Supreme Court Contraception Ruling a “Minefield” for Employers

As most Americans know, the U.S. Supreme Court recently ruled that certain employers, for religious reasons, don’t need to comply with Affordable Care Act’s mandate that they pay for contraceptive coverage. Burwell v. Hobby Lobby Stores, Inc., No. 13-354, and Conestoga Wood Specialties Corp. v. Burwell, No. 13-356 (hereinafter referenced as “Hobby Lobby”). One need only peruse the headlines to see that the issue is rife with emotions, with CNN saying the Court ruled “against Obama” and a Boston Herald opinion piece calling the decision “a win for faith”.

Justice Ruth Bader Ginsburg, in her dissent, expressed the fear that the Court has “ventured into a minefield” with its ruling. Hobby Lobby at page 35. Indeed, the ruling presents a high risk of misinterpretation by employers; some may believe they now have license to use religion as a factor in their hiring and management practices. While Jennifer C. Braceras, an attorney, calls such an opinion “absurd” in the aforementioned Herald piece, I respectfully disagree.

To be clear, the Supreme Court stated that its ruling “provides no such shield” to employers who unlawfully discriminate against employees. Hobby Lobby at 46. And Massachusetts General Laws Chapter 151B clearly prohibits employers from discriminating on the basis of religion.  Federal law also prohibits religious discrimination.

Here’s the problem: the law is one thing; business practice is another. Not many people, other than lawyers, are going to read a 95-page Supreme Court opinion. Not many people will take the time to understand the nuances of the law. Of course, this is why we have lawyers. But consider that the Supreme Court’s exemption applies specifically to “closely held” corporations. While the definition of “closely held” is up for debate, as the Wall Street Journal points out, it is conceivable that the very businesses which are exempted from the contraception mandate are the least likely to have internal legal counsel to advise them of the following nuance: while certain businesses have religious rights, they are still prohibited from imposing their faith against employees.

And even if a business gets that nuance, the application is more difficult than it seems. It’s one thing to have nondiscrimination policies. It’s another to ensure that all managers are correctly and uniformly enforcing the policies. Don’t wait until you’ve received a discrimination complaint to answer that question. Contact an employment law attorney today to review your management practices before you risk a costly discrimination lawsuit.

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