Noted University of Wisconsin bioethicist and law professor R. Alta Charo recently took to the pages of the New England Journal of Medicine to bemoan the course of the now well-known debate over HHS’s contraception mandate. While the piece mostly decries the religious-liberty mantle (or “frame”) adopted by the mandate’s opponents, Professor Charo also notes that, along with various state-governmental bodies, the Equal Employment Opportunity Commission (EEOC) has determined that contraceptive coverage needs to be provided by employers. Given the technical nature of the EEOC’s procedural posture and the context presented, it is possible for a reader (especially a lay reader of the New England Journal of Medicine) to assume that this EEOC ruling is legally binding on religious institutions. This confusion is already widespread in journalistic circles, but as I have shown elsewhere, the contention that the HHS mandate is “nothing new” is just that: confusion.
Citing a December 2000 letter determination by the EEOC, Professor Charo notes that,
[Religious institutions with nonreligious functions] are typically subject to generally applicable laws for their nonreligious functions, such as civil rights laws prohibiting employment discrimination outside the context of ministerial functions.And the Equal Employment Opportunity Commission had already determined that singling out contraception from prescription-drug and preventive-care coverage is a form of sex discrimination forbidden by Title VII of the Civil Rights Act, with no exemption for religious employers.
As the determination shows, the EEOC did something to that effect twelve years ago. Yet it is incorrect to read EEOC’s determination as anything more than its considered opinion. Indeed, in the words of the only binding judicial precedent on the matter, it “lack[s] the force of law” as an agency “opinion” — and an erroneous one at that.
The EEOC “determined” that not providing contraception was discrimination under both Title VII and the Pregnancy Discrimination Act of 1978 (PDA). The EEOC did not determine this by promulgating regulations with the force of law (like, say, the recent contraception mandate from Health and Human Services) but rather by delivering a private ruling when asked to consider the question of contraceptive coverage as brought by two aggrieved parties. The authority of such a “determin[ation]” is merely persuasive, which is to say it is not binding on any employer, each of which is free to disregard the ruling and argue its contrary case in court — either against a private plaintiff or against the agency in an enforcement action.
Many such plaintiffs filed suit in the federal district courts. Some of them were successful; others were not. The only reported cases relying on Title VII or the PDA to require contraceptive coverage came against secular, not religious employers. None of these trial-court cases, even the successful ones, is binding precedent on the legal question of how the EEOC interpreted Title VII and the PDA. Neither a circuit court of appeals nor the Supreme Court had addressed that question of law until 2007 when the Eighth Circuit Court of Appeals in St. Louis took up the matter in In re: Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007). In that case Judge Raymond Gruender held that an “agency’s interpretation that is found in an opinion letter, policy statement, agency manual or enforcement guideline ‘lack[s] the force of law’ and is not entitled to [substantial judicial] deference.” Judge Gruender also noted, “the EEOC did not issue any guidance on the issue of coverage of prescription contraception until 22 years after the enactment of the PDA. The delay brings into question the consistency and persuasiveness of the EEOC’s position.” Thus the only extant binding judicial opinion on the EEOC’s legal determination, which controls ten federal district courts in seven states, held that it was wrong. Unsurprisingly subsequent suits are very few and far between.
Interventions by either the EEOC or the Department of Justice are similarly hard to find in the reported cases, which belies the idea that the EEOC somehow “determined” that employers needed to provide contraceptive coverage under Title VII and PDA in any legally enforceable way. The most high-profile of these interventions, the summer 2009 decision to sue Belmont Abbey College for its having terminated contraceptive coverage, was ultimately dropped and came on the heels of a March 2009 determination by the same agency that Belmont Abbey was without fault. Such nakedly partisan actions by a federal agency should (to borrow a phrase from Professor Charo) “cause political headaches.”
The broader context of the HHS mandate makes clear how little force the EEOC determination has. If this matter had actually been settled by the EEOC, then why would the Obama administration risk the “headaches” attendant to this new regulation? If Title VII and the PDA really do mean that all employers (even religious ones) need to provide contraception, why not just enforce those laws? Does the mere existence of co-pays for contraception — which are owed for practically every other pharmaceutical — require inviting this political controversy? Probably not. The simplest explanation is that the new regulations are necessary because the EEOC was wrong in its 2000 ruling, which lacks the force of law. This is a fact that those of us following the HHS-mandate debate would do well to keep in mind.
— Michael A. Fragoso is a student at Notre Dame Law School where he is President of Jus Vitae.
UPDATE: I would like to make clear that Professor Charo herself is keenly aware of the distinction between an agency determination (which, in correspondence prior to publication, she described as a “reflection of [its] thinking”) and a binding regulatory action. As such, any inferences from her article that the EEOC’s position reflects settled law are erroneous and contrary to her intent.