Can an employer regulate an employee’s sex life? Does an employer have any say in an employee’s reproductive decisions? Wait. How are those even questions? Isn’t it obvious that it’s none of an employer’s business? Aren’t we in America in 2021? In what universe would an employer have any say in whether, when and how employees can have sex, have — or chose not to have– children or anything else related to those decsisions? In the last week, we have seen at least 2 employers who have felt entitled to do exactly that. Spoiler alert: Both of these employers are/were out of bounds. One was told so by a court, and, in all likelihood, it’s only a matter of time, before that one receives the same message. Read on and see why… The first case involves Dave Ramsey. I’ll try not to get into much detail here, although I am quoted in an article in Inc Magazine discussing the case. You can find that article here. In a nutshell here’s what went down at Ramsey Solutions:
David Ramsey is an evangelical Christian who has gained some notoriety as a financial coach with a radio show. Apparently in his Employee Handbook, he includes core values that he expects his employees to abide by, which include prohibiting employees from having sex outside of marriage. Violation can result in an employee being fired. A four-year administrative assistant in a committed relationship with but not married to her baby’s father put in the paperwork for maternity leave and shortly thereafter was fired. She sued. The company says she wasn’t fired for getting pregnant but for violating the company’s “policy” about sex outside of marriage. A male co-worker was ultimately fired for having extra-marital affairs with female co-workers, but allegedly Mr. Ramsey turned a blind eye toward those dalliances for over two years. Ramsey is now facing sex discrimination, pregnancy discrimination, and FMLA violation claims to name a few.
Last week, the United States District Court for the Northern District of New York dismissed a lawsuit by the Evergreen Association, Inc against the State of New York, seeking to have New York Labor Law § 203-e (“Section 203-e”) declared unconstitutional. The law essentially “prohibits discrimination or any retaliatory action by an employer against an employee on the basis of the employee’s or his or her dependent’s reproductive health decision making, including, but not limited to, a decision to use or access a particular drug, device or medical service.”, and prohibits “requiring an employee “to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.”
The case is Slattery, et al v Cuomo at al 1:20-CV-112 (N.D. N.Y. 3/31/2021) Here’s what went down in that case:
Evergreen Association does business as Expectant Mother Care and EMC FrontLine Pregnancy Centers. Id. Evergreen operates “crisis pregnancy centers” throughout New York City, and is run by Chris Slattery, a devout Catholic an outspoken opponent of abortion, the use of abortifacient contraceptives, and sex outside of marriage. His company seeks to discourage such behaviors and provide alternatives to abortion. That in and of itself would probably not be a problem. So what is the problem, then? Part of Slattery’s sincere beliefs include an employment policy at providing that “persons who wish to be hired or remain employed by Evergreen must not obtain, assist in obtaining, or condone abortion, and must not be involved in sexual relationships outside of marriage (such as cohabitation).” Slattery also states that the law’s protections “could include not only contraception and abortion, but also in vitro fertilization, human cloning, sterilization, sex reassignment surgery, surrogacy, and other highly controversial procedures.” (I’m guessing by now you see the parallels between the two cases, hm?)
Slattery argued that his and Evergreen’s religious beliefs “mandate” that they violate the law and that sanctions against them violate their First Amendment rights. The court wasn’t buying it and granted the State’s motion to dismiss all claims. Basically, the court said that the law doesn’t target religion, let alone a particular religion. Its objective is to serve a legitimate interest of protecting employees’ rights to personal autonomy regarding healthcare decisions, particularly reproductive decisions, and protecting employees against discrimination on the basis of any such decisions. The court also found that it didn’t inhibit Evergreen’s or Slattery’s free speech rights. They can say what they want, but they can’t require their employees to conform to their religious views or practices.
But wait? Doesn’t the law effectively require such a company to facilitate abortions or similar practices, in violation of its sincerely held religious belief? No. The company can still counsel and recommend against their patients getting abortions. But if their own employees are not following those practices doesn’t that undermine the organization’s stated mission? Perhaps. However, Evergreen, while headed by a devout Catholic, is not a church or a religious organization. It does not have the right to impose its religious views on its employees. Doing so is a violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
But didn’t the US Supreme Court in Burwell v Hobby Lobby Stores rule that owners of private corporations can be excused from these types of laws when they conflict with a business owner’s sincerely held religious belief? No, that’s a gross overgeneralization and oversimplification of that ruling. Hobby Lobby involved the Religious Freedom Restoration Act, which holds the federal government responsible for protecting religious exercise. It applies when a mandate or prohibition under federal law encroaches on a business’s religious freedom when either the federal law does not serve a compelling government interest, or where there is a less restrictive means available to serve such an interest. (Click here to read my prior post on the Hobby Lobby ruling.) That is not the case here. There is no federal government involvement here and there is no allegation that there is a less restrictive means available to protect employees’ reproductive rights (and healthcare and privacy rights, generally).
Free exercise of religion includes the right of each person to follow the religious practices and beliefs of their choice, or not to adhere to a particular religious practice or set of practices at all. No one person or entity’s rights to exercise their religious beliefs trump other people’s free exercise rights as long as they are not hurting anyone else, or undermining a compelling government interest. The right to exercise one’s own religious beliefs does not allow that person or entity to discriminate or take any adverse employment action against an employee on that basis. Employers who are not bona fide non-profit religious organizations (and sometimes even those who are) who choose to do so and who argue that their religion allows (or even mandates) it are all but asking to be sued — as these two employers have been.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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