Tuesday, July 1, 2014

Gender and Race Issues in Harris and Hobby Lobby

ScotusThe analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward.  There were some interesting facets that they did not discuss that I would like to think through a bit more.

One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly

Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.

To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.

The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?

Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.

Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons? 

These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.




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"lack of contraceptive access"? You're kidding, right? Hobby Lobby had nothing to do with "access." It had everything to do with who pays for four (of twenty) methods which were abortifacients. Stop lying about the decision.

Similarly, Harris (argued by my colleague) was about a brazen scheme to skim from public benefits monies for political allies. Your predictable opinion about the "benefits" of unionization will be put to the test when providers in Illinois and elsewhere exercise their right to vote with their feet and their dollars. And the experience with public employees in Wisconsin demonstrates that it is not shared by those who "enjoy" such "benefits."

Posted by: James Young | Jul 1, 2014 7:48:45 PM

Excellent analysis here as to the impact of Monday's decisions on struggling home health care workers.

Posted by: BoardAgent | Jul 2, 2014 6:12:41 AM


I know that you have a world view different from mine, and I believe you hold those views in good faith and that you advocate policies you believe to be better for the country. I also believe that you believe in the factual assertions you make. Please do not accuse me of bad faith based on your assumptions about me.

I believe that the decision could lead to a lack of contraceptive access for some women. Access is a relative term, and there can be barriers to it without a total bar. Cost and logistics are often barriers to access for different things the same way curbs are barriers to sidewalks. The ACA sought to make access to contraception and other preventive care for women easier by requiring that it be covered without additional cost (more than their contribution to the plan) to employees. To the extent that the Hobby Lobby decision removes coverage for some part of that care, there is some danger that the barriers that exist without mandatory coverage will remain. Even if the government can solve the problem the way the majority suggests, that may involve logistical hurdles for the employees. And the empirical research demonstrates that even small cost and logistical steps have significant public health effects. Also, if the Eleventh Circuit is correct that the government can't even require employers to certify that they won't cover certain care, it seems more likely that the solution will require more on the part of employees.

Finally, you may believe that the four contraceptive methods that Hobby Lobby objected to are abortifacients. That partly depends on what you think an abortion is. Some people believe that these medications and devices prohibit implantation of a fertilized egg in the uterus. Not everyone believes that is an abortion—a termination of a pregnancy. Many (including most doctors) define pregnancy as beginning with implantation of the fertilized egg. Many fertilized eggs never implant as a matter of nature. Even if that is your definition, however, the scientific consensus, based on significant amounts of recent research, is that these methods of contraception work by either suppressing ovulation or interfering with sperm's motility. This is not theory, but observed effects of hormone levels.

Finally, I accept that you truly believe what you say about the statute in Harris. I do not, and I do stand by the events that occurred after the majority of workers voted to be represented and the union bargained. I hope that everything does work out for the best for all of those workers and the state in the wake of the decision, but it's true that I worry about what happens when the union has less support and when the union has to represent only its members and not all of the workers. Still, there may be a very natural division between family members caring for their own and people caring for those who aren't family members. I'd hate to see family members caring for their own entitled to less in "wages" from Medicaid because they aren't part of a larger group with some collective power. Not only would that make their lives more difficult, but it would also have very serious aggregate effects to reinforce women's roles in uncompensated caregiving.

Posted by: Marcia | Jul 2, 2014 11:17:26 AM


I will add only this tidbit. Failure to remain a member of a union cannot be presumed to be disagreement with the union. I meet non-members frequently who tell me they refuse to join, because they believe the union will do everything for them anyways. When pressed, they even admit that it would be terrible for the union to go away. There are others, of course, who don't like or believe in unionism. My point is that when folks quit paying for something--we cannot presume much beyond they do not want to pay.

Posted by: Per Son | Jul 3, 2014 7:45:19 AM

Marcia: So, if government doesn't subsidize my printing press (or force someone else to pay for it), it's a "barrier" to my exercise of a constitutional right? Too thin. I suppose if we change the meaning of ordinary words sufficiently, we can justify anything.

And "Per Son," I'll take you at your word on that, but in 25 years of representing nonmembers forced to subsidize unions, I've yet to meet someone such as you describe. Perhaps I will some day, but current trends are not promising. Of course, the answer to that problem is members-only bargaining, something that you and I both know is not on the agenda of union leaders ... and won't be anytime soon.

Posted by: James Young | Jul 7, 2014 5:45:54 PM

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