Analysis Law and Policy

As Fiftieth Anniversary of Equal Pay Act Nears, Wal-Mart Continues to Defend Unequal Pay Practices

Sheila Bapat

In the decade since the original Wal-Mart v. Dukes suit began, the national gender wage gap has remained steady at 77 cents to the dollar. This case is just one example that there is much, much more work to be done to improve women’s economic status in the US.

Some of the plaintiffs who lost in last year’s Wal-Mart, Inc. v. Dukes Supreme Court ruling may be given a second chance to prove their case. On Friday, Judge Charles Breyer of the Northern District of California ruled that the California-based plaintiffs may go forward with showing that their class meets the requirements the Supreme Court established last year. Judge Breyer set February 15, 2013 as the date for the California plaintiffs’ class certification hearing.

But the road ahead is likely to be long. Even if the plaintiffs prevail in this class certification hearing, it is fair to assume that Wal-Mart will continue to appeal and insist that the class does not fit within the Supreme Court’s class requirements—further protracting the litigation that is already over a decade old.

Sadly (but not surprisingly), over the last decade the national wage gap has remained the same as well. Women on average earn 77 cents for every dollar that earned by men. As we near the 50th anniversary of the Equal Pay Act, which passed in 1963, Wal-mart tenaciously maintains that its decisions to systemically pay women less and pass them over for promotions were not discriminatory. A number of other employers seem to be shortchanging their female employees as well. This case is just one example that there is much, much more work to be done to improve women’s economic status in the US.

“One of the reasons this case is so important is to galvanize a movement,” said Noreen Farrell, Executive Director of Equal Rights Advocates, one of the groups serving as plaintiffs’ counsel. “Fairness in pay is an issue that’s impacting women in so many industries.”

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Earlier this month the National Women’s Law Center released statistics about pay equity in 2011, showing that the wage gap held steady over the last decade. And this holds true whether or not women leave the workforce to raise kids: a woman working full time year-round would lose $443,360 in earnings over a 40-year period. The wage gap persisted regardless of education levels, and was found to be particularly stark among women of color.

Wal-Mart is the largest employer in the United States, and 65 percent of Wal-Mart employees are women. As Rinku Sen pointed out in her terrific piece last year, Wal-Mart’s own internal documents admit that the extremely low number of women in high lever positions at Wal-Mart (only 5 women out of 41 regional vice presidents are women) shows they are lagging in gender parity as compared with their peers.

Counsel for the plaintiffs expect Wal-Mart to challenge any ruling favorable to the plaintiffs throughout this next round of the case.

“We have no doubt that Wal-Mart will continue to try to block these women from having their day in court,” Farrell said.

In last year’s disappointing Wal-Mart v. Dukes ruling, the Supreme Court threw out plaintiffs’ lawsuit, which began back in 2001, because the class was too large and did not show the requisite “commonality” any class action plaintiffs have to show. The California plaintiffs have re-grouped and filed suit in accordance with the Supreme Court’s ruling. Breyer’s decision on Friday rejects Wal-Mart’s motion to dismiss the plaintiffs’ complaint and states that that the women should be given an opportunity to show that they meet the new, stricter class requirements established by last year’s Supreme Court opinion.

In their motion to dismiss, Wal-Mart pushed their theory that the size and diversity of the class of plaintiffs made it impossible for them to show the requisite “commonality” any class action plaintiffs have to show, but Judge Breyer held that the class hasn’t had a chance to present their evidence as to their commonality—something that they can attempt to establish at trial.

Plaintiffs in other regions may give it a second shot as well. By breaking down the original class of plaintiffs and demonstrating that disparities in promotion existed in each region, plaintiffs throughout the country may have a better chance of success in showing that they were discriminated against. While Farrell feels relatively confident the California class will be certified, how the certification hearings will play out in various jurisdictions could vary.

Analysis Law and Policy

Here’s Why 2016 Could Be the Biggest Year for Reproductive Rights and the Courts in Decades

Jessica Mason Pieklo & Imani Gandy

The next year promises to be an eventful one on the legal front—though we feel like we say that every December.

The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell, the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?

Even so, 2016 is still shaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patients that increased over the course of 2015, we can’t say we were surprised to put it there.

The Roberts Court

Whole Woman’s Health v. Cole

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Whole Woman’s Health v. Cole is the Roberts Court’s first substantive dive back into abortion-rights law since Gonzales v. Carhart, which banned so-called partial-birth abortions in 2006. But unlike Gonzales, which focused on the constitutionality of a procedure-specific abortion ban, Whole Woman’s Health v. Cole takes on the porous “undue burden” standard of 1992’s Planned Parenthood v. Casey decision by tackling just how rigorously courts should apply that standard when reviewing abortion restrictions that purport to advance patient health and safety. That makes Whole Woman’s Health v. Cole the Court case with the most potential to affect abortion rights in nearly 25 years.

Little Sisters and the Rest of the Nonprofit Contraception Cases

Another Roberts Court term brings another challenge to some portion of the Affordable Care Act. This time, the Court returns to the ACA’s birth control benefit and the question of whether the government’s process for allowing religiously affiliated nonprofits to opt out from providing health insurance plans that offer contraception is too burdensome under the federal Religious Freedom Restoration Act (RFRA). The Court consolidated seven cases filed by hospitals, nursing homes, and other kinds of businesses that are religiously run and affiliated; all object to filling out the opt-out form. The cases represent not just a test to the administration’s opt-out provision for the birth control benefit, but the strength of the majority decision in Hobby Lobby v. Burwell, which relied on the accommodation process now before the Court to rule that for-profit businesses should have a similar opt-out option available. A ruling that would allow these nonprofits to be exempted from the coverage would have enormous implications, as 10 percent of larger nonprofits have asked the Obama administration for an accommodation to the rule already.

Friedrichs v. California Teachers Association 

The Roberts Court has not been kind to workers’ rights generally, making it harder for employees harassed by supervisors to sue and drastically reducing employees’ abilities to raise class-action lawsuits. This term is no exception with Friedrichs v. California Teachers Association, a case that takes on the way public employee unions are funded. Currently, if a union represents a group of workers, that company’s entire workforce, or at least a defined portion of it, pays a fee designed to compensate the union for its bargaining activities. The argument supporting these fees is that the union’s actions benefit the entire workforce—not just union members—and the fee is nominal in the face of the influence of management and corporate owners. But anti-union interests argue those fees violate the First Amendment. Should the Roberts Court agree, the result would severely limit unions’ abilities to raise money for their operations and to effectively bargain on behalf of their members. Women and people of color, who make up the majority of public employee union membership, would feel the most severe effects in this scenario.

Evenwel v. Abbott

Evenwel is the latest in a series of “representation” cases dreamed up by Edward Blum, director of the Project on Fair Representation—which was behind Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. Blum is also responsible for Fisher v. University of Texasthe case challenging the admissions policy at the University of Texas on the grounds that it discriminates against white studentsEvenwel challenges “one person, one vote”; though it concerns the drawing of state senate districts in Texas, the case has potential national implications. Under the 14th Amendment, states are allocated seats in the House of Representatives by “counting the whole number of persons in each state.” States follow this process when determining their own statewide districts, carving up districts based on U.S. Census Bureau population data and irrespective of the total number of registered voters in each. The plaintiffs in Evenwel argue that by counting children, documented and undocumented immigrants, many prisoners, and other non-voters, Texas denies “eligible voters their fundamental right to an equal vote.” If they win, legislative districts would become older, whiter, more rural, and more conservative. Political power would shift from urban areas to rural areas. Our elected officials would be even older and whiter than they already are. In other words, the gains made by the civil rights era in diversifying our elected bodies would be rolled back, the same way Shelby County v. Holder rolled back the voting participation gains made by the the Voting Rights Act.

Fisher v. University of Texas 

Race-based affirmative actions are again before the Roberts Court in Fisher v. University of Texas. Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white, even though of the 47 equally or “less” qualified students who were admitted over Fisher, 42 were white—only five were Black or Latino. Her case has made it up to the Roberts Court once before. The justices punted on the ultimate question of whether or not the University of Texas’ plan violated the Constitution, instead sending the case back to the conservative Fifth Circuit. After the Fifth Circuit ruled in favor of the University’s admission plan, again, conservatives ran the case back up to the Roberts Court.

During oral arguments, it became apparent that the conservative wing of the court is prepared to decimate affirmative action. Justice Scalia wondered whether admitting Black students into schools that might be too hard for them was doing them a disservice. Justice Roberts appeared frustrated that affirmative action still exists at all, and wondered what unique perspective a student of color brings to a physics class and whether diversity serves any purpose in that context. Given the Roberts Court’s palpable hostility toward any acknowledgement that race continues to be a decisive factor in the oppression of people of color in the United States, proponents of affirmative action are right to be concerned about the fate of race-conscious admissions policies at colleges and universities.

Courts of Appeals

Purvi Patel Conviction for Feticide 

Purvi Patel is an Indian-American woman who in July 2013 entered an emergency room in South Bend, Indiana, while suffering heavy vaginal bleeding. She initially denied to doctors that she had been pregnant, but eventually acknowledged she had miscarried. Patel told hospital staff the fetus was stillborn and that she had placed it in a bag in a dumpster. Doctors then alerted the police, who questioned her and searched her cell phone—all while she was in the hospital and under the influence of pain medication. During the search of her cell phone, police saw a series of text messages, which prosecutors later claimed made the case Patel had attempted an illegal abortion by ordering abortion-inducting medications and taking them. Police charged Patel with felony feticide and neglect of a dependent. The feticide charge presumed the fetus was stillborn, while the neglect of a dependent charge presumed a live birth. Despite this apparent conflict, a jury convicted Patel on both counts. Patel, who has no criminal record, was ordered to serve 20 years in prison. Attorneys have appealed her case, arguing there was no evidence she took any abortion-inducing medication. Attorneys for the State of Indiana have doubled down on Patel’s prosecution and defended their case, arguing as if it is good public health policy to radically restrict contraception and abortion access in the state and then criminally prosecute women whose pregnancies end in anything other than a successful live birth. 

Second-Trimester Abortions in Kansas

In 2015, Kansas became the first state to pass a ban on the most commonly used method of ending pregnancy in the second trimester, setting the stage for the next big legal showdown over specific abortion procedures. SB 95 bans dilation and evacuation (D and E) abortions—what anti-choicers like to call “dismemberment abortions”—and is based on legislation drafted by the radically anti-choice National Right to Life Committee. Oklahoma passed a similar version just one day after Kansas did, and copycat legislation has been introduced in both Missouri and South Carolina. Shortly before it was set to take effect in Kansas, reproductive rights advocates sued to block it. But instead of challenging the measure in federal court like most abortion-related challenges, advocates sued in state court, arguing the law violates Sections 1 and 2 of the Kansas Bill of Rights, which they say provide due process guaranteeing the government cannot infringe on personal liberties.

Because due process rights have been used at the federal level to protect the right to an abortion, pro-choice advocates argue the same should be the case under the Kansas Constitution. In December, the entire panel of judges on the Kansas Court of Appeals heard arguments as to whether a temporary order currently blocking the ban should be affirmed as the legal challenge proceeds. Regardless of how the court ultimately rules on the temporary order, the Kansas case is an important one to watch because it is in state court. Almost all of our abortion rights law comes from federal court challenges, but those have become increasingly hostile thanks to decades of conservative judicial appointments. State courts could, therefore, prove to be those rights’ final protectors.

Catholic Hospitals’ Refusal of Services

In 2010, a then-18 weeks pregnant Tamesha Means showed up at Mercy Health Partners in Muskegon, Michigan, in the middle of having a miscarriage. Mercy Health, a Catholic-sponsored facility, sent Means home twice, saying there was nothing it could do for her. It wasn’t until Means, a mother of three, returned to Mercy Health a third time—this time suffering from a significant infection as her miscarriage persisted untreated—that the hospital decided to treat her by offering her some aspirin for her fever. As Mercy Hospital was preparing to discharge Means once more, she started to deliver. The hospital decided at that point to admit Means and to treat her condition. Means eventually delivered a baby, who died within hours of birth.

Means sued Mercy Health, arguing that its adherence to the “Ethical and Religious Directives“—which, among other regulations, prohibit a pre-viability pregnancy termination—resulted in medical malpractice in her case. The lower court dismissed Means’ claims, ruling it did not have the power to interpret Catholic doctrine directly. Means appealed, and her case is currently before the Sixth Circuit Court of Appeals. Meanwhile, hospitals in California and Michigan face allegations similar to those in the Means case: that adherence to the directives has resulted in malpractice when treating reproductive health-care conditions. So far, courts have not taken this question of whether or not Catholic doctrine can override the medical community’s standard of care. But it is a fight they won’t be able to stay out of long, since one in nine hospital beds in this country are at a Catholic or Catholic-sponsored facility, and they appear to be turning away women in need at a pretty rapid pace.

Trial Courts

The Legal Battle Over the Planned Parenthood Tapes

Perhaps the biggest controversy to emerge from 2015 is the video smear campaign waged against Planned Parenthood by David Daleiden and his anti-choice front group, the Center for Medical Progress (CMP). Daleiden’s months-long sting operation, which saw him infiltrate under false pretenses private meetings held by the National Abortion Federation (NAF), resulted in the release of video footage purporting to show that Planned Parenthood is in the grisly business of harvesting fetal “body parts” and profiting from their sale. This, despite the fact that there’s nothing illegal about fetal tissue donation programs and Planned Parenthood has been repeatedly cleared of wrongdoing by several state and federal investigations. Within weeks of the release of the first video, the NAF sued Daleiden and CMP in federal court. The court granted NAF’s request for an order blocking the further release of any video footage recorded at NAF’s private events. It also ordered CMP and Daleiden to turn over to NAF the names of Daleiden’s associates, accomplices, and funders. The information they gave is under protective order, but should the court decide to make that list public, we’ll find out which Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

Anti-Abortion Terrorism in Colorado Springs 

Robert Lewis Dear Jr. is accused of opening fire at a Planned Parenthood reproductive health-care facility in late November, killing three people and injuring nine, in Colorado Springs, Colorado. He has been charged in state court with 179 felony counts, including first-degree murder. If convicted, Dear could face the death penalty. Federal prosecutors are also investigating Dear for possible violations of federal law, including the Federal Access to Clinic Entrances (FACE) Act, the federal statute that makes it a felony to target for harassment abortion clinics, doctors, patients, and staff. Dear’s charges came after a summer of escalating violent anti-choice rhetoric following the CMP’s release of its deceptively edited footage. Conservatives insist their claims about “Planned Parenthood selling baby parts” had nothing to do with the Colorado Springs shooting, despite Dear reportedly telling officers “no more baby parts” when he was arrested and calling himself a “warrior for the babies” in court. Just how much influence did conservative anti-choice rhetoric and politicking influence Dear? We’ll find out during his trial in 2016.

Anna Yocca’s Trial for Attempted Self-Induced Abortion

Police arrested Anna Yocca, a 31-year-old woman from Murfreesboro, Tennessee, in December after she allegedly tried to end her pregnancy using a coat hanger at home in her bathtub. During the attempt, Yocca began bleeding heavily and her boyfriend rushed her to the hospital, where doctors delivered a 1.5-pound baby boy. Yocca, who was approximately 24 weeks pregnant when she attempted to terminate her pregnancy, allegedly made “disturbing” statements to hospital staff, including admitting that she tried to self-abort. Her statements led a Rutherford County grand jury to indict her for attempted murder and imprison her in the Rutherford County Adult Detention Center. Should she be convicted, she faces life in prison.

The return of coat-hanger abortions is an alarming indicator of the repressive reproductive rights environment in Tennessee and around the country. Although prominent abortion opponents have claimed they are not interested in prosecuting women who try to self-induce an abortion, the increasing number of women—who include Jennie Lynn McCormackJennifer Ann Whalen, and the aforementioned Purvi Patel—who have been thrown in jail for allegedly doing so tells a different story. Prosecutors charged Yocca under the state’s general homicide statute, which opens the constitutional question of whether or not general homicide laws in Tennessee can be used to prosecute women who self-induce an abortion or who otherwise have a failed pregnancy outcome.

In other words, Anna Yocca is a test case for anti-choice prosecutors who want to find a legal hook to charge women who abort with murder.

Anything Else?

There’s always something else on the horizon when it comes to reproductive autonomy. We didn’t even include the many other legal challenges to the wave of anti-choice laws passed in 2015, or the explosion of “religious liberties” claims in response to marriage equality and the expanding protection of rights for transgender people. But don’t worry, folks. It may be shaping up to be one helluva year for reproductive rights and justice in the courts, but we’ve got you covered.

News Law and Policy

Obama Administration Takes Action on Paid Sick Days, Equal Pay

Emily Crockett

Obama drafted an executive order that would give all federal contract workers seven paid sick days per year, shortly after the administration recommended actions to close the gender pay gap for federal employees.

President Obama on Wednesday drafted an executive order that would mandate seven days of annual paid sick leave for all federal contractors and their subcontractors, the New York Times reports.

The order, which is not final, would provide employees with paid sick days that would accrue year after year, and would cover not just an employee’s illness but also that of a family member or anyone “whose close association with the employee is the equivalent of a family relationship.”

The order would allow employees to take time off for medical attention, counseling, or legal issues related to domestic violence, sexual assault, or stalking.

The Obama administration also moved to address the gender pay gap last week when Beth Cobert, acting director of the Office of Personnel Management (OPM), issued new guidance that says agencies shouldn’t base a woman’s salary solely on her past earnings.

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Women in government made 12.7 percent less than men in 2012, and Cobert noted that basing salaries on past earnings disadvantages women who take extended time off of work or who were paid less than they were worth in their last job.

Both actions continue the trend of the Obama administration using executive power to promote the kinds of family-friendly workplace policies that Republicans in Congress refuse to consider.

Obama raised the minimum wage for federal contractors to $10.10 an hour shortly after Republicans filibustered legislation to do the same for all workers; he ordered that all federal employees be given six weeks of advanced paid sick time to care for a new child; and he signed an executive order barring federal contractors from discriminating against LGBTQ people.

Advocates praised the Obama administration’s latest actions on Wednesday.

“This is one important step in reducing pay disparities and leveling the playing field for women and all workers who have suffered from unfair pay practices in the past,” Debra L. Ness, president of the National Partnership for Women and Families, said in a statement on the new OPM policy.

Ness added that while preliminary, reports on the draft executive order are “welcome and truly outstanding news.”

“The federal government should lead by example,” Ellen Bravo, executive director of Family Values @ Work, a coalition advocating for family-friendly workplace policies, said in a statement. “Such a move is precisely its role: to create model standards for the rest of the country to follow and to make sure taxpayer dollars are used wisely.”

Wednesday marked the 22nd anniversary of the passage of the Family and Medical Leave Act (FMLA), which guaranteed some U.S. workers 12 weeks of unpaid time off without losing their jobs.

But unpaid family or sick leave isn’t enough, advocates say. The United States is the only developed nation without guaranteed paid maternity leave, and 43 million U.S. workers don’t have access to a single paid sick day.

To commemorate the FMLA and push for further reforms, Sen. Patty Murray (D-WA) tried to get a vote in the Senate Wednesday on her national paid sick days bill, the Healthy Families Act, as well as her $12 minimum wage proposal.

Republicans blocked that effort, despite the bipartisan, filibuster-proof majority support the Healthy Families Act received in a symbolic vote this year.

Grassroots organizing efforts have helped push the issue of paid sick days into the public consciousness in recent years, enough that Obama included the issue in his most recent State of the Union Address.

Paid sick days laws have been passed or enacted in 25 jurisdictions—four states, one county, and now 20 cities with the passage of a new law this week in Pittsburgh.

Almost all of these laws have been passed just within the last four years, except San Francisco’s 2006 law and Washington, D.C.’s 2008 law that was expanded to include tipped workers in 2014. 

This momentum has already caused a backlash, with the right-wing American Legislative Exchange Council (ALEC) pushing copycat legislation at the state level that would preempt local laws requiring paid sick days. One law approved by Wisconsin Gov. Scott Walker in 2011 overturned a popular paid sick days ballot initiative in Milwaukee.

That’s just another reason advocates are urging national action so that access to paid leave doesn’t depend on a worker’s zip code.

Voters seem persuaded by advocates’ arguments that paid sick days are good for families and businesses alike—that no one should have to choose between a paycheck and their health or their family, that no one should get sick at a restaurant because their ill server couldn’t afford to stay home, and that businesses can afford the policy.

Evidence suggests that paid sick days don’t harm a business’ bottom line and may increase worker retention and satisfaction.