Civil and Human Rights

The Contraception Mandate: Collective Action or Individual Grievance

By William Welkowitz

If an employee needs to be able to do certain things in the workplace or during normal work hours because of a sincerely-held religious belief or practice (such as wearing religious garb or engaging in prayer at certain times during the day), that employee can usually go to human resources and work out a proper accommodation that allows the employee to contribute at a normal level while fulfilling his or her religious tenets.

Similarly, if an employer has an objection to a governmental regulation due to a sincerely-held religious belief, that employer in many cases can work something out with the government that takes the employer out of the process while ensuring that the workplace complies with the regulation. However, what’s an employee to do when an employer doesn’t merely request a religious belief accommodation, but demands to be completely exempted from a requirement based on that religious belief?

This was one of the questions asked, and is still being asked, before and after the U.S. Supreme Court “punted” on the question of the federal government’s accommodation for the Affordable Care Act’s contraception mandate in Zubik v. Burwell, 2016 BL 154895 (2016).

An Evenly Divided Court Passes the Buck

After the U.S. Supreme Court’s decision in the Hobby Lobby case, the federal government issued new regulations outlining how employers with religious objections to the Affordable Care Act’s mandate to provide contraception as part of their employee health-care packages could inform the government of those objections and have themselves taken out of the process when it came to providing the contraception coverage.

Under this new accommodation, the employer must file a form with either the federal government or the insurance company that provides its health care plan, stating its religious objections to providing coverage for contraceptives. At this point, a third party would then step in to provide the contraceptive coverage.

However, several non-profit organizations continued to resist the mandate, saying that the new regulations still made them complicit in providing contraception to employees in violation of their religious beliefs under the federal Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.). These organizations, the Little Sisters of the Poor being the most prominent, filed lawsuits in several federal district courts throughout the country, covering several different federal appeals circuits.

While the majority of U.S. Circuit Courts of Appeal that took up the various cases ruled in favor of the government, the Eighth Circuit ruled in favor of the employers, prompting the U.S. Supreme Court to take up the issue yet again. With the sudden death of Justice Antonin Scalia in February, the remaining eight justices weren’t able to come up with a definitive ruling that a five-member majority could agree to.

In an unusual procedure, the Supreme Court at one point requested further briefing from the parties asking whether it was possible for a compromise to be reached where the mandate to provide women with cost-free contraception could be upheld without requiring notice from the objecting employers. Based on the briefs provided to the justices, they ultimately sent the case back down to the circuit courts so that the parties could attempt to find a solution.

Too Much or Not Enough Accommodation?

David Gans, the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, said in an interview with Bloomberg BNA that the plaintiffs are challenging a “very generous” religious accommodation. “This is a very basic way of accommodating religious objections – you see it all the time in other employment contexts,” Gans said.

He also added that there is a “stark divide” in the ultimate positions of the two sides, stating that the objectors’ claim that the accommodation is not enough to meet their religious objections is “very radical and far-reaching” and has never been accepted historically in American law.

Robin Shea, a partner and employer-side practitioner with Constangy, Brooks, Smith & Prophete, LLP in Winston-Salem, N.C., observed that “the Little Sisters [of the Poor] — by contending that they cannot even sign an ‘opt-out’ form — are taking a relatively hard-line position on the ACA exemption issue that is not being taken by many other religious organizations.”

Unlikely to Affect CBAs, More Possibilities With Grievance Procedures

As to whether the uncertainty surrounding the contraception mandate could potentially affect future collective bargaining negotiations or unionization drives, Shea said that such an impact is unlikely, as the overwhelming majority of employers offer insurance coverage that, as a result of the Affordable Care Act requirements, already includes contraceptives.

She added that the entities that don’t tend to be religious organizations, like the Little Sisters of the Poor, are business entities in sectors of the economy that are less likely to unionize (including Hobby Lobby, a retail chain). “With respect to the Hobby Lobbys of the world, this is a retail employer, and the retail industry has generally not been very conducive to union organization,” Shea said.

Further, she pointed out that the National Labor Relations Board does not exercise jurisdiction over employees of religious organizations “who are involved in effectuating the religious purpose of the organization.”

However, Shea did suggest that an individual employee might have some success (depending on the circumstances) by filing an individual grievance against the employer. Specifically, if a CBA provides for health insurance coverage and the employer violates the CBA for religious reasons, an employee through the union could file a grievance under the procedures in the CBA. “She may also be able to file an EEOC charge or lawsuit alleging sex or pregnancy discrimination because the EEOC has taken the position that failure to comply with the ACA contraceptive mandate is a form of pregnancy discrimination,” Shea added.

Further, she explained that if the employer refuses to bargain about providing contraceptive coverage because of a religious conviction, then the employee could file an unfair labor practice charge alleging refusal to bargain, provided that the NLRB has jurisdiction over the employer.

In a different approach, Gans suggested that an employer’s refusal to provide contraceptive coverage, either directly or indirectly, could be an unlawful imposition of certain religious beliefs or practices upon others. “Employees have a variety of different faiths and this demand imposes the employers’ religious beliefs on their employees,” Gans said.

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