TITLE VII and the ADA
Weinhaus and Dobson
Sheldon Weinhaus, Esq.
906 Olive Street, #900
St. Louis, MO 63101
Title VII (Civil Rights Act)
Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §2000e-2(a)(2) and (k)(1)(B)(i), forbids discriminatory practices and discrimination as to fringe benefits, and that prohibition includes actions that have a disparate impact on those groups protected by Title VII. While question whether "disparate impact" proofs can be made in in-vitro fertilization cases, Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996), on the presumption male infertility also not covered,1 query the decision of many health insurers still resisting payment for high dose chemotherapy for breast and ovarian cancer?
"Employer" is defined to include those acting as agent of the employer. 42 U.S.C. §2000e(a). If the insurer compels the employer to give it the right to make fiduciary decisions, not simply administer the plan, or if the insurer demands the right to amend the plan unilaterally to change benefits or benefit levels, a plan sponsor prerogative, may the insurer be deemed in fact an employer or co-employer. This is still an open question as the result of the November 1995 modification of the decision in Henderson v. Bodine Aluminum Co., 70 F.3d 958 (8th Cir. 1995). And if the latter set of circumstances makes an insurer an employer or co-employer, what about conversion policies some courts hold covered under ERISA, where the benefits of the conversion policy do not resemble those of the plan and are set entirely by the insurer for the employee.
The complainant must first complain to the Equal Employment Opportunity Commission (EEOC). Be aware of the 180/300 day period of limitations, from the date of denial. One would guess that if the date is critical, insurers would argue the date should be the earlier date of denial of precertification, not the later date of denial after a bill has been denied. Although in seeking preliminary relief it can be anticipated that defendants will attempt to urge necessity for ERISA exhaustion, as in Henderson v. Bodine Aluminum Co., 4 AD Cases 835 (E.D. Mo. 1995), reversed, 70 F.3d 958 (8th Cir. 1995). Exhaustion of EEOC procedures will not defeat threshold jurisdiction. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Jackson v. Seaboard Coast Line RR, 678 F.2d 992, 999-1010 (11th Cir. 1982).
1 In light of the determination in Bragdon v. Abbott, 524 U.S. 624. 8 AD Cases 239 (1998), the Eighth Circuit’s premise that reproduction is not a major life activity, is subject to grave question.
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