Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

Tuesday, June 4, 2019

Abolishing Juries of Matrons in England, Used to Secure Reprieves for Pregnant Women Sentenced to Death

Kevin Crosby, Abolishing Juries of Matrons, Oxford J. Legal Studies (Dec. 2018)

This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.

June 4, 2019 in Legal History, Pregnancy | Permalink | Comments (0)

Wednesday, May 22, 2019

Pregnant People?

Jessica Clarke, Pregnant People?, 119 Colum. L. Rev. Online (Forthcoming)

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do — such as purchasing a car seat, finding a pediatrician, or choosing a daycare — as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBT parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.

May 22, 2019 in LGBT, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Friday, May 3, 2019

Rewriting the Supreme Court's Decision in Young v. UPS

Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).

Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.

The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.

Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.

Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).

May 3, 2019 in Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, April 25, 2019

Seeking Contraceptive Equity under the Affordable Care Act

Greer Donley, Contraceptive Equity: Curing the Sex Discrimination in the ACA's Mandate. 71 Alabama L. Rev. (forthcoming)  

Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s Contraceptive Mandate, which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in three ways: it incentivizes them to endure the risks and side-effects of birth control when safer options exist for men; it perpetuates harmful sex stereotypes, like that women are to blame for unwanted pregnancy or that men are indifferent as to whether sex leads to pregnancy; and it fails to financially support the quarter to a third of women that rely on male birth control to prevent conception. The Mandate’s facial sex classification constitutes unconstitutional sex discrimination under the Equal Protection Clause and can only be equitably cured by extending the Mandate to cover male forms of birth control. A neutral, universal mandate will remedy the harms discussed above and create incentives for the creation of new, pharmaceutical methods of male birth control, benefiting men and women alike.

April 25, 2019 in Family, Healthcare, Pregnancy | Permalink | Comments (0)

Monday, April 15, 2019

Unsexing Pregnancy

David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Columbia L. Rev. (2019)  

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of pregnancy stands in stark contrast to the unsexed law of parenting, the sexed pregnancy has avoided challenge and largely escaped notice.

This Article makes visible the law of the sexed pregnancy, identifies and evaluates the core tension it generates in the law of sex equality, and considers how to unravel this tension. Of course, typically only women can physically carry a child, and therefore some pregnancy regulations are appropriately sex specific. But the nine months of pregnancy encompass a range of carework, much of which has little or nothing to do with the physical fact of pregnancy. Expectant fathers can, for example, buy a carseat, quit smoking, take a childcare class, and choose a pediatrician or daycare center for the child. Given the ability to disaggregate sex from much of the carework of pregnancy, the law’s failure to do so marks women for caregiving and men for breadwinning in the same problematic way that sex-equality law has tried to combat after a child is born. And while pregnancy implicates real concerns about a woman’s constitutional right to bodily autonomy, this concern alone cannot justify the failure to scrutinize all sex-based pregnancy regulations, because much prebirth carework does not involve the woman’s body at all. After surfacing the law’s anomalous sexed treatment of pregnancy, this Article considers how to harmonize the law of sex equality. This effort can advance not only the goal of equality between the sexes, but also equality for lesbian, gay, and transgender parents, while at the same time enhancing women’s autonomy.

April 15, 2019 in Family, LGBT, Pregnancy | Permalink | Comments (0)

Tuesday, January 29, 2019

Study Documents Widespread Breastfeeding Discrimination, Particularly in Male-Dominated Industries

Pregnant@Work: An Initiative of the Center for WorkLife Law, Exposed: Discrimination Against Breastfeeding Workers

A new study released today by the Center for WorkLife Law at the University of California, Hastings College of the Law reveals widespread breastfeeding discrimination, resulting in job loss, negative health outcomes, sexual harassment, and weaning earlier than doctors recommend.

 

Exposed: Discrimination Against Breastfeeding Workers analyzes breastfeeding legal cases from the last decade to document patterns of discrimination, and analyzes new data on the scope of existing laws to protect against discrimination. According to the report, 27.6 million women of childbearing age don’t have the basic protections needed by all breastfeeding workers.

 

“Breastfeeding discrimination is widespread and can have devastating consequences for women and their families” says Liz Morris, report co-author. “Despite a patchwork of laws giving legal rights to breastfeeding employees, millions still do not have the basic legal protections they need. Workers are losing their jobs to feed their babies. We’ve outlined a common sense policy solution that would fix this.”

 

The study found that while breastfeeding discrimination exists in many industries, it is most acute in male-dominated sectors. First responders, law enforcement, and other women in predominantly-male industries make up only 16% of women workers, but account for nearly half (43%) of breastfeeding discrimination claims. Workers in pink collar professions, such as nurses and teachers, are often left out of federal legal protections for breastfeeding workers.

January 29, 2019 in Equal Employment, Family, Pregnancy | Permalink | Comments (0)

Thursday, September 27, 2018

EEOC Files Pregnancy Discrimination Lawsuit against Walmart

US Agency Accuses Walmart of Pregnancy Discrimination in Lawsuit

The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.

 

The EEOC, which enforces federal laws banning discrimination in the workplace, said Walmart’s distribution center in Menomonie, Wisconsin, has discriminated against pregnant employees since 2014. Federal law requires employers to accommodate workers’ pregnancies in the same way as physical disabilities.

 

Friday’s lawsuit, filed in federal court in Wisconsin, stems from a complaint filed by Alyssa Gilliam, an employee at the Walmart warehouse in Menomonie.

 

The EEOC in the lawsuit said Gilliam became pregnant in 2015, and Walmart denied her requests for restrictions on heavy lifting, additional breaks, and a chair to use while working.

 

The commission said Walmart refused similar requests by other pregnant workers at the warehouse, but granted them for workers with disabilities or injuries.

 

The federal Pregnancy Discrimination Act prohibits workplace discrimination against pregnant women. In a 2015 decision involving United Parcel Service Inc, the U.S. Supreme Court said the law requires employers to provide the same accommodations to pregnant women as it does disabled workers.

 

September 27, 2018 in Books, Business, Equal Employment, Pregnancy | Permalink | Comments (0)

Friday, August 24, 2018

Using Feminist Legal Theory to Critique the Law's Devaluation of Tort Liability for Stillbirth

Jill Wieber Lens, Tort Law's Devaluation of Stillbirth, Nevada L. J. (forthcoming)

In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.

 

This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim.

 

The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.

August 24, 2018 in Family, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, June 27, 2018

SCOTUS Overturns CAL Disclosure Law for Pro-Life Pregnancy Counseling Centers

In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.

The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra.  Concurrence by Justice Kennedy. Dissent written by Justice Breyer.

Commentary on the decision:

Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy

On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.

 

For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****

 

But the court’s decision to treat crisis pregnancy centers as religious institutions has created two  contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different. 

 

Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement

These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”

 

Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions

 

Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)

 

Abortion Providers Have Less First Amendment Rights than Abortion Opponents

One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.

 

On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.

June 27, 2018 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, March 28, 2018

Pregnancy, Poverty and the State

Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty and the State, 127 Yale L. J. (forthcoming)

In Pregnancy, Poverty, and The State, we argue that the core bundle of rights contained in reproductive privacy have been hollowed out through new legislation and court decisions, affecting the actual practice of reproductive privacy. We show how increasingly, even judicial opinions affirming reproductive rights fail to constrain state governments seeking to eviscerate those rights through new legislation. Though court rulings recognize these rights, they ultimately render them meaningless for poor women, particularly poor women of color. These groups are the first victims since they are largely unseen and unheard by those who make the law and policy. As the policies that substantially burden women’s reproductive rights become normalized, these norms will affect broader segments of the population, placing greater numbers of women at risk. 

We view these issues as not simply matters of law, but of human rights, morality, and dignity. The moral hypocrisy of the state is clear in the reproductive health context. That is, when the state coerces women and girls into pregnancies they do not want and to bear children they do not desire to have, it not only creates unconstitutional conditions, but it also acts immorally. Even though legal scholars typically refer to lawmaking that unduly burdens the poor as unjust, we suggest that legislative efforts to eviscerate reproductive rights is far worse than that. 

This project, launches with a review of Professor Khiara Bridges’s daring book, The Poverty of Privacy Rights to problematize the intersections of privacy and morality. We view the state as not only a fallible and problematic arbiter of women’s morality, but argue the state acts immorally when it deprives poor women of privacy, bodily autonomy, and threatens to rob them of life itself. As we document in detail, bounded in the state’s immoral actions toward poor women of color are its historical struggles and campaigns against their personhood and citizenship as well as conscription of their bodies in service to malevolent state agendas such as eugenics and forced sterilization. As we show, this is more than mere indifference, but an historic pattern. We illustrate how the continued effects of more than a century of negative state interventions in the reproductive lives of poor women of color is actually deadly. Finally, we predict that the continued interference in the reproductive lives of poor women creates cultural norms and precedents in medicine, law, and society that will spill over and constrain the rights of all classes of women, regardless of race. That is, historical disregard for the lives and rights of Black women inscribed by judicial doctrine and court opinions as well as state and federal legislation serve as vehicles for contemporary and future disparagement of all women.

March 28, 2018 in Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Thursday, February 8, 2018

The Supreme Court's New Approach to Pregnancy Discrimination and Pregnancy as a Normal Condition of Employment

Reva Siegel, Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination, William & Mary L. Rev (forthcoming)

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women as well as men would combine work and family—a world in which pregnancy would be a normal condition of employment. A social-roles analytic helps explain the logic of pregnancy discrimination, whether it assumes the form of hostility to pregnant workers or a simple failure to accommodate.

Drawing on this social-roles analytic, the Lecture offers a reading of Young v. UPS, the Supreme Court’s most recent decision on the PDA. Young breaks from an exclusively comparative approach and authorizes pregnancy accommodation claims under both disparate treatment and disparate impact frameworks. The Court’s approach is informed by a growing popular consensus. As the PDA turns forty, nearly half the states have enacted pregnant worker fairness acts supporting reasonable accommodation of pregnancy in the workplace.

February 8, 2018 in Pregnancy, SCOTUS | Permalink | Comments (0)

Wednesday, January 31, 2018

Challenging the Criminal Prosecution of Pregnant Women

Priscilla Ocen, Birthing Injustice: Pregnancy as a Status Offense, 85 G.W. L.Rev. 1163 (2017)

Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecution under the statute. In Alabama, the State Supreme Court upheld convictions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hundreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person.

This Article makes two central claims about the increasing number of criminal prosecutions of pregnant women. First, this Article contends that pregnant women are subject to a form of status offense. Status offenses, which criminalize the behavior of individuals within a select group of people that would be noncriminal if committed by persons outside of the group, have been utilized to regulate disfavored classes. Pregnant women, especially those who are poor and of color, are similarly constructed as a disfavored class and are therefore subject to unique forms of criminal regulation. Through the imposition of criminal liability, the state is enforcing gendered norms and policing the line between “good” and “bad” motherhood. As such, criminalization and incarceration play a significant role in the regulation of the reproductive autonomy of women. Second, the Article asserts that the prosecution of pregnancy-based status offenses violates the Eighth Amendment’s ban on cruel and unusual punishment.

January 31, 2018 in Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)

P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole. 

Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.

“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”

 Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).

 The trial court's concerns are well founded.

 Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.

 Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.

 Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.

 Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70;  see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.

 The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

Tuesday, September 12, 2017

Can a Man Sue for Pregnancy Discrimination?

Can a Male Employee Sue for Pregnancy Discrimination?

Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.

 

However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.

 

At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?

 

Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment

 

In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.

 

His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).

 

Pregnancy Discrimination Must Be Based on Sex

 

The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.

 

What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.

 

Two-Step Associational Discrimination Claim

 

The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.

 

In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.

 

Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.

Isn't this a Family Medical Leave Act claim?  Of retaliation for caring for a sick/pregnant family member?  Unless the FMLA didn't apply because he worked for a small employer.

September 12, 2017 in Equal Employment, Pregnancy | Permalink | Comments (0)

Friday, September 1, 2017

The Autonomy Hierarchy

Meghan Boone, The Autonomy Hierarchy, 22 Tex. J. Civ. Liberties & Civ. Rgts 1 (2016)

The Supreme Court decided two cases in Spring 2015 – Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc. – under Title VII. The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class – pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as an accommodation. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a “most favored” class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed “favored treatment.” This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question – that these decisions reflect the Court’s underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims.

September 1, 2017 in Constitutional, Equal Employment, Pregnancy, Religion | Permalink | Comments (0)

Friday, June 16, 2017

Are Men Entitled to Equal Paid Paternity Leave?

Fathers Denied Paid Parental Leave by JP Morgan Chase File Sex Discrimination Complaint with EEOC

The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.

 

Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.

 

“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”

 

Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.

 

“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”

Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.

Here are the EEOC Guidelines on Parental Leave:

For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).

Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment

An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.

EXAMPLE 15: Discriminatory Parental Leave Policy

In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.

JP Morgan has explained its policy as applying to primary caregivers, who are presumably women.  And it has precluded consideration of equal caregiving between parents.  That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work

Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”

The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.

 Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.

 

Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. 

However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.  

    1.  JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.

    2.  The company could level down and provide no paid leave to anyone.  That was also the result of the Supreme Court's Morales-Santana decision.  See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.

The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.  

June 16, 2017 in Equal Employment, Family, Pregnancy | Permalink | Comments (0)

Monday, April 10, 2017

Cloaking: Public Policy and Pregnancy

Julie Manning Magid, Cloaking: Public Policy and Pregnancy, 53 Amer. Bus.L.J. 439 (2016)
 
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.

In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.

Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”

April 10, 2017 in Equal Employment, Family, Poverty, Pregnancy | Permalink | Comments (0)

Friday, March 24, 2017

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, March 20, 2017

EEOC Enforcement Guidance on Employer Questioning about Pregnancy

In light of the article Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch, here's a summary by the Equal Employment Opportunity Commission on what the existing state of the law is (and which a future SCOTUS could change) regarding employer treatment based on existing or intended pregnancy.

Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues

These Questions and Answers address the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) originally released on July 14, 2014, and recently updated in light of the Supreme Court's decision in Young v. United Parcel Serv., Inc., --- U.S. ---, 135 S. Ct. 1338 (2015). The updated Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.***

1. What workplace actions are prohibited under the PDA?

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).***

3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.

March 20, 2017 in Constitutional, Pregnancy, SCOTUS | Permalink | Comments (0)