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Whiplash: Post-Hobby Lobby, What Did the Supreme Court Just Do In the Wheaton College Case?

Posted by Hillary Schneller, Fellow | Posted on: July 10, 2014 at 10:01 am

Just as we were trying to figure out what last Monday's Supreme Court’s decision in Hobby Lobby wrought, the Court added yet another layer of confusion late Thursday afternoon when it issued an order that appears to question one of its main premises in its Monday decision. 

Hours after a five justice majority issued its decision in Hobby Lobby allowing for-profits like Hobby Lobby to get out of including birth control in their health insurance plans, Wheaton College filed an emergency application with the Supreme Court so that it, too, could get out of including birth control coverage in its health plan. 

But Wheaton College is already eligible for an accommodation that allows non-profits that hold themselves out as religious to sign a form and opt out of providing birth control coverage. Still, Wheaton pushed all the way to the Supreme Court to stop even this accommodation. Why? Because, under the accommodation, Wheaton's employees and students will still get birth control coverage (just not through Wheaton's health insurance plans). A majority of the Supreme Court granted Wheaton temporary relief [PDF] on the condition that they notify the Department of Health and Human Services (HHS) — instead of their insurance company and TPA as required in the accommodation — of their religious objection to contraceptive coverage. 

Why does Wheaton lead to more questions than answers? Fortunately, Justice Sotomayor lays that out for us in plain English in her fierce dissent, which the two other female justices joined. 

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Rewriting Hobby Lobby: If Women Were People, Birth Control Was Health Care, and Sex Discrimination Was Discrimination

Posted by Hillary Schneller, Fellow | Posted on: July 08, 2014 at 10:50 am

Where are the women in Justice Alito's opinion for the majority in Hobby Lobby? In a decision that has so much at stake for women — and, indeed, seems to set up different  rules for when reproductive rights are at stake — the rights and interests of women were absent. Instead, the rights and interests of for-profit corporations — their religious liberty, their economic interests, and their personhood — were front and center. 

One sentence in particular struck me as eerily familiar and, indeed, infuriating: "The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation." Just over twenty years ago, in the Court's 1992 decision in Planned Parenthood v. Casey, it declared something similar but also oh so different: "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." (Justice Ginsburg actually begins her dissent with this quotation, reinforcing the disconnect between majority and the dissent as to the central concerns in this case.) Justice Alito's perhaps unintentional paraphrase of the Court's prior opinion is stunning. 

That led me to do a little rewriting to show the disturbing flip in the majority's understanding of women's rights and corporate rights.

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The Hobby Lobby Majority Opinion: It Can't Be Sex Discrimination If Women Aren't in the Picture

Cross-posted from Alliance for Justice

The majority opinion in Hobby Lobby erases women from the picture altogether. In a decision that is squarely about women's health and equality, the male justices in the majority refuse to acknowledge the centrality of women. And in evidencing greater concern for protecting corporations from discrimination than in protecting women from discrimination, the majority opinion creates a hierarchy of discrimination where women are at the bottom (if they even merit consideration at all). 

To begin with, Justice Alito's opinion for the majority barely mentions women. As the Washington Post reported, the opinion uses the word "women" or "woman" a mere 13 times in 49 pages. Closer reading of the majority decision makes clear that seven of those mentions were either because the majority was refuting Justice Ginsburg (and her use of "women"); summarizing the government's position (and its use of "women") or describing the birth control coverage requirement (a simple recitation of fact). 

That leaves precisely six instances in which the majority — on its own — mentioned the word "women." There are two possible explanations. Both are troubling. 

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Women Gain 158,000 Jobs in June and Unemployment Rate Drops, But…

Posted by Lauren Frohlich, Fellow | Posted on: July 03, 2014 at 01:43 pm

Overall, the story that came out of today’s jobs report from the Bureau of Labor Statistics is a positive one. The economy added 288,000 jobs in June and 158,000 of those jobs (54.9 percent) went to women.

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Women’s Rights are No Joke! The Top 5 Things to Know About Women and the Civil Rights Act

Posted by Michaela Olson, Intern | Posted on: July 02, 2014 at 02:31 pm

Fifty years ago today, President Lyndon B. Johnson signed the landmark Civil Rights Act of 1964 into law. It banned race discrimination by recipients of federal funds, helping to advance school desegregation; it prohibited race discrimination in public accommodations; and—crucially—it banned employment discrimination based on race, color, national origin, religion and sex.  

As we look back on this critical anniversary for civil rights, we have a prime opportunity to remember the ways in which the Act influences and was influenced by women.

  1. Women’s rights should never be a joke, but they were a laughing matter on the floor of Congress when Representative Howard Smith of Virginia suggested adding sex as an additional basis on which to prohibit employment discrimination, a proposition that seemed hilarious to many of his colleagues. Smith, a southern Democrat, was a staunch segregationist, and included women’s rights as a ploy to kill the entire civil rights bill.
  2. Representative Martha Griffiths of Michigan was integral to the inclusion of women as a protected class. After Smith mockingly introduced the idea, Griffiths fought to lobby other representatives to support it, and wound up triumphing.
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Title VII at 50: Then and Now

Posted by Lauren Khouri, Fellow | Posted on: July 02, 2014 at 01:48 pm

Today marks the 50th anniversary of Title VII of the Civil Rights Act of 1964. When President Lyndon Johnson signed the legislation into law on July 2, 1964, for the first time in the nation’s history, federal law prohibited employment discrimination based on race, color, religion, sex, and national origin.

Title VII has opened up a world of opportunity for women in the workplace. In 1964, women made up only 35 percent of the workforce. Pregnant workers were often kicked out of the workplace the moment they started showing. Women were limited to certain occupations based solely on the fact that they were women. Today, women make up half of the workforce and 40 percent are sole or primary breadwinners for their families.

Despite tremendous progress, there is still a long way to go. For many women, particularly women working in low-wage jobs and women of color, discrimination remains an all too real reality in the workplace. Pregnant workers who have a medical need for temporary modifications in job policies or duties in order to continue working safely through their pregnancies are often denied these accommodations and forced out of their jobs instead, even when employers are already providing accommodations to workers who need them because of disabilities or injuries.  Women working in the same job as men are still paid less based on the false assumption that women do not “need” fair wages, because they do not have breadwinning responsibilities.

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The Minimum Wage Goes Up in D.C. and California Today

Posted by Katherine Gallagher Robbins, Senior Policy Analyst | Posted on: July 01, 2014 at 01:43 pm

Good news for minimum wage workers in Washington, D.C. and California—they just got a raise.

In D.C. the minimum wage increased to $9.50 per hour, up from $8.25. It is scheduled to hit $11.50 per hour in July 2016 and increase with inflation after that.

This increase is good news for women, who are about six in ten minimum wage workers in the District. And while $9.50 per hour isn’t nearly enough, a mom with two children who works full-time, year-round for the minimum wage now, finally, makes enough to be above the poverty line.

Unfortunately not all minimum wage workers in D.C. can celebrate today—the cash wage for tipped workers was not raised by in the legislation passed last January, meaning the cash wage for tipped workers in D.C.—about half of whom are women—remains a shockingly low $2.77 per hour.

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Keeping Pregnant Workers on the Job Unanimously Carries the Day in Delaware

Posted by Emily Werth, Fellow | Posted on: July 01, 2014 at 11:53 am

Earlier this month I was thrilled to be present as the Delaware Senate unanimously voted in favor of S.B. 212 — the state’s version of the Pregnant Workers Fairness Act (PWFA). And yesterday the state House of Representatives followed suit in another unanimous vote on the bill. Once the Governor signs this landmark piece of legislation, Delaware will become the 13th state to provide for workplace accommodations for at least some pregnant workers.

Many women can continue working safely throughout their pregnancies, but some women find that at some point during pregnancy certain job activities — things like lifting, bending, or standing for long periods — can begin to pose a challenge. Many of these women could continue to work without risk to themselves or their pregnancies with slight job modifications. But too often employers deny pregnant workers such modifications, even if they would provide similar accommodations to workers with temporary disabilities — and force women to make an impossible choice between the health of their pregnancies and their jobs.

That is where Delaware’s PWFA bill comes in. It will ensure that pregnant women can continue to do their jobs and support their families by making it unmistakably clear that employers have to grant reasonable accommodations to women who are experiencing medical limitations as a result of pregnancy, childbirth, and related conditions, unless the accommodation would pose an undue hardship for the employer.

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