Sunday, March 25, 2012

The Arizona Birth Control Bill (With A Splash of Title VII)

There's a lot to be said about the Arizona bill allowing employers to opt out of covering contraception. Many have argued that the bill would allow employers to fire women if they use birth control for its intended purpose. Is that true? Or, as I've thought to myself, would that be discrimination on the basis of sex (in violation of Title VII, the big federal law outlawing employment discrimination on the basis of race, sex, religion, national origin, and, most relevantly here, sex)?

Christine Clarke does a terrific job  explaining why firing women for using contraception would probably not be considered a Title VII violation - that is, why courts probably wouldn't find this type of firing to be employment discrimination against women. Clarke explains the theory behind the potential sex discrimination claim, which is pretty straightforward: if only women take prescription birth control, and you can fire them for taking it, isn't that the same as firing them because of their sex? She then goes on to remind us that unfortunately, courts probably wouldn't see it that way. Their track record makes that pretty clear. For instance, they didn't think discrimination on the basis of pregnancy  was sex discrimination (until a specific law was passed to change that). More recently, a Texas court found that firing someone for breast-feeding was not sex discrimination  (or a"pregnancy-related health condition" either - go figure!), even though everyone knows that only women breast-feed (for now, anyway). So, it seems like this logic - an activity is done only by women, so firing someone for that activity = firing her for being a woman - is not going to fly in court.

Clarke explains all of this very clearly, but I'm left with a lingering question that's specific to the Arizona bill. The bill allows employers to opt out of covering contraception if it's being used "in whole or in part" for contraceptive purposes. That raises a question, though. Even if a woman presents the employer with evidence that she's using contraception for a non-contraceptive purpose, how can the employer be sure she's not using it in part for contraception as well?

It seems to me that the only way is to ask, "are you sexually active and not using a backup contraceptive method?" If she says "yes," the employer doesn't have to cover her meds, and is free to fire her. But this law doesn't allow employers to ask men the question, "are you having unprotected sex?" and thus, to fire them if their answer is "yes."  In other words, an employer is empowered to seek out and terminate sexually active women, but not men.

That sounds like discrimination on the basis of sex to me. But, I guess we can't trust the courts to see it the same way. Oh well - I guess there's always the possibility that  the Health Insurance Privacy Protection Act wouldn't allow any of this.

Wednesday, March 21, 2012

The Florida Stand Your Ground Law

So, I was going to write about the Florida Stand Your Ground law that's been in the news so much because of the Treyvon Martin case. Then I read this article from Slate (courtesy of Anti-Climacus), which pretty much explains it all. Still, I think it can't hurt to go over what the law actually says, right? So, here are some key parts.

1. Yes, the law does mean you can use deadly force against an unarmed person (sometimes).

The law says, "A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred."

In other words, if someone is breaking into your house (or car), you are allowed to (1) assume he is planning to kill you, and so, (2) kill him first. Without this law, you aren't allowed to use more force to defend yourself than the person attacking you (or who you think is attacking you) is using. That is, if they have no weapon, you can't use a weapon either. This law changes that by letting you assume they're using deadly force. The idea is that you don't have to wait and see how much force the person is planning to use - you can shoot first and ask questions...never. It's called "stand your ground" because you don't have to run away. 

2. This law can be used to protect domestic violence victims who kill their attackers at home...maybe.

This presumption in the shooter's favor doesn't apply if you kill the house's owner, unless there is an "injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person" (and there are other exceptions that aren't relevant here). 

What that means is, you can shoot your attacker even if he lives there too...but only if you already have a restraining order against him. 

3.  You have a right to "stand your ground" in public places, but in that case, it's not as easy to claim you killed someone in self defense.

The law adds, "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

This means, if someone attacks you in public, you can "stand your ground" - you don't have to run away. But, unlike the rule if someone attacks you at home, you can't assume they're planning to kill you. You can only use deadly force if you "reasonably believe" you need to, to save your own life or someone else's (or to stop a violent felony, like an armed robbery). This is much more like a regular self-defense law: if you kill someone, you have to prove you had a good reason to do it - you don't get the benefit of the doubt. This "public place" law is, of course, the one that would apply in the Treyvon Martin case, not the part that assumes it was ok for you to kill someone. 

According to the Slate article linked above, this law is applied with a hearing before trial in which the defendant (here, Mr. Zimmerman) has the burden to prove that he killed in self-defense. It seems to me that, because he wasn't at home at the time, he will have a much harder time doing that. If, that is, someone decides it's a good idea to even try. 


Friday, March 16, 2012

The Dead Anti-Bullying Bill in Arizona

I'd like to kick off this blog by talking about Arizona SB 1462, otherwise known as the Arizona Bullying Bill

This bill made the news today with its death: the president of the Center for Arizona Policy reportedly convinced legislators to ditch the bill because "Groups like Equality Arizona and the Gay, Lesbian and Straight Education Network (GLSEN) have used the bullying issue in order to gain access to our public schools." Arizona Senate Minority Leader David Schapira responded that "Cathi Herrod, an unelected lobbyist, killed a bill that would protect all Arizona kids purely because of her intolerance of gay kids," and helpfully called her a "legislative terrorist." You can read more about it anywhere, but this is a pretty good summary of the situation.

So, what was this bill really about? Was it about gay rights, or was it about protecting kids from bullying? 

Well, I won't hide the ball here: this bill wouldn't have done much to advance "the gay agenda." 

(To be fair, I'm an ardent fan of "the gay agenda," but that's a discussion for another day.) 

Existing anti-bullying law in Arizona, which already included policies and procedures for reporting, investigating, and punishing incidents of bullying. What this bill added was annual training for teachers, administrators, parents, and students "in preventing, identifying, responding to and reporting incidents of harassment, intimidation, or bullying." So far, so good, I think, even for Ms. Herrod.

The snag, as far as she's concerned, was that this training was to be provided free of charge by "a nonprofit organization." Ms. Herrod thought that non-profit organization was going to be someone she doesn't like, such as  - you guessed it - a gay rights group. (Or the Anti-Defamation League. But let's not even go there.) If you're the suspicious type, you might be concerned that advocacy groups of any kind would push their agendas, given an opportunity like this. Right?

Here's the thing. The bill went on to say, "The training provided pursuant to this section shall not be focused on a particular bullied class but rather that bullying is prohibited without regard to the subject matter of the bullying or the motivation of the perpetrator." Now, that wouldn't prevent a trainer from using examples that relate to his or her area of expertise, but it certainly shows that the authors of the bill wanted the training to be neutral. And, arguably, any trainer who used the forum to promote his or her agenda by focusing solely on one group (like LGBT kids, religious kids, atheist kids, disabled kids, or anyone else) would be violating the law.  And, as an additional safeguard, the bill assured that "the school shall notify all parents prior to conducting student training under this provision and shall not provide training to a student whose parent or guardian has not expressly approved of the student's participation in the training." So, parents who were worried that someone might try to push a despised agenda by using this training as a soap box would have every opportunity to protect their kids. 

So, to sum up, this was (1) not a big change from the existing law; and (2) pretty damn neutral as to anyone's agenda (unless that person is pro-bully, of course). 

Too bad it's dead.