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.
Tomorrow, the first webinar in the series will feature ACS Student Board Member Ashland Johnson (pictured), who is currently the Reproductive Law Fellow at the NWLC. Johnson will be joined by Maya Rupert, the Federal Policy Director at the National Center for Lesbian Rights. Together, they will explore the juncture of LGBT equality and reproductive justice.
To register for the webinars and for more information, click here.
For analysis of these important concerns, see the University of North Carolina Law Professor Maxine Eichner’s ACS Issue Brief, as she presses for the passage of the Employment Non-Discrimination Act, which would extend discrimination protection to employees on the basis of sexual orientation or gender identity. Also see the ACSblog’s interview with the ACLU’s Louise Melling as she summarized attacks on reproductive rights during the past year.
The U.S. Supreme Court today blocked an expansive sex discrimination class action lawsuit lodged against the nation’s largest retailer Wal-Mart.
The decision by the high court reverses a ruling by the U.S. Court of Appeals for the Ninth Circuit that permitted the massive class action litigation from moving forward. “The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages,” The Associated Press stated.
Writing for the Court in Wal-Mart v. Dukes, Justice Antonin Scalia said the “crux of this case is commonality – the rule [Rule 23(a)(2) of the federal rule of civil procedure] requiring a plaintiff show that ‘there are questions of law or fact common to the class.’”
Scalia continued, “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’ This does not mean merely that they have all suffered a violation of the same provision of law. Title VII [of the Civil Rights Act], for example, can be violated in many ways – by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
In this instance, the plaintiffs, Scalia concluded could not meet commonality by presenting evidence that Wal-Mart operated under a general policy of discrimination. Instead Scalia maintained that such evidence is “entirely absent here.”
Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan lodged an opinion concurring in part and dissenting in part. The four justices dissented from the conclusion that the Wal-Mart plaintiffs’ complaint lacked commonality. “Wal-Mart’s delegation of discretion over pay and promotion is a policy uniform with the women plaintiffs," Ginsburg wrote.
ACS held a telephone media briefing today on the decision, featuring Catholic University law professor Suzette Malveaux, Skalet & Mehri founding partner Cyrus Mehri and DePaul College of Law professor David Franklin. Audio of the briefing is available here.
In March an ACS panel discussion explored the Wal-Mart litigation and its impact on class action causes, in which Professor Malveaux also participated. Following the discussion, Malveaux talked with ACSblog about the case, saying at the time that there was a real risk that the standard for bringing such an expansive class action lawsuit could become much more diffiuclt to meet, making it harder “for employees and consumers and many people with small claims and few resources to collectively come together and challenge systemic 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."