U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Theo B. and Cathie K.,1 Complainants, v. Margaret Weichert, Acting Director, Office of Personnel Management, Agency. Request Nos. 0520080057, 0520080067 Appeal Nos. 0120033970, 0120033969 Agency Nos. 98-33, 00-27 DECISION The Commission’s decision on these appeals concerns a challenged health insurance provision from 1997 to 2000 that categorically excluded coverage of any form of in vitro fertilization (IVF). The Commission takes no position on the question of whether a similar blanket exclusion of IVF, as that practice may exist currently, would violate the Rehabilitation Act. The Commission determines that the health insurance provision at issue in this case was a disability-based distinction and that the Agency failed to provide an adequate justification for this disability-based distinction. Therefore, the Commission REVERSES the Agency’s final decision as it relates to Complainants’ disability claims. SUMMARY Section 501 of the Rehabilitation Act (“Section 501”) prohibits covered entities from discriminating on the basis of disability by entering into, or participating in, a contractual or other arrangement or relationship with an insurance company that has the effect of discriminating against qualified applicants or employees with disabilities. Section 501 has been amended to adopt the standards and defenses of the Americans with Disabilities Act in non-affirmative action discrimination claims. See 29 U.S.C. §791(g). The U.S. Office of Personnel Management (OPM) contracted with Community Insurance Company, Inc.2 for a comprehensive medical plan (commonly known as a health maintenance organization, or HMO) called the Health Maintenance Plan (“Plan”), which served most of Ohio. From 1997 to 2000, this Plan covered certain treatments for the diagnosis and treatment of medical infertility, such as fertility drugs, artificial insemination, and corrective surgical procedures, but it excluded other treatments from coverage: “Other assistive reproductive technology (ART) procedures such as in vitro fertilization and embryo transfer are not covered.” From 1997 to 2000, Complainants underwent in vitro fertilization (IVF), for which the Plan denied coverage.3 Complainants, a wife and husband, alleged that OPM discriminated against them on the bases of sex (including pregnancy), disability (infertility), and disability by association, when the Health Maintenance Plan denied them insurance coverage for certain ART procedures, including IVF. These complaints have a long and tortured procedural history in the administrative process, including multiple appeals and remands. At present, the Complainants’ only surviving claims concern discrimination on the basis of disability (infertility), for which the Agency found no discrimination in a May 21, 2003 final agency decision. Complainants appealed the Agency’s final decision. On April 9, 2014, the Commission ordered the Agency to supplement the record. The Agency submitted its supplemental record on or around February 9, 2015. Based on the record, as supplemented, the Commission determines that the Agency did not justify the Plan’s exclusion of coverage for IVF based on actuarial data or actual or reasonably anticipated experienced. FACUTAL AND PROCEDURAL HISTORY Complainants’ Health Maintenance Plan provided some coverage for the diagnosis and treatment of certain forms of medical infertility, including fertility drugs, artificial insemination, and corrective surgical procedures, but it excluded other infertility services, most prominently in vitro fertilization (IVF). From 1994 to 1996, the Plan’s brochure elaborated on the types of infertility services that would and would not be covered: Diagnosis and treatment of infertility is covered; you pay 20% of charges. Artificial insemination is covered; you pay 20% copay; cost of donor sperm is not covered. Other assistive reproductive technology (ART) procedures that enable a woman with otherwise untreatable infertility to become pregnant through other artificial conception procedures such as in vitro fertilization and embryo transfer are not covered. ROI, Exs. 6-2B, 6-2C, 6-2D. Over the next several years, the language of the exclusion changed slightly, but the substance of the exclusion remained intact. The 1997 brochure removed the language that described ART procedures as enabling “a woman with otherwise untreatable infertility to become pregnant through other artificial conception procedures.”4 From 1998 to 1999, the Plan’s brochure described in greater detail the types of artificial insemination that would be covered. Additionally, in 1999 the Plan began to cover prescription drugs for erectile dysfunction.5 Complainants filed complaints alleging that OPM discriminated against them on the bases of sex (including pregnancy), disability (infertility), and disability by association, when the Health Maintenance Plan denied them insurance coverage for certain ART procedures, including IVF.6 Because previous appellate decisions have recounted in detail the procedural history of these complaints, we will not do so here.7 In brief, the Agency finished investigating the complaints in October 2002 and issued a final decision on May 21, 2003. On the merits, the Agency’s final decision first determined that it did not discriminate against Complainants based on disability when the Health Maintenance Plan excluded coverage for ART procedures because: * The wife’s medical documentation did not precisely articulate the underlying medical cause of her infertility and therefore the Complainants did not adequately prove that the wife was an individual with a disability. * The exclusion of ART procedures was not a disability-based distinction because the exclusion was the same for all enrollees, regardless of their disability status. * The Plan had a policy of covering only medically necessary procedures that improve or correct a medical condition. ART procedures do not improve or correct the underlying condition causing the failure to reproduce. Therefore, the exclusion of ART procedures was justifiable because it was consistent with the Plan’s medically-necessary policy. * The exclusion fell under the safe harbor provision of the Americans with Disabilities Act because: o The Health Maintenance Plan was a bona fide insurance plan that existed and paid benefits; o ART procedures provided no medical value because they did not improve or correct the underlying condition causing the failure to reproduce. Next, the Agency found that the claim of discrimination on the basis of sex (pregnancy) did not fall under the purview of the Pregnancy Discrimination Act because the exclusion of ART procedures applied equally to men and women. Similarly, OPM reasoned that the Plan’s exclusion of ART procedures did not discriminate against the wife on the basis of sex (female) because the exclusion applied equally to men and women and was couched in gender-neutral terms during the relevant time period from 1997 to 2000. Complainants appealed. Upon reviewing the record, the Commission determined that it could not address the merits because the record was insufficiently developed on whether the insurance provision at issue constituted a disability-based distinction or was a subterfuge for discrimination and ordered OPM to supplement the record. EEOC Request Nos. 0520080057 & 0520080067 (Apr. 9, 2014). After an extension of time, OPM submitted to the Commission its supplemental record on or around February 9, 2015. The supplemental record contained: * a February 5, 2015 declaration from OPM’s Director of Healthcare and Insurance, summarizing the supplemental information gathered by OPM; * hearing and deposition testimony on the estimated percentage of fertile individuals using ART procedures from the complainants’ and agency’s medical experts in Willia M. and Alonzo N. v. Office of Personnel Management, EEOC Appeal No. 0120132419 & 0120132420, another case involving a health insurance plan that excluded ART procedures from coverage from 1998 to 2000; * an April 27, 2010, “Expert Report” from OPM’s medical expert in Willia M. and Alonzo N. v. Office of Personnel Management, EEOC Appeal No. 0120132419 & 0120132420. * five reports from the Centers for Disease Control and Prevention on Assisted Reproductive Technology, consisting of the 1998, 1999, and 2000 annual reports on Assisted Reproductive Technology fertility clinic success rates; and the 2000 and 2012 national summary reports on Assisted Reproductive Technology; * a February 5, 2015 study by OPM’s Office of Actuaries titled “Estimated Impact of Covering Assisted Reproductive Technology on the Health Maintenance Plan,” which attempted to retroactively estimate how the Health Maintenance Plan would have been affected had it begun to cover ART procedures in 2001. ANALYSIS AND FINDINGS A. Standard of Review The Commission reviews de novo an agency’s final decision that is issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. § 1614.405(a). The de novo standard requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker. On appeal the Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and the Commission will issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Aug. 5, 2015). “Following de novo review, the Commission will issue decisions . . . based on a preponderance of the evidence.” Id. B. Legal Standards In non-affirmative action discrimination claims, the requirements and defenses of the Americans with Disabilities Act apply to Section 501. See 29 U.S.C. §791(g); 29 C.F.R. § 1614.203. Title I of the ADA prohibits covered entities from discriminating on the basis of disability against a qualified individual with a disability in regard to “employee compensation . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Section 1614.4(f) of the Commission’s regulations implementing the employment provisions of the ADA prohibits covered entities from discriminating on the basis of disability with regard to “[f]ringe benefits available by virtue of employment, whether or not administered by the covered entity.” Employee benefit plans, including health insurance plans provided to employees, are a fringe benefit available by virtue of employment. The ADA, and hence Section 501, also prohibits covered entities from entering into, or participating in, a contractual or other arrangement or relationship that has the effect of discriminating against qualified applicants or employees with disabilities. 42 U.S.C. § 12112(b)(2); 29 C.F.R. § 1630.6(a). Contractual or other relationships with organizations that provide fringe benefits to employees are included in this prohibition. 29 C.F.R. § 1630.6(b). OPM is responsible for offering health insurance plans as a fringe benefit of Federal employment. In that role, it approves benefit designs and premium rates, sets rules generally applicable to carriers, adjudicates and orders payment of disputed health claims, and adjusts policies as necessary to ensure compliance with nondiscrimination standards. See 5 U.S.C. § 8901 et seq. C. Disability Based Distinction When a complaint alleges that a health-related term or provision of a health insurance plan violates the Rehabilitation Act, the Commission first examines whether the challenged term or provision is a disability-based distinction. This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The Commission will therefore use the analytical framework as it existed before the enactment of the ADAAA. We find there is substantial evidence in the record to support the finding that the wife’s infertility constituted a disability. The wife’s medical documents reveal a medical infertility diagnosis caused by multiple physiological factors and anatomical loss that substantially limited her in the major life activity of reproduction because she only became pregnant once over a 12-year period of trying through both natural means and those assisted by ART. See Bragdon v. Abbott, 524 U.S. 624 (1998) (holding that reproduction is a major life activity under the ADA). By comparison, those with a normal functioning reproductive system generally have a 20–25% chance of conceiving by natural means in any given month,8 which means that approximately 80% of reproductively healthy couples will conceive within 1 year of trying.9 In addition, we find that the health insurance provision’s exclusion of IVF was not a broad distinction that applied to a multitude of dissimilar conditions, as the Agency alleged. First, until 1997, the health insurance plan specifically stated that its IVF exclusion was only used to treat infertility, and that the exclusion affected only women who have an “otherwise untreatable” form of this condition. Therefore, the plain language of the policy’s terms suggested that the health-related distinction applied only to the condition of infertility; it did not apply to a multitude of dissimilar conditions and was not a broad distinction. In fact, treatments that have wider uses, such as hormone therapy, were not excluded by this plan. Second, the testimonial and statistical evidence submitted by OPM in its supplemental investigation showed that a significantly large percentage of IVF services were done to treat infertility. According to one medical expert, an overwhelming majority of IVF treatments were performed on patients or couples with at least one diagnosed physiological factor contributing to infertility during the time period at issue. By contrast, we do not find the included testimony of OPM’s medical expert in Willia M. and Alonzo N. to be as persuasive. First, his testimony consisted entirely of anecdotal accounts of his own practice, which did not include IVF (he admitted to never having performed a single cycle of IVF). Second, to the extent that he provided specific percentile estimates of how many patients used IVF for purposes other than medical infertility, his estimates were not particularly useful as a barometer to form general conclusions. His estimates were derived from his niche practice area, and he failed to indicate how large a sample size made up his percentile estimates. Third, his estimates were vague and inconsistent, and limited to around 2012. He offered no specific estimates for the time period relevant to the case, from 1997 to 2000. Overall, we determine that the record in this case shows that IVF was nearly exclusively utilized for the treatment of medically diagnosed infertility from 1997 to 2000, and the exclusion of IVF was not a broad distinction that applied to a multitude of dissimilar conditions. The Agency further argued that the exclusion of IVF was not disability-based because IVF was treated in a manner consistent with the Health Maintenance Plan’s policy of excluding treatments that are not “medically necessary,” i.e. treatments that do not cure the condition at issue, but instead only compensate for or replace a lost or impaired bodily function. The Plan’s brochures from 1997 to 2000, however, indicate that the Plan paid for various treatments and services that do not correct or cure the underlying impairment, including insulin for diabetes, durable medical equipment like wheelchairs and prosthetic legs for missing limbs, artificial insemination for infertility, and prescription drugs for erectile dysfunction We therefore conclude that the IVF exclusion was not consistent with the Plan’s medically-necessary policy and that OPM cannot rely on this argument to justify its exclusion. D. The Safe Harbor Insurance Provision of the ADA The central question in this case is whether the disability-based exclusion of IVF coverage falls within the “safe harbor” insurance provision of the ADA, as applied to Section 501 of the Rehabilitation Act. The relevant section for this case is Section 501(c)(3) that provides that the law “shall not be construed to prohibit or restrict a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.”10 This provision is modified by the proviso that it “not be used as a subterfuge to evade the purposes of [the titles of the ADA].”11 The Agency may prove that its disability-based exclusion of IVF treatment is not a subterfuge because it is justified, inter alia, by legitimate actuarial data, or by actual or reasonably anticipated experience.12 In support of its position that the IVF exclusion was not a subterfuge, OPM submitted a February 5, 2015 study by its Office of Actuaries. The study attempted to estimate the impact of covering ART procedures on the Health Maintenance Plan starting in 2001. The reason why the study focused on 2001, and not the time period at issue here (1997 to 2000), was because 2001 was the earliest year for which sufficient overall data existed to perform an estimate.13 Upon review, we find that OPM failed to provide sufficient evidence or testimony to show the basis for the 1997-2000 exclusion of IVF from coverage. OPM provided no evidence that the disability-based distinction was attributable to, inter alia, any application of legitimate risk classification, underwriting procedures, or verifiable actuarial data. Instead, the only evidence OPM provided was a study done in 2015 that tried to predict what would have happened to the Plan had it begun to cover ART procedures in 2001, the earliest year for which sufficient data existed to perform an estimate. We find this study to be inadequate for two reasons. First, the study came into being after the exclusion of IVF had gone into effect—OPM and the insurance carrier could not have relied on this actuarial data and calculations when deciding to exclude IVF in 1997, 1998, 1999, and 2000. See, e.g., E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846, 853 (4th Cir. 2001) (stating that “a factfinder could infer from the late appearance of [the employer’s] current justification that it is a post-hoc rationale, not a legitimate explanation for [the employer’s] decision . . . .”) (citing Tyler v. Re/Max Mountain States, Inc., 232 F.3d 808, 813 (10th Cir. 2000) (“We are disquieted . . . by an employer who ‘fully’ articulates its reasons for the first time months after the decision was made.”)); University Hospitals of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 848 n.7 (6th Cir. 2000) (“[I]t strikes us as problematic to . . . allow the [plan] administrator to ‘shore up’ a decision after-the-fact by testifying as to the ‘true’ basis for the decision after the matter is in litigation, possible deficiencies in the decision are identified, and an attorney is consulted to defend the decision by developing creative post hoc arguments that can survive deferential review. The concerns inherent in this scenario are even more pronounced where, as here, the administrator has a financial incentive to deny benefits.”). Second, because OPM could not obtain any relevant data for the time-period in question here, 1997 to 2000, the study offers no predictions or relevant insights into the potential effect on the Plan had it covered IVF from 1997 to 2000. See Polifko v. Office of Personnel Mngt, EEOC Appeal No. 01960976 (holding that the “agency made no argument and presented no evidence establishing that the disability based distinction was attributable to the application of legitimate risk classification and underwriting procedures….) CONCLUSION Based on an exhaustive review of the record and the contentions on appeal, including those not specifically addressed here, we find that the Agency violated the Rehabilitation Act when it contracted for employee health benefits with an insurance carrier that discriminated against Complainants on the bases of disability (infertility) and disability by association in the provision of health care insurance coverage. The Agency did not meet its burden of showing that the health insurance plan’s exclusion of IVF fell under the protective ambit of section 501(c) of the Americans with Disabilities Act, and by extension, the Rehabilitation Act. Therefore, we REVERSE the Agency’s final decision with respect to its finding of no violation of the Rehabilitation Act.14 The Agency is directed to comply with the Commission’s Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued: The Agency shall supplement the record on compensatory damages, including providing Complainants an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages. POSTING ORDER (G0617) The Agency is ordered to post at its Office of Health Care and Insurance and Office of the Actuaries in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision.  A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission.  Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507.  In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period.  See 29 C.F.R. § 1614.604.  The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP).  See 29 C.F.R. § 1614.403(g).  The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request.  Any supporting documentation must be submitted with your request for reconsideration.  The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances.  See 29 C.F.R. § 1614.604(c). COMPLAINANTS’ RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Bernadette B. Wilson’s signature Bernadette B. Wilson Executive Officer Executive Secretariat _12/21/18_________________ Date 1 This case has been randomly assigned pseudonyms which will replace Complainants’ names when the decision is published to non-parties and the Commission’s website. 2 Community Insurance Company, Inc. does business as Anthem Blue Cross and Blue Shield of Ohio. 3 Between 2005 to 2007, the Plan steadily lost enrollment and eventually withdrew from the Federal Employees Health Benefits Program at the end of 2007. 4 The 1997 brochure provided: Diagnosis and treatment of infertility is covered; you pay 20% of charges. Artificial insemination is covered; you pay 20% of charges; cost of donor sperm is not covered. Fertility drugs are covered [you pay 50% of charges] . . . . Other assisted reproductive technology (ART) procedures such as in vitro fertilization and embryo transfer are not covered. 5 In 2001, the Plan’s brochure reiterated that it would cover the diagnosis and treatment of infertility, such as artificial insemination and fertility drugs. This brochure specifically excluded coverage of assisted reproductive technology (ART) procedures, such as IVF, embryo transfer, gamete intrafallopian transfer (GIFT), and services and supplies related to excluded ART procedures. 6 The husband filed a formal complaint on July 15, 1998 and the wife filed a formal complaint on June 6, 2000. 7 See EEOC Appeal No. 019991959 (Aug. 17, 2000), request for reconsideration denied, EEOC Request No. 0520001232 (Nov. 30, 2000); EEOC Appeal No. 0120011253 (May 9, 2002); EEOC Appeal Nos. 0120033970 & 0120033969 (Sept. 26, 2007), request for reconsideration granted, EEOC Request Nos. 0520080057 & 0520080067 (Apr. 9, 2014). 8 See Supplemental Report of Investigation, Hearing Transcript at 720. 9 Id. 10 To be a bona fide plan, a plan must exist, pay benefits, and accurately communicate the terms of the plan to eligible employees. The parties do not dispute that the BCBS Plan meets these requirements. The BCBS Plan is also not subject to State laws that regulate insurance because it is a national plan, established pursuant to OPM’s authority under the Federal Employee Health Benefits Act (FEHBA), which includes a clause that preempts national plans from state or local insurance regulation. See 5 U.S.C. § 8902(m)(1). 11 The full text Section 501(c) provides that the ADA “shall not be construed to prohibit or restrict— 1) an insurer; hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefits plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or 2) a person or organization covered by this Act from establishing, sponsoring, observing or administering the terms of a bona fide benefits plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or 3) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance. Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of [titles I and III of the Act].” 12 EEOC Compliance Manual, Chapter 3: Employee Benefits, EEOC No. 915.003 (Oct. 3, 2000). 13 Supplemental Report of Investigation, Agency Ex. G, at 1. 14 Because Complainants would not be entitled to additional relief should they prove either sex or pregnancy-based discrimination, we need not address those bases. See, e.g., Walker v. U.S. Postal Serv., EEOC Appeal No. 07A40032 (Mar. 31, 2004) (declining to address complainant’s claims of sex and disability discrimination after complainant proved race discrimination because complainant would not be entitled to additional relief). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520080057