The first lawsuits filed under the Affordable Care Act (“ACA”) were filed last week alleging that an employer’s insurance policies were in violation of the ACA. According to a press release issued by the National Women’s Law Center (“NWLC”), the preeminent women’s advocacy group in the United States, the group lodged formal complaints on Tuesday, June 4, 2013, against five institutions – specifically, Auburn University, Battelle Memorial Institute, Beacon Health System, Gonzaga University, and the Pennsylvania State System of Higher Education – alleging that the institutions’ health insurance failed to provide pregnancy coverage for employees’ dependent children. According to the NWLC, such coverage exclusions violate Section 1557 of the ACA, which protects individuals from discrimination on the basis of sex (as well as race, national origin, age, disability and gender identity) in health care plans.
According to Judy Waxman, NWLC Vice-President for Health & Reproductive Rights, “When an institution excludes maternity coverage for the female dependent children of its employees, it means that young women on their parents’ plans receive benefits that are less comprehensive than those provided to young adult men. Providing a less favorable set of benefits to employees’ daughters compared to their sons is not only unfair, it is also discrimination on the basis of sex – a violation of Section 1557 of the ACA.”
Not only does the ACA mandate non-discriminatory insurance policies on the part of employers, it also protects employees from retaliation for blowing the whistle on their employer’s failure to comply with the ACA. Under the ACA, if an employee reports to a supervisor or an appropriate government agency conduct the employee reasonably believes constitutes a violation of the ACA – such as the use of factors such as health status, medical history, gender, and industry of employment to set premium rates – that employee is protected from any adverse employment action made in which the employee’s report was a “motivating factor” – that is, the reports “played some role” in the employer’s action to take adverse action against the employee.
As NWLC Co-President Marcia D. Greenberger noted, “Pregnancy coverage is an essential insurance benefit for women. Our message to every institution providing health insurance in the country is that treating pregnancy differently, including by omitting it from health insurance coverage, is sex discrimination pure and simple and as such violates the law.” While it is encouraging that the NWLC is taking the lead on ensuring that companies are compliant with the ACA’s anti-discrimination provisions, we are also encouraged that employee health insurance whistleblowers will be able to identify and bring light to these practices without the fear of reprisal.