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Pregnancy As A ‘Personal Circumstance’? A Case Study Of Equality Jurisprudence Under The Canadian Charter Of Rights, Mel Cousins

Mel Cousins

This article examines the recent decision of the Federal Court of Appeal in Miceli-Riggins v Attorney General of Canada as an example of the approach which the Canadian courts are taking to the interpretation of s. 15 of the Charter of Rights (in the area of social benefits) following the Supreme Court’s recent attempts to ‘restate’ that law in a series of cases. It argued that, whatever the intention of the Supreme Court, the restatement of the law has created general confusion in the lower courts and tribunals. In addition, in cases concerning social benefits, the Court’s statements, in cases …

Religious Freedom And Workers’ Compensation - Big Sky Colony V Montana Department Of Labor And Industry, Mel Cousins

Mel Cousins

Social security and health care litigation has played a prominent role in the development of the jurisprudence concerning the religious clauses of the US Constitution. At the time of writing further litigation in this area is ongoing with initial rulings having been handed down in relation to challenges concerning the compatibility of the PPACA’s contraceptive mandate with the Religious Freedom Restoration Act (RFRA). This note considers an interesting recent decision of the Montana supreme court which considered the constitutionality of an extension of coverage under the Montana workers’ compensation code to colonies of the Hutterite (or Hutterian or Hutterische) Brethren …

Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins

Mel Cousins

The adoption of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter “PRWORA”) led to considerable litigation over immigrants’ rights to welfare benefits and access to health care. The approaches adopted by different courts (both federal and state) diverged significantly based on the various statutory schemes involved as well as distinct approaches to equal protection. However, no “on point” cases have reached the United States Supreme Court, so the “correct” approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants residing in the country legally from state healthcare or welfare …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope …

Workers’ Compensation And The Right To Interstate Travel – Schatz V Interfaith Care Centre, Mel Cousins

Mel Cousins

In Schatz, the Minnesota supreme court considered the interesting question of the right to interstate travel as it affects workers’ compensation. While we know that durational residence requirements for welfare benefits and medical care are likely to be found to be unconstitutional, the US courts have to date not greatly explored where other conditions of social security, workers compensation or welfare schemes may impinge on the right to interstate travel. In order to set the groundwork, Part 1 of this note sets out the Supreme Court’s decisions concerning benefits and the right to travel, focusing on the aspects of most …

Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins

Mel Cousins

The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …

Black Lung Benefits And Constitutional Challenges: The Byrd Amendments To The Black Lung Benefits Act; And The Kentucky Consensus Procedure, Mel Cousins

Mel Cousins

This note discusses two recent issues where legislation concerning benefits for coal workers affected by pneumoconiosis (black lung) was challenged under the US Constitution, including issues of due process, equal treatment and the takings clause. Congress has recently restored earlier legislation making it easier for the survivors of workers affected by black lung to qualify for federal benefits. Several courts of appeal have upheld this legislation against constitutional challenges from employers holding that it is neither in breach of the employers’ due process rights nor a taking within the meaning of the Fifth Amendment to the Constitution. In contrast, the …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits, Mel Cousins

Mel Cousins

Equal Protection, Workers Compensation And Offset Of Benefits (Again) – Caldwell V Maco Workers Compensation And Caputo V Workers’ Compensation Appeal Board (Commonwealth Of Pennsylvania)

Mel Cousins

As noted in an earlier article, one issue which has received considerable attention in terms of equal protection challenges in US courts is that concerning the offset of one type of social security benefits with worker’s compensation payments. The Supreme Court in Richardson v Belcher upheld the reduction in social security disability insurance because of receipt of a state worker’s compensation payment as rationally based and free from invidious discrimination. The Court and various federal courts of appeals have subsequently shown little interest in subjecting such offset provisions to more than a minimal level of scrutiny. State courts have also …

The European Convention On Human Rights, Non-Discrimination And Social Security: Great Scope, Little Depth?, Mel Cousins

Mel Cousins

This article examines the non-discrimination provisions of the European Convention on Human Rights in relation to social security law. There is a now a broad power of review under the ECHR as most social security payments fall within the scope of the Convention. There is also a more flexible approach to the grounds upon which discrimination can be challenged under Article 14. However, it is suggested that the European courts may need to adopt a more nuanced (or proportionate) approach to equality review rather than a binary approach.