Lately it seems like state courts have had a flood of cases where they have considered curbing rights of women once the issue of sex or pregnancy is raised. In Tennessee, for example, the state’s supreme court will decide whether a minor can be considered an accomplice in her own statutory rape, drawing attention to centuries-old jurisprudence that links evidence of force with evidence of consent and turns on its head the purpose of statutory rape laws to begin with.
Meanwhile in Colorado, a medical malpractice case is drawing attention to the hypocritical position of the Catholic church and fetal personhood. There, a Catholic hospital is being sued in the deaths of a pregnant woman and her twin fetuses. Her surviving spouse argues the hospital and its doctors and employees were negligent when they failed to order a C-section and deliver the twins, even as it was clear his wife was dying. The hospital argues it is not negligent in the deaths of the twin fetuses because those fetuses are not people under the law and the only legal duty the hospital and doctors owed was to the pregnant woman.
Of course, the Colorado case highlights the very problem for women created by fetal personhood laws, and underscores the study recently released by National Advocates for Pregnant Women on the increasingly dangerous relationship between pregnant women and the law. Naturally, Personhood USA flipped out over the study.
There is more news on the legal challenges to the birth control benefit. Washington D.C.-based anti-abortion group American Center for Law and Justice filed another lawsuit challenging the mandate, this time on behalf of two Ohio for-profit businesses and their owners. Both Freshway Foods and Freshway Logistics are owned and operated by Francis Gilardi Jr. and his brother Philip. Both are Catholic and both contend the mandate violates their constitutional and statutory rights. Freshway Foods is a fresh produce processing and packing company that serves 23 states and has 340 full-time employees. Freshway Logistics is a for-hire transport company that has about 55 full-time employees.
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In Pennsylvania a federal judge has dismissed a lawsuit by the Catholic Diocese of Erie challenging the benefit, holding that the claims cannot be brought until after the Obama administration has had a chance to further amend the contraception mandate. This is the tenth of eleven cases by Catholic diocese challenging the birth control benefit to be dismissed by a federal court.
Finally, Texas is going its own way and introducing legislation that would give state tax breaks to business that chose not to comply with the contraception mandate. Known as the “Hobby Lobby” bill, it would essentially create a safe haven in the state for any business that claims a religious affiliation and wants to avoid covering contraception in employee-sponsored health plans.
You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.
Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.
The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”
Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.
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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”
That prohibition on ERISA governing “church plans” is also incorporated into the ACA.
Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.
Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.
At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.
Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.
That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.
Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.
However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.
At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.
Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.
That seems unlikely, though, doesn’t it?
While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.
By staying silent, even for good reasons, we unintentionally perpetuate the assumptions that mental illness equals disruptive behavior, potential violence, and a hostile work environment, because most people aren’t given the opportunity to personally experience a mentally ill person being competent.
It’s delivered with the tone of a compliment almost every time. I don’t seem like the kind of person who has a mental illness: someone broken and unstable, borderline competent at best. Or two. Or three. With a fourth diagnosis pending. I seem capable and intelligent and professional—all words that, according to depictions put forth by society and the media, don’t sync with the phrase “mentally ill.”
Many of us whose conditions don’t require treatment that causes extended work absences, like periodic hospital stays, remain hidden for personal and career reasons. We rightly fear retribution or discrimination at work, and being seen as broken or incompetent in our personal lives. But by staying silent, even for good reasons, we unintentionally perpetuate the assumptions that mental illness equals disruptive behavior, potential violence, and a hostile work environment, because most people aren’t given the opportunity to personally experience a mentally ill person being competent. Instead, they’re left with media and fictional depictions that paint us as dangerous and volatile, thus further incentivizing us to stay hidden.
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If this question were asked by loved ones who wanted to learn what I need, rather than being unhelpful bystanders by asking unnecessary, potentially harmful emotional labor of me, I would respond with kindness. But this is the sort of question asked by everyone from potential partners to employers and contractors who want to know what they’re getting into by inviting me into their lives. When I answer that I have been diagnosed with extreme, disability-level attention deficit disorder (ADHD), dysthymia (intermittent, chronic depression), anxiety, and likely post-traumatic stress disorder, people cringe because that’s more than a mouthful. Even people who incorrectly assume those are all fixable conditions that I can get over or learn to live with think—and say—things like: “Wow, that’s…a lot.”
Having to repeatedly disclose, educate, make promises about our competency, and ask for understanding from those around us are some of the things that are actually a lot for people with mental illnesses. We cannot constantly shoulder this along with our already packed schedules balancing doctors’ appointments, trips to the pharmacy, and tracking medications and side effects. And those are the mere inconveniences (and expenses) for those of us who have access to decent mental health care. The Affordable Care Act reduced insurance discrimination, but has left predictable, sizable gaps in care for many of us, according to the National Institutes of Health and backed up by reporting atThe Washington Post,U.S. News and World Report,USA Today, theNew York Times,Newsweek—name the outlet, it has likely published on it over the last four years.
The hurdles that are more challenging to report on because they are cultural and systemic are the myriad ways disclosing our mental health conditions can affect how we are treated in personal relationships as well as the workplace.
As I dealt with poverty over the years, my friends and family—and even my employers in the service industry—mostly attributed my struggles with timing and economic issues in the country at large. I was committed to the “making it work” life philosophy. I woke up every day and begrudgingly grabbed my bootstraps and pulled till I fell down. People said things like “Oh, she always lands on her feet!”—as though that’s effortless, not a perpetual conscious effort to never burn bridges and be a reliable employee. I maintained my competent reputation, one I depended on to make sure I always had enough work to pay rent. I couldn’t have risked taking time off to see doctors and therapists, even if my insurance before the ACA would’ve covered it.
For a long time, I also didn’t want to be officially labeled “mentally ill.” The reality of a “permanent record” may be overblown by our grade school experiences, but the concept is still very much true thanks to employee reviews, medical records, and the like. Once you’re labeled, you’re labeled. There’s no guarantee, even if you like your current boss, that you’ll like their replacement and you risk co-workers finding out and treating you like you’re broken or possibly dangerous.
The Americans With Disabilities Act (ADA) may require “employers to provide reasonable accommodations” for those of us who are qualified to do a job, but that requires disclosing diagnoses with massive stigma to potential and current employers. It also often requires having a diagnosis that’s recognized as a disability under the law.
The Equal Opportunity Employment Commission (EEOC) guidelines say: “A reasonable accommodation may be obtained for any condition that would, if left untreated, ‘substantially limit’ one or more major life activities, which include brain/neurological functions and activities such as communicating, concentrating, eating, sleeping, regulating thoughts or emotions, caring for oneself, and interacting with others.” However, the diagnoses that come with federal disability status—major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia—are typically more recognizable as conditions requiring accommodations. My “less serious” conditions have been easily brushed off by employers and contractors. Everyone has been distracted, felt sad, and been nervous before a presentation, leading many to think my ADHD, dysthymia, and anxiety are passing rather than constant. Sure, I have easier days and rougher days, but I don’t “get over it” and there’s no magic cure—trust me, I’ve looked for one. It’s a long road to a modest level of wellness and some days it straight-up sucks.
Because my conditions are ongoing, and federal law says I don’t have to experience symptoms while I’m actively being treated for my illnesses in order to receive “reasonable accommodations,” it shouldn’t matter if I never feel anxious or nauseated or dizzy. But, I have yet to have an employer or contractor who cared that the EEOC recognizes the way a cubicle setting around other people or required, unnecessary, near-constant engagement with co-workers causes me to basically feel like I’m coming apart at the seams.
“A condition does not have to result in a high degree of functional limitation to be ‘substantially limiting,’” according to the EEOC. “It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.”
Under this interpretation, I would also seem to qualify for accommodations to mitigate medication side effects that cause about 45 minutes of dizziness in the morning and difficulty focusing even with treatment. When I was working jobs without paid time off, the need for mid-morning breaks to lie down and ride out side effects would have been laughed off. So, instead, I, like many others, stayed hidden.
Eventually, my day-to-day frustrations felt impossible to hide. Talking about my anxiety on Twitter became a coping mechanism. And once I started the process of seeking treatment I realized how complicated and hard it was; I found a lot of relief writing about it openly through the feedback from others who feel less alone, weird, and overloaded with self-blame.
This has gone hand-in-hand with my transition to freelance work. When I’m at home, I can work from my bed and not have much disruption in my schedule. This would be impossible in any typical work environment. I can eat on a schedule dictated by my medications (some have to be taken on an empty stomach, others with food); take a nap if nightmares kept me up; shut off communication to keep from being overloaded; and somewhat control my schedule to make time for doctors’ appointments. I fear new medication side effects less because I don’t have to worry whether or not I’ll be able to drive to or from work, sit up for a full eight- to ten-hour day, or be extremely thirsty. Drinking water constantly also means a stretch of frequent bathroom trips—less of an annoyance at home.
Working from home can’t solve all my problems, though, because I still have to work with and for other people. I can’t tend to every need, for example; I had to reschedule my psychiatrist and therapist last week to write on deadline. Even as a freelancer, I’ve heard plenty of microaggressions and ableist comments: “Why is that taking you so long?”—with no words of appreciation for how much more quickly my neurobiology processes other tasks. I’ve had my need to turn off communication when no tasks were scheduled for one contractor so I could meet other deadlines held against me. For some, having a message app on constantly might not cause problems; for me, it created a perpetual spike in my anxiety.
Still, I was held accountable for someone else’s inability to plan ahead, rather than given an apology for an attempt to interrupt me while I was tending to other work. Because I don’t “seem sick,” and I do good work, I’m expected to go above and beyond to take on tasks that aren’t in my job description or overload myself.
As a consequence of staying hidden, our performance and participation at work and in life suffer even while we manage to “pass” and be seen as “fine” or “normal.” And because we suffer in silence, should any additional complication or symptom—or simply our finally having had enough of dealing with being miserable—lead us to finally seek care, we can have trouble being believed. We experience the ultimate Catch-22: We are seen as just capable enough that we aren’t believed, while being criticized or ostracized when we can’t conform to neurotypical (not affected with a developmental disorder) culture.
This can even bleed over into our doctors’ offices; most screening questions from primary care physicians (still the gatekeepers in our insurance-based medical system) center around symptoms that cause life disruptions. If we have managed too well for too long, no matter how we felt internally, we can be brushed off or receive inaccurate diagnoses. Nearly every conceivable iteration of this has happened to me. I’ve had misdiagnoses, missed diagnoses, revised diagnoses and had to plead my case to get someone—anyone—to maintain my prescriptions after a move while I shopped for a psychiatrist in my new area.
There is no easy fix for these challenges and discrimination; culture change through awareness, education, and workplace trainings will take time and we have to demand them. We need better enforcement of existing EEOC guidelines and ADA law as well as a concerted effort from employers to provide better working conditions. Company-wide flex time, work from home options, and paid personal leave are all policies typically thought of as “family-friendly” that would help everyone and make accommodations largely unnecessary. When everyone can take the time they need, those whose flexibility requirements are tied to a mental illness wouldn’t stand out or be subject to disciplinary action if they chose not to disclose their condition. And as more of those of us who do choose to disclose come forward about our lived experiences, we become a powerful advocacy bloc able to insist on more inclusive, supportive workplace policies.