Friday, September 19, 2014
ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. Yet the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.
And the case facts:
Peggy Young was working part-time as the driver of a delivery truck for UPS when she became pregnant in 2006. Ms Young’s midwife, frowning on the requirement in her job description that she haul 70lb boxes, wrote a note to UPS recommending that “she not lift more than 20 pounds." On this basis, Ms Young requested a few months of a lightened load. Other UPS employees were eligible for such an accommodation, she reasoned, so she wasn’t asking for anything out of the ordinary. Workers who were injured on the job, who were disabled under the terms of the Americans With Disabilities Act, or who lost their driving credentials were all eligible (under the collective-bargaining agreement) for “light duty” assignments. But Carolyn Martin, the company’s occupational health manager, rejected Ms Young’s request. Since pregnancy did not fall into any of the three categories of workers eligible for alternate assignments, UPS would not switch her to a less physically onerous job. Ms Martin "empathise[d] with [Ms Young's] situation and would have loved to help her," but sent her packing on an unpaid leave.
Monday, September 15, 2014
Caitlin Borgmann, CUNY Law, has uploaded on SSRN "Abortion Exceptionalism and Undue Burden Preemption." The abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.
Sunday, September 14, 2014
A former New York Mets senior vice president, who was fired last month by the club, sued the organization on Wednesday alleging that she was discriminated against on the basis of her sex, and ultimately fired for becoming pregnant while unmarried. Leigh Castergine, who joined the Mets organization in 2010, was the head of ticket sales when, the suit says, she was fired by team COO Jeff Wilpon because he was “morally opposed” to Castergine having a child out of wedlock.
[T]he National Women’s Law Center and law firm Jenner & Block submitted an amicus brief on behalf of 123 Members of Congress in the Supreme Court pregnancy discrimination case, Young v. United Parcel Service, Inc.; the brief highlights the plain language, legislative history and intent of the Pregnancy Discrimination Act (PDA), which Congress passed in 1978. In Young, the Supreme Court will decide for the first time whether the PDA requires an employer to provide light duty to a worker if she needs it because of pregnancy, when the employer provides light duty to workers with similar limitations in ability to work arising out of disability or on-the-job injury. The brief argues that the plain language and legislative history of the PDA demonstrate that an employer may not deny accommodations for medical needs arising out of pregnancy that it provides to other workers based on a similar inability to work.
In 2006, Peggy Young, a pregnant UPS delivery driver in Landover, Maryland, was instructed by her medical provider to avoid heavy lifting during her pregnancy. Although UPS routinely accommodates employees who need light duty because they have a disability or an on-the-job injury—and even when they lose their commercial driver’s license because of a D.U.I. conviction—it forced Young to take a leave of absence for the rest of her pregnancy, causing her to lose her wages and her health insurance coverage. Young sued UPS, but two lower courts ruled against her, finding that the company’s refusal to accommodate pregnancy when it accommodated the medical needs of other workers with similar limitations in ability to work did not constitute pregnancy discrimination
More than 120 members of Congress urged the Supreme Court on Thursday to recognize that pregnant workers are entitled to reasonable accommodations such as light duty, saying it's needed to ensure that expecting mothers are not forced out of their jobs.
In a friend-of-the-court brief, the Democratic lawmakers — 99 from the House, including Minority Leader Nancy Pelosi, and 24 senators — said UPS delivery driver Peggy Young of Lorton, Virginia, was unfairly treated by her employer when it asked her to take unpaid maternity leave rather than provide a less strenuous position as her doctors advised.
Sunday, August 31, 2014
A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.
The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits.
The rule “is unconstitutional because it imposes an undue burden on the right of women throughout Texas to seek a pre-viability abortion,” he wrote.
Thursday, August 28, 2014
The story from The Nation:
Once upon a time, when a working woman became pregnant, she’d typically be expected to leave her job and retreat into full-time domestic duties. These days, white-collar career women sport proud baby bumps under power suits, and across the workforce, women now regularly serve as the main breadwinners, and must work before, during, and after pregnancy. Yet many workplaces are still stuck in a Victorian mindset about what pregnant women can and can’t do on the job. Now a new law in Illinois is set to modernize the way bosses deal with pregnant employees.
The so-called Pregnancy Fairness law, which Governor Pat Quinn signed into law yesterday, establishes distinct civil rights protections for pregnant workers who require a modest adjustment to their duties to do their jobs. The employer still has the right to refuse but only if it could prove that the accommodation “would impose an undue hardship” on the business.
Officials with three Louisiana abortion clinics head into a Baton Rouge federal court Thursday morning seeking to delay new state abortion restrictions slated to go into affect Sept. 1.
The new restrictions could shut down most -- if not all -- of Louisiana's abortion clinics next week due to an absence of physicians legally able to provide abortions.
Under the new state law, signed by Gov. Bobby Jindal in June, physicians who perform abortions must have permission to admit patients at a local hospital within 30 miles of the abortion clinic where they work. Abortion clinic officials said their doctors are still waiting to hear back from local hospitals about whether they will be granted admitting privileges, which is why the law should be put on hold for now.
There's more--including the 4 interesting facts in NOLA.COM.
Monday, August 18, 2014
Good luck getting a teaching job in São Paulo if you’re a woman who doesn’t want to undergo a pap smear or have a doctor certify your virginity in a written note. As outlined by a 2012 law that might well have been written decades (or even centuries) earlier, women who wish to become teachers in Brazil’s most populous state must undergo invasive gynecological exams to test for a variety of cancers, ostensibly to determine if the candidates pose a risk of taking extended absences to cope with an illness.
Thursday, August 14, 2014
Women in France can now end a first-trimester pregnancy for any reason — and the full cost of the abortion will be financed by the government — under asweeping new gender equality law approved on Tuesday. The new policy amends the country’s existing abortion law, which currently allows women to get an abortion only if they can prove they’re in “emotional distress.”
When they can't even wait until you are actually pregnantly disabled to fire you.
In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.
What can we learn from this case?
- It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
- If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.
Tuesday, July 22, 2014
"Come September, there will be six abortion clinics in Texas." So states a Salon article.
Six clinics, intended to serve more than 13 million women across a state nearly 300,000 square miles in size, concentrated in five of the state’s largest metropolitan areas and leaving virtually the entire western portion of Texas — the Panhandle, the Rio Grande Valley — without reproductive care. The clinics that remain open in September will be able to do so only because they meet the new standards outlined in H.B. 2, the extreme anti-choice legislation thatWendy Davis spent 11 hours filibustering last June, which mandates abortion providers meet the guidelines for ambulatory surgical centers. These standards can cost up to $40,000 a month to maintain, and have already forced clinics across the state to shut down. With abortion providers in the western part of the state shuttered, women who live in the region — particularly the Valley — are left without options.
Sara Ainsworth, Amicus Curiae Brief, Stormans v. Selecky, 24 Hastings Women's L.J. 303 (2013).
Women and girls in the United States are at high risk of experiencing sexual assault and violence perpetrated by an intimate. Preventing pregnancy after such an assault is, in most cases, critical to a woman’s psychological recovery and physical health. Emergency contraception works effectively after an assault to prevent pregnancy, and is the medical standard of care for treating women and girls of reproductive age after a sexual assault. Yet access to that contraception can be restricted when pharmacists refuse to fill prescriptions on religious grounds.
Ruling for two pharmacists and a pharmacy who objected to dispensing emergency contraception, a federal district judge found unconstitutional a Washington State Board of Pharmacy rule that requires pharmacies to fill all lawful prescriptions on site and in a timely manner. Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012).
This amicus curiae brief was submitted on behalf of organizations and experts in domestic and sexual violence, in an appeal of that ruling, Stormans v. Selecky, No. 12-35223, United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has deferred oral argument, pending the Supreme Court's decision in Conestoga Wood Specialties v. Sebelius, No. 13-356. (That case has been consolidated with Sibelius v. Hobby Lobby, Inc., No. 13-354.)
Earlier rulings in Stormans, Inc. v. Selecky: 524 F. Supp. 2d 1245 (W.D.Wash. 2007), vacated, 526 F. 3d 406 (9th Cir. 2008), vacated, 571 F. 3d 960 (9th Cir. 2009), vacated and superseded on reh’g, 586 F. 3d 1109 (9th Cir. 2009).
Saturday, July 19, 2014
Evan Seamone & David Traskey, Maximizing VA Benefits for Survivors of Military Sexual Trauma, 26 Columbia J. Gender & Law 343 (2014)
After decades of highly-publicized sexual assault incidents in the military and more recent indications of increasing reports of military sexual assault, Congress and the military leadership are addressing the epidemic of rape and sexual assault in the Armed Forces head-on. While prevention efforts are vital, there is mounting concern for veterans of the Armed Forces who have left the Service following an assault. A major problem facing MST survivors is the fact that a great majority of those enlisted in the Armed Forces have already suffered previous trauma, including childhood sexual assault. The VA’s standards require that mental health conditions either must have been caused or aggravated by military service. Too often, when a survivor discloses prior abuse, this disclosure results in denial of a claim for service connection — even when there is no question regarding the legitimacy of the rape or sexual assault. Authors Seamone and Traskey offer solutions to solve the problem of how to successfully put forth a claim for service-connection, even when the survivor has pre-enlistment sexual trauma. Beyond this, they provide insight on the VA’s own internal regulations and other hard-to-obtain adjudication materials to provide a clear and accurate picture of the VA adjudication process, emphasizing how any MST survivor can maximize her or his chances of success at each step of the process from initial application, through medical examination, to determinations of diagnosis and causation.
Thursday, July 17, 2014
Democrats in the Senate on Tuesday took a major step in pushing back against the growing trend of regulations that are designed to shut down safe abortion clinics. The Senate Judiciary Committee is hearing testimony on a bill introduced by Sens. Richard Blumenthal and Tammy Baldwin, a bill that would do significant damage to anti-choice efforts to go around Roe v. Wade by regulating abortion clinics out of existence. It's called the Women's Health Protection Act, and it would end the attacks on abortion clinics through one simple measure: requiring states to regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. No more singling out abortion providers.
The bill goes into detail about the specific abortion-only regulations that would not be allowed, but the general principle is that if you don't require it for other outpatient procedures, you can't require it for abortion. Want to force women seeking abortion to listen to a script full of lies and then make them wait 24 or 48 hours to think it over? Better be prepared to do the same for people who need colonoscopies. Want to require a bunch of unnecessary visits before a woman is allowed to have a procedure? Now you need to do that for a biopsy, too. Want to force abortion clinics to meet ambulatory surgical center standards and abortion providers to have hospital admitting privileges? Well, dentists will have to meet the same standards before they can drill a tooth. If this bill passes (more on that below), states would be forced to let abortion providers operate in peace or make everyone else—including, gasp, men—endure the same kind of hassles and mistreatment women seeking abortion now have to endure in much of the country.
Tuesday, July 15, 2014
July 14, 2014
(Washington, D.C.) Today, the U.S. Office of Equal Employment Opportunity Commission (EEOC) issued its first comprehensive Enforcement Guidance on Pregnancy Discrimination and Related Issues since 1983. The guidance outlines the fundamental requirements of the Pregnancy Discrimination Act (PDA) that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons in their ability or inability to work. The guidance also includes the application of the Americans with Disabilities Act (ADA) as amended in 2008.
Saturday, July 12, 2014
From the Reproductive Rights Blog, Senate Judiciary Committee to Hold Hearing on Women's Health Care Protection Act
The Senate Judiciary Committee will hold a hearing on S.1696, The Women’s Health Protection Act: Removing Barriers to Constitutionally Protected Reproductive Rights on July 15. The hearing will be live streamed on the Committee's website.
Via the Center for Reproductive Rights:
The Women's Health Protection Act would prohibit laws and regulations that single out the provision of abortion services for restrictions that are more burdensome than those imposed on medically comparable procedures, do not significantly advance women's health or the safety of abortion services, and make abortion services more difficult to access. The bill currently has 34 co-sponsors in the Senate and 121 in the House. It includes a list of regulations that are per se violations, which you can read here. . . .
[T]he US supreme court's Hobby Lobby decision left most women's groups livid. Terry O'Neill, president of the National Organization for Women, called it "a shocking disregard for women's health and lives." The co-president of the National Women's Law Center, Marcia Greenberger, said the ruling gave companies "a license to harm their female employees in the name of religion."
But the Independent Women's Forum (IWF) - a conservative women's group with at least a quarter-million dollars in financial ties to Rush Limbaugh - called the decision "undoubtedly good news". The group's director of cultural programs, Charlotte Hays, told a crowd outside the court, "This is a great day," and called the ruling a victory "for anyone who believes in freedom of conscience." This from the same woman who has written that women shouldn't be astronauts and that rape culture on college campuses is all "inflated numbers" and "hysteria".
This latest crop of female anti-feminists - powerful, Washington-based organizations like IWF and Concerned Women for America - want to repeal the Violence Against Women Act and argue that pay inequity doesn't exist. These organizations, along with a handful of popularwriters and authors, want to convince women that it's men who are the underserved sex. They want to convince you that inequality is just a trade-off.
(Reuters) - A federal judge in New York has allowed a pregnancy discrimination case against a luxury retailer to go forward, in a decision that helps clarify the length of time that women who recently gave birth are still protected under pregnancy discrimination laws.The case involves Katherine Albin, a former clerk at a Thomas Pink clothing store in Manhattan, who alleged that she was turned down for a promotion to store manager because she had recently returned from maternity leave.In a lawsuit filed in June 2013, Albin alleged that she was rejected for the job, which went to an applicant with less experience and who was unlikely to become pregnant due to her age. Albin alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.The two sides have sparred over whether Albin was still a member of a "protected class" -- or one protected by particular antidiscrimination laws -- when she was passed over for the promotion about seven months after her child was born. In its motion to dismiss the case, LVMH Moet Hennessy Louis Vuitton, which owns Thomas Pink, argued that Albin did not fall within the protected pregnancy class because she gave birth to her child seven months before she ultimately quit the job after being passed over for promotion.U.S. District Judge Paul Oetken on Tuesday declined to grant LVMH's motion to dismiss, ruling that Albin had sufficiently shown she may have been protected by antidiscrimination laws because the event that she claimed triggered the discrimination -- her request to be considered for a promotion -- occurred less than four months after she gave birth. She was eventually turned down for the promotion three months later.Case law in the 2nd U.S. Circuit Court of Appeals suggests that the circuit has developed a "loose line" of four months from a child's birth that women can still be considered a protected class for pregnancy discrimination, Oetken wrote.
Tuesday, July 8, 2014
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.
Sunday, July 6, 2014
North Dakota’s law bans the practice of so-called sex-selection abortion, making it illegal to terminate a pregnancy based on the gender of the fetus—an issue that reproductive rights advocates have said is “solution in search of a problem that does not exist.”
The law would punish any physician who is caught performing an abortion
because of the gender of the fetus. Under the law, doctors are required to ask women seeking an abortion a series of questions to determine if the gender of the fetus is a factor in her decision. Women seeking an abortion because of “sex-selection” would face no penalties, while abortion providers could face a class 6 felony, which carries up to a $4,000 fine and two years in prison.
A recent report debunked significant misinformation that has been used to justify sex-selection abortion bans around the country, including North Dakota. “Lawmakers have relied on misinterpretations of narrow data and faulty assumptions about sex selection practices to enact sex-selective abortion bans in the United States,” said Sital Kalantry, clinical professor of law and director of the International Human Rights Clinic at the University of Chicago Law School, in a statement following the release of the report.
Meanwhile, in Indiana, two new laws went into effect.