Civil and Human Rights

CVS Pharmacy Inc. v. Doe

In CVS Pharmacy v. Doe, the Supreme Court is considering whether Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability, covers disparate impact discrimination.

Case Summary

Respondents are five individuals living with HIV who rely on employer-sponsored health plans to receive medication for their condition.  A subsidiary of CVS Pharmacy administers these health plans and recently instituted a program that allows individuals to pay in-network prices for “specialty medications,” including HIV medication, only if they receive those medications through local CVS pharmacies or by mail.  As a result, Respondents cannot pay in-network prices if they want to fill their prescriptions at community pharmacies where they can consult expert pharmacists who are familiar with their medical histories and can monitor their medication regimen.  It also requires some Respondents to receive their medications by mail, which has led to lost, damaged, or stolen shipments, and created the potential for serious health problems and additional intrusions into Respondents’ privacy.  In light of these difficulties, several respondents requested to opt out of the program, but their requests were denied.  Respondents sued in federal court, alleging that the program violates Section 1577 of the Affordable Care Act (ACA), which incorporates by reference Section 504 of the Rehabilitation Act.  Section 504 in turn prohibits discrimination on the basis of disability by health programs that receive federal funding.  Specifically, Respondents alleged that CVS’s inclusion of critical HIV/AIDS medications in its pricing program for specialty drugs “significantly, adversely, and disproportionately impacted” people with HIV or AIDS, threatening their “heath and privacy” and amounting to discrimination on the basis of disability.

Both the district court and the Ninth Circuit agreed that Section 504 prohibits disparate impact discrimination, although they disagreed about whether Respondents’ suit should be able to go forward.  After the Ninth Circuit held that Respondents’ suit should be able to proceed, Petitioners asked the Supreme Court to hear the case.  The Court agreed to do so, and CAC filed an amicus brief in support of Respondents.

Our brief makes two main points.  First, we explain that the plain text of Section 504 of the Rehabilitation Act prohibits disparate impact discrimination.  Section 504 provides that no individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program . . . receiving Federal financial assistance.”  The passive, effects-based language of this provision makes clear that it broadly prohibits actions that result in discrimination against an individual with a disability because of that disability, regardless of whether the discrimination involves animus or a specific intent to discriminate. In fact, the plain text of Section 504 does not focus on the discriminatory actor at all.  

Second, our brief demonstrates that the Rehabilitation Act’s history confirms the plain meaning of its text.  As the Supreme Court expressly recognized in Alexander v. Choate, “[d]iscrimination against the handicapped was perceived by Congress to be most often the product not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect.”  For this reason, the legislators who passed Section 504 sought to stamp out not merely intentional discrimination, but also actions having a disparate impact on individuals with disabilities.  Furthermore, the legislative record indicates that much of the conduct that Congress sought to alter with the passage of the Rehabilitation Act, such as the elimination of architectural barriers, would be difficult if not impossible to reach if the Act were construed to proscribe only conduct fueled by a discriminatory intent.  In sum, the historical record confirms what Section 504’s text makes clear: Section 504 prohibits disparate impact discrimination against individuals with disabilities.

Case Timeline

  • October 29, 2021

    CAC files amicus brief in support of Respondents

    Sup. Ct. Amicus Br.
  • December 7, 2021

    Supreme Court will hear oral argument

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