Washington Markup

Court’s Ruling to Allow Employer to Discriminate Out of Step; Threatens Women’s Health

By Sarah Lipton-Lubet, ACLU Washington Legislative Office & Brigitte Amiri, ACLU Reproductive Freedom Project at 4:30pm

A federal court in Colorado today put a temporary halt on the implementation of the Obama administration’s contraceptive coverage rule, with respect to one company. The contraceptive coverage rule requires insurance plans to cover contraception and stop routinely discriminating against women. The decision, if upheld, could pave the way for businesses to use their owners’ religion as an excuse to discriminate. 

Here’s what happened, in a nutshell: Hercules Industries is a manufacturer of heating, ventilation, and air conditioning products that employs 265 workers. It argued that the contraceptive coverage regulation violated the company’s religious liberty because its owners are opposed to the use of birth control. Two similar lawsuits have been filed by other businesses, one in Michigan and one in Missouri. 

Businesses exist to make money through commercial activity. By definition, their purpose is profit, not religious exercise. And for decades, the Supreme Court has recognized that entering into commercial activity means accepting that your faith cannot be imposed on those you employ. But Hercules Industries seeks to upend that common-sense rule. In its place, it proposes a theory that would let a business owner’s beliefs trump protections designed to safeguard workers – a radical break from our laws as we know them.

First and foremost, the court’s acceptance of Hercules Industries’ arguments undermines the health and equality of the 265 employees (and their spouses and dependents) who will now – temporarily – be denied the health care benefits that medical experts have determined are essential for women’s welfare. In a Hercules Industries world, your boss could also decide that you shouldn’t have health insurance for vaccinations or blood transfusions – despite the presence of laws to ensure that you have coverage for such care. And it doesn’t stop there. 

Federal laws exist to protect Americans from numerous harms. Occupational safety and health standards safeguard workers from dangerous workplaces. Civil rights laws prevent business from discriminating against you because of your race or gender. Equal pay laws prohibit companies from paying women less simply because they are women. These protections could be at risk from the next Hercules Industries, and have, in fact, been challenged in the past by restaurants and schools claiming that religion gives them a right to discriminate. That would mean an America where any one of us is subject to the dictates of our boss’ religion. 

As the Department of Justice explained “[t]he government is aware of no case in which a for-profit, secular employer with Hercules Industries’ characteristics prevailed” on this sort of claim. U.S. District Court Judge John Kane’s decision parts ways with basic precedent and our nation’s fundamental approach to religion and equality.

Luckily, this was just one decision, and a temporary one at that. The courts that have heard cases on similar previous laws – such as the high courts of both California and New York – have rejected these claims. We trust other courts will follow their lead.

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