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.

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