Earlier this month, federal district court Judge Paul Engelmayer issued a 147-page opinion regarding the U.S. Department of Health and Human Services’ (HHS) “conscience” rule. This decision strikes down the rule—originally scheduled to take effect on November 22—that would have allowed health-care providers to deny services based on their moral or religious objection.
How the Trump administration proceeds in appealing this or any other court rulings against it remains to be seen, but congressional leaders are already taking a cue from the decision. On Tuesday, Reps. Chris Pappas (D-NH) and Barbara Lee (D-CA) and Sen. Patty Murray (D-WA) introduced the Put Patients First Act, affirming Engelmayer’s decision by permanently blocking the rule. Although it’s unlikely to become law, this legislation signals to the Trump administration that Democrats are ready and willing to fight back against the White House’s attempts to disrupt patient access to a full range of health-care options.
The political impact aside, Engelmayer’s opinion is worth a close examination because of its rich detail in addressing issues of administrative law, constitutional law, and legal procedure. One of his most important arguments is about the role of health-care employers in accommodating employees, particularly as it relates to Title VII of the Civil Rights Act of 1964.
The current administration has a contradictory history with interpreting and enforcing workers’ rights under Title VII. The U.S. Department of Justice (DOJ) recently submitted briefs arguing that Title VII does not protect against employer discrimination based on sexual orientation or transgender identity. Meanwhile, the HHS rule construed Title VII protections much more broadly for this specific class of health-care workers. Viewed in conjunction with this administration’s aggressive deregulatory agenda, the addition of a rule to shield already-protected workers seems out of place. Clearly, the Trump administration recognizes that Title VII is a powerful tool in advancing political priorities.
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But the language of Engelmayer’s ruling signals an important precedent for future cases utilizing Title VII to protect religious liberty: The Trump administration may not force the hands of employers when it comes to complying with any and all conscientious objector’s request for accommodation in a health-care setting.
Let’s take a closer look at why.
Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace, including religious and moral or ethical discrimination. Importantly, it does not guarantee all requested accommodations to all workers. Instead, the law guarantees reasonable accommodations for “protected classes,” such as members of marginalized racial groups or sexual identities. If an employee has a complaint of discrimination at work, and if that employee is a member of a protected class, employers must make a good effort to ensure that the discrimination stops. However, employers are free to alter or even reject requests for accommodation that would place extensive administrative or financial burdens on the employer. Therefore, Title VII is designed to both protect workers facing discrimination and to ensure that employers are not subject to unreasonable demands.
HHS plainly ignored the employer’s burden in issuing its “conscience” rule, which made it clear objecting employees merit extensive protection from employers. Under the rule, any employee involved in “counseling, referral, training, or otherwise making arrangements for the procedure” may object to their job duties for religious or moral reasons, and the employer may not inquire further into the employee’s reasoning. An employer’s failure to provide requested accommodations, even if they come at great cost to the employer, could result in the removal of that institution’s federal funding. In fact, an employee would have to “voluntarily agree” to an employer’s proposed accommodation in instances of perceived or even potential religious discrimination. As Judge Engelmayer stated, this completely upends the normal course of Title VII, making a special legal framework for religious health-care employees.
The courts, in many previous rulings, determined that an employer does not need to be highly responsive to an employee; they may simply do what is reasonable and not highly burdensome, in the case of the rule, to the hospital or clinic. The rule, then, attempts to change this paradigm dramatically, to one in which health-care institutions must find perfect solutions for this specific class of objectors.
Offering religious employees more protections at work seems a virtuous goal. However, health-care workers are already guarded by multiple laws from performing or assisting in care they find religiously objectionable. Five central laws protect health-care workers from providing abortion and other reproductive care that goes against their religious or moral beliefs, and 25 more are named in the rule.
Federal administrative agencies are, of course, entitled to interpret the legislature in instating the law. HHS, however, claimed that these laws only supported their interpretation of religious liberty at work. In fact, HHS’ rule created protections independent of prior anti-discrimination laws for employees that create an entirely new framework that is extensively deferent to employee requests. As Judge Engelmayer writes in his opinion, “[t]he 2019 Rule would effectively supersede Title VII in the health care field, to the extent that an employee claimed discrimination because an HHS funding recipient had failed to accommodate, or improperly or inadequately accommodated, a religious objection.”
Ultimately, Engelmayer’s opinion sees through what appears to be politically motivated and wholly unnecessary rulemaking. The judge’s ruling states that the HHS rule “applies to a host of funding recipients, public and private … [and] sets behavioral standards for those recipients” on the divisive issues of abortion, sterilization, and assisted suicide. It then goes on to strike down that rule for several reasons, chief among them the extensive burden it would place on health-care employers to shield their employees from potentially assisting in abortion and sterilization care. The ruling makes the important point that although federal agencies have great leeway to interpret laws and implement regulations, they cannot move against long-standing precedent embedded in Title VII’s reasonability requirement.
Exaggerating the need for religious accommodations in a health-care workplace is not simply redundant. It puts patient care at risk; limits employers from simply asking what objections a potential employee may have to allow for adequate hiring and staffing; and excuses employees ancillary to patient care—such as receptionists scheduling appointments—from performing basic duties should they find a religious objection to the patient’s care.
At its core, HHS should serve its constituents honestly and faithfully, and that includes patients who seek care at hospitals and clinics. Creating such extreme barriers to care cannot be construed as good for patients, and the interest of civil rights for one group cannot completely overtake the access to rights for another.
Inevitably, this ruling will be appealed. In the meantime, health-care employees will continue to have extensive safeguards against religious discrimination at work, and patients will continue to have to find health care that affirms their needs and choices.