Equal Pay Day – National Consumers League

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Sally GreenbergWhat does Equal Pay Day mean in America? It’s a time for reflecting on why women still less than their male counterparts. In 1963, when President John F. Kennedy signed the Equal Pay Act, women earned 59 Cents for every dollar earned by men. That number in 2013 has inched up but still lingers at 78 cents. That’s too bad, because women are the sole bread earners in millions of families and the lack of parity in pay hurts them and their children.

What does Equal Pay Day mean in America? It’s a time for reflecting on why women still less than their male counterparts. In 1963, when President John F. Kennedy signed the Equal Pay Act, women earned 59 Cents for every dollar earned by men. That number in 2013 has inched up but still lingers at 78 cents. That’s too bad, because women are the sole bread earners in millions of families and the lack of parity in pay hurts them and their children. As the House Minority Leader says, “When women succeed, America succeeds.”

The Economic Policy Institute reports that the higher up the economic ladder, the greater the disparity. In 2014 women in the 95th percentile of female earners made 79% of the wages earned by men, while women in the lowest 10th percentile made 91 cents for each $1 earned by men. Not surprising that 2/3 of minimum wage workers are women. What surprised me is that women with college degrees earn 78% of their male counterparts and women with advanced degrees earn 74% of what men make. And in traditionally female occupations, men even make more there! Male registered nurses out-earn female nurses by an average of $5,100 per year. This seems like rank sexism to me, and we could begin to change it with new laws in place.

And yet, in 2010, 2012 and 2014, the leadership in Congress blocked consideration of the Paycheck Fairness Act, which President Obama supported, and NCL and many other groups have campaigned for. That legislation would extend pay-equity rules to federal contractors and update the Equal Pay Act.

Women’s pay equity shouldn’t be a partisan issue. All families, whether Democratic, Republican, Independent or unaffiliated, will benefit when women earn more. This week’s Equal Pay Day is a fine time to raise these issues again – increasing the minimum wage has strong support in red as well as blue states. Equal pay for women should be right behind it. 

Breast milk for sale? – National Consumers League

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The New York Times reported recently (“Breast Milk Becomes a Commodity, With Mothers Caught Up in Debate”) that companies are buying breast milk from mothers, condensing it down and selling it to hospitals for treatment for extremely premature infants in intensive care. The milk is tested for viral infections, nicotine, drugs of abuse, dilution, and adulteration. The women supplying the milk must take blood tests for infectious disease, provide notes from the doctor saying they and their baby are healthy, and must furnish DNA samples, which helps to ensure that the milk is theirs. All of which is good public policy and makes sense.

Breastfeeding is good for babies and good for mothers. Kids who are breastfed have much lower incidence of allergies and a recent Brazilian study found that they have higher IQs and are more likely to earn more. For moms, breastfeeding seems to reduce the incidence of cancer.

There’s been a lot of chatter after the Times article about selling breast milk. Another mother weighed in as well, in a piece called “Give Breast Milk,” noting that Prolacta Bioscience and Medolac are two companies that buy the milk, fortify it, concentrate it, and sell it to hospitals.  While they pay very little for the milk  – apparently $1 an ounce, compared to what they sell it to hospitals for, $180 an ounce. Sounds like an awful big mark up, even for what they do to make it effective for treating preemies.  I have no problem with women selling their breast milk, but they should just get paid decently for it. 

Which brings me back to the original issue. Anything that gets more women to breastfeed is – in my view – a good thing. So paying for breast milk, especially from healthy women of limited means, seems like a fine idea. Men are paid for their sperm; why shouldn’t women sell their breast milk?  And as the obesity epidemic grows, breastfeeding can burn up to 900 calories a day and help women take off their pregnancy weight very fast. All of which seems like a win-win: Mom breastfeeds her own baby, that’s good, and then make a little extra money by pumping and selling the milk, which eventually gets used by premature infants struggling to get bigger and healthier.

I realize that not everyone agrees. The Black Mothers’ Breastfeeding Association is quoted in the article saying, “We are very concerned that women will be coerced into diverting milk that they would otherwise feed their own babies.”  Fair enough, but what if paying women for their milk increased the number who breastfeed significantly? I think that is worth the relatively benign downside the critics have cited. We just need to ensure that women are getting a fair price for their breast milk contributions.

The meningitis B vaccine must be added to the routine vaccine schedule – National Consumers League

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Meningitus B (MenB) is a frightening illness. It can overtake and kill in 24 hours. College-age students who live in close quarters are the usual victims.  If it doesn’t kill, it often causes grievous injury—especially to the extremities—including loss of fingers, toes, feet, or parts of the face. While vaccines against other strains of meningitis have long been available, those for MenB have only been approved in the U.S. for a few months. Thanks to Pfizer and Novartis, we now have two effective FDA approved vaccine choices to protect against this terrible MenB strain. Unfortunately, neither is required on the routine schedule of vaccinations. 

In February, I joined with a group of advocates at the Centers for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices (ACIP) in Atlanta to change that. At the top of ACIP’s agenda was a vote on MenB’s inclusion on the routine vaccine schedule for persons at increased risk. While the ACIP discussed various topics such as the, “Economic evaluation of vaccinating US adolescents and college students against serogroup B meningococcal disease” or “Considerations for routine use of MenB vaccines in adolescents,” ACIP wasn’t scheduled to vote on including MenB vaccines on routine schedule for adolescents. That was unfortunate, as those who came to Atlanta with personal experience about the horrors with MenB told the committee – many in graphic terms. 

Dr. Mary Ferris, student health director at the University of California Santa Barbara, a campus of 30,000 students, faculty and staff led off. In November 2013, her campus experienced an outbreak of four cases of the MenB disease. A 19-year-old lacrosse team member suffered amputations of both legs and extensive skin grafts and scarring to his arms and face. Every word she said resonated. I have excerpted her comments here:

 “I know you’re well aware of the devastating consequences of this terrible disease, but you may not know the impact it has on a university when an outbreak occurs. National news outlets camped out on the campus. There was widespread fear and even panic among students, faculty, staff, and the surrounding city. The local school district initially prohibited our student teachers from their sites, and parents drove in to remove their children from the campus. Our campus childcare center asked student volunteers to stay away. Parents demanded that we close the campus, and others did not want their students to come home for Thanksgiving holidays. Our local public health department and CDC had to establish special phone lines to handle the large volume of incoming distress calls. We greatly appreciate all the help they gave us, including handling even international media attention, but we would have much rather avoided this disaster completely by protecting our students in advance with a vaccine that covers MenB. Outbreaks WILL happen again at other colleges, and in fact is happening right now at the University of Oregon, where they are struggling to find a source to pay for the vaccines. Even ONE CASE in a college setting has major repercussions on the institution, and most colleges will not have the resources to pay for vaccines when the outbreaks occur.

We need the ACIP to establish MenB vaccine as part of routine adolescent immunizations, so that our entering students can be protected before they arrive on campus and are exposed to meningococcus, not just after an outbreak occurs. We also need your recommendation for vaccination before college entry so that we can enforce it as an entrance requirement along with MCV4 coverage. The majority of our students are the first generation in their families to attend college, and they come from low income families that will not be able to afford this vaccine unless it is included in their health insurance coverage.” 

That is exactly NCL’s position.

The father of a young boy who tragically died of MenB last year spoke of his grief at this terrible event and asked the ACIP why MenB is not on the routine schedule. Andy Marzo, who contracted MenB as a college student in Kansas, described what it felt like to spend weeks in intensive care, his family not knowing whether he would live. And how it felt to lose all of his fingers—he has one remaining thumb—and portions of both feet. His care cost $2 million. Andy has no idea how he contracted MenB. That’s a universal theme among patients. Most are healthy and active. Andy had never spent a day in the hospital and was a healthy and happy journalism student when the infection struck. He gave me a signed copy of his book ,which is a riveting account of his ordeal. 

Frankie Milley lost her only child, Ryan, 18 years old, to MenB. She turned tragedy into action by forming the Meningitis Angels. Their mission: Meningitis Angels educates the public, health professionals, child care facilities, schools and universities on not only meningitis but other vaccine preventable diseases and the preventions including vaccines, through personal stories, our educational brochures, posters and videos.

The Angels’ video details the tragedy of menB. She implored the Committee to include the MenB vaccine on the routine schedule. 

NCL applauds the Meningitis Angels for their advocacy on vaccines and for mobilizing their members to lobby state legislatures and Congress, to educate consumers on the importance of vaccines and to attend meetings at the CDC and advocate for widespread vaccination.

Adding a vaccine to the recommended schedule is not without controversy. All vaccines cost money—MenB is around $130 a dose. Novartis’ vaccine is two doses spread out over a few months. Pfizer’s is three.  Requiring these on the routine schedule means health plans have to cover them. 

CDC, like other government agencies, does a cost benefit analysis to determine whether the expense is justified. But after I listened to the director of health in Santa Barbara, to patients, and to parents of deceased children talk about the ravages of this terrible disease, the cost of vaccinations is tiny compared to the cost of treatment, which in many cases exceeded $2 million per patient.

Frankie told me that she has been accused of being in the “pocket of industry” by the very destructive anti-vaccination groups that—in my view—traffic ignorance and fear.

Supporting the efforts by companies that develop these critical vaccines to get these lifesaving products out into the community makes sense. How someone could say to a mother who lost a child to a very preventable disease is to be faulted as too close to industry is beyond me. 

Dr. Ferris from Santa Barbara notes that other outbreaks will and have happened at other schools and that is critical to know. I worked with my own son’s health office at Oberlin College to order the vaccine for him. He lives in a dorm and plays on a sports team. He’s in the demographic that is susceptible to this disease. I’d like the see his college inoculate every student on campus and have encouraged them to do so. Until that happens, I’m going to make sure he is protected.

Vaccines have all but wiped out diseases like polio, German measles, diphtheria, influenza, mumps, small pox, measles, and many others that in previous generations caused the death and disability of millions of children and adults. They are safe and they are very effective. We join with the Meningitis Angels in asking ACIP to include MenB on the routine schedule. NCL’s letter and statement at the ACIP meeting are attached.

 

Why maintaining 529 tax benefits was the right decision – National Consumers League

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Sometimes, even people you respect do stupid things. I’m talking about the Obama Administration’s proposal for taxing families that put money into 529 college savings plants. Right now, parents can set aside funds for their kids’ college education which gets invested in mutual funds and any growth in investment is tax free. In other words, when your son or daughter is ready for college, if you put $20,000 away and it’s now worth $30,000, that $10,000 gain goes untaxed. 

So according to Ron Lieber, financial columnist for the NYT, the proposal would have the IRS hitting families with capital gains tax on the increases from the investment going forward, but also grandfathering the proposal to tax past gains. I admit to having a direct stake in this. We’ve been saving for my son’s college tuition since he came into the world. He’s now a sophomore in college and that 529 fund has paid his tuition. There’s no way we could have paid the hefty cost of college without those savings.  Don’t we want to reward families who put away money for their kids’ college education? Why would we ever take away those tax advantages?

According to Lieber, it was an idea that was never going to happen but it was floated. The idea is that people who have enough money to put away for college savings could part with some of it and pay higher taxes. But Lieber also noted that

money from affluent families have helped lower administrative costs in the 529 plans, which used to be much too high. Everyone benefits from that, including families with less money. There was also the fear that if there’s little or no tax advantage, wealthier families wouldn’t invest in 529s, forcing many states to close down their plans. That would discourage people with less from saving what they can.

The Administration didn’t press forward with the plan. “I think what they failed to recognize is how proud parents are of their decision to set aside money for college,” said Joe Hurley, the founder of a savingforcollege.com. “It isn’t money for a fishing boat. It’s money that they are sacrificing. Anything that threatens that is essentially telling them that they did the wrong thing when they felt like they did the right thing.” That’s right. And that’s why this idea of taxing growth on 529s made no sense and was a sure fire way to get people riled up and angry.  Glad the story has a happy ending and they scratched the plan.

 

Wage stagnation may threaten democracy itself – National Consumers League

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Why have wages stagnated so badly in the US compared to Australia and Canada? The report notes that while US wages have stagnated and not gone up, since 2000, Canadian wages have risen 10 percent and wages in Australia by 30 percent. A group of eminent economists has taken on that question and developed a detailed analysis—to be issued imminently—of this vexing problem in a project underwritten by the Center for American Progress. 

Their report includes this statement: “Today, the ability of free market democracies to deliver widely shared increases in prosperity is in question as never before. This is an economic problem that threatens to become a problem for the political systems of these nations and for the idea of democracy itself.”

These statements were not written by followers of Karl Marx or Frederick Engels (Engels, by the way, was a socialist whose work was translated first by Florence Kelley, NCL’s indomitable first leader). The report’s authors include Rockefeller Foundation President Judith Rodin and former White House economic adviser Larry Summers.

What does the report recommend? Among other things, helping to ensure that more people attend and finish college, more intervention in the free market on behalf of the poor and working class. For example, Canada and Australia have more generous childcare and family leave, they impose higher taxes on the affluent, and they impose stronger regulations on banks and financial institutions. But of greatest impact is that workers have more power and there is higher union concentration.

Some believe this report will be an important document for Democratic and Republican candidates as we go into the 2016 presidential campaign. Its premise is that democracy and freedom are threatened when not everyone shares in prosperity and when income disparities get so out of whack that the top 5 percent earn as much as the bottom 95 percent. If Australian and Canadian citizens can enjoy a 10-30 percent increase in wages, certainly the richest country in the world can afford to share our affluence across the economic spectrum. The health of our democracy depends on it.

 

 

MLK Day tribute – National Consumers League

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This week marks our nation’s annual celebration of Martin Luther King Jr. day. As we honor a truly great American icon we keep in mind two parallel and pertinent events that are occurring in America. One is the increasing awareness of the epidemic of police killings of black men (and black women too, though not as frequently). “The Root” enumerates 20 unarmed African Americans and the stories surrounding their killings by police.

The killing of Tamir Rice, is particularly troubling. Tamir, 12, was killed by a Cleveland cop as he waved a toy gun around in a park – this very officer had been fired from a suburban Cleveland police force for being too impulsive and lacking in good judgment. The Cleveland police department hired him without doing a background check.

As protests have sprung up across the country, with proclamations like “Black Lives Matter,” surely King would have led the marchers across America to protest these terrible killings and seek solutions.

The second event revolves around the movie “Selma.” The film, currently in theaters and directed by a black woman, stars a black actor and focuses on MLK’s campaign for voting rights in America.

While the reviews are positive, neither the director – an African American woman – nor the actor who vividly portrays Dr. King’s struggle to achieve the right to vote for African Americans – have received an Oscar nomination.

In the movie, King’s political skills are in sharp relief: he refused to be cowed by President Lyndon Johnson. He led his followers through a phalanx of dangerously racist cops and locals wielding nightsticks nail studded clubs, whips and guns. These scenes are depicted so graphically I could hardly watch.

The tense phone conversations between King and LBJ have viewers on pins and needles. LBJ capitulates and eventually passes the Voting Rights Act, because he has to. He accuses King of reckless opportunism, but the civil rights leader triumphs because he makes the case that without voting rights, blacks are denied power to throw out white office holders who deny them the right to vote, the right to march, the right to be free of harassment and discrimination.  Martin Luther King, a disciple of Mahatma Gandhi, wins the day,

There’s something else – something troubling – being played out on another totally different stage: neither the African American female director nor the actor playing King were nominated for Academy Awards.

So how important is an Oscar nomination anyway? Very important, and for a variety of reasons. Over the weekend CNN featured two men debating whether the Academy was racist. The white commentator said no, absolutely not, The Help and 12 Years A Slave, the first about black maids in the South as the civil rights movement unfolded and the latter, about a free black man in the 1850s kidnapped and sold into slavery, both won major awards in the last few years . The African American commentator laughed. “I thought you were kidding. The Academy is only comfortable acknowledging black actors playing servants or slaves. But in a film like Selma, black actors and directors don’t get any recognition.”

The director of “Selma,” Ava DuVernay, is a black woman who for years sought studio backing to make the movie. And, as David Carr wrote in the New York Times this week, “No club in the United States — over the last several years, the academy has been around 93 percent white, 76 percent male and an average of 63 years old — is in more need of new blood than Hollywood.”

Carr further argues for the importance of Oscar recognition. He says the Oscars, “convey recognition at the highest level of a craft that is seen by millions.”

These two seemingly vastly different issues are not so different after all. They are both focused on the value of African American life in America and African American contributions, social, political, and cultural. Yes, we have an African American president and that is a milestone, but America still suffers from the ugly legacy of slavery and I fear that we continue to minimize the value of African American life and African American achievement in America.

2015 is a historic year  – it marks the 50th anniversary of both the Selma marches and the Voting Rights Act. We could recognize these events by acknowledging the risk black men face every day at the hands of the police – and that police officers have a hard job – and supporting campaigns like “Black Lives Matter.” We need also to recognize the talent and achievement of black directors, actors and producers at the Oscars. Martin Luther King would have been very proud, I think, of Selma, and especially its directors, actors, and producers. Happy MLK celebration to all.

Chicago conference explores Multi-Level Marketing in minority communities – National Consumers League

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This week, I participated in a town meeting held at a local Methodist church on Damen Street, in the heart of Chicago’s Hispanic community.  I was invited by the League of United Latin American Citizens (LULAC) to discuss frauds and pyramid schemes that prey on members of minority communities. 

NCL has a longstanding history of opposition to pyramid schemes and other fraudulent business opportunities. We are the only consumer group with a Fraud Center. In 2009, we published a guide to help consumers distinguish between legitimate sales opportunities (Multi-Level Marketing) and pyramid schemes, with the support of the Direct Selling Association, the industry group that represents MLMs.   

Last night’s town meeting began when I walked through a wall of pro-Herbalife demonstrators, who waited outside for an hour on a very cold Chicago night, wearing t-shirts bearing the words “Yo Soy Herbalife.” Inside we started the evening with prayers, the Pledge of Alliance, and the Star Spangled Banner.

Brent Wilkes, executive director of LULAC, opened the forum by describing the problem of Hispanics falling victim to fraud. He discussed notarios, who pose as lawyers—as well as actual lawyers, who promise to help clients obtain legal status, but then take large sums of money, lie to them, and do no work on their behalf.

It was this work fighting fraud perpetrated against Hispanics that led to his interest in pyramid schemes and phony business scams. He described meeting with officials at the Federal Trade Commission (FTC) about Herbalife, a company with $3.2 billion in revenues that has aggressively pursued Hispanics to distribute their products. Indeed, 60-83 percent of Herbalife distributors are Latino. The chances of making any money at all—after expenses—as a distributor of Herbalife are tiny, estimated at less than one percent, according to the company’s own filings with the Securities and Exchange Commission.

My part of the evening’s agenda focused on what consumers should ask to avoid falling victim to pyramid schemes that are posing as legitimate MLMs.

I noted that NCL wrote to the FTC in March of 2013, asking the agency to sort out the truth. Herbalife claims it’s a legitimate business, hedge fund manager and Herbalife critic Bill Ackman and Pershing Square argue that it’s an illegal pyramid scheme. NCL asked the FTC to use its resources to clear the company’s name if these allegations aren’t true or to determine that the allegations against Herbalife are accurate and take steps to put a stop to illegal practices. The FTC agreed to investigate, but alas, the wheels of bureaucracy grind slowly and we have yet to hear the results of their probe.

The most powerful part of the evening for me—and I think for everyone in the room—were the voices of the community telling their stories. At least five people described paying lawyers and notarios their last dollar to get a husband or wife into the U.S. or to get them papers, only to find out they’d been duped by an unscrupulous actor. Many people spoke about investing thousands of dollars in Herbalife, their life savings, and having nothing to show for it. Several said they were encouraged to buy more and more products they couldn’t sell, to attend conferences, and to exaggerate Herbalife’s ability to treat cancer, diabetes, or high blood pressure in order to make sales. They also spoke of being ashamed to come forward until now.

We hope that the FTC’s investigation will lead to a reexamination of practices that may be widespread throughout MLM industry. For example, our review of the income disclosure statements of several other MLM’s showed that the vast majority of MLM participants have little profit to show for the large amounts of time and money they are often asked to devote to these businesses.

Data aside, it is the personal stories I heard last night that reinforced for me how important NCL’s work is. No one there last night could avoid feeling the pain flowing from these individuals. Single fathers, out-of-work carpenters, and struggling musicians all shared their Herbalife woes.

My life’s work is fighting fraud and championing consumer protection. The stories I heard in Chicago last night galvanized me to stand with these communities and to demand that regulators and bar associations crack down on the illegal, criminal practices that steal money from the poor. Depriving those who only want to pursue the American Dream of their opportunities and hopes is intolerable. What last night told me is that I—and NCL—must redouble our efforts to protect the most vulnerable of our citizens.  

An end to secret settlements could save lives – National Consumers League

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en, corporations are able to settle lawsuits brought against them in secret, paying off litigants and hushing up the hazards that lurk in their products. Consumers deserve more transparency and accountability from these corporations. USA Today editorialized last week on this very problem, focusing on a product I’d never heard discussed in this debate, ironically a rifle. 

 

In 2000, a nine-year-old Montana boy, Gus Barber, on a family hunting trip, was killed when his mother released the safety on a Remington 700 rifle to unload it and the gun discharged. Gus’ father later discovered that the company knew they had a safety problem for decades and never changed the design, admitted the problem, or recalled the rifles. By the time Gus was shot, more than 100 people had been injured and two-dozen killed. All these cases were buried through secret settlements, with judges sealing these confidential settlements, thus depriving the public from knowing about this deadly hazard.

The practice of sealing health and safety hazards, many of them deadly is unconscionable and dangerous. NCL and our fellow safety advocates have supported legislation introduced over the years in Congress to stop this practice, requiring judges to reject requests from plaintiff and defense lawyers to enter into secret settlements where dangerous products remain in the marketplace.

Gus Barber’s case is so outrageous that Montana joined four other states in adopting an anti-secrecy statute that prohibits their state courts from concealing information about public hazards.

Things may finally be turning around on this issue. In a recent case in Missouri, federal judge Ortrie Smith refused to seal a case against Remington for safety issues. That’s a hopeful sign. If we could get a federal bill passed, every judge would be required to follow Judge Smith’s example and refuse to deprive citizens of critical safety information that could have saved nine-year-old Gus Barber’s life. 

Reflections on 2014 victories for consumers and workers – National Consumers League

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As we wind down another year advocating for consumers and workers, it is inspiring to reflect on the two major victories we saw in 2014 for consumers and workers. NCL is America’s only advocacy group with a dual mission to protect both consumers and workers, and we are proud of our work advocating for these changes.

  

Increased minimum wages

Minimum wage increases are essential for helping get America’s low-income workers—and our economy—back on track.

As of Jan. 1, 2015, 29 states and Washington, DC will have minimum wages above the federal minimum wage. America’s lowest paid workers will see their meager hourly wages increase, and it’s not just happening in the states with the most liberal voters! Four states (Alaska, Arkansas, Nebraska, and South Dakota) approved minimum wage increases through ballot measures in the 2014 general election. In Illinois, voters approved an advisory measure.

NCL and our allies have been beating the drum for increased minimum wages, helping to build momentum in recent years that resulted in these real victories. We are hopeful that this trend will continue across the country to help improve the quality of life for millions of working families.

Health care accessibility advances

For consumers, access to health care under the Affordable Care Act (ACA) will improve the nation’s quality of life. Despite conservatives’ pledge to unwind and repeal the ACA, sign-ups have surged, representing a huge amount of pent-up demand for health care across America.

As of mid-December, total enrollment for 2015 plans in this year’s open-enrollment season is about 7.44 million. Experts are saying the surge was bigger than expected and that the Obama administration will exceed its target of having 9.1 million people enrolled in the ACA by the end of 2015.

NCL was a part of this movement—last year, we hosted events across the country to educate consumers about their options and helped them sign up for the exchanges.

All told, the National Center for Health Statistics says that 11.3 percent of Americans lack health insurance, compared with 14.4 percent in 2013. That is progress! More and more Americans, especially children, are insured today than ever before—a huge victory for consumers and for our nation’s health.

There are still many obstacles to overcome for our country’s working families. With your support, we will continue to fight for livable wages, access to healthcare, and so much more in 2015.  

The time to protect pregnant workers is now – National Consumers League

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Sometimes I really hate what lawyers do to parse the plain language of the law. Last week was a case in point. I attended Supreme Court argument in the case of Peggy Young vs. UPS. Young challenged her treatment as a UPS worker expecting a baby and needing to go on light duty but the company refused to reassign her. The statute in question is the Pregnancy Discrimination Act of 1978 (PDA). 

As it happens, I worked on getting that bill passed as a Congressional staffer. In 1978, Congress rushed into action to overturn a blatantly absurd finding by the Supreme Court in a case called Gilbert vs. GE where the Court actually said that not making physical accommodation for pregnant women in the workplace while accommodating all sorts of other disabilities wasn’t sex discrimination under the 1964 Civil Rights Act but simply discrimination against pregnant people.

Ahem. Pregnant people are ALWAYS women so in fact the finding in Gilbert is in fact discrimination against women. So why were we back at the Supreme Court again last week 36 years later re-litigating this case?  The PDA is very simple. It says:

To amend Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection:

“(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.

In other words, pregnant women should be treated the same for all employment related persons as those with similar in their ability or non ability to work.

Peggy Young simply wanted light duty at UPS late into her pregnancy, as ordered by her doctor. UPS wouldn’t accommodate her. But men with other similar disabilities, including those with DUIs who couldn’t drive a truck, were accommodated. This doesn’t seem like rocket science. But the Supreme Court seemed to think interpreting the PDA was very complicated. What did each word mean and why was it there? As Lyle Denniston of SCOTUS Blog commented on the case: “ The Justices probed deeply into what that section’s words — and punctuation — convey, even to the point of trying to sort out whether a semi-colon made a difference.  There did not appear to be a consensus on the meaning.”  I mean really! There was a great deal of consensus in Congress when the PDA was enacted.

Peggy Young’s plight is not isolated. Appearing before Congress earlier this year, Armanda Legros testified that she was sent home by her manager at an armored truck company, indefinitely and without pay, when she was six and a half months pregnant and had to avoid heavy lifting. She also testified that a co-worker who injured his back on the job was granted the accommodation that she was denied. UPS claims that the comparisons are between those who are injured on the job and those injured outside of the workplace, in which case UPS claims it has no duty to accommodate them and pregnant women fall into that category. 

I can tell you that when Congress enacted the PDA, it was meant to cover exactly Peggy Young’s case – if men at UPS had disabilities that are accommodated, so should Young. I’m told by Supreme Court scholars pregnant women might lose this case. How sad. In fact, UPS has changed their employee practices to ensure that pregnant workers have a right to light duty when needed. But we have to go thru this slow tortuous process to protect pregnant women’s rights nevertheless.

NCL filed an amicus brief in support of Young, joining the ACLU and many other groups. Among the arguments in the brief is that when women are forced to leave the workplace because of pregnancy-related conditions, while other workers with similar limitations are provided light duty, women suffer the very discrimination that Congress sought to eradicate. They lose income, economic security, and benefits, including health insurance, often with devastating results.

I found that listening to the case – I was in the overflow room at the Court reserved for members of the Supreme Court bar –infuriating. Why are we still debating these basic rights for working women. I only hope that the Supreme Court will look at Congressional intent in passing this bill and finally, 36 years later, give Peggy Young and all pregnant women who work the kind of accommodation Congress intended them to have when it passed the PDA. That’s good for women and good for families.