Monday’s Supreme Court decisions in Hobby Lobby and Harris v. Quinn threaten women’s right to participate equally in the workplace

By Michelle D. Schwartz,
AFJ Director of Justice Programs

It’s probably fair to speculate that the vast majority of the 60,000 SCOTUSblog readers Monday morning were there to see what happened in Hobby Lobby—the Affordable Care Act contraception case—and that most casual Supreme Court observers have at most a passing awareness that the Court also decided a major union case, Harris v. Quinn.  There are many reasons why we all should pay attention to Harris v. Quinn, but here I will focus on just one that is at the heart of both Hobby Lobby and Harris:  In both cases, a majority of five men led by Justice Alito put at risk women’s ability to participate fully and equally in the modern American workforce.


Justice Alito

Justice Alito

The availability, accessibility, and affordability of contraceptive care are critical to women’s ability to excel and compete in the workplace.  Planned Parenthood has demonstrated that birth control has led to dramatically increased workplace participation, higher college graduation rates, and better wages for women.  Furthermore, contraceptive coverage is a benefit women have earned—and paid for.  As Gretchen Borchelt of the National Women’s Law Center wrote on this page in March:

[I]t’s actually women workers who are paying for this benefit.  Health insurance is part of an employee’s compensation—women pay with their labor and through the premium they contribute for their health insurance.  A woman worker is entitled to all of the preventive services without cost-sharing, as guaranteed by the law.  She deserves to be able to meet her health care needs through her regular insurance plan, just as she accesses other health care benefits, and just as men are able to access the health care they need. This critical health care service—which 99% of women have used at one point in their lives—should not be carved out just because her employer objects to it.

Yet, in Hobby Lobby, the Supreme Court has now held that employers can discriminate against their female workers by refusing to provide them with the same basic preventive health coverage men receive.

The decision in Harris v. Quinn similarly threatens women’s economic and workplace equality.  Harris deals with the ability of home health care workers to join together as public employees to bargain collectively for wages, benefits, and workplace conditions.  Ninety percent of home care workers are women (and 50 percent are minorities).  As Justice Ginsburg noted in her dissent, the Illinois home care workers at issue in Harris benefited greatly from collective bargaining as part of a union:

Because of that bargaining, as the majority acknowledges, home-care assistants have nearly doubled their wages in less than 10 years, obtained state-funded health insurance, and benefited from better training and workplace safety measures.

Nonetheless, the majority held that home health care workers were “partial public employees” (a category the majority invented) and, therefore, could not benefit from longstanding Supreme Court precedent regarding public employee unions.  In other words, this group of largely female public employees does not match the traditional public employee profile, and therefore cannot enjoy traditional public employee benefits.

Taken together, these two decisions mean lower wages, fewer benefits, and unequal power for women in the workplace.

These two decisions have another thing in common as well—both were  authored by Justice Alito.

Sadly, Justice Alito has something of a history here.  Last year, he authored the majority decision in Vance v. Ball State University, an employment discrimination case.  Justice Alito’s opinion in Vance overreached to limit employment discrimination remedies well beyond what was necessary to decide the case at hand.  As appalling as the decision itself was Justice Alito’s conduct while his colleague Justice Ginsburg summarized her dissent in Vance and a second case aloud from the bench.  As described by The Atlantic’s Garrett Epps:

Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg

 “[Justice Ginsburg] critiqued the Vance opinion by laying out a ‘hypothetical’ (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the ‘lead worker,’ who directs the crew’s daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.

“At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no.’ He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand. 

“The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent—gender equality in society in general and the workplace in particular.  Her words are as worthy of respectful attention as were his.”

All of this was predictable.  Prior to the January 2006 vote on Alito’s confirmation, my former boss—the late Senator

AFJ Director of Justice Programs Michelle Schwartz and her former boss, the late Sen. Frank Lautenberg, D-N.J.

AFJ Director of Justice Programs Michelle Schwartz and her former boss, the late Sen. Frank Lautenberg, D-N.J.

Frank R. Lautenberg, D-N.J.—explained why he would not be voting to confirm this son of New Jersey to the U.S. Supreme Court:

I often hear many concerns from my constituents about how powerless they feel . . . as an employee unfairly treated in the workplace.  . . . At the hearing, it was clear that Judge Alito almost always lined up against the little guy and with the big corporations and Government. 

He cited two cases in which Alito was the lone vote against women who had faced discrimination at work.

Senator Lautenberg had a favorite name for those lawmakers who tried to tell women how to live their lives by, for example, preventing them from getting contraceptive coverage.  He liked to call them the “male-a-garchy.” Here’s one of my favorite videos of him decrying the male-a-garchy’s efforts to take away women’s health care:

On Monday, Justice Alito and four other men on the Supreme Court showed once again that the male-a-garchy is alive and well on our nation’s highest court.

Read all of our blog posts on the Affordable Care Act cases

Read AFJ’s overview of the cases

Read more about Harris v. Quinn