Call the denial of contraceptive coverage what it is: discrimination.
In Burwell v. Hobby Lobby, an all-male U.S. Supreme Court majority granted exemptions to “closely held corporations" that refuse to offer contraceptive coverage in employee health plans. In response, many have thrown up their hands, asking, Why should women have any faith in the law if it can’t even protect us from this?
But here’s the thing: It does. Employers who single out contraceptives as undeserving of coverage don’t only violate ethical expectations of gender equality. They also violate federal anti-discrimination law.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex, including enacting policies that, while gender-neutral on their face, disproportionately hurt either men or women. Congress passed the Pregnancy Discrimination Act in 1978 to clarify that it meant for Title VII to protect employees fromdiscrimination based on pregnancy — even though such policies and harassment technically did not single out one sex, just “pregnant people” versus “non-pregnant people.” Under the Pregnancy Discrimination Act, pregnancy discrimination constitutes sex discrimination.
Title VII can apply to not only pregnancy but also the potentiality of pregnancy, so corporations that single out contraceptives while covering other medical care discriminate based on gender. According to a January 2000 Title VII ruling issued by the Equal Employment Opportunity Commission (as well as multiple lower court decisions), the very exclusion the court appeared to authorize in Hobby Lobby constitutes a violation of federal nondiscrimination employment law.
Just last week, in the wake of the Hobby Lobby decision, the EEOCissued new guidance on pregnancy discrimination, reaffirming that excluding contraception from an employer health plan that covers other preventive services amounts to sex discrimination. The Hobby Lobby decision did not address Title VII simply because the court wasn’t asked to. The lawsuit was a challenge from corporations seeking to get out from under the contraceptive mandate, not a discrimination claim by the craft chain’s employees.
Nonetheless, the justices should have considered the anti-discrimination law on the books. By ignoring the discriminatory aspects of the denials, the Hobby Lobby majority was able to argue that the government’s interest in protecting contraceptive access could not sustain the Religious Freedom Restoration Act challenge mounted by the objecting corporations.
However, the government’s interest, as expressed in Title VII and the Pregnancy Discrimination Act, in protecting people who are or have the potential to be pregnant from discrimination could — and should — have been marshaled to tip the scale against Hobby Lobby.
We may still see a successful Title VII challenge to employer insurance policies that deny contraceptive coverage. Just because theAffordable Care Act can’t require closely held corporations to follow its mandate doesn’t mean anti-discrimination laws can’t produce the same result.
It’s important to call the denial of contraceptive coverage what it is: illegal discrimination. The policies in question in Hobby Lobby are not merely the stuff of culture wars. They discriminate against women in violation of a civil-rights law passed half a century ago.