En-gendering economic inequality.

• Author: Gilman, Michele E.
• Position: II. Wal-Mart v. Dukes and Modern-Day Discrimination E. Devaluation of Care Work through Conclusion, with footnotes, p. 31-61

5. Devaluation of Care Work

   The majority also failed to recognize how many women at Wal-Mart fell victim to caregiver discrimination, also known as family responsibility discrimination. (206) This stereotype holds that because women are--and should be--the primary caretakers for their children, they are less likely to prioritize work and to therefore succeed in the workplace. (207)

   The record in the Wal-Mart case was laden with examples of statements reflecting this bias, such as a male manager who stated that "'women should be home barefoot and pregnant"; a female employee who was told to resign and "find a husband to settle down with and have children"; and a supervisor who asked for the resignation of the only female store manager in her district because she "needed to be home raising [her] daughter" instead of managing a store. (208) Justice Ginsburg acknowledged the pervasiveness of this stereotype, explaining that Wal-Mart's policy of requiring relocation as a condition for promotions created a risk that "managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men." (209) This could lead management to pass over women willing to move, or to enforce a policy that harms women who cannot relocate as members of dual-earner families, with no concomitant productivity benefit. (210) Ginsburg sees that supposedly "natural" or "inevitable" market outcomes that disadvantage women are actually the result of stereotyped thinking put into action. She thus argues that society needs to support care work rather than punish women for their care obligations.

6. Impact

   The immediate impact of the Wal-Mart decision was that the 1.5 million plaintiffs did not get the relief they were seeking. Instead, they had to go back to the drawing board to redesign their lawsuit, and they did so, filing a series of smaller class action complaints limited by geographical region, although there has been little success to date due to court denials of class certification and statute of limitations bars. (211)

   One investigative study found that in the aftermath of the decision, "[j]ury verdicts have been overturned, settlements thrown out, and class actions rejected or decertified, in many instances undoing years of litigation. The rulings have come in every part of the country, in lawsuits involving all types of companies." (212) The study found that fewer employment discrimination class action cases are being filed, and settlement amounts have plummeted from $346 million for the biggest ten cases in 2010 to $45 million in 2012. (213) In short, Wal-Mart v. Dukes has tipped the litigation balance strongly in favor of employers over employees. (214) The case has clearly impacted the availability of large class actions challenging employment practices.

   The case has also left employment discrimination law in flux, particularly as applied to second generation claims challenging subjective employment practices. (215) These forms of discrimination operate "less as a blanket policy or discrete, identifiable decision to exclude than as a perpetual tug on opportunity and advancement." (216) The majority's ruling means that discretionary employment practices cannot provide the basis for a common claim in a class action lawsuit. (217) The result may be an increase of gender-based pay disparities in the workplace, due to the Court's presumption that subjective personnel practices are reasonable. (218) In fact, employers may now have a perverse incentive to maintain subjective practices without centralized oversight as a way of evading Title VII liability. And, given Wal-Mart's dominant status in the marketplace, other employers may be encouraged to follow their model. (219) For all these reasons, scholars have been looking for other Title VII theories, alternate employment statutes, and other statutory models to frame claims, as well as non-litigation alternatives, such as structural reform of workplace practices and employer compliance programs. (220)

   3. Burwell v. Hobby Lobby Stores, Inc.

1. The Economics of Contraception

   Decades of research establish that contraception access directly fosters women's economic well-being by helping women control the size of their families and the timing of childrearing. (221) In turn, this control allows women to make educational and employment decisions that benefit themselves and the broader society. (222) The Supreme Court has previously acknowledged the importance of reproductive autonomy, stating in Planned Parenthood of Southeastern Pennsylvania v. Casey, "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." (223)

   Notably, since the Supreme Court established contraception as a fundamental right in 1965, the percentage of women participating in the workforce has more than doubled to around 60% of women. (224) Moreover, access to contraception has contributed to approximately one-third of women's wage gains since the mid-twentieth century. (225) The advent of available birth control has also lead to dramatic increases in the numbers of women in college and in formerly male-dominated professions such as medicine, dentistry, law, and business. (226) Contraception also supports women's health and that of their children. It can limit the health risks involved in pregnancy, (227) which are compounded for unintended or narrowly-spaced pregnancies. (228)

   For all these reasons, over 99% of sexually active American women between fifteen and forty-four have used birth control. (229) Nevertheless, about half of all annual pregnancies are unintended, amounting to 2.8 million births, and of these, about half result from the 14% of women using no form of contraception. (230) One contributing factor to unintended pregnancy is the cost of birth control, particularly for the most effective, long-lasting forms. (231) For instance, the cost of an 1UD equals a month's full-time pay for a minimum wage worker. (232) Thus, it turns out that only one-fourth of women who request an IUD go through with insertion after they find out the cost, which can exceed $1,000 for the device and medical procedure. Overall, almost one-third of women report that they would change their contraceptive method if cost were not a factor. (233) These costs are significant, given that the average American woman wants two children, and thus she will need contraception for at least three decades of her life. (234) The cost barrier is compounded for low-income women, who have five times the unintended pregnancy rate of women with incomes above 200% the poverty line. (235) Unfortunately, publicly funded family planning meets only 54% of the need. (236) Not surprisingly, health insurance makes a difference, and women with coverage are much more likely to use contraceptive care. (237)

2. Background of the Case

   The myriad of health and economic benefits associated with contraceptive access explain why the Affordable Care Act ("ACA") covers birth control. Under the ACA, employers with fifty or more full-time employees must offer "a group health plan or group health insurance coverage" that provides "minimum essential coverage." (238) Initial drafts of the ACA did not cover women's preventive services, prompting Senator Barbara Mikulski to introduce the Women's Health Amendment in order to counter gender discrimination in the health insurance market and "to guarantee women access to preventive health care screenings and care at no cost." (239) The Amendment passed, and is part of the ACA. Meanwhile (and relevant to the Hobby Lobby case), Congress defeated a proposed "conscience amendment" that would have allowed employers to deny certain forms of coverage based on religious beliefs. (240)

   Pursuant to the ACA, employer group health plans must provide "preventive care and screenings" for women, (241) defined as the "full range" of FDA-approved contraceptive methods, as well as patient education and counseling for all women with reproductive capacity. (242) By prohibiting patient cost sharing, the ACA "brought with it the potential to eliminate cost as a reason for choosing one method of contraception over another, a change that could be particularly important for low-income women and women considering methods with substantial upfront costs." (243)

3. The Majority Opinion

   Almost immediately after passage of the ACA, litigation over the contraceptive mandate began. (244) Over one hundred lawsuits were filed to challenge the contraceptive coverage requirement, and suits by three for-profit, closely-held corporations eventually reached the Supreme Court, which granted certiorari to resolve a circuit split on the issue. (245) These plaintiffs contended (incorrectly) that certain forms of contraception, such as IUDs and emergency contraception, act as abortifacients, (246) and thus complying with the contraception requirement would force them to facilitate abortions in violation of their religious beliefs. In Hobby Lobby, the Supreme Court agreed with the plaintiff corporations and ruled that the contraception mandate violates the Religious Freedom Restoration Act of 1993 ("RFRA") (247) because it substantially burdens the exercise of religion and is not the least restrictive means for the government to achieve its objective. (248) Hobby Lobby is the first case in which the "Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law...." (249)

   The majority opinion, authored by Justice Alito and joined by Justices Roberts, Scalia, Thomas, and Kennedy (in concurrence) reasoned that corporations were "persons" who can engage in the "exercise of religion." (250) The Court concluded that the contraception mandate substantially burdened the plaintiffs' religious belief that life begins at conception by forcing them to either violate...