On the 30^th of April, the House of Congress voted to strike down a local Washington D.C. law that would have allowed employees to sue the employers who discriminate them based on their health choice history (namely for any history of abortion or their use of contraceptives). It is the first time in 35 years when the House strikes down a D.C. on grounds of discrimination or for ideological reasons. The measure to ban the law was voted 228 to 192, with 13 Republicans deciding to side with Democrats in this effort, and 3 Democrats deciding to back the Republican agenda.

The Democrat representatives that backed the DC law blasted the idea of reproductive discrimination as an outrageous attempt to infringe women’s privacy, their equal opportunity employment rights and their privacy. The measure, initiated by Sen. Ted Cruz in his pre-presidential campaign days, states that employers should be able to access any applicant’s medical history and decide to reject them for use of contraception pills or for the fact that they have had an abortion at some point in their lives. Employers who would wish to do that will from now on be able to invoke their right to freedom of religion and freedom of conscience as reason enough for their decision. This will probably be the case of numerous church organizations, pro-life NGOs and so on.

The local D.C. authorities wanted to counteract this through the reproductive discrimination law that would have broadened the ‘discrimination’ term to include this type of employer behaviour, allowing employees or job applicants that were discriminated against based on this to fight back. Unfortunately for them, the House just disabled D.C.’s attempt to pass this law, which means that the Republicans and the religious organizations in the district had their victory after all, at least for now. Their reasoning

The new law could also enable employers to fire their employees on the same grounds of healthcare history. Besides the fact that this could potentially be hugely discriminatory, it could also serve as a cover for other abusive measures: just imagine how fast the use of birth control could be invoked as a legitimate reason whenever an employer fired an employee they didn’t like or whenever they tried to cheat an employee out of their monetary rights etc. The issue at stake here could potentially be much more than just a matter of religious conscience, however dubious that may seem in itself in the context of employment law theory. This is precisely why the debate around this law was so charged and why we can expect to see it continue at least for a while.

A fine point which illustrates just how fast things may yet change is the fact that the White House itself has stepped in to issue a statement. The White House’s office said that the Obama administration strongly opposes the repeal of this dubious employment law, and in the event that the law reaches the President’s desk, he will veto it. The Presidential Office’s statement also said that such a law ‘would undermine the reproductive freedom and private healthcare decisions of the citizens of the District of Columbia’.

What This Means for the U.S. Employment Law

If this precedent really comes to pass unchallenged by the White House, then any law that could potentially threaten citizens’ equal employment rights or their privacy would be much easier to pass. This could be good news for the church groups and pro-life NGOs who don’t want to be forced into paying birth control insurance contributions to their employees. Law-wise, the D.C.-issued Reproductive Health Non-Discrimination Amendment Act, if it had passed, could have been considered a precedent on how discrimination by employers is defined and instrumented. The district authorities wanted to make this definition much broader, in order to include the discrimination of employees based on healthcare history and decisions as well, in addition to the previously defined forms of discrimination.

This could have been quite an advancement for women’s rights in this country, and was celebrated as such by various organizations for equal employment when the D.C. law took the charge. In a country where, despite its reputable standards of democracy and human rights, equal wages for men and women are still far from reality, this could have been good news for the employment system. Not to mention that rebuffing the notion that the bodies of women and their health are anyone’s business besides their own is also a very welcome statement.

Unfortunately, the same ideological freedom which the women’s rights organizations mourn now can be invoked – and has been invoked – by the opposing side as well. The Republican party (and especially senator Ted Cruz who took personal initiative in this) made statements according to which the reproductive discrimination law would have robbed some employers of their right to freedom of thought and conscience (namely, the case in which church organizations or pro-life groups could have been made to pay birth control costs, which goes against their ideological background and religious convictions). Although overall the latest decision to strike down the D.C. law can be considered a drawback for the American employment law in terms of freedom and equal chances, it may not be a drawback for everyone.

The last time the House of Congress voted to turn back a D.C. local law was almost 35 years ago, in 1991, when the issue on debate was the maximum height allowed for D.C. buildings (sky-scrapers, namely). Both chambers of Congress and the then acting President, George H. W. Bush, signed a measure meant to prevent the D.C. authorities from changing the maximum height of buildings in the city. As for social policy matters (closer to the subject of today’s debate), the last time the Congress voted against the district’s law was in 1981, when the city was trying to erase its felony sodomy law.