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: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
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"I do not at all resent criticism, even when, for the sake of
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Winston Churchill, speech to the House of Commons, 1941
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