National Women's Law Center

  • December 1, 2014
    Guest Post

    by Emily J. Martin, National Women's Law Center. She is the Vice President and General Counsel of the NWLC.

    “Come back when you’re not pregnant.”  That’s what Peggy Young testifies her supervisor told her after her medical provider advised that she avoid lifting more than 20 pounds for the remainder of her pregnancy.  Young, a UPS driver from Landover, Maryland, was forced out onto unpaid leave without company health benefits. On December 3, the Supreme Court will hear arguments in her pregnancy discrimination case, Young v. UPS.  The case marks the first time the Court will hear a case critical to both women’s health and economic security since the Burwell v. Hobby Lobby decision in June, when five Justices held that Hobby Lobby and other companies could ignore the legal requirement that they include coverage of birth control in their health insurance plans if they had religious objections to contraception.  The Young case will be an important test of whether a majority of the Supreme Court continues to have a “blind spot” where women’s issues are concerned. The stakes are high for women and their families.

    Peggy Young was a UPS driver, delivering mostly light air mail packages.  When she became pregnant and was given a lifting restriction, she told UPS she was willing to continue to do her regular job, as it was rare that she had to lift anything heavy, or take a light duty assignment—the sort of reassignment that UPS routinely provided to employees who had disabilities as defined in the Americans with Disabilities Act and those with on-the-job injuries and those who had lost their commercial drivers' licenses, whether because of health problems or issues such as DUI convictions.  But UPS said that because of her lifting restriction, it would not permit her to continue to do her regular job.  And it also refused to reassign her, despite the accommodations it provided to other workers with medical restrictions and despite the command of the federal Pregnancy Discrimination Act that employers treat pregnant workers as well as they treat those who are “similar in ability or inability to work.”  Her family’s financial security was threatened at the moment they needed it the most.

  • 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.
  • December 4, 2012

    by Jeremy Leaming

    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.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    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.

  • October 4, 2011

    The National Women’s Law Center (NWLC) and Law Students for Reproductive Justice are reprising the “Webinar Wednesdays” series, If you care about…, then you should also care about Reproductive Justice  . Each Wednesday in October, between 6-7 p.m., EDT, the groups   will highlight the intersection between reproductive justice and four other critical social justice issues.

    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.

    The three subsequent webinars will feature representatives of NWLC, the Reproductive Health Technologies Project, Sistersong, and National Advocates for Pregnant Women. They will explore where reproductive justice meets environmental justice, racial discrimination, and criminal 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.

  • June 20, 2011

    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.”

    Her interview and the ACS panel discussion are available here.

    Marcia D. Greenberger, co-president of the National Women's Law Center, blasted today’s opinion, saying the high court “has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights. The women of Wal-mart – together with women everywhere – will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace.”