Pushback: Title VII Takes on Hobby Lobby

In Hobby Lobby, the U.S. Supreme Court decided that a for-profit corporation could avoid the requirement under the Affordable Care Act that it pay for coverage of female contraception in the employee health plan due to the employer’s religious objections to birth control. In so deciding, the Court allowed the employer to discriminate against its female employees in their employee benefits. Such a decision raises the possibility of a claim of sex discrimination by the corporation’s female employees under Title VII. This article explores the main issues and pitfalls in such a claim. The two main issues with the possible claim described here is with the Title VII requirements of a proper comparator and an adverse employment action. This article asserts that the proper comparator to female birth contraceptives is not male contraceptives but preventive treatments. On the adverse employment action element, this article finds that there presently is no adverse employment action, defeating the possible claim, because Hobby Lobby requires contraceptive coverage by the insurer when the employer has religious objections. The employee does not have to pay out of pocket. But if the ACA and with it the contraceptive mandate is repealed, as the current Congress and President have repeatedly threatened, employees could suffer a material loss when they have to pay out of pocket for birth control. At that point, a Title VII claim would be viable