In a decision written by Supreme Court Justice Neil Gorsuch, the U.S. Supreme Court ruled that employers can force workers into agreeing to mandatory
Posted: 03/25/2015 1:36 pm EDT
WASHINGTON — In a victory for pregnant women in the workplace, the Supreme Court ruled Wednesday in favor of a worker who sued shipping giant UPS for pregnancy discrimination, sending her lawsuit back to a lower court where she had previously lost.
The case, Young v. United Parcel Service, hinged on whether or not UPS was justified in putting Peggy Young on unpaid leave after she became pregnant, even though other workers were commonly offered “light duty” for on-the-job injuries or to satisfy requirements under the American with Disabilities Act. The justices ruled 6-3 in favor of keeping Young’s lawsuit alive, with Chief Justice John Roberts and Justice Samuel Alito joining the traditionally liberal members of the court.
Justice Stephen Breyer, writing for the majority, said the question the lower court needed to ask was “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”
The decision essentially vacates a 2013 ruling by the 4th U.S. Circuit Court of Appeals that threw out Young’s case.
Samuel Bagenstos, a lawyer for Young, called the ruling a “big win” in a tweet shortly after the decision came out.
“The Court recognized that a ruling for UPS would thwart Congress’s intent. It adopted most of our key arguments,” Bagenstos said, in an apparent reference to the Pregnancy Discrimination Act. The 1978 law says that companies cannot treat pregnant workers any differently from other workers who are “similar in their ability or inability to work.”
The question at the heart of the case was whether the Pregnancy Discrimination Act requires companies to offer light-duty options to pregnant workers if they already do so for non-pregnant workers in other situations.
UPS had maintained that its light-duty rules were “pregnancy neutral,” treating a pregnant worker like Young the same as anyone else. Under its collective bargaining agreement with the Teamsters, UPS said it didn’t have to accommodate workers with “off-the-job injuries or conditions,” except for cognitive disabilities under the Americans with Disabilities Act.
The company tried to claim a partial victory after Tuesday’s decision, saying in a statement that the Supreme Court “rejected the argument that UPS’s pregnancy-neutral policy was inherently discriminatory.” UPS said it was “confident” it would prevail in the lower courts, where Young’s case may now go to trial.
Whatever the outcome of Young’s lawsuit, the Supreme Court case has reflected poorly on UPS. Young sued the company in 2008 and lost her case without a trial. That decision was upheld by the 4th Circuit in 2013, leading Young to appeal to the Supreme Court. Last year, not long before oral arguments were set to begin, UPS announced that it was changing its accommodation policy for pregnant workers, after years of defending it in court. As of Jan. 1, 2015, pregnant UPS workers are entitled to light duty.
Young, who was interviewed by The Huffington Post in October, was delivering packages for UPS in Maryland when she became pregnant in 2006. Her doctor recommended she not lift more than 20 pounds for the first 20 weeks of her pregnancy. Although light duty was common for many workers, UPS told Young that such accommodations wouldn’t apply to an “off-the-job” condition, which is how it classified her pregnancy.
“I wanted to work,” Young told HuffPost. “I all but begged for them to let me work.”
Young received support for her lawsuit from across the ideological spectrum, with 23 anti-abortion groups lining up behind her alongside the American Civil Liberties Union and the U.S. Women’s Chamber of Commerce. As the anti-abortion coalition noted in its brief, “economic pressure is a significant factor in many women’s decision to choose abortion over childbirth.”
NOTE: Many Walmart workers our striking on Black Friday for reasonable wages and working conditions. While there is not a strike at our local Walmart, it is important that those who shop at Walmart be aware of the deplorable working conditions their purchases are supporting and that everyone understand that the poor working conditions at Walmart translate into those of us who are taxpayers subsidizing the wages of Walmart workers by providing food stamps and other government assistance. Also remember that the Walton family (the primary shareholders of Walmart stock) is the wealthiest family in the world; it could also be thought of as the greediest family in the world as in reality we, the taxpayers and consumers at Walmart, are also subsidizing the wealth of the Walton family as we provide the government benefits that Walmart should be providing to its workers.
Pay my electric bill, or daughter’s graduation fees? Here’s what’s actually happening at America’s largest employer
This Saturday, my daughter is graduating from high school. She’s worked so hard, and I couldn’t be more proud. Later this summer she will head to Eastern University in Florida, where I am proud to say she has received a full four-year scholarship.
But graduation itself has been a tough moment for my family. I recently had to choose between paying the electric bill and covering my daughter’s Tikia graduation fees. At the last minute, I got the school to give us a waiver.
I wish I could say this was the first time that I was deciding between bills, but this is a constant struggle in our family and a small example of what is means to be a Wal-Mart mom. As a parent, I don’t want to tell my kids that it is dinner or shoes, but that is what we are facing.
We work hard to provide for our families, but most days, there just is not enough money or time. I try to save money every way that I can – even getting on the bus and train for a two-hour round trip to get to work.
And trying to get enough hours to make ends meet and be around for my kids has been incredibly difficult with Wal-Mart’s scheduling demands.
At first, I had what Wal-Mart calls an “open schedule,” meaning that I had to be available to work any shift, on any day. My shifts were all over the place – a few hours in the morning one day, a few hours in the evening the next. And every week, it was different.
Finding childcare — especially on short notice and with an irregular schedule – was a constant challenge. Ultimately, it became impossible to be available 24-7 for Wal-Mart.
Even though I was afraid of what it would mean to lose work hours if I changed my availability, I have to make sure my kids were taken care of. And with my change in availability, Wal-Mart cut my hours. Sometimes, I’m only on the schedule for 12 hours a week.
Even when I was working closer to full-time hours, my expected take-home salary was only $18,000 this year, but now that my hours are reduced, it’s hard to know what I will bring home this year.
Perhaps not surprisingly, my family gets help. We rely on D.C.’s public healthcare system, food stamps, and we live in low-income housing.
Wal-Mart has a total disregard for its responsibility to provide good jobs to the 825,000 women who help make the company $16 billion in annual profits. And the truth is I wish that I did not have to rely on taxpayer-funded programs, but in the economy that Wal-Mart’s creating, this is our reality.
For other Wal-Mart moms – those who are expecting – things are really bad at the stores. Some, like Tiffany Beroid, are forced to choose between their jobs and their health when they’re pregnant.
Tiffany visited her doctor about midway through her pregnancy, and her doctor wanted her to stop working. But needing the money to keep food on the table for her 5-year old daughter and to try to put a few dollars aside for when the baby came, Tiffany instead asked the doctor for a note to request some small modifications and adjustments. Really, it was as simple as limiting heavy lifting and extra bathroom breaks.
Wal-Mart refused, and Tiffany kept working so she did not lose her paycheck, even against the doctor’s recommendation.
As the situation worsened, Tiffany had to take an unpaid leave. She was on full bed rest for the final trimester of her pregnancy as a result of the strain.
In March, after Tiffany and some associate-shareholders and women’s right attorneys had been calling on the company to make sure the policy was at least in line with the law, Wal-Mart changed the policy.
But after Tiffany spoke out about this, Wal-Mart fired her.
Now, how could a supposedly family-friendly company treat moms this way?
That is why Wal-Mart moms are on strike against this kind of illegal retaliation, which by the way, the National Labor Relations Board is prosecuting this week in the largest complaint in Wal-Mart’s history.
Moms are strong, and together our voices can make an impact. Even at the largest employer for women in the country.
We’ve seen our new CEO, Mr. McMillon, make some changes to improve jobs and staffing. But we need more, and we need them now. We need Mr. McMillon to lead Wal-Mart in a direction that our country can be proud of, and that means paying Wal-Mart moms, dads and all of us at least $25,000 a year and providing full-time work. We want protections for pregnant moms and respect on the job.
Gail Todd has worked at Walmart for over 2 years in Landover, Maryland. She is a member or OUR Walmart — the worker organization calling on Walmart to end illegal retaliation, publicly commit to pay workers $25,000 a year and provide full-time work.
Oregonians bucked the national trend on Election Day, with the Oregon AFL-CIO Committee on Political Education (COPE) coming close to an electoral “sweep,” electing or re-electing labor friendly politicians and passing or defeating ballot measures.
Every Democratic incumbent in Congress and the governor’s office won re-election; in fact, not one was even close. Democrats also picked up two more seats in the Oregon Senate and one more seat in the House. That advantage — 18-12 in the Oregon Senate and 35-25 in the Oregon House — will give organized labor a fighting chance of passing pro-worker legislation next year, like raising the minimum wage and guaranteeing the right to sick leave.
One ballot measure that was fiercely opposed by most unions — a “top-two primary” measure sponsored by centrist millionaires and billionaires — went down to defeat by a two-to-one margin, despite outspending opponents by three to one.
“I couldn’t be more proud of the work that union members did, and I hope the Koch brothers and their ilk heard us loud and clear: ‘stay out of Oregon,’” said Oregon AFL-CIO President Tom Chamberlain.
Members of AFL-CIO-affiliated unions took part in an eight-region field campaign that spanned from Astoria to Bend to Medford, Chamberlain said.
“We know that the hundreds of thousands of conversations they had with their fellow union members helped pro-worker candidates like Senator Jeff Merkley and Governor John Kitzhaber win, and beat back Measure 90, which would have made it harder for working people to run for office. This field program bucked the national trend, and Oregon will be better for it.”
Voter turnout in Oregon was relatively strong for a midterm election. Out of 2.2 million registered voters in the state, 69.5 percent, or 1.5 million returned ballots. When including eligible voters, however, turnout slipped to 52 percent, according to the United States Election Project.
In Washington, only 51.2 percent of registered voters cast ballots — and only 38.6 percent of eligible voters voted. It was worse nationally, where only 36.6 percent of eligible voters cast ballots. Census numbers from 2010 show that more than 70 million U.S. citizens of voting age are not registered to vote.
What follows is a ballot scorecard:
Jeff Merkley for U.S. Senate. A working class hero is something to be. Merkley, 58, one of labor’s best allies in the Senate, defeated Monica Wehby, a rich doctor and first-time candidate who cribbed even her health care policy proposals from other Republican candidates’ talking points. Merkley won with 56 percent of the vote.
John Kitzhaber for Governor. Kitzhaber, 67, antagonized public employee unions when he led pension cuts that are being challenged in court. But he fought hard for a new I-5 Bridge, and he did broker a deal that kept an anti-union measure off the ballot. And he was better on labor issues than his challenger, conservative Republican state representative Dennis Richardson. Kitzhaber won an unprecedented fourth term with just under 50 percent of the vote.
Suzanne Bonamici, Earl Blumenauer, Peter DeFazio and Kurt Schrader were re-elected to Congress by wide margins. [Republican Greg Walden was re-elected to Congress in District 2. He was endorsed by the Oregon State Building and Construction Trades Council, but not by the Oregon AFL-CIO.]
Measure 89, the Equal Rights measure, passed 63.8 percent to 36.2 percent. It amends the state Constitution to guarantee that “equality of rights under the law shall not be denied or abridged by the State of Oregon or by any political subdivision in this state on account of sex.”
Measure 90, the top two primary, was defeated 68 percent to 32 percent.
The Oregon AFL-CIO missed on Measure 88, the driver card for immigrants. It was defeated, 66.4 percent to 33.6 percent.
One of labor’s highest priority races was in state Senate District 8, where labor-endorsed Democrat Sara Gelser of Corvallis unseated Republican incumbent Betsy Close of Albany. Close was appointed to the Senate seat in 2012 to succeed moderate Republican Frank Morse, who stepped down mid-term. Prior to that Close served in the state House from 1999 to 2005. Gelser, who has served as a state representative for District 16 since 2005, won handily, capturing 56 percent of the vote.
In another priority race in the Senate, the AFL-CIO helped re-elect Alan Bates in District 3, Medford. The race was a re-match from 2010, pitting Bates, an osteopathic physician who has represented the Southern Oregon district since 2004, against Republican challenger Dave Dotterrer, a retired Marine Corps colonel. In 2010 Bates was re-elected by fewer than 300 votes. On Nov. 4 he won by more than 3,700 votes.
Other labor-backed senators included Floyd Prozanski in District 4, Eugene; Lee Beyer in District 6, Springfield; Chris Edwards in District 7, Eugene; Peter Courtney in District 11, Salem; Elizabeth Steiner-Hayward in District 17, Northwest Portland; Michael Dembrow in District 23, Portland; and Rod Monroe in District 24, Portland.
Two union-endorsed challengers — Jamie Damon in District 20, Oregon City, and Robert Bruce in District 26, Hood River County — fell short in their Senate races. Damon, a former Clackamas County commissioner, was a priority race for labor. But she faced an uphill battle against first-term Republican Alan Olsen. That’s because redistricting by the Legislature in 2011 gave Republicans the advantage in District 20 based on voter registration.
The Oregon AFL-CIO backed 32 winners in the Oregon House of Representatives. Top priority races were Democrats Joe Gallegos in District 30, Hillsboro; Brent Barton in District 40, Oregon City; and Shemia Fagan in District 51, East Portland. All won by comfortable margins.
Other labor-endorsed winners were Democrats Caddy McKeown in District 9, Coos Bay; David Gomberg in District 10, Lincoln City; Phil Barnhart in District 11, Eugene; John Lively in District 12, Springfield; Nancy Nathanson in District 13, Eugene; Val Hoyle in District 14, Eugene; Dan Rayfield in District 16, Corvallis; Paul Evans in District 20, Monmouth; Betty Komp in District 22, Woodburn; Tobias Read in District 27, Beaverton; Jeff Barker in District 28, Aloha; Susan McLain in District 29, Hillsboro; Brad Witt in District 31, Clatskanie; Mitch Greenlick in District 33, Portland; Ken Helm in District 34, Beaverton; Margaret Doherty in District 35, Tigard; Jennifer Williamson in District 36, Portland; Ann Lininger in District 38, Lake Oswego; Kathleen Taylor in District 41, Milwaukie; Rob Nosse in District 42, Portland; Lew Frederick in District 43, Portland; Tina Kotek in District 44, Portland; Barbara Smith Warner in District 45, Portland; Jessica Vega Pederson in District 47, East Portland; Jeff Reardon in District 48, Southeast Portland; Chris Gorsek in District 49, Troutdale; Carla Piluso in District 50, Gresham; and Republican Greg Smith in District 57, Heppner.
Three incumbent legislators who were re-elected had conditional endorsements from the AFL-CIO. That’s because none of them completed a policy questionnaire, which is a required part of the endorsement process. They were Democratic Rep. Brian Clem in District 21, Salem; Republican Rep. John Huffman in District 59, The Dalles; and Democratic state Sen. Betsy Johnson in District 16, Scappoose.
Union-endorsed candidates who lost Nov. 4 included Sign Painters and Paint Makers Local 1094 member Scott Mills, running against a Republican incumbent in House District 18, Aurora; Independent candidate Chuck Lee in District 25, Keizer; Stephanie Nystrom in District 52, Hood River; and Craig Wilhelm in District 54, Bend.
Several union activists were among the endorsed winners Nov. 4, including Dembrow, Barker, McLain, Witt, Nosse and Gorsek.
Women in state government make about 88 percent of what men do, a disparity that crosses seniority levels, union membership and fields of work, an analysis by the Statesman Journal found.
The gap is narrower than the one that exists statewide, but Gov. John Kitzhaber requested in a letter sent July 11 that the Department of Administrative Services make closing it a top priority. The agency is now conducting its own internal study of men’s and women’s pay.
“We’re at a better place to start (than Oregon generally), but that doesn’t mean there’s not a gap,” DAS Director Michael Jordan said. “We’re trying to compare similar work on a gender basis and understand if there are any structural issues around how we pay for that work. The data will at least suggest some further questions for what we need to look at.”
Statewide, women make about 79 percent of what men do when they work full-time, state employment economist Nick Beleiciks said. However, when part-time employees are included , women make just 67 percent of men because they are more likely to work in part-time jobs.
RELATED: State Worker news
That doesn’t hold true in state government, partly because part-time work makes up a very small portion of state government employment.
With or without part-time employees included, women make 88 percent of men in state government, even though 40 percent more women work part-time than men do.
The disparity can have lasting consequences. Studies have shown women lose, on average, about $434,000 over a lifetime of work nationwide. The national pay gap is about twice as wide as Oregon state government’s, but losses would still likely be above $200,000.
Moreover, state employees’ pensions are calculated based on final average salary, which means a woman who starts out making less than a man will fall behind even in retirement, as her pension is based on a smaller final salary.
The gap tends to widen slightly as employees make more money.
Women represented by a union make 89 percent of men, while women listed as “agency heads” make 87 percent of men. However, mid-level managers and executives have the smallest gap: women make 90 percent of men.
Those numbers are consistent withwhat economists find generally, Beleiciks said.
Oregon’s lowest-paid industry, food service and hospitality, also has the smallest pay disparity: Women make 85 percent of men.
Higher-paid industries, such as arts and entertainment, finance and health care have much wider gaps. Women in those fields make 51 percent, 54 percent and 58 percent of men, respectively.
The public sector tends to be more equitable in its pay, even on a national scale.
A report from the federal Office of Personnel Management showed that women employed in federal government made about 87 percent of what men did, the Washington Post reported early this year.
That is almost exactly consistent with the pay gap in Oregon’s government.
An audit done by the State of Montana found that women in state government made 87 percent of men overall, but they made about 99 percent of men when auditors looked at specific job codes or positions.
That gap was much smaller than Montana’s overall economy, where women make two-thirds of what men do.
There is no agreed-upon explanation for greater equity in the public sector. Beleiciks said the gap tends to narrow as one examines a narrower, more similar swath of employees, and that could be one reason for the smaller disparity.
However, others suggest attributes of state government make it a more egalitarian employer.
Stephanie Jaros, a social scientist for the Department of Homeland Security, told the Washington Post she thinks the government’s rigid pay schedule and publicly available salary information contribute to the narrower gap.
“Part of the reason for the pay gap in the private sector is that salaries are not transparent,” she said. “Transparency allows communication, so people would know about disparity much quicker in the federal government.”
Jordan told the Statesman that the state’s collective bargaining system likely contributes to its more-equitable pay. Unions and management publicly negotiate what each position will be paid and what its pay range and differentials will be. There is little discretion in how to compensate people, he said.
“The entire personnel system tends to be driven by that very open discussion with bargaining units…it’s very transparent to everyone,” he said. That transparency likely creates pressure to be equitable and fair, he said.
The state’s hiring process is also more open than in the private sector, he said. The state has rigorous scoring systems for evaluating candidates, detailed job descriptions, and everything is documented, Jordan said. As a result, there is less room for subjective criteria in hiring, he said.
Some studies have shown women are more likely to choose lower paying careers, work part-time or take time out of their careers to care for children, but Jordan said the state likely won’t analyze those kinds of choices among its employees.
Instead, it will focus on structural and institutional problems it can control, and it will look as specifically at individual jobs and duties as best it can, he said.
“We’ll need a more granular picture of the problem,” he said.
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Michelle Chen on June 4, 2014 – 12:51 PM ET
Photo (Courtesy: OUR Walmart, @forrespect)
Lashanda Myrick, a Colorado mother of two, came to Walmart last year seeking a steady job that would help her provide for her children. Instead, she got a job that made it harder to be a mom. When she drops her young daughter off at night at her mother’s house so she can work the overnight shift stocking shelves, she thinks about how her irregular work schedule disrupts her parenting schedule.
“It’s hard not to be able to tuck her in. And it hurts me that my child can’t sleep in her own bed at night. And there’s nothing I can do,” she said at a press conference earlier this week organized by the labor coalition OUR Walmart. “It breaks my heart … because I really have no choice.”
Myrick’s experiences illustrate the ugly duality of the Walmart economy: while consumers enjoy low prices and unlimited selection, workers get low wages and impossible choices. Family versus work, a poverty wage or no job at all.
A new report from the left-leaning think tank Demos reveals the structures of inequality that keep women like Myrick at the lowest rungs of the Big Box retail labor force. Today, researchers found, roughly 1.3 million women working retail jobs live in or near poverty; a typical woman salesperson earns just $10.58 an hour. On top of utterly low wages, women in retail, including many family breadwinners, face a stunning gender gap, typically earning only 72 cents for every dollar earned by male counterparts. That’s a cumulative annual wage deficit of $40.8 billion, equivalent to $381 billion in “lost wages” for women by 2022.
The losses run deeper than their paycheck. Workers skip doctor’s visits because they lack paid leave time and scrimp on groceries to pay the bills. With just 5 percent of retail workers granted paid parental leave, new parents are pressured to rush back to work, potentially jeopardizing their newborn’s health. These day-to-day hardships tax public resources, too, as working-poor families absorb public funds in the form of food stamps, Medicaid and other public assistance programs.
The structural impoverishment is compounded by chaotic, unstable schedules. As we’ve reported before, retail work often puts workers “on call,” with irregular hours that vary weekly or daily.
Meanwhile, the retail sector is expanding rapidly, sucking more workers into the low-wage workforce as middle-income jobs evaporate in the hobbling economic “recovery.”
The lack of job security and union representation deters workers from agitating for better pay and working conditions, perpetuating a cycle of instability and impoverishment in a constantly churning workforce.
But Demos suggests an elegant strategy for addressing multiple inequities at once: a cross-the-board wage hike at large retailers (with 1,000 or more employees). According to the report, raising hourly pay to a level equivalent to $25,000 per year for a full-time worker—about $12.25 an hour—would help close the gender wage gap and lift the poorest workers out of poverty, with trickle-up benefits for the whole labor force.
An estimated 437,000 working women will move out of poverty or near poverty once their wages increase to the new minimum. Family members, too, will benefit from the raise. In all, 371,000 female workers and their family members will leave the ranks of the impoverished. Another 517,000 will rise above the near poverty cutoff.
A mandatory wage hike would be no “job killer,” either. Demos projects that the guaranteed income would actually be an economic boon. More money in low-income workers’ pockets would stimulate consumer spending, boost sales and ultimately add about 105,000 to 136,000 jobs to the workforce. The projected boost to the GDP would range from $12.1 billion to $15.7 billion, the majority generated by women workers.
Relative to the industry’s soaring profits, the additional labor costs would come pretty cheap. The proposed base wage would require a $21.5 billion investment, which represents some 4 percent of the industry’s total 2012 payroll. The effect on retail prices is hard to predict, but even if bosses passed half of those costs on to shoppers, a typical family would pay less than $18 extra over the course of a year—a negligible surcharge for a measure that could help narrow structural income and gender gaps.
Still, $25,000 is not a magic number. Rather, the analysis is framed around a benchmark salary cited by Walmart worker advocates, who note, with outrage, that most of the company’s workers earn less. The proposed hourly pay of $12.25 falls below wage demands put forward by other activists—particularly the $15-per-hour demanded by the fast-food workers’ movement, the citywide campaign that pushed through a $15 wage floor in Seattle, and similar initiatives emerging in other cities.
Aside from a pay raise, women working part-time, who make up an estimated 44 percent of the retail workforce, need an even greater boost to attain a sustainable livelihood. Nearly one in three of those women want full-time work, according to researchers. And even workers who are classified as full-time often see their earnings undermined when their hours are cut back, because under the erratic “just in time” scheduling system, their hours vary wildly depending on fluctuations in inventory.
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So Demos advocates a $12.25 hourly base wage for both full-time and part-time workers. Moreover, to improve overall working conditions, the report urges big retailers to give “involuntary” part-timers more hours, while instituting fairer scheduling practices. Workers should, for example, be informed about their schedules weeks in advance, instead of just days, or be guaranteed a certain number of hours per week, or alternately, a basic weekly pay level, regardless of hours worked.
According to Demos policy analyst Amy Traub, mega-retailers could afford to offer both more hours and more pay, particularly with the added knock-on effects of the elevated wage levels in terms of increased sales. “This is not a poor industry,” Traub says, and given the potential business gains from a better-compensated workforce, “A raise for employees and improving scheduling would be an investment in human capital for these companies.”
Myrick has a different investment in mind, as she goes on strike today as part of the nationwide “Walmart Moms” campaign. “Many times I have to choose between getting shoes for my daughter or my son”, she recalled, “and that’s no choice that a parent should have to make.” As she struggles to balance her work and family needs, a modest raise won’t fix everything, but it might spare her at least one impossible choice.