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.
The NBC Nightly News story about Young v. UPS included this scene of AFJ staff and others at a demonstration outside the Supreme Court.
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.
Former AFJ Dorot Fellow Abby Bar-Lev is now a Fellow at the National Women’s Law Center, an AFJ Member Organization.