RE: EEOC says Catholic College Discriminated by Removing Contraceptive
How is declining to subsidize the *prevention* of pregnancy a sign of discrimination *against* pregnancy? Date: Mon, 17 Aug 2009 16:31:29 -0400 From: masin...@nova.edu To: religionlaw@lists.ucla.edu Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Perry Dane d...@crab.rutgers.edu: This point might have been made by someone else already, but I'll venture ahead anyway: I'm not sure we need to accept the premise that Belmont Abbey is guilty of sex discrimination here. The EEOC determination found that By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives By denying coverage, men are not affected, only women. The obvious analogy implicit here is to the sort of pregnancy discrimination at issue in Gilbert, which Congress has (rightly) determined to be a form of sex discrimination. But this case is different. Belmont Abbey can credibly argue that its policy would be to refuse to pay for any contraceptive, regardless of whether the contraceptive is being taken by men or women. That this policy affects men and women is not the product of biology, as it was in Gilbert, but of independent policy decisions made by other institutions to treat women's contraceptives, but not men's contraceptives, as prescription items. To put it another way: When General Electric argued in the Gilbert case that it was discriminating against pregnancy, not against women, that would rightly strike most observers as a laughable, or at least unduly formalistic, proposition. But when Belmont Abbey argues that it is discriminating against contraception, not against women, that seems to me to be neither laughable nor formalistic. Consider this analogy: Imagine a pacifist landlord who refuses to rent to combat soldiers. Is that a form of discrimination against men merely because another institution (the U.S. Congress) has made an independent policy decision not to allow women to be combat soldiers? (For purposes of the hypo, put aside the fact that many women do de facto serve in combat.) Or imagine a landlord right next to a single-sex college who refuses to rent to college students. Is that a form of sex discrimination merely because the college has, of its own accord and as its right, chosen to be single-sex? Now, these situations might, I guess, set up some sort of disparate impact claim, but that seems to me to require a more complicated analysis; in Bemont Abbey's case, it might leave more room for the operation of religious conscience or RFRA. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to
RE: EEOC says Catholic College Discriminated by Removing Contraceptive
I know it is shifting the focus of the discussion, but one way to think about the broader issue here is to ask if there is a way to protect the religious liberty of Catholic institutions that do not want to subsidize coverage for prescription contraceptives in the health plans they provide to their employees and also make sure that women employees receive equal prescription drug coverage. Government might be able to play a more positive role here in addition to or as an alternative to a finding of gender discrimination. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter Sent: Monday, August 17, 2009 1:31 PM To: religionlaw@lists.ucla.edu Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Perry Dane d...@crab.rutgers.edu: This point might have been made by someone else already, but I'll venture ahead anyway: I'm not sure we need to accept the premise that Belmont Abbey is guilty of sex discrimination here. The EEOC determination found that By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives By denying coverage, men are not affected, only women. The obvious analogy implicit here is to the sort of pregnancy discrimination at issue in Gilbert, which Congress has (rightly) determined to be a form of sex discrimination. But this case is different. Belmont Abbey can credibly argue that its policy would be to refuse to pay for any contraceptive, regardless of whether the contraceptive is being taken by men or women. That this policy affects men and women is not the product of biology, as it was in Gilbert, but of independent policy decisions made by other institutions to treat women's contraceptives, but not men's contraceptives, as prescription items. To put it another way: When General Electric argued in the Gilbert case that it was discriminating against pregnancy, not against women, that would rightly strike most observers as a laughable, or at least unduly formalistic, proposition. But when Belmont Abbey argues that it is discriminating against contraception, not against women, that seems to me to be neither laughable nor formalistic. Consider this analogy: Imagine a pacifist landlord who refuses to rent to combat soldiers. Is that a form of discrimination against men merely because another institution (the U.S. Congress) has made an independent policy decision not to allow women to be combat soldiers? (For purposes of the hypo, put aside the fact that many women do de facto serve in combat.) Or imagine a landlord right next to a single-sex college who refuses to rent to college students. Is that a form of sex discrimination merely because the college has, of its own accord and as its right, chosen to be single-sex? Now, these situations might, I guess, set up some sort of disparate impact claim, but that seems to me to require a more complicated analysis; in Bemont Abbey's case, it might leave more room for the operation of religious conscience or RFRA. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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;
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter wrote: Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Let's tease out the issues here. It's possible that denying coverage for contraceptives violates the PDA because of its consequences for the risk of unwanted pregnancy, a risk whose effect is uniquely borne by women. If that's true, though, it shouldn't matter who is using the contraceptives, men or women. Let's call this the PDA argument. But, as I understand it, the EEOC didn't make the PDA argument, at least as such. Instead, it wrote that By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives? Let's call this the straightforward argument. This was the argument to which I was responding. The consequences of the two arguments are obviously very different. For example, the straightforward argument would apply, but the PDA argument would not, if an employer denied coverage for some other type of treatment that was directed only at women, such as, say, post-menopausal hormone therapy. Conversely, the PDA argument would apply, but the straightforward argument would not, if (counterfactually) there were equally-available prescription contraceptive pills for both men and women, and an employer denied coverage for both types of contraceptives. I've already suggested why the straightforward argument doesn't impress me -- it penalizes Belmont Abbey for institutional decisions made by someone else, and it doesn't give an honest account of the best description of what Belmont Abbey is doing. The PDA argument strikes me as stronger in principle, but I'm not sure (though this is far from the area of my expertise) that the text or policy of the PDA can support the weight of it. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter also argues that Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion because an individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment This is essentially the old argument that money is fungible. But there are two problems here. First, law and practice are full of instances in which this sort of argument doesn't govern. Cf. much of establishment clause doctrine. Or consider the fact that my school will not reimburse me out of state funds for buying alcohol at business meals, but has no problem if I use part of my salary to buy alcohol at such meals, and even (I am told) has no problem reimbursing me out of gift funds. More to the point: Belmont Abbey clearly thinks that there is a religiously significant difference between directly and indirectly paying for contraception. And our doctrine of religious liberty strongly insists that we not second-guess such judgments, as long as they are sincere. Michael's argument sort of reminds me of someone telling an observant Jew that it must be OK to turn on an electric light on the Sabbath because, after all, that's not work. Lots of religious beliefs and doctrines follow forms of logic, and make fine distinctions, that don't necessarily convince outsiders. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
