By Paul Strauss, Co-Director of Litigation
On March 25, 2015, the Supreme Court issued an important new case protecting the rights to pregnant women to continue working during their pregnancy, in Young v. United Parcel Service, Inc., No. 12-1226.
In Young, the plaintiff was a UPS driver who, because of her pregnancy, could no longer do the heavy lifting required in her job. She wanted to be moved into a position with less lifting. Employees who were injured on the job, or who had disabilities, or who lost their driving license, were moved by the company into lighter-lifting jobs – couldn’t she be as well? And doesn’t the law require that? The Pregnancy Discrimination Act (1978) amended Title VII of the 1964 Civil Rights Act, the basic employment discrimination law, to say that discrimination because of sex means also discrimination because of pregnancy, childbirth, or related medical conditions. And the Pregnancy Discrimination Act says that:
women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work….
This language leaves things a bit unclear, however. Is a person who is not able to do heavy lifting because of an on-the-job injury similar to a woman unable to do heavy lifting because of her pregnancy?
In Young v. United Parcel Service the Court described how a pregnant woman not given light duty, while other categories of employees are, can win. First, she must show that she is pregnant, she sought an accommodation to do only light work, the employer did not accommodate her, and the employer did accommodate other employees who were not able to do heavy lifting. The employer may seek to justify its refusal by arguing that it is granting light duty only to those who fit in another category, such as employees who suffered from on-the-job injuries. Plaintiff can win nonetheless “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s `legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.” The plaintiff can do that “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” In the UPS case plaintiff could win by showing “that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.”
This formula for deciding cases involving accommodations that are given to some employees, but not to pregnant women, shows great promise. It is not perfect. It will not provide relief in all cases. But it is far better than the position of the Court’s dissenters, who would have provided pregnant women in these circumstances with no opportunity to work whatsoever.
By Ruth Greenwood, Voting Rights Project Coordinator
The Supreme Court issued a ruling yesterday in the case of Alabama Legislative Black Caucus v. Alabama, reversing and remanding a decision that Alabama did not engage in unconstitutional racial gerrymandering when it drew state legislative redistricting plans in 2011. The Court has previously held that legislators may not use race as the “predominant motivating factor” in redistricting but in ALBC v. Alabama it strengthened that protection by holding that a focus on maintaining a particular numerical minority percentage in a district is evidence of racial gerrymandering. The Court urged legislators to “take account of all significant circumstances” when assessing whether the minority’s ability to elect a preferred candidate of choice is maintained.
The fact that the Voting Rights Act (VRA) was enacted to protect minority voting rights is without question. What policies protect minority voting rights, however, is a subject of constant debate. Minority representation may be considered to be protected where people of color can vote; can elect candidates of their choice; are descriptively represented; and/or are substantively represented. These possible goals are often in tension with one another, and there has been a tendency by Courts, and by those drawing redistricting plans, to revert to seeing people of color as statistics on a map. The Court’s recognition that math and statistics is not enough to explain or protect the promise of the VRA is is a demonstrably good thing.
Strictly, this was a case about section 5 of the VRA - that now impotent section of the Act that requires jurisdictions with a history of discrimination in voting to pre-clear changes in election laws with the Department of Justice (DOJ). Section 5 currently applies to zero jurisdictions, thanks to the Court’s Shelby County decision in 2013. Alabama will likely respond to the Court’s findings by re-redistricting, but it won’t have to pre-clear the new plan by the DOJ. There is a high likelihood that the legislature will dismantle some districts that currently elect the candidates of choice of the black community, and that the legislature will draw the entire map to seek partisan advantage. Though we hope that some day the law will stop these practices, as least the map drawers won’t be able to treat black voters as a problem to be “packed” into as few districts as possible.
The Court’s decision means that black voters in Alabama will be treated with a little more dignity than before, and it shows that the Court understands that people of color’s involvement in political life is about more than just math.
This Sunday, March 15, will mark the 50th anniversary of President Johnson’s powerful speech to a joint session of Congress – and to the nation – about the urgent need to pass a voting rights bill to address voting discrimination across the nation. The speech was given a week after “Bloody Sunday” – an event that galvanized the nation around the cause of voting rights for African Americans.
“Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to ensure that right.”
Today we are able to honor the leadership of President Lyndon Johnson who issued a clarion call to Congress 50 years ago to act with bipartisan urgency to pass legislation that would end voting rights discrimination in the United States. The Senate bill was introduced on March 17th and only five months later, on August 6, 1965, Johnson signed the landmark Voting Rights Act bill into law.
In the wake of the Supreme Court’s Shelby County decision, which struck down part of the VRA that had required jurisdictions with the worst record on voting discrimination to receive federal approval to make any election change and resulted in new laws that created barriers to the ballot box that disproportionately affect minority citizens, we can see that voting discrimination still persists today and Congress, once again, must come together to restore the protections of the VRA.
Today, the effort to restore the Voting Rights Act continues to have bipartisan support. President George Bush signed the last reauthorization of the VRA in 2006, and Rep. Jim Sensenbrenner has introduced a bill with Lewis that responds to the Shelby decision. But Congress has taken almost no action to move legislation to restore the VRA.
“There is no constitutional issue here. The command of the Constitution is plain. There is no moral issue. It is wrong--deadly wrong--to deny any of your fellow Americans the right to vote in this country. There is no issue of States rights or national rights. There is only the struggle for human rights.”
The United States Department of Justice has issued a scathing review of the Ferguson Police Department, showing that the City, its Court, and its Police Department used arrests and prosecutions to generate revenue for the City by systematically discriminating against African-Americans and violating their legal rights. The report shows how far we have to go in this country to produce anything close to racial equality. It should be read along with academic research that shows that Americans automatically, and in many instances unconsciously, associate black men with crime and crime with black men and that police officers are more likely to shoot an unarmed black man than an unarmed white man. As the DOJ report describes, the Ferguson Police Department needs to be dramatically reformed – but so do police departments across the country, and so does our society as a whole. It is well-known that African-Americans do not have equal access to quality schools, neighborhoods, jobs, pay, and medical care. Across the country we see inequality of opportunity and outcomes. We now have the absurd and disheartening situation where more black men today are incarcerated than were slaves in 1850. That is a sign of a sick society. It is time for change.
To read the report, Click Here.
Written by: Paul Strauss
Sunday, March 8th is the Official 50th Anniversary of Bloody Sunday, the Selma-to-Montgomery March and the Voting Rights Act of 1965. In celebration of this momentous anniversary, twelve of our staff members will be taking a road trip to Selma, Alabama to partake in several commemorative events. Staff will be representing several Chicago Lawyers’ Committee project areas including voting rights, housing, education, health disparities, hate crimes and community economic development.
As many of the participating staff members are young, this trip will be significant for them to truly understand the Civil Rights moment in the 1960s and the effort and passion that activists put into the movement during this crucial time period. The weekend will involve many events, one of which is the Freedom Flame Awards, honoring the women and men who have contributed to the tremendous legacy of the fight for voting rights and social and economic justice.
For more information on the event, please visit Selma's 50th Anniversary website.
Please consider donating to this important weekend and to helping our staff truly understand the historical background of the work that the Chicago Lawyers’ Committee still does today. You can CLICK HERE to donate.