In tandem with the Trump administration’s decision last week to expand exemptions from the Affordable Care Act’s contraceptive coverage mandate, US Attorney General Jeff Sessions issued a guidance memo on Friday instructing federal agencies on how to interpret and apply federal laws regarding freedom of religion. The main takeaway from the broad but ambiguously worded guidance is that employers are to be granted the discretion to make hiring decisions based on their religious beliefs, BuzzFeed reported:
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
Several rights groups immediately expressed concern that the guidance effectively opened the door for employers to discriminate against women and LGBT employees:
The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.” … Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.
The US Department of Health and Human Services is scaling back the Affordable Care Act’s controversial requirement that employer-sponsored health insurance include coverage for birth control, which some employers have argued violates their First Amendment rights by forcing them to pay for products or services that violate their religious beliefs. According to NPR, the new rule, which went into effect Friday, will allow any organization to exclude coverage for contraception if it has a religious or moral objection:
“This provides an exemption and it’s a limited one,” said Roger Severino, director of the HHS Office of Civil Rights. “We should have space for organizations to live out their religious identity and not face discrimination.” He said he expects most companies will continue to provide coverage for birth control and that the changes will only affect a tiny percentage of U.S. women. …
But some health policy analysts say the new rule creates a huge opening that lets any employer claim an exemption, leaving their female workers to pay the full cost of any birth control out of pocket. “It is a huge loophole for any employer that does not want to provide birth control coverage to their employees,” says Dania Palanker, a professor at Georgetown’s Center on Health Insurance Reform.
The Trump administration has hinted previously that it was planning to weaken the contraceptive mandate. This has become an issue of concern to women’s rights groups, especially as many women use birth control medications for purposes not strictly related to contraception. Opponents of expanding this exemption argue that millions of women could lose their access to contraceptives, but most employers are unlikely to claim this exemption, one expert tells the Associated Press:
While the Affordable Care Act does not mandate that most US employers provide health insurance for their employees, for those who do, the law requires that these health plans cover a specific set of health care products and procedures, including contraception. The contraception mandate has proven highly controversial among certain religious communities, and has been the subject of numerous lawsuits by employers who say the mandate forces them to violate their religious beliefs.
Unwinding the regulatory framework of the ACA has been a core goal of the Trump administration and the Republican majority in Congress, and this particular requirement is among their prime targets. In an executive order issued last month, President Donald Trump instructed federal agencies to “address conscience-based objections to the preventive-care mandate” created by the ACA, and last week, the Office of Management and Budget said it was reviewing an interim final rule that would relax the mandate—though some advocacy groups are already preparing to challenge that rule in court, the New York Times reported. On Wednesday, Vox revealed a leaked draft of the new regulation, which would effectively grant employers a broad exemption from this mandate:
The draft proposal, if finalized, would significantly broaden the type of companies and organizations that can request an exemption. This could lead to many American women who currently receive no-cost contraception having to pay out of pocket for their medication. “It’s just a very, very, very broad exception for everybody,” Tim Jost, a health law professor at Washington and Lee University, told Vox. “If you don’t want to provide it, you don’t have to provide it.” …
It is unclear whether the Trump administration has made changes to the draft regulation over the past week, or what the final version of the regulation might look like. …
If implemented as written, Vox reports, the regulation would allow any employer to request an exemption from the contraceptive mandate based on moral or religious objections—a right currently granted only to certain religiously affiliated organizations and private businesses. The Atlantic’s Olga Khazan at the Atlantic asks the obvious question: How many companies will stop covering birth control, if the Trump administration gives them the option?
Various rights groups are up in arms after the European Court of Justice ruled on Tuesday that it was permissible for companies to bar employees from wearing religious symbols, including the Islamic headscarf or hijab worn by observant Muslim women, under some circumstances. In its ruling, Reuters reports, the ECJ found that a Belgian firm with a rule prohibiting customer-facing employees from wearing religious symbols may not have discriminated against a Muslim employee dismissed for refusing to remove her hijab:
Reactions … focused on the conclusion that services firm G4S in Belgium was entitled to dismiss receptionist Samira Achbita in 2006 if, in pursuit of legitimate business interests, it fairly applied a broad dress code for all customer-facing staff to project an image of political and religious neutrality.
The Open Society Justice Initiative, a group backed by the philanthropist George Soros, said the ruling “weakens the guarantee of equality” offered by EU non-discrimination laws. “In many member states, national laws will still recognize that banning religious headscarves at work is discrimination,” policy office Maryam Hmadoun said. “But in places where national law is weak, this ruling will exclude many Muslim women from the workplace.”
Interestingly, the court found that in both the Belgian case and the parallel case of a Muslim woman in France, the employees’ terminations may have been discriminatory in nature, but nonetheless ruled that a policy banning the hijab and other religious garb to preserve an organization’s image of neutrality is not necessarily so. However, rights groups argue that these bans target Muslims in effect, if not intent, and threaten to shut many Muslim women out of the workforce entirely.
On Tuesday evening, President Donald Trump nominated Tenth Circuit Court Judge Neil M. Gorsuch to fill the US Supreme Court seat left vacant since the late Justice Antonin Scalia’s sudden death last February. Gorsuch, like Scalia, is a deeply conservative judge with an originalist approach, meaning that he attempts to interpret the US Constitution in terms of its authors’ original intent. Senate Democrats seem intent on filibustering Gorsuch’s confirmation, but it is not yet clear whether they will be able to muster the votes to do so. Meanwhile, Republicans—at Trump’s urging—may enact a rule change allowing them to confirm Gorsuch with a simple majority.
Several issues concerning employers are likely to come before the Supreme Court in the near future, including a group of cases the court has agreed to hear concerning the legality of arbitration clauses in employment contracts that prohibit employees from bringing class-action lawsuits against their employer. Other matters that may come up include union dues and the rights and classification of gig economy workers. Gorsuch is best known for his opinions in Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell, concluding that the organizations in these cases were entitled to religious exemptions from the Affordable Care Act’s mandate that employee health insurance plans cover contraception.
The Tenth Circuit, based in Colorado, is less likely than other federal appeals courts to hear major employment law cases, so Gorsuch does not have an extensive history of opinions on these issues, but most observers expect him to take pro-business stances similar to what Scalia or another conservative justice might take. The Wall Street Journal’s Sara Randazzo digs through his record and finds “some rulings in favor of employees and others siding with employers.” Attorneys from the Littler law firm, Ilyse Schuman and Michael J. Lotito, describe Gorsuch’s opinions on employment issues as containing no “new interpretations of existing law that would disadvantage employers”:
Theodore Levin U.S. Courthouse in Detroit (Ken Lund/Flickr/CC
- Image has been cropped)
A judge in Michigan last Thursday dismissed a lawsuit filed on behalf of a transgender funeral home employee who was fired after disclosing to her employer that she was transitioning:
U.S. District Judge Sean Cox ruled that R.G. & G.R. Harris Funeral Home didn’t discriminate against Aimee Stephens. The U.S. Equal Employment Opportunity Commission sued the Garden City funeral home on behalf of Stephens, who was fired in 2013 after telling her employer she was transitioning. … Upon filing the lawsuit, a commission attorney said federal law bars businesses from firing workers because they don’t behave according to stereotypes of how men and women should act.
Cox ruled the funeral home met its burden of showing that enforcement of Title VII of the 1964 Civil Rights Act, which bars employment discrimination, “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.” He concluded the business is entitled to a religious exemption.
The ruling builds on the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, the Atlantic’s Emma Green explains:
According to the Michigan ruling, which cited Hobby Lobby, the federal Religious Freedom Restoration Act protects employers who believe “the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman.” Not only do transgender people have no protection against this kind of discrimination under federal law, the court said; if the government forces employers to keep them on in spite of their stated religious beliefs, that places a “substantial burden” on their religious exercise. This is a new kind of ruling, according to Michael Harper, a professor at Boston University, and one that could have far-reaching consequences if other courts follow the same logic. …