Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Hobby Lobby’

Massive grocery chain is denying HIV prevention drugs to its employees — and it won’t explain why

Wednesday, January 31st, 2018

Publix, a massive grocery store chain across the southern U.S., is refusing to provide its employees coverage for the HIV-prevention medicine known as PrEP. According to a new report from TheBody.com, a Publix employee filed multiple appeals to have his PrEP prescription covered, but the company repeatedly refused, and the insurance company indicated it was because Publix did not want the medication covered.

PrEP (pre-exposure prophylaxis) is a daily pill that people who are HIV-negative can take that reduces the risk of contracting HIV by more than 90 percent. It has massive potential to help reduce infection rates. Last year, for example, clinics in London reported noticing a significant drop in new HIV infections among gay men, speculating that it was because many were taking PrEP. In the U.S., PrEP use has increased significantly in major cities, but less so in other parts of the country — particularly the South, where Publix operates. North Carolina, Georgia, and Florida (where Publix is based) ranked in the top ten states with the highest number of HIV diagnoses in 2016.

Publix’s refusal to cover PrEP was first reported back in 2016, but to this day, the company refuses to publicly explain why it denies coverage. It offered TheBody.com a brief statement describing its health plans as providing “generous medical and prescription coverage” and noting that “there are numerous medications covered by the plan used in the treatment of HIV.”

With no explanation available, many advocates are speculating that the company is imposing its moral authority, not unlike Hobby Lobby refusing to cover contraception for its employees. Cost doesn’t make sense as an explanation, because it would cost Publix far less to cover PrEP than it would the medications necessary if someone were to contract HIV.

The company is known for its conservative values. Its political action committee donates significantly more to Republican candidates than Democratic candidates, and CEO Randall Jones likewise favors Republicans with his donations.

Publix refuses to participate in the Human Rights Campaign’s Corporate Equality Index, which scores businesses on how they treat their LGBTQ employees and customers. It is conspicuously one of the only companies in the Fortune 1000 not to participate. In 2013, a company spokesperson reportedly claimed, “We are inundated with survey requests… and actually participate in very few due to the volume.” There have been, however, multiple reports of anti-LGBTQ discrimination at Publix stores.

Publix has 1,169 stores across seven states, employing some 188,000 workers.

This article was originally published at ThinkProgress on January 30, 2018. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org

The Right To Birth Control Just Won Its Most Significant Victory To Date In A Post-Hobby Lobby Case

Tuesday, June 23rd, 2015

Ian Millhiser Judge Jerry Smith is a deeply conservative judge. He once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. He’s a reliable vote against abortion rights. And he once described feminists as a “gaggle of outcasts, misfits and rejects.”

So when Judge Smith writes an opinion protecting women’s access to birth control, even when their employer objects to contraception on religious grounds, that’s a very big deal.

East Texas Baptist University v. Burwell is a consolidated batch of cases, handed down on Monday, involving religious employers who object to some or all forms of birth control. These employers are entitled to an accommodation exempting them from federal rules requiring them to offer birth control coverage to their employees. Most of them may invoke this accommodation simply by filling out a form or otherwise informing the federal government of their objection and naming the company that administers their employer health plan. At this point, the government works separately with that company to ensure that the religious employer’s workers receive contraception coverage through a separate health plan.

Several lawsuits are working their way through the federal courts which raise the same legal argument at issue here. In essence, the employers claim that filling out the form that exempts them from having to provide birth control makes them complicit in their employee’s eventual decision to use contraception, and so the government cannot require them to fill out this form. So far, every single federal appeals court to consider this question has sided with the Obama administration and against religious employers who object to this accommodation.

Few judges on any court, however, are as conservative as Judge Jerry Smith, a Reagan appointee to the United States Court of Appeals for the Fifth Circuit whose law clerks frequently go on to clerk for the most conservative members of the Supreme Court. Nevertheless, Smith makes short work of the claim that the fill-out-a-form accommodation burdens religious liberty.

The federal Religious Freedom Restoration Act (RFRA) provides that the federal government “shall not substantially burden a person’s exercise of religion” except in limited circumstances. Applying this language, Smith writes in a unanimous opinion for a three-judge panel that “[t]he plaintiffs must show that the challenged regulations substantially burden their religious exercise, but they have not done so.”

The crux of Smith’s analysis is that the plaintiffs in these cases object to birth control, but nothing in the law requires these plaintiffs to do anything whatsoever involving birth control. Rather, their only obligation, if they do not wish to cover birth control, is to fill out a form or send a brief letter to the federal government — and neither of those things are contraception.

“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” Smith explains. “Instead, the acts that violate their faith are those of third parties.” Specifically, the plaintiffs object to the federal government working with an insurance administrator to provide contraception to certain workers. But the law does not “entitle them to block third parties from engaging in conduct with which they disagree.”

Indeed, Smith writes, if the plaintiffs in these cases were to prevail, it could lead to absurd challenges to basic government functions. “Perhaps an applicant for Social Security disability benefits disapproves of working on Sundays and is unwilling to assist others in doing so,” Smith explains. “He could challenge a requirement that he use a form to apply because the Social Security Administration might process it on a Sunday. Or maybe a pacifist refuses to complete a form to indicate his beliefs because that information would enable the Selective Service to locate eligible draftees more quickly. The possibilities are endless, but we doubt Congress, in enacting RFRA, intended for them to be.”

Smith’s opinion, in other words, should offer a fair amount of comfort to women whose employers seek to cut off their access to birth control coverage. Though there are signs that at least some of the justices would like for the plaintiffs in cases like East Texas Baptist to prevail, the fact that a judge as conservative as Jerry Smith rejected their legal arguments suggests that a majority of the Supreme Court will not embrace these lawsuits.

This blog was originally posted on Think Progress on June 22, 2015. Reprinted with permission.

About the Author: The author’s name is Ian Millhiser. Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Is Perelman Jewish Day School the Hobby Lobby of Union-Busting?

Monday, March 31st, 2014

Bruce VailA small group of teachers in Philadelphia are finding their union rights under attack on questionable religious grounds, much the same way that women across America found their right to healthcare assaulted this week in the Supreme Court’s Hobby Lobby case.

Some 55 teachers at the Perelman Jewish Day School, which has two K-5 campuses in the Philadelphia suburbs with some 300 total students, were stunned March 24 to be notified that the school’s board had decided to cease recognizing their union. The teachers were told that the current union contract will be allowed to expire and they will be required to negotiate individual one-year contracts with school administrators. Normally, revoking union recognition would be considered a blatant violation of collective bargaining law. But board vice president Aaron Freiwald says the action is justified by a Supreme Court decision. The case he’s likely referring to is the obscure 1979 NLRB v. Catholic Bishops of Chicago, in which the Supreme Court found that religious schools are exempt from certain provisions of the National Labor Relations Act.

The teachers, some of whom are observant Jews themselves, are not going to meekly allow their union to be dissolved, says Barbara Goodman, the communications director for the AFT Pennsylvania, the state chapter of the American Federation of Teachers and the union with which the Perelman Jewish Day School Faculty Association Local 3578 is affiliated.

Members held an emergency meeting March 27, Goodman says, and unanimously passed a resolution to fight for their union. It read:

We categorically reject the terms and conditions in the materials that were handed to us, and we authorize all of our local, state and national officers to pursue all legal means to have this action reversed and to return to the bargaining table, where we can negotiate in good faith a contract that is good for the students and the teachers.

Equally offended by the board action is Jesse Bacon, whose daughter is a student at the exclusive private school, where tuitioncan be as high as $20,000 a year. Bacon tells In These Times that he’s firmly on the side of the teachers and regards any claim to religious legitimacy for the board’s high-handed action as bogus and offensive. “This is just rank hypocrisy. … It makes my blood boil,” he says.

Hypocritical or not, the teachers just may have a real legal fight on their hands, says Dan Kovalik, who is on the legal staff at the Pittsburgh headquarters of the United Steelworkers (USW). The little-known Catholic Bishops decision does allow religious schools to claim exemption from the NLRA, he says, although it is not clear that it would apply to the Perelman school. The USW is fighting a Catholic Bishops case right now, he adds, as the union attempts to organize the part-time faculty at the Duquesne University, a Catholic school in the suburbs of Pittsburgh. And there are a number of other cases where religious schools have successfully used the Catholic Bishops defense to fend of unionization of the faculty, he says. Indeed, labor lawyers are closely watching a National Labor Relations Board decision right now in a case involving Pacific Lutheran University, which may clarify the law.

The claim of religious exemption doesn’t mean much to the AFT’S Goodman. “Perelman School has been unionized for 38 years. I’m Jewish myself and I can tell you for sure that nothing about Judaism has changed in the last week to justify” attacking the teachers union, she says.

Nor does it hold much water with Bacon. He tells In These Times that his great-grandmother became a member of the International Ladies Garment Workers Union while a seamstress in New York City a century ago. There is a proud tradition in his family of progressive Jewish unionism —some were lifetime members of the socialist-leaning organization Workman’s Circle—and any attempt to justify union-busting with Judaism is offensive, he says. He also notes that the board at the Perelman school chose to move against the union on the anniversary of the Triangle Shirtwaist Factory fire, the tragedy that helped catalyze the unionization of Jewish workers in New York’s garment district.

Pennsylvania AFT President Ted Kirsch said the full resources of the union are being marshaled to defend the teachers. “You wouldn’t believe the calls I’ve gotten from around the country. This is just so against the Jewish tradition that people can’t believe Perelman is trying to get away this this,” he says.

Freiwald, a Philadelphia lawyer, turned down requests from In These Times for a phone interview but invited queries by email. He declined to answer most of the e-mailed questions, but did however identify himself as the chairman of a special board task force that recommended the vote against the union and stated that the vote was unanimous. He provided a press release and aprepared FAQ sheet [PDF] as the school’s only public comment.

This matter exploded the same week that the Supreme Court heard arguments in the Hobby Lobby case, in which an employer argued that his religious convictions against birth control trumped the healthcare rights of his workers. Bacon sees a clear parallel between the two: “That seems like phony religion to me. So does this.”

This article was originally printed on Working In These Times on March 28, 2014.  Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

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