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.
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
There are many hurdles to a successful RFRA defense to otherwise unlawful sex discrimination (making the contested assumption that denial of coverage is sex discrimination). Congress has already provided both the 702(a) exemption and the bona fide occupational qualification defense for employers; the two generally provide greater protection for religious employers than does RFRA. Though RFRA applies to all government action, including government action under Title VII, most Title VII claims are brought by a charging party after receipt of a right to sue letter, not by EEOC. The Seventh Circuit has held that RFRA does not apply to Title VII claims brought by private litigants. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006). A panel of the Second Circuit held otherwise in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), but a later Second Circuit panel questioned the soundness of that decision. Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). Unless EEOC sues Belmont Abbey, RFRA may not apply for lack of government action. Assuming RFRA applies, Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion for reasons I already noted. The 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, and who therefore may have trouble convincing a judge that a finding of sex discrimination is substantially burdens the free exercise of religion, and that Title VII's does not further the government's compelling interest in the eradication of workplace sex discrimination as defined by the PDA in the least restrictive manner. That's not to say RFRA the scope of RFRA's application to Title VII is clear; perhaps RFRA does apply to private claims of discrimination, a finding of sex discrimination would substantially burden the free exercise of religion, and the government's compelling interest in eradicating workplace sex discrimination as defined to include pregnancy could be carried out in a less restrictive manner. If so, and if denying coverage is sex discrimination, then I agree RFRA will matter. Mike 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 "Vance R. Koven" : I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter wrote: Belmont Abbey might have a better chance with its RFRA argument if it were a religious institution entitled by section 702(a) of Title VII to practice religious discrimination, and if as such an employer, it conditioned employment on foregoing the use of birth control as an expression of religious faith or obedience. But as I understand what I have read of the EEOC proceedings, Belmont Abbey does not limit employment to those whom it defines as the faithful, does not require of its employees that they refrain from using birth control, and may not even be entitled to claim the 702(a) exemption authorizing religious discrimination. It already pays employees money with which they are free to purchase (or not purchase) birth control; it offers them prescription drug coverage as an additional employee benefit, which, like money, they are free to use to purchase (or not purchase) birth control. If Belmont Abbey is forbidden from practicing religious discrimination, then it's hard to make the argument that under RFRA it is entitled to practice sex discrimination. I would think its best argument is the question which has divided the few courts that have considered it, and that is the ques
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter wrote: > Belmont Abbey might have a better chance with its RFRA argument if it were > a religious institution entitled by section 702(a) of Title VII to practice > religious discrimination, and if as such an employer, it conditioned > employment on foregoing the use of birth control as an expression of > religious faith or obedience. But as I understand what I have read of the > EEOC proceedings, Belmont Abbey does not limit employment to those whom it > defines as the faithful, does not require of its employees that they refrain > from using birth control, and may not even be entitled to claim the 702(a) > exemption authorizing religious discrimination. It already pays employees > money with which they are free to purchase (or not purchase) birth control; > it offers them prescription drug coverage as an additional employee benefit, > which, like money, they are free to use to purchase (or not purchase) birth > control. If Belmont Abbey is forbidden from practicing religious > discrimination, then it's hard to make the argument that under RFRA it is > entitled to practice sex discrimination. I would think its best argument is > the question which has divided the few courts that have considered it, and > that is the question of whether denying coverage for prescription birth > control pills is sex discrimination. > > 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 "Vance R. Koven" : > > So for purposes of the law-n-religion analysis, the issue is whether >> Belmont >> Abbey can claim, either under the constitution or RFRA (this being a >> Federal >> matter), that it is entitled to a religious exception. Sticking with RFRA >> to >> avoid the complexities of post-Smith analysis, the government would have >> to >> contend that the prevention of sex discrimination is a compelling interest >> (which for sake of discussion I'm willing to concede). Belmont Abbey would >> then have to respond that since PDA requires coverage for contraception >> *irrespective* of actual sex discrimination as normally understood, the >> failure to provide such coverage on a nondiscriminatory basis (that is, >> because men are equally prevented from obtaining reproductive-health >> benefits--putting aside whether it could "offset" the women-only benefit >> denial with a *different* men-only denial--that would conflict with >> Catholic >> doctrine) makes the PDA proscription merely malum prohibitum and not malum >> in se, which parries the "compelling interest" alleged? If that's so, then >> the government could go back and attempt a standard sex-discrimination >> analysis of the matter without the benefit of the PDA presumption. >> Vance >> >> On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter > >wrote: >> >> The PDA makes denial of health insurance benefits relating to pregnancy >>> sex >>> discrimination without regard to whether an employer denies men coverage >>> for >>> some other condition that affects only men. Denying coverage for a >>> prescription drug that prevents pregnancy, a risk to which only women are >>> exposed, may therefore be sex discrimination under the PDA even if men >>> are >>> not denied coverage for vasectomies. Whether the cost of prevention of >>> pregnancy, as distinct from the health related cost of pregnancy, counts >>> as >>> one of the risks and burdens associated with pregnancy the PDA was >>> intended >>> to relieve women from bearing under employer provided health insurance >>> and >>> other employee benefit programs might better frame the question a court >>> ultimately will have to answer. >>> >>> 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
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Belmont Abbey might have a better chance with its RFRA argument if it were a religious institution entitled by section 702(a) of Title VII to practice religious discrimination, and if as such an employer, it conditioned employment on foregoing the use of birth control as an expression of religious faith or obedience. But as I understand what I have read of the EEOC proceedings, Belmont Abbey does not limit employment to those whom it defines as the faithful, does not require of its employees that they refrain from using birth control, and may not even be entitled to claim the 702(a) exemption authorizing religious discrimination. It already pays employees money with which they are free to purchase (or not purchase) birth control; it offers them prescription drug coverage as an additional employee benefit, which, like money, they are free to use to purchase (or not purchase) birth control. If Belmont Abbey is forbidden from practicing religious discrimination, then it's hard to make the argument that under RFRA it is entitled to practice sex discrimination. I would think its best argument is the question which has divided the few courts that have considered it, and that is the question of whether denying coverage for prescription birth control pills is sex discrimination. 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 "Vance R. Koven" : So for purposes of the law-n-religion analysis, the issue is whether Belmont Abbey can claim, either under the constitution or RFRA (this being a Federal matter), that it is entitled to a religious exception. Sticking with RFRA to avoid the complexities of post-Smith analysis, the government would have to contend that the prevention of sex discrimination is a compelling interest (which for sake of discussion I'm willing to concede). Belmont Abbey would then have to respond that since PDA requires coverage for contraception *irrespective* of actual sex discrimination as normally understood, the failure to provide such coverage on a nondiscriminatory basis (that is, because men are equally prevented from obtaining reproductive-health benefits--putting aside whether it could "offset" the women-only benefit denial with a *different* men-only denial--that would conflict with Catholic doctrine) makes the PDA proscription merely malum prohibitum and not malum in se, which parries the "compelling interest" alleged? If that's so, then the government could go back and attempt a standard sex-discrimination analysis of the matter without the benefit of the PDA presumption. Vance On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter wrote: The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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 "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the c
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
So for purposes of the law-n-religion analysis, the issue is whether Belmont Abbey can claim, either under the constitution or RFRA (this being a Federal matter), that it is entitled to a religious exception. Sticking with RFRA to avoid the complexities of post-Smith analysis, the government would have to contend that the prevention of sex discrimination is a compelling interest (which for sake of discussion I'm willing to concede). Belmont Abbey would then have to respond that since PDA requires coverage for contraception *irrespective* of actual sex discrimination as normally understood, the failure to provide such coverage on a nondiscriminatory basis (that is, because men are equally prevented from obtaining reproductive-health benefits--putting aside whether it could "offset" the women-only benefit denial with a *different* men-only denial--that would conflict with Catholic doctrine) makes the PDA proscription merely malum prohibitum and not malum in se, which parries the "compelling interest" alleged? If that's so, then the government could go back and attempt a standard sex-discrimination analysis of the matter without the benefit of the PDA presumption. Vance On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter wrote: > The PDA makes denial of health insurance benefits relating to pregnancy sex > discrimination without regard to whether an employer denies men coverage for > some other condition that affects only men. Denying coverage for a > prescription drug that prevents pregnancy, a risk to which only women are > exposed, may therefore be sex discrimination under the PDA even if men are > not denied coverage for vasectomies. Whether the cost of prevention of > pregnancy, as distinct from the health related cost of pregnancy, counts as > one of the risks and burdens associated with pregnancy the PDA was intended > to relieve women from bearing under employer provided health insurance and > other employee benefit programs might better frame the question a court > ultimately will have to answer. > > 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 "Vance R. Koven" : > > Whatever else may be right or wrong with Gilbert or the statute, Griswold >> was a constitutional claim based on the flat prohibiting by legislation of >> a >> form of birth control for women, whereas the EEOC finding in Belmont Abbey >> is a matter of what the college will fund as part of its private health >> insurance. Presumably women are still free to obtain contraception on >> their >> own nickel. >> Have we ascertained that the Belmont Abbey insurance policy, and the >> college's internal policy, permitted men to obtain condoms and/or more >> medically-oriented forms of birth control (e.g. vasectomies, spermicides)? >> If so, then there's a live sex-discrimination issue. If not, then the EEOC >> decision may be subject to question. >> >> Vance >> >> On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar >> wrote: >> >> I'm not sure how paul arrives at his characterization of my response to >>> an >>> inquiry of another in which I sketch a possible way a court could go >>> wrong. >>> >>> Nonetheless, it seems to me that even though Gilbert was overturned by >>> legislation, the legislation did not in fact reach the illogic of the >>> court's reasoning, but rather the outcome of that reasoning. >>> While I think that a court that would reason as I hypothesized one might >>> would be wrong in doing so in light of the dialogue between the Court and >>> Congress(see boumediene), I fear I have seen such toturing of laws often >>> enough to not consider such error to beyond the realm of possibility. >>> >>> I guess I don't quite see how a statute based claim with EP overtones >>> would >>> impact a constitutional liberty-based privacy claim, though at times we >>> do >>> cross those sorts of boundaries. >>> >>> >>> Stev >>> >>> Sent from Steve Jamar's iPhone >>> >>> >>> On Aug 15, 2009, at 1:57 PM, Paul Finkelman >>> wrote: >>> >>> >>> ___ >>> 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. >>> >>> >> >> >> -- >> Vance R. Koven >> Boston, MA USA >> vrko...@world.std.com >> >> > > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http:
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
If Belmont Abbey stops providing health care coverage to its employees, it will be because it chose to stop providing it, not because it was forced to do so. If the administrators of the college believe that it is preferable to leave all employees uninsured to prevent the possibility that one of them might purchase birth control pills subsidized by a health insurance plan, then it really doesn't matter whether its motivation is rooted in religious doctrine or the belief that birth control disrupts evolution; either way the administrators make a deliberate choice. That such a choice is one an employer can make and impose on its employees is part of what sets health care in the United States apart from most of the developed world. I leave to a more appropriate thread the discussion of whether that's a bug or a feature. 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 Will Esser : My understanding is that college administration discovered (after a change in insurance providers) that the new insurance policy covered abortion, sterilization, and contraception. Since all three are contrary to Catholic teaching, the college administration immediately requested its private health insurer to eliminate coverage for these items. I'm told that North Carolina law has a specific state exemption which permits a religious employer to provide health insurance which does not cover these items, so as a matter of NC state law, the college was on firm ground. In fact, but for the change in health insurance providers, I do not believe these items would have ever been covered to begin with. (And of course, there is no prohibition on private individuals paying for excluded services on their own; it's just a question of whether a religious employer should be required to pay for services or items which it believes are morally objectionable). At the end of the day, it really creates an interesting dynamic because there is no federal or state law which requires Belmont Abbey to offer priavte health insurance coverage. If there is a holding that Belmont Abbey cannot offer health insurance coverage without covering abortion, sterilization and contraception, then Belmont Abbey will simply be forced to stop offering health insurance coverage for its employees (a result which would more adversely affect staff members, than the faculty who brought the challenge in the first place). Will 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.) --- On Sat, 8/15/09, Michael R. Masinter wrote: From: Michael R. Masinter Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: religionlaw@lists.ucla.edu Date: Saturday, August 15, 2009, 5:51 PM The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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) Quoting "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not,
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
My understanding is that college administration discovered (after a change in insurance providers) that the new insurance policy covered abortion, sterilization, and contraception. Since all three are contrary to Catholic teaching, the college administration immediately requested its private health insurer to eliminate coverage for these items. I'm told that North Carolina law has a specific state exemption which permits a religious employer to provide health insurance which does not cover these items, so as a matter of NC state law, the college was on firm ground. In fact, but for the change in health insurance providers, I do not believe these items would have ever been covered to begin with. (And of course, there is no prohibition on private individuals paying for excluded services on their own; it's just a question of whether a religious employer should be required to pay for services or items which it believes are morally objectionable). At the end of the day, it really creates an interesting dynamic because there is no federal or state law which requires Belmont Abbey to offer priavte health insurance coverage. If there is a holding that Belmont Abbey cannot offer health insurance coverage without covering abortion, sterilization and contraception, then Belmont Abbey will simply be forced to stop offering health insurance coverage for its employees (a result which would more adversely affect staff members, than the faculty who brought the challenge in the first place). Will 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.) --- On Sat, 8/15/09, Michael R. Masinter wrote: From: Michael R. Masinter Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: religionlaw@lists.ucla.edu Date: Saturday, August 15, 2009, 5:51 PM The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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) Quoting "Vance R. Koven" : > Whatever else may be right or wrong with Gilbert or the statute, Griswold > was a constitutional claim based on the flat prohibiting by legislation of a > form of birth control for women, whereas the EEOC finding in Belmont Abbey > is a matter of what the college will fund as part of its private health > insurance. Presumably women are still free to obtain contraception on their > own nickel. > Have we ascertained that the Belmont Abbey insurance policy, and the > college's internal policy, permitted men to obtain condoms and/or more > medically-oriented forms of birth control (e.g. vasectomies, spermicides)? > If so, then there's a live sex-discrimination issue. If not, then the EEOC > decision may be subject to question. > > Vance > > On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: > >> I'm not sure how paul arrives at his characterization of my response to an >> inquiry of another in which I sketch a possible way a court could go wrong. >> >> Nonetheless, it seems to me that even though Gilbert was overturned by >> legislation, the legislation did not in fact reach the illogic of the >> court's reasoning, but rather the outcome of that reasoning. >> While I think that a court that would reason as I hypothesized one might >> would be wrong in doing so in light of the dialogue between the Court and >> Congress(see boumediene), I fear I have seen such toturing of laws often >> enough to not consider such error to beyond the realm of possibility. >> >> I guess I don't quite see how a statute based claim with EP overtones would >> impact a constitutional liberty-based privacy claim, though at times we do >> cross those sorts of boundaries. >> >>
FW: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
I don’t know what “dovetails with the pre-Griswold world” exactly means, but I do know that Steve’s analysis does not remotely “suggest that the court should reverse Griswold.” Griswold, as others have pointed out but as is obvious in any event, was a constitutional decision about whether the government may ban birth control; whether Title VII should be read as barring certain private employer does not bear on whether the court should reverse its constitutional decision in Griswold. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Saturday, August 15, 2009 1:42 PM To: Law & Religion issues for Law Academics Subject: RE: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance If you remember in Conn. it was legal to buy condoms; but not legal for doctors to give women birth control pills or other devices. Seems to me that Steve's analysis dovetails with the pre-Griswold world Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com --- On Sat, 8/15/09, Volokh, Eugene wrote: From: Volokh, Eugene Subject: RE: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "'Law & Religion issues for Law Academics'" Date: Saturday, August 15, 2009, 2:51 PM I'm pretty sure that Steve's argument has no such implications at all. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Saturday, August 15, 2009 10:57 AM To: Law & Religion issues for Law Academics Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance Steve: Your argument here would suggest that the court should reverse Griswold. Moreover, oral contraception is used for other things besides birth control. And when used for birth control is more effective than condoms and does not require the cooperation of men. Indeed, your solution essentially says that women should not control whether they get pregnant but rather it should be left of to the men.. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com --- On Thu, 8/13/09, Steven Jamar wrote: From: Steven Jamar Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "Law & Religion issues for Law Academics" 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 ___ 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
The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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 "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the court's reasoning, but rather the outcome of that reasoning. While I think that a court that would reason as I hypothesized one might would be wrong in doing so in light of the dialogue between the Court and Congress(see boumediene), I fear I have seen such toturing of laws often enough to not consider such error to beyond the realm of possibility. I guess I don't quite see how a statute based claim with EP overtones would impact a constitutional liberty-based privacy claim, though at times we do cross those sorts of boundaries. Stev Sent from Steve Jamar's iPhone On Aug 15, 2009, at 1:57 PM, Paul Finkelman wrote: ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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
Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: > I'm not sure how paul arrives at his characterization of my response to an > inquiry of another in which I sketch a possible way a court could go wrong. > > Nonetheless, it seems to me that even though Gilbert was overturned by > legislation, the legislation did not in fact reach the illogic of the > court's reasoning, but rather the outcome of that reasoning. > While I think that a court that would reason as I hypothesized one might > would be wrong in doing so in light of the dialogue between the Court and > Congress(see boumediene), I fear I have seen such toturing of laws often > enough to not consider such error to beyond the realm of possibility. > > I guess I don't quite see how a statute based claim with EP overtones would > impact a constitutional liberty-based privacy claim, though at times we do > cross those sorts of boundaries. > > > Stev > > Sent from Steve Jamar's iPhone > > > On Aug 15, 2009, at 1:57 PM, Paul Finkelman > wrote: > > >> ___ > 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. > -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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
I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the court's reasoning, but rather the outcome of that reasoning. While I think that a court that would reason as I hypothesized one might would be wrong in doing so in light of the dialogue between the Court and Congress(see boumediene), I fear I have seen such toturing of laws often enough to not consider such error to beyond the realm of possibility. I guess I don't quite see how a statute based claim with EP overtones would impact a constitutional liberty-based privacy claim, though at times we do cross those sorts of boundaries. Stev Sent from Steve Jamar's iPhone On Aug 15, 2009, at 1:57 PM, Paul Finkelman wrote: ___ 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
If you remember in Conn. it was legal to buy condoms; but not legal for doctors
to give women birth control pills or other devices. Seems to me that Steve's
analysis dovetails with the pre-Griswold world
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)
pf...@albanylaw.edu
www.paulfinkelman.com
--- On Sat, 8/15/09, Volokh, Eugene wrote:
From: Volokh, Eugene
Subject: RE: EEOC says Catholic College Discriminated by Removing Contraceptive
Coverage from Health Insurance
To: "'Law & Religion issues for Law Academics'"
Date: Saturday, August 15, 2009, 2:51 PM
I'm pretty sure that Steve's argument
has no such implications at all.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul
Finkelman
Sent: Saturday, August 15, 2009 10:57 AM
To: Law
& Religion issues for Law Academics
Subject: Re: EEOC says
Catholic College Discriminated by Removing Contraceptive Coverage from Health
Insurance
Steve: Your argument here would suggest that the
court should reverse Griswold. Moreover, oral contraception is
used for other things besides birth control. And when used for birth
control is more effective than condoms and does not require the
cooperation of men. Indeed, your solution essentially says that
women should not control whether they get pregnant but rather it should
be left of to the men..
Paul Finkelman
President
William McKinley Distinguished Professor of Law
Albany Law
School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386
(p)
518-445-3363
(f)
pf...@albanylaw.edu
www.paulfinkelman.com
---
On Thu, 8/13/09, Steven Jamar
wrote:
From:
Steven Jamar
Subject: Re: EEOC says
Catholic College Discriminated by Removing Contraceptive Coverage
from
Health Insurance
To: "Law & Religion issues for Law Academics"
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 t
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
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.edu954.262.3835 (fax) --- On Thu, 8/13/09, Steven Jamar wrote: From: Steven Jamar Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "Law & Religion issues for Law Academics" 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
RE: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
I'm pretty sure that Steve's argument has no such implications at all. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Saturday, August 15, 2009 10:57 AM To: Law & Religion issues for Law Academics Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance Steve: Your argument here would suggest that the court should reverse Griswold. Moreover, oral contraception is used for other things besides birth control. And when used for birth control is more effective than condoms and does not require the cooperation of men. Indeed, your solution essentially says that women should not control whether they get pregnant but rather it should be left of to the men.. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com --- On Thu, 8/13/09, Steven Jamar wrote: From: Steven Jamar Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "Law & Religion issues for Law Academics" 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<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
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Steve: Your argument here would suggest that the court should reverse Griswold. Moreover, oral contraception is used for other things besides birth control. And when used for birth control is more effective than condoms and does not require the cooperation of men. Indeed, your solution essentially says that women should not control whether they get pregnant but rather it should be left of to the men. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com --- On Thu, 8/13/09, Steven Jamar wrote: From: Steven Jamar Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "Law & Religion issues for Law Academics" 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
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
The Supreme Court in General Electric v. Gilbert held that the denial of pregnancy benefits was not sex discrimination under Title VII. But Congress came back with the Pregnancy Discrimination Act, which modified Title VII to reverse Gilbert's effect. The article doesn't mention the PDA, but I'd guess that's what's at issue here. The Eighth Circuit in 2007 held the opposite of the EEOC in the contraceptive context (479 F.3d 936) -- that is, it held that the PDA does not require companies to provide coverage of contraception. But the Court along the way cites a number of district court decisions that go both ways. So I guess it's up in the air. I would also wonder about the degree of retaliation here -- I don't know if a letter identifying EEOC claimants is enough of a retaliatory action to create a federal claim under Burlington Northern. Best, Chris __ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 >>> stevenja...@gmail.com 08/13/09 6:43 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 colleges > health coverage plan, according to an EEOC determination. > Contraception, abortion and voluntary sterilization came off Belmont > Abbey Colleges 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 Commissions position that the identity of an individual > who has filed a charge should be protected with confidentiality > during the Commissions investigation, Daniels wrote. By > disclosing Charging Partys name, a chilling effect was created on > Respondents 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 >
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
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.)
EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
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.) ___ 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.
