News Law and Policy

D.C. Council Prohibits Employment Discrimination Based on Reproductive Health Choices

Emily Crockett

Some advocates say the bill could be interpreted to reverse the Hobby Lobby decision in D.C., but the bill's sponsors say it merely protects employees from being unjustly fired.

The Washington, D.C., city council unanimously passed a bill Wednesday that would prohibit employers from discriminating against employees based on reproductive health decision-making—including the decision to terminate a pregnancy.

The Reproductive Health Non-Discrimination Amendment Act of 2014 amends the District’s Human Rights Act, which deals with employment discrimination, to add that an employer cannot discriminate in “compensation, terms, conditions, or privileges of employment” because of an employee’s or a dependent’s “reproductive health decision making, including a decision to use or access a particular drug, device or medical service.”

Some advocates say the bill could be interpreted to reverse the Hobby Lobby decision in D.C. by requiring all employers, including religious employers, to provide coverage for contraception and abortion in their health-care plans.

Anti-choice groups agree with this interpretation and are already up in arms over the D.C. bill, which has not yet been signed by outgoing Mayor Vincent Gray.

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“We certainly did introduce this bill originally in response to the Hobby Lobby decision,” the bill’s sponsor, Councilman David Grosso, told Rewire. “It motivated us to try to extend more protections to employees.”

Grosso said the bill doesn’t actually contradict Hobby Lobby. It doesn’t force employers to purchase a certain kind of insurance or be involved in conversations about contraception or abortion with employees.

The bill only says that a boss can’t fire or retaliate against an employee if, for instance, the boss finds out the employee is using birth control or once had an abortion.

There is no language in the bill that either singles out or grants exceptions to religious employers, and a committee report says that the bill “is not about insurance coverage, but rather about employment discrimination.”

Asked whether the bill was intended to reverse Hobby Lobby, Ben Shelton, legislative counsel for the city council’s judiciary committee, told Rewire that “it was not written to that effect.”

It’s unclear whether, in practice, the bill could be interpreted to affect insurance plans or religious employers.

Gray expressed concerns about the legislation in early December. The council addressed one, that the bill did not apply equally to both genders, with a technical amendment.

Gray’s other concern, that the bill might run afoul of the Religious Freedom Restoration Act, was dismissed by the Council.

Grosso said it “didn’t make any sense” to include an explicit religious exemption clause, as Gray requested, in the new bill because it amends an act that already includes such an exception.

Moreover, Shelton said, the council didn’t like the idea of “handcuffing” the District into one particular legal interpretation when precedent might change.

If Gray doesn’t sign the bill, it will eventually be transmitted to Congress. If he vetoes it, the council presumably has enough votes to override, given that the vote was unanimous.

Congress could theoretically block the measure with a motion to disapprove, but that would have to pass both chambers and be signed by President Obama.

Court challenges are another matter, but the bill’s supporters are optimistic that it will hold up if challenged by anti-choice groups.

The act, Shelton said, is intended only to “protect everyday folks” from being wrongfully terminated, regardless of the religious leanings of their employer.

News Law and Policy

GOP Pushes LGBTQ Discrimination on Pulse Shooting Anniversary

Christine Grimaldi

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government.

On the one-month anniversary of the massacre at the Pulse nightclub in Orlando, Florida, congressional Republicans pushed legislation that would shield individuals and groups that receive federal funds from penalties for discriminating against LGBTQ people.

A U.S. House of Representatives committee Tuesday debated the First Amendment Defense Act (FADA). Republicans have proposed multiple official and unofficial versions of FADA. All of them share a common purpose: Protect recipients of federal dollars that act on their “religious belief or moral conviction” against same-sex marriage or sex outside of marriage. Conservative groups such as the Heritage Foundation have praised FADA for building on broader Religious Freedom Restoration Act (RFRA) and other so-called religious liberty bills. (The legal website Justia breaks down the similarities and differences between RFRA and FADA.)

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government, Democratic lawmakers opposing the bill said at the House Oversight and Government Reform Committee hearing. Employers could even refuse to provide time off under the Family and Medical Leave Act to care for an ill same-sex spouse.

That possibility troubled Jim Obergefell, the plaintiff in the landmark U.S. Supreme Court ruling on marriage equality. “This is not the kind of dignity and respect that the Supreme Court spoke so eloquently of in the decision granting the freedom to marry nationwide last June,” Obergefell told lawmakers.

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If enacted into law, FADA would also empower those with religious objections to be able to turn away LGBTQ people seeking services such as housing or medical care, experts testified before the committee.

Rep. Elijah Cummings (D-MD), the committee’s ranking member, fellow Democrats, and 80 civil rights and other groups petitioned Republicans to reschedule the FADA hearing, to no avail. More than 3,000 faith and clergy last year leaders voiced their opposition to FADA, he said.

“To say that this hearing is ill-timed is the understatement of the year,” Cummings said as he opened the hearing. That evening, House Democrats and the Congressional LGBT Equality Caucus gathered on the capitol steps for a vigil honoring the 49 victims of the Pulse shooting.

Rep. Raúl Labrador (R-IN) introduced the House’s bill (H.R. 2802), and Sen. Mike Lee (R-UT), the identical Senate counterpart (S. 1598). FADA has little to no chance of becoming law this year given President Barack Obama’s increasingly outspoken support for the LGBTQ community, indicating that he would veto any such legislation that somehow managed to advance in the House and Senate. A Mississippi judge recently blocked a similar state law from taking effect.

House Democratic aides provided Rewire with a revised FADA draft that they said Labrador has been circulating since last Friday that goes even further.

Lawmakers and witnesses at the hearing discussed the revised draft, which they said would apply to all businesses—both for-profit and nonprofit. This draft permits discrimination against same-sex and opposite-sex couples except by federal employees acting in the scope of their employment and for-profit federal contractors acting in the scope of a government contract, they added.

David Stacy, the government affairs director for the Human Rights Campaign, the prominent LGBTQ civil rights group, described these exemptions, and others for hospital visitations and medical decisions, as concessions that don’t mask FADA’s underlying discrimination.

“That all being said, the bill has really significant problems that remain,” he said in an interview.

Columbia School of Law professor Katherine Franke underscored that FADA would go beyond permitting discrimination against LGBTQ individuals and include unmarried parents and heterosexual couples.

“A broad reading of this bill would create a safe harbor from penalties associated with an enormous range of behavior that is otherwise illegal or prohibited by federal law and regulation,” Franke said in her testimony before the committee.

Under FADA, she said, the federal government could not deny Title X funding to a health-care clinic that provides family planning services only to patients that can furnish a marriage license. Nor could the government deny a Violence Against Women Act grant to a domestic violence shelter that required residents to pledge their opposition to marriage equality or extramarital relations, she added.

Schools that accept federal funds could fire teachers suspected of having premarital sex, the Huffington Post reported. NARAL Pro-Choice America highlighted the “legislation that lets your boss fire you for having premarital sex (yes, really)” in a scathing memo sent to reporters.

“Are you a single mother whose landlord doesn’t believe in sex outside of marriage? Under this law, your landlord could refuse to house you,” the memo said. “Do you work at a company where your boss doesn’t believe in premarital sex? Under this law, if your boss found out about your private life, they could fire you.”

News Family Planning

House GOP Votes Against D.C. Reproductive Health Bill

Christine Grimaldi

The Reproductive Health Non-Discrimination Act protects employees from being fired for their choices to use birth control, have a baby, or obtain an abortion.

Republicans led the U.S. House of Representatives in a late Thursday vote to repeal a District of Columbia law that protects employees from retaliation over their reproductive health-care choices.

The 223-192 vote occurred on an amendment to the fiscal year 2017 financial services appropriations bill, which subsequently passed the House that night. The amendment’s sponsor, Rep. Gary Palmer (R-AL), claimed that the amendment to repeal the Reproductive Health Non-Discrimination Act (RHNDA) would protect employers’ religious liberty.

Only two Democrats, Reps. Dan Lipinski (IL) and Collin Peterson (MN), voted in favor of the amendment.

RHNDA amends the District’s Human Rights Act, which deals with employment discrimination. It adds that an employer cannot discriminate in “compensation, terms, conditions, or privileges of employment” because of an employee’s or a dependent’s “reproductive health decision making, including a decision to use or access a particular drug, device or medical service.” In other words, the law protects employees from being fired for their choices to use birth control, have a baby, or have an abortion.

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NARAL Pro-Choice America President Ilyse Hogue condemned the vote.

“A woman should never fear being fired for her decision about whether, when, and with whom to grow her family. That decision should be a woman’s alone and not decided for her by an employer or by Congress,” Hogue said in a statement. “Every single person who voted for this should be ashamed, regardless of which side of the aisle you sit on.”

Two dozen Republicans voted against repeal, but they are the outliers in a party that has consistently attacked the law since the Washington, D.C., council unanimously enacted it at the end of 2014. Republicans last year sought to overturn RHNDA through a resolution of disapproval they pushed through the House and another attempt through the budget process.

Rep. Eleanor Holmes Norton (D-D.C.), a non-voting congressional delegate, vowed to again block Republicans at every turn.

“Last year, I was able to remove the harmful rider that blocked RHNDA after it was included in the House bill, and I will be waging another vigorous fight this year,” she said in a statement.

Rep. Nita Lowey (D-NY), the ranking member on the House Appropriations Committee, released a separate statement expressing Democrats’ opposition to the amendment.

“Under the guise of ‘religious liberty,’ this amendment is an unprecedented intrusion into D.C. residents’ personal health choices, and cannot be a part of any final [a]ppropriations law,” she said.