Tuesday, April 21, 2015
(Reviewing Saru M. Matambanadzo (Tulane), The Fourth Trimester, 48 U. Mich. J.L. Reform, 117 (2014)).
In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.
Tuesday, March 31, 2015
Prof. Nancy Dowd at the U of Florida had asked me to post this:
The Supreme Court Clinic of the University of Texas School of Law is planning to file an amicus brief in support of a cert petition in a family law/gender discrimination case and is seeking legal scholars to sign onto the brief as amici. The cert petition was filed on behalf of an unwed father who was prevented from objecting to the adoption of his newborn son. The father and the mother of the child were not married. Before the child was born the father filed a petition in state court seeking to establish paternity and also to establish custody, parent time, and child support. He also registered with Utah’s putative father registry with a sworn and notarized form, agreed to a court order of child support, and offered to assist the mother with her pregnancy-related expenses. Due to his lawyer’s oversight, unfortunately, he failed to timely file an affidavit attesting to his ability to provide for the child and setting forth his plans for care of the child, as required by Utah statute. Adoption proceedings were initiated when his son was three days old. When the adoptive parents notified the father of their intent to adopt his son without his consent, the father moved to intervene in the adoption proceeding. The adoptive couple opposed the father’s motion to intervene, based on the father’s failure to file the affidavit attesting to his ability to provide for the child and setting forth a plan for the child’s care. The court held that the father’s failure to file that affidavit left him with no rights at all regarding his three-day old son, and that this default could not be cured by a late filing. Accordingly, the father’s newborn child was placed for adoption over his objections, solely because he failed to file an affidavit, as required by state law, attesting that he was able and willing to take custody of the child and setting forth his plans for care of the child. Utah law requires unwed fathers, but not unwed mothers, to file such an affidavit before they can assert any claim to parental rights. The father challenged the affidavit requirement in state court on federal and state constitutional grounds, claiming that requiring unwed fathers but not unwed mothers to file such an affidavit was a violation of the Equal Protection Clause. He also raised a substantive due process challenge to the affidavit requirement. The district court rejected his claims and the Supreme Court of Utah affirmed. On the equal protection claim, the Utah Supreme Court acknowledged that requiring an unwed father, but not an unwed mother, to file an affidavit about future support plans is a sex-based classification triggering intermediate scrutiny, but applied a lower level of scrutiny because it found that the affidavit requirement was not particularly burdensome. Under this lower standard, the court held that the different treatment was constitutional because the affidavit requirement was a way to make unwed fathers demonstrate their commitment to the child’s best interests, while unwed mothers demonstrated such a commitment simply by carrying the child to term. According to the Utah Supreme Court, the affidavit requirement put the parents on “equal footing” regarding a demonstrated commitment to the wellbeing of the child. Professor Eugene Volokh of UCLA has filed a cert petition on behalf of the father, arguing that once an unwed father has made himself known, sought to establish his rights to the child, filed a petition for custody and an agreement to court ordered child support, imposing the additional requirement of an affidavit setting forth a care plan on the father but not the mother is a violation of the Equal Protection Clause. The University of Texas School of Law’s Supreme Court Clinic plans to file an amicus brief in support of the petition, urging the Court to grant the case. We are seeking family law scholars and gender discrimination law scholars to sign on to the brief as amici, urging the Court to grant cert. Amicus briefs filed at the cert stage are a very important tool for convincing the Court that the issues raised in the case are important and that the case warrants the Court’s attention. Our current plan is to file a brief outlining the demographic trend toward more out-of-wedlock births and thus the importance of the issue of the constitutional standard for gender-based differences in the treatment of unwed fathers and unwed mothers. We will then explain that this case raises two important issues that the Court has left open in its prior equal protection decisions about fathers and mother and that it tried unsuccessfully to resolve in Flores-Villar v. US several years ago. In particular, the case raises the questions of (1) the constitutionality of gender-based distinctions between unmarried mothers and unmarried fathers that do not help clarify paternity and (2) what “substantial connection to the child” means in the context of a newborn baby. More concretely, this case presents the very important issue whether a state can impose on the unmarried father of a newborn baby a burden to prove his willingness and ability to provide for a child even though he has diligently asserted his paternity and sought custody of the child, when it imposes no equivalent burden on the unmarried mother of the child. Finally, we will argue that the gender-based differences in this statutory scheme lack a rational basis because they rely on outmoded and inaccurate stereotypes about mothers and fathers. At this stage, we are looking for signatories to help refine and elaborate on these arguments. The sooner we have involved signatories, the better we can represent their views and promote their interests. The amicus brief is due on April 13, 2015, and the Clinic needs to give notice of its intent to file by this Friday, April 3, 2015 – and needs signatories by then. Anyone interested in being part of this effort can get more information (including an outline of the proposed brief) by emailing Clinic Director Lynn Blais at firstname.lastname@example.org, or calling her at 512-232-1334.
Monday, March 16, 2015
Marie Ashe (Suffolk) has uploaded a new paper about the ministerial exception and its relationship to the area of gender and law. The abstract:
The US Supreme Court’s Hosanna-Tabor opinion, defining a Constitutionally-rooted “ministerial exemption” of churches from the obligations of anti-discrimination laws, utilized an “absolutist” approach that has been contrasted with the “balancing” approach to the same issue taken by the European Court of Human Rights. Focusing on Hosanna-Tabor, this essay provides analysis of the implications of the case by identifying its location in – and its contribution to – the program of “religious privilege” that has been advanced the Supreme Court during the past 25 years. The essay documents relevant Constitutional case law and statutes; outlines the evolution of the “ministerial exemption;” and, points to losses of individual equality that are being accomplished concurrently with great expansions of “religious liberty” and with abandonment of meaningful “separationism” in the US. Accepting the critique of “absolutism,” the essay suggests, further, that Hosanna-Tabor and other recent work of the Court lack – but that resources extractable from US law of the “religious pluralism” period can provide – conceptual resources useful for protection of individuals’ equality and for minimizing “divisiveness based on religion.”
Friday, March 6, 2015
Friday, February 27, 2015
The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:
South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.
By contrast, the U.S. Supreme Court has so far refused to make an analogous statement. Check out the Mother Jones article (a bit outdated, though) .
Thursday, February 12, 2015
Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?
There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.
In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***
"Just Go Home And Be With Your Babies"
The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."
It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.
In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."
Waiting Three Days to Pump – Not Intolerable?
The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."
Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection.
A few thoughts:
1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'" This is really the crux of the problem. The courts still just don't get it.
2. The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies." There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement. Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later.
Saturday, February 7, 2015
Lactation is not Related to Pregnancy and Other Interesting Findings of the Courts who Denied a Nursing Mom was Constructively Discharged
Lots of questions about the Ames v. Nationwide Insurance case I previously posted about.SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men can Lactate Too
First, no clues as to what the Justices’ vote was here on the denial of cert. We are not generally privy to this information, and no Justice here wrote a dissent from the denial. My guess is that this is a messy case and that the most problematic reasoning was 1) in the trial court opinion rather than the Eighth Circuit opinion and 2) that it was viewed as an employment case about constructive discharge rather than the retro pregnancy discrimination that it is.
This is really a pretty outrageous case. Factually, and Gender-wise if not legally. Woman who is an insurance loss-mitigation specialist has baby #1 and takes 8 weeks maternity leave. Then oops, pregnant with baby #2 three months later. High risk pregnancy that requires bed rest, and the paper is born prematurely. Nationwide messes up her maternity leave return date, and calls her while on leave and says you have to come back to work a few weeks earlier, and says taking unpaid FMLA leave would “raise red flags” and is not advised. She returns on time, and on her first day back, she is denied access to the lactation room – which is an area requiring special security clearance and mandatory pre-approved paperwork with a three-day waiting period. (They lost me here). Turns out the temporary substitute did none of the work while she was gone and she has two weeks to work overtime to complete the two months worth of work, and her supervisor, a woman, in response to her repeated requests for a nursing room as she is in pain, says “You know, I think it's best that you go home to be with your babies” and dictates her resignation letter to sign.
The main holding is she didn’t try hard enough to keep her job. She was supposed to stick it out more, complain more, follow the channels of appeal. Neither the trial court nor the Eighth Circuit is in the least bit sympathetic.
The Eighth Circuit opinion seems to just ignore the evidence. “ Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit.” (Really? If you say so.) And superficially concludes “That Nationwide's policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.”
The trial court actually frames the problem as women’s problem in trying to have both a family and career. . “Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many, expressing breast milk in the workplace is incompatible with the desire to pursue a successful career. With respect to these challenges and the resulting social response, the Honorable Lewis A. Kaplan commented as follows:
‘The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial. Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999).
And here is the most ridiculous conclusion. Lactation is not related to pregnancy.
Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.
Therefore, nursing issues not pregnancy discrimination. The end.
And that is a pretty big issue, which is why the ACLU was likely involved. In the old pre-PDA Supreme Court cases like Gilbert, the Court said that pregnancy was not sex discrimination. Now the courts are saying nursing is not pregnancy.
The Eighth Circuit Opinion is here. [WESTLAW]
The trial court opinion is here.
Thursday, February 5, 2015
In a recent piece for the New Republic, Rebecca Traister argues that “pregnancy and immediate postpartum life itself plays a serious role in slowing professional momentum for women for whom the simple—and celebrated—act of having a baby turns out to be a stunningly precarious economic and professional choice.” Just last week, the Supreme Court took a major step in keeping it that way, upholding a federal appeals court ruling against a breast-feeding mother, Angela Ames, who felt bullied out of her job with Nationwide Insurance. Part of the court's reasoning was,according to Galen Sherwin of the American Civil Liberties Union, “that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.”
Ames' story reads as every woman's worst nightmare of what coming back from maternity leave could be like.
Last month, the U.S. Supreme Court denied Ames’ petition for a review of her case’s dismissal. The district court’s decision — which the Eight Circuit Court did not overturn — said that Nationwide’s treatment of Ames could not have been sexist because under certain circumstances, some men can lactate, too.
“The court’s reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn’t sex discrimination because both men and women can be non-pregnant,” Sherwin wrote. “Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It’s disheartening to see it resurface again.”
The court also found that the dismissive statement that Ames should “go home and be with (her) babies” was in fact gender neutral and not directed at Ames because she was a new mother.
“As the ACLU and 11 other organizations argued in a brief supporting Angela’s appeal, that comment reflects exactly the type of sex stereotype — that women will be less committed to their work after having children, or that they belong at home taking care of the children — that the federal law prohibiting sex discrimination in employment was aimed at eradicating,” Sherwin wrote.
Wednesday, February 4, 2015
El Salvador is one of only six countries that have complete bans on abortion. The others are Nicaragua, Chile, the Dominican Republic, Malta and South Sudan. Many other countries only allow abortion if a woman’s life is in danger.
Last year, the country was elected to the UN human rights council, which is “responsible for strengthening the promotion and protection of human rights around the globe”, as well as addressing rights violations.
Wednesday, January 21, 2015
Chinese health authorities on Wednesday described the gender imbalance among newborns as "the most serious and prolonged" in the world, a direct ramification of the country's strict one-child policy.
A Chinese government website
acknowledged that women were transferring blood samples overseas to determine the genders of their babies as part of an "underground chain for profit".
"This has further exacerbated the gender imbalance in our country's birth structure," the agency said.
Researchers have warned that large sex-ratio imbalances could lead to instability as more men remain unmarried, raising the risks of anti-social and violent behavior.
Tuesday, January 20, 2015
People hvae a moral responsibility to practice "responsible parenting."
Pope Francis, after a visit to the largest Catholic nation in Asia, says Catholics may have a moral responsibility to limit the number of their children and need not reproduce "like rabbits.''
But the pope also reaffirmed the church's ban on artificial means of birth control and said Catholics should practice "responsible parenting."***
The pope cited the case of a woman he met who was pregnant with her eighth child after seven Cesarean sections. "That is an irresponsibility!" he said. The woman might argue that she should trust in God. "But God gives you methods to be responsible," he said.
Thursday, January 15, 2015
WASHINGTON -- President Obama will call on Congress to require companies to give workers up to seven days of paid sick leave a year, a senior adviser said Wednesday.
Obama will also take executive action to give at least six weeks of paid leave to federal employees after the birth or adoption of a child, Senior White House Adviser Valerie Jarrett said.
And Obama wants Congress to spend $2.2 billion to help states and cities develop paid family leave programs.
Jarrett announced the new initiatives in a post on the job networking site LinkedIn -- a venue chosen, she said, because its audience was best positioned to drive change in their own workplaces.
From Jarrett's announcement:
So on Thursday, President Obama will call on Congress to pass the Healthy Families Act, which would allow millions of working Americans to earn up to seven days a year of paid sick time — and call on states and cities to pass similar laws. The President will outline a new plan to help states create paid leave programs, and provide new funding through the Department of Labor for feasibility studies that will help other states and municipalities figure out the best way to implement programs of their own. And the President will sign a Presidential Memorandum that will ensure federal employees have access to at least 6 weeks of paid sick leave when a new child arrives and propose that Congress offer 6 weeks of paid administrative leave as well.
Tuesday, January 13, 2015
What is happening to Jamie Cole is happening to women all over the country, said Ariela Migdal, an attorney and senior staff member for the ACLU's Women's Rights Project in New York City.
Charges filed with the EEOC and Fair Employment Practices Agencies alleging pregnancy discrimination in the workplace increased by nearly 47% from 1997 through 2011, the last year in which states and the federal government reported numbers together.
"We are surprised that we're still seeing so much pregnancy discrimination in our nation's workplaces, 37 years after the Pregnancy Discrimination Act," said Christine Saah Nazer, spokeswoman for the EEOC.
Saturday, January 3, 2015
Last Friday, a federal jury awarded a former teacher in the Diocese of Fort Wayne-South Bend almost $2 million for what she claims was sex discrimination, the bulk of which was not for medical bills or lost wages, but for $1.75 million in “emotional and physical damages” she allegedly suffered.
And while the case looks narrow—was this female teacher fired when immoral male teachers were allowed to retain their jobs?—it involves a much bigger question: when can federal courts scrutinize the religious decisions of churches?
In 2008, Emily Herx, a junior high school language arts teacher at St. Vincent de Paul School in Fort Wayne, began IVF treatment. She notified her school principal about additional IVF treatment in 2010, and in April 2011 the church pastor met with Herx to inform her that IVF was morally wrong.
IVF is a multi-step procedure that usually involves stimulating a woman’s ovaries to cause multiple ovulation, collecting the eggs and fertilizing them with donor sperm in a petri dish (in vitro meaning “in glass”), developing embryos, selecting a few and implanting them back in the woman. Leftover embryos are usually frozen or destroyed. According to Catholic moral teaching, this process is objectionable in many different ways.
Because of her IVF treatment, Herx’s contract as a teacher was not renewed, and she sued the Diocese citing alleged violation of various federal laws. Some of her claims were dismissed by the court, but her sex discrimination claim went to a jury, which rendered a verdict last Friday finding the Diocese of Fort Wayne-South Bend liable under Title VII of the 1964 Civil Rights Act, a federal law prohibiting discrimination in employment on the basis of sex. Herx had argued that, although she was terminated for undergoing IVF treatments, the Diocese allegedly continues to employ male teachers who had received vasectomies and other treatments that interfere with natural reproduction.
Thursday, January 1, 2015
The U.S. Justice Department on Tuesday sued the Chicago Board of Education, alleging that it discriminated against pregnant teachers at a northwest side elementary school.
The suit, filed in federal court in the third largest U.S. city, alleges that starting in 2009, Scammon Elementary School Principal Mary Weaver subjected female teachers to lower performance evaluations, discipline, threatened firing and firing because of their pregnancies.
The suit also alleges that the board approved the firing of six recently pregnant teachers at Scammon and forced two others to leave the school.
"No woman should have to make a choice between her job and having a family," said Vanita Gupta, acting assistant attorney general for the Justice Department's civil rights division. "Federal law requires employers to maintain a workplace free of discrimination on the basis of sex."
Weaver, who won a Chicago Public Schools principal achievement award last year, made negative comments to and about pregnant Scammon teachers, the suit said. She responded to one teacher's pregnancy announcement with "I can't believe you are doing this to me. You are going to be out right before [mandatory] testing," the suit said.
It said Weaver asked another teacher who was nursing and expressing breast milk: "That isn't over yet?" and "When will you be done with that?"
Wednesday, December 17, 2014
Lynn Paltrow (Nat'l Advocates for Pregnant Women) and Jeanne Flavin (Fordham Law) have uploaded "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health." The abstract reads:
In November 2011, the citizens of Mississippi voted down Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty. First, we describe key characteristics of the women and the cases, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.
Tuesday, December 16, 2014
WaPo, What's Fair Treatment for Pregnant Workers? The US Isn't Sure. Other Countries Are. Other countries provide better work accommodations. But its more complicated than that, as there is still prevalent pregnancy discrimiination and ambivalence about accommodating work and family for women.
In the United States, pregnancy discrimination claims grew by 31 percent between 2005 and 2010, the ILO report said, faster than all other job bias claims. Though pregnant workers are supposed to be treated fairly, the same as other “similarly situated” workers, under the 1978 Pregnancy Discrimination Act, U.S. courts have paid out $150 million in pregnancy- discrimination-related damages since 2001.
The U.S. District Judge presiding over all federal Yaz lawsuits and Yasmin lawsuits has identified 33 cases that will be prepared for trials to begin by the middle of next year, involving claims for injuries that the manufacturer of the popular birth control pills has refused to settle.
Since 2009, all product liability lawsuits filed throughout the federal court system involving side effects of Yaz, Yasmin or other related birth control pills have been consolidated for pretrial proceedings before U.S. District Judge David R. Herndon in the Southern District of Illinois, as part of an MDL or Multidistrict Litigation.
At one time, the litigation included around 12,000 cases filed on behalf of women who suffered various different injuries. However, Bayer has reached Yasmin and Yaz settlements to resolve the majority of all cases involving gallbladder problems and venous clot injuries, such as a deep vein thrombosis or pulmonary embolism.
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.