Tracking the latest developments in the fight for a fair America
The Senate is getting ready to leave on a three-week vacation. But dozens of nominees to judicial and executive branch posts are still waiting to start the jobs for which they’ve been nominated.
It’s not right for senators to leave Washington for the year before their job is done.
With your help, we’ve been keeping the pressure on the Senate to do its job and confirm nominees. Since the November election, the Senate has confirmed 15 judges. But there still are at least a dozen more who can and should be confirmed this year. And many executive branch nominees have been waiting months and even years for yes-or-no votes.
As AFJ President Nan Aron said: “When judgeships sit vacant, all Americans suffer. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice.”
Please take a moment to call the Capitol switchboard at 202-224-3121. Ask for your senators’ offices and tell them why it is so important to confirm these nominees.
Alliance for Justice President Nan Aron was among the speakers today at the launch of 90 Million Strong, a new campaign to abolish the death penalty. She spoke at a news conference at the National Press Club. These are her prepared remarks:
My name is Nan Aron. I am President of Alliance for Justice. On behalf of the more than 100 groups that make up the Alliance, I would like to thank the National Coalition to Abolish the Death Penalty for organizing this campaign and this event and for inviting us to participate.
AFJ works to promote a fair and independent judiciary. There can be no clearer reminder of the importance of who sits on our courts than that these jurists are called upon to make life and death decisions. For decades the Supreme Court has tried to reconcile state-sanctioned killing with the Constitution of the United States. That cannot be done.
Justice William Brennan wrote that
“moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.
Justice Thurgood Marshall, who believed most Americans were uninformed about the death penalty, wrote that
Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.
But today, instead of a Brennan or a Marshall, the life of an accused might be in the hands of a judge like Edith Jones of the Fifth Circuit Court of Appeals.
Judge Jones has said that capital defendants’ claims of racism, arbitrariness and even claims of innocence are nothing more than – her words – red herrings.
She also has declared that,
a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face imminent judgment.
I don’t know how one makes peace with upholding the execution of someone who may be innocent. And I don’t know how one makes peace with using the mechanism of the state to punish people by taking their lives.
Justice Harry Blackmun struggled with the death penalty. At first, he thought there might be some way to reconcile it with the Constitution. But in 1994, he wrote:
“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. …”
Declared Blackmun: “From this day forward, I no longer shall tinker with the machinery of death.”
Alliance for Justice agrees: It is time to stop tinkering with the machinery of death.
We look forward to the day when we have a Supreme Court that will rule, once and for all, that the death penalty is unconstitutional.
We look forward to being a part of the 90 Million Strong campaign, and mobilizing our more than 100 members to act on this vital issue.
Retailer tries to hold customer’s money hostage to forced arbitration
By Trevor Boeckmann
AFJ Dorot Fellow
As we detail in our short documentary Lost in the Fine Print, forced arbitration clauses have become omnipresent in American society. They’re used by companies to prevent consumers from having the chance to stand up for their rights in court when they’re harmed. Yet most of these clauses are buried deep in the fine print of contracts and terms of service.
Now Walmart, already a corporate bad actor in so many ways, has taken this strategy to a whole new level. They found a way to hold a customer’s money hostage until she agreed to forced arbitration.
KTRK-TV in Houston reports that on Black Friday, local shopper Maria Selva tried to buy a new TV at the big-box retailer. Walmart had sold out of the TV by the time Selva came to purchase it, but employees gave her a coupon, and had her pay in full.
She thought she could just pick up the TV at a later date. But after she’d already paid, she was given a notice telling her she had to register online. When she went online, she found that registering the coupon meant agreeing to forced arbitration. She refused to accept the terms, and contacted Walmart to ask for a refund.
Walmart said no.
Instead, the company told her she would have to agree to forced arbitration, receive the TV, and return the TV. Only then could she receive a refund.
It wasn’t until KTRK contacted the company that Walmart finally relented and issued a refund.
The consequences of forced arbitration can be great. In Lost in the Fine Print we document the stories of Nicole Mitchell and Debbie Brenner, victims of discrimination and fraud who were never allowed to defend their rights in court.
Walmart isn’t the only company that has tried to find creative ways to impose forced arbitration.
Take General Mills, for example. Last spring, we told you about their new arbitration policy, which purported to force consumers into arbitration if they entered a company contest, printed a General Mills coupon, or even “liked” Cheerios on Facebook.
But public pressure forced General Mills to back down. Now we’re putting the pressure on other companies. Join our campaign to end forced arbitration and protect everyday Americans.
Watch one consumer’s battle against Walmart and forced arbitration
By Abby Bar-Lev
Fellow, National Women’s Law Center
In the last couple of years, the Supreme Court has had a lot to say about working women. Unfortunately, none of it has been good.
In the past year and a half alone, the Court has made it harder for women to sue their employers for sexual harassment, limited the rights of home health care workers—who are nearly all women—to organize, and given bosses a religious trump card they can use to quash women’s rights to insurance coverage for birth control. But in the Young v. UPS case, which the Justices heard yesterday, the Court gets another chance to get it right.
Unfortunately, the Supreme Court’s recent record on working women shows just how blind the justices have been to the realities of the workplace.
First, the Court in Vance v. Ball State University drastically narrowed the definition of “supervisor” for purposes of Title VII harassment claims to exclude lower-level supervisors. Your boss may be able to direct you to work late or to work the night shift instead of the day shift. However, if your boss doesn’t have the ability to take “tangible employment actions” like hiring and firing, then, according to the Supreme Court, your boss is actually your coworker, not your supervisor. This means your harassment claim will be evaluated under a much tougher legal standard.
The National Women’s Law Center found that there are 17.4 million low-wage workers in fields with a lower-level supervisor. The fears that victims of harassment by lower-level supervisors would be denied their day in court because of Vance are being borne out. Since Vance, of the 120 reported sexual harassment cases in the federal courts, 43 have been thrown out because the harasser didn’t satisfy the new definition of supervisor.
Second, one year after Vance, the Court decided in Harris v. Quinn that unionized home health care workers in Illinois, paid by the state through Medicaid funds, were not “true” public employees. Therefore, non-union members did not have to pay their “fair share” fees to the union for the benefits of representation they received from the union’s negotiations. During oral arguments, Justice Samuel Alito said that he did not understand why the “union’s participation” is “essential” in negotiations for wages and benefits with the state. He then authored the majority decision that will inevitably lead to the defunding of public home health care unions, since the union must continue to represent the non-paying, non-union members.
This decision particularly affects women in low-wage jobs. According to the Economic Policy Institute, almost 90 percent of the more than one million home health care workers in the United States are women, for whom the median hourly wage is $10.21. Unions have the ability to boost the pay of workers, narrow the wage gap for working women, improve benefits, and lead the way in improving working conditions. However, after the Supreme Court’s decision in Harris v. Quinn, the benefits of union representation may soon be out of reach for many of these women workers.
Third, the same day that the Court decided Harris v. Quinn, it struck a second blow to working women by concluding that the religious beliefs of certain for-profit employers give bosses the right to deny their women employees health insurance coverage for birth control, as had been required under the Affordable Care Act. In Burwell v. Hobby Lobby, the Supreme Court allowed the religious beliefs of some employers to trump the health needs of women employees. Although 99 percent of American women use birth control at some point in their lives, five men on the Supreme Court decided that birth control is different from other health care services.
Women in poverty will pay the highest price for the Supreme Court’s decision. The unintended pregnancy rate for women living below the poverty line is more than five times as high as the rate for women in the highest income level. As Justice Ginsburg noted in her dissent, “the cost of an IUD,” which is the most effective form of birth control, “is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
Now, in Young v. UPS, the Supreme Court has the opportunity to finally do right by working women. When Peggy Young, a UPS employee, became pregnant, her midwife told her not to lift more than 20 pounds for the rest of her pregnancy. She informed UPS of her midwife’s order and requested “light duty.” Even though UPS had a policy providing light duty accommodations to workers injured on the job, workers with disabilities, and workers whose licenses had been suspended due to a DUI conviction, the company denied light duty to Peggy. It then forced her onto unpaid leave. UPS argued that it did not have to accommodate Peggy in the same way that it accommodated other workers, even though the Pregnancy Discrimination Act requires that employers treat pregnant workers the same as other employees who are “similar ability or inability to work.”
Over the summer, the Equal Employment Opportunity Commission (EEOC) issued new guidance on pregnancy discrimination, explaining that pregnant workers must be given reasonable accommodations when the employer is accommodating other workers who are similar in their ability to work. Employers cannot, for example, have a “light duty” accommodation policy that only covers workers injured on the job. A number of states have passed laws unanimously or nearly unanimously that provide reasonable accommodations to pregnant workers, and even UPS has revised its “light duty” policy to include pregnant workers, though it continues to deny any legal wrongdoing in the case of Peggy Young.
No woman should have to choose between risking her pregnancy or her job. As Delaware Republican State Senator Colin Bonini, who helped lead the effort to pass the Pregnant Workers Fairness Act in his state, said, “We want to encourage women to be able to keep their jobs. . . . And we want to encourage women to have successful families.” In this case, the Supreme Court has the opportunity to finally make clear that employers may not treat women like second-class citizens. And the plain language of the Pregnancy Discrimination Act compels this result.
The next time a woman is forced to choose between her job and her pregnancy, she may not even make it into court.
By Michelle D. Schwartz
AFJ Director of Justice Programs
It’s incredible that UPS refused to make a reasonable accommodation for driver Peggy Young after she became pregnant and her doctor advised her against lifting packages heavier than 20 pounds.
It’s incredible that UPS then forced Young to take unpaid leave for the remainder of her pregnancy, causing her to lose both her wages and her health insurance at the time she needed them most.
It’s incredible that UPS refused an accommodation for Young even as it made such accommodations for workers injured on the job, workers with disabilities falling under the Americans with Disabilities Act, and even drivers who lost their commercial driver’s licenses because of DUI convictions.
It’s incredible that, in 2014, Peggy Young was forced to choose between a healthy pregnancy and her job.
And it is incredible that Peggy Young’s case against UPS made it into court at all.
Today, more and more employees are compelled to accept forced arbitration clauses in their employment agreements, employee handbooks—even job applications. These clauses say that if a dispute should arise between the employee and the company they work for, the employee can’t take that dispute before an impartial jury or judge. Instead, they have to take their case before an arbitrator picked by the company, losing their fundamental right to go to court.
These arbitration clauses apply even in cases of employment discrimination that allegedly violate such hallowed laws as the Age Discrimination in Employment Act, the Equal Pay Act, the Civil Rights Act of 1964, and, yes, the Pregnancy Discrimination Act.
In fact, over the summer we learned that another company that’s no stranger to the Supreme Court—Hobby Lobby—has a forced arbitration clause. That clause kept an employee, Felicia Allen, out of court after she was fired for trying to take unpaid leave during her pregnancy. Hobby Lobby even tried to prevent Allen from receiving unemployment compensation. As we wrote at that time:
When Allen tried to sue Hobby Lobby for discriminating against her based on her pregnancy, she learned that Hobby Lobby had a forced arbitration clause. Allen’s lawyers refused to take her case after they learned of the forced arbitration clause and she—like so many other American consumers and employees—was left out in the cold. Hobby Lobby could take its case all the way to the Supreme Court, but its employee couldn’t even get through the courthouse doors.
In our short documentary Lost in the Fine Print, we tell the story of Nicole Mitchell, another woman forced into arbitration after trying to sue her employer for discriminating against her—this time based on her status as a Hurricane Hunter in the Air Force Reserve.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that prohibits employers from firing, demoting, or failing to hire military reservists because of their reserve duty. But, as Mitchell found, USERRA and other laws protecting against employment discrimination may be worth little more than the paper they’re printed on when violations are forced into arbitration.
Employees fare far worse in arbitration than they do in the courtroom. Researchers at Cornell found that outcomes for employees forced into arbitration are “starkly inferior” to those in litigation.
And the harms of forced arbitration extend beyond the outcomes in individual cases. Because arbitration generally occurs in secret, systemic abuses are never exposed and remedied. So even on the rare occasion that an employee wins in arbitration, there is little incentive for the employer to protect employee rights moving forward.
Take the case of UPS.
In October, with Peggy Young’s case already pending before the Supreme Court, the company announced that, beginning on January 1, 2015, it would offer light duty assignments for pregnant workers. That offer comes too late for Peggy Young, but it is unlikely that it would have come at all if not for the public attention the Supreme Court case has brought. If Peggy Young had been forced into arbitration as Felicia Allen and Nicole Mitchell were, , that policy change likely never would have come.
Laws like the Pregnancy Discrimination Act vindicate critically important societal goals. Their proper interpretation should be decided in the full sunlight of the courtroom—not in a secret corporate tribunal.
Today, we stand with Peggy Young, and we hope that the Supreme Court will reverse its recent trend of hostility to working women. In the long term, though, we know that protecting Peggy Young and all who face discrimination at work will require reversing the Supreme Court’s decisions upholding forced arbitration under virtually any circumstances.
Everyone who cares about fair, discrimination-free workplaces should join us in our campaign to do just that.