Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Richard Dougherty]

The medications which are normally prescribed for birth control purposes,
which we commonly call contraceptives, also have other uses, which uses may
be perfectly harmonious with Catholic teaching.  I am not aware of any
prescription drug plan offered through a Catholic organization that does
not cover such drugs for those uses; that's not to say they don't exist,
but I am not aware of them.  The drugs are prescribed the same way any drug
is prescribed (i.e., no pre-approval by anyone), but the doctors and
patients know/should know that they are only for those purposes, and not
for contraceptive purposes.  Enforcement of that understanding is of course
variegated.

The Catholic objection to the contraceptive mandate, then, as I understand
it, has nothing to do with medications that are medically prescribed for
medical conditions, but to medications prescribed as contraceptives (i.e,
for voluntary lifestyle choices).

I'd be happy to be corrected on any of this.

Richard Dougherty
University of Dallas


On Wed, Nov 27, 2013 at 12:09 PM, Marci Hamilton  wrote:

> So how does it work?  The women need pre approval from their boss?
>
> And I thought the bishops oppose the Pill and these are devout Catholics.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
>
>
___
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RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Douglas Laycock]

The owners of Hobby Lobby are Protestants. The owners of Conestoga Wood are 
Mennonites. They are opposed to abortion. They object to drugs or devices that 
may work post-fertilization. They are not opposed to contraception that works, 
certainly and exclusively,  by other mechanisms.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, November 27, 2013 1:10 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

So how does it work?  The women need pre approval from their boss?  

And I thought the bishops oppose the Pill and these are devout Catholics.  

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 12:46 PM, "Douglas Laycock"  wrote:

> They are not. 
> 
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law University of Virginia 
> Law School
> 580 Massie Road
> Charlottesville, VA  22903
> 434-243-8546
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci 
> Hamilton
> Sent: Wednesday, November 27, 2013 12:32 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Discrimination under Title VII and RFRA (was "Patently 
> Frivolous")
> 
> Tom--  they are not opposed to the Pill?
> 
> 
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
> 
> 
> 
> On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C."  wrote:
> 
>> In response to Chip,
>> 
>> As to the plaintiffs in Hobby Lobby and Conestoga, they object only 
>> to certain medicines/methods that they believe cause abortions of 
>> fertilized embryos.  Unless opposition to abortion is a form of 
>> statutory sex discrimination, which the Court rejected in Bray v.
>> Alexandria Women's Health Center, this element at least complicates 
>> any argument that sex discrimination is the interest in these cases.
>> (The government asserts that abortion is not involved here, for both 
>> legal and medical reasons, but this at least complicates the 
>> matter--especially in a case where the question concerns the 
>> objector's conscientious belief.)
>> 
>> Moreover, as to the Catholic plaintiffs--those opposed to contraception as 
>> well as abortion--all of the complaints, as I remember, state that 
>> plaintiffs' object to paying for sterilization as well as for abortion and 
>> contraception.  Presumably they would object to having to pay for 
>> vasectomies--if the mandate required those, which it apparently does not.  
>> This article from Kaiser Health News indicates that the relevant parts of 
>> the mandate only covers preventive services for women.  
>> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
>>   If this article is wrong, someone please correct me.  But it would be 
>> strange for the government to enforce a regulation covering only services 
>> for women and then claim that the one who objects to it is engaged in sex 
>> discrimination (when there is a good likelihood that the moral objections 
>> would extend to relevant services for males).
>> 
>> There is of course the argument for the importance of contraceptive access 
>> to women's health, life-planning, and autonomy.  The government has made 
>> that argument strenuously, and we'll see if it succeeds on these facts.  But 
>> it seems to me that going further and framing the issue as sex 
>> discrimination by the objectors faces problems.
>> 
>> Tom
>> 
>> P.S.  here is the relevant passage from the link above:
>> 
>> 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
>> covered by the rule?
>> 
>> An HHS official said on Friday that women’s preventive services guidelines 
>> apply to women only.
>> 
>> Guidelines issued by the Health Resources and Services Administration, part 
>> of HHS, require coverage without cost sharing for "all Food and Drug 
>> Administration-approved contraceptive methods, sterilization procedures and 
>> patient education and counseli

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

So how does it work?  The women need pre approval from their boss?  

And I thought the bishops oppose the Pill and these are devout Catholics.  

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 12:46 PM, "Douglas Laycock"  wrote:

> They are not. 
> 
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
> 434-243-8546
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Wednesday, November 27, 2013 12:32 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Discrimination under Title VII and RFRA (was "Patently 
> Frivolous")
> 
> Tom--  they are not opposed to the Pill?
> 
> 
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
> 
> 
> 
> On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C."  wrote:
> 
>> In response to Chip,
>> 
>> As to the plaintiffs in Hobby Lobby and Conestoga, they object only to 
>> certain medicines/methods that they believe cause abortions of 
>> fertilized embryos.  Unless opposition to abortion is a form of 
>> statutory sex discrimination, which the Court rejected in Bray v. 
>> Alexandria Women's Health Center, this element at least complicates 
>> any argument that sex discrimination is the interest in these cases.  
>> (The government asserts that abortion is not involved here, for both 
>> legal and medical reasons, but this at least complicates the 
>> matter--especially in a case where the question concerns the 
>> objector's conscientious belief.)
>> 
>> Moreover, as to the Catholic plaintiffs--those opposed to contraception as 
>> well as abortion--all of the complaints, as I remember, state that 
>> plaintiffs' object to paying for sterilization as well as for abortion and 
>> contraception.  Presumably they would object to having to pay for 
>> vasectomies--if the mandate required those, which it apparently does not.  
>> This article from Kaiser Health News indicates that the relevant parts of 
>> the mandate only covers preventive services for women.  
>> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
>>   If this article is wrong, someone please correct me.  But it would be 
>> strange for the government to enforce a regulation covering only services 
>> for women and then claim that the one who objects to it is engaged in sex 
>> discrimination (when there is a good likelihood that the moral objections 
>> would extend to relevant services for males).
>> 
>> There is of course the argument for the importance of contraceptive access 
>> to women's health, life-planning, and autonomy.  The government has made 
>> that argument strenuously, and we'll see if it succeeds on these facts.  But 
>> it seems to me that going further and framing the issue as sex 
>> discrimination by the objectors faces problems.
>> 
>> Tom
>> 
>> P.S.  here is the relevant passage from the link above:
>> 
>> 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
>> covered by the rule?
>> 
>> An HHS official said on Friday that women’s preventive services guidelines 
>> apply to women only.
>> 
>> Guidelines issued by the Health Resources and Services Administration, part 
>> of HHS, require coverage without cost sharing for "all Food and Drug 
>> Administration-approved contraceptive methods, sterilization procedures and 
>> patient education and counseling for all women with reproductive capacity" 
>> as prescribed by a provider, according to the Federal Register.
>> 
>> The insurers' letter from September says they interpreted the rule to 
>> include only female-based contraception and that the requirement to waive 
>> co-payments "does not apply to methods and procedures intended for males."
>> 
>> But Adam Sonfield, senior public policy associate at the Guttmacher 
>> Institute, a reproductive health research group, says the language is 
>> unclear, and it would be foolish to exclude vasectomies. For one thing, he 
>> says, they are less expensive and pose a lower risk of complications than 
>> female surgical sterilization methods. Plus

RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Douglas Laycock]

They are not. 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, November 27, 2013 12:32 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

Tom--  they are not opposed to the Pill?



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C."  wrote:

> In response to Chip,
> 
> As to the plaintiffs in Hobby Lobby and Conestoga, they object only to 
> certain medicines/methods that they believe cause abortions of 
> fertilized embryos.  Unless opposition to abortion is a form of 
> statutory sex discrimination, which the Court rejected in Bray v. 
> Alexandria Women's Health Center, this element at least complicates 
> any argument that sex discrimination is the interest in these cases.  
> (The government asserts that abortion is not involved here, for both 
> legal and medical reasons, but this at least complicates the 
> matter--especially in a case where the question concerns the 
> objector's conscientious belief.)
> 
> Moreover, as to the Catholic plaintiffs--those opposed to contraception as 
> well as abortion--all of the complaints, as I remember, state that 
> plaintiffs' object to paying for sterilization as well as for abortion and 
> contraception.  Presumably they would object to having to pay for 
> vasectomies--if the mandate required those, which it apparently does not.  
> This article from Kaiser Health News indicates that the relevant parts of the 
> mandate only covers preventive services for women.  
> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
>   If this article is wrong, someone please correct me.  But it would be 
> strange for the government to enforce a regulation covering only services for 
> women and then claim that the one who objects to it is engaged in sex 
> discrimination (when there is a good likelihood that the moral objections 
> would extend to relevant services for males).
> 
> There is of course the argument for the importance of contraceptive access to 
> women's health, life-planning, and autonomy.  The government has made that 
> argument strenuously, and we'll see if it succeeds on these facts.  But it 
> seems to me that going further and framing the issue as sex discrimination by 
> the objectors faces problems.
> 
> Tom
> 
> P.S.  here is the relevant passage from the link above:
> 
> 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
> covered by the rule?
> 
> An HHS official said on Friday that women’s preventive services guidelines 
> apply to women only.
> 
> Guidelines issued by the Health Resources and Services Administration, part 
> of HHS, require coverage without cost sharing for "all Food and Drug 
> Administration-approved contraceptive methods, sterilization procedures and 
> patient education and counseling for all women with reproductive capacity" as 
> prescribed by a provider, according to the Federal Register.
> 
> The insurers' letter from September says they interpreted the rule to include 
> only female-based contraception and that the requirement to waive co-payments 
> "does not apply to methods and procedures intended for males."
> 
> But Adam Sonfield, senior public policy associate at the Guttmacher 
> Institute, a reproductive health research group, says the language is 
> unclear, and it would be foolish to exclude vasectomies. For one thing, he 
> says, they are less expensive and pose a lower risk of complications than 
> female surgical sterilization methods. Plus, he says, waiving co-payments for 
> services for one sex but not the other raises issues of discrimination.
> 
> 
> -
> Thomas C. Berg
> James L. Oberstar Professor of Law and Public Policy University of St. 
> Thomas School of Law MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN   55403-2015
> Phone: 651 962 4918
> Fax: 651 962 4881
> E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
> SSRN: http://ssrn.com/author='261564
> Weblog: http://www.mirrorofjustice.blogs.com
> --------------
> ------
> ________
> From: religionlaw-boun...@lists.ucla.edu 
> [rel

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

Tom--  they are not opposed to the Pill?



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C."  wrote:

> In response to Chip,
> 
> As to the plaintiffs in Hobby Lobby and Conestoga, they object only to 
> certain medicines/methods that they believe cause abortions of fertilized 
> embryos.  Unless opposition to abortion is a form of statutory sex 
> discrimination, which the Court rejected in Bray v. Alexandria Women's Health 
> Center, this element at least complicates any argument that sex 
> discrimination is the interest in these cases.  (The government asserts that 
> abortion is not involved here, for both legal and medical reasons, but this 
> at least complicates the matter--especially in a case where the question 
> concerns the objector's conscientious belief.)
> 
> Moreover, as to the Catholic plaintiffs--those opposed to contraception as 
> well as abortion--all of the complaints, as I remember, state that 
> plaintiffs' object to paying for sterilization as well as for abortion and 
> contraception.  Presumably they would object to having to pay for 
> vasectomies--if the mandate required those, which it apparently does not.  
> This article from Kaiser Health News indicates that the relevant parts of the 
> mandate only covers preventive services for women.  
> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
>   If this article is wrong, someone please correct me.  But it would be 
> strange for the government to enforce a regulation covering only services for 
> women and then claim that the one who objects to it is engaged in sex 
> discrimination (when there is a good likelihood that the moral objections 
> would extend to relevant services for males).
> 
> There is of course the argument for the importance of contraceptive access to 
> women's health, life-planning, and autonomy.  The government has made that 
> argument strenuously, and we'll see if it succeeds on these facts.  But it 
> seems to me that going further and framing the issue as sex discrimination by 
> the objectors faces problems.
> 
> Tom
> 
> P.S.  here is the relevant passage from the link above:
> 
> 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
> covered by the rule?
> 
> An HHS official said on Friday that women’s preventive services guidelines 
> apply to women only.
> 
> Guidelines issued by the Health Resources and Services Administration, part 
> of HHS, require coverage without cost sharing for "all Food and Drug 
> Administration-approved contraceptive methods, sterilization procedures and 
> patient education and counseling for all women with reproductive capacity" as 
> prescribed by a provider, according to the Federal Register.
> 
> The insurers' letter from September says they interpreted the rule to include 
> only female-based contraception and that the requirement to waive co-payments 
> "does not apply to methods and procedures intended for males."
> 
> But Adam Sonfield, senior public policy associate at the Guttmacher 
> Institute, a reproductive health research group, says the language is 
> unclear, and it would be foolish to exclude vasectomies. For one thing, he 
> says, they are less expensive and pose a lower risk of complications than 
> female surgical sterilization methods. Plus, he says, waiving co-payments for 
> services for one sex but not the other raises issues of discrimination.
> 
> 
> -
> Thomas C. Berg
> James L. Oberstar Professor of Law and Public Policy
> University of St. Thomas School of Law
> MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN   55403-2015
> Phone: 651 962 4918
> Fax: 651 962 4881
> E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
> SSRN: http://ssrn.com/author='261564
> Weblog: http://www.mirrorofjustice.blogs.com
> ------------
> ____________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Ira Lupu [icl...@law.gwu.edu]
> Sent: Wednesday, November 27, 2013 10:12 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Discrimination under Title VII and RFRA (was "Patently 
> Frivolous")
> 
> All of Marci's hypotheticals are loaded up, because they involve direct 
> imposition on women's behavior (wear head scarves, don't use certain 
> medicines or drugs) rather than just refusing to pay for the relevant goods.  
> And Marci

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

I certainly hope they will rely on these statutes which are evidence of (1) the 
ingrained and ongoing persistence of gender discrimination across society and 
in private institutions; (2) the need to be vigilant as these hard-fought 
rights can be compromised at any time; and (3) this religious liberty argument 
is in fact an argument that necessarily disables women's equality and bodily 
integrity.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 12:16 PM, James Oleske  wrote:

> There is at least one district court decision upholding the EEOC's view of 
> the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 
> (W.D. Wash. 2001):
> 
> Having reviewed the legislative history of Title VII and the PDA, the 
> language of the statute itself, and the relevant case law, the Court finds 
> that Bartell's exclusion of prescription contraception from its prescription 
> plan is inconsistent with the requirements of federal law. The PDA is not a 
> begrudging recognition of a limited grant of rights to a strictly defined 
> group of women who happen to be pregnant. Read in the context of Title VII as 
> a whole, it is a broad acknowledgment of the intent of Congress to outlaw any 
> and all discrimination against any and all women in the terms and conditions 
> of their employment, including the benefits an employer provides to its 
> employees. Male and female employees have different, sex-based disability and 
> healthcare needs, and the law is no longer blind to the fact that only women 
> can get pregnant, bear children, or use prescription contraception. The 
> special or increased healthcare needs associated with a woman's unique 
> sex-based characteristics must be met to the same extent, and on the same 
> terms, as other healthcare needs. Even if one were to assume that Bartell's 
> prescription plan was not the result of intentional discrimination, the 
> exclusion of women-only benefits from a generally comprehensive prescription 
> plan is sex discrimination under Title VII.
> Title VII does not require employers to offer any particular type or category 
> of benefit. However, when an employer decides to offer a prescription plan 
> covering everything except a few specifically excluded drugs and devices, it 
> has a legal obligation to make sure that the resulting plan does not 
> discriminate based on sex-based characteristics and that it provides equally 
> comprehensive coverage for both sexes. In light of the fact that prescription 
> contraceptives are used only by women, Bartell's choice to exclude that 
> particular benefit from its generally applicable benefit plan is 
> discriminatory.
> 
> Marty is correct that the government is relying on women's equality, but 
> their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC 
> interpretation, or Erickson in support of the equality interest. In 
> retrospect, that strikes me as a big oversight. But I must admit that I 
> hadn't thought of the argument until one of my seminar students made it in a 
> paper they are writing about Hobby Lobby.  
> 
> 
> On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman  
> wrote:
>> The government is relying upon women's equality -- not only health -- as one 
>> of the compelling interests.  This makes sense, since presumably most (but 
>> not all) employees would pay for contraception ut of pocket, rather than go 
>> without.
>> 
>>   As for whether an employer's failure to cover contraception would have 
>> violated federal law before the HHS rule, in 2000 the EEOC interpreted the 
>> PDA as requiring employers to cover prescription contraception for women if 
>> they cover “other prescription drugs and devices, or other types of 
>> services, that are used to prevent the occurrences of other medical 
>> conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 
>> 2000), available at 
>> http://www.eeoc.gov/policy/docs/decision-contraception.html.  The only court 
>> of appeals to address the issue disagreed, however, in a split decision -- 
>> see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 
>> 2007).
>> 
>> 
>> On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu  wrote:
>>> All of Marci's hypotheticals are loaded up, because they involve direct 
>>> imposition on women's behavior (wear head scarves, don't use certain 
>>> medicines or drugs) rather than just refusing to pay for the relevant 
>>> goods.  And Marci's claim that Hobby Lobby and others are engaging in 
>>> religious discrimination seems wrong to me -- the refusal to cover affects 
>>> every female employee, regardless of her religious beliefs or affiliation 
>>> or conduct.  
>>> 
>>> But Marci's argument that Hobby Lobby and others are engaging in sex 
>>> discrimination, in violation, of Title VII, seems much more persuasive  - 
>>> the coverage refusal affects all women and only women, an

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[James Oleske]

There is at least one district court decision upholding the EEOC's view of
the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72
(W.D. Wash. 2001):

Having reviewed the legislative history of Title VII and the PDA, the
language of the statute itself, and the relevant case law, the Court finds
that Bartell's exclusion of prescription contraception from its
prescription plan is inconsistent with the requirements of federal law. The
PDA is not a begrudging recognition of a limited grant of rights to a
strictly defined group of women who happen to be pregnant. Read in the
context of Title VII as a whole, it is a broad acknowledgment of the intent
of Congress to outlaw any and all discrimination against any and all women
in the terms and conditions of their employment, including the benefits an
employer provides to its employees. Male and female employees have
different, sex-based disability and healthcare needs, and the law is no
longer blind to the fact that only women can get pregnant, bear children,
or use prescription contraception. The special or increased healthcare
needs associated with a woman's unique sex-based characteristics must be
met to the same extent, and on the same terms, as other healthcare needs.
Even if one were to assume that Bartell's prescription plan was not the
result of intentional discrimination, the exclusion of women-only benefits
from a generally comprehensive prescription plan is sex discrimination
under Title VII.
Title VII does not require employers to offer any particular type or
category of benefit. However, when an employer decides to offer a
prescription plan covering everything except a few specifically excluded
drugs and devices, it has a legal obligation to make sure that the
resulting plan does not discriminate based on sex-based characteristics and
that it provides equally comprehensive coverage for both sexes. In light of
the fact that prescription contraceptives are used only by women, Bartell's
choice to exclude that particular benefit from its generally applicable
benefit plan is discriminatory.

Marty is correct that the government is relying on women's equality, but
their brief to the Tenth Circuit did not invoke Title VII, the PDA, the
EEOC interpretation, or Erickson in support of the equality interest. In
retrospect, that strikes me as a big oversight. But I must admit that I
hadn't thought of the argument until one of my seminar students made it in
a paper they are writing about Hobby Lobby.


On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman wrote:

> The government *is *relying upon women's equality -- not only health --
> as one of the compelling interests.  This makes sense, since presumably
> most (but not all) employees would pay for contraception ut of pocket,
> rather than go without.
>
>   As for whether an employer's failure to cover contraception would have
> violated federal law *before *the HHS rule, in 2000 the EEOC interpreted
> the PDA as requiring employers to cover prescription contraception for
> women if they cover “other prescription drugs and devices, or other types
> of services, that are used to prevent the occurrences of other medical
> conditions.” EEOC Commission Decision on Coverage of Contraception (Dec.
> 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision-
> contraception.html.  The only court of appeals to address the issue
> disagreed, however, in a split decision -- see *In re Union Pacific R.
> Employment Practices Lit.*, 479 F3d 936 (CTA8 2007).
>
>
> On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu  wrote:
>
>> All of Marci's hypotheticals are loaded up, because they involve direct
>> imposition on women's behavior (wear head scarves, don't use certain
>> medicines or drugs) rather than just refusing to pay for the relevant
>> goods.  And Marci's claim that Hobby Lobby and others are engaging in
>> religious discrimination seems wrong to me -- the refusal to cover affects
>> every female employee, regardless of her religious beliefs or affiliation
>> or conduct.
>>
>> But Marci's argument that Hobby Lobby and others are engaging in sex
>> discrimination, in violation, of Title VII, seems much more persuasive  -
>> the coverage refusal affects all women and only women, and is therefore a
>> sex discriminatory denial of legally compelled fringe benefits.  I have not
>> read a single post that replies to that way of framing the argument.   If
>> we view this as an attempt to gain a RFRA-based exemption from Title VII as
>> well as from the ACA, does that change the analysis?  Doesn't the
>> government's compelling interest argument get stronger -- under-inclusion
>> is no longer a problem of the same degree, and cases like Bob Jones
>> University come into the mix?
>>
>> Are there good answers to this way of framing the question?  Is it too
>> late for the government to so frame it in the Supreme Court?
>>
>>
>>
___
To post, send message to Religionlaw@lis

RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Berg, Thomas C.]

In response to Chip,

As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain 
medicines/methods that they believe cause abortions of fertilized embryos.  
Unless opposition to abortion is a form of statutory sex discrimination, which 
the Court rejected in Bray v. Alexandria Women's Health Center, this element at 
least complicates any argument that sex discrimination is the interest in these 
cases.  (The government asserts that abortion is not involved here, for both 
legal and medical reasons, but this at least complicates the matter--especially 
in a case where the question concerns the objector's conscientious belief.)

Moreover, as to the Catholic plaintiffs--those opposed to contraception as well 
as abortion--all of the complaints, as I remember, state that plaintiffs' 
object to paying for sterilization as well as for abortion and contraception.  
Presumably they would object to having to pay for vasectomies--if the mandate 
required those, which it apparently does not.  This article from Kaiser Health 
News indicates that the relevant parts of the mandate only covers preventive 
services for women.  
http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
  If this article is wrong, someone please correct me.  But it would be strange 
for the government to enforce a regulation covering only services for women and 
then claim that the one who objects to it is engaged in sex discrimination 
(when there is a good likelihood that the moral objections would extend to 
relevant services for males).

There is of course the argument for the importance of contraceptive access to 
women's health, life-planning, and autonomy.  The government has made that 
argument strenuously, and we'll see if it succeeds on these facts.  But it 
seems to me that going further and framing the issue as sex discrimination by 
the objectors faces problems.

Tom

P.S.  here is the relevant passage from the link above:

 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
covered by the rule?

An HHS official said on Friday that women’s preventive services guidelines 
apply to women only.

Guidelines issued by the Health Resources and Services Administration, part of 
HHS, require coverage without cost sharing for "all Food and Drug 
Administration-approved contraceptive methods, sterilization procedures and 
patient education and counseling for all women with reproductive capacity" as 
prescribed by a provider, according to the Federal Register.

The insurers' letter from September says they interpreted the rule to include 
only female-based contraception and that the requirement to waive co-payments 
"does not apply to methods and procedures intended for males."

But Adam Sonfield, senior public policy associate at the Guttmacher Institute, 
a reproductive health research group, says the language is unclear, and it 
would be foolish to exclude vasectomies. For one thing, he says, they are less 
expensive and pose a lower risk of complications than female surgical 
sterilization methods. Plus, he says, waiving co-payments for services for one 
sex but not the other raises issues of discrimination.


-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Wednesday, November 27, 2013 10:12 AM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

All of Marci's hypotheticals are loaded up, because they involve direct 
imposition on women's behavior (wear head scarves, don't use certain medicines 
or drugs) rather than just refusing to pay for the relevant goods.  And Marci's 
claim that Hobby Lobby and others are engaging in religious discrimination 
seems wrong to me -- the refusal to cover affects every female employee, 
regardless of her religious beliefs or affiliation or conduct.

But Marci's argument that Hobby Lobby and others are engaging in sex 
discrimination, in violation, of Title VII, seems much more persuasive  - the 
coverage refusal affects all women and only women, and is therefore a sex 
discriminatory denial of legally compelled fringe benefits.  I have not read a 
single post that replies to that way of framing the argument.   If we view this 
as an attempt to gain a RFRA-based exempti

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Scarberry, Mark]

This may or may not be relevant to the constitutional question, but I think 
it's likely that the religious employers in these cases would not object to 
providing coverage for those medications if prescribed for non-contraceptive 
purposes (because contraception would be a secondary effect).

Mark S. Scarberry
Pepperdine University School of Law

Marci Hamilton wrote:

Marty- one addition --women will also have to pay for oral contraceptives to 
stop excessive bleeding, cramps, and hormone- triggered acne.   I think this 
discussion needs to factor in the medical uses beyond contraception for 
millions of women over the course of their lives.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton


Sent from my Verizon Wireless 4G LTE Smartphone
___
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Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Scarberry, Mark]

An initial response to the sex discrimination question: does an employer engage 
in sex discrimination by refusing to fund (or provide insurance covering)  
sterilization services, as required by the ACA?

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: Ira Lupu 
Date: 11/27/2013 8:14 AM (GMT-08:00)
To: Law & Religion issues for Law Academics 
Subject: Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")


All of Marci's hypotheticals are loaded up, because they involve direct 
imposition on women's behavior (wear head scarves, don't use certain medicines 
or drugs) rather than just refusing to pay for the relevant goods.  And Marci's 
claim that Hobby Lobby and others are engaging in religious discrimination 
seems wrong to me -- the refusal to cover affects every female employee, 
regardless of her religious beliefs or affiliation or conduct.

But Marci's argument that Hobby Lobby and others are engaging in sex 
discrimination, in violation, of Title VII, seems much more persuasive  - the 
coverage refusal affects all women and only women, and is therefore a sex 
discriminatory denial of legally compelled fringe benefits.  I have not read a 
single post that replies to that way of framing the argument.   If we view this 
as an attempt to gain a RFRA-based exemption from Title VII as well as from the 
ACA, does that change the analysis?  Doesn't the government's compelling 
interest argument get stronger -- under-inclusion is no longer a problem of the 
same degree, and cases like Bob Jones University come into the mix?

Are there good answers to this way of framing the question?  Is it too late for 
the government to so frame it in the Supreme Court?


On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
I know this isn't a full answer; but the issue is not whether or not a woman 
can use birth control for cramps, etc. as far as I am aware.

Further, the issue is who pays for the contraception, not whether the 
contraception can be used.


On Wed, Nov 27, 2013 at 7:50 AM, 
mailto:hamilto...@aol.com>> wrote:
The Court has not drawn such a line, in part because it hasn't thought about it 
carefully.  Citizens United brings the possibilities to the forefront.

In any event, the for-profit/nonprofit difference makes a meaningful difference 
in this case, because it is in the ACA's women's reproductive care mandate,
and it is in Title VII, which protects women.All of my postings have been 
in this arena, and given the pressures of this holiday week, I didn't want to 
lose
track of that focus with the lunch hypo Eugene suggested.  It is undoubtedly 
interesting, but I don't think very illuminating given there is no federal 
civil rights
or constitutional right to lunch or food generally.  I noticed on NCR that 
there is some talk by the bishops in light of the Pope's welcome focus
on the poor, about the fundamental right to food, but that takes us far afield 
from Hobby Lobby with all due respect to Eugene.

I  had posed some on-point hypotheticals I am deeply interested in knowing 
folks' views on, yet it was lost in the fascinating topics up for discussion.

Here are a few modifications and additions to those.

1.  Can employers successfully invoke RFRA to follow their religious beliefs to 
impose headscarves on every woman in a for-profit corporation of over 50 
employees (Mandate +
Title VII at play)?

2.  Can employers successfully invoke RFRA to follow their religious beliefs 
against contraception to bar women from using contraception to stop a woman's 
constant
bleeding due to hormone imablances?   Or to halt monthly debilitating cramps?

3.  Can employers successfully invoke RFRA to follow their religious beliefs 
against contraception to bar families from providing oral contraceptives to 
girls with
disfiguring acne triggered by hormonal shifts?

4.  Can employers successfully invoke RFRA to follow their religious beliefs 
against women working outside the home, and
therefore scale salaries to deincentivize women and drive them from the 
workplace.

5.  Can an employer successfully invoke RFRA to follow their religious beliefs 
and fire any female employee who obtains an abortion  (which is consistent w 
her religious beliefs)?

 All thoughts on these hypotheticals would be greatly appreciated as we work 
through this important issue for religious business owners and women.

Happy Thanksgiving all--

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
<https://www.facebook.com/professormarciahamilton?fref=ts>   
<https://twitter.com/marci_hamilton>

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

Marty- one addition --women will also have to pay for oral contraceptives to 
stop excessive bleeding, cramps, and hormone- triggered acne.   I think this 
discussion needs to factor in the medical uses beyond contraception for 
millions of women over the course of their lives.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 11:44 AM, Marty Lederman  wrote:

> The government is relying upon women's equality -- not only health -- as one 
> of the compelling interests.  This makes sense, since presumably most (but 
> not all) employees would pay for contraception ut of pocket, rather than go 
> without.
> 
>   As for whether an employer's failure to cover contraception would have 
> violated federal law before the HHS rule, in 2000 the EEOC interpreted the 
> PDA as requiring employers to cover prescription contraception for women if 
> they cover “other prescription drugs and devices, or other types of services, 
> that are used to prevent the occurrences of other medical conditions.” EEOC 
> Commission Decision on Coverage of Contraception (Dec. 14, 2000), available 
> at http://www.eeoc.gov/policy/docs/decision-contraception.html.  The only 
> court of appeals to address the issue disagreed, however, in a split decision 
> -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 
> 2007).
> 
> 
> On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu  wrote:
>> All of Marci's hypotheticals are loaded up, because they involve direct 
>> imposition on women's behavior (wear head scarves, don't use certain 
>> medicines or drugs) rather than just refusing to pay for the relevant goods. 
>>  And Marci's claim that Hobby Lobby and others are engaging in religious 
>> discrimination seems wrong to me -- the refusal to cover affects every 
>> female employee, regardless of her religious beliefs or affiliation or 
>> conduct.  
>> 
>> But Marci's argument that Hobby Lobby and others are engaging in sex 
>> discrimination, in violation, of Title VII, seems much more persuasive  - 
>> the coverage refusal affects all women and only women, and is therefore a 
>> sex discriminatory denial of legally compelled fringe benefits.  I have not 
>> read a single post that replies to that way of framing the argument.   If we 
>> view this as an attempt to gain a RFRA-based exemption from Title VII as 
>> well as from the ACA, does that change the analysis?  Doesn't the 
>> government's compelling interest argument get stronger -- under-inclusion is 
>> no longer a problem of the same degree, and cases like Bob Jones University 
>> come into the mix?  
>> 
>> Are there good answers to this way of framing the question?  Is it too late 
>> for the government to so frame it in the Supreme Court? 
>> 
>> 
>> On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley  wrote:
>>> I know this isn't a full answer; but the issue is not whether or not a 
>>> woman can use birth control for cramps, etc. as far as I am aware.
>>> 
>>> Further, the issue is who pays for the contraception, not whether the 
>>> contraception can be used.
>>> 
>>> 
>>> On Wed, Nov 27, 2013 at 7:50 AM,  wrote:
 The Court has not drawn such a line, in part because it hasn't thought 
 about it carefully.  Citizens United brings the possibilities to the 
 forefront.
 
 In any event, the for-profit/nonprofit difference makes a meaningful 
 difference in this case, because it is in the ACA's women's reproductive 
 care mandate,
 and it is in Title VII, which protects women.All of my postings have 
 been in this arena, and given the pressures of this holiday week, I didn't 
 want to lose
 track of that focus with the lunch hypo Eugene suggested.  It is 
 undoubtedly interesting, but I don't think very illuminating given there 
 is no federal civil rights
 or constitutional right to lunch or food generally.  I noticed on NCR that 
 there is some talk by the bishops in light of the Pope's welcome focus
 on the poor, about the fundamental right to food, but that takes us far 
 afield from Hobby Lobby with all due respect to Eugene.
 
 I  had posed some on-point hypotheticals I am deeply interested in knowing 
 folks' views on, yet it was lost in the fascinating topics up for 
 discussion.  
 
 Here are a few modifications and additions to those.
 
 1.  Can employers successfully invoke RFRA to follow their religious 
 beliefs to impose headscarves on every woman in a for-profit corporation 
 of over 50 employees (Mandate +
 Title VII at play)?
 
 2.  Can employers successfully invoke RFRA to follow their religious 
 beliefs against contraception to bar women from using contraception to 
 stop a woman's constant
 bleeding due to hormone imablances?   Or to halt monthly debilitating 
 cramps?
 
 3.  Can employers successfully invoke R

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

Chip--  it might be a standing issue regarding the religious discrimination but 
I still think it has legs because, eg, a Presbyterian is having her job 
benefits limited solely according to religion that she doesn't share, in 
contravention of both economics and health standards.  Shaping a compensation 
package to reflect one religion strikes me as similar the argument raised by 
the woman who challenges the employer who forbids the wearing of a headscarf.  
Why doesn't a woman's religious beliefs that require family planning and even 
abortion particularly where her health and life are implicated have a Title VII 
claim?  How is this different from the woman who demands the right to wear a 
headscarf on the reasoning of those who back RFRA and expansive religious 
liberty?

On another extremely important pr--

I would also point out that benefits law is relevant here and not yet mentioned 
by anyone -- employers are under a fiduciary duty to handle their employees 
health benefits plans solely for the benefit of the employees.  If they cannot 
do so for ethical or other reasons, they must step aside and put the benefits 
into the hands of a fiduciary who will handle the benefits in the interest of 
the employees.  This attempt to imprint their benefits compensation package 
according to their religion is a violation of their fiduciary duty.   

I wonder whether the lawyers for the companies involved or the bishops are 
advising these companies that they are teeing themselves up for potentially 
ruinous lawsuits by female employees for breach of fiduciary duty and explicit 
gender discrimination?

On this point-- the least restrictive means is to appoint an outside plan 
administrator.


Marci 

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 27, 2013, at 11:12 AM, Ira Lupu  wrote:

> All of Marci's hypotheticals are loaded up, because they involve direct 
> imposition on women's behavior (wear head scarves, don't use certain 
> medicines or drugs) rather than just refusing to pay for the relevant goods.  
> And Marci's claim that Hobby Lobby and others are engaging in religious 
> discrimination seems wrong to me -- the refusal to cover affects every female 
> employee, regardless of her religious beliefs or affiliation or conduct.  
> 
> But Marci's argument that Hobby Lobby and others are engaging in sex 
> discrimination, in violation, of Title VII, seems much more persuasive  - the 
> coverage refusal affects all women and only women, and is therefore a sex 
> discriminatory denial of legally compelled fringe benefits.  I have not read 
> a single post that replies to that way of framing the argument.   If we view 
> this as an attempt to gain a RFRA-based exemption from Title VII as well as 
> from the ACA, does that change the analysis?  Doesn't the government's 
> compelling interest argument get stronger -- under-inclusion is no longer a 
> problem of the same degree, and cases like Bob Jones University come into the 
> mix?  
> 
> Are there good answers to this way of framing the question?  Is it too late 
> for the government to so frame it in the Supreme Court? 
> 
> 
> On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley  wrote:
>> I know this isn't a full answer; but the issue is not whether or not a woman 
>> can use birth control for cramps, etc. as far as I am aware.
>> 
>> Further, the issue is who pays for the contraception, not whether the 
>> contraception can be used.
>> 
>> 
>> On Wed, Nov 27, 2013 at 7:50 AM,  wrote:
>>> The Court has not drawn such a line, in part because it hasn't thought 
>>> about it carefully.  Citizens United brings the possibilities to the 
>>> forefront.
>>> 
>>> In any event, the for-profit/nonprofit difference makes a meaningful 
>>> difference in this case, because it is in the ACA's women's reproductive 
>>> care mandate,
>>> and it is in Title VII, which protects women.All of my postings have 
>>> been in this arena, and given the pressures of this holiday week, I didn't 
>>> want to lose
>>> track of that focus with the lunch hypo Eugene suggested.  It is 
>>> undoubtedly interesting, but I don't think very illuminating given there is 
>>> no federal civil rights
>>> or constitutional right to lunch or food generally.  I noticed on NCR that 
>>> there is some talk by the bishops in light of the Pope's welcome focus
>>> on the poor, about the fundamental right to food, but that takes us far 
>>> afield from Hobby Lobby with all due respect to Eugene.
>>> 
>>> I  had posed some on-point hypotheticals I am deeply interested in knowing 
>>> folks' views on, yet it was lost in the fascinating topics up for 
>>> discussion.  
>>> 
>>> Here are a few modifications and additions to those.
>>> 
>>> 1.  Can employers successfully invoke RFRA to follow their religious 
>>> beliefs to impose headscarves on every woman in a for-profit corporation of 
>>> over 50 employees (Mandate +
>>

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marty Lederman]

The government *is *relying upon women's equality -- not only health -- as
one of the compelling interests.  This makes sense, since presumably most
(but not all) employees would pay for contraception ut of pocket, rather
than go without.

  As for whether an employer's failure to cover contraception would have
violated federal law *before *the HHS rule, in 2000 the EEOC interpreted
the PDA as requiring employers to cover prescription contraception for
women if they cover “other prescription drugs and devices, or other types
of services, that are used to prevent the occurrences of other medical
conditions.” EEOC Commission Decision on Coverage of Contraception (Dec.
14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision-
contraception.html.  The only court of appeals to address the issue
disagreed, however, in a split decision -- see *In re Union Pacific R.
Employment Practices Lit.*, 479 F3d 936 (CTA8 2007).


On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu  wrote:

> All of Marci's hypotheticals are loaded up, because they involve direct
> imposition on women's behavior (wear head scarves, don't use certain
> medicines or drugs) rather than just refusing to pay for the relevant
> goods.  And Marci's claim that Hobby Lobby and others are engaging in
> religious discrimination seems wrong to me -- the refusal to cover affects
> every female employee, regardless of her religious beliefs or affiliation
> or conduct.
>
> But Marci's argument that Hobby Lobby and others are engaging in sex
> discrimination, in violation, of Title VII, seems much more persuasive  -
> the coverage refusal affects all women and only women, and is therefore a
> sex discriminatory denial of legally compelled fringe benefits.  I have not
> read a single post that replies to that way of framing the argument.   If
> we view this as an attempt to gain a RFRA-based exemption from Title VII as
> well as from the ACA, does that change the analysis?  Doesn't the
> government's compelling interest argument get stronger -- under-inclusion
> is no longer a problem of the same degree, and cases like Bob Jones
> University come into the mix?
>
> Are there good answers to this way of framing the question?  Is it too
> late for the government to so frame it in the Supreme Court?
>
>
> On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley wrote:
>
>> I know this isn't a full answer; but the issue is not whether or not a
>> woman can use birth control for cramps, etc. as far as I am aware.
>>
>> Further, the issue is who pays for the contraception, not whether the
>> contraception can be used.
>>
>>
>> On Wed, Nov 27, 2013 at 7:50 AM,  wrote:
>>
>>>   The Court has not drawn such a line, in part because it hasn't
>>> thought about it carefully.  Citizens United brings the possibilities to
>>> the forefront.
>>>
>>>  In any event, the for-profit/nonprofit difference makes a meaningful
>>> difference in this case, because it is in the ACA's women's reproductive
>>> care mandate,
>>> and it is in Title VII, which protects women.All of my postings have
>>> been in this arena, and given the pressures of this holiday week, I didn't
>>> want to lose
>>> track of that focus with the lunch hypo Eugene suggested.  It is
>>> undoubtedly interesting, but I don't think very illuminating given there is
>>> no federal civil rights
>>> or constitutional right to lunch or food generally.  I noticed on NCR
>>> that there is some talk by the bishops in light of the Pope's welcome focus
>>> on the poor, about the fundamental right to food, but that takes us far
>>> afield from Hobby Lobby with all due respect to Eugene.
>>>
>>>  I  had posed some on-point hypotheticals I am deeply interested in
>>> knowing folks' views on, yet it was lost in the fascinating topics up for
>>> discussion.
>>>
>>>  Here are a few modifications and additions to those.
>>>
>>>  1.  Can employers successfully invoke RFRA to follow their religious
>>> beliefs to impose headscarves on every woman in a for-profit corporation of
>>> over 50 employees (Mandate +
>>> Title VII at play)?
>>>
>>>  2.  Can employers successfully invoke RFRA to follow their religious
>>> beliefs against contraception to bar women from using contraception to stop
>>> a woman's constant
>>> bleeding due to hormone imablances?   Or to halt monthly debilitating
>>> cramps?
>>>
>>>  3.  Can employers successfully invoke RFRA to follow their religious
>>> beliefs against contraception to bar families from providing oral
>>> contraceptives to girls with
>>> disfiguring acne triggered by hormonal shifts?
>>>
>>>  4.  Can employers successfully invoke RFRA to follow their religious
>>> beliefs against women working outside the home, and
>>> therefore scale salaries to deincentivize women and drive them from the
>>> workplace.
>>>
>>>  5.  Can an employer successfully invoke RFRA to follow their religious
>>> beliefs and fire any female employee who obtains an abortion  (which is
>>> consistent w her religious beliefs)?

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Ira Lupu]

All of Marci's hypotheticals are loaded up, because they involve direct
imposition on women's behavior (wear head scarves, don't use certain
medicines or drugs) rather than just refusing to pay for the relevant
goods.  And Marci's claim that Hobby Lobby and others are engaging in
religious discrimination seems wrong to me -- the refusal to cover affects
every female employee, regardless of her religious beliefs or affiliation
or conduct.

But Marci's argument that Hobby Lobby and others are engaging in sex
discrimination, in violation, of Title VII, seems much more persuasive  -
the coverage refusal affects all women and only women, and is therefore a
sex discriminatory denial of legally compelled fringe benefits.  I have not
read a single post that replies to that way of framing the argument.   If
we view this as an attempt to gain a RFRA-based exemption from Title VII as
well as from the ACA, does that change the analysis?  Doesn't the
government's compelling interest argument get stronger -- under-inclusion
is no longer a problem of the same degree, and cases like Bob Jones
University come into the mix?

Are there good answers to this way of framing the question?  Is it too late
for the government to so frame it in the Supreme Court?


On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley  wrote:

> I know this isn't a full answer; but the issue is not whether or not a
> woman can use birth control for cramps, etc. as far as I am aware.
>
> Further, the issue is who pays for the contraception, not whether the
> contraception can be used.
>
>
> On Wed, Nov 27, 2013 at 7:50 AM,  wrote:
>
>>   The Court has not drawn such a line, in part because it hasn't thought
>> about it carefully.  Citizens United brings the possibilities to the
>> forefront.
>>
>>  In any event, the for-profit/nonprofit difference makes a meaningful
>> difference in this case, because it is in the ACA's women's reproductive
>> care mandate,
>> and it is in Title VII, which protects women.All of my postings have
>> been in this arena, and given the pressures of this holiday week, I didn't
>> want to lose
>> track of that focus with the lunch hypo Eugene suggested.  It is
>> undoubtedly interesting, but I don't think very illuminating given there is
>> no federal civil rights
>> or constitutional right to lunch or food generally.  I noticed on NCR
>> that there is some talk by the bishops in light of the Pope's welcome focus
>> on the poor, about the fundamental right to food, but that takes us far
>> afield from Hobby Lobby with all due respect to Eugene.
>>
>>  I  had posed some on-point hypotheticals I am deeply interested in
>> knowing folks' views on, yet it was lost in the fascinating topics up for
>> discussion.
>>
>>  Here are a few modifications and additions to those.
>>
>>  1.  Can employers successfully invoke RFRA to follow their religious
>> beliefs to impose headscarves on every woman in a for-profit corporation of
>> over 50 employees (Mandate +
>> Title VII at play)?
>>
>>  2.  Can employers successfully invoke RFRA to follow their religious
>> beliefs against contraception to bar women from using contraception to stop
>> a woman's constant
>> bleeding due to hormone imablances?   Or to halt monthly debilitating
>> cramps?
>>
>>  3.  Can employers successfully invoke RFRA to follow their religious
>> beliefs against contraception to bar families from providing oral
>> contraceptives to girls with
>> disfiguring acne triggered by hormonal shifts?
>>
>>  4.  Can employers successfully invoke RFRA to follow their religious
>> beliefs against women working outside the home, and
>> therefore scale salaries to deincentivize women and drive them from the
>> workplace.
>>
>>  5.  Can an employer successfully invoke RFRA to follow their religious
>> beliefs and fire any female employee who obtains an abortion  (which is
>> consistent w her religious beliefs)?
>>
>>   All thoughts on these hypotheticals would be greatly appreciated as we
>> work through this important issue for religious business owners and women.
>>
>>  Happy Thanksgiving all--
>>
>>  Marci
>>
>>>

>>  Marci A. Hamilton
>> Paul R. Verkuil Chair in Public Law
>> Benjamin N. Cardozo School of Law
>> Yeshiva University
>> 55 Fifth Avenue
>> New York, NY 10003
>> (212) 790-0215
>> http://sol-reform.com
>>     
>> 
>>
>>
>>
>> -Original Message-
>> From: Volokh, Eugene 
>> To: Law & Religion issues for Law Academics 
>> Sent: Wed, Nov 27, 2013 12:20 am
>> Subject: RE: "Patently Frivolous" and discrimination
>>
>>   But why would that turn a serious argument into a
>> “patently frivolous” one?  Both nonprofits and for-profits are engaged in
>> monetary transactions.  (U.S. v. Lee talked of people “enter[ing] into
>> commercial activity as a matter of choice,” but education, as we all know,
>> is a commercial activity whether carried on by non-profi

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Michael Worley]

I know this isn't a full answer; but the issue is not whether or not a
woman can use birth control for cramps, etc. as far as I am aware.

Further, the issue is who pays for the contraception, not whether the
contraception can be used.


On Wed, Nov 27, 2013 at 7:50 AM,  wrote:

>  The Court has not drawn such a line, in part because it hasn't thought
> about it carefully.  Citizens United brings the possibilities to the
> forefront.
>
>  In any event, the for-profit/nonprofit difference makes a meaningful
> difference in this case, because it is in the ACA's women's reproductive
> care mandate,
> and it is in Title VII, which protects women.All of my postings have
> been in this arena, and given the pressures of this holiday week, I didn't
> want to lose
> track of that focus with the lunch hypo Eugene suggested.  It is
> undoubtedly interesting, but I don't think very illuminating given there is
> no federal civil rights
> or constitutional right to lunch or food generally.  I noticed on NCR that
> there is some talk by the bishops in light of the Pope's welcome focus
> on the poor, about the fundamental right to food, but that takes us far
> afield from Hobby Lobby with all due respect to Eugene.
>
>  I  had posed some on-point hypotheticals I am deeply interested in
> knowing folks' views on, yet it was lost in the fascinating topics up for
> discussion.
>
>  Here are a few modifications and additions to those.
>
>  1.  Can employers successfully invoke RFRA to follow their religious
> beliefs to impose headscarves on every woman in a for-profit corporation of
> over 50 employees (Mandate +
> Title VII at play)?
>
>  2.  Can employers successfully invoke RFRA to follow their religious
> beliefs against contraception to bar women from using contraception to stop
> a woman's constant
> bleeding due to hormone imablances?   Or to halt monthly debilitating
> cramps?
>
>  3.  Can employers successfully invoke RFRA to follow their religious
> beliefs against contraception to bar families from providing oral
> contraceptives to girls with
> disfiguring acne triggered by hormonal shifts?
>
>  4.  Can employers successfully invoke RFRA to follow their religious
> beliefs against women working outside the home, and
> therefore scale salaries to deincentivize women and drive them from the
> workplace.
>
>  5.  Can an employer successfully invoke RFRA to follow their religious
> beliefs and fire any female employee who obtains an abortion  (which is
> consistent w her religious beliefs)?
>
>   All thoughts on these hypotheticals would be greatly appreciated as we
> work through this important issue for religious business owners and women.
>
>  Happy Thanksgiving all--
>
>  Marci
>
>>
>>>
>  Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> http://sol-reform.com
>     
> 
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics 
> Sent: Wed, Nov 27, 2013 12:20 am
> Subject: RE: "Patently Frivolous" and discrimination
>
>   But why would that turn a serious argument into a
> “patently frivolous” one?  Both nonprofits and for-profits are engaged in
> monetary transactions.  (U.S. v. Lee talked of people “enter[ing] into
> commercial activity as a matter of choice,” but education, as we all know,
> is a commercial activity whether carried on by non-profit institutions or
> for-profit ones.)  Both choose to participate in such transactions.  When
> either discriminates, this has an effect on third parties whom the law is
> trying to protect.
>
> Also, as Chip pointed out, Braunfeld v. Brown involved
> for-profit businesses, and no-one on the Court thought a free exercise
> claim brought by them was patently frivolous.  And I should also add that
> the unemployment compensation claimants were also engaged in the commercial
> marketplace, selling their own labor for profit.  The Court has never drawn
> a for-profit vs. nonprofit line when it comes to religious freedom claims,
> and though Lee hinted at a marketplace transaction vs. other conduct line,
> the Court hasn’t generally followed such a line (and in any event Lee
> ultimately applied the strict scrutiny test, rather than concluding that
> the marketplace transactions kept that test from being applicable).
> Likewise, to my knowledge lower courts have not drawn such a line.
>
> Eugene
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *James Oleske
> *Sent:* Tuesday, November 26, 2013 6:13 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: "Patently Frivolous" and discrimination
>
>  But Bob Jones University is a nonprofit, which the Supreme Court noted
> at the beginning of its