• 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.

  • December 1, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. He is the author of Madison’s Nightmare:  How Executive Power Threatens American Democracy (University of Chicago Press 2009).

    *This post originally appeared on the blog for Washington Monthly.

    It’s December, 2008.  President Bush foresees economic calamity if the U.S. auto industry collapses.  Congress has failed to enact his recommended rescue plan despite majority support in both Houses.  His party has just taken a drubbing at the polls.  What happens?  He is advised that, under the technical wording of the Emergency Economic Stabilization Act of 2008, the Treasury Department can use the Troubled Assets Relief Program (TARP) to effectuate the needed rescue.  Presumably with Bush’s approval, it does so.  The president states explicitly that he is responding to Congress’s inability to enact the needed legislation.  Was this “declaring war on the American people?”  No, it is how governance and the rule of law work in the modern administrative state.  The executive branch, facing a problem to which Congress has not responded, canvasses its existing statutory authorities to see if discretion already exists to address a national need.

    Fast forward nearly six years.  President Bush’s successor confronts three realities on immigration policy. The first is that Congress has not funded – and cannot plausibly finance – a system of immigration enforcement adequate to its caseload. The Pew Research Center estimates that the number of undocumented immigrants in the U.S. was 11.3 million in 2013.

    The Obama Administration deported a record 400,000 persons in 2012. If the government continued at that pace, deporting the current population of undocumented persons would take more than 28 years.  Even that massive effort would clear the decks, so to speak, only if no undocumented persons were to cross our borders between now and the year 2042.

  • December 1, 2014
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.

    The failure to indict Ferguson, Missouri police officer Darren Wilson for the death of Michael Brown fits an all too familiar pattern of police officers not being held accountable. The decision to not indict in Ferguson follows the acquittal a year ago of George Zimmerman, a self-appointed neighborhood watchman, for the killing of 17 year-old Trayvon Martin. Even more recently this year, two Fullerton, California police officers were found not guilty of all charges in the killing of Kelly Thomas, a homeless man who had been diagnosed with schizophrenia. Medical records show that bones in his face were broken and he choked on his own blood; the compression of his thorax by the police made it impossible for Thomas to breath and deprived his brain of oxygen.

    Nor is this a new phenomena.  Even with a videotape of a savage bearing, a state court jury in 1992 acquitted the four officers who beat Rodney King and a subsequent federal court jury acquitted two of them. The riots in Los Angeles, after the state court acquittals, like the unrest last week in Ferguson, reflected the enormous anger and frustration with the inability to hold police accountable.

  • December 1, 2014

    by Caroline Cox

    At The Daily Beast, Geoffrey R. Stone previews the Elonis case before the Supreme Court, which considers whether seemingly threatening Facebook posts “fall within the category of ‘threats’ that are not protected by the First Amendment.”

    Matt O’Brien writes in The Washington Post about new research showing more evidence of growing inequality in America: poor college graduates make just about as much money later in life as rich high school dropouts.

    In The New York Times, Linda Greenhouse writes about the opinion by the U.S. Court of Appeals for the Sixth Circuit that upholds state bans on same-sex marriage.

    Richard Wolf of USA Today previews the upcoming Supreme Court case that considers whether UPS engaged in gender discrimination when it did not accommodate a pregnant worker.

  • November 26, 2014

    by Paul Guequierre

    With Thanksgiving upon us, two judges in the South gave us one more reason to be thankful --advancement for equality. Just yesterday, federal judges in Arkansas and Mississippi ruled the states’ respective marriage bans unconstitutional.

    In Arkansas, the ruling, which is on hold pending appeal, is the second court ruling to find the state’s ban to be unconstitutional. The first ruling came from a state court judge in May in a case that was heard on appeal before the Arkansas Supreme Court this past week.

    Hours after the victory in Arkansas, U.S. District Court Judge Carlton Reeves ruled Mississippi’s ban on same-sex couples’ marriages is also unconstitutional, writing, “Gay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry.”

    Unfortunately he put the decision on hold for two weeks. Judge Reeves explained his decision, “Today’s decision may cause uneasiness and concern about the change it will bring,” U.S. District Court Judge Carlton Reeves wrote. “Mississippi continues to change in ways its people could not anticipate even 10 years ago. Allowing same-sex couples to marry, however, presents no harm to anyone. At the very least, it has the potential to support families and provide stability for children.”