The first one, Harris v. Quinn, dealt with whether non-union public employees could be forced to pay union dues. The court issued a relatively narrow holding, ruling that “partial” public employees could not be required to do so. In doing so, it made a distinction with “full-fledged” public employees.
The second one, Burwell v. Hobby Lobby, dealt with whether for-profit employers could be required to provide contraceptive coverage under the Affordable Care Act. The court again issued a (relatively) narrow holding, ruling that closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the contraceptive coverage for religious reasons.
There is going to be lots of coverage this week on the impact of these decisions generally, but I thought I would touch on a few thoughts for Connecticut employers.
First, employers shouldn’t overread the decisions. While these decisions may lay the groundwork for broader decisions from the court in the future, these decisions aren’t as broad as some reports suggest.
Second, a very interesting issue is developing about whether employers could use this decision to discrimination against employees on things like race, gender or sexual orientation based on their religious beliefs. The majority opinion takes pains to discount that notion:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.
Third, the decision also raises the question of the impact on state anti-discrimination laws. For sexual orientation and gender identity claims, “religious corporations” are given a specific exclusion of coverage. Could a company like Hobby Lobby now be considered a “religious corporation” under state law? Or can it claim some other type of exemption given that Connecticut is already excluding some employers? And what is the impact of this decision on the other types of anti-discrimination laws that Connecticut has set up that are much broader than federal law?
It is this last set of questions that I think is most intriguing and necessitate some further review.
Connecticut law also prohibits discrimination against employees because of theirreligious beliefs too. How will the Hobby Lobby decision impact that aspect as well?
Today’s opinions will no doubt have an impact on employers. The real question that remains to be seen in the upcoming months and years is, “How Much?”