Did the Obama Administration Just Restart the Fight Over Birth Control Coverage?

For the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) has issued enforcement guidelines to protect the rights of pregnant workers.

Called the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, the guidelines have been years in the making, as federal civil rights laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Americans With Disabilities Act evolved to provide a patchwork of protections.

The bulk of the guidelines update longstanding EEOC policy and set out the fundamentals covered by the Pregnancy Discrimination Act, like the fact that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; the act also requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as other persons similar in their ability or inability to work.

The guidelines explain how the Americans With Disabilities Act’s definition of “disability” could apply to workers with impairments related to pregnancy and clarifies employers’ obligations toward pregnant workers, asserting that employers must give pregnant workers reasonable accommodations like light-duty work on the same terms as they grant such accommodations to other workers with similar temporary restrictions. They clarify that employers may not force pregnant workers who can work to take leave and explains that many pregnancy-related impairments will qualify directly for reasonable accommodations under the Americans With Disabilities Act. The guidelines also make clear that discrimination against breastfeeding workers is covered under the Pregnancy Discrimination Act.

These are all good and important clarifications, especially because the Roberts Court is set to weigh in on the scope of an employer’s duty to accommodate pregnant workers on the job next term, and frankly I think we have reason to be nervous about that.

But buried in the guidelines and detailed, as lawyers do, in a series of footnotes, the EEOC revealed an important next front in the birth control wars:

Depending on the specific circumstances, employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives.

Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. Because prescription contraceptives are available only for women, a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventive dental care, then prescription contraceptives also must be covered.

Hold on. Did the Obama administration just announce, albeit in a very wonky and bureaucratic way, that employers who fail to cover contraception engage in employment discrimination? And did the administration just prop open the door for employees to file Title VII complaints against employers who refuse to cover contraceptives in the wake of the Hobby Lobby decision?

It sure looks that way.

With regard to the Hobby Lobby decision specifically, the EEOC guidelines explain:

This enforcement guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the First Amendment or the RFRA [the Religious Freedom Restoration Act].

Before we get too excited, calling an employer’s refusal to cover birth control employment discrimination isn’t necessarily new. Federal courts have taken a look at the question of whether Title VII and the Pregnancy Discrimination Act prohibit employers from refusing to cover birth control, and before Hobby Lobby at least one federal court reasoned that failing to cover contraception wasn’t employment discrimination because contraception is not “related to pregnancy,” as it is “a treatment that is only indicated prior to pregnancy.” But others ruled that excluding prescriptive contraceptives from employers’ otherwise comprehensive prescription drug plan violated the Pregnancy Discrimination Act. So that means the federal courts are split on the issue of whether failing to cover contraception violates anti-employment discrimination laws. Thanks to the Roberts Court, employers may have a new shield to protect them from complying even if they do violate those laws.

The question of just how far the Hobby Lobby decision will reach is very much an open one, as these guidelines make clear. Can employers use the RFRA to defend against claims that failing to cover contraception constitutes employment discrimination? We won’t know until the lawsuits start, but we will likely find out soon enough.

Justice Alito’s majority opinion in Hobby Lobby insisted the ruling had limited scope, but we saw just how long that lasted. And in case anyone is quick to write off the EEOC’s position here because it is stated in a footnote, consider the footnote in which Alito cites theological law to support the Greens’ legal argument that complying with the Affordable Care Act’s coverage requirement is tantamount to sinful cooperation and thus a substantial burden on their religious beliefs. Not a full week later, the Court extended that logic and granted Wheaton College’s request to be exempt from trying to claim the exemption afforded to religiously affiliated nonprofits because the paperwork required for the exemption itself was too burdensome.

Suing employers for workplace discrimination in the wake of Hobby Lobby is certainly no magic bullet. EEOC complaints can be time-consuming and don’t guarantee a plaintiff even has the ability to later bring a lawsuit, let alone, in this case, have access to equal insurance benefits in the immediate. Then there are the exorbitant costs of litigation, and the risk that dollars spent upfront pursuing claims won’t ever be recovered.

Let’s not even get into the fact that the guidelines confirm insurance plans don’t have to cover abortion, because helping to make abortion affordable remains a political (and therefore legal) impossibility—so even with contraceptive equity, women would still face hurdles in having total and comprehensive reproductive health insurance coverage. Furthermore, with the federal circuits split on how they want to deal with sex- and gender-based discrimination under Title VII, any plaintiffs who could ultimately sue are hardly guaranteed a legal victory.

In other words, there’s a lot of work ahead. But the fact that the guidance takes on directly the issue of contraceptive coverage in the rubble of Hobby Lobby is important and recognizes the discriminatory intent behind the lawsuits challenging the contraceptive coverage requirement.

“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,” said EEOC Chair Jacqueline A. Berrien in a statement following the release of the guidance. “Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”

Coming from an administration that has been shy at times in its defense of the contraceptive coverage requirement, it’s refreshing to see at least this reaffirmation of a policy that is, fundamentally, about workplace equality. Now it’s time make sure the courts see it that way as well.

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  • http://www.myspace.com/btdsloveshack blazintommyd

    Here’s the truth of it http://tmblr.co/ZmumLy1LZTWVg

  • StealthGaytheist

    This is certainly worth keeping an eye on.

  • Nicko Thime

    I certainly hope they did.

  • Arsenio Dallas

    Pragmatically speaking, if an employer senses during a job interview with a woman she might be of the hyper-feminist worldview and make excessive demands, and/or take her employer to court, might not s/he check her facebook, instagram and twitter accounts, etc., and if s/he finds evidence of hyper-opposition to the Hobby Lobby Case, McCullen v Coakley, and other recent court rulings protecting 1st amendment freedoms, and in support of government dependency for nurture and succor, including but not limited to ALL birth control lotions, notions and potions, ceteris paribus, might s/he not decide not to hire her and hire someone else instead who gives the impression she or he will be less militant and litigious? Of course; without ever saying a word about it.

    We now have the 1st amendment, RFRA, Citizens United, Hobby Lobby, UVVA – aka Laci and Conner’s law along with 36 similar state laws, the utter defeat of S1696 in the Democratically-controlled Senate, and large numbers of state restrictions against abortion on demand and without apology which was supposed to be safe, legal and rare but which is in fact lethal to one and sometimes both patients, still legal but immoral, and predicated upon very suspect and weak jurisprudence by Roe v Wade, and actually ubiquitous rather than rare – 1,150,000 per year and over 56,000,000 since 1973.

    America has been served notice that our Highest Court in the land and our Congress will continue to enforce the plain meaning of the Constitution and protect EVERYONE’s rights as contained in the Bill of Rights over against vaginal and uterine politics, favoring some cohorts while disfavoring others.

    • fiona64

      So easy to be an anti-choice male, isn’t it, Arsenio? It’s great to live in a country where you can demand that women take risks that will never affect you, and see our lives and medical decisions voted on, don’t you think?


      • Arsenio Dallas

        Correction: I’m a Prolife Man! I support life, and as a man’s man I protect all life, especially women and our young, in and ex utero. That’s what we do; we don’t go about killing either with IMPUNITY.

        When did God-given pregnancy become a risk? I’m aware that a few pregnancies get diagnosed as “risky pregnancies” but pregnancy per se is not a disease nor malady nor illness that one normally risks one’s long term health or life by becoming; as opposed to cancer or emphysema or mesothelioma or cystic fibrosis or Lou Gehrig’s disease and a host of other maladies born of bacteria or viruses – that do not share our DNA – or genetic abnormalities, and do not result from the conjoining of a male haploid cell with a female haploid cell in a woman’s Fallopian tube to form a new homo sapien with fully human DNA.

        Unlike cancer and the other aforementioned life-threatening illnesses pregnancy – not a risky infirmity but a Reproductive blessing – is 100% preventable by abstinence from the sole human behavior known to result in pregnancy (exclusive of rape which leads to only about 0.3% of all pregnancies): consensual coitus.

        How dumb, ignorant and uneducated do you regard homo sapien women dating back ~45,000 years ago until about 41 years ago? Do you hold your foremothers in contempt who knew different than you and I would argue, better!

        • fiona64

          When did God-given pregnancy become a risk?

          From day one. Do you imagine that this list of *common* pregnancy-related risks is science fiction? http://www.womenshealth.gov/pregnancy/you-are-pregnant/pregnancy-complications.html

          Pregnancy is not a state of wellness.

          pregnancy per se is not a disease nor malady nor illness that one normally risks one’s long term health or life

          The US is #50 in maternal mortality and, frankly, the worst in the developed world. Women die of pregnancy-related complications every day in this country.

          In fact, studies show that abortion is safer than gestation by a factor of 14: http://health.usnews.com/health-news/family-health/womens-health/articles/2012/01/23/abortion-safer-for-women-than-childbirth-study-claims

          My wanted pregnancy nearly killed me 28 years ago, Arsenio. And I will NOT go through that again. If my tubal ligation fails (they can, and do), there will be an abortion so fast that your misogynistic, patronizing head will spin right off.

          Honest to god, I sometimes wish that anti-choice jerks like you would experience for just *two hours* the hyperemesis gravidarum that I experienced for 40 weeks. Maybe then you would shut your piehole about how pregnancy is such a walk in the goddamned park.

        • SoTiredOfPolitics

          So-called “God-given pregnancies” AND normal pregnancies BOTH carry the risk of death or permanent health impairment. So until you, Arsenio, anti-choicer, forced-birther, can assume that risk for every single woman you seek to force to become an unwilling human incubator, you need to keep your beliefs to yourself. Don’t like abortion, don’t have one. And it’s not your choice or business to try to dictate others’ sex lives. And if you want to, that’s just plain creepy. And as far as “killing,” if you ever see someone killing “our young,” call the cops, because that’s illegal.

        • expect_resistance

          Do you think abortion had only existed for 41 years?

          • Ella Warnock

            I absolutely think some of them do. And they think it will just stop if it’s illegal. Just, poof.

          • expect_resistance

            Yeah, like as if feminists in the late 1960s invented abortion. They have no knowledge of the history of birth control and abortion.

          • fiona64

            They also have no knowledge of biology or anatomy. I suspect every one of them of being homeschooled by imbeciles.

          • catseye

            On another blog I subscribe to, I read a post from a brother about how when he was in the Navy, he sent some newbie off looking for a “12-volt fallopian tube….pre-solid state”, and the dumb@$$ went off looking for it without even thinking about it. Goddess, did I laugh my butt off!

        • http://plumstchili.blogspot.com/ Plum Dumpling

          I am pro life so naturally I am pro choice. You come anywhere near my babies, in or out of my uterus, to protect them in real life and I will shoot you like any rabid dog. I would feel bad about the dog.

          • prolifemama

            What if I were protecting your baby from a rabid dog?

          • fiona64

            What if you weren’t a dumbass?

          • http://plumstchili.blogspot.com/ Plum Dumpling

            ProSlaveryMama still has not answered this question:
            “What are you willing to do to my daughters to enforce your antichoice agenda?”

          • vulgarism

            She still hasn’t answered suba either.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            You are right. ProSlaveryMama came in with a bang. She said she was going to ‘debate us respectfully.’ Seen any sign of that?

          • http://plumstchili.blogspot.com/ Plum Dumpling

            What if I hack a loughie in your face?

          • goatini

            Takes a rabid dog to know a rabid dog

        • http://plumstchili.blogspot.com/ Plum Dumpling

          The Asexual must not presume to make rules for the normally sexual. You be abstinent. I will save France.

        • Jennifer Starr

          How dumb, ignorant and uneducated do you regard homo sapien women dating back ~45,000 years ago until about 41 years ago? Do you hold your foremothers in contempt who knew different than you and I would argue, better!

          Abortion has been going on much longer than that, dimwit–try going back about 4000 years or more. And as for our ‘foremothers’–a lot of them died from that thing that you so blithely call a ‘reproductive blessing’. It’s very easy to demand that others take a risk that you know you’ll never have to take yourself, isn’t it?

        • http://plumstchili.blogspot.com/ Plum Dumpling

          ‘How dumb, ignorant and uneducated do you regard homo sapien women dating back ~45,000 years ago until about 41 years ago? Do you hold your foremothers in contempt who knew different than you and I would argue, better!’

          How dumb are you? Abortion was legal and advertised in the newspaper in colonial America. We have a diary from a woman of the period. She aborted with a turkey quill in order to space her pregnancies to two years apart which is optimum for health of the Mother and her children.
          Why don’t you take a flying fuck at a rolling doughnut, you Sexpig.

          • fiona64

            Hell, Lysol used to be advertised, using dogwhistle words, as an abortifacient. http://www.motherjones.com/slideshows/2012/02/when-women-used-lysol-birth-control/lysol-douche-cobweb

          • http://plumstchili.blogspot.com/ Plum Dumpling

            A good read.
            I was 30 when abortion became legal. I remember those days. Girls were kept ‘pure’ by keeping them ignorant. This is the paradise that fetus freaks want to return us to.

          • Ella Warnock

            My mother was ‘scared’ on her wedding night.

            Jebus wept, s-c-a-r-e-d. Of sex. Turns out ignorance isn’t bliss after all.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            Sickening. God bless Sanger. She went to jail for telling women the facts about their bodies and how to use natural contraceptive techniques to control their fertility.
            A sea sponge soaked in a very mild vinegar/water solution is an effective barrier contraceptive. She went to jail for telling women that.
            We have had the vote for 94 years. The lifetime of one woman. The authoritarians and nutball Christians began this war. We have to kick their asses. We will win. We have real blood on the line.

          • Ella Warnock

            Naturally, anti-choicers have drug her name through the mud and made her out to be the villain of the piece. I don’t think they have any idea what she was trying to accomplish, or why.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            They make shit up as they go along. Ever met a smart one?

        • http://plumstchili.blogspot.com/ Plum Dumpling

          ‘When did God-given pregnancy become a risk?’
          Boy, are you stupid. Childbirth is the leading cause of death of young women ages 15-19 in Africa where all is ‘natural.’

          The Talmud, which is ancient, contains this:
          Jewish law not only permits, but in some circumstances requires abortion. Where the mother’s life is in jeopardy because of the unborn child, abortion is mandatory.

          An unborn child has the status of “potential human life” until the majority of the body has emerged from the mother. Potential human life is valuable, and may not be terminated casually, but it does not have as much value as a life in existence. The Talmud makes no bones about this: it says quite bluntly that if the fetus threatens the life of the mother, you cut it up within her body and remove it limb by limb if necessary, because its life is not as valuable as hers. But once the greater part of the body has emerged, you cannot take its life to save the mother’s, because you cannot choose between one human life and another.

        • Ella Warnock

          Since when was pregnancy ‘god given?’

        • lady_black

          Stuff your “god-given pregnancy” someplace, too.

        • Suba gunawardana

          -If pregnancy is god-given, why do we need men at all? Apparently you are redundant to the species.

          -Isn’t disease god-given too? If you ever take any medication at all, you are a hypocrite.

        • goatini

          And female citizens that enjoy full equality don’t require “male protection”. Therein lies the rub that mightily bothers “men” such as this.

        • Sharon Diehl

          My dear idiot Arsenio, pregnancy takes a toll on every organ in a woman’s body. Women die from complications of pregnancy; we suffer from gestational diabetes, preeclampsia, pulmonary hypertension, placental disruption–any number of conditions in which a pregnancy can quickly go wrong…and yes, complications from pregnancy can lead to life long health issues. Sweetie, women can become paralyzed due to childbirth complications; it’s a stress on the spine and pelvis. You’re one ignorant son-a-bitch, honey, no two ways about it.
          Oh, and abstinence is only 99.9% effective, dear. Who knows when your “god” will see fit to impregnate another young virgin, like Mary.

        • vulgarism

          How dumb do you have to be to think that abstinence would ever work.

    • lady_black

      Anyone can check my facebook account, unless I suspend it, which I would do in a heartbeat, and oh, by the way, only my friends can see much of anything.

    • Jennifer Starr

      Ahh, it’s Mr. William J. Green. Somehow I knew that five-dollar word salad looked familiar.

    • lady_black

      Stuff your god someplace.

  • fiona64

    Depending on the specific circumstances, employment decisions based on a
    female employee’s use of contraceptives may constitute unlawful
    discrimination based on gender and/or pregnancy. Contraception is a
    means by which a woman can control her capacity to become pregnant, and,
    therefore, Title VII’s prohibition of discrimination based on potential
    pregnancy necessarily includes a prohibition on discrimination related
    to a woman’s use of contraceptives.

    That’s pretty straightforward.

    • Arsenio Dallas

      Thankfully, RFRA bolstered by and deriving from the 1st amendment trumps all lesser statutes when the latter conflicts with the former. Religious organizations, non- and for-profit that can clearly prove the religious foundation of their institutions, are exempt from violating the tenets of their faith under SCOTUS’ ruling based upon RFRA.

      The great news is that the federal government that is Prohibited from prohibiting the free exercise of religion in all the venues it is exercised may find less restrictive means of confiscating conscientious objecting Americans’ taxes in order to pay for women’s birth control lotions, notions and potions; though this, too, may lead to yet more lawsuits, which Barack Hussein Obama has coming out the wazoo, and has been losing as of late.

      The simple and best solution is for closely held religious employers and prospective female employees to interview their way through these issues and when it becomes apparent to one or both parties that the fit is not going to be good because religion trumps the irreligion of the prospective female employee, an employment contract should NOT be entered into and both parties should keep searching for a good, mutually agreeable fit.

      Current militantly-feminist female employees of religious institutions which, going forward, will be free to exercise their religion and not be forced to supply any types of birth control forbidden by the tenets of their religion demanded by the militant feminists, should be allowed to seek employment elsewhere and leave with an agreed to, if any, severance package.

      • fiona64

        Given that 90 percent of employers in this country are “closely held corporations,” let me sum up your position: “It’s okay to discriminate against women.”

        Oh, and sweetie? Hobby Lobby is not a “religious institution.”

        But thanks for proving once again how easy it is to be an anti-choice male, flapping your pie-hole about things that will never affect you.

        • Arsenio Dallas

          Ooohhhhh, censorship. Doesn’t SCOTUS love that!

          • fiona64

            Are you being censored? No, you are not. What you *are* experiencing is being called out for your absurd display of male privilege.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            Cry a little for us, TurdBreath. We will enjoy that a lot.

      • dancerboots

        You conveniently forgot about Amendment IX in the Constitution or the First Amendment that states Congress shall make no law respecting an establishment of religion…Obamacare did not consider Christian doctrine/beliefs when it was made law and should not..as it should not consider any religious beliefs. The second part …Congress shall make no law prohibiting the free expression of religion…again nothing in Obamacare forces any woman to take birth control…nor is it preventing Hobby Lobby from expressing their religion.
        The First Amendment was to prevent laws prohibiting expressing ones religion but also to protect established religion from enforcing its beliefs on others…A big part of our history and why people came to America…to escape religion enforced on them through laws. Essentially, Hobby Lobby is forcing their religious belief on women employees. The Supreme Court has demolished the First Amendments intent by respecting an establishment of religion even though it plainly states that isn’t allowed in our laws..The Supreme Court went even further and narrowly interpreted the First Amendment…so that other religions could not derive the same respect as Christianity…The five Catholic males on the Supreme Court would have never interpreted the Constitution to respect Sharia doctrine denying health benefits to women.

        • Vanai

          They totally considered Christian dogma in the ACA, though; they gave exemptions for contraception to churches, even though genitoreproductive health doesn’t vanish, and they exempted abortion coverage because of the whining of far right, just like they do every time.

      • SoTiredOfPolitics

        I shall greatly enjoy seeing the Greens and any/all other religious-zealot employers sued for discrimination by women whose doctors have decided that for their particular medical condition, such as endometriosis or PCOS, they need X hormone-adjustment medication – yet the employee cannot afford the retail price of such medication, because the “corporation” can’t “in good conscience” and “for religious freedom reasons” offer a health-insurance plan that covers it. It’s absolutely discrimination to cover hormone-adjustment medication for male employees, such as testosterone supplements or compounded medication, and not do the same for female employees.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          SCROTUS just made a lot of work for themselves and the lower courts. They joined the War on Women.
          The war will be fierce, it will be prolonged and we will win in the end. No quarter.

        • fiona64

          Yep. And now that the corporate veil has been shredded by the Roberts court, they will be able to sue the individuals, not just the corporation. Be careful what you wish for!

      • http://plumstchili.blogspot.com/ Plum Dumpling

        ‘Thankfully, RFRA bolstered by and deriving from the 1st amendment trumps all lesser statutes when the latter conflicts with the former.’
        That will soon be over. Mess with us once, shame on you. Ain’t gonna be any mess with us twice. It ain’t over until it is over.

        ‘The American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center this afternoon announced their withdrawal of support for the Employment Non-Discrimination Act (ENDA), because of the inclusion of a religious exemption in the current version of the bill.

        In a joint statement, the groups said that in light of “the types of workplace discrimination we see increasingly against LGBT people, together with the calls for greater permission to discriminate on religious grounds that followed immediately upon the Supreme Court’s decision last week in Burwell v. Hobby Lobby, it has become clear that the inclusion of this provision is no longer tenable,” because it would prevent the law from having its intended impact: barring discrimination against LGBT people.’

  • crash2parties

    Of course, the SCOTUS could simply rule that discriminating against women is allowed so long as it is due to a corporate person’s owner’s sincerely held religious beliefs…

  • rickgoncher

    Fiona…..You’re right…it is straightforward. And it’s talking about Contraceptives….not Aborticides…….oddly what the Hobby Lobby case was about. Hobby Lobby and others have not denied coverage of contraceptives. In fact, they were covered by the corporation before 0bamacare was invented. Sorry, I don’t see what all the fuss is about. They’re covering contraceptives….not abortions.