Religious freedom and contraception

[Bri]

Probably not too badly, actually. Jews run into this fairly often, and I have yet to hear of an employer firing an Orthodox Jew because he wouldn't work on Shabbos. IANAL, but I suspect the EEOC would come down on such an employer like a ton of bricks.

RandFan wasn't talking about religious accomodation, but even if he had been, it would depend on whether or not it would be considered an "undue hardship" for the employer to accommodate the employee. In most cases, if a position requires an employee to work on Saturdays, an employer may choose not to hire an Orthodox Jew who doesn't work on Saturdays for religious reasons.

BTW, the EEOC Compliance Manual is online here:

http://www.eeoc.gov/policy/docs/religion.html

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.[116] However, the Title VII “undue hardship” defense is defined very differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA). Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden, which is a far lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “significant difficulty or expense.”[117]​

-Bri

 

[RandFan]

RandFan wasn't talking about religious accomodation, but even if he had been, it would depend on whether or not it would be considered an "undue hardship" for the employer to accommodate the employee. In most cases, if a position requires an employee to work on Saturdays, an employer may choose not to hire an Orthodox Jew who doesn't work on Saturdays for religious reasons.

BTW, the EEOC Compliance Manual is online here:

http://www.eeoc.gov/policy/docs/religion.html

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.[116] However, the Title VII “undue hardship” defense is defined very differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA). Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden, which is a far lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “significant difficulty or expense.”[117]​

-Bri

Thanks.

 

[Bri]

Even if it is not negotiated, I think Magyar's point that healthcare is part of the overall compensation package still holds. My company does not have the right to dictate to me how I spend my salary. It should not have any say in how I utilize my health care.

Magyar's argument is a straw man. Sure, if the employer can negotiate the insurance package (and thereby avoid offering certain coverage that violates their religious beliefs or even not offer any insurance at all), nobody disagrees that the insurance is part of the employee's compensation. But we're talking about a federal mandate that forces the employer to provide health insurance.

I think I am beginning to agree with a comment that this whole debate shows why relying on employer based health insurance is such a monumentally bad system.

Yes, I'd have to agree there.

-Bri

 

[JoeTheJuggler]

I am not sure many are claiming it is unconstitutional to have such a law, but not all bad laws are unconstitutional. Its opponents could view this as such a case.

They're claiming it is a First Amendment issue. They insist on framing the issue of contraception and women's reproductive healthcare as an issue of "religious freedom".

 

[Ziggurat]

Religious freedom and contraception

I am trying to make sense of the idea that requiring employers to provide contraception violates the first amendment. Does the reasoning go something like this:


The employers money might support an action the employer finds morally objectionable on religious grounds. Since SCOUTS has ruled that money equals speech, then withholding money is also a form of speech or expression. In this case religious expression. The employer is denied freedom to express themselves by non-contribution.


Please tell me this is inaccurate.

This is inaccurate.

The Supreme Court has never ruled that money equals speech. What they have ruled is that restrictions on the purchase of speech are restrictions of speech. Money can certainly be restricted in non-speech contexts, and it is.

But the first amendment covers more than free speech. It also covers the free exercise of religion. Now, that doesn't mean that one can do anything they want under the cover of religion. But it does mean that the government has less power when encroaching on religious beliefs than it otherwise does. So the argument here is, where exactly is that boundary? I've seen plenty of people ignore this problem in both directions, both to say that nothing which restricts religious practices is acceptable (we're not going to legalize human sacrifice) and to say that religion gets no additional consideration (the SC recently reaffirmed that it does). I don't think there is a definitive argument for this particular problem that makes it obvious which way the SC would rule if the proposed contraception rule comes before them.

 

[Ziggurat]

I find the "religious freedom" angle to be rather funny, in a black humor sort of way. The Republicans are basically admitting that they find the religious freedom of employers to be more important than religious freedom for employees.

Nonsense. Nobody's freedom is infringed because someone didn't buy something for them. They remain free to buy it themselves.

 

[cwalner]

Nonsense. Nobody's freedom is infringed because someone didn't buy something for them. They remain free to buy it themselves.

While technically true, that is very misleading. As a non-contraceptive example, I have several congenital heart defects which constitutes a pre-existing condition. Therefore I am not free to purchase health insurance because nobody would insure me.

I should also point out that I am free to purchase a $200 Milliion Yacht. Yet since I don't have that kind of cash, to exercise that freedom I need somebody else to pay for it for me. The same applies to medical insurance for many Americans. The difference being that nobody is claiming that I have a right to own a yacht, but many now think that I (we all) should have the legal right to basic medical care, which is what the legislation in question is designed to provide. That legislation also includes contraception in what it considers to be basic medical insurance. It in no way singles out specific employers, but simply states that such coverage is now part of the minimum required health insurance.

 

[RandFan]

The difference being that nobody is claiming that I have a right to own a yacht, but many now think that I (we all) should have the legal right to basic medical care, which is what the legislation in question is designed to provide.

I believe there is a good argument to made that we should make it a right. Personally I dismiss the idea of a priori rights. Rights are human constructs. If we as a society can deem life a right then we can deem health care a right.

But personally I'm more interested in the pragmatic argument. It's good for society. If declaring health care a right will advance that cause then I'm fine with it. Why not?

 

[Ziggurat]

While technically true, that is very misleading. As a non-contraceptive example, I have several congenital heart defects which constitutes a pre-existing condition. Therefore I am not free to purchase health insurance because nobody would insure me.

You are conflating "able to" with "free to". They are not the same. Whatever arguments you might have for why other people should pay so that you are able to do something, those arguments will not be arguments based on freedoms.

 

[Tony]

Nonsense. Nobody's freedom is infringed because someone didn't buy something for them. They remain free to buy it themselves.

You're right. It is nonsense. No one is buying anyone anything. Health insurance is compensation for employment.

 

[Ziggurat]

No one is buying anyone anything. Health insurance is compensation for employment.

Those two statements contradict each other. Whether or not it's compensation, it's definitely being bought for you if you aren't paying for it yourself. Which is the case here.

Furthermore, when insurance covers the expense of buying something (even if you purchased the insurance yourself), then someone else is buying that thing for you. If someone else wasn't buying it for you, then you'd be paying for it yourself, and there wouldn't even be a point to having insurance coverage.

 

[Tony]

Those two statements contradict each other. Whether or not it's compensation, it's definitely being bought for you if you aren't paying for it yourself. Which is the case here.

But you are paying for it. The employer is only the middle man.

 

[cwalner]

You are conflating "able to" with "free to". They are not the same. Whatever arguments you might have for why other people should pay so that you are able to do something, those arguments will not be arguments based on freedoms.

********!. Under that distinction, even prior to civil rights legislation, blacks were free to buy a house anywhere they wanted.

Reread what I wrote. Because of how I was born (with a pre-existing medical condition) I cannot as an individual purchase health insurance because nobody will sell to me. The only way I can acquire it is through a group policy from my employer. Under the current system, if my company elected to not provide a particular coverage, I am either SOL or am forced to look for new employment.

 

[Ziggurat]

But you are paying for it. The employer is only the middle man.

Yeah, sorry, you've gone completely off the rails now. Your employer isn't a middle man. That doesn't even make sense.

 

[cwalner]

Yeah, sorry, you've gone completely off the rails now. Your employer isn't a middle man. That doesn't even make sense.

You are the one who is off the rails, Tony is making perfect sense.

Is my company purchasing my retirement plan for me, or I am buying it? Just like Health care, my company deducts a set amount each paycheck and puts it into a retirement account instead of giving it to me as salary. The even match a portion of the contributions.

 

[Ziggurat]

********!. Under that distinction, even prior to civil rights legislation, blacks were free to buy a house anywhere they wanted.

That is factually wrong. There were in fact laws which were used to prohibit blacks from purchasing housing in some places. Because of such legal prohibitions, blacks were not in fact free to purchase housing wherever they wanted to.

Reread what I wrote. Because of how I was born (with a pre-existing medical condition) I cannot as an individual purchase health insurance because nobody will sell to me. The only way I can acquire it is through a group policy from my employer. Under the current system, if my company elected to not provide a particular coverage, I am either SOL or am forced to look for new employment.

That doesn't contradict anything I said. You want to be able to purchase health insurance. I don't blame you. But this is an entitlement, or if you prefer, a positive right. It is not a freedom. Perhaps you should be able to. Perhaps it is even right and just that the government act to ensure that. But that doesn't make it a freedom. It is not.

 

[Ziggurat]

You are the one who is off the rails, Tony is making perfect sense.

Is my company purchasing my retirement plan for me, or I am buying it?

Without knowing what your retirement plan is, how the hell would I know? If your retirement plan is a pension, then yeah, they're buying it. If your retirement plan is an unmatched 401(k), then you're buying it.

Just like Health care, my company deducts a set amount each paycheck and puts it into a retirement account instead of giving it to me as salary.

What kind of retirement account? How is it managed? Who decides how much of your paycheck?

Oh, and if you think that the amount deducted from your paycheck for health insurance is the total cost of health insurance, well, in most cases you'd be wrong. The employer generally pays additional costs that are NOT deducted from your paycheck (and which they would get to keep if you didn't sign up for it).

 

[Spindrift]

Well, just because you've never heard of it or done it doesn't mean that it is not done.
I did it for my last job and am doing it now with a current position I am interviewing for.
I also negotiate time off. I consider BOTH of these as part and parical of MY compensation package. Further, this isn't something I made up - go to monster and look at naegotiating salary. Open the news and look at any neogotiations going on between union employees (whether you agree or not is a different topic) Unions have in the past have passed up hourly wage raises in lue of keeping their health care coverage and contributions the same as an overall package.

I find it weird that people don't see this. I had this discussion with a co worker who JUST didn't get it that he/we've been takinga paycut for the last 3 years because we were not receiving cola or a rais but every year our healthcare coverage went down and cost more. If you work as a w2 then health care is part of your compensation, this is why a company will/can pay someone on a 1099 basis more hourly rate. They don't have the expense of health care and ssi to cover.

Since YOU get healthcare as part of your salary, and inmy state it is mandatory, it is MY money. The anti birth control folks argue that YOU can just go out and buy it, but than THAT is precisely what I said, THEY are controling how you spend your income for something that is legal and you already paid for. So tomorrow, if your new boss is a teetotteler and finds out that you like good quality scotch he should be able to doc your pay so that he can live with his concsience of avoiding the evils of alcohol.

You negotiated the amount you would pay for health insurance? I have gotten more vacation time, more salary, working from home and even work hours, but I've never had any company even consider health care payment as negotiable. I'm aware unions do it all the time, but not on an individual basis. Learn something new every day. BTW: I looked at monster and could not find anything about negotiating health care costs with an employer. I must be missing it, could you point it out?

 

[Magyar]

Oh yeah, you tell your prospective manager at McDonalds that you won't work Sundays. See how that works out.

That being said, I'll back you up. I've negotiated for benefits before but that is applicable only to some percentage of jobs. I don't know if those jobs are the majority but I seriously doubt it. Most job positions have dozens of qualified applicants. If you want more time off than the business offers then it is very likely that there is another applicant who doesn't, "thank you, don't call us we'll... just don't call us". Many people are happy to just be offered a job.

Yes, but now you've moved the goal posts. I don't believe that I ever said that such negotiations were going to be 100% or even at all successful! OBVIOUSLY there are all kinds of factors to be considered. Just as the employer evaluates each applicant and pics who is best for the position/company, the employee based on being the most desired applicant can try to get as much as possible. That fact that most employees are not aware of this doesn't change that.

 

[Tony]

Yeah, sorry, you've gone completely off the rails now. Your employer isn't a middle man. That doesn't even make sense.

Excuse me? I don't know where you work, but every employer I've had got their insurance plans from an outside company. In such cases, they most certainly are the middle man.