Nov 18, 201311:28 AMForward HR
with Diane Hamilton and Nilesh Patel
Obamacare ruling means corporations can practice religion and deny contraception coverage
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Congress drafted RFRA so that every federal law, past and future, is subject to its requirements. Therefore, it is up to Congress to modify any previous law or draft future laws in a way that they are exempt from RFRA. Congress’ attention to this detail is no longer theoretical given that the Employment Non-Discrimination Act (ENDA) is currently being considered. ENDA would prohibit employment discrimination against individuals who are, or are perceived to be, gay, lesbian, bisexual, or transgender.
If Congress does not exempt ENDA from RFRA, religious corporations may be able to raise the same religious objections to ENDA as they did to the contraception mandate. In essence, this could mean that discrimination based on sexual orientation or transgender status may not receive federal protection and individuals in those groups would have to rely on state or local law for protection. In Wisconsin, this would mean that individuals who are gay, lesbian, or bisexual would continue to be protected by the Wisconsin Fair Employment Act while neither state nor federal law would protect transgendered individuals.
The Family Medical Leave Act (FMLA) is another area where religious corporations could raise an RFRA objection. Could an employer deny FMLA leave for an abortion? In fact, could a religious employer terminate employment altogether after learning about the employee’s plans? Could the same employer deny federal FMLA or terminate an employee who is in a same-sex relationship and requests time off for an adoption?
Unless the Supreme Court reverses religious corporations’ rights under RFRA or Congress exempts those laws from RFRA, more litigation may occur to clarify whether such employees’ FMLA rights substantially, and impermissibly, burden the employer’s religion.
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