Thursday, December 11, 2014
Legal History Blog, Ziegler on Young v. UPS in Historical Context
Mary Ziegler, Florida State University College of Law, has posted Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty. Here is the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Wednesday, December 10, 2014
Disturbing story from the New Republic:
The most stirring art has the ability to make us stop, think, and even act, but a new interactive documentary made in Peru may just help decide the political future of the whole country. Created as a result of collaboration between the University of Bristol and London-based Chaka Studio, the Quipu project relays the story of a recent and very dark moment in Peruvian history. As many as 300,000 women in rural areas of Peru were possibly hoodwinked into being sterilized during the mid-to-late 1990s, all in the name of bringing an end to poverty.
The scale of the heinous medical campaign remained buried until recently, as the village areas most affected did not know that both neighboring and far-flung areas had also been hit. Various legal cases on the issue brought against right-wing former-president Alberto Fujimori have hit the buffers and the local headlines, but the story has largely remained unknown outside the urban centers of Peru.
Tuesday, December 9, 2014
I was cited recently by the Second Circuit in Central States SE & SW Areas Health & Welfare Fund v. Gerber Life Ins., 771 F.3d 150 (2d Cir. Nov. 14, 2014), for my prior work criticizing the Supreme Court for its interpretation of statutory remedies and restitution under ERISA. It reminded me of of the Supreme Court's current consternation in interpreting the Pregnancy Discrimination Act in the Young case and the great risk of reading meaning out of congressionally-intended relief through the guise of statutory interpretation.
III. In the Circumstances Presented by This Case, ERISA Plans May Have No Remedy
The line of cases culminating in Great–West has been heavily criticized for unnecessarily reviving the historical division between law and equity, ignoring the background principles of trust remedy law against which Congress enacted ERISA, and adopting an unnecessarily narrow interpretation of § 502(a)(3) that excludes forms of relief Congress intended to make available under ERISA.Commentators have repeatedly noted that as a result of this case law ERISA plans and beneficiaries are, in some circumstances, deprived of remedies. See, e.g., Aetna Health, Inc. v. Davila, 542 U.S. 200, 222–23, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)(Ginsburg, J., concurring) (collecting cases); John H. Langbein, What ERISA Means by “Equitable”: The Supreme Court's Trail of Error in Russell, Mertens, and Great–West, 103 Colum. L.Rev. 1317 (2003); Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 256–71 (2003); Tracy A. Thomas, Justice Scalia Reinvents Restitution,36 Loy. L.A. L.Rev. 1063, 1081 (2003).
The TV show "The Newsroom" (admittedly one of my favorites) "in an astonishing case of prescience, created a plot that hewed closely to the recent article in Rolling Stone magazine about an accusation of gang rape at the University of Virginia."
The New Yorker, The Newsroom's Crazy-Making Campus-Rape Episode
From Legal History Blog, New Release: Pliley, Policing Sexuality: The Mann Act and the Making of the FBI
New from Harvard University Press: Policing Sexuality: The Mann Act and the Making of the FBI (Nov. 2014), by Jessica R. Pliley(Texas State University). A description from the Press:
America’s first anti–sex trafficking law, the 1910 Mann Act, made it illegal to transport women over state lines for prostitution “or any other immoral purpose.” It was meant to protect women and girls from being seduced or sold into sexual slavery. But, as Jessica Pliley illustrates, its enforcement resulted more often in the policing of women’s sexual behavior, reflecting conservative attitudes toward women’s roles at home and their movements in public. By citing its mandate to halt illicit sexuality, the fledgling Bureau of Investigation gained entry not only into brothels but also into private bedrooms and justified its own expansion.
Monday, December 8, 2014
Op-Ed from the Boston Globe:
Well, this is awful.
The Web blew up Friday afternoon with the news that Rolling Stone magazine no longer stands behind last month’s horrific, explosive story of a gang rape at a University of Virginia fraternity. A report in The Washington Post cast central elements of her story into serious doubt. Her friends and supporters now say they’re dubious, too.
It’s disastrous for everybody involved. At this writing, the victim, Jackie, insists she was telling the truth about being raped by seven students. Whatever the truth, she must be in a world of pain right now, particularly if she tried to extricate herself from the magazine story before it was published, as she now maintains.
The destructive fallout goes beyond one woman’s suffering. The Rolling Stone story, which had helped make it all but impossible to ignore the scourge of campus sexual assault, is now going to do the opposite. Because now, emboldened by this one possibly fabricated story of rape, the chorus of people who believe women routinely make these things up will grow louder.
In one short paragraph of a 34-page memo released on Dec. 1, the Department of Education articulated a clear stance on gender identity, saying transgender students in public schools should be enrolled in single-sex classes that align with how they live their lives day-to-day.
“We’re thrilled,” says Shannon Minter, the legal director for the National Center for Lesbian Rights. “It’s so critical to the health and well-being of those students, and it’s going to be so helpful to have that guidance in writing so that schools understand what their obligations are.”
The memo is explicit that federal law protects students’ decisions made in accordance with their gender identity. “Under Title IX,” it reads, a school “must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes
Saturday, December 6, 2014
Feminist Study of Irish Discrimination Reform Shows Law Reinforces Gendered Assumptions about Work and Family
From Robert Lekey, at Jotwell, The Careless Ideal Worker, reviewing Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014).
It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.
Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life.
The Minnesota State High School League approved a new transgender-friendly policy for high school athletes on Thursday. The new rules will allow transgender students to play on sports teams consistent with the gender they identify with. In layman’s terms, this means those born genetically female, but who identify with the male gender can try out for male teams and vice versa. The policy will go into effect at the start of the 2015-16 athletic year
In all the frenzy over the Cosby revelations, there is one big legal question: The Statute of Limitations.
For the private, civil lawsuits that allege harms from 40 years ago, they are barred by the statute of limitations. Which is why attorney Gloria Allred is asking Cosby to waive the statute of limitations. Of course Cosby's lawyer is never going to do that. There is good reason for the SOL, as defending oneself decades later without witnesses, fresh recollections, evidence etc. is difficult to do.
In the recently-filed private suit filed alleging molestation of a 15 year old girl, the now 55-year-old plaintiff invokes the discovery rule. WaPo, Woman Sues Bill Cosby She says she did not discover the psychological harm from the assault until three years ago. Cosby's motion to dismiss challenges these facts of newly-discovered harm. Cosby Strikes Back at Accuser Without the discovery rule, the relevant SOL reportedly is 10 years, tolled until her age of majority, but still almost 30 years too late.
On the criminal side, SOLs range from 3 to 30 years, with more being closer to 3-6, and some having none. New York reportedly has no SOL for rape. See Could Bill Cosby Face Rape Charges?California has a 10 year statute, and thus the claims there are likely barred.
Even before the Cosby case, there has been movement to eliminate the SOL for criminal assault, to make it like homicide. See Mother Jones, These Laws Let Accused Rapists Off the Hook. In this Mother Jones' article, several law professors discuss the pros and cons, from the need for fresh memories and evidence, to the traumatic difficulties of reporting these cases and the evidentiary failures of testing DNA kits. See also Cosby Rape Allegations: It's Time to End the Statute of Limitations in Sexual Assault
Friday, December 5, 2014
Helen Alvare at George Mason Law has uploaded "Same-Sex Marriage and the Reconceiving of 'Children.'" (It's a conservative perspective but I, for one, am in favor of reading contrary views.) The abstract:
Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.
This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.
Notwithstanding the reference to Black Friday, the story, from the CBC, is still relevant:
As Black Friday approaches, here’s something that might make you see red: If you’re a woman, you may be paying more for a range of products than men are.
The practice is called gender pricing, where men and women are charged different amounts for similar products and services.
While some jurisdictions such as New York City have outlawed pricing discrimination based on gender, no laws in Canada prohibit the practice.
CBC’s Marketplacetested gender pricing at three of Canada’s largest retailers — Wal-Mart, Hudson’s Bay and Target — and found that similar products for men and women weren’t always the same price.
Thursday, December 4, 2014
[A] federal court in Texas has expressly held that Title VII’s prohibition against sex discrimination does not extend to a transgender employee. Eure v. The Sage Corp. (W.D. Tex. 11/19/14) (h/t: Eric Meyer) involves a truck-driving instructor born a female but who presents as a male. Eure alleged that her employer’s National Project Director, upon seeing her with a student, said, “What is that and who hired that,” adding that Sage did not hire “cross genders.”
The court, however, dismissed Eure’s sex-discrimination claim, concluding that Title VII’s prohibition against sex discrimination does not cover transgender employees.
In some cases, the plaintiffs bringing successful sex stereotyping claims are transgender people, arguing that the discrimination that they have suffered is because their coworkers perceived their behavior or appearance as not “masculine or feminine enough.” However, courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity….[D]iscrimination based on transgender status is [not] per se gender stereotyping actionable under Title VII.
A Colorado mother claims in a federal lawsuit that she was fired from her hairstylist job after she sought to take periodic work breaks to pump breast milk but was rebuffed by an employer who called the idea "gross," court documents showed on Tuesday.
Ashley Provino of Grand Junction said she asked permission from her employer, Big League Haircuts, to take breaks every four hours to pump breast milk for her infant son, according to a complaint filed on Monday in U.S. District Court in Denver by lawyers with the American Civil Liberties Union of Colorado.
Provino said the owner, Kyle Reed, “adamantly refused” her request, called the topic “gross,” retaliated by cutting her hours so she never worked more than four hours at a time, and ultimately fired her.
“Discrimination against breastfeeding mothers in the workplace is not only illegal, it is also bad for Colorado families and businesses, because it forces women out of the workplace,” ACLU cooperating attorney Paula Greisen said in a statement.
Reached by telephone, Reed said the lawsuit was “total fiction” and vowed to fight Provino's claims.
“She has dollar signs in her eyes and thinks she's going to win a million dollars,” he said.
The Supreme Court heard oral argument yesterday in Young v. UPS. The commentators have noted that some justices questioned the appropriateness of summary judgment here especially as to the question of what instances in fact were other workers given temporary light duties, and whether pregnant employees were asking for too many favors, granting them "most favored nation status" in the snarky words of the Fourth Circuit. As Justice Ginsburg retorted, it seems UPS was arguing for the converse, "least favored nation status."
See Dahlia Lithwick, Slate, Heavy Lifting: The Supreme Court is Flummoxed by Pregnancy Discrimination and Semi-colons. The so-called "after the semi-colon" debate seems to discount the legal issue as one of mere statutory interpretation. But it's much more than semantics. What's at issue is the second clause of the operative Pregnancy Discrimination law that imposes affirmative duties on an employer. The first clause, before the semi-colon, is a prohibition: do not discriminate on the basis of pregnancy. The second clause, after the semi-colon, says "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work."
Kagan, who has been a one-justice Tasmanian devil all morning, concludes by informing Halligan [UPS attorney]: “What we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace. And what you are saying is that there’s a policy that accommodates some workers, but puts all pregnant women on one side of the line.” This is why pro-life and pro-choice groups and most women’s groups have crossed the ideological divide to support Young in this case: The PDA was intended to prevent women workers from being forced to choose between their jobs and their babies.
Underlying the debate seems to be the old public v. private sphere divide. Some of the arguments and questions from the justices seem to make much of the fact that pregnancy is a private choice, something that happens to a woman outside of work, like an injury to a male worker playing on his all terrain vehicle (ATV) on the weekend. (Facepalm to Alito's analogy here: idiosyncratic extreme sports v. commplace, fact of life and constitutionally-protected status). As a private choice, an employer in the public sphere has no obligation regarding that private choice.
For more debriefing, see
Wednesday, December 3, 2014
Of all the conflicting evidence emerging from the grand jury transcripts in the Michael Brown shooting, one statement in particular leaped out at me. It’s Officer Wilson’s testimony that when Brown saw Wilson go for his gun, Brown taunted, “You’re too much of a p-ssy to shoot me.”
Many have responded to Wilson’s account of the confrontation with skepticism, to say the least. As to whether the unarmed Brown indeed issued that particular challenge to Wilson’s manhood, or Wilson imagined it or later invented it, or now sincerely remembers it that way, we have no way of knowing. All we can know for sure is that Brown is dead, and that guys throwing around terms like that as slurs on each other’s manhood isn’t exactly a new story.
Related to the above, Frank Rudy Cooper, Suffolk Law, has an article discussing masculinity in police confrontations.
Germany’s top listed companies will be required to have 30% of their board positions filled by women under a law agreed today by Angela Merkel’s coalition parties.
The law, due to come into effect in 2016, aims to create greater gender equality in the workplace of Europe’s biggest economy where, despite having a female leader and 40% of the federal cabinet being female, women are significantly under-represented.
According to the The German Institute for Economic Research (DIW Berlin), just 6% of management board positions and 22% of supervisory board seats are held by women among the 30 companies on Germany’s blue-chip DAX index trading on the Frankfurt Stock Exchange.
Tuesday, December 2, 2014
For the history and legal briefing, see Young v. UPS at SCOTUSblog.
For UPS's voluntary actions that effectively implement the desired accommodations, see our prior post, Pregnant Workers Win Without Winning
Monday, December 1, 2014
Feminist legal theory "asks the woman question," that is, questions the law from the perspective of the woman in the case, focusing on considerations of gender. In the Elonis case heard by the US Supreme Court yesterday, then the legal question should ask how did the women in the case understand the threats, and what is the implication of the case for other women's rights. But once again, we get another SCOTUS case with enormous threat to women's rights, but cast in sheep's clothing, this time of free speech.
Here, the defendant threatened to kill his wife, detailing the blood and gore, mocked her protection order, and threatened to kill an FBI agent, also a woman. Once arrested, he offered "the rap defense," that this online terror was just rap lyrics to his own little song. The question for the Court reads out the gender, framing the issue as whether online words (taking out even the gendered context of domestic violence) should be evaluated from the subjective perspective of what the defendant says he meant by the comments, or by the objective standard of a reasonable person. Why not the standard of a reasonable woman? Why not ask what would a reasonable woman think sitting in the shoes of the wife here to whom the threats were directed?
Others including amici in the case, have emphasized the potential damaging implications for domestic violence advocacy by adopting a legal standard that credits the self-serving statements of the stalker or batterer himself as to the intended meaning of his threatening words. Brief of Amicus Curaie, The National Network to End Domestic Violence; Brief of Amicus Curiae, National Center for Victims of Crime; NPR, Is a Threat Posted on Facebook Really a Threat?
Justice Alito, the former prosecutor, briefly acknowledged the issue during the oral argument, though it was quickly dismissed:
JUSTICE ALITO: Well, what do you say to the to the amici who say that if your position is adopted,
this is going to have a very grave effect in cases of domestic violence? They're just wrong, they don't
20 understand the situation?
MR. ELWOOD: I mean, it is in their interest to have a standard that requires no mens rea because
it makes it much easier to prove these.
JUSTICE ALITO: Well, this sounds like a roadmap for threatening a spouse and getting away with
it. So you you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an
aspiring rap artist. And so then you are free from prosecution.
Sunday, November 30, 2014
With public revulsion rising in response to snowballing accusations that Bill Cosby victimized women in serial fashion throughout his trailblazing career, the response from those in the know has been: What took so long?
What took so long is that those in the know kept it mostly to themselves. No one wanted to disturb the Natural Order of Things, which was that Mr. Cosby was beloved; that he was as generous and paternal as his public image; and that his approach to life and work represented a bracing corrective to the coarse, self-defeating urban black ethos.
Only the first of those things was actually true.
Those in the know included Mark Whitaker, who did not find room in his almost-500-page biography, “Cosby: His Life and Times,” to address the accusations that Mr. Cosby had assaulted numerous women, at least four of whom had spoken on the record and by name in the past about what they say Mr. Cosby did to them.