Equality and Liberty

  • October 31, 2013
    Guest Post
    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.
  • October 31, 2013
    Guest Post
    by Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair, University of Texas Law School
     
    A recent Huffington Post article by Alex Palombo accuses Texas of discriminating against women in the exercise of the franchise because it has imposed new rules for voting which require all Texans to…
     
    “…show a photo ID with their up-to-date legal name. It sounds like such a small thing, but according to the Brennan Center for Justice, only 66 percent of voting age women have ready access to a photo document that will attest to proof of citizenship. This is largely because young women have not updated their documents with their married names, a circumstance that doesn’t affect male votes in any significant way. Suddenly 34 percent of women voters are scrambling for an acceptable ID while 99 percent of men are home free.”
     
    The law also imposes requirements of original documents for name change and a minimum fee of $20 to obtain acceptable copies of the documents. These requirements, in conjunction with registration deadlines, will leave many women unable to vote. Palombo views this as an assault on the 19th Amendment and women’s right to vote, suggesting that “if the Tea Party gets their way, the only people left to vote will be wealthy white men.”
     
    Is this column another example of fear mongering from the Left? Rather than a regressive return to the days when women had no independent political existence, let alone a right to vote, Texas’ new laws surely represent the strongest possible statement supporting women’s independent personhood.  Governor Perry and his legislative confederates cannot have intended to keep women from voting or to impose new, oppressive barriers to women’s participation in the political process, right? That would be illegal.
  • October 23, 2013
    Guest Post
    by William Kidder, the Assistant Provost at UC Riverside. Mr. Kidder’s post represents his personal views and not necessarily those of the UC administration. Mr. Kidder has a book review of Mismatch forthcoming in the Texas Law Review and a policy brief on the impact of Michigan’s Proposal forthcoming through the UCLA Civil Rights Project. His article on California’s Proposition 209 was published last spring in the Journal of College and University Law.
     
    In discussing scientific evidence, Justice Breyer articulated a bare minimum standard that judges need to meet in order to protect the public interest and parties to litigation: “Consider the remark made by physicist Wolfgang Pauli. After a colleague asked whether a certain scientific paper was wrong, Pauli replied, ‘That paper isn’t even good enough to be wrong.’ Our objective is to avoid legal decisions that reflect that paper’s so-called science.  The law must seek decisions that fall within the boundaries of scientifically sound knowledge.”  
     
    Regrettably, in last week’s oral argument in Schuette v. Coalition to Defend Affirmative Action, there were times where Michigan’s solicitor general John Bursch advanced arguments about higher education that aren’t “even good enough to be wrong” and that, if accepted, would leave the Court in a wilderness outside of the boundaries of sound statistics and social science knowledge. 
     
    In response to Justice Sotomayor’s question about the impact of California’s affirmative action ban, Bursch claimed, “The statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses.  It’s not at Berkeley; they haven’t gotten there yet; but its better on the rest.” There are only ten UC campuses, not seventeen.  Of these campuses nine UC campuses (and eight with undergraduates) permit a comparison of pre- and post-affirmative action periods.
     
    In contextualizing Bursch’s claims, it is also helpful to address African Americans, American Indians and Latinos separately. Most directly responsive to Bursch’s dubious claim are total enrollment figures (though that means combining undergraduate, graduate and professional school students). Compared to a baseline of 1996 (before California’s affirmative action took effect), the percentage of African Americans in 2012 is lower on a majority of UC campuses: Berkeley, Davis, Los Angeles, San Diego and San Francisco. The negative impact of prohibiting affirmative action is greatest at the most selective campuses that disproportionately train future leaders.  At UC Berkeley African Americans were 5.1 percent of students in 1996 and only 3.3 percent in 2012, fifteen years after the campus implemented myriad rigorous race-neutral efforts to improve diversity. At UCLA African Americans were 5.8 percent of total enrollment in 1996, and 3.9 percent in 2012.
  • October 21, 2013
    Guest Post
    by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.
     
    * This piece is cross-posted at CAC’s Text & History Blog.
     
    The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
     
    In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
     
    From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause.   No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
  • October 17, 2013
     
    Many reasonable accounts from high court correspondents suggest the U.S. Supreme Court appears likely to uphold a Michigan constitutional amendment banning the use of race-conscious admissions policies at public universities.
     
    On Tuesday, with hundreds of protestors gathered outside the courtroom, oral arguments in Schuette v. Coalition to Defend Affirmative Action were presented to eight justices of the high court, with Justice Elena Kagan recusing herself. The constitutional amendment at issue, passed via state referendum in 2006, faces a challenge from a coalition of affirmative action advocates that claims the amendment violates the Equal Protection Clause by placing an undue burden on minority populations. In part, the Coalition says that legacy students could lobby university officials for preference in the admissions process, while minority students must win a statewide repeal of the amendment before taking similar action.
     
    In general, the Supreme Court’s conservative justices did not appear ready to support the Coalition’s arguments. For example, in response to civil rights attorney Mark Rosenbaum, arguing on behalf of the Coalition, Reuters reports that Chief Justice John Roberts “leaned forward from his center chair on the mahogany bench and said curtly: ‘You could say that the whole point of…the Equal Protection Clause is to take race off the table.’” He went on to ask if it was “unreasonable for the state to say, ‘Look, race is a lightning rod…We want to take race off the table and try to achieve diversity without racial preferences’?”
     
    For his part, Justice Anthony Kennedy was restrained in his questioning, appearing to seek a narrow justification for upholding the Michigan amendment while leaving in place important precedent. After all, rulings in 1969 and 1982 in cases from Akron and Seattle – in which the Court struck down voter measures that removed anti-discrimination laws in education and housing – complicate any path to upholding the amendment. Michigan Solicitor General John Bursch suggested a possible distinction: earlier cases involved anti-discrimination laws, while the amendment at hand only demands equal treatment. “This was a broad-based law that was primarily motivated by the people of Michigan’s decision to move past the day when we are always focused on race,” Bursch explained.