What Young v. UPS Means for Pregnancy Discrimination in PA

The Supreme Court of the United States issued an opinion yesterday in the landmark pregnancy discrimination case Peggy Young v. United Parcel Service. At issue is whether or not the company violated the Pregnancy Discrimination Act (PDA) of 1978.

In short, the news is good for women. The Supreme Court pushed the case back to a lower court, giving Peggy Young another chance to prove that the company discriminated against her. “We think it’s a big win for Peggy Young,” said Samuel Bagenstos, Young’s lawyer at the Supreme Court. “We think it’s a big win for pregnant workers around the country.”

This decision tells employers that if you are accommodating most non- pregnant workers with injuries or disabilities, while refusing to accommodate most pregnant workers who need it, you are likely violating the Pregnancy Discrimination Act by placing a significant burden on pregnant workers.

However, individual pregnant workers may still face uncertainty about their rights in the specific contexts of their own workplaces. Pregnant workers’ rights also vary by zipcode. In Pennsylvania, for example, certain workers in Philadelphia and Pittsburgh currently have more protections against pregnancy discrimination in the workplace than elsewhere in the state, though that could change if a proposed bill passes into law.

 

The background

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 by clarifying that discrimination on the basis of sex includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

Title VII applies to companies with 15 or more employees, including state and local governments. Despite the PDA, many pregnant women have been fired or forced to exhaust paid or unpaid leave after requesting temporary accommodations due to physical limitations from pregnancy and related conditions. This type of discrimination disproportionately affects low-income women working jobs with physical demands, like Peggy Young.

When Ms. Young told UPS she was pregnant, UPS required her to get a doctor’s note “listing her restrictions,” which included her doctor’s directive to not lift more than 20 pounds. Ms. Young was otherwise willing to continue her regular duties, but Ms. Young was advised that she could not work while under a lifting restriction because she was “too much of a liability.”

Meanwhile, UPS regularly provided so-called “light duty” and similar accommodations to people with disabilities and people with on-the-job injuries. They even accommodated workers who had lost their commercial drivers’ licenses as a result of DUI convictions.

The Young opinion is encouraging step toward protecting pregnant workers from discrimination, but it also underscores the need to clarify protections for pregnant workers through “reasonable accommodations” policy.

The federal Pregnant Workers Fairness Act would better protect pregnant workers throughout the country. On the state level, the Pennsylvania Pregnant Workers Fairness Act would clarify and standardize protections currently enjoyed only by certain workers across the state.

 

Pennsylvania: Patchwork of Protections

Currently, only certain workers in Philadelphia and Pittsburgh are protected by reasonable accommodations legislation. Pennsylvania has an opportunity, though, to extend those protections statewide through the Pennsylvania Pregnant Workers Fairness Act (PPWFA).

The PPWFA would require a covered employer to make reasonable accommodations related to pregnancy, childbirth or related medical conditions unless those accommodations would prove an undue hardship on the business.

“Pregnant women in Pennsylvania should not lose their jobs or suffer the consequences of working under conditions that put their health at risk because their employers deny their requests for reasonable accommodations,” said Amal Bass, staff attorney with the Women’s Law Project. “The Pennsylvania Pregnant Workers Fairness Act would protect these workers from having to choose between the health of their pregnancies and keeping their jobs.”

The Pregnant Workers Act is part of the Pennsylvania Agenda for Women’s Health, a legislative package of women’s health and equality bills introduced by the Women’s Health Caucus, a bipartisan, prochoice group of lawmakers in the Pennsylvania legislature. So far, 14 bills have been introduced through the Agenda, and three have already passed.

The Women’s Law Project signed an amici curiae brief filed by Legal Momentum and law professors Joanna Grossman and Deborah Brake in support of Young.

From the brief: “This case presents an issue of great significance for working women in the United States, who comprise nearly half the labor force. The vast majority of working women will become pregnant at some point during their working lives, and many of them will experience at least minor conflicts between job requirements or working conditions and the temporary, but real physical effects of pregnancy.”

-Tara Murtha, WLP Staff

Posted in Pregnancy, pregnancy discrimination, Pregnancy Discrimination Act | Tagged , , , , | Leave a comment

WLP Case Highlight: Schanne v. Addis

by Tara Murtha, WLP Staff

If a person discloses to a teacher that another teacher started a romantic relationship with her years earlier while she was his student, and that disclosure leads to a termination hearing at the school — should the teacher be able to sue his former student for defamation?

What if the student did not intend, at least at first, to initiate a termination hearing at the school?

These are the issues at the heart of Schanne v. Addis, a case argued before the Pennsylvania Supreme Court yesterday. The case came to Pennsylvania’s highest court via a certified question from the Third Circuit Court of Appeals.

This much is not in dispute: Robert Schanne was a teacher at Lower Merion High School in the Philadelphia suburbs, and Jenna Addis was his student. Schanne, a physics teacher, taught Addis, now an engineer in New Orleans, her junior and senior years. Their relationship eventually became sexual.

After the sexual relationship ended, Addis told her neighbor, who was also a teacher at Lower Merion, about the situation because she did not want Schanne to victimize other students. Consistent with her legal obligations under Title IX, her neighbor subsequently told school authorities of the allegation of sexual misconduct. Ultimately, Schanne was fired after a hearing at the school.

Schanne then filed a defamation lawsuit against Addis based on her initial statement to her neighbor. Addis’ position is that, based on Pennsylvania law, she can’t be sued because her disclosure resulted in a quasi-judicial proceeding.

Attorneys at the Women’s Law Project and Greenberg Traurig filed an amicus curiae brief on behalf of 24 organizations in support of Addis. Addis was represented by Stephen Britt.

The amicus brief argues that students should be able to disclose improper and potentially illegal sexual misconduct to school authorities without fear of retaliatory defamation suits.

In short, we argue that Addis’s speech should be protected.

To protect the integrity of the judicial system, Pennsylvania adopted an ‘absolute privilege’ from defamation liability for statements made in relation to an ongoing or potential judicial or quasi-judicial proceeding. In this case, Addis’ initial disclosure to her neighbor, who was required to report the alleged misconduct to school authorities under Title IX, initiated the hearing that led to Schanne’s termination.

A result from the Pennsylvania Supreme Court in Schanne’s favor will enable abusers and teachers guilty of sexual misconduct with students — a problem particularly rampant in Pennsylvania — to wield the threat of burdensome and expensive defamation lawsuits against students and former students for speaking out. It will deter students from reporting.

The best data suggest that almost 10% of students in public middle and high schools in the United States have been sexually victimized by a school employee. Many students taken advantage of by teachers and other adults in positions of authority do not disclose the transgression or assault, or significantly delay reporting, in fear of retaliation.

Allowing defamation lawsuits based on the very disclosures needed to initiate school hearings will impede the purpose of Title IX—the prevention of sexual misconduct on campuses.

What student will come forward and speak out about abuse if she or he believes they may be sued for doing so?

Parties accused of misconduct already have the opportunity to clear their name at the quasi-judicial hearing. Filing retaliation lawsuits against complainants is unnecessary.

To encourage the reporting of school sexual misconduct and to protect the purpose and enforcement of Title IX, the Pennsylvania Supreme Court should apply the absolute judicial privilege to situations where the statement resulted in a quasi-judicial hearing, even when it may have been made without the intent to lead to such a proceeding.

Posted in PA Supreme Court, Title IX | Tagged , , , | Leave a comment

Tune in now to hear Carol Tracy Discuss Campus Sexual Assault & the New Policy at University of Pennsylvania

At 10AM on Tuesday, March 10, Women’s Law Project Executive Director Carol E. Tracy will discuss the enormous problem of campus sexual assault on WHYY Radio Times. Specifically, Tracy will discuss and debate University of Pennsylvania’s new policy to adjudicate rape allegations.

To listen to the show, tune in to 90.9 WHYY, or you can listen online here.

Background: The problem of rampant sexual assault on college campuses (and of course, off campus) is not a new problem. In 1972, as a sophomore at University of Pennsylvania, Tracy led a protest against the administration’s handling of a gang rape on campus. More than 40 years later, Tracy is one of a handful of experts on best practices regarding institutional response to sexual assault.

Recently, University of Pennsylvania implemented a new system for adjudicating sexual assault allegations. Some Penn law professors wrote an open letter criticizing the new policy. Tracy, Women’s Law Project Managing Attorney Terry L. Fromson and Staff Attorney Amal Bass, all Title IX experts, wrote a response outlining why the criticism of the new policy is wrong.

The full background is here.

Tracy will be discussing the Penn policy with University of Pennsylvania Law School Senior Fellow David Rudovsky, one of the signees of the open letter. Tracy also teaches at University of Pennsylvania, her alma mater.

 

Posted in Rape | Tagged , , , | 1 Comment

Judge Upholds Pittsburgh Buffer Zone in First Federal Ruling Since McCullen

A federal judge has upheld the constitutionality of a 15-foot buffer zone ordinance that protects health care facilities in Pittsburgh. The decision is the first federal ruling on the constitutionality of a clinic buffer zone since McCullen v. Coakley, the Supreme Court case decided last June.

In the Pittsburgh case, Nikki Bruni and four other anti-choice protesters sued the city, claiming the buffer zone prevented her and other protesters from “sidewalk counseling” patients entering the Planned Parenthood health center on Liberty Avenue. Bruni is the local campaign director of “40 Days for Life,” a campaign wherein anti-choice protesters picket clinics daily for forty days every spring and fall. The campaign is happening now.

The protesters were represented by the Alliance Defending Freedom, the same organization that represented the plaintiffs in McCullen. The Alliance announced their intention to challenge the Pittsburgh buffer zone immediately in the wake of McCullen, which struck down the 35-foot buffer zone established by the Massachusetts Reproductive Health Care Facilities Act as insufficiently narrowly tailored.

In ruling in the Bruni case, U.S. District Judge Cathy Bissoon held that the protesters were unlikely to be able to prove that the Pittsburgh buffer zone ordinance was unconstitutional under McCullen. She also denied the protesters’ request for a preliminary injunction and dismissed all of the protesters’ claims except for an allegation that a police officer did not enforce the law evenhandedly, which could not be resolved without additional evidence.

From Judge Bissoon’s ruling:

Prior to the enactment of the Ordinance, there were incidents of physical intimidation, violence and obstruction where the buffer zone now stands. Such incidents have rarely, if ever, occurred since the buffer zone has been implemented…

The buffer zone does not prevent a willing listener from stopping within the zone in order to accept Mrs. Bruni’s literature and listen to her message, or from exiting the zone in order to converse with her further. The Ordinance does not prevent Mrs. Bruni or anyone else from engaging in sidewalk counseling with individuals leaving the clinic, once they exit the buffer zone.

 

“This ruling is a great victory for the City of Pittsburgh and will help protect both the patients in need of medical care and the doctors and medical staff at Planned Parenthood,” says Sue Frietsche, senior staff attorney at the Women’s Law Project’s Western Pennsylvania office in Pittsburgh, which represented Planned Parenthood of Western Pennsylvania and its volunteer escorts in the suit. “Women who have to fight their way past anti-abortion protesters in order to see their doctor deserve, at least, the safety and dignity of a small secure space in front of the health center door.”

During the 40 Days’ campaign, 5 to 15 protesters have been picketing daily outside the door of the Planned Parenthood on Liberty Street.

“We’re very grateful to the City of Pittsburgh for defending this reasonable and much-needed ordinance,” says Kim Evert, President and CEO of Planned Parenthood of Western Pennsylvania and a witness in the Bruni case. Evert testified that a person standing inside the buffer zone at its deepest point can hear those outside of the zone speaking in normal, conversational tones, and patients regularly enter the clinic holding literature given to them by protesters. “Patient safety is always our number one priority, and the buffer zone has been essential in allowing our patients to access the healthcare services they need without fear of harassment or intimidation from strangers. Planned Parenthood of Western Pennsylvania is thrilled that our buffer zone will stay in effect to protect our patients and staff and ensure public safety.”

 

Contact Tara Murtha at tmurtha@womenslawproject.org with interview requests or for more information.

Posted in Abortion Access, Health Care, Pennsylvania, Pittsburgh, Violence Against Women, Women's health | 1 Comment

Tonight! Philadelphia Premiere of “She’s Beautiful When She’s Angry”

By Tara Murtha, WLP Staff

She’s Beautiful When She’s Angry, a new full-length feature documentary that explores the early era of the U.S. feminist movement, premieres in Philadelphia tonight. Following the 7pm screening at the Ritz Bourse, Access Matters President Melissa Weiler Gerber will host a Q&A with the film director, Mary Dore.

Watch the trailer here.

“An overdue documentary flashback to the U.S. women’s liberation movement, She’s Beautiful When She’s Angry arrives at a time when, despite notable gains, the clock seems to be turning backward on many of the issues — reproductive rights, sexual harassment, equal pay, etc. — that ‘libbers’ fought more than 40-odd years ago,” notes Variety scribe Dennis Harvey.

True enough. The last four years have brought an unprecedented spike in state laws that curtail women’s access—meaning, as Supreme Court Justice Ruth Bader Ginsburg likes to point out, all women except rich women—to safe and legal abortion services.

Here in Pennsylvania, only thirteen healthcare facilities still provide surgical abortion care for 67 counties, and yet we still have lawmakers trying to pass sham bills to shut down more.

The history of women fighting for their rights is a big, long story to tell. By honing in on the years 1966 to 1971, Dore illuminates an era when organizing a group of women around a kitchen table to share experiences with rape, harassment and unwanted pregnancy was a revolutionary act.

The film isn’t merely a time capsule, though; it carefully threads the early era to the modern movement.

“We’ve had high school feminist groups show up at screenings, which is so great, that is wonderful,” Mary Dore told me during a recent conversation. “A lot of people asking for advice and help because I think it’s hard for them to figure out how to organize and who to align with. There are always so many excellent [websites] and young organizers online. That’s important for people to know, that young women are doing all kinds of things.”

Before modern street theater like SlutWalk, there was W.I.T.C.H. (Women’s International Conspiracy from Hell!), women who ran around in Halloween witches costumes to throw hexes on the wretched.

Talking with Dore reminds me of the observation frequently made online: The women’s movement didn’t begin the moment you realized it exists.

“When you talk about the women’s movement and you act like it began when women had birth control, and all these things that had huge changes for women, you’re missing the cultural context,” explains Dore. “We particularly [explore] the civil rights movement, because many of the women who started the women’s movement in the 1960s came from the civil rights movement… they were also being treated as second-class citizens.”

This film has been a long time coming, both as cultural product and for Dore herself, who began work on the project more than two decades ago.

“I started writing grant proposals before I got pregnant with my kids, and they’re 21,” says Dore. “So there’s a clue [of how long it took].”

The practice of creating the film, of course, is also part of the movement, as systemic erasure from history one of the functions of backlash. Buy tickets for tonight, and other screening times, here.

Posted in Equality, Gender Discrimination, Pennsylvania, People of Color, Philadelphia, Rape, Sexual Assault, Sexual harassment, Sexual orientation, Women's health, women's rights | Tagged , , , , | Leave a comment

King v. Burwell: What’s at stake for women in PA?

By Tara Murtha, WLP Staff

 

Today, the Supreme Court of the United States will hear oral arguments in King v. Burwell, the latest attempt to gut the Affordable Care Act.

King v. Burwell is a lawsuit brought by Virginia residents who ultimately hope to strip premium tax credits, also called a subsidy, from people who buy their health insurance through one of the 37 states with federally run exchanges.

Pennsylvania is one such state.

The stakes could not be higher, according to the Center for American Progress. “The sudden elimination of a key component of the ACA would cause substantial disruptions to the U.S. health care system. Moreover, it would take away health insurance coverage from more than 8 million Americans and cause premiums to spike for many more.”

Here in Pennsylvania, more than 400,000 would lose subsidy if the Supreme Court rules in favor of the plaintiffs. Of those, approximately 329,000 would lose health insurance coverage altogether.

The impact of the decision disproportionately affects women.

In Pennsylvania, 221,740 women are at risk of losing their subsidy, according to National Women’s Law Center. Of those women, 31,430 women are African-American, 22,490 women are Latinas, 9,650 are Asian and 430 are Native American.

Background: What’s the latest attack about? The heart of the case rests of four words. Specifically, it relies on an ACA provision that specifies tax credits are available to individuals enrolled in “exchanges established by the State.”

The ACA, however, empowered states whose governors refused to run their own exchanges, like former Pennsylvania Governor Tom Corbett, to defer to the federal government to run their state exchange. So the plaintiffs argue that  “exchanges established by the State” means that only individuals and families in those 13 states and the District of Columbia that have established their own health insurance exchanges can receive tax credits—and not individuals and families in the 37 states that rely on federally-facilitated exchanges, like Pennsylvania.

In short, the plaintiffs are attempting to exploit the letter of the law to subvert its spirit.

Though the challenge is being brought by Virginia residents, the legal theory fueling the case derives from a 2012 paper conservative legal scholar Jonathan Adler and political analyst Michael Cannon of the Cato Institute.

As Nicholas Bagley recently explained, conservatives are attempting to deprive millions of Americans of health insurance coverage based on “snippets of text in a statutory provision” while ignoring the entire context of the rest of the Affordable Care Act. It is willful ignorance as strategic political maneuvering.

Or as the New York Times recently called it, “a marvel of reverse-engineered legal absurdity.”

Watch this space for updates on the case and how it may affect women in Pennsylvania. Meanwhile, if you’d like to follow along, here is a round-up of live-blogs covering the case courtesy of SCOTUSblog.

 

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WLP Attorneys: Penn Professors Are Wrong

By Tara Murtha, WLP Staff

Women’s Law Project Executive Director Carol E. Tracy, Managing Attorney Terry L. Fromson and Staff Attorney Amal Bass, lawyers with extensive experience working with Title IX, the civil law that prohibits discrimination in educational institutions that receive federal funding, have written an open letter responding to University of Pennsylvania professors’ criticism of their school’s new system for adjudicating sexual assault complaints.

The background: Last month, in response to ongoing criticism and national debate regarding how schools should appropriately handle accusations of sexual assault, the University of Pennsylvania announced a new disciplinary system designed to improve adjudication of rape allegations. The changes went into effect on February 1.

From the Philadelphia Inquirer:

Penn joins a growing number of schools around the country that have examined their practices in the wake of increased scrutiny over the handling of sexual assault and harassment on campus. More women are coming forward to lodge complaints, and men who are accused of assault in some cases are suing universities for disciplinary action taken against them. More than 90 universities around the country — Penn is not one of them — are under review by the U.S. Department of Education for their handling of sexual assault.

Last week, 16 of the University’s 49 tenure or tenure-track law school faculty members (16 of 67 full-time law school staff, according to the school’s website) signed an open letter criticizing the new system. The dean of the law school did not sign the letter.

On Wednesday, 26 students at University’s law school responded to their professors’ criticism and defended the new system.

From the letter from students to professors:

“[Your] letter perpetuates the harmful myth that survivors of sexual violence should be disbelieved, silenced and denied non-criminal relief unless they seek and obtain criminal conviction of their assailant.”

Specifically, the law students accused the professors of “conflating” the rules, scope and evidentiary standards applicable to courtroom trials of criminal defendants with the actual issues at hand, which are the rules, scope and evidentiary standards of the school-based adjudication process for identifying student misconduct.

“[The professors’] Open Letter must be seen for what it is: a disagreement with Title IX’s mandate that sexual assault survivors not be made to struggle through grievance procedures that specially insulate those accused of sexual assault,” wrote the students.

Attorneys at the Women’s Law Project with extensive experience working with Title IX also responded to the professor’s letter.

From today’s Philadelphia Inquirer:

With all due respect, the 16 law professors who have objected to the new disciplinary procedures for sexual violence have it wrong… Our decades of experience working directly with victims of sexual misconduct and with Title IX, the civil law that prohibits discrimination in educational institutions that receive federal funding, informs our view that the new procedures appropriately attempt to correct injustices inflicted on victims while safeguarding fairness for all parties involved.

Read the rest of the letter here.

WLP Executive Director Carol E. Tracy teaches part-time at the University of Pennsylvania, where she attended undergraduate school. In 1973, as a sophomore, Tracy led a sit-in protesting the administration’s handling two gang rapes. In 1982, while working at the Women’s Center, Tracy was the whistle-blower in an alleged gang rape that took place at Alpha Tau Omega fraternity house.

Tracy, a national expert regarding institutional response to sexual assault, makes a cameo appearance in The Hunting Ground, the new documentary examining the problem of sexual assault on college campuses released in select cities today.

To arrange an interview with a Women’s Law Project attorney about Title IX, the Penn policy or institutional response to sexual assault, contact Tara Murtha at tmurtha@womenslawproject.org.

Posted in Equality, Rape, Title IX | Tagged , , , , , , | 2 Comments