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EEOC to Catholic college, Belmont Abbey: Quit acting like Catholicism is true!

From David French at NRO's Phi Beta Cons:

Today's Inside Higher Ed details the rather disturbing story of an EEOC finding that Belmont Abbey College, a Catholic college in North Carolina, engaged in "gender discrimination" when it refused — consistent with its Catholic faith — to cover oral contraceptives in its employer-provided health-care plan.

To describe this as a fundamental religious-liberty issue would be something of an understatement. Private religious organizations have traditionally enjoyed the right to organize around a religious purpose and advance their religious message through hiring, personnel policies, and public expression. In fact, personnel policies are a fundamental part of any institution's religious expression.

Perhaps most disturbing was the EEOC's utter failure to offer any substantive analysis of the college's First Amendment rights. After all, this is not an "in name only" Christian institution. Even a brief glance at the college's website shows that it is committed to its Catholic values. Yet the federal government just plows through that identity. And to what end? For what higher purpose? Does the so-called sexual autonomy of a few disgruntled employees actually trump core constitutional values? Some would say yes

According to the Inside Higher Education story on the case, "In its letter, the commission [i.e., the EEOC] noted that failure to cover oral contraceptives constituted gender-based discrimination because it denied a benefit to women only."

Because Catholic moral theology maintains that the use of oral contraceptives for the prevention of pregnancy is immoral, oral contraception is not a "benefit" according to Belmont Abbey College. Thus, the EEOC, a government agency, has issued a verdict on the veracity of the moral theology embraced by Belmont Abbey College: it is mistaken.

Separation of Church and State ain't what it used to be.

(Originally posted on First Thoughts)

Comments (45)

In its letter, the commission [i.e., the EEOC] noted that failure to cover oral contraceptives constituted gender-based discrimination because it denied a benefit to women only.

That is not necesarily completely accurate. Presumably, if oral contraceptives were available to males (and I thought I read somewhere they were), those "benefits" would be denied to males as well. The fact that there are no oral contraceptives yet available to men doesn't necessarily make it gender discriminatory. In addition, female oral contraceptives are only effective for heterosexual relations, thus they are as much a "benefit" to the male involved as to the female, assuming both are consenting to their use. I am assuming the policy would not allow males to purchase them for a female's use either. Thus, both are denied the "benefit."

c matt: Could you provide a legal analysis of the circumstances rather than an merely ordinary observation capitalizing on the moral? I'd be interested in your employing the legal skills you've presumably learned from your time at law school. I'd like your legal take on the matter. Thanks.

I assume they don't cover condoms either?

C Matt, I suppose the "argument" is that the OC's are _prescribed_ for the female. While a male can pick up and pay for OC's on behalf of a female, they are a prescription medication and are supposed to be prescribed in the female's name. So the claim is that qua medical "benefit" this is a "benefit" to the female. Such is the claim.

But this whole thing is entirely outrageous. The gloves are coming off the totalitarians, aren't they? I find it interesting that they didn't try to push the idea that denying abortion coverage was also "gender discrimination." I suppose that's because abortion isn't so very popular. So much for the rule of law. In practice, employment law here is being made on an ad hoc basis by an unelected committee seeing how much they can get away with in the way of pushing their social agenda given the moral climate of the moment.

My first question would be what standing David Niepert (the charging party according to the letter ruling) would have to complain about the lack of coverage for female oral contraceptives as the ruling itself says men's rights are not affected. But there apparently were some other female charging parties, and I am guessing it was the same form opinion with only the names changed (still, rather sloppy).

Second, it would not appear to be "gender discriminatory" as other forms of contraception for men (eg, vasectomies) are also excluded from coverage. Not sure how narrowly one can define the subject area of coverage to find discrimination - eg, any sterilization method, any contraceptives, or specifically oral contraceptives?

Third, it appears the coverage is only required because of a state law (NC) that requires coverage for female prescription contraceptives when other prescription drugs are covered. That same law also allows for an exception for religious institutions, and Belmont apparently was state approved for that exemption.

Not only are First Amendment rights involved, but it seems state's rights are also being implicated (and improperly ignored). But this being only the early stages (opinion letter by a some low-level EEOC minion), there are many rounds to go before final analysis. I notice the EEOC minion did not offer any legal authorities for his opinion, but I am not familiar with EEOC administrative proceedings, so don't know if that is normal (IRS letter rulings usually do cite to legal authorities).

No time (or inclination at this point) to research relevant case law on "gender insurance coverage discrimination" issues and it's not my area, but these are a few issues I see that need to be addressed.

c matt: Thank you, Sir, for kindly obliging me; appreciate it.

Well, this is what Catholic institutions should expect if they continue to hire those who disagree with their beliefs. Blandford, one of those who complained, calls herself a Catholic, but is opposed to the Church's teaching on birth control. And she calls the Belmont Abbey president's support of Catholic teachings "twisted."

Belmont Abbey may call itself committed to Catholic teaching, values and doctrine, but if it fails to hire those who support its mission, then that's just so much hot air, and these are the consequences.

Yes, it is outrageous.

One danger I see for the other side is that they are abandoning the "boiled frog" approach and are reaching so far, so fast, it might wake folks up. ...Might.

Tyler:

To do what you implicitly call for in your comments would surely subject any institution, including Catholic ones, to genuine accusations (as opposed to the one here) of discrimination.

you're welcome, ari. It does raise interesting issues, just wish I had more experience in that area. It's like asking an opthamologist to comment on heart surgery.

Aristocles, I respectfully disagree. Most jurisdictions maintain an exemption for religious institutions. One of the specific reasons that Belmont Abbey did not qualify for the exemption is that most of its employess are NOT Catholic, which is one of the three criteria to meet the exemption under North Carolina law. They also apparently failed the test of having the inculcation of religious values as a primary objective. Catholic institutions need to stop being coy about their indentity, or they will lose it forever.

It is not discrimination to hire only those who support your institutional objectives. You can be certain that the EEOC does not hire those who oppose equal employment opportunity.

My apologies for implicitly calling for them to hire more Catholics; I intended to be explicit. :-)

But if most emplyees are not Catholic and they don't try to instill religious beliefs then why are they not Catholic "in name only"? Sure their website looks good but if they are not hiring Catholic teachers and trying to turn out Catholic graduates then maybe they are pretty secular.

Actually, C Matt says they _did_ qualify for the state religious exemption. But as he also points out, the EEOC considers itself above that consideration, because it is "merely" state law.

But I think it's important that institutions be able to be at least somewhat ecumenical while still being eligible for religious exemptions. There has been an increasing attempt in the UK, Canada, etc., to narrow religious exemptions down so that you have to be able to point to a particular church body and argue that you are narrowly hiring *and even serving* only people from that church body before you can obtain a religious exemption. This is problematic, to put it mildly. But I also agree that Belmont in some measure walked into the punch by hiring people who openly oppose what they stand for. They could probably for that matter have found Protestants who would not have filed this complaint.

Tyler:

Thanks for that bit of information.

Though I also happen to be of the same opinion, most ostensibly "Catholic" institutions these days are anything but.


c matt:

I keep forgetting that lawyers, like doctors, happen to have specialties; still, I appreciate your quick albeit perhaps superficial legal take on it regardless. It's immensely better than any lay opinion, that's for sure.

Tyler:

From a strictly legal standpoint, your position would probably sound plausible to somebody without firsthand knowledge of Belmont Abbey College. Since I have such knowledge, it doesn't sound plausible to me.

First, BAC has "the inculcation of religious values as a primary objective" not only nominally but in reality. I spent a year and a half (Fall 2006-Spring 2008) worshipping at the Abbey basilica and talking with a number of students and faculty. There are few more authentically Catholic places in this country; the leadership is faithfully Catholic to a person and has become ever more so for the past twenty years.

Second, the leader of the original lawsuit and filer of the current complaint is the chairwoman of the philosophy department, Jeanette Blandford. As you recognize, she is formally Catholic but opposed to Church teaching about birth control. I would add that she holds a similar position about all the issues you'd expect a progressive to dissent about. It was she who twice rejected my application to teach in the department, and that of several other orthodox Catholics I know. The one person whom the three-person department has hired full-time during the past decade was her pick. He's certainly qualified, but plenty of other applicants were even more so; and the matter is moot. Since she has tenure, there's nothing much that Abbot Placid and President Thierfelder can do about the situation. The situation in the theology department is a bit better, but not much.

Third, the College actually won the original suit with the State of North Carolina regarding the dropping of insurance coverage for abortion, direct sterilization, and contraception. The current complaint is Federal and has been acted on by the Obama Administration. The previous administration would not have done this. But the EEOC is taking advantage of the fact that BAC cannot instantly purge its payroll of all or most people who do not share its theology. An institution should not have to be completely sectarian in its hiring in order to be allowed to avoid formal cooperation in practices it officially considers immoral.


Though I also happen to be of the same opinion, most ostensibly "Catholic" institutions these days are anything but.

Blemont-Abbey is loyal to the Magisterium and her Catholic calling and deserves more than the carping coming from the cheap seats. Obviously, the college could have avoided the whole controversy by playing ignorant to the insurance provisions. Instead of crying sell-outs, how about a littel support for a change?

This coming for a lefty of such ignominious proportions.

The gender discrimination angle really makes no sense. If there were male contraceptives, the Church would ban them too. It's just that there aren't.

In fact, if there's any "gender discrimination" involved here, it's on the part of the health care companies offering oral contraceptives. They are gender discriminating by offering them only to women.

Tyler writes: "Well, this is what Catholic institutions should expect if they continue to hire those who disagree with their beliefs."

Sadly, this is true. When someone says "diversity is our strength," they have a different "we" in mind.

I have wondered why Catholic health insurance groups weren't put together to exclude abortion, sterilization and contraception coverage, back when Catholic fidelity would have been less collapsed than it is today.

I have been told that such groups existed but were forced out of business by laws mandating coverage for elective sterilizations. My correspondent was relying on his own hazy memory, but placed the momentous occasion back in the 1970s.

This helped deprive orthodox Catholics of corporate power in healthcare, a feature which some villains may have recognized back then. In our world, lack of representation in the corporate boardroom is a major drawback. It enforces the secular-religious split, or passes off somebody else's standards as the neutral ones.

As for Belmont Abbey, they may have made a grave mistake in publicizing the names of objectors to its policy. This gave the EEOC an opportunity to allege intimidation, which gave journalists a juicy, damaging angle to spin. Catholics and other traditionally-minded Christians can't assume their good faith will be presumed. That privilege has passed to other groups now.

Not addressing BAC's case specifically, generally gender discrimination in regards to birth control is considered discriminatory if male treatments like impotence are covered and artificial birth control is not. The wording above, "denied a benefit to women only", is well trod territory with plenty of regulatory precedent along the way.

It looks like its time for the bishop to make phone callc to the "Catholics" who are bringing forth this lawsuit. Doesn't the support of contraception in the public forum by a Catholic amount to persistent public sin? I wish the old penal laws in Canon Law were still on the books, sigh. Excommunicate them? Let them form their own church?

The Chicken

Oh, and I know absolutely nothing about this situation and look, I get to make comments :)

The Chicken

Chicken:

I wish the old penal laws in Canon Law were still on the books, sigh. Excommunicate them? Let them form their own church?


If I'm not mistakened, aren't you, much like Kevin, into that whole ecumenical thing?

If so, perhaps "Catholics" who are for such "Catholic" endeavours shouldn't be so quick as to advocate such steps as excommunication; I thought such things are more reserved to those with more particularly traditional sensibilities.

Dear Aristocles,

You wrote:

If I'm not mistakened, aren't you, much like Kevin, into that whole ecumenical thing?

Not only have you reached a conclusion about my beliefs based on absolutely no evidence or knowledge of me and hence, sinned (as in rash judgment), but when you jumped to this conclusion, you didn't just leap, you used a jet pack.

I don't even know what you mean by ecumenical - I know what the Church means and that is what I adhere to. Clearly, people who advocate contraception against the teaching of the Church are not even being thought by any Church council (or me) in any sense I know of as being ecumenical. Schismatic, perhaps. Sinful, probably. Ecumenical, no.

If you are surprised that I would advocate the application of remedial laws from the old Code, then you don't know me or how I think, at all. I am more conservative than you can even imagine. You can't even see the e at the end of the word from where I stand.

I am, however, only rightly conservative to the limits that a proper Catholic faith allows. I would assume the same for a liberal. The Church allows for certain differences of opinion. It does not on the life issues. Some of my conservatism is probably off the deep end, but fortunately, I know my strengths and weaknesses.

What I don't understand is how you can mock me, on the one hand, for wanting a return of Westerns as being too unrealistically conservative and then being shocked for my wanting the penal laws restored which seemed to startle you, because, here, you had me pegged for a good little liberal. A bit contradictory.

Sorry for going on, but this sniping and innuendo is getting annoying. Wrong time; wrong place. I assume you are a person of good intent. Please, assume the same for me. I am an interdisciplinary researcher by training. As such I look across disciplines to find what works. I don't easily fall into categories, but I would like to be found in the category of being loyal to the Church. That is my only goal in life, so unfounded comments implying that I have somehow deviated from Church teaching really bother me.

If I have misjudged your comments, say but the word and I will apologize.

The Chicken

P. S. This is why my confessor warned me to avoid blogs.

Badger writes: "generally gender discrimination in regards to birth control is considered discriminatory if male treatments like impotence are covered and artificial birth control is not."

I know this has been the activists' argument, but has it actually become regulatory precedent? I thought it would be obvious even to regulators that the female counterpart to male impotence would be something like "frigidity," rather than fertility.

The difference, of course, is that impotence is a malfunction and fertility is not. Essentially, then, the activists are saying that a sterile woman is equal to a potent man.

I can only speak to Wisconsin, but, yes, birth control is considered a fertility treatment, or rather a treatment of fertility.

Simple solution:

Stop providing health insurance and provide a $2500-$5000 HSA that has a rollover option. That way, they won't have to pay for anything directly.

Dear Aristocles,

My apologies for my harsh comments to you, above.

The Chicken

TMC, most of us have learned not to let Aristocles get to us. His habit of making up his own ideas of our views out of whole cloth is often puzzling but is sufficiently widespread that it just rolls off one's back after a while.

Perhaps if the college hangs out one or two star & crescent flags, a couple of signs with pithy quotes from the koran[ book of love],and other such graffiti and minutiae, the viziers of bureaucracy will adopt a more benign view towards what they must regard as an aberration of the mind.
They may even discover respect, perhaps even fear.

Chicken:

The point being mainly that before we bemoan the sorry state of Catholicism in America and their supposedly "Catholic" institutions that are anything but, we should first and foremost perform a root analysis of the causes of such deplorable state.

Perhaps those who often promote the largely sad crusade to engage in so-called ecumenism that has done nothing more than to compromise the Catholic Faith should examine exactly what such a Faith is genuinely about and the tragic fruits of such compromise that has only wrecked our Church today.

This is why I found your comment concerning excommunication amusing.

In fact, I find it remarkable that Lydia, herself a Protestant, had actually suggested that we would've been better had we hired a Protestant professor -- imagine that?

When Humanae Vitae was announced, how many Protestant churches, from the Anglicans to the baptists, from the Reformed to the Envangelical, had defied and even made mockery of the Catholic Church's teaching on birth control and even issued their own official "church" teachings that birth control was actually okay and even scripturally sound?

How many of these even went so far as to say that abortion itself was actually okay?

Therefore, don't be so surprised if Catholic institutions appear as anything but -- especially since, these days, Catholics themselves are hardly "Catholic". at all.

It's at least worth noting that plenty of purely secular insurance plans used by purely secular employers across the country do not cover OCs. They regard them as being on a par with diet pills--entirely optional and not necessary for treating any illness. Yet the EEOC isn't going around suing all of the employers who have those plans for gender discrimination. I fear it's all too obvious why they are not doing so.

I mean, why they _are_ going after Belmont while they _aren't_ going after secular employers who have similar insurance coverage.

Yet the EEOC isn't going around suing all of the employers who have those plans for gender discrimination.

This assumption is false.

Well, I know of a large state university right here in Michigan whose health insurance doesn't cover OCs and, AFAIK, never has, and I have yet to see any sign nor hint of a federal lawsuit.

Well, that settles it.

Badgering back for a moment:

Lydia's statement "...the EEOC isn't going around suing all of the employers who have those plans for gender discrimination" was not an "assumption" on her part. She stated it as a fact in her experience and sphere of knowledge.

If you wish to disprove her statement, cite countervailing facts from your own sphere of knowledge. None of us knows everything, true; but IMO it's wrong to say Lydia just "assumed" this.

Can you cite actual cases to the contrary, or are you just making an assumption of your own?

As I stated above:
The wording above, "denied a benefit to women only", is well trod territory with plenty of regulatory precedent along the way.

This is from my experience administering health plans, but hey, what the hell do I know?

There has been much discussion and blogging about this "Determination" letter. As an attorney, I practice before the EEOC and teach discrimination law at the undergraduate level. And it is important to note that this process has just begun--the fight is far from over.

Please see my blog, "Constitutional Writes" at http://tonykolenc.blogspot.com/ for my analysis of this issue.

Some states (like, of course, the one where Belmont is located) do require coverage of OCs. Apparently if the state does not require it, the "regulatory precedent" at the _federal_ level is not terribly overwhelming, because state schools are lawsuit-leery as, I'm sure, is Blue Cross Blue Shield (!) a fairly well-known health plan, and would hardly go about casually doing something they knew full-well would expose them to probable federal suit. I say again--it looks like the EEOC in this case is pushing the envelope at the federal level, and is choosing a religious school as the place to do so.

"Second, the leader of the original lawsuit and filer of the current complaint is the chairwoman of the philosophy department, Jeanette Blandford."

Pretty much says it all. Notre Dame or fidelity to the Magisterium? Be careful when you choose your friends.

I want to correct some of Michael Liccione's and Matt C's comments above. They say that the College obtained a religious exemption from NC. This idea was first promoted by President Thierfelter, I think in the Gaston Gazette, and has been perpetuated by Patrick Reilly in his on line Wall Street Journal opinion piece from August 13, 2009. http://online.wsj.com/article/SB10001424052970203863204574346833989489154.html

If the college obtained a state religious exemption, and there has been no written evidence disseminated to the college community to indicate that it did, then the NC Department of Insurance reversed itself later, and decided that the North Carolina Constitution forbade them from giving an opinion on religious issues. The evidence that they took this stance comes from a letter sent by the college administration to every member of the college community. The DOI simply avoided making a decision on the religious exemption. Given that the legislature intended that the DOI would be the decision maker regarding religious exemptions, I wouldn't be surprised to see the contraceptive equity bill revised so that the legislature's intention can be realized. The current governor was one of the co-sponsors of the bill. Also, there have been no lawsuits yet. That could happen if the current conciliation process fails.

It appears that there has been a coordinated campaign to frame this debate over contraceptive benefits as motivated by the Obama administration, and as another intrusion into state's rights. I think this is a stretch. The federal government has had control over the conditions of employment for many years, which is why we have a federal minimum wage and other workplace protections. As for the EEOC's position being politically motivated, the EEOC decided in 2000 that workplaces that provide prescription benefits must include prescription contraception because of the Pregnancy Discrimination Act. This determination has been upheld by some federal appellate courts, and struck down by others. Recently state contraceptive equity statutes affecting Catholic Charities were upheld in California by the CA Supreme Court. The United States Supreme Court refused to hear an appeal.

If you read the comments following the Patrick Reilly online WSJ piece, David Neipert points out that Belmont Abbey College once argued before the US Supreme Court that it was not primarily a religious institution in order to continue getting federal money[I presume via federally guaranteed student loans]. He argues that it will be very difficult to reverse course and argue that it is primarily a religious institution now. I would also like to point out that the student health plan may still offer contraception. It's actually hard to tell from reading it.

LawProf blog suggests checking out Alyson L. Cantrell, Weaving Prescription Benefit Plans into the Birds and the Bees Talk: How an Employer-Provided Insurance Plan that Denies Coverage for Prescription Contraception is Sex Discrimination under Title VII as Amended by the PDA, 39 Cumb. L. Rev. 239 (2008-09).

Regards,

Glaucon

If only we could learn more interesting blogs like this. thank you for this

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