Category Archives: Racial Justice

Religious Discrimination Removed from National Defense Bill

In a briefing with reporters on Tuesday, a Congressional aide confirmed that the final version of the National Defense Authorization Act (NDAA) will not contain what has come to be known as the “Russell Amendment.” The Amendment would have required the Federal Government and all of its agencies to allow federally-contracted religious organizations and associations to discriminate against current and potential employees when those employees do not share their employers’ religious beliefs or adhere to the tenets of their employers’ religion. These exemptions already exist in private employment contexts, but the Amendment would have codified the requirement for all federally-contracted programs, which collectively employ approximately 28 million people, or more than 20 percent of the American workforce.

Although this is a positive development for those concerned with the potential consequences of the Amendment, the aide indicated that its removal is directly related to “new paths” that have opened up to address the Amendment’s intended purpose, indicating a related stand-alone bill may be introduced in the near future.  Steve Russell, a member of the U.S. House of Representatives from Oklahoma, attached the contentious amendment to the NDAA in May, and it passed narrowly in a late night House vote. Today, that Amendment seems to have been stripped from the bill’s current version, which will likely come up for a floor vote on Friday.

Opponents of the Amendment claim that, had it passed, it would have been a direct and intentional threat to a 2014 Executive Order signed by President Obama (EO 13672), which prohibits federal contractors and sub-contractors from engaging in employment discrimination on the basis of a worker’s sexual orientation or gender identity.  EO 13672 amended an earlier Executive Order signed by President Lyndon Johnson in 1965—which has been enforced by subsequent Administrations—prohibiting federal contractors from discriminating against their employees on the basis of religion, sex, race, and national origin.

Proponents of the Amendment argued that the measure would simply reinforce the current legal status quo, by incorporating exemptions for religious organizations found within Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), both of which do provide limited nondiscrimination exemptions to religious organizations—but neither of which clearly apply in the context of federal contractors.

As opponents of the Amendment rightly point out, had it passed, the law would have undermined existing federal nondiscrimination protections not only for lesbian, gay, bisexual, transgender and queer (LGBTQ) workers and communities, but also for communities of color, people living with disabilities, immigrant communities, women and gender non-conforming people, people of faith or no faith who hold different views than their employers, and others who would otherwise be protected under Title VII, the ADA, or other nondiscrimination regulations that federal agencies have already promulgated.

For example, under this Amendment, an organization, using federal funds, might refuse to hire a transgender person simply by claiming that their identity and non-conformity to certain sex stereotypes did not meet a tenet of that employer’s religion—namely, that if a person is assigned a particular sex at birth, they must have a particular gender identity or set of gender expressions. While the Supreme Court has ruled clearly that employment discrimination on the basis of sex stereotyping is a violation of Title VII—and the Equal Employment Opportunities Commission and federal courts have confirmed this applies to transgender and gender non-conforming people—the Amendment would have created a broad exemption for all federal contractors that fall under the exemption, without guidance on how existing nondiscrimination protections might be threatened or undermined.

Furthermore, proponents failed to address the unique constitutional concerns that arise under the Establishment Clause when government funds, as opposed to private funds, are used to promote and endorse religion and further discriminatory behavior against third parties. In this case, job applicants or current employees of religious organizations could have been directly harmed.

Although the removal of the Russell Amendment is welcome news to those concerned with its consequences, given the recent election outcome and the current list of proposed Presidential appointments, similar legislative and administrative efforts seem inevitable in the immediate future and over the next several years.

PRPCP’s Comment Regarding Zubik

This week the Public Rights Private Conscience Project (PCPCP) submitted a letter to the Department of Health & Human Services (HHS) in response to their request for information (RFI) regarding an accommodation for religious employers who do not wish to provide their employees with insurance coverage for no-cost contraceptive care, as mandated by the Affordable Care Act (ACA).  The request came shortly after the Supreme Court punted a case on this very topic back to the lower courts, leaving religious freedom and women’s health advocates in limbo regarding the mandate’s fate.

The case, Zubik v. Burwell, combined separate challenges from religious non-profits to the ACA’s contraceptive mandate, which requires employers to provide health insurance coverage for birth control to their employees. The religious accommodation to the mandate allowed religious non-profits to file a one-page form with the HHS to opt out, and made health insurance companies or third-party administrators responsible for stepping in to provide this coverage without involvement or funds from the employer. But the non-profits asserted that even this requirement violated their religious beliefs. The government holds that the accommodation complies with relevant laws protecting religious freedom, such as the Religious Freedom and Restoration Act (RFRA), which was enacted in 1993 to protect religious minorities.

In the RFI, the government states that their commitment to religious freedom and desire to find an accommodation that works for all led to the public information request.  The government also recognized that the Zubik decision “affect(s) a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court,” which they say increased their desire to find an effective solution to the problem presented in Zubik.

The RFI asks the public to comment on two alternatives to the ACA religious accommodation. The first alternative would allow religious non-profits to contract with insurers for coverage that did not include contraceptives and then the insurer would have to notify employees separately and explain that they would provide no-cost contraceptive coverage independent of the employer’s health plan. Here, the religious employer would only have to verbally notify the insurer of their objection, rather than through a form. The second alternative was for women employees to affirmatively enroll in policies that only covered contraceptives.

In the comment that PRPCP submitted we began by discussing how the existing religious accommodation does not offend RFRA:

“RFRA prohibits the government from substantially burdening the exercise of religion unless doing so is the least restrictive means of furthering a compelling government interest. The current accommodation meets this standard for two reasons: first, it does not impose a burden, much less one that is substantial in nature, on religious exercise and second, it is the least restrictive means of furthering the government’s compelling interests in ensuring access to contraceptives, a necessary part of basic preventative health care, and avoiding violations of the Establishment Clause.”

PRPCP then discusses how the alternative accommodations proposed by the plaintiffs would impose harms on employees and their families and risk violating the Establishment Clause. Here, we noted that a number of Supreme Court cases have held that the Establishment Clauses was violated when a government-created religious accommodation imposed serious harms on other private individuals. We stated:

“Both of the alternative accommodations put forth in the RFI would impose a significant harm on non-beneficiaries, most notably employees and their families. The first alternative, by providing ample opportunity for confusion, misrepresentation, and further RFRA litigation, would make employees susceptible to extensive gaps in necessary contraceptive coverage. Further, by making enforcement of the contraceptive mandate significantly more difficult, it would impose costs on both employees and the government. The second alternative would impose significant burdens on third parties by requiring health plans to create, and employees to seek out and enroll in, contraceptive-only health plans. These plans would likely face substantial administrative and financial difficulties. Furthermore, they would result in fewer employees and families having adequate access to contraceptive health care.”

Lastly, we mentioned how important seamless access to cost-free contraceptive care is for women of color, a conversation that is oftentimes left out of the discussion about religious accommodations to the ACA. PRCPC noted:

“Eliminating disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and family planning resources. Access to contraception allows women of color to plan whether and when they will have a child, which research has shown provides them with greater financial stability and freedom.  Many women of color, who on average earn significantly less than white women, cannot afford to pay for quality contraception. For example, the IUD is considered the most effective form of contraception available on the market today and costs between $500.00 and $1,000.00 without insurance. Because of its high cost, among other factors, only six percent of Black women have used IUDs compared with seventy-eight percent who have used birth control pills, which have higher user failure rates.  Providing women of color with access to contraceptive coverage at no additional cost will help to reduce the reproductive health disparities that we see in communities of color. This is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.”

We applaud the Department’s commitment to religious freedom as mentioned in the RFI, however hope this commitment does not outweigh its duty to uphold the rights of women seeking cost-free contraceptive coverage. Unfortunately, the Supreme Court dodged making a decision on this important

Why Zubik is Especially Important for Women of Color

By Elizabeth Reiner Platt and Kira Shepherd

This blog is also available at Religion Dispatches

From the forced breeding of slave women, to the eugenics movement of the 1920s to a relatively recent campaign to sterilize incarcerated women, the institutional denial of women of color’s reproductive freedom has left many mistrustful of medical institutions and the government’s attempts to interfere with their reproductive choices. This has led, in turn, to poor health and political disengagement amongst communities of color. Now, the Supreme Court’s decision in Zubik v. Burwell may effectively strip thousands of women of color of their right to no-cost insurance coverage for contraception.

For those not following the case, Zubik is a challenge to the Affordable Care Act’s contraceptive mandate, which requires certain employer-sponsored health insurance plans to cover contraception with no co-pay. The Obama administration has already created an accommodation for religious non-profits opposed to birth control, which allows them to opt-out of paying for contraceptives while maintaining insurance coverage for their employees. The organizations suing in Zubik, however, want to prevent their employees from receiving coverage through the plans at all. They claim that under the Religious Freedom Restoration Act (RFRA), they are entitled not just to refuse to pay for birth control themselves, but to demand that their insurance providers refuse to offer it.

While religious organizations employ women of all backgrounds, the Zubik case should be particularly concerning to women of color. Lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today. Women of color have the highest rates of unintended pregnancy, abortion, and maternal mortality, all of which have taken a toll on the psychological, economic, and social vitality of these communities.

Moreover, as abortion clinics across the country close due to the conservative attack on abortion rights, women of color are harmed disproportionately. Clinic closings make it especially hard for low-income women and women of color to get an abortion, since many cannot afford to travel the long distances needed to reach a clinic. A recent New York Times article found that clinic closings appear to be closely linked to the uptick in searches for illegal, self-induced abortion.

In addition, women who have unintended pregnancies are more likely to abuse substances while pregnant and less likely to seek prenatal care, which can negatively impact the health of the fetus. Some unintended pregnancies cost women of color their lives. The United States is now one of only eight countries—including Afghanistan and South Sudan—where the maternal mortality rate is actually increasing. These numbers are even bleaker for women of color in the U.S., where black women are four times more likely than white women to die in childbirth.

The pervasive health disparities among communities of color can be traced back, in part, to a long legacy of reproductive coercion. In 2003, the Institute of Medicine produced astudy about the causes of racial health disparities in America. It found that many of the disparities are rooted in historic and current racial inequalities, including poor socio-economic conditions as well as implicit biases held within the medical community that lead to subpar treatment.

Eliminating the disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and contraceptive counseling. Access to contraception allows women of color to plan whether and when they have a child, which provides them with greater financial stability and freedom. Women of color, on average, earn significantly less than white women, and many cannot afford to pay for quality contraception.

The IUD, for example, is considered the most effective contraception available on the market today, but because it costs between $500 to $1000 only 6% of black women have used IUDs compared with 78% who have used birth control pills. Providing women of color with access to no-cost contraceptive coverage is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should be no surprise that when the U.S. Department of Health and Human Services asked The Institute of Medicine to come up with a list of women’s health services that should qualify as preventive care and require no co-pay under the Affordable Care Act, the Institute included contraceptive care and counseling in their recommendations, two services that can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. It would be a grave injustice for the Supreme Court to allow the plaintiffs in Zubik—and others who might follow in their wake—to take us one step back.

We’re Hiring! Contract Position – Temporary – Research Analyst – Racial Justice Program

Research Analyst Position (full-time/part-time)
Contract position – Temporary

The Racial Justice Program, part of Columbia Law School’s Public Rights/Private Conscience Project, produces original research on the impact of religious exemptions on communities of color and leverages that research into policy and advocacy interventions.

Columbia Law School’s Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. Its staff conceptualizes and operationalizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

The Program is seeking a Research Analyst to join our team. The Research Analyst will examine ways religious exemptions impact communities of color through health care restrictions, employment restrictions, and other means. This is a 2-month full-time contract position, with possibility of extension. Alternatively, for the right candidate in need of a more flexible work schedule, this can be a 4-month part-time position, with possibility of extension.

Key Tasks include:

• Determine analytical requirements for data processing, including the selection of appropriate data, tabulations and statistical methods

• Identify and interpret trends or patterns in complex data sets

• Interpret data and analyze results using statistical techniques and provide report(s)

• Assist with preparation of presentations describing project methods and results of analyses Requirements:

• A master’s degree from an accredited college in statistics, sociology, public policy, or a closely related field; with at least two (2) years of related work experience, or

• A baccalaureate degree from an accredited college, with at least four (4) years of related work experience

• Strong quantitative and problem-solving skills; experience with empirical methods and data analytics including working with large, complex data sets and conducting research

• Experience collecting and working with secondary data collection for social science research including data cleaning, analysis, and documenting procedures

• Knowledge in the use of one or more statistical research software packages (STATA, SPSS, SAS)

• Ability to think outside of the box and develop novel strategies for analysis

• Experience working effectively both independently and as part of a team

• Knowledge of health care policies and employment policies strongly preferred

• Knowledge of racial justice issues strongly preferred

To apply, please submit your resume and cover letter by e-mail to gender_sexuality_law@law.columbia.edu.