The filing is the latest in a two-year legal campaign in which the union has argued, so far unsuccessfully, that the board's policy of excluding erectile dysfunction drugs discriminates against male employees. The union says Viagra, Cialis, Levitra and others are necessary treatment for "an exclusively gender-related condition."
But lawyers for the school board say the drugs were excluded in 2005 to save money, and there is no discrimination because they are used primarily for recreational sex and not out of medical necessity.
The filing last month comes as the union, the Milwaukee Teachers' Education Association, is also protesting hundreds of layoff notices issued to teachers for the coming school year. Citing a "financial crisis" caused by exploding benefit costs and revenue shortfalls, the district's outgoing superintendent proposed laying off 682 employees in April.
The district gave layoff notices to 482 teachers in June, but recalled 89 of them last month. Additional teachers may be called back, but these are still the first layoffs of Milwaukee teachers in decades.
At least one lawmaker questioned why the union is fighting for Viagra while teachers are losing their jobs. A consultant for the school board has estimated that reinstating the drug benefit would cost $786,000 per year -- the cost to keep perhaps a dozen first-year teachers employed.
State Rep. Jason Fields argues that the money could be better spent any number of ways -- including saving jobs.
"You've got to be kidding me," said Fields, a Milwaukee Democrat. "The fact that is the point of contention is kind of frightening. What are our priorities? I'm all for love and peace. But almost 1 million dollars? And you go to court over this issue?"
Union spokeswoman Kris Collett declined comment. But its lawyer Barbara Quindel said the case was worth fighting despite the district's grim finances. Quindel said erectile dysfunction is associated with heart disease, prostate cancer and other conditions, and the drugs are approved by the Food and Drug Administration and recommended by the American Urological Association.
"MTEA believes that men should not be discriminated against in receiving treatment for their medical conditions," she said.
The union has argued the costs are tiny compared to the $1.3 billion annual budget. But the school board says they are "particularly burdensome" when it is under pressure to reduce benefit costs.
That the pills -- which can cost $20 apiece without insurance -- were included in the first place is somewhat unusual. Health insurer Aetna Inc., which provides one of the district's two plans, says its standard pharmacy plans exclude Viagra and other "drugs for lifestyle enhancement or performance."
Basic state employee health plans also generally don't cover those drugs, but more expensive premium plans might, said Dick Cauchi, who tracks health benefits at the National Conference of State Legislatures. Lisa Soronen, National School Boards Association senior staff attorney, also said she had never heard of a similar case or an example of a union negotiating coverage for erectile dysfunction drugs.
"If you are getting down to what drugs are covered, you are really getting in the weeds," she said, explaining most negotiations are over premiums and co-payments.
Board and union negotiators reached a deal in 2002 to cover six tablets per month for erectile dysfunction drugs in health plans that insure 10,000 employees, dependents and retirees. They quickly became popular.
By 2004, the number of claimants receiving prescriptions skyrocketed to more than 1,000 per year, costing the district $207,000. During negotiations in 2005, the board proposed eliminating the benefit and an arbitrator adopted the plan.
The union in 2008 filed a sex discrimination complaint with the state. In June, the Labor and Industry Review Commission ruled the union couldn't pursue the case without identifying employees who have been injured by the policy and the complaint was filed after the statute of limitations expired.
The union is asking a Milwaukee County Circuit Court judge to overturn that decision and declare the policy violates the Wisconsin Fair Employment Act. A ruling isn't expected for months.
Viagra is usually on the other side in discrimination cases. In recent years, several lawsuits have claimed that employer health plans discriminate against women when they cover Viagra but not contraceptives or infertility treatment.
But the Milwaukee union says males are treated unfairly here. In one brief, its lawyers argued that vaginal cream, anti-bacterial medicine and estrogen replacement medication for female sexual dysfunction are covered. Other options such as penile pumps and implants included in the plans "are far less desirable than oral medication," the filing said.
District spokesman Philip Harris said school officials won't comment because "we just want to leave it alone." But Miriam Horwitz, an attorney representing the board, argued in court filings the drugs weren't necessary to treat life-threatening disease or have children.