer can deny insurance coverage for infertility procedures done only to women. Doing so, according to the court, constitutes neither pregnancy nor sex discrimination. While the opinion has some persuasive qualities, there is a strong argument to be made that the wrong result was reached. The decision is the first appellate ruling on an issue that has been brewing in lower courts, and it is likely to have an unfortunate effect.

Because infertility treatments are costly, and insurance coverage is spotty, many women already find themselves pushing employers to include fertility benefits in their insurance plans. Others find themselves fired owing to absences or sickness related to fertility treatments.

Infertility treatment should be addressed, under the law and insurance plans, in the same way pregnancy-related expenses are now treated. In addition, infertility-treatment-related absences and sick leaves should be treated in the same way as pregnancy-related absences and sick leaves. It only makes sense: for many couples, infertility treatment is a necessary step on the road to pregnancy.

THE FACTS OF THE CASE

For four years, Rochelle Saks worked as a store manager for Franklin Covey. During her tenure there, she unsuccessfully tried to conceive a child with her husband. Over the course of several years, she underwent progressively more invasive fertility treatments – including intrauterine inseminations, oral and injectable fertility drugs, hormone injections, and in vitro fertilization (IVF). She became pregnant twice using these methods, but she miscarried both times.

Saks sought reimbursement for these costly procedures through her employee health plan. The plan guaranteed coverage for “medically necessary” procedures – those required “for the diagnosis or treatment of an active illness or injury.” Pregnancy was considered an “active illness” under the plan. The plan covered some infertility products, including ovulation kits, oral fertility drugs, and even penile implants. It also covered surgery to correct conditions causing infertility, such as endometriosis or tubal blockages. But it expressly excluded much more expensive “surgical impregnation procedures,” such as artificial insemination, IVF, and two other procedures known as GIFT and ZIFT. Accordingly, the plan denied Saks reimbursement for all but a few of her expenses.