Some for-profit companies claim that they, because of their owners’ religious beliefs, should be exempt from the requirement that their health insurance plans provide contraception. The Supreme Court has decided to dive into these claims, one brought by Hobby Lobby, an arts and crafts retailer, and one by a Mennonite cabinetmaker with only about 500 employees. The New York Times article following the announcement identifies this fight as a cultural one, modernity vs. tradition.
Although the immediate point of these cases continue the challenges to Obamacare, the more basic principle shines a light on how to accommodate religious beliefs in the workplace. Employers are required to accommodate religious beliefs if it is possible without undue disruption. Must employees accommodate an employer’s religious freedom? The employers here cite the Religious Freedom Restoration Act, requiring that a person’s freedom to worship “shall not substantially burden a person’s religious exercise” unless the burden can be justified. The employers contend that they should not have to pay for a benefit plan that enables (but of course does not require) their employees to obtain cheaper birth control.
Sebelius v. Hobby Lobby Stores, Inc. is the lead case. The question presented to the Supreme Court is framed as follows:
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. , provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
By combining this case with the Conestoga Wood Specialties Corp. case, the Supreme Court is expected also to address the issue of the extent of First Amendment rights to religious freedom enjoyed by corporations, as well as the statutory issue presented by the Religious Freedom Restoration Act. If corporations are persons for the purpose of the First Amendment freedom to worship clause, then does this law violate their rights?
If the contraception mandate is found to violate a corporate employer’s right to worship, the implications for other workplace issues can be profound. An employer’s sincerely held views could easily conflict with a worker’s right to resist a boss’s proselytizing on his (or its) own religion; with a family’s decision to allow a woman to work after having a baby; or with an employee’s choice of activities outside the office. To me, it seems inconsistent with pursuing a profitable enterprise to claim that a law applicable to most businesses in the country can’t be applied to a business whose owners oppose birth control. The owners seem sincere, however, in objecting to a law they see as constricting their choices of benefits to offer. Unless the Court ends up resolving the case on narrow procedural grounds, as sometimes happens, this group of cases will have far reaching significance.
Legislation to outlaw employment discrimination against people on the basis of their sexual orientation has been proposed many times since 1994. This year may see its passage, though. With more states approving gay marriage, and prominent politicians on both sides of the aisle approving of the notion of equal rights for gay citizens, the time may have come to add it to the national civil rights protections.
Earlier this month, when ten Republicans in the Senate voted with all Democrats to pass the Employment Non-Discrimination Act, a barrier crumbled. A Republican amendment to protect religious groups from complying with the law put the effort over the top.
Maryland legislation protects employees from being discriminated against on the basis of their sexual orientation; we have yet to add gender identification. Maryland legalized gay marriage by voter referendum. While this effort will probably top out at 30 or so states, the momentum is strong now, and at least in parts of the country, should
In light of the Supreme Court’s recent opinion in U.S. v. Windsor erjecting the Defense of Marriage Act, together with shifting public attitudes towards same-sex marriage and LGBT rights, many insiders believe the time is ripe for ENDA.
October 1 marked the effective date of a number of laws passed in the Maryland General Assembly’s 2013 session. The end of capital punishment and the ban on hand-held cell phone usage while driving have gotten a lot of attention, but there are some other new laws of interest in the employment arena.
The Pregnancy Fairness Act, discussed here earlier, takes effect on October 1. In brief, employers must consider requested accommodations for pregnant workers, and in many cases must grant them. My condolences to the pregnant women who were unable to avail themselves of these protections during the summer; I heard from several of them. But now, employers with at least 15 employees must make accommodations if they are available, and must consider a pregnant worker’s request for a flexible schedule to attend doctor’s appointments, for example, or a temporary ease on lifting requirements.
The unpaid wage lien process also is available. Discussed here before, the new law permits a worker who has been denied wages (often the last paycheck) to use a new process to get a lien on property of the employer. The procedural burden is then on the employer to dispute the claim. This procedure will be helpful for employees whose unpaid wages are not high enough to warrant hiring a lawyer. Indirectly, it will benefit employers who pay their workers, by impairing the illegitimate profits earned by employers who steal from their employees.
Many applicants for employment with the state cannot have their criminal records rule them out prior to at least the time they are granted an interview. Obviously, some types of backgrounds can be considered for some jobs. Our financial overseers do not have to hire convicted embezzlers, for example. But people with records will no longer find that the door to state jobs is locked.
Lastly, a new law prohibits employers of tipped employees from charging them for the costs of customers who run out on their checks. This has been a frequent practice imposed on wait staff. A bar or restaurant facing serious issues with thieving customers must find a better way of preventing freebie meals.
This week the New York Times ran an article about the difficulties older workers face in getting a new job after a layoff. Bias against older workers often involves assumptions that an older worker has inadequate technology skills and will refuse to be supervised by a younger boss. The article pointed out the added burden posed by the Supreme Court’s having made it more difficult to prove age discrimination. Unless Congress revises the law to establish a proof scheme similar to that of race and sex discrimination, the New York Times reports that no lawyers take age discrimination cases.
That is an exaggeration. But the Gross decision, which requires an employee to prove that “but for” the age discrimination he would not have suffered the employment action (such as being fired or demoted), does raise the bar. The Supreme Court justices, remember, have no mandatory retirement age and cannot be removed except by impeachment. They may not be able to relate to an employee laid off in the private sector who has to reinvent himself.
Congress does have a bill before it to make the proof standard equivalent to what one has to prove in other kinds of discrimination cases: that the person’s (race, national origin, etc.) was a motivating factor in the decision. Many people have difficulty meeting this burden, given the fact that supervisors are usually trained not to reveal such bias, but this standard fits the ideal that a person’s gender, religion or disability status should not be a part of the decision to hire or fire.
The Equal Employment Opportunity Commission filed suit against Freeman, a company
It claimed that Freeman’s policy of conducting background checks into criminal convictions and credit histories resulted in exclusion of more minorities than whites from the applicant pool. The EEOC has been pursuing this practice, which results in a “disparate impact” against minority groups, whose members are more likely to have had interactions with the criminal justice system and suffered credit problems during the recession. Studies have shown that bias has also led to harsher treatment, meaning more convictions instead of probation, for minority arrestees.
Given this backdrop, the EEOC’s goal is ambitious and laudable. The employer side of it, though, is reasonable. Depending on the job, an employer would want to exclude someone proven to have a violent past, or a history of theft. No employer should be required to hire a convicted embezzler as its bookkeeper, and may risk public safety, not to mention lawsuits, if it hires a convicted rapist to do service calls at customers’ homes.
The EEOC pursued in Maryland federal court a privately held company with offices around the country. The EEOC alleged that Freeman’s use of credit checks and criminal background checks resulted in the illegal exclusion of a disproportionate number of minority candidates. Federal district judge Titus threw out the case last week. There were two main problems with the EEOC’s case. The worst was that its statistical expert delivered a report with egregious errors. The judge seemed to question whether many were purposeful, but it also appeared that on the whole the statistical analysis was sloppy. The conclusion of the opinion included this summary: “The story of the present action has been that of a theory in search of facts to support it.”
The second problem seemed to be that this particular company did not use criminal convictions and credit histories as a blunt tool to weed out a portion of the population. Instead, the company looked at credit for certain classes of jobs involving the handling of money. It asked about convictions on the application form, but limited the use of conviction records to the last seven years, and, perhaps most importantly, did not complete any such background checks until after the applicant had a job offer.
The EEOC is likely to pursue similar cases, but will have to draw a clearer line between the background check policies and unreasonable exclusions of minority candidates from the applicant pool.
An interesting new study shows the subtle but ingrained bias against older people. As reported in this week’s New York Times, a psychological experiment showed participants videos of a man identified as Max, a white man wearing a checked shirt. The actors playing Max had two scripts for the video, differing only in one respect, whether they intended to be generous with their wealth. The people who saw Max’s video rated him on a positive to negative scale. Here’s the age discrimination twist: Some of the viewers saw a 25-year old Max, some saw a 45-year old Max, and some saw a 75-year old Max. The 75 year old who would not be inclined to share his riches with his relatives got high negative marks; no other age groups saw that difference.
As this article points out, there are two main difficulties in proving an age bias case. One is that people are not young or old (as opposed to male or female). We age over time, some of us look older or younger than our chronological years, and the age of our peers may be important in whether we are regarded as old in a given context. Experiments designed to show differences in treatment depending on race or gender often show stark differences; age attitudes are more subtle.
The second issue is the Supreme Court’s limitation on age discrimination bias cases four years ago, which raised the bar of proof that age was the “determining” factor causing the termination, demotion or other adverse action.
Nevertheless, age discrimination affects employment decisions, whether the decisionmaker is acting intentionally or does not perceive his or her own bias. As the article states,
“There is little doubt that such discrimination exists. When an older man or woman is laid off, it typically takes two to six months longer to find a new job than it takes younger workers, according to the Bureau of Labor Statistics. And the new job is likely to pay considerably less.”
Congress may have to fix the Supreme Court’s Gross decision. But rooting out ageism in our perceptions is going to take more effort. Fortunately, psychological and other research funded by the Alfred P. Sloan Foundation is ongoing, and perhaps some strategies for eliminating bias will emerge.
In last year’s election, Maryland voters decided that same sex marriage is legal, opening up all sorts of enhanced rights to gay couples. The shadow of the Defense of Marriage Act, however, continued to affect the treatment of Maryland couples in the workplace. Discrimination on the basis of sexual orientation has been illegal for some time under state law. But federally protected rights for same sex spouses were either uncertain or denied. Now that DOMA has been struck down by the Supreme Court in U.S. v. Windsor, the constitution’s Supremacy Clause will not cause federal law to trump state law in the following areas:
Under the Family and Medical Leave Act, an eligible employee is entitled to take leave to care for a sick spouse. This will now clearly apply to same sex spouses.
Many larger companies offered domestic partner health benefits. But the IRS taxed those benefits to the employee, even though health benefits paid for the benefit of a heterosexual couple were not taxed. The Supreme Court’s decision will end this different treatment.
Similarly, spouses are entitled to benefits under pensions and the social security act. Maryland same-sex married couples can now make claims identical to benefits available to spouses in the plans.
The federal courts are struggling with what would seem to be a simple proposition. Taking adverse action against an employee because she needs to pump breast milk is discrimination based on pregnancy and sex.
This idea has not been so simple for a couple of trial courts. In a case brought by the EEOC for a woman fired because she could not lactate at work, the employer won on a motion. The EEOC appealed the case, and the appeals court disagreed. By telling the woman that she could not have space to express her milk, and should just stay home (and then firing her for job abandonment), the employer engaged in sex discrimination, and in discrimination based on her pregnancy. Lactation is a medical condition related to pregnancy, and discriminating against the employee violates her rights under the Pregnancy Discrimination Act. EEOC v. Houston Funding, from the Southern District of Texas.
A similar thing happened in the midwest. An employee returned from her maternity leave and asked for a room to use for expressing breast milk. The company told her she had to wait for three days for the lactation room, or she could use a “wellness” room if she didn’t mind the germs and lack of a lock on the door. The hostility toward her need for an occasional private place to pump led the employee to quit.
In denying her claim, the federal trial court rejected the idea that lactation was invariably associated with pregnancy. It stated “Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production.” So, since there was no allegation that men were allowed to pump breast milk, but not the women, the employee could not show sex discrimination. Even without that “scientific fact,” though, the court said that she left not because she was lactating but because she wanted to breastfeed. A real headscratcher? It’s on appeal. Ames v. Nationwide Mutual Insurance Company.
As reported here before, part of the Affordable Care Act requires larger employers to provide space and privacy for lactation. According to the Iowa decision, however, there is no remedy available to a woman denied these rights, since an employer has the right to make the break time unpaid, so she is not denied her minimum wage.
The Genetic Information Nondiscrimination Act (GINA) has been law since 2009, but to date, there seems to have been little activity arising from this law. The law provides that an employer cannot discriminate against employees or applicants on the basis of their genetic profile. As scientific advances in the genetic field gallop forward, this law is timely, maybe ahead of its time.
The EEOC just announced its first case, resulting in a settlement, against a company that required an applicant for employment to undergo a thorough medical examination, which included a family medical history. Why are family medical histories important? To predict a genetic disposition for the same issues, heart disease, cancer, and other health problems.
In this case, Fabricut of Tulsa, Oklahoma, offered a temporary employee a permanent position, subject to her medical exam. The medical examiner believed that she had carpal tunnel syndrome. Though the employee’s doctor ruled it out, the company rescinded the job offer.
The EEOC accused Fabricut of violating the Americans with Disabilities Act because it discriminated against the employee on the basis of a disability or a perceived disability; it also had no right under the law to demand her medical history.
Then earlier this week, the EEOC made similar allegations about a New York employer, again for requiring medical histories after an applicant received a job offer, and then annually thereafter.
I have heard from many employees whose employers demand medical information, including doctors’ reports, from them. Some of this intrusion seems to be normal human nosiness. It often goes further, with the employer or its medical department presuming to know better than the employee and her own doctors. While both the ADA and the FMLA allow certain medical documentation to support an employee’s requests for accommodation or leave, there is no such exception in GINA. Predictions about an employee’s medical future may not be used to make employment decisions.
At a recent conference, the Equal Employment Opportunities Commission revealed some of its priorities for enforcement.
The EEOC is interested in attacking some of the barriers to getting a job. Since the EEOC has the job of enforcing federal civil rights laws, the barrier must have some impact on a particular protected category. Its efforts to challenge the use of credit reports in the hiring process, for example, have not been vigorously pursued. There is not enough research to support the theory that bad credit is more likely to be a female or African-American problem.
The use of credit reports to make hiring or promotional decisions in Maryland is limited by state law, however.
The link between criminal records and race is easier to establish. The EEOC has been trying to make clearer when the use of a criminal background is acceptable and when it unfairly weeds out potentially good applicants.
In both cases, the use of a background check needs to be linked to the job the person is applying for. Does the employee need to obtain a national security clearance? Is she going to have access to cash transactions? Is the employee going to go into customer’s homes? Is he guilty of violent crimes or drug violations?
Finally, the EEOC is continuing to focus on reasonable accommodations in the disability discrimination arena. Employers are required to engage in the interactive process to work out a way for a disabled employee to perform his job duties, even if a reasonable accommodation is required. Many employers simply make arbitrary rules without reasoning through the possibilities, or (impermissibly) use the excuse that an accommodation would not be fair to other employees.
The EEOC has been more active recently in taking cases for employees, and their settlements usually require ongoing monitoring and training of employees.