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.