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In Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), the Supreme Court held that the so-called contraceptive mandate of the Patient Protection and Affordable Care Act (ACA) violated the Religious Freedom Restoration Act (RFRA). After finding that for-profit corporations are “persons” under the RFRA, the Court proceeded to declare that the ACA’s regulatory requirement that insurance benefits offered to employees include contraceptive coverage burdened a company’s free exercise of religion in a manner that exceeded the RFRA’s “least restrictive means” requirement. Id. at 2768, 2775, 2780.
Leaving aside the questionable means by which the Court reached its decision in Burwell, one thing the Court neglected to address was the manner in which this newly established right of a legal fiction to practice religion impacts the rights of employees under well-established anti-discrimination statutes. See, e.g., Title VII, 42 U.S.C. § 2000e et seq. (prohibiting discrimination against employees on the basis of race, color, religion, sex, and national origin); Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (prohibiting discrimination on the basis of disability); California Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq. (prohibiting discrimination against California employees based on a more expansive list of protected categories than Title VII). After allowing employers to use religion as a basis for withholding contraceptive coverage from its employees, the Court did not conclude that a corporation’s exercise of its religion trumped the right of employees to be free from discrimination in the workplace.
Surely the Court is not suggesting that a corporation whose religion teaches Anglo-Saxon dominion is permitted to flout Title VII’s prohibition on racial discrimination in its hiring processes. If a corporation refused to accommodate disabled employees because its religion taught that the disabled are demon-possessed, it would not be exempt from the ADA. Nor would a California court enforcing the FEHA accept the argument that a corporation’s religious belief in “traditional marriage” exempts it from the statute’s bar on sexual orientation discrimination. Thus, it only follows that policies created on the basis of a corporation’s religious beliefs would be equally impermissible if proved to have a disparate impact on a protected class of employees.
Burwell presents just such a situation. It is a foregone conclusion that the contraceptives at issue were the types of contraceptives used by female employees. The Court dealt exclusively with so-called “abortifacient” drugs, the “morning after” pill, IUDs and other female contraceptives. Meanwhile, the word “condom” does not so much as make an appearance in the majority opinion. When Hobby Lobby decided that the requirement to provide insurance plans that include contraceptive coverage violated its religious freedom, the impact of that decision fell largely, if not exclusively, on its female employees. In fact, Hobby Lobby has continued to cover male contraception (vasectomies) even after the Burwell decision.
In California, the FEHA prohibits employment discrimination by way of two different theories. The first, disparate treatment, requires that the victim show that her employer intentionally discriminated against her because of her membership in a protected category. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000). Based on the facts that we know about corporations who decline to provide contraceptive coverage on religious grounds, this theory is of limited usefulness here. On the other hand, the theory of disparate impact discrimination does not require that a victim of discrimination prove an employer’s discriminatory motive. Rosenfeld v. Abraham Joshua Heschel Day School, Inc. 226 Cal. App. 4th 886, 893 (2014).
To prove disparate impact, a plaintiff need only show that her employer has a “facially neutral” employment policy or practice, which has “no manifest relationship to job requirements,” yet nevertheless has a “disproportionate adverse effect” on the protected class of which she is a member. Id. Once disparate impact is shown, the burden then shifts to the employer, who may only escape liability if it successfully proves that “any given requirement [of the discriminatory policy] [has] a manifest relationship to the employment in question.” Id. (quoting Connecticut v. Teal, 457 U.S. 440, 446-47 (1982)). Absent such a “manifest relationship,” that employer is liable for discrimination – both under the FEHA and Title VII. See Connecticut, 457 U.S. at 446-47 (explaining the elements of the disparate impact theory of discrimination under Title VII).
First, by invoking the RFRA as a basis for denying contraceptive coverage in their benefits, companies like Hobby Lobby effectively admit that the purpose of their policy has “no manifest relationship to job requirements.” See Rosenfeld, 226 Cal. App. 4th at 893. To the contrary, the stated purpose of such a policy of denying contraceptive coverage is to assert the corporation’s right to practice its purported religious beliefs.
Second, as discussed above, the lion’s share of contraceptives at issue when company’s invoke their religious rights under the RFRA are those which would be taken by female employees. Even if a company were to go a step further than Hobby Lobby and elect not to cover vasectomies for male employees, the impact of such a denial of coverage would nevertheless fall disproportionately on female employees. Such a policy forces female employees to bear the out-of-pocket costs for contraception, which, as Justice Ginsburg noted, are hardly minor. Burwell, 134 S. Ct. at 2800 (J. Ginsburg, dissenting) (noting that “the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage”). But the costs do not end there. In addition to being forced pay out-of-pocket costs for contraception, women who cannot afford to pay for such contraception will be left at increased risk of several costly conditions. While the most obvious risk is pregnancy and the additional financial burden associated not only with the pregnancy itself but in raising a child, financial barriers to contraceptive coverage leave women at risk in a host of other ways. Other medical benefits of contraceptive care include reduced risk of ovarian and endometrial cancer, reduced cramping and pain associated with irregular menstrual cycles, relief from polycystic ovarian syndrome (PCOS), and relief from endometriosis – just to name a few. These costs are wide-sweeping, and hardly limited to the financial. The emotional toll of being unable to afford contraception is hardly minor, nor is the toll of otherwise preventable pain and risk of disease.
Third, as the first point already underscores, Hobby Lobby and others who follow its lead will be hard-pressed to carry their burden of showing a “manifest relationship” between its policy of denying contraceptive coverage and the requirements of the job. See Rosenfeld, 226 Cal. App. 4th at 893. By invoking the RFRA as its basis for denying contraceptive coverage, these companies admit that such a policy has nothing to do with the requirements of the employees they hire.
During oral arguments in Burwell, Justice Kagan asked Hobby Lobby attorney Paul Clement what would happen if corporate employers invoked the RFRA to argue that anti-discrimination laws, family leave requirements, and prohibitions on child labor violate their religious rights. Clement blithely replied that since “very few” such cases have ever arisen, such a scenario should not deter the Court from ruling in Hobby Lobby’s favor. What neither he nor Justice Kagan seemed to realize, however, is that Burwell was precisely that case.