When Congress enacted the Pregnancy Discrimination Act to overrule
General Electric Corp. v. Gilbert, the Court wrote: "When Congress
amended Title VII in 1978, it unambiguously expressed its disapproval
of both the holding and the reasoning of the Court in the Gilbert
decision." Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C.,
462 U.S. 669, 678 (1983). So I don't think the Court's earlier
reasoning on what is or is not sex discrimination is helpful. The
ultimate question of whether the denial of coverage for prescription
birth control drugs is discrimination because of sex prohibited by
Title VII after enactment of the PDA is interesting, but whatever the
answer is, it would seem unlikely to rest on the holding of GE v.
Gilbert.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
--- On Thu, 8/13/09, Steven Jamar <stevenja...@gmail.com> wrote:
From: Steven Jamar <stevenja...@gmail.com>
Subject: Re: EEOC says Catholic College Discriminated by Removing
Contraceptive Coverage from Health Insurance
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Date: Thursday, August 13, 2009, 7:43 AM
I haven't really kept up with decisions and actions in this area,
but the Supreme Court held that refusal of pregnancy benefits was
not sex discrimination and so it would seem that it would easily
enough use the same (il)logic to rule that there was no sex
discrimination here -- just run-of-the-mill coverage limitations.
Besides, women get the same coverage as men -- they can buy condoms
too -- which, one would expect, would be within any deductible
amount anyway.
I'll be interested to see what those more versed in this area
say based on current law.
Steve
On Aug 13, 2009, at 7:23 AM, Will Esser wrote:
I am interested in Listserv participants reactions to the following
story (which I have copied below from the following site:
http://www.gastongazette..com/news/college-36646-discriminated-eeoc.html )
____________________________ The U.S. Equal Employment Opportunity
Commission determined that Belmont Abbey College discriminated
against women and retaliated against faculty members who filed a
charge of employment discrimination, according to EEOC documents. An
EEOC determination letter states that the college discriminated
based on gender by denying contraceptive benefits in the college?s
health coverage plan, according to an EEOC determination.
Contraception, abortion and voluntary sterilization came off Belmont
Abbey College?s faculty health care policy in December 2007 after a
faculty member discovered that coverage, according to an e-mail
Belmont Abbey College President Bill Thierfelder sent to school
staff, students, alumni and friends of the
college. ?By denying prescription contraception drugs, Respondent
(the college) is discriminating based on gender because only females
take oral prescription contraceptives,? wrote Reuben Daniels Jr.,
the EEOC Charlotte District Office Director in the determination.
?By denying coverage, men are not affected, only women.? The EEOC
also determined that the college retaliated against eight faculty
members who filed charges with the EEOC by identifying them by name
in a letter to faculty and staff. ?It is the Commission?s position
that the identity of an individual who has filed a charge should be
protected with confidentiality during the Commission?s
investigation,? Daniels wrote. ?By disclosing Charging Party?s name,
a chilling effect was created on Respondent?s campus whereby other
faculty and staff members would be reluctant to file a charge of
employment discrimination for fear of disclosure.? The EEOC asked
both the faculty
and the college to work with it to reach a resolution. If the
college declines to discuss the settlement or an acceptable
settlement is not reached, the director would inform the two sides
and advise them of the court enforcement alternatives available.
_____________________________ There are a couple of things that I
find fascinating about this story: (a) First, although not
explicitly mentioned in this particular story, the EEOC reversed its
former finding that there was no discrimination by the college..
(You can find mention of this reversal in other stories on the web
including
http://www.campusreportonline.net/main/articles.php?id=3235) I
am not an employment expert, but it is my understanding that
reversals of position by the EEOC are exceptionally rare
(and presumably take place as a result of a "directive from on
high"). Do any Listserv members have insight on this point? (b)
Although the college modified its health
insurance coverage to exclude abortion, sterilization and
contraception, the EEOC decision only focuses on contraception. I
wonder about the rationale involved here, particuarly vis-a-vis
abortion. The EEOC held that: "By denying prescription
contraception drugs, Respondent (the college) is discriminating
based on gender because only females take oral prescription
contraceptives." Using that rationale, why would the same not apply
to abortion? Was the EEOC simply shying away from abortion as a
more hot button issue? My guess is that we will be seeing more and
more lawsuits in this area of the law. This is particularly likely
if employers are mandated to provide health insurance coverage under
a new federal system which requires health insurance coverage for
abortion / sterilization / contraception. I look forward to your
comments. Will P.S. For full disclaimer, I am an alum of Belmont
Abbey College, taught a pre-law course
there as an adjunct faculty member a few years ago, and remain
involved in alumni activities with the college. I am not however,
involved in the EEOC action in any way other than as an observer.
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
********************
We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light.
Plato (428-345 B.C.)
********************_______________________________________________
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-- Prof. Steven D. Jamar
vox: 202-806-8017Associate Director, Institute of Intellectual
Property and Social Justice http://iipsj.orgHoward University School
of Law fax: 202-806-8567http://iipsj.com/SDJ/
"I do not at all resent criticism, even when, for the sake of
emphasis, it for a time parts company with reality."
Winston Churchill, speech to the House of Commons, 1941
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.