Protecting Workers Through Publicity During the Pandemic

The COVID-19 pandemic has been devastating for many workers earning low wages and their families. Workers are risking their health and lives, including in meatpacking plants, grocery stores, restaurants, mass transit, and health care. Black workers, in particular, are experiencing retaliation for raising COVID-19 workplace safety concerns. Millions of workers are struggling to make ends meet after being laid off and need unemployment insurance. Other workers have been deemed essential, but their employers have not provided them living wages or critical benefits like paid sick days. While federal and state laws are in place to protect and support workers during the pandemic in various ways, many workers don’t know about these laws or programs. Similarly, employers may not realize their legal obligations. Using media and strategic communication was a critical tool for labor enforcement agencies before the pandemic--and it is of even greater urgency now.

To help agencies with this aspect of their work, the Center for Law and Social Policy (CLASP) and the Harvard Law School Labor and Worklife Program released a toolkit earlier this month, Protecting Workers through Publicity: Promoting Workplace Law Compliance through Strategic Communication. The toolkit shares research showing that media coverage and public disclosure improves policy outcomes, in labor and other contexts. The toolkit can be used by labor enforcement agencies, as well as policymakers who care about worker issues, to help them use media effectively. It will also benefit worker advocates, who can share it with enforcers and policymakers as part of an effort to press for greater use of this underutilized vehicle for driving compliance.

In response to the pandemic, Congress passed three stimulus bills and created new benefits, rights, and programs for the workplace. The federal measures included new unemployment insurance provisions, access to paid sick days, and paid leave. States and localities have also responded to the moment, passing new laws to help fill gaps left by the Trump administration. The effectiveness of these new measures will be jeopardized, though, if working people don’t know that enforcement agencies will hold employers accountable for retaliation or violating the law. Agencies can use proven communications strategies to fill knowledge gaps and advance the goals of workplace safety laws.

For a recent example of the importance of communications, consider the newly created paid sick days and paid leave benefits in the Families First Coronavirus Response Act and The Coronavirus Aid, Relief, and Economic Security (CARES) Act. Data shows limited awareness of these key provisions among both workers and employers:

In one survey, nearly half of people had heard very little or nothing about these benefits.
Only 28 percent of businesses covered by the law reported that they were taking advantage of available tax credits to reimburse employee paid leave.
In another poll, only one in five voters had taken or planned to take advantage of these paid leave provisions.
Many workers report fear of retaliation from their employers (even though the federal government will reimburse employers for this paid sick leave).

A lack of outreach has undermined the law’s critical goals. With better public communication, more workers would be aware of their rights and the government’s role in upholding them. Paid sick days are crucial for working people. They are also essential to protecting public health because paid sick days ensure that workers can comply with orders necessary to stop the spread of the virus. The new toolkit offers agencies concrete approaches and tools to elevate these new protections through a media and public communications strategy.

The toolkit also highlights research demonstrating the deterrent impact of media coverage. For example, a study released in June examined the impact of press releases issued by the Occupational Safety and Health Administration (OSHA) during the Obama administration. Duke Professor Matthew Johnson found that after a press release was issued about penalties and enforcement against an employer, there were 88 percent fewer violations at later inspections of facilities within a 5-kilometer (roughly 3.1 mile) radius. This effect persisted even with facilities 50 kilometers (roughly 31 miles) away. Overall, the research found that publicizing OSHA violations leads to significant improvements in workers’ safety and health. Studies in other areas (such as air pollution and food safety) have also found a beneficial impact based on media coverage or public disclosure.

In a moment of extreme hardship for workers and reduced state budgets, engaging with strategic communications, including by securing media coverage, is a cost-effective way for agencies to multiply their impact. It can be a critical method to inform workers of their rights, deter violations, and drive compliance with critical workplace protections.

Beyond the Right to Live in the World: A Reflection on the ADA and Disability Law

Jacobus tenBroek penned one of the most formative law review articles in disability rights history, “The Right To Live In The World, in 1966, in which he argued, among other things, that law and society should move from a custodial approach to disability regulation that prioritized segregated residences to an integrationist approach that prioritized mainstream community living. The thirtieth anniversary of the Americans with Disabilities Act (ADA), the civil rights legislation for people with disabilities, underscores the importance of Dr. tenBroek’s legacy as well. His emphasis on integration as the theoretical underpinning of law reform directly influenced key disability rights including Sections 501, 503, and 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. The idea that people with disabilities were entitled to equal opportunity in the same ways as other marginalized groups—such as people of color or women—was nothing short of radical at the time of his article. Dr. tenBroek framed equality for people with disabilities as “the right to live in the world” which, by extension, required physical access to make the right meaningful. While the ADA has undoubtedly transformed the built world by removing architectural barriers, legal scholars and advocates agree that the ADA has been less successful in combatting disability discrimination in other priority areas such as employment.

Three decades after President George H.W. Bush signed the ADA, a bi-partisan achievement, the existence of a “right” to live in the world has proven insufficient on its own to guarantee equal opportunities for people with disabilities. Case in point, Covid-19. The current pandemic has underscored what I call the “frailty of disability rights,” the instability of the rights of people with disabilities when they compete with those of other public interests. Two recent examples illustrate how antiquated social norms and attitudes about disability undermine how disability rights are exercised, interpreted, and enforced. First, consider the ease with which states and private actors dusted off healthcare rationing policies that blatantly discriminated on the basis of disability and age, and how easily such policies passed public muster. Alabama’s standards of care, for instance, classified people with intellectual and developmental disabilities as “poor candidates” for ventilators. If not for the swift legal response from disability advocates and a subsequent settlement, these standards of care would continue to inform medical treatment and rationing in Alabama and in other states. Second, consider how owners and operators of places of public accommodations wrestle with a growing anti-mask movement. Some anti-mask activists erroneously have claimed that the Americans with Disabilities Act exempts them from state and local mask requirements because of underlying health conditions. They have also argued that the ADA and privacy laws such as Health Insurance Portability and Accountability Act prevent business owners or service providers from asking any follow-up questions about disability. To be clear, there are certainly medical conditions that require business owners to provide reasonable modifications to allow individuals with disabilities to access their services; however, the analysis is not categorical. Such assessment would require an individualized examination of whether the person meets a threshold legal definition of disability, and follow explicit procedures enumerated in the ADA and corresponding regulations.

At least three factors continue to limit the remedial reach of disability laws. First, what I have called “the aesthetics of disability”—socially determined physical, sensory, and behavioral markers of disability—trigger affective processes that mitigate interactions with people with disabilities. The degree to which a person claiming disability manifests these limited aesthetic markers—usually assistive devices such as wheelchairs, white canes, prosthetics, or visible affliction and pain taken as proxies for incapacity—determines the legitimacy of their claim to disability identity and the perceived benefits that accompany such status. From parking lots and amusement parks to the courtroom, the aesthetics of disability have become evidentiary cornerstones of legitimate claims to disability. Consider the evidentiary role of Harvey Weinstein’s walker in his sexual assault trial in New York. Also, while upwards of 61 million people in the United States have one or more disabilities, only a small percentage of this number visibly manifest the aesthetics of disability. This can affect whether a person without them wishes to exercise legal rights and entitlements, in part, because these markers influence how factfinders will judge the persuasiveness of their claim to disability.

Second, and relatedly, disability laws have a complicated relationship with privacy. Congress intended the ADA to help address attitudinal barriers that limit access for people with disabilities which requires wrestling with deeply rooted biases against people with disabilities. The actual design of the ADA protects the employee from involuntary disclosures of disability information, including their identity as a person with a disability, in the employment context; however, if the employee voluntarily discloses to others in the workplace, they may lose the broader privacy protections. This means that an employee with a less visible disability, to protect their privacy rights overall, may choose not to disclose disability even when disclosure could benefit both the individual through the accommodations process and the broader normative mission of the ADA. This is part of the reason some anti-mask activists claiming disability exemptions have been so successful. Because people do not understand the nuances and realities of disability, they may be more inclined to be risk-averse without further inquiry when someone presents the possibility of ADA liability. This, in turn, breeds public mistrust about fraud and gaming that leads to public policing of disability rights. I argue in a forthcoming paper that the assumption that disability laws ought to value privacy as a default antidiscrimination tool requires interrogation, in part, because of the negative externalities it has produced—e.g., information deficits about disability, stigma, and the perpetuation of the aesthetics of disability in law. This is not to say that we should deregulate the disclosure of medical information or force people with less visible disabilities to disclose disability identity in service of meta-antidiscrimination goals; rather, in the design of legislation and regulation of disability, we must actively debate the stakes of nudging privacy over publicity.

Third, the ADA’s statutory focus on individual remedies over structural reforms has constrained its impact. The precarious balance between individual rights and systemic change is not unique to disability law. Perhaps, as Professor Jamal Greene argues in his forthcoming book, How Rights Went Wrong, the problem is the rights framework itself that sets up a zero-sum game (perceived or real) and breeds social discontent. This global explanation is certainly plausible and applicable to disability, but I would argue that disability law takes individualization a step further. The ADA emphasizes individual assessment to avoid categorical generalizations that treat all people with disabilities as incapable, frail, and pitiable. Key ADA legal tools such as reasonable accommodations and even the “direct threat” defense demand an individualized analysis to ensure that people with disabilities have access to work, places of public accommodations, and public programs and services. Congress focused on individualization because of the pervasiveness of stereotypes about particular disabilities, some that may be highly stigmatized such as HIV/AIDS or, perhaps, Covid-19.

How do we address the deficiencies of the ADA in creating a right to live in the world? To begin to answer this question, I return to Dr. Jacobus tenBroek. Dr. tenBroek was intimately tied to the civil rights movement for racial justice. Thurgood Marshall, at the time special counsel for the NAACP rearguing Brown v. Board of Education, wrote to Dr. tenBroek to discuss tenBroek’s abolitionist theories of constitutional interpretation of Section One of the Fourteenth Amendment. Dr. tenBroek’s work viewed segregation as antithetical to the constitutional guarantees of equal protection. This is the connection between his disability related work and his constitutional abolitionist work. Justice Thurgood Marshall would later go on to dissent in City of Cleburne v. Cleburne Living Center, Inc., reasoning, in part, that people with intellectual and developmental disabilities are a discrete, insular class of people who have been subjected to extraordinary discrimination, segregation, and neglect like other marginalized groups. This recognition of interdependence, historic subordination, and shared vulnerability is the future of disability justice in the United States. The coexistence of Covid-19 and Black Lives Matter in the public mind has created space to connect the dots. From policing to Covid-19’s effect on prisons and nursing homes, people of color, are disproportionately affected. Yet modern disability rights movements have not yet fully grappled with internal racism and the potential for an antiracist and anti-ableist approach to social justice.

But what is the proper role of law in this? It is complicated and not my intent to resolve these issues here. However, public discourse around abolition versus reform offers an interesting entry point that resonates with disability advocates. Take prison abolition. The demise of large-scale, congregate residential institutions that served people with intellectual and developmental disabilities in the 1970s, for example, may offer insights into the broader decarceration movement. In many ways, modern abolitionists advance universal design thinking, that is, rather than retain a deeply flawed institution and make tweaks to accommodate individuals in this system, we ought to rethink the entire system, critique its goals, and address the socio-political and economic inequities that lead to incarceration in the first place. This could include revisiting the importance of constitutional law (both state and federal) to the advancement of disability equality. This moment feels different. Everyone is reimagining how and why institutions exist and operate as they do. Integration remains a critical governing principle in disability law, now more than ever. Dr. tenBroek’s legacy, however, demands that we move beyond the mere right to live in the world and ask not what we need to live in this world but what kind of world we want to live in.

What Can We Learn from the CFPB’s Spring 2020 Unified Agenda Entries?

A version of this blog also appeared on the Economic Policy Institute website.

This week, Director Kraninger of the Consumer Financial Protection Bureau (CFPB) is slated to appear before the Senate Banking Committee and the House Financial Services Committee in connection with the CFPB’s SemiAnnual Report. As we go into these hearings, it’s worth reviewing what we know about the CFPB’s current regulatory agenda.

At the end of June, the CFPB, along with all of the other federal agencies, released its rulemaking agenda through April 2021. As we at the Consumer Rights Regulatory Engagement and Advocacy Project (CRREA Project) discuss in Decoding the Unified Agenda, everything is in the Unified Agenda—what an agency is working on, what it plans to do next, and when it anticipates taking that next step. Rules are characterized as significant or nonsignificant, the agency contact for the rule is listed (in the CFPB’s case, this is almost always the attorney designated as the team lead on the rulemaking), and the history of the rulemaking project are all laid out.

Looking at an agency’s Unified Agenda also tells the reader something about the agency’s current priorities and rulemaking philosophy. The CFPB, in addition to its agency rule list, issues a blog post, which updates the Unified Agenda to reflect what the CFPB has done between when it submitted its Unified Agenda entries and when the Unified Agenda was released, and a preamble, which the CFPB is unique among agencies in doing twice a year).

The CFPB’s Regulatory Response to COVID-19

Comparing the Unified Agenda entries with the blog, the CFPB showed impressive discipline in sticking to its rulemaking schedule, despite COVID. (As noted in the blog post, this year the time lag between when the Unified Agenda entries were submitted and when they were published straddled the pre- and post-COVID worlds). The CFPB mostly met its pre-COVID target dates, seldom falling more than a month behind. For example, although the payday rule was widely rumored to be scheduled for issuance in late April, the Unified Agenda set June 2020 as the month for its issuance. In the end, the CFPB released the rule on July 7, shortly after the Supreme Court upheld the constitutionality of the CFPB in Seila Law v. CFPB. Holding tight to a rulemaking schedule requires discipline in the best of times, and the transition to remote work plus the general strains of pandemic life must have made sticking to the calendar even harder this year.

Reviewing the blog, and the CFPB’s actions, suggests the tunnel vision necessary to maintain that discipline. The blog’s nod to COVID-related work is a link to a generic supervisory bulletin page. While many items on that page post mid-March 2020 are styled as COVID-related, they read like a grab bag of mostly minor regulatory adjustments. The actions taken show a consistent bent towards favoring flexibility for industry and encouraging faster access to credit, regardless of price or terms, but lacking is a sweeping regulatory adjustment to COVID, either favoring consumers or industry.

Moreover, the two congressionally-mandated, consumer protective rulemakings, on Property Assessed Clean Energy (PACE) loans and small business lending data collection, both remain in pre-rulemaking status and have not advanced since the Fall 2019 Unified Agenda. Among the very first responses the CFPB took to the pandemic was to suspend the data collection necessary to advance those rulemakings. The small business lending data collection remains slated for the release of an outline of the rule in September, thanks no doubt at least in part to the settlement of the lawsuit brought by the California Reinvestment Coalition and others to force the CFPB to restart that rulemaking. But the only next step listed for the PACE rulemaking is “pursuing quantitative data,” and no further mention of PACE is made in the blog. Apparently then, PACE will have to wait behind other, deregulatory rulemakings, such as the CFPB’s “reconsideration” and limitation of the data points collected under the Home Mortgage Disclosure Act.

The CFPB’s Regulatory Philosophy

What is most striking—and most useful to advocates—is what is revealed about the current agency’s rulemaking philosophy. Partway through the CFPB’s blog announcing the Unified Agenda comes the tell: “[W]e have continued to move forward with our other regulatory work, prioritizing activities intended to protect the stability of the financial sector and enhance its recovery . . . .” Consumer protection is an “as well” afterthought, but not the central mission of this CFPB. The preamble expands on this, explaining, “If the Bureau has discretion, the Bureau will focus on preventing consumer harm by maximizing informed consumer choice, and by reducing unwarranted regulatory burden which can adversely affect competition and consumers’ access to financial products and services.”

Regardless of what one thinks of this approach to the CFPB’s mission, this nonetheless provides a roadmap for advocates. Focus your arguments on competition, access, and choice. Draw attention to places where market practices result in consumers’ lacking adequate information to make decisions or where competition fails. This framework makes revisiting payday hard, but suggests fruitful engagement in debt collection and mortgage servicing where consumer choice is irrelevant as consumers have no choice over their debt collectors or mortgage servicers. Arguments about stability in the financial markets are likely to carry more weight than petitions for equity or consumer protection against mainstream financial practices. Access will trump protection at this CFPB, so what are the arguments about how the proposals on the table will affect access or impose costs on business interests? Are there places where streamlining regulations results in consumer benefits? Now is the time to focus on those areas.

Effective regulatory advocacy requires sustained engagement, year after year, and meeting the agencies on their own terms. Within the current CFPB agenda, there are places for advocates to advance racial and economic justice, if they focus on the arguments the agency is open to hearing. In Working with Cost-Benefit Analysis, we at CRREA Project lay out some strategies for doing this. We highlight the importance of quantifying what you can, whether through surveys or case file reviews, and situating problems in the broader context. And, while commenting on proposals is always important, and our How to Comment- one-page checklist should help with commenting, meetings with staff, engagement with Congress on oversight, including in connection with the upcoming hearings, letters to the CFPB, press attention, and even litigation remain important tools for advocates.

Diane Thompson is an Open Society Foundations Leadership in Government Fellow and the founder of the Consumer Rights Regulatory Engagement and Advocacy Project. Previously she was Deputy Assistant Director and Acting Assistant Director of the Office of Regulations in the Consumer Financial Protection Bureau.

Wesley Purkey’s Execution Should Shock America’s Conscience

Any doubts remaining about the Trump administration’s disregard for the rule of law, for the rights of its citizens, and for basic human decency were laid to rest this week. On Tuesday, it illegally executed Daniel Lee without a valid warrant after leaving him strapped to the execution gurney for over four hours. Two days later, the administration illegally executed my client, Wesley Ira Purkey, a 68-year-old man so impaired by Alzheimer’s disease, schizophrenia, and brain damage that he believed he was being killed in a conspiracy of retaliation for complaining about prison conditions.

At the time of his death, Wes’s dementia had progressed to the point that he could not remember the names of loved ones. He believed that prison staff were putting poison and feces in his food and urinating on his laundry, forcing him to live in a cell “caked in feces.” He believed there was a vast government conspiracy against him, often viewing even his own lawyers as participants. In other words, Wes had no rational understanding that the government planned to kill him for a crime he committed years ago, even though, before dementia exacerbated his cognitive decline, he had expressed profound remorse for his crime.

The law has long been clear that executing a person whose mental illness prevents him from understanding the reason for his punishment is “abhorrent,” and violates the Eighth Amendment’s Cruel and Unusual Punishment Clause. From the time the government first set an execution date for Wes last summer, we asked the court to hold a hearing on his incompetency – a claim we could not legally raise until the execution was scheduled – and to order the government to turn over extensive medical records supporting that determination.

On Wednesday morning, the very day Wes was scheduled to die, a federal district judge in Washington, D.C., issued an injunction, finding that we had provided substantial evidence of his incompetence supported by extensive expert reports and declarations. The government, on the other hand, “provided no independent evidence of competence.” But rather than cooperating in a process to determine whether Wes was competent to be executed, the government appealed.

Later that same day – again, the day of Wes’s scheduled execution – our team discovered that even as the government raced to execute him, it had been withholding scientific evidence documenting his advancing dementia. We immediately brought this development to the attention of the Court of Appeals for the D.C. Circuit and the Supreme Court.

The injunction entered by the district court was upheld unanimously by a three-judge panel of the appellate court. And yet, in the early hours of Thursday, the district court’s injunction was vacated by a 5-4 Supreme Court decision, with no explanation of the majority’s rationale. In a dissent joined by Justices Breyer, Ginsburg, and Kagan, Justice Sonia Sotomayor opined that the government had failed to rebut Wes’s incompetency claim and that our decision to bring that claim in the District of Columbia, and not Indiana, should neither preclude him from having the claim adjudicated nor deprive the district court from entering an injunction to assess its jurisdiction. “[P]roceeding with Purkey’s execution now,” she wrote, “despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.”

For eight months, we had been pushing for a court to review his claim of incompetency. At 11:59 p.m. on July 15, three hours before the Supreme Court’s order, the execution warrant for Wes expired. The ruling from the Supreme Court came at approximately 2:45 a.m. Under federal law, the expiration of the July 15 warrant should have precluded any execution without sufficient notice of a new date and time for the execution and we should have had time to pursue Wes’s competency claim in Indiana. But reporters in Terre Haute tweeted that the government was moving forward with its plans to execute Wes – the same lawless, in-the-middle-of-the-night move it the government had made to execute Daniel Lee just two days before.

We suddenly had only hours to try to get a court to grant this constitutionally required review of his competency.

Minutes after the Supreme Court’s ruling, we filed a habeas petition and sought a stay of execution in the Southern District of Indiana. The district court granted a temporary stay for a few hours only to issue an opinion that said the execution could go forward because by filing the claim in the wrong court we had committed an unfixable error, and although “lamentable” that Mr. Purkey’s constitutional claim could not be heard, it would not be equitable to stop the execution. This unprecedented ruling – penalizing Wes because we filed a claim that eight federal judges had substantively reviewed and found meritorious – cited no law for its conclusion that the courthouse doors in Indiana could be closed to his claim.

We immediately appealed to the U.S. Court of Appeals for the Seventh Circuit but we, and most importantly, Wes Purkey, ran out of time before the Seventh Circuit could intervene. At 8:19 a.m. – with the appeal pending, and without sufficient notice – the government executed Wesley Ira Purkey.

Wes Purkey’s execution should shock the conscience of anyone who cares about justice and the rule of law. The government used every weapon in its arsenal to prevent any court from deciding the merits of his incompetency claim, even as evidence in its own possession showed Wes’s mental capacity was profoundly impaired. And by barreling ahead to execute during the COVID-19 pandemic, the government recklessly placed hundreds of people at serious and unnecessary risk.

We should expect more of our federal government than the rushed execution of a damaged and delusional old man. As the district court in Washington, D.C., quoted in granting the short-lived injunction, “the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.” What the government did here is truly abhorrent.

Rebecca E. Woodman is an attorney in Kansas City, Missouri, and served as lead counsel for Wesley Purkey.

Voting by Mail Is Essential for Voters with Disabilities, but It’s Not Enough

A do’s and don'ts guide to increase accessibility for voters with disabilities.

This guide originally appeared on the ACLU website.

COVID-19 highlighted the need for universal access to no-excuse vote by mail. For many voters with disabilities, vote by mail has always been the safest and most accessible way to cast a ballot, because it allows them to avoid the challenges of getting to the polls, waiting in line, and facing physical barriers at the polling place. While in-person polling places are required to be fully accessible, we still see violations such as lack of ramps or elevators, voting machines not properly set up, and facilities without adequate signage indicating accessible routes or parking.

States must act now to enact universal, no-excuse vote by mail. Additionally, states must take steps to support accessibility, while also ensuring that safely voting in person remains an option.

Below, we outline key steps to increase accessibility for voters with disabilities.

DO: Let everybody request a mail-in ballot online

States should automatically send mail-in ballots to all registered voters, rather than maintaining a more complex “opt-in” system for voting by mail, where voters must request a ballot. But if it’s not possible to send ballots automatically, then the process for requesting a mail-in ballot should be quick and easy, and voters should be able to make these requests online or by phone.

To further improve accessibility, states should ensure that all election websites comply with accessibility guidelines so that every voter can easily access voter registration, procedural guidelines, ballot applications, and information about candidates and ballot initiatives.

DO: Let voters receive ballots electronically

Voters with disabilities who would like to vote from the safety of their homes should be able to receive their ballots on an electronic interface, mark those ballots using the accessible technology they have at home, and then print out and mail their voted ballots. Electronic ballot marking allows voters with “print” disabilities (including those with visual impairments) to read and mark their ballot using the accessibility features on their personal devices. Commonly used assistive technologies include screen readers, digital magnifiers, and text-to-speech software. Several states, including Ohio, Maryland, and Oregon, have already made electronic ballot marking systems available for voting by mail.

Electronic ballot marking is not equivalent to online voting. While an electronic ballot marking system allows voters to receive their ballots via an electronic interface, the voted ballots are not submitted electronically. Once completed, the ballots are printed out and mailed back to the local election office. Online voting, by contrast, would involve casting and submitting a completed ballot over the internet. Currently-available online voting options cannot guarantee a valid and secret vote.

DON’T: Impose signature match requirements on voters with disabilities

Signature match requirements present an additional barrier to voters who have conditions that make it hard to consistently sign their name. States should waive these requirements for voters with disabilities.

DON’T: Require witnesses or notarization

In some states, people who vote by mail must get their ballot envelope notarized or provide a witness signature. While witness and notarization requirements present specific challenges for people with disabilities, they present even greater barriers during the COVID-19 pandemic. Social distancing guidelines currently restrict the ability of all voters — not just those with disabilities — to find a physically-present witness or notary.

DO: Train election workers on accessibility

Election officials should undergo virtual training on how to assist voters with disabilities in navigating election websites and marking their ballots electronically. Election officials should also learn how to respectfully interact with voters with disabilities so they can provide helpful information and services without infringing on a voter with a disability’s right to a private, independent vote. All staff responding to election-related inquiries should be able to answer questions about accessible voting options.

Preparing election officials for these tasks will help voters with disabilities have a dignified voting experience.

DO: Spread public awareness about accessible voting options

The reforms outlined here will have the most impact if voters are aware of the voting options and resources available to them. Election officials should inform all voters by contacting them directly through reasonably available methods such as mail, email, phone calls, and text messages. Local disability advocacy organizations should serve as key partners on election planning and disseminating voting-related information to people with disabilities.

States must act now to ensure that all voters, including voters with disabilities, can vote safely in the age of COVID-19, and without unnecessary barriers or burdensome requirements.

The vote by mail reforms we’re seeing in many states are efforts to improve accessibility during the pandemic. We should use the opportunity to improve accessibility for all voters, including voters with disabilities. Voting rights are disability rights.

For more information on increasing accessibility for voters with disabilities — and all voters — see our guide for election officials.

Ever-Expanding Immunity for Religious Institutions Augurs Trouble for Worker Protections

In Our Lady of Guadalupe School v. Morrissey-Berru, religious schools won a First Amendment right to hire and fire their teachers because of their race, sex, disability, age, or any other reason. In a 7-2 decision, the Court dramatically expanded the “ministerial exception,” a doctrine that permits religious institutions to choose their “ministers.” This expanding realm of religious employer immunity from law portends danger for other worker protections and for the equality of workers in healthcare, higher education, and beyond.

Just eight years ago, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court first recognized the “ministerial exception.” Chief Justice Roberts wrote that a church’s independence “on matters of faith and doctrine requires the authority to select, supervise, and if necessary remove a minister without interference by secular authorities.” The Court unanimously held that the First Amendment exempts religious institutions from civil rights laws when they employ ministers.

In principle, virtually everyone agrees that churches should be able to make decisions about their ministers that align with their religious tenets, even biased ones. The doctrine was said to explain why the Catholic Church can have only men as leaders within the hierarchy.

Hosanna-Tabor, however, took the doctrine further. The church does not need religious reasons for its employment decisions. Nor is a minister limited to those with leadership roles. Instead, the Court determined that ministers could be identified by looking to the employee’s title, religious training, the employee’s and employer’s understanding of her role, and whether her duties included “important religious functions.” Justice Alito concurred but argued that a “focus on the function performed by persons who work for religious bodies” would provide more clarity.

In Morrissey-Berru, his test becomes the Court’s position. As elementary school teachers at Catholic schools, both plaintiffs taught some religion and prepared and accompanied children to religious celebrations. These duties rendered them ministers, according to the Court. “What matters, at bottom,” Justice Alito wrote, “is what an employee does.”

The emphasis on employees, however, is not reflected in his analysis. As Justices Sotomayor and Ginsburg noted in dissent, the teachers “taught primarily secular subjects, lacked substantial religious titles and trainings, and were not even required to be Catholic.” At bottom, looking to the employees’ activities seems to cut in the opposite direction.

Instead, the religious institution stands at the center of the opinion. What it does, how it perceives its employees, and what it tells them determine whether those employees are ministers. Three times Justice Alito repeats that educating and forming students in the faith “lie at the very core of the mission of a private religious school.” It is this mission, he suggests, that makes schoolteachers ministers. It is important, not how workers think of themselves, but that that their schools “saw them as playing a vital part in carrying out the mission of the church.” He emphasized that their contacts and handbooks also “specified in no uncertain terms that they were expected to help the schools carry out this mission.”

While he purports to focus on employees, Justice Alito’s test seems to distill to three questions: does the organization have a religious mission, does it perceive the employee to advance that mission, and do formal documents like employment agreements indicate a religious role? The employee’s perception of her role, how she spends her time at work, how she is trained, and what she is called recede from the analysis.

In Morrissey-Berru, the Court treads perilously close to saying a minister is whomever an employer says she is. Indeed, Justice Thomas joined by Justice Gorsuch applauds this step and encourages further deference. Concurring, he wrote that if the U.S. Conference of Catholic Bishops say that “Catholic teachers play a critical role” in the Church’s ministry—that should be enough.

This laser focus on the institution, rather than the employees, is consistent with Justice Alito’s extreme deference to religious employers in other cases. His opinion in Burwell v. Hobby Lobby and his concurrence in this term’s Little Sisters of the Poor v. Pennsylvania both indicate that courts should play no role in determining whether a regulation—there the contraceptive mandate—substantially burdens an employer’s religion. “It was not for us to say that their religious beliefs are mistaken or insubstantial.” Instead, it was for the employers to determine.

So what does this emphasis on institutional autonomy mean? Most immediately, Morrisey Berru devastated worker protections in religious schools. For decades, teachers in religious schools have been able to sue when they were fired for their race, disability, pregnancy through use of IVF, or divorce. Now, a rule said to ensure the Catholic Church didn't have to hire women as priests has turned thousands of women into ministers of that church.

The Court’s decision also cuts back the gains from last month’s landmark win in Bostock v. Clayton County. LGBTQ workers newly safeguarded by Title VII of the Civil Rights Act still can be fired if they work for religious schools (and perhaps other religious institutions).

In the future how dramatic will the expansion of institutional immunity be after Morrissey-Berru? First, from which laws are schools now exempt? Morrissey-Berru involved antidiscrimination statutes like the Americans with Disabilities Act and Title VII of the Civil Rights Act. But other workplace protections seem likely to be affected. Religious institutions unsuccessfully demanded a right to violate the Fair Labor Standards Act the past. Might they now claim a constitutional right to hire only ministerial employees who will work for less than minimum wages? Labor law might be next, the National Labor Relations Board currently doesn’t require religious colleges to bargain collectively even with adjunct faculty. Will this become a Constitutional rule?

Second, which employees will be affected? If a religious mission and performance of duties important to the mission suffice to make an employee a minister, employees at a range of institutions likely will discover they're ministers only after they've been fired for getting breast cancer, having a baby, or celebrating their marriage. As the plaintiff’s counsel observed, “Countless employees of religious institutions — not just lay teachers, but also nurses in hospitals, counselors in summer camps, cooks and administrators in social services centers, and other categories of workers — perform duties that their employers sincerely consider important to their religious missions.”

Finally, which institutions can claim this new religious privilege? While the Supreme Court’s decision was specific to religiously affiliated elementary and secondary schools, its reasoning easily transfers to other religious organizations. Consider the Little Sisters of the Poor, a Catholic-affiliated nursing home chain. Just this term, the Court described the Little Sisters as “called by their faith to care for their elderly residents” and to “constantly live out a witness” to the dignity of human life. It has a clear overarching mission to care and treat patients with dignity and probably assigns many employees this role. It likely also provides in its employee handbook, like other Catholic healthcare providers do, that staff further its mission consistent with Catholic values. Will its employees also be ministers?

As the ministerial exception expands, for-profit corporations may seek out exemption as well. In Hobby Lobby, the Court insisted that for-profit organizations had the same claim to religious exercise as did non-profit organizations under the Religious Freedom Restoration Act. It later assumed that a for-profit cake shop could make out a constitutional claim to religious liberty. And in one of the cases consolidated with Bostock, a for-profit funeral home initially argued that the ministerial exception permitted it to fire Aimee Stephens, because she was transgender.

All this may sound far-fetched. But the privilege to violate employer protections with impunity is valuable. While usually religious exemptions don’t offer financial advantages, here they do. And the ministerial exemption may creep into multi-billion dollar Catholic healthcare systems and eventually into the for-profit world.