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Reversed: Supreme Court’s Harris Decision a Setback For Home Care Workers and Child Care Providers

Let’s cut to the chase: Today’s Supreme Court decision [PDF] in Harris v. Quinn is a setback for millions of women working in low-wage jobs. It limits the organizing rights of home care workers and child care providers--two overwhelmingly female and poorly paid groups of workers. Through unionization, these workers have secured better pay, training, and working conditions for themselves—and the seniors, people with disabilities, and children who rely on these workers have benefited from a more stable and qualified workforce. Today’s decision doesn’t mean these workers’ voices will be silenced, but it does mean we have our work cut out for us – and that begins now.

The case involved an Illinois state law that authorized home care workers paid by the Medicaid program to decide, by majority vote, whether to join a union. (There are more details on the Harris case in this earlier post.) These workers provide home health services to individuals needing care, ensuring that people with disabilities and the elderly are able to stay in their own homes and avoid institutionalization, when possible. The workforce is large, often isolated, and turnover is high; allowing workers to form a union to negotiate with the state gives them input into their working conditions. Read more »

Serving Up the Truth About Sexual Harassment, With a Side of Commonsense

Written by Nikki Lewis, Executive Director, DC Jobs with Justice, and Liz Watson, Senior Counsel and Director of Workplace Justice for Women, NWLC

What do you call the person who can make you stay late at work, who decides who works the night shift and who works days, who works the cash register and who cleans the toilets? You call that person the boss. But exactly one year ago today, the Supreme Court said that if the person who directs your daily work harasses you, unless they also have the power to hire and fire you, the strong protections that are supposed to kick in when bosses harass their subordinates do not apply.

Right about now, you might be scratching your head thinking that this doesn’t make any sense. And you would be right. But let us explain how we ended up with this terrible rule and what can be done about it. Read more »

What We Mean When We Talk About "Compromising" Antidiscrimination Laws With Religious Exemptions

While attending a conference on creating religious exemptions to civil rights laws, I noticed a theme throughout: a standard plea for “compromise” to accommodate those with religious objections to antidiscrimination rules. And, although I don’t find arguments for religious exemptions for commercial businesses compelling, “compromise” does sound reasonable. The theory is that each side gives a little to get a little. But what does it really mean to “compromise” on antidiscrimination laws because some have religiously-motivated objections to those rules? Here, it seems that “compromise” means giving in and giving up on full equality.

In a case currently pending before the Supreme Court, the arts and crafts company Hobby Lobby and the furniture manufacturer Conestoga Wood Specialties are seeking to be exempt from covering the full range of FDA-approved forms of contraception in their employee health plans. The companies claim a right to engage in sex discrimination by denying their female employees coverage for certain forms of birth control based on the companies’ religious opposition to this basic health care. 

Should these companies prevail, their female employees will lose out on this important benefit—while the companies continue to cover the range of basic preventive services for their male counterparts. Moreover, because health insurance is a part of an employee’s compensation for work, female workers will see their overall earnings diminish (their male counterparts will not) and still have to pay hundreds of dollars out-of-pocket for this basic health care—and often more for the most effective forms of birth control. Or, because of cost, they will either use a less effective form of contraception or forgo it altogether.  Read more »

The Supreme Court Hears Arguments in the Contraceptive Coverage Cases: Are the Employees’ Voices and Health Needs Being Heard?

Cross-posted from Alliance for Justice.

The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.

The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services. Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage. Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go. What about an owner who has religious objections to vaccinations or blood transfusions? Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief? Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case. Read more »

My Health Is Not Your Hobby

This was just one of the many witty slogans held high on posters at the snow-covered rally at the Supreme Court yesterday. Nearly a thousand supporters came out to tell America that women should be able to make their own decisions about birth control – not their bosses.

As I looked at all those women (and men) standing in the freezing cold, soaking wet but still rallying for hours I couldn’t help but think of the women who weren’t there, who believed it wasn’t safe to speak out themselves -- and I was about to speak for one of them. That, and the fact that it was actually snowing in late March in Washington, DC, may end up being the two things that I’ll most remember about the day.

Inside the Court, Justices were hearing arguments on two cases, Hobby Lobby and Conestoga Wood Specialties, brought by for-profit companies that claim that because of their owners’ religious beliefs they should be allowed to break the law and deny their female employees birth control coverage.

Basically, even though 99% of sexually active women have used birth control, and we finally got a law that guarantees women affordable birth control, a bunch of corporations actually went to the Supreme Court because they want to control women’s health care decisions under the guise of free exercise of religion. Read more »

The Tenth Circuit Should Join the Unanimous Trend Towards Marriage Equality

Last year, the decision in United States v. Windsor represented a huge victory for marriage equality, as the Supreme Court ruled that Section 3 of the Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional. While the Supreme Court ducked the question posed by a companion case of whether a state ban on marriage between same-sex couples violated the Fourteenth Amendment, since Windsor the trend in lower courts has been unanimous: so far, 18 decisions have found these bans on same-sex marriage to be unconstitutional. The Tenth Circuit Court of Appeals is now poised to address the question in Kitchen v. Herbert and Bishop v. Smith, two cases which arise out of bans on marriage between same-sex couples in Utah and Oklahoma, which lower courts struck down. Read more »

Supreme Court Case About Unionizing Home Care Workers Raises High Stakes

The U.S. Supreme Court doesn’t do snow days, apparently. While much of D.C. hunkered down Tuesday for our latest winter storm, the Court went on as usual, hearing oral arguments in a case that could upset years of established labor law. It could leave low-wage workers, overwhelmingly women, who provide home health care services under Illinois’ Medicaid program—and potentially other public employees—without a voice at the negotiating table. Knowing how high the stakes are, I ventured out to listen.

The case, Harris v. Quinn, addresses key questions about the unionizing of in-home care providers paid by the state of Illinois through two Medicaid programs. Here is a boiled-down version of the main issues: First, if a majority of care providers vote in favor of an exclusive bargaining representative (a union), can the state recognize and negotiate with that union? Second, can the providers who voted against unionization be required to pay a “fair share fee,” a payment that goes to cover the administrative costs of bargaining the contract that also benefits them? Read more »

McCullen v. Coakley at the Supreme Court: Buffer Zones, "Protesters," and "Counselors"

“What’s wrong with having everyone take a step back?” Justice Kagan asked yesterday at oral argument in McCullen v. Coakley, a challenge to a Massachusetts law creating a 35-foot “buffer zone” around reproductive health clinics. Here are some thoughts on the argument from inside the courtroom, where I was in the audience.

Taking a step back, the protesters challenging the law argue, undermines their speech which they assert is effective only if they are able to engage women entering the clinic in close, quiet conversations. But do the Free Speech rights of McCullen and other protesters include the right to speak in the particular way they seek to speak? And, what about a woman’s right to safely access a reproductive health clinic?

Massachusetts argues that the law is permissible because it does not target anti-abortion speech; rather, it aims to keep clinic entrances open and accessible. In fact, even employees and clinic escorts are also prohibited from advocating within the buffer zone. And pro-choice activists along with anti-abortion protesters must stand outside the 35-foot buffer zone. Speech may be limited, but only incidentally: the point is to keep clinic entrances clear. Read more »

Today, Supreme Court Considers Law That Protects Abortion Clinic Employees and Patients

Today, the Supreme Court will hear oral arguments in an important case for protecting women’s access to reproductive health services. The case is McCullen v. Coakley, a case challenging a Massachusetts “buffer zone” law. The Massachusetts law simply regulates the conduct of the public by ensuring reproductive health care facilities have a 35-foot radius to keep their doors and driveways unobstructed for patient access. Read more »

Supreme Court to Hear Challenges to Birth Control Coverage Benefit

Today, the Supreme Court decided that it will review two challenges by for-profit companies against the birth control coverage rule, which requires health plans to include coverage for birth control at no cost-sharing. One of the cases was brought by Hobby Lobby, a nationwide chain of arts and crafts stores with over 500 stores and 13,000 employees. The other case was brought by Conestoga Wood Specialties, a company that makes wood cabinets and other wood specialty products and has nearly 1,000 employees. The cases will likely be argued before the Court in the spring.

These are just two of over 40 lawsuits brought by bosses at for-profit companies seeking to impose their religious beliefs on their employees and deny them a critical health benefit. These cases raise big questions, like whether a for-profit corporation is a “person” capable of exercising religious belief and whether requiring a company’s health plan to cover birth control amounts to a “substantial burden” on religious exercise. Read more »