by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.
When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.
Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”
Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”
Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.
By Emily J. Martin, Vice President and General Counsel, National Women's Law Center.
The Supreme Court heard oral argument today in Wal-Mart v. Dukes, the case that will decide whether the hundreds of thousands of women employed at Wal-Mart stores around the country will be able to come together to challenge companywide policies leading to discriminatory pay and promotion decisions. The Court's decision will not only determine whether the women of Wal-Mart will be able to move forward with their claims; it may also determine whether class actions will continue to be viable for individuals across the country experiencing discrimination on the job.
Why does this matter? Because women (and men) facing discrimination at work-and in particular pay discrimination-face significant obstacles to challenging that discrimination, as the National Women's Law Center set out in its friend-of-the-court brief in support of the women of Wal-Mart. Class actions help overcome these systemic obstacles.
First, if women don't know how much men in their company are making, they won't know if they are making less. Evidence in this case indicates Wal-Mart had a pay secrecy policy, so if women found out about coworkers' salaries, it was by word-of-mouth or sheer accident. And this is not unusual. Employees typically have little or no information about their co-workers' wages and salaries. Indeed, many employers maintain rules explicitly barring discussion of pay within the workplace. In a recent survey by the Institute for Women's Policy Research, 50 percent of respondents, and 61 percent of private sector employees, reported that discussing pay was prohibited or discouraged in their workplace. And late last year, a minority of senators successfully blocked passage of the Paycheck Fairness Act, which would have prohibited employers from punishing employees who talk about their compensation. As a result, pay is hidden under a veil of secrecy, making pay discrimination difficult for individuals to detect. Class actions help lift this veil by subjecting an employer's discriminatory pay practices to judicial scrutiny regardless of whether each employee in the class has independently been able to gather the information to determine she has suffered pay discrimination.
By Emily J. Martin, Vice President and General Counsel, National Women's Law Center.
Today the National Women's Law Center, together with the American Civil Liberties Union and 32 other organizations, filed its friend-of-the-court brief in Wal-Mart v. Dukes, the Supreme Court case that will determine whether a nationwide class of women workers challenging alleged sex discrimination by Wal-Mart in pay and promotions can proceed. In deciding this case, the Court will likely determine whether the class action will continue to be a viable option for employees to challenge company-wide discrimination by large employers, as the federal class action rules and Title VII (the federal law prohibiting sex discrimination in employment) intended.
The class action rules ask whether the case poses questions common to the members of the class - here, women who work or have worked in Wal-Mart stores across the country. As we set out in our brief, the evidence presented by the plaintiffs in this case demonstrates the common obstacles that women faced in Wal-Mart stores nationwide and highlights why class treatment of their claims of discrimination is both appropriate and important. According to the plaintiffs' evidence, women at Wal-Mart on average earned $5,000 less than men, even though women tended to have higher performance ratings and more seniority. Women also were less likely to be promoted to store manager positions and had to wait significantly longer for promotions than men.
As our new fact sheet highlights, scores of statements from women employed at Wal-Mart brought these statistics to life, describing the gender stereotyping women regularly faced on the job. According to these sworn statements, women were told that men were paid more because they "are working as the heads of their households, while women are just working for the sake of working" and that men were entitled to more pay because they had families to support. Women were told that they should "raise a family and stay in the kitchen" rather than seeking career advancement; one female manager was asked by her supervisor to resign because she "needed to be home raising [her] daughter." Women were denied positions in departments like sporting goods and electronics, because the job was a "man's job."
By Emily J. Martin, Vice President and General Counsel, National Women's Law Center
Much like the Nineteenth Amendment itself these days, Women's Equality Day-the anniversary of the amendment's ratification-keeps a fairly low profile, sneaking in at the end of August, when much of the country is enjoying the last few days of summer vacation. But this August 26, the ninetieth anniversary of the constitutional guarantee of women's right to vote, it is worth stopping to reflect on the many years of labor that culminated in ratification of the Nineteenth Amendment and that work's relevance to women's progress going forward. One important way of honoring that history and continuing that progress would be ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) , a landmark international agreement that affirms principles of fundamental equality for women and girls.
In one of the few law review articles addressing the Nineteenth Amendment, Yale Law professor Reva Siegel describes it as "a constitutional amendment so rarely cited that reference to it prompts many, if not most, constitutional law scholars to ask: ‘Which one is that?'" In retrospect, its passage seems inevitable and the ground it broke has been largely forgotten. But ratification came in 1920 only after fifty years of fierce campaigning for a constitutional guarantee of full citizenship for women.
As Siegel explains, opponents of women's right to vote saw suffragists' demands as deeply threatening. "The demand is for the abolition of all distinctions between men and women, proceeding upon the hypothesis that men and women are the same," one opponent asserted. "[This] attacks the integrity of the family; . . . it denies and repudiates the obligations of motherhood." Anti-suffragists asserted that a federal guarantee of women's right to vote represented a power grab for the federal government, which would "draw a line of political demarcation through a man's household, through his fireside, and to open to the intrusion of politics and politicians that sacred circle of the family." Given this history, it is ironic that last week a Washington Timesop-ed invoked the anniversary of the Nineteenth Amendment to urge opposition to CEDAW, the women's rights treaty, in terms remarkably similar to those once used to oppose women's suffrage.