09 December 20
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08 December 20
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Labor Secretary Eugene Scalia Legalizes Workplace Discrimination on His Way out the Door
Mark Joseph Stern, Slate
Stern writes: "On Monday, the Trump administration finalized a sweeping new regulation that allows federal contractors to discriminate against racial and religious minorities, women, and especially LGBTQ people in the name of protecting 'religious liberty.'"
It effectively abolishes critical workplace protections for these contractors that have been in place for decades, reframing religious freedom as a near-limitless license to discriminate. Monday’s move will force the Biden administration to waste countless hours and resources reversing this radical rewrite of federal law.
The rules restricting discrimination by federal contractors springs from Executive Order 11246, which President Lyndon Johnson signed in 1965. Johnson’s order barred discrimination on the basis of race, color, religion, or national origin. Presidents later added sex, sexual orientation, and gender identity to the list of protected traits. Today, there are about 4 million employees of federal contractors who benefit from these protections. The Department of Labor enforces presidential prohibitions against discrimination in these workplaces.
But the current Labor Secretary, Eugene Scalia, is no fan of these rules—or, it seems, of any workplace protections. Scalia, son of the late Justice Antonin Scalia, previously worked as a corporate attorney who specialized in crushing employees’ rights. He has spent his tenure at the Labor Department dismantling federal regulations that safeguard workers’ rights, health, and safety. Scalia’s deregulatory agenda has been especially catastrophic during the pandemic; under his guidance, the agency refused to protect workers from COVID-19, permitting fatal outbreaks through its own shocking negligence.
In the long run, Scalia may be best remembered for abandoning his duty to shield vulnerable employees from infection and death—the many people who died of COVID-19 after he declined to enforce basic workplace safety rules in the midst of a pandemic are gone forever. Scalia’s new discrimination rule, by contrast, will have a short shelf life: There is no doubt that the Biden administration will repeal it, though the process may take months, even years. It is worth assessing Scalia’s rule, both because it will likely take effect for now and because it reflects a disturbing vision of “religious freedom” that is ascendant in the federal judiciary.
The DOL’s new regulation has three major components, none of which is grounded in the law. First, it broadens the definition of a “religious” contractor to encompass for-profit corporations, expanding the number of employers with a right to discriminate. Second, it allows these contractors to discriminate on the basis of an employer’s subject interpretation of “religious tenets.” Third, the rule makes it much more difficult for the Department of Labor to prove that a contractor discriminated unlawfully. Taken together, Scalia’s alterations would essentially eliminate executive protections for millions of employees in the U.S.
Scalia framed his rule as a mere “interpretation” of current law, seizing upon a previous exemption added by President George W. Bush. The past modification allowed a subset of religious contractors to favor employees of a “particular religion.” Bush’s exemption was designed to let faith groups hire co-religionists; for instance, it would let a Jewish charity hire a Jewish director, even though turning away non-Jewish applicants would otherwise constitute illegal discrimination. The courts have interpreted this provision to cover nonprofit organizations and institutions with a dedicated religious mission.
Under Scalia’s rule, this narrow exemption will become a black hole that sucks up all claims of discrimination. It manufactures a new test by plucking language out of different statutes and court decisions to encompass pretty much any contractor seeking to escape a lawsuit. This test merely asks if a contractor views and conveys itself as religious, with heavy deference for an employer’s own sense of its “religious purpose.” It covers for-profit corporations so long as they swear they are motivated by religion. Scalia has given these companies free rein to discriminate on the basis of religion.
The rule also expands the scope of permissible religious discrimination. Bush’s exemption merely covered an employer’s preference for employees of a particular religion. A Baptist college, for example, could hire Baptist professors. Scalia’s rule alters the definition of “religion” to include “acceptance of or adherence to religious tenets as understood by the employer.” So, a Baptist college could not just favor Baptist employees, but demand that its employees adhere to its interpretation of specific Baptist teachings. If an employee practiced her faith differently from her boss, she could be fired. This exemption includes not just religious exercise but every facet of life: An employee who takes birth control, gets a divorce, or obtains an abortion could be fired for violating her boss’s religious “tenets.” A gay employee could be fired for marrying his partner. A transgender employee could be fired for transitioning. Any personal decision that contradicts “religious tenets as understood by the employer” would serve as grounds for termination.
Scalia cements this rule by jacking up the Labor Department’s burden of proof when charging a contractor with discrimination. Previously, the agency used a “motivating factor” standard: An employee could prove illegal discrimination by demonstrating that a protected trait was one factor in their firing. Scalia’s new rule requires a “but-for” standard, which means an employee cannot prevail unless they prove that a protected trait was the factor in their firing. This revision carves out a massive loophole: A contractor could fire a white employee for marrying a Black person, then argue the termination was rooted in a “religious tenet” against interracial marriage. Racism, sexism, anti-LGBTQ animus—it can all be legalized under the guise of religious freedom. So long as a contractor’s discrimination is rooted in some religious principle, it won’t violate this perverse regulation.
This rule does not overturn the Supreme Court’s recent decision in Bostock v. Clayton County, which prohibited LGBTQ workplace discrimination under a different law—Title VII of the Civil Rights Act. But Jennifer C. Pizer, senior counsel at Lambda Legal, pointed out that Title VII only covers employers with 15 or more employees. Many small employers that are not covered by the law still comply with executive nondiscrimination rules to procure or maintain federal contracts. Pizer also told me that executive orders Scalia undid had given companies “a powerful disincentive to discriminate” if they hoped to receive government contracts. “It is a free choice whether to pursue a federal contract or grant,” she said, and some companies will agree not to discriminate in order to remain eligible.
The Trump administration has spent years enshrining pro-discrimination rules into the law. Across federal agencies, his allies have sought to implement cruel regulations that legalize bigotry in schools, hospitals, universities, and other workplaces. Bostock limited the reach of this campaign, and the Biden administration can eventually undo all these policies. But Trump has also stacked the federal bench with cruel hacks eager to roll back the rights of women, racial minorities, and LGBTQ people. They will continue Trump’s crusade long after he has left office. Scalia’s rule might not survive for long, but it gives us a preview of the looming battles over employers’ authority to impose their own bigotries on their workforce.
Joe Biden. (photo: Mike Blake/Reuters)
ALSO SEE: Today Marks an Important Electoral College Deadline.
Here's Why That's Bad News for Trump
The US Election's 'Safe Harbor' Deadline Is Here. What Does That Mean for Biden?
Sam Levine, Guardian UK
Levine writes: "This year, 8 December is the so-called 'safe harbor' deadline, which federal law says must fall six days before electors meet across the country to cast their votes for president."
READ MORE
Soldiers. (photo: PA)
Danny Sjursen and William J. Astore | Spilling Ink and Spilling Blood: Fighting and Writing Against America's Forever Wars
Danny Sjursen and William J. Astore, TomDispatch
Excerpt: "If you have a moment, how about joining two retired officers, Bill Astore and me, Danny Sjursen, as we think about this country's catastrophic forever wars that, regardless of their deadly costs and lack of progress, never seem quite to end?"
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DACA recipients and their supporters rally outside the U.S. Supreme Court in Washington, D.C. (photo: Drew Angerer/Getty Images)
Immigration Officials Restore DACA and Start Accepting First-Time Applications Following Court Order
Camilo Montoya-Galvez, CBS News
Excerpt: "Complying with a recent court order, the Trump administration on Monday reinstated a program created by President Obama to shield undocumented immigrants who came to the U.S. as minors from deportation, announcing it would accept initial applications for the first time in three years."
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'The explicit purpose of Medicaid is to provide health coverage to vulnerable populations - or, at least, to pay for the cost of such coverage.' (photo: Gorodenkoff/Adobe Stock)
A New Supreme Court Case Considers Whether Low-Income People Can Lose Medicaid if They Aren't Working
Ian Millhiser, Vox
Millhiser writes: "The Supreme Court announced on Friday that it will hear a pair of consolidated cases - Azar v. Gresham and Arkansas v. Gresham - both of which concern whether the state of Arkansas may require Medicaid recipients to either work or take certain steps to find a job, or else lose their health benefits."
The courts haven’t looked favorably on states imposing work requirements on Medicaid beneficiaries. That could change in a 6-3 Republican Court.
he Supreme Court announced on Friday that it will hear a pair of consolidated cases — Azar v. Gresham and Arkansas v. Gresham — both of which concern whether the state of Arkansas may require Medicaid recipients to either work or take certain steps to find a job, or else lose their health benefits.
Arkansas, with the Trump administration’s approval, implemented a program called “Arkansas Works,” which requires Medicaid beneficiaries between the ages of 19 and 49 to “work or engage in specified educational, job training, or job search activities for at least 80 hours per month,” and to document that they’ve engaged in these activities.
The ostensible purpose of Arkansas Works is fairly straightforward. If Medicaid beneficiaries risk losing health care if they aren’t also employed, then they have additional incentive to find work. In approving Arkansas’s request to add a work requirement to its Medicaid program, the Trump administration claimed that this requirement would “encourage beneficiaries to obtain and maintain employment or undertake other community engagement activities that research has shown to be correlated with improved health and wellness.”
Yet research indicates that Medicaid work requirements do not advance this goal. A 2019 study published in the New England Journal of Medicine found that “Arkansas’s implementation of the nation’s first work requirements in Medicaid in 2018 was associated with significant losses in health insurance coverage in the policy’s initial six months but no significant change in employment.”
Nevertheless, 19 states have attempted to implement work requirements, although some of these states have since abandoned such plans. The Department of Health and Human Services has approved eight of these requests so far, with several more pending.
For the moment, at least, none of these work requirements are in effect. Many have been blocked by courts (the opinion blocking Arkansas’s work requirement was written by David Sentelle, an extremely conservative federal appeals court judge). And the federal government implemented a freeze on dropping people from Medicaid during the Covid-19 pandemic.
Moreover, because Medicaid work requirements must be approved by HHS, the Biden administration will likely be able to withdraw approval of such programs — although the process of withdrawing approval may take some time to complete.
Nevertheless, the implications of the Gresham cases could be profound. While Arkansas’s work requirement was in effect, about a quarter of those subject to the requirement — more than 18,000 people — were kicked off Medicaid in five months. And that’s just in one state.
Moreover, while the Biden administration is unlikely to permit Medicaid work requirements, a future Republican administration is likely to support them just as enthusiastically as the Trump administration.
Thus, if the Supreme Court holds that such requirements are lawful, thousands (or potentially hundreds of thousands) of Americans could lose coverage whenever a Republican occupies the White House.
Medicaid waivers, briefly explained
Medicaid is a partnership between the federal government and the states to provide health coverage to low-income Americans. States administer their own Medicaid programs and pay for some of the costs of those programs. The federal government, in turn, provides significant funding to states — provided those states comply with conditions laid out in the various laws and regulations governing Medicaid.
Prior to Obamacare, states that participate in Medicaid (and all 50 states do) were only required to cover certain mandatory populations, such as poor families with dependent children or certain low-income individuals with a disability. The Affordable Care Act sought to expand Medicaid to all Americans earning less than 133 percent of the poverty rate, but the Supreme Court held in NFIB v. Sebelius (2012) that states could opt out of Obamacare’s Medicaid expansion without endangering their existing Medicaid funding.
For this reason, a low-income individual’s access to Medicaid can vary greatly depending on where they live. To date, 12 states still have not expanded their Medicaid program under the Affordable Care Act.
Another reason access to Medicaid can vary from state to state is that the law also permits states to seek waivers from Medicaid’s minimum coverage requirements, in order to set up “experimental, pilot, or demonstration project[s].” Requests for such a waiver must be approved by HHS, and they may only be granted if the proposed experimental project is “likely to assist in promoting the objectives” of the Medicaid program.
Arkansas is one of the few Southern states that expanded Medicaid under Obamacare, although it did so pursuant to a 2013 waiver that allows Arkansas to provide private insurance to Medicaid beneficiaries, rather than covering them through a government-run Medicaid program. In 2017, about six months after President Trump took office, the state sought an amendment to this earlier waiver, allowing the state to implement Arkansas Works.
The courts have thus far been skeptical of Medicaid work requirements because they undermine the purpose of the Medicaid program
Because Medicaid waivers may only be granted if they are “likely to assist in promoting the objectives” of the broader Medicaid program, work requirements generally have not fared very well in federal court.
The Medicaid statute states that one of the primary purposes of the program is to furnish “medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services.” The statute defines the term “medical assistance” to mean “payment of part or all of the cost of [certain forms of] care and services or the care and services themselves.”
Thus, the explicit purpose of Medicaid is to provide health coverage to vulnerable populations — or, at least, to pay for the cost of such coverage.
Work requirements undermine this purpose. They reduce the number of Medicaid-eligible individuals who receive coverage. So, by granting a waiver permitting Arkansas’s work requirement to take effect, Trump’s HHS department exceeded its authority.
The Trump administration, for what it’s worth, claimed that such a waiver is justified because work requirements would advance broader public health goals. Among other things, the administration claimed that work requirements address “behavioral and social factors that influence health outcomes,” that they give Medicaid beneficiaries an incentive “to engage in their own health care and achieve better health outcomes,” and that they will “encourage beneficiaries to obtain and maintain employment” or take other actions that are “correlated with improved health and wellness.”
Yet, whatever the wisdom of these arguments — and, as the New England Journal of Medicine study suggests, there are good reasons to doubt the Trump administration’s case for work requirements — HHS is not allowed to substitute its own public health objectives for those laid out in the Medicaid statute.
As Judge Sentelle wrote in his opinion striking down Arkansas’s Medicaid waiver, “the Supreme Court and this court have consistently reminded agencies that they are ‘bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.’” And, in Gresham, he writes, “the means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it.”
Until recently, if Sentelle voted to strike down a federal policy that is rejected by Democrats and that enjoys broad support among Republicans, that was a pretty good sign that the policy would not survive Supreme Court review. President Reagan nominated Sentelle to the bench at the urging of Sen. Jesse Helms, the archconservative North Carolina Republican who first rose to prominence as an outspoken segregationist. Before Trump started filling the federal bench with Federalist Society stalwarts, Sentelle was one of the most conservative judges anywhere in the federal judiciary.
But the current Supreme Court, with its 6-3 Republican majority, is more conservative than any panel of nine justices since the early days of the Roosevelt administration. The fact that the Court decided to review Sentelle’s decision suggests that its new majority could potentially uphold Medicaid work requirements.
The Biden administration may be able to moot this case
As Joan Alker, executive director of Georgetown University’s Center for Children and Families, notes, “every waiver approval has a long list of ‘terms and conditions’ many of which are boilerplate material that appear in every Medicaid demonstration.” One of those requirements is that the federal government may withdraw its approval of a waiver if “at any time if it determines that continuing the waivers … would no longer be in the public interest or promote the objectives” of Medicaid.
So the Biden administration can probably rely on this authority to withdraw approval of Arkansas’s Medicaid work requirements — as well as approval of any similar requirements in other states. Yet, as Alker notes, “the state is guaranteed the right to a hearing to challenge the federal determination.” So it is unclear just how quickly the Biden administration could withdraw approval of Arkansas Works.
Moreover, as Alker also notes, Medicaid waivers often involve “complex agreements that include other features besides work requirements,” so the new administration may need to take its time studying these agreements to determine which parts it wishes to keep and which parts it wishes to unravel.
Arkansas’s work requirement, for example, was approved as an amendment to the state’s existing waiver allowing it to offer private coverage to Medicaid beneficiaries. This privatized arrangement has proven successful in expanding health coverage in Arkansas, and it’s provided a model that red states that might otherwise refuse to expand Medicaid have emulated. So it’s unlikely that the Biden administration will wish to unravel Arkansas’s waiver altogether.
The new administration, in other words, may spend its first months negotiating new terms with states like Arkansas, rather than acting unilaterally.
If Biden’s HHS department can nullify the Trump administration’s approval of Arkansas’s work requirements before the Supreme Court rules in Gresham, however, it has good reason to do so. Such a decision by the Biden administration would likely moot this case, and prevent the Supreme Court from handing down a decision permitting work requirements.
And that would mean that a future Republican administration would likely have to spend months or even years litigating the question of whether work requirements are permitted, rather than potentially being able to implement such requirements right away.
Young activists lead the way during a march demanding justice for Marielle Franco. (photo: Reuters)
Brazil Still Does Not Know Who Ordered Marielle Franco's Murder
teleSUR
Excerpt: "Clock alarms sounded in unison in Rio de Janeiro on Tuesday to 'wake up' a judicial system that has not yet resolved the death of Marielle Franco, a leftist councilor and gender activist who was brutally shot to death 1,000 days ago."
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A healthcare worker and a patient. (photo: ABC News)
PFAS Chemical Associated With Severe Covid-19
Sharon Lerner, The Intercept
Lerner writes: "Elevated levels of a PFAS compound were associated with more severe forms of Covid-19, according to a Danish study now undergoing peer review."
A Danish study found that people with elevated levels of a compound called PFBA were more than twice as likely to have a severe form of Covid-19.
The research, which involved 323 patients infected with the coronavirus, found that those who had elevated levels of a chemical called PFBA were more than twice as likely to have a severe form of the disease.
PFBA is one of a class of industrial compounds, often called “forever chemicals,” that has come to contaminate soil, water, and food around the world. It has been presented as relatively safe because it stays in human blood for much less time than some of the other compounds in the class and is a shorter molecule. Both traits are thought to be indications of its innocuousness. PFBA, which was created by 3M, is based on a four-carbon chain and is gone from human blood in a matter of days. It is still in use, while PFOA, which is based on eight carbons and stays in the human blood for years, has been phased out since 2015.
Though PFBA exits the bloodstream relatively rapidly, it accumulates in the lungs, which likely explains the finding of the Danish study. “It’s probably what’s in the lungs that counts because that’s where the big Covid battle is fought,” said Philippe Grandjean, the principal author of the study. Grandjean’s study involved 323 patients with Covid-19, 215 of whom were hospitalized. The researchers analyzed the blood of these patients for the presence of five PFAS compounds and found that only perfluorobutanoic acid, or PFBA, was associated with the severity of the disease. More than half of those seriously ill with Covid-19 had elevated PFBA levels in their plasma, while less than 20 percent of those with mild illness had elevated levels of the chemical.
The Centers for Disease Control and Prevention does not include PFBA in its surveillance of the blood levels of various PFAS compounds. But it is clear that the chemical is both widespread and particularly elevated in certain areas. Research conducted by 3M in 2005 showed that 20 of 36 pooled blood samples from the general population contained PFBA. More recent research from the Minnesota Department of Health shows that levels of the compound are elevated in the East Metro area near a 3M plant in the suburbs of Minneapolis–St. Paul. The chemical has also been found in other parts of the world, including Vietnam, Jordan, Thailand, and Japan. PFBA was also found in the Tennessee River near a 3M plant in Decatur, Alabama, and near a 3M plant in Cordova, Illinois. And it has been found in food, including radish, peas, tomatoes, and lettuce.
PFBA is used in electronics; clothing, including water-resistent outerwear; protective gear for medical staff and firefighters, such as surgical gowns; firefighting foam; carpets; floor polish; laboratory equipment; leather treatment; food packaging; cosmetics, including body lotion and foundation, concealer, eye shadow, powder; and bike lubricants, according to a recently published paper on the previously unknown uses of the chemicals.
According to the Minnesota Department of Health, which has set a safety limit for the chemical, PFBA causes changes in the liver and thyroid, as well as decreased red blood cells, decreased cholesterol, and delayed eye opening in animal experiments. A division of the Environmental Protection Agency called the Integrated Risk Information System, or IRIS, is in the process of assessing the dangers of PFBA and is scheduled to release its report in the first quarter of the coming year. Asked for comment, 3M referred The Intercept to a statement on its website asserting that “the available scientific evidence does not support a causal relationship between PFAS exposures and COVID-19 health outcomes.”
Grandjean’s previous research has shown that higher PFAS levels in children correlated to weaker response to various vaccines — and he fears the same will be true for a Covid-19 vaccine.
“I would think what we’ve seen before is very likely to happen again,” he said about the vaccines now in development for Covid-19. Communities that have elevated levels due to industrial contamination should get special consideration when a vaccine is distributed, he said. “They may need more than the 1 or 2 shots recommended for everyone else because their antibody production may be suppressed.”
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