"The vote was 6-3 in Young's favor. Justice Stephen Breyer wrote the majority opinion."
The outcome reflects a "middle ground" that Justice Elena Kagan suggested during arguments in early December. Courts must now re-examine Young's case with a more accepting view of the discrimination claim. UPS and other employers facing similar suits still are able to argue their policies were legal because they were based on seniority or some other acceptable reason.
ADDED:
From SCOTUSblog:
The Court appears to reject both sides' arguments about the meaning of the Pregnancy Discrimination Act.... The Court chooses an interpretation of its own. The plaintiff, a pregnant woman, under the Court's approach will be required to show that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that it did accommodate others similar in their ability or inability to work.
So, apparently, it's a minimalist, moderate approach attuned to the particular circumstances of this case. The
PDF of the opinion is here. The dissenters are Justices Scalia, Thomas, and
Kennedy. Kennedy seems like the interesting vote. Let's read that. Kennedy also joins Scalia's dissent, which he says he did because "[m]any other workers with health-related restrictions were not accommodated either," and because "there is no showing here of animus or hostility to pregnant women." But he writes his own separate opinion to associate himself with the "societal concern" about the particular problems of women in the workplace. Pregnancy can be "serious disadvantage." It's "an issue of national importance." And there are a lot of statutes that "honor and safeguard the important contributions women make to both the workplace and the American family." Please don't think Justice Kennedy lacks empathy toward the interests of women!
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53 comments:
Awwww.
I am woman, hear me roar !
If you make women costlier to employ, they'll not be hired.
Good god! Now the Supreme Court itself is joining in the politicization of the Supreme Court. Thanks Justice Kennedy! Now we know you're really not a bad person even though you sided with those bad people!
When are we going to have a serious talk about the societal concerns of the problems of men in the workforce?
Nobody in his right mind would hire any woman of child-bearing age who didn't present, on her own initiative, some proof of her being sterile.
Child-free women should recognize that they suffer denial of work if they don't distinguish themselves from the breeders.
Personally I would welcome the opportunity to do the difficult physically demanding work. Especially if it meant sparing some delicate young thing the misery of breaking a sweat. On the other hand it's usually the overweight smoker who occupies the position of slacker where I work.
rhhardin said...
If you make women costlier to employ, they'll not be hired.
You can make up for it by paying them less than men like Obama and Hillary.
We need to have a national conversation about this and every other mess.
It's mess all the way down.
rhhardin,
If you make women costlier to employ, they'll not be hired.
Except that then you run into a whole 'nother statutory prong, don't you? If you have a bunch of facially equivalent applications, and you only take the men, you are going to be sued fairly rapidly.
Not being allowed to discriminate against pregnant women is a good reason to keep prostitution illegal.
In probably most of the jobs women occupy, being pregnant is not a huge issue until very late in the pregnancy as far as accomodations go. Obviously if you have a job where the majority of your job involves lifting heavy things, it is going to be a problem. If you are going to spend 9 months not doing that job, I'm not sure what the company is supposed to do.
Here's how I understand the story: a female driver gained employment with the acceptance and knowledge that the job required her to lift up to 70 pounds. She became pregnant and received a doctor's note saying she should not lift more than 20 pounds (let's ignore for the second that lots of pregnant women have 30+ pound toddlers running around, and that this is foolish medical advice on many levels).
I agree the employer should seek to find a reasonable accomodation if possible. But if one is not possible, it is then up to the employee to determine next steps such as: terminate their employment there.
UPS is a shipping company. Inherent in any role involves handling packages is heavy lifting. Are they supposed to keep several roles open for light duty work at all time in case an employee gets injured (on or off duty), pregnant, etc.?
I guess I've just never felt entitled that I can change my job capabilities and my employer should definitely accommodate me.
UPS...Until Pregnancy Strikes.
At last there is evidence of
Pro Life supporters on SCOTUS. Now why do the Conservatives gripe?
"
Except that then you run into a whole 'nother statutory prong, don't you?"
Well, that's a feature, isn't it? No safe harbors ==> full employment. Full employment for employment-law lawyers, and (due to reduced productivity) full employment at UPS.
So, what's not to like?
This is outrageous! If pregnant women are excused from heavy lifting, that will have a disparate impact on men!
No, wait, men aren't a protected class...nobody gives a fuck about them. Hmmm...ah, here we go:
This is outrageous! If pregnant women are excused from heavy lifting, that will have a disparate impact on lesbians!
I should have been a lawyer.
Of course, traditionally lighter jobs were given to workers who were injured or who had spent a lifetime with the company and were doing something useful that allowed them to collect a check when they couldn't do the full work of their old job.
But fuck that system! Who needs an unspoken tradition that benefits cripples and old ass males when we can give it to a strong, independent woman!
"a female driver gained employment with the acceptance and knowledge that the job required her to lift up to 70 pounds. "
Probably by threatening a discrimination suit.
Let's say that I'm a woman who enjoys sunbathing. As a result, I develop a cancerous skin lesion in a location that makes it painful for me to lift heavy boxes. There's no question that I could have it removed with a minor medical procedure, but I decide not to do it. My employer fires me because I can no longer do my job.
Why am I treated differently because my debilitating clump of cells is a tumor, and not a fetus?
I have worked in my profession as Computer Engineer mostly as an "un-benefitted" contractor, earning a wage about double per hour that of my "captive" colleages doing the same job.
I have done it, of course, to avoid the discrimination against males inherent in sick leave, FMLA, insurance (and now Obamacare). I see no reason to enter the world of W-2s and start to pay high taxes to support all the marrieds and the breeders.
Bryan C:
"Why am I treated differently because my debilitating clump of cells is a tumor, and not a fetus?"
Because your tumor, unlike a fetus, will not contribute to global warming, water and energy shortages, or the extinction of coral, bears and tigers. With no problems to solve, the gummint would be left with no raison d'etre.
Bryan C:
"Why am I treated differently because my debilitating clump of cells is a tumor, and not a fetus?"
Because your tumor, unlike a fetus, will not contribute to global warming, water and energy shortages, or the extinction of coral, bears and tigers. With no problems to solve, the gummint would be left with no raison d'etre.
Is it the woman or pregnancy that causes them to pause and reflect?
The cognitive effort to reconcile human rights with women's abortion rights must be excruciating, which is what prompted generational feminists to debase human life based on a fairy tale and amorality.
Will women be able to eat their cake and have it too? The precedents suggest that they will, but this case should prompt people to consider why a woman, but not her child, are favored by the established religion.
you are going to be sued fairly rapidly.
Then just hire older women, mid 40's and older. That way you get the type of workforce you want (older women are more mature and have a better work ethic anyway).
I Callahan,
You sound like Ben Franklin giving advice to a young man to take an older woman as a mistress:
http://www.swarthmore.edu/SocSci/bdorsey1/41docs/51-fra.html
Because your tumor, unlike a fetus, will not contribute to global warming, water and energy shortages, or the extinction of coral, bears and tigers.
Or contribute to the survival of your entire species! Wouldn't want that. Better to go extinct and hope for the best for tigers and coral.
Since the debasement of human life with the state established religion based on a pro-choice or selective principle, a child in the womb no longer confers greater value to a woman during pregnancy. She retains equal value to other women, and, under the Fourteenth Amendment, men too. The court's ruling based on precedents and equal protection should be to offer the woman a Choice: abortion or termination.
Survival of the human species is something the breeders have invested in. The rest of us, not so much.
In fact, all the global warming nonsense, not to mention interstate freeways and public transportation, is predicated on the conceit that we non-breeders give a damn about the future of the breeders' progeny.
Shanna:
Only select minorities. The immediate survivors will gain prime real estate in Hawaii. The fit populations will recover that real estate with each dodo dynasty. Anyway, it's not "one-child", but the provided opiates, including: healthcare insurance, cell phones, etc., establish an equivalent decision tree.
As for the child, it would be a victim of feminist narcissism, scientifically wicked problem, and an amoral "secular" society.
"If you make women costlier to employ, they'll not be hired."
Or an employer would be willing to pay more for a man. Maybe that explains the wage gap.
As an employer, there are higher costs for hiring a woman. The problem with lighter duty concept: 1) there isn't necessarily a real need for a lighter duty position. It is make work or else the position would have already been filled. 2) Where does the "heavy duty" person come from? They aren't sitting on the bench waiting to be called to pinch hit. Maybe at UPS, but not for most small businesses.
jimbino:
Life means something until it doesn't. Alternatively, based on the extreme ends people pursue to delay mortality, it's propaganda to trick weak-minded men and women to voluntarily cede the floor, and prime real estate in Hawaii.
Brilliant! It's a cookbook.
This would be a moot issue if women, and men, set the right priorities. The desire for instant or immediate material and sexual gratification has created unnatural conflicts, including a religious effort to reconcile human rights with women's rights that favor the latter. Our civilization is regressing to the delinquency of juvenile indulgence.
jimbino:
Do you forego "breeding" by choice or circumstance? If the former why promote a dysfunctional behavior and choice? If the latter, please accept my sympathy.
Kennedy is nursing the effects of cognitive dissonance stemming from an amoral society that demands he holds irreconcilable positions on human and women's rights.
A modern man can't really know if he has bred or not. I'm still awaiting the call "Hi Dad!" Here in Austin, TX, we know that some Aggie women also wonder.
In any case, your "Do you forego "breeding'' by choice or circumstance?" should read "
Do you forgo "breeding'' by choice or circumstance?" once rendered into Standard American English.
In any case, your "Do you forego "breeding'' by choice or circumstance?" should read "
Do you forgo "breeding'' by choice or circumstance?" once rendered into Standard American English
Apparently, it is a personality thing....
The majority opinion strikes me as incomprehensible gibberish, not worthy of an honored court.
Disparate impact as evidence of pretext. Let the Plaintiff's bar begin to feed! Trial lawyers are certainly more equal than others.
The PDA is discriminatory against men on the basis of their sex, as they do not have to be accommodated.
Hope someone brings this action under teh 14th Amendment and then we can see how the federal courts dodge this logical dodgeball.
jimbino said...
A modern man can't really know if he has bred or not.
Then I thank God I'm not a modern man.
And I thank you for doing your part to improve the gene pool.
"If pregnant women are excused from heavy lifting, that will have a disparate impact on lesbians!"
Not if turkey basters are still available.
Basil, this is not a disparate impact claim as you state, but a disparate treatment claim.
In much abbreviated form, the court says:
The P must make out a prima facie case that 1) she is in a protected class; 2) she sought and was denied accommodation; and 3) her employer accommodated others similar in their ability to work.
The employer may defend that it had a legitimate non-discriminatory reason for the treatment (which can't be - it saves money or it is convenient).
If employer does this, the burden shifts to P to show the reason is pretextual. In other words, there is a significant burden on pregnant women compared to a weak reason for the treatment.
The P can survive summary judgment by showing the employer accommodated a high percentage of non-pregnant workers and failed to accommodate a high number of pregnant workers.
A jury could find that multiple accommodations for other groups means that the employer’s reason for not accommodating the pregnant women is weak.
I have not read the decent yet, but it seems that even if the employer has a significant legitimate reason for the disparate treatment, it would never survive summary judgment since it will always result in a high denial of pregnant vs. non-pregnant workers. So, isn't the court essentially saying there is never a legitimate reason that will survive summary judgment? Or am I not creative enough in thinking of a hypothetical that would survive?
Think, This opinion is the first to import disparate Impact analysis into a disparate treatment claim. Pretext can be proven by statistics.
For plaintiffs attorneys, this is the motherlode. Pretext is what they can rarely prove, because it's not there. However, it now becomes a battle of the experts and statistics can be made to say anything.
jimbino:
Forego and Forgo
It's all olde English. Which dialect do you speak? Perhaps your preference has a provincial bias.
A modern man can't really know if he has bred
So, your anti-human rants reflect an effort to evade liability through displacement, or part of a scheme to shame others to accept responsibility for your breeding habits.
Is the problem that a woman will not commit to you? It can be a problem with narcissistic women and the narcissistic men who fuck them.
Ways to know your children, if any, are yours:
1. Abstain from sex with untrustworthy women;
2. DNA test;
3. Find an honest and loving woman, marry her and be an honorable man.
It's not really that hard. If you can find a trustworthy woman to like you, you might want to consider your own flaws and poor judgment.
Sorry. If you can't find a trustworthy woman
How did this ever come up? UPS is unionized by the Teamsters. Unionization is supposed to prevent these types of problems, right? The shop steward would have made the company do right.
Nope, having a union just means paying dues and having a second boss to boss you around.
I'm pretty sure her pregnancy was not the result of an injury she sustained at work.
Basil, your comment clicked for me later when I was thinking about the case. You are exactly right - they have turned a disparate treatment case into a disparate impact case.
"How did this ever come up? UPS is unionized by the Teamsters. Unionization is supposed to prevent these types of problems, right? The shop steward would have made the company do right."
A few years ago there was a mining accident in WV with fatalities. I did wonder how both OSHA and UMW could allow miners to keep working for a company which had a thick file of safety violations. (Revealed, of course, after it was too late to save lives.)
It's almost like those poor miners paid for both the feds and the union to ignore their safety. I don't belong to a union, so I can have my safety ignored for free.
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