Target, pharmacist malpractice, and the law

The retail giant Target is now claiming that the Civil Rights Act requires the store's pharmacies to indulge theological eccentricities of pharmacists who won't fill prescriptions for emergency contraception.

As Scott Lemieux explains at LGM, the Civil Rights Act requires no such thing:

As The Supreme Court has interpreted it, the CRA requires employers to make only de minimis accommodations; employers are not, of course, required to make accommodations that would impose a hardship on their business. THF makes a useful distinction between a policy that if multiple pharmacists are on duty the one without moral objections fulfill the prescription--which is reasonable and does not affect the business significantly--with a policy that will force customers to go elsewhere, which obviously is not. And, of course, this is pretty obvious; you will not be surprised to find out that, say, companies that test shellfish recipes are not, in fact, legally forced to provide no-show jobs for Orthodox Jews. Again, you do not have a civil right to refuse to perform core functions of your job, and if the CRA were interpreted the way Target claims to it would be self-evidently unworkable.

For more legal details on the CRA and religious freedom, see The Happy Feminist, and iocaste.

Comments

[blogenfreude]

Who would have thought we would have been here in the 21st century? Count the pills, put them in the bottle. Oh, and make sure it's not in conflict with something else I'm taking. Other that that, SHUT UP! The doctor prescribes, you fill. Just do it.

[StealthBadger]

It comes down to this: Are religious fundamentalists entitled to break a contract with their employers so that they may make off-the-cuff moral judgements on people whose circumstances they do not know, and judging by these "attacks of conscience," probably do not care to know.

[Dot]

So, like, we don't shop at places that discriminate against women. and we let them know it. it might take time, but after awhile, they might just get the message. i used to go to target instead of wal-mart. now they are both on the shit list.

let's go ladies. for mrs. parks and us.

[NonyNony]

The CRA excuse is just that - an excuse. They know that its not true, but they're trying to find a way to soft-peddle themselves out of this situation that one of their employees has put them in.

It does seem that the religious conservatives want to interpret the Civil Rights Act in the way that "conservatives" have always caricatured the act to read. That whole thing about "Orthodox Jews in a Jello factory" is the type of strawman argument I've seen levied against Civil Rights employment legislation in the past. Maybe they've just repeated the lies to themselves for so long that they're starting to confuse the strawman arguments with the real ones...

[mudkitty]

I won't be shopping at Target untill this matter is cleared up.

[mudkitty]

I won't be shopping at Target untill this matter is cleared up.

[ol cranky]

I received a slightly different response from Target than others did. The response I got did not reference the CRA and implied that Target ensures that prescriptions for EC are filled in a timely fashion at another local pharmacy if the pharmacist on duty refuses to fill the presription at Target. Interestingly, I received my answer from Jennifer Hanson at Target 20Oct05, it appears as though the CRA response started the following day. I wasn't exactly satisfied with Target's response (as anyone who's read the arguments regarding the pharmacist's duties & responsibilities and the so-called Pharmacist's Conscience clause on my own blog would expect), and when I heard about the CRA based response became incensed enough to call them out directly for trying to have it both ways when there are reasonable and legitimate ways the pharmacists themselves could practice in accordance with their religious beliefs without negatively impacting patients.

[mudkitty]

Not good enough.

[steve duncan]

Many Targets are now super stores with groceries. Would respecting the diversity of their associates mean the Muslim butcher they hired could refuse to sell pork to anyone? No shellfish leaves the store if the meat department is managed by a Jew? The list is nearly endless. What if the entire store itself is managed by a Catholic? Could that person decree no condoms or birth control pills are sold regardless of what the pharmacist says?

[nappy40]

Why not have a pharmacist on call to fill prescriptions when the religious pharmacist has a conflict?

[Josh Jasper]

Here's a reverse question: is there a law prohibiting firing someone for refusing to fulfil a core job function because of religious beliefs?

[Betsy]

Or, as The Onion noted, why not hire Christian Scientist pharmacists? They can't fill ANY prescription, so it's insane that they would go into pharmacy. For some reason, when it comes to women's bodies, the insane seems sane.

[janet]

What I would really like to see is more doctors getting involved in lobbying and boycotting these pharmacies. If enough OB/Gyns made a policy of not calling in any prescriptions to Target and of explicitly warning their patients not to go there, how long do you think Target's policy would last?

[nappy40]

Josh, there are people who have to work on Saturdays and that might be their sabbath. So they can switch days with other employees or ask the employer to accomodate them somehow. Something that doesn't cause a hardship to the employer shouldn't be a big deal.

Now that Target is aware of this guy's conflict, they need to have a pharmacist on call--just in case.

[StealthBadger]

Careful, Betsy. The last time I quoted the Onion in vain, it was around 2002, and the headline read something like "Bush Goes To U.N With 'U.S. Does Whatever It Wants' Plan."

[Mary R]

A real problem here is that pharmacists are just refusing to sell birth control/EC to anyone they choose to. It is a silent/private thing and doesn't have to be consistent. Women are having to ask and be turned away. How that can be done in a "respectful manner," I do not know. If birth control and EC are ever not available at a certain pharmacy, there should have to be a sign warning customers of that fact, publicly posted. And they should have to mention it in all advertising.

93% of Americans support birth control. They should know if their pharmacists don't.

Also - where is the doctor in all of this? My other requirement would be for that unless a prescription can be immediately filled by a pharmacist on hand, they should have to fill out and sign a form stating that they refused the prescription and the circumstances under which it happened. A copy of the form should have to be sent to the doctor who wrote the prescription.

Personally, my response would be to call the police. Just to have a witness to the dispute should a problem later arise.

My guess is that this will go on until a woman who is refused a prescription for EC goes on to have a baby, sues, and the pharmacy is found liable for 18 years of child support.

[Bob Koepp]

It's striking that people are so up in arms against Target, and so ready to dismiss out of hand the conscientious objections of pharmacists, but have nary a word of criticism for the FDA -- which should have followed the recommendations of its own reviewers and advisors to make EC available over the counter. Had that been done, women wouldn't need the cooperation of either physicians or pharmacists to obtain EC.