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States Fight Back Against Pregnancy Discrimination

Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project, on the steps of the U.S. Supreme Court.

Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project, on the steps of the U.S. Supreme Court.

This is a guest blog post that was originally published on the American Civil Liberties Union (ACLU) website. 

By Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project

When Peggy Young got pushed out of her job at UPS after she became pregnant, she fought back by bringing a lawsuit against her employer, claiming that UPS discriminated against her by refusing to give her a light duty rotation, even though UPS admitted that it routinely accommodates workers with on-the-job injuries, workers who lose their drivers’ licenses, and workers who are covered by the Americans with Disabilities Act. Unfortunately, many employers think it’s okay to treat pregnant workers worse than other employees who need temporary light duty positions or other temporary adjustments, like the ability to sit down or drink more water. And some courts have agreed.

In Ms. Young’s case, in which the ACLU submitted a friend-of-the-court brief, an appeals court held that to require UPS to give pregnant workers the same kinds of accommodations it gives other workers would be to grant special “most favored nation status” to pregnant employees.

Recently, however, a growing number of states has decided that it is fundamentally unfair and unlawful to allow companies to push pregnant women out of the workforce in this way. The majority of American women will be pregnant at some point in their working life, and it makes no sense to allow employers to send pregnant workers packing, when employers can keep pregnant workers on the job using the same policies they already use to keep temporarily injured or disabled workers at work. While the federal Pregnancy Discrimination Act was passed in 1978 precisely to ensure that pregnant women were not subject to unlawful firings and other mistreatment, courts—like the court in Peggy Young’s case—have been allowing employers to treat pregnant workers worse.

States have started to fight back. Recently, the state of Maryland, with the support of Peggy Young, the ACLU of Maryland, and other civil rights groups, passed a law that will close this gap in the law, at least for pregnant workers in Maryland. The Governor is expected to sign the bill into law in May. Now, pregnant women in Maryland will receive the same kinds of accommodations that are currently provided to other employees with temporary physical restrictions.

In New York, the Governor and advocates, including the New York Civil Liberties Union, are trying to pass the New York Women’s Equality Agenda, which will explicitly require employers to provide a reasonable accommodation for pregnant workers, just as they already do for many other workers who are temporarily unable to do any aspect of their job. The law would provide more certainty for pregnant workers like Julie Desantis-Mayer, who was forced onto unpaid leave when she requested light duty in her job as a package delivery driver for UPS. We filed a sex discrimination charge with the EEOC on behalf of Ms. Mayer and are currently proceeding before the agency.

A number of states, including Michigan, Connecticut, California, and a handful of others, already have some kind of law requiring parity in accommodations for pregnant workers. Other states are starting to follow suit—this year bills were introduced in Iowa, Illinois, and Maine, as well. These bills should not be necessary. Congress tried to outlaw the widespread practice of pushing pregnant women out of the workplace 35 years ago. But employers—and some courts—have not gotten the message. Women workers in states around the country won’t stop until their right not to be forced off the job when pregnant is secure.

Women Workers in a Post-Walmart World

By Katherine Kimpel

Last week, the Supreme Court issued a decision that makes it harder for women in the workplace to protect their rights to be free from discrimination.  In reaching their decision in Dukes v. Walmart, the Justices—the five men who wrote the majority opinion, notably overruling the objections of all three women on the court— assumed that discrimination in the workplace just doesn’t really happen that much anymore. But Supreme Court Justice Antonin Scalia and the other men on the court didn’t cite any evidence, didn’t refer to any studies, or even bother to tell any anecdote to back up that claim. They didn’t bother to contend with the fact that individuals and government agencies continually litigate, prove, and then settle or win employment discrimination cases—cases that show that discrimination is, alas, alive and well.

For example, just last year a jury in New York federal court delivered a unanimous verdict against Novartis Pharmaceuticals Corporation, finding that the corporation had discriminated against female employees in pay and promotions, and had discriminated against pregnant employees. Although the over $250 million dollars resulting from that verdict was significant, even more important were the 23 pages of changes to policies and procedures that the company later agreed to in order to settle the case.

You see, the brave women who stood up to Novartis to bring that lawsuit helped more than themselves.  They helped the other women at Novartis, by getting the company to change. They helped other women working in the pharmaceutical industry, by sending a message to employers that discrimination will not be tolerated and that litigation can result in just and heavy penalties. And they helped the government, by holding a global corporation accountable to our federal civil rights laws.

Congress knew, when drafting the civil rights laws, that we could never expect the government to shoulder enforcement by itself. They created a system where individual Americans could stand up and act as private attorneys general—essentially privatizing, in part, the enforcement of equal opportunity. However, had last week’s Supreme Court decision in Dukes v. Walmart been the law of the land in 2010 when Novartis was decided, the brave plaintiffs in the case may not have been successful, and the changes at Novartis may never have happened.

For women workers in a post-Walmart world, it is undeniable that the scales are weighted more heavily in favor of corporations, scaling back the progress for which our mothers, grandmothers, and great grandmothers fought so valiantly. That sad fact does not relieve us of responsibility; instead, it simply means that we will all have to fight harder and with more determination than before.

On a day-to-day basis, this fight takes shape in advocating for yourselves in negotiating starting salaries, demanding rightful raises, and pushing aggressively for promotions. This fight takes shape in developing trusted coworkers who will help you benchmark your compensation and better understand the ladders to success. This fight takes shape in keeping detailed records of all of this and of your employers responses, good or bad, so that if the day comes when you or they need to get outside help, you’re ready. This fight takes shape in refusing to be silent when you or a coworker is underpaid, passed over for promotion, subjected to harassment, or disproportionately disciplined.

All of those things are necessary and good, but they are not enough. Women workers— indeed, all workers—in a post-Walmart world need to be proactive about this affront to our fundamental right to equal opportunity. Educate family and friends, write letters to your local paper, and contact your elected representatives to let them know you’re paying attention, you’re concerned, and you expect the Supreme Court’s over-reaching on behalf of corporations to be corrected.

Justice Scalia and the four other men of the majority got it wrong when they assumed that our world is a better place than it is, when they assumed that discrimination doesn’t happen anymore. They got it wrong when they decided that protecting corporations was more important than protecting individual Americans, be they men or women of any race. But the underlying faith in people wasn’t entirely misplaced. Every day, I work with men and women whose bravery to stand up for what is right inspires me. The moment now calls for the rest of us to also stand up to a Supreme Court that has gone too far.

Katherine M. Kimpel is a Partner of Sanford Wittels & Heisler, LLP, a national law firm with offices in Washington, D.C., New York, and California.  Ms. Kimpel received her law degree from Yale Law School in 2006. She served as class counsel in the Velez v. Novartis gender discrimination case and authored the amicus brief on behalf of the U.S. Women’s Chamber of Commerce in Dukes v. Walmart. Before joining Sanford Wittels & Heisler in 2007, Ms. Kimpel served as Special Counsel to Senator Russell Feingold on the Senate Judiciary Committee, where she handled criminal justice and other civil rights issues for the Senator.

Social Security: A Lifeline for Latinas

by Mallory Mpare

With talks about the national debt and deficit dominating policy discussions, much attention has been paid to the fabled contributions Social Security makes to the national debt.  As has been said before (but clearly bears repeating), Social Security does not contribute to the national deficit. In fact, poll after poll shows that the American people understand that Social Security does not contribute to the deficit.  Yet it seems that with Social Security still on the table for cuts, this message is not getting through to those who need to hear it most.

How can we make this message resonate? It is important to discuss policy and its wider implications for the economy at large, but we cannot forget that policy is always tied to people. Instead of focusing on the dollars and cents of Social Security maybe we should talk about how changes to the program affect individuals. After all, how long can political leaders continue to ignore the needs of their constituents?

Social Security was created to ensure that the elderly could retire from the workforce in dignity, without fear that after a lifetime of work they might spend their old age in poverty. Today, Social Security is a crucial source of income for many Americans.  An IWPR report details how, even in the midst of efforts to scale back benefits, people are becoming increasingly reliant on Social Security as a source of income. Though men’s reliance has increased more than women’s, the degree ofreliance is greater for women and people of color who tend to have fewer alternative sources of income.

To supplement its report, IWPR released a fact sheet which details the importance of Social Security to Latinas in the United States. Yes, Social Security is designed to redistribute income to low earners and yes, it currently has policies that disproportionately benefit women.

However, it is impossible to fully compensate for a lifetime of gender inequality in wages.

Compound this with labor market discrimination based on race and ethnicity and many Latinas are bound to encounter economic insecurity in old age.  Additionally, Latinas have a higher life expectancy—89 years compared with 85 years for women of all races and ethnicities combined—and tend to be concentrated in low-wage jobs without pensions.

Latinas in the United States account for at least 1.7 million of the total 52.5 million Social Security beneficiaries. After age 64, few Latinas receive income from sources other than Social Security. In fact, only 27 percent of Latinas aged 64–74 report any income from assets and this source of income becomes even scarcer with age (only 21 percent of  those 75 years of age and older report having any income from assets). Yet asset income is the most common source of additional income for older Latinas, after Social Security.

Although many older Latinas rely on Social Security, the benefits they receive from the program are relatively modest. Among Americans aged 75 and older, women as a whole receive average annual benefits of $11,585.  But Latinas of the same age range receive on average just $8,975 in Social Security benefits.  Still, these modest benefits constitute by far the largest share of income for older Latinas. Eighty percent of Latinas aged 75 and older rely on Social Security for at least half of their income and more than half rely on Social Security for all their income.

In other words, for older Latinas, Social Security is not merely a safety net; it’s a lifeline.

Mallory Mpare is the Communications Manager at the Institute for Women’s Policy Research.

Top 5 Recent IWPR Findings

By Jennifer Clark

When IWPR posted a “Top 5” list of our most revealing research findings in December, we were so encouraged by the level of interest our readers showed in the post, that we decided to turn it into a regular roundup. Although intending to compile another “Top 5” list, the first four months of 2011 were so action-packed that we couldn’t limit ourselves to just five. From Social Security to employment discrimination, here are the top IWPR findings from 2011 (so far):

1.       Without access to Social Security, 58 percent of women and 48 percent of men above the age of 75 would be living below the poverty line.  If you watch cable news, read reputable newspapers, or even tune in to late night television, you would get the impression that the Social Security system, which helped keep 14 million Americans over the age of 65 out of poverty in 2009, is broken. Social Security does not contribute to the deficit and is forbidden by law to borrow money to pay for benefits.  In fact, Social Security is actually running a surplus—a big one—at $2.6 trillion, an amount that is projected to increase to $4.2 trillion by 2025.

2.       Although many groups advocate for immigrant rights at the local, state, or national levels, very few advocate specifically for the rights of immigrant women. A new IWPR report, Organizations Working with Latina Immigrants: Resources and Strategies for Change, on the challenges facing Latina immigrants in the United States, explores the specific challenges faced by immigrant women—higher poverty rates than their male counterparts and greater risk of sexual, domestic, and workplace violence—and spotlights the organizations that are trying to help.

3.       The gender wage gap has narrowed only 13 percentage points in the last 55 years. With the ratio of women’s to men’s earnings stagnating at 77 percent in recent years, IWPR projected that, if current trends continue, the gender wage gap will finally close in 2056—45 years from now. In terms of how the gender wage gap breaks down by occupation, IWPR also found that women earn less than men in 107 out of 111 occupational categories, including female-dominated professions like teaching and nursing.

4.       Women’s career and life choices do not completely explain  the gender wage gap. IWPR’s new report, Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope—a review of over 500 sex and race discrimination settlements –offers distressing evidence of the factors that keep women’s median earnings lower than men and keep women out of better paid jobs. These include discrimination in hiring, sexual harassment of women trying to work in male-dominated jobs, preventing women from getting the training that is required for promotion (or only requiring that training of women), and paying women less for the same work than men. The report finds that ensuring transparency in hiring, compensation, and promotion decisions is the most effective means for addressing discrimination.

5.       On-campus child care centers meet only five percent of the child care needs of student parents. IWPR’s report, Improving Child Care Access to Promote Postsecondary Success Among Low-Income Parents, explores the challenges facing 3.9 million student-parents, 57 percent of whom are also low-income adults, enrolled in colleges across the U.S. Costly off-campus care centers—in many states the cost exceeds median income—are unrealistic for many, leaving some student parents devoting up to ing 70 hours per  week to jobs and caregiving, leaving little time for classes or studying. Postsecondary education provides a path to firmer economic stability for low-income families, but without child care on campus, the path often seems more like an uphill climb.

6.       Both businesses and employees in San Francisco are generally in support of paid sick days, as the nation’s first paid sick days legislation sees benefits four years after passage. San Francisco’s Paid Sick Leave Ordinance (PSLO) went into effect in 2007.  Four years later, IWPR analyzed the effects of the ordinance in the new report, San Francisco’s Paid Sick Leave Ordinance: Outcomes for Employers and Employees, which surveyed over 700 employers and nearly 1,200 employees.  Despite claims from opposing groups that this kind of legislation is bad for small businesses, IWPR’s survey found that two-thirds of employers in San Francisco support the law, including over 60 percent of employers in the hotel and food service industry.

Jennifer Clark is the Development Coordinator with the Institute for Women’s Policy Research.

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