HONORABLE ROBERT S. LASNIK

Plaintiff Jennifer Erickson, through her undersigned attorneys, brings this Class Action Complaint against the Bartell Drug Company ("Bartell") and in support thereof states the following upon information and belief:
I. Introduction
1. This is an employment discrimination action, arising under the Civil Rights Act of 1964 as amended, 42 U.S.C. � 2000e et seq. ("Title VII"), and specifically as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. � 2000e(k) (the "PDA").
2. Bartell singles out female employees for disadvantageous treatment by excluding prescription contraceptives from an employee benefit plan while including benefits for other preventive medical services, including other preventive prescription medications and devices. Prescription contraception, which is available for use only by women, is basic medical care for women who have the potential to become pregnant but who wish to control that potential by reversible means. The failure to provide coverage for prescription contraception treats medication needed for a pregnancy-related condition less favorably than medication needed for other medical conditions; it therefore constitutes facial sex discrimination.
3. In addition, Bartell's exclusion of prescription contraception has an adverse disparate impact on Ms. Erickson and other members of the proposed class. Because prescription contraceptives are available for use only by women, Bartell's failure to provide coverage for prescription contraception forces its female employees to choose between paying their own out-of-pocket prescription costs, or bearing the physical, emotional and financial costs of unplanned pregnancy.
4. As a result of Bartell's decision to exclude contraceptives from its non-union employee benefit plan, Ms. Erickson and other members of the proposed class are being discriminated against in the terms and conditions of employment, which includes the receipt of benefits under fringe benefit programs, because of their potential for pregnancy. This violates Title VII.
5. To remedy this discrimination, Ms. Erickson and the Class she represents seek equitable, declaratory and injunctive relief against Bartell.
I. Jurisdiction and Venue
1. Jurisdiction is conferred on this Court by 28 U.S.C. � 1331 (federal question); and 42 U.S.C. � 2000e-5(f)(3) (Title VII).
2. Ms. Erickson's claim for declaratory and injunctive relief is authorized by 28 U.S.C. �� 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court.
3. Venue is appropriate under 28 U.S.C. � 1391(b) and (c), and 42 U.S.C. � 2000e-5(f)(3) because the unlawful employment practices giving rise to this claim were committed in this district and Bartell resides in this district.
I. Parties
1. Jennifer Erickson has been employed on a full-time basis by Bartell as a licensed pharmacist since February, 1999. As part of the terms and conditions of her employment, Ms. Erickson receives health insurance coverage, including coverage of prescription drugs and devices. Ms. Erickson sues on her own behalf and as a representative of the proposed class of employees who are discriminated against by the exclusion of contraception from Bartell's benefit plan.
2. Ms. Erickson is 26 years old, has been married for one year, and has no children. She and her husband plan to have children some day, but they are not yet ready to do so. In order to avoid unplanned pregnancy, Ms. Erickson uses a reversible contraceptive: birth control pills (also known as oral contraceptives). Because prescription contraceptives are excluded by Bartell's non-union employee health plan, Ms. Erickson must pay out-of-pocket for her prescription contraceptives or risk the physical, emotional and financial costs of an unplanned pregnancy.
3. On or about June 30, 1999, Ms. Erickson wrote to Bartell's Benefits Department requesting that the company change its Health Plan to include insurance coverage for contraception. She received a letter back indicating that contraception was not part of the Prescription Benefit Plan.
4. On December 29, 1999, Ms. Erickson filed a charge with the EEOC in Seattle, Washington alleging that Bartell's failure to provide her with health insurance coverage for prescription contraceptives constitutes unlawful discrimination on the basis of sex.
5. On July 10, 2000, Ms. Erickson received a right-to-sue letter from the EEOC. A copy of that letter is annexed hereto as Exhibit A.
6. Bartell is a corporation organized under the laws of Washington, with its principal place of business in Seattle, Washington. On information and belief, Bartell employs approximately 1,380 individuals.
I. Bartell's Health Plan
1. As a term and condition of her employment, Bartell offers Ms. Erickson the opportunity to enroll in one of two health plans. Upon information and belief, Bartell self-insures and controls all of the terms and conditions of these plans. Both health plans offered by Bartell are administered by Regence Blue Shield. Both plans exclude prescription drugs other than those provided on an inpatient basis. However, as a term and condition of her employment, Bartell also offers Ms. Erickson the opportunity to enroll in the Bartell Drug Prescription Benefit Plan for Non-Union Employees, which is the only outpatient prescription coverage available to her as a non-union employee of Bartell. Upon information and belief, Bartell self-insures and controls all of the terms and conditions of the Bartell Drug Prescription Benefit Plan for Non-Union Employees ("Prescription Benefit Plan"). The Prescription Benefit Plan requires employees to fill all prescriptions at a Bartell Pharmacy (unless an emergency arises when the employee is out of the service area served by Bartell).
2. As of May 1, 1999, Ms. Erickson enrolled in one of the Regence-administered health plans and the Bartell Drug Prescription Benefit Plan for Non-Union Employees (together, the "Health Plan"). Under the Health Plan, Ms. Erickson's benefits include coverage of many preventive services and prescription drugs, including but not limited to coverage of: routine exams, immunizations, well child care, cancer screenings, routine hearing and vision exams, preventive and diagnostic dental services, smoking cessation care, blood-pressure and cholesterol-lowering prescription drugs, and hormone replacement therapy to prevent osteoporosis.
3. Despite covering other preventive medical services and prescriptions, the Health Plan does not cover prescription drugs and devices used by women to prevent pregnancy. The written Bartell Drug Prescription Benefit Plan for Non-Union Employees lists "contraceptive devices (including birth control pills)" as a "non-covered item."
4. If Ms. Erickson were to become pregnant, the Health Plan would cover the costs of either an abortion or continuing the pregnancy to term - whichever she chose to do.
I. Harm to Ms. Erickson and Other Class Members
1. As a result of Bartell's failure to cover contraception to prevent pregnancy, Ms. Erickson must pay for her monthly supply of birth control pills on an out-of-pocket basis, or risk unintended pregnancy. Like many healthy women of reproductive age, contraception is the only prescription drug Ms. Erickson uses on a regular basis.
2. On information and belief, Bartell employs numerous women of reproductive age who use prescription contraception.
3. If contraception were treated on an equal basis with other prescriptions under the Health Plan, Ms. Erickson and other class members would pay a co-pay of either $5 (generic) or $10 (brand name) for a 34-day supply of contraception.
I. Factual Framework
1. For over thirty years of their lives, women have the biological potential for pregnancy. Contraception is a drug or device that prevents pregnancy. Without contraception, the average woman would be expected to have between 12 and 15 pregnancies in her lifetime. In any given year, 85 out of 100 sexually active women of reproductive age who do not use contraception will become pregnant. Most American women want only two children. To achieve that goal, the typical American woman spends roughly three decades- or about 75% of her reproductive life- trying to avoid unintended pregnancy. Of the 60.2 million women of reproductive age, 64% currently use contraception. Ninety-four percent of American women use contraception at some point during their reproductive years. Among all women aged 20-44 who have ever had sexual intercourse, 85% have used prescription oral contraceptives.
2. The Food and Drug Administration (FDA) has approved five methods of reversible prescription contraception: oral contraception; Norplant; Depo-Provera; intra-uterine device ("IUD"); and the diaphragm. Only women can use these methods of prescription contraception. Other forms of contraception are sold over the counter (OTC) and thus generally are not covered by health insurance. The OTC methods include the male condom and five female methods: spermicidal foam, jelly, film, suppositories and the female condom. All methods work either by preventing fertilization of a woman's ovum or by preventing implantation of the blastocyst in the uterine wall.
3. Women bear all of the physical burdens of pregnancy, which are quite substantial. Pregnancy itself can put a woman's life at risk. Ectopic pregnancy is the deadliest complication in the early stages of pregnancy. The three deadliest complications of full-term pregnancy are hemorrhage, hypertension and thrombosis. In the United States today, for every 100,000 births, 8-22 women (depending on their county of residence) die as a result of pregnancy-related complications.
4. Pregnancy also poses non-life threatening health risks for women. The morbidity rate during pregnancy is quite high. Twenty-two percent of all pregnant women are hospitalized before delivery because of various complications. Pre-term labor is one of the most common reasons women are hospitalized before delivery. In such instances, the medical interventions a woman must undergo often include long-term bed rest and administration of various drugs, some of which have significant side effects for the woman.
5. The more pregnancies she bears, the greater the likelihood a woman will suffer one or more of the myriad life and/or health-threatening complications of pregnancy. Women who experience a large number of pregnancies are known to be at far greater risk for certain permanent health problems such as uterine prolapse (downward displacement of the uterus so that some or all of the uterus comes outside of the vagina), rectocele (hernial protrusion of the rectum into the vagina), cystocele (hernial protrusion of the urinary bladder through the vaginal wall), pelvic floor disorders and varicose veins.
6. For women with pre-existing medical conditions, even one pregnancy can pose grave health risks. Preexisting medical conditions that are exacerbated by pregnancy include: certain blood diseases, including sickle-cell disease; heart disease; cancer; endocrine disorders such as diabetes; diseases of the nervous system such as epilepsy; kidney and liver diseases; connective tissue disorders such as systemic lupus erythematosus and rheumatoid arthritis; chronic hypertension; respiratory disease including asthma and pneumonia; and HIV present in the blood stream.
7. Unintended pregnancy poses far greater health risks to women and children than does intended pregnancy. The medical risks of unintended pregnancy are well documented. In general, women who become pregnant unexpectedly are less likely to receive adequate pre-natal care and thus have less opportunity to manage pre-existing medical conditions and other risks during pregnancy. For instance, unintended pregnancy is quite dangerous, and may even be deadly, for women with hypertension or diabetes. These conditions are best managed when medical care is begun before conception. In addition, women who become pregnant unexpectedly forego the opportunity to receive pre-conception counseling to improve the health of the fetus and are more likely to have low birth weight babies and experience a higher rate of neonatal mortality.
8. Unintended pregnancy is both frequent and widespread in the United States. Forty-nine percent of all pregnancies in the United States are unintended. Among Western Nations, the United States has one of the highest rates of unintended pregnancy. Unintended pregnancy affects all segments of society. Four out of ten pregnancies among married women are unintended. Low-income women and unmarried women experience even higher rates of unintended pregnancy.
9. Contraception enables women to plan their pregnancies and time the spacing between pregnancies. The shorter the interval between her pregnancies, the greater the likelihood a woman will experience pre-term labor, depression and other health problems. Recognizing that contraception is central to the health and well-being of women and their children, the Center for Disease Control and Prevention has recognized that "[s]maller families and longer birth intervals have contributed to the better health of infants, children, and women, and have improved the social and economic role of women."
10. Furthermore, even in an otherwise healthy woman, pregnancy poses medical risks that are significantly greater than the risks of using contraception. In any given year, the average risk of death from pregnancy is 1 in 11,000 while the risk of death from contraception is much less: 1 in 63,000 for non-smoking oral contraceptive users; 1 in 100,000 for IUD users; and no risk of death for diaphragm users.
11. Due to the wide variation in effectiveness, cost, and medical appropriateness of available forms of contraception, choice of contraceptive method is essential to successful pregnancy prevention. Other factors that contribute to what type of contraception a woman chooses to use are whether the woman intends to delay, space, or entirely prevent future childbearing.
12. Women with medical conditions that require pregnancy avoidance, in particular, require a full range of contraceptive options because their medical conditions often preclude the use of one or more contraceptive methods. For example, birth control pills are medically contraindicated for smokers over age 35 and women who are at risk of cardiovascular problems, such as stroke, heart attack, blood clots, and hypertension, as well as women who have, or are at risk of, depression or hepatic adenomas.
13. For all of the above reasons, a recent study by the Institute of Medicine recommends improving contraceptive coverage in health plans in order to reduce the number of unintended pregnancies and to improve health outcomes for women and children. Similarly, the United States Department of Health and Human Services has adopted the goal of improving pregnancy planning and spacing and preventing unintended pregnancy. Moreover, the Guidelines for Women's Health Care published by the American College of Obstetricians and Gynecologists (ACOG), which represents 38,000 physicians in this country, advises that "prevention of unwanted pregnancy" and "contraceptive options" be discussed with all women over the age of 13 during routine primary care assessments. In sum, contraception is basic to women's health and well-being.
14. The physical burdens of pregnancy increase the risk of interruption to a woman's education, career and professional development opportunities. The ability to control her biological potential for pregnancy is central to a woman's ability to participate in the workplace on an equal basis with men.
15. Inadequate insurance coverage of contraception has substantial adverse economic consequences for the 67% of American women of reproductive age who rely on employer-sponsored health insurance coverage. These women pay 68% more in out-of-pocket expenditures for health care services than men, and reproductive health services account for much of that difference.
I. Statutory Framework
1. Title VII provides that: "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(1).
2. In 1978, Congress enacted the Pregnancy Discrimination Act ("PDA") which provides that the term "because of sex" in Title VII includes, but is not limited to, "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. � 2000e(k). The PDA further states that "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." Id. Thus, Title VII specifically mandates that employers may not single out employees for disadvantageous treatment based on "pregnancy, childbirth, or related medical conditions."
3. Contraception is "pregnancy-related" within the meaning of the PDA because it is medical treatment that provides women with the ability to control their biological potential for pregnancy. Exclusion of contraception from a health plan is sex discrimination in violation of the PDA because it treats women differently on the basis of their potential to become pregnant. The exclusion of contraception from the Health Plan is, therefore, sex discrimination on its face in violation of Title VII, as amended by the PDA.
4. The exclusion of contraception from the Health Plan also has an adverse disparate impact on women in violation of Title VII because it forces them either to pay for prescription contraceptives out of pocket, despite having prescription insurance coverage, or to bear the physical, emotional and financial burdens of unplanned pregnancy. Bartell's policy of excluding contraceptive coverage cannot be justified as job-related and consistent with business necessity.
I. Class Action Allegations
1. Pursuant to Fed. R. Civ. P. 23(b)(2), Ms. Erickson seeks declaratory and injunctive relief on behalf of herself and all other persons similarly situated, defined as:
All female employees of Bartell who at any time after December 29, 1997 were enrolled in Bartell's prescription benefit plan for non-union employees while using prescription contraceptives.
2. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(a).
a. Plaintiff is informed and believes that the class is so numerous that joinder of all members is impracticable. Bartell employs approximately 1,380 people in Washington State, about one-half of whom are non-union employees eligible to participate in the prescription benefit plan at issue in this case. Given the number of qualifying employees and the well-documented utilization rates for prescription contraceptive drugs and devices, plaintiff is informed and believes that the class consists of at least 100 persons.
b. There are questions of law or fact common to the class, including: whether Bartell's conduct violates Title VII as amended by the Pregnancy Discrimination Act, which prohibits discrimination based on "pregnancy, childbirth or related medical conditions"; whether Bartell's conduct has an adverse disparate impact on a protected class in violation of Title VII; whether Bartell's conduct is justified by any recognized legal defense; the nature and scope of injunctive relief necessary to prevent further violations of federal law; the nature and scope of equitable relief appropriate to complement the injunctive relief awarded by the Court; and the nature and scope of declaratory relief appropriate in this case.
c. The claims of the representative parties are typical of the claims of the class. Ms. Erickson was enrolled in Bartell's prescription benefit plan for non-union employees during the class period. A health care professional prescribed contraceptives for Ms. Erickson's use. Like every other member of the class, Ms. Erickson has been denied benefits of her employment based on a pregnancy-related medical condition. Furthermore, the Bartell contraception exclusion has had an adverse disparate impact on her, as it has on other female employees of Bartell.
a. Ms. Erickson will fairly and adequately protect the interests of the class. She will pursue this litigation with diligence and vigor, and she has retained counsel experienced in Title VII and other class action litigation. Ms. Erickson has exhausted administrative remedies on behalf of herself and the class.
1. This action is properly maintainable as a class action under Fed. R. Civ. P. 23(b)(2) because Bartell has acted or refused to act on grounds generally applicable to the class, thereby making declaratory, injunctive and other equitable relief appropriate for the class as a whole.
I. First Claim for Relief: Disparate Treatment
1. Plaintiff hereby incorporates by reference Paragraphs 1 through 43 above.
2. By providing Ms. Erickson and the Class with health insurance benefits that selectively exclude all FDA-approved prescription contraception, Bartell discriminates on the basis of sex in violation of Title VII as amended by the PDA.
I. Second Claim for Relief: Disparate Impact
1. Plaintiff hereby incorporates by reference Paragraphs 1 through 45 above.
2. By providing Ms. Erickson and the Class with health insurance benefits that selectively exclude all FDA-approved prescription contraception, Bartell engages in an employment practice that has an adverse disparate impact on Ms. Erickson and the Class, thus constituting illegal employment discrimination on the basis of sex in violation of Title VII.
I. Prayer for Relief
1. On behalf of herself and all other persons similarly situated, Jennifer Erickson seeks the following relief:
a. That an order be entered certifying the Class pursuant to Fed. R. Civ. P. 23(b)(2).
b. That a declaratory judgment be entered declaring that Bartell has violated the civil rights of Ms. Erickson and the Class she represents as guaranteed by 42 U.S.C. � 2000e.
c. That a permanent injunction be entered prohibiting Bartell from engaging in the illegal and discriminatory conduct alleged herein and requiring Bartell to issue and disseminate to all eligible employees a revised prescription coverage plan that covers all FDA-approved prescription contraceptive drugs and devices.
d. That the Court award equitable relief to Ms. Erickson and the Class in the form of nominal damages, incidental monetary relief, back pay, attorneys fees and costs.
e. That the Court award Ms. Erickson and the Class their attorneys' fees and costs pursuant to 42 U.S.C. � 2000e-5(k).
f. That the Court award such other and further relief as it deems just and proper under the circumstances.
DATED this 6th day of September 2000.

By
Roberta Riley, WSBA #16841
PLANNED PARENTHOOD OF WESTERN WASHINGTON
2001 East Madison
Seattle, Washington 98122-2959
Telephone: (206) 328-6805

Eve C. Gartner , admitted pro hac vice
PLANNED PARENTHOOD FEDERATION OF AMERICA
810 7th Avenue
New York, New York 10019
Telephone: (212) 541-7800

Lynn Lincoln Sarko, WSBA #16569
T. David Copley, WSBA #19379
Gretchen Freeman Cappio, WSBA #29576
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, Washington 98101-3052
Telephone: (206) 623-1900

Of counsel:
Marcia D. Greenberger
Judith C. Appelbaum
Barbara A. Burr
NATIONAL WOMEN'S LAW CENTER
11 Dupont Circle #800
Washington, D.C. 20036
Telephone: (202) 588-5180

Copyright � 2000
Planned Parenthood of Western Washington