23 July 2014

Solving The ACA Religious Employer Problem

How can one resolve the Gordian knot of employers with religious objections to ACA mandated health insurance that are imposed on employees who receive group health insurance from an employer, now that the Hobby Lobby case has held that at least closely held companies can invoke religious exemptions to the ACA coverage mandates.

One of the cleanest approaches borrows a trick from education funding.  Public entities must not advance religious positions.  But, public entities are allowed to give content neutral scholarships and/or vouchers that can be used by individual students or their parents at either religious or non-religious educational institutions.  A mere provision of money controlled by an individual does not offend any legitimate interest of either the provider or the person receiving it.

How does this apply to the ACA?

Any employer could be allowed to opt out of the requirement to provide group health insurance if they instead provide equivalent vouchers for employees to spend on buying individual or family plan health insurance on an exchange and/or funding health savings accounts to pay for co-pays and deductibles.  But, employers who opt to provide group health insurance would not be allowed to opt out of the contraceptive mandate or any of the other mandated benefits of ACA compliant group health insurance plans.  Individuals on the exchanges could purchase plans that opt out of one or more kinds of coverage based upon religious objections - Seventh Day Adventists could buy insurance that doesn't cover blood transfusions, devout Roman Catholics and pro-life Evangelicals could opt out of contraception coverage, and so on, but they couldn't impose their views on others and would have to find an insurer willing to offer compliant coverage or pay the individual mandate penalty.

Hobby Lobby itself tends to enforce a neo-feudalist approach in which the local lord makes decisions on religious conviction for all of his subjects.  In contrast, this solution (which might even be possible on a regulatory basis) reduces to neo-feudal power of employers over their employees on matters of faith, a far better approach in a religiously pluralistic society, that still minimized the amount of health care provided directly by an employer.

22 July 2014

Manifest Misconduct and Mismanagement

It isn't uncommon for a court case to reveal serious misconduct or mismanagement that is beyond the scope of the current litigation and therefore doesn't give the party suing a right to relief.

For example, a recent 7th Circuit case involving sex discrimination at a state prison in Indiana, revealed a rampant lack of discipline among the staff to the point that night shift workers were having sex on the Plaintiffs desk almost every night.  This was widely known and the supervisor expressly said that he didn't care and that she should just wash her desk off each morning.

The Court held that this didn't constitute sexual harassment because night shift workers only had sex there because it was convenient, and not because she was a woman, and further held that she had no retaliation claim because her complaint was not about gender related harassment, but merely run of the mill, not federally regulated harassment.

There is room to disagree with that conclusion, but the screaming and yelling obvious point revealed by evidence like this in her case, for which she personally wasn't allowed to sue in federal court, is that the management of the prison under both the current and previous warden was absolutely egregious.

This should, but all too often does not, have serious consequences.  The facts that came to light should cause every single manager on the day shift and night shift, and everyone who was involved in carrying out the harassment at that prison, to be fired in a matter of days.  If the staff at the prison cannot maintain some minimal degree of professionalism at work, then there is no way that anyone can reasonably expect that they are fulfilling their other professional duties in a reasonable manner.

Once upon a time, grand juries were convened when this sort of scandal was revealed to investigate the mismanagement of a public institution, but now, that doesn't seem to happen.

Indeed, this case also reveals an all to common divide and conquer litigation tactic.  The core sex discrimination in this case involved a slap on the wrist punishment for a male employee with seniority and higher rank who was involved in an affair, while she lost her pension, had a difficult time obtaining unemployment benefits and lost any hope of working for the state again.

In other contexts, it is common for a defendant to settle with someone who has the greatest capacity to litigate a wrongdoers misconduct, while the settlement leaves obvious harm to other similarly situated people as a result of the same pattern and practice of conduct who have less of a capacity to litigate without relief.  Similarly, even if multiple people violate the law in ways that give rise to legal liability, private litigators frequently satisfice, litigating until enough big pockets have paid enough in damages, even if that means that there are no consequences for equally guilty offenders who pose a continuing threat to the general public.

In a world where harms were mostly isolated incidents, this wouldn't be a serious problem.  But, in a world in which systemic conduct by big businesses, government agencies, and even not so big businesses that interact with many customers or vendors are the norm, as often as not, misconduct directed at one person or one employee is part of a pervasive pattern of misconduct that impacts many people.

For example, even if a contract term if found to be void as against public policy in a court case, it is rarely actionable for a firm to continuing using the same form contract in the hope of strengthening their negotiating position in future disputes with people who don't know that this happened.

In a better world, when a litigated case reveals something rotten, that information should be shared widely and have consequences.  All too often, however, this is artfully avoided.  Class action lawsuits were meant to address this kind of problem, but have not been very effective.  Routinizing other collateral consequences of misconduct and mismanagement that are revealed in a case should be one objective in reforming our civil litigation system.