[1] Respondents, Travelers Insurance Co. (Travelers) and Miles and McManus (employer), seek review of an order of the Colorado Civil Rights Commission (the Commission) finding that there had been sex discrimination by employer against claimant, Amy J. Budde (Budde). We set aside the order.
[2] The facts are essentially undisputed. The employer, a law firm, purchased *Page 377 a health insurance policy from Travelers in September of 1980. The policy provided coverage for "complications of pregnancy" defined in the policy as "conditions requiring medical treatment prior or subsequent to termination of pregnancy whose diagnosis are distinct from pregnancy but are adversely affected by pregnancy or are caused by pregnancy. . . ."
[3] Budde was employed by the employer from October 1981 to March 1982, during which time she experienced a normal pregnancy and childbirth. Travelers deemed the expenses resulting from a normal pregnancy to fall outside the scope of the employer's policy. Accordingly, her claim for maternity benefits under the employer's health insurance policy was denied.
[4] On March 10, 1982, Budde filed charges with the Commission, alleging sex discrimination by both Travelers and the employer. The Commission found both Travelers and the employer in violation of the Civil Rights Act, particularly § 24-4-402(1)(a), C.R.S. (1982 Repl. Vol. 10), and Colorado Civil Rights Commission Rule 80.8 concerning sex discrimination.
I. [5] The primary issue on appeal is whether the health insurance policy provided by Travelers discriminated on the basis of sex by covering only "complications of pregnancy," to the exclusion of expenses incurred during a normal pregnancy. This question goes hand in hand with the issue of whether the employer, in turn, discriminated against Budde by not providing a policy covering expenses associated with normal pregnancy. These issues have not previously been addressed in Colorado. There is, however, a line of United States Supreme Court decisions closely on point.
[6] In Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), the Supreme Court held that an insurance policy exclusion of disability coverage for normal pregnancies was not violative of the Fourteenth Amendment as being discrimination on the basis of sex. GeneralElectric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) incorporated the Geduldig holding into the context of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.).
[7] The court in General Electric reasoned that, despite being confined to women, pregnancy is "significantly different from the typically covered disease or disability," and held that insurers are free to exclude pregnancy benefits as they would a number of other diseases or disabilities.
[8] We adopt General Electric Co. v. Gilbert, supra, as controlling in the instant case. Although General Electric concerned a self-insurer, we find no difficulty in applying the same reasoning to the insurance policy provided by Travelers to the employer here. Both policies were part of the total compensation provided by an employer to its employees and both excluded expenses relating to normal pregnancies from the coverage.
[9] The Commission relies upon the Supreme Court decision of Newport NewsShipbuilding Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622,77 L.Ed.2d 89 (1983) in reaching its finding of discrimination. However, for a number of reasons, that holding is not applicable here. First, the Commission may not enforce any provision of federal law. Section 24-34-308, C.R.S. (1982 Repl. Vol. 10). Second, although Newport specifically overrules Gilbert, it does so as a direct result of the passage of the Pregnancy Discrimination Act of 1978, a congressional amendment to Title VII. The Colorado General Assembly has declined to incorporate the Pregnancy Discrimination Act into its own version of Title VII, § 24-34-401, et seq., C.R.S. (1982 Repl. Vol. 10). Nor has Colorado incorporated such provisions in its Equal Rights Amendment. Colo. Const. Art. II, Sec. 29. Therefore, there is no statutory or constitutional authority in Colorado which supports the Commission's conclusions.
[10] Further, there is no evidence of record that the policy provided to the employer by Travelers was "a subterfuge to accomplish a forbidden discrimination." General Electric, *Page 378 supra. Travelers excluded a number of other disabilities from the policy purchased by the employer. There is, thus, no indication of disparate treatment of Budde by the employer and Travelers. Budde was not treated less favorably than others by virtue of her pregnant condition. Indeed, the spouses of the male employees of the employer were likewise excluded from benefits paid on expenses associated with normal pregnancies. See International Brotherhood of Teamsters v.United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); St.Luke's Hospital v. Colorado Civil Rights Commission, 702 P.2d 758 (Colo.App. 1985).
[11] We fully realize that there are exclusions in the coverage of this policy that are based on differences in gender. However, there is no precedent in Colorado law which would render this gender-differentiation to be either illegal or unconstitutional sex discrimination. If the public policy of the state of Colorado is to be otherwise, that determination should be made by the General Assembly.
II. [12] Employer and Travelers further challenge the Commission's application of Civil Rights Commission Rule 80.8(b), Code Colo. Reg. 708-1. The Commission relied upon this regulation in finding that Budde was discriminated against. The rule at issue provides that, for purposes of insurance provided by employers, disabilities caused or contributed to by pregnancy, miscarriage, abortion, or childbirth should be treated as any health or temporary disability.
[13] It is a fundamental principle of administrative law that any administrative regulation must further the will and policy of the General Assembly and may not modify or contravene an existing statute. MillerInternational, Inc. v. State Department of Revenue, 646 P.2d 341 (Colo. 1982); Cohen v. State, 197 Colo. 385, 593 P.2d 957 (1979).
[14] As noted previously, the General Assembly has not established a policy that allows a claim for sex discrimination based on the denial of insurance benefits associated with a normal pregnancy. Such a denial is not a form of "sex discrimination" as contemplated by § 24-34-401, et seq., C.R.S. (1982 Repl. Vol. 10). Accordingly, any interpretation by the Civil Rights Commission of Rule 80.8(b) inconsistent with § 24-34-401, et seq., C.R.S. (1982 Repl. Vol. 10), is invalid and may not be employed to find sex discrimination where none, in fact, exists.
III. [15] The employer and Travelers also raise other issues, but our disposition of this case makes it unnecessary to address them.
[16] The order is set aside.
[17] CHIEF JUDGE ENOCH concurs.
[18] JUDGE TURSI dissents.