Roundups Law and Policy

Legal Wrap: The Fallacy of Admitting Privileges Restrictions, and GOP Targets Another Female Judicial Nominee

Jessica Mason Pieklo

This week in legal news: the bad policy and law behind admitting privileges restrictions, and Republicans' obstructionism on judicial nominees becomes transparently misogynistic.

Legal Wrap is a weekly round-up of key legal reproductive rights and justice news.

Among the most popular of the extreme anti-choice legislation sweeping the states is a requirement that any physician who performs abortions at a clinic also have admitting privileges at an area hospital. On their face the restrictions sound reasonable, but Imani Gandy has this must-read piece on why admitting privileges requirements are neither good medical practice nor necessary under the law.

Last week, the Senate Judiciary Committee took up the nomination of Georgetown law professor Nina Pillard to the D.C. Circuit Court of Appeals. Pillard is by every measure an excellent nominee and should sail through the confirmation process, except that Republicans have hijacked the judiciary committee and are doing everything they can to tank Pillard’s nomination. Their latest outrage is over Pillard’s academic writing, where she explains that abstinence-only sex education curricula based on sex stereotypes could be unconstitutional and that public schools should not be teaching young girls they need to plan on being financially dependent on their husbands. These beliefs make Pillard a “militant” feminist, according to Sen. Chuck Grassley (R-IA) and Sen. Ted Cruz (R-TX) and, therefore, unfit for the bench. That position would be bizarre enough on its own but for the fact that Republicans are using it as an excuse to steal the court all together.

The birth control benefit in the Affordable Care Act took a significant step toward Supreme Court review with the U.S. Court of Appeals for the Third Circuit ruling that a for-profit company that is run by Mennonite Christians does not have religious exercise rights under either the Religious Freedom Restoration Act or the First Amendment. The ruling is in direct conflict with an earlier decision from the Tenth Circuit Court of Appeals, which held Hobby Lobby did have such rights. Normally, it’s up to the Supreme Court to resolve these kinds of federal court conflicts, and given the nature of the litigation challenging the benefit, I’d say it’s safe to assume the Roberts Court will step in during the 2013-2014 term that begins in October.

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The state of Arizona was in court last week defending a law that bans abortions based on the sex or race of the fetus. The law, the state’s attorney general insists, is not discriminatory even though it is based on racial stereotypes of African-American and Asian Pacific women and not on actual abortions data in Arizona.

Supreme Court Justice Ruth Bader Ginsburg’s dissent in Shelby Co. v. Holder, the case that struck down a portion of the Voting Rights Act, warned that once states with a history of racial discrimination in elections no longer had federal oversight to dissuade them from continuing to try and suppress the vote, all the gains made possible by the Voting Rights Act would slide away. Since the decision, states like Texas and North Carolina have moved forward with racially discriminatory voter identification laws and redistricting plans, and on Friday Justice Ginsburg basically said, “I told you so.”

In other news, a case in Ohio showed the attack on abortion rights isn’t simply an attack on access, it’s a wholesale attempt to keep women in poverty or force them into traditional marriage and homemaker roles. Lawmakers in Ohio passed a budget that diverts Temporary Assistance to Needy Families (TANF) dollars to crisis pregnancy centers.

Elsewhere, the Kansas Supreme Court issued an important ruling in the fight over gun rights, holding that gun dealers must use the highest standard of care when selling weapons and that dealers can be held liable for violating gun laws under negligence per se standards. Gun reform advocates applauded the decision as one that will remove the profit motive from dealers for arming criminals and help victims of gun violence whose injuries are, in part, caused by irresponsible gun sales.

North Carolina legislature announced it would pay $10 million to victims of its coerced sterilization program. The state’s program was among the most extensive and long-running of its kind, sterilizing about 7,600 people—from 1929 to 1974—the state deemed socially or mentally unfit, which makes $10 million a paltry amount of compensation in comparison.

And last week an Atlantic County Superior Court judge in New Jersey ruled that casino waitresses are effectively “sex objects” and can be fired for putting on too much weight. The ruling came in a lengthy dispute between an Atlantic City casino and a group of 22 former waitresses. The waitresses, known as “Borgata Babes,” sued the casino, alleging weight discrimination based on a casino policy that prohibits casino waitresses from gaining more than 7 percent of their original body weight. In his ruling against the casino waitresses, Judge Nelson Johnson said the employer’s guidelines were fair, and that the women knew what would be expected of them from the start of their employment. “The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons,” Johnson wrote, according to the Press of Atlantic City. “Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation.” Sigh.

Meanwhile, a Baton Rouge sheriff has been rounding-up and arresting men under the state’s anti-sodomy law, arguing that if the law is still on the books, it’s his job to enforce it and for the courts to sort out whether it’s enforceable. (Spoiler: It’s not.)

Finally, let’s end on some good news: In an unanimous decision, the Oregon Supreme Court upheld the state’s rape shield law, which closes to the public any pretrial proceedings on a victim’s sexual history. Under the law, which dates back to 1975, evidence of a victim’s sexual past is usually inadmissible in a trial for rape and some other sex crimes. But that evidence can be admitted if it relates to motive or bias, or is necessary to explain scientific or medical evidence offered by the state. The law requires the defendant to furnish a “written offer of proof,” and specifies that a hearing on relevance of evidence must be closed to the public. That portion of the law that requires a closed hearing to review the offer of proof was challenged as unconstitutional for violating an accused’s rights to a “public trial.” The state supreme court disagreed, holding there were enough protections and opportunity for the accused to attend the hearing and argue regarding the evidence to assure no constitutional violations while protecting rape victims from irrelevant and misleading character attacks intended to confuse the prosecution or dissuade victims from coming forward from the start.

News Law and Policy

Supreme Court Strikes Texas Abortion Restrictions

Jessica Mason Pieklo

The U.S. Supreme Court on Monday ruled 5 to 3 that both the admitting privileges and surgical center requirements of Texas' HB 2 are unconstitutional.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

The U.S. Supreme Court on Monday ruled 5 to 3 that two provisions of a Texas anti-abortion law—both the admitting privileges and surgical center requirements—are unconstitutional.

Writing for the majority, Justice Stephen Breyer wrote both provisions “place a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

“We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case,” Breyer wrote.

The decision came on the last decision day of the Roberts Court’s term in one of the most closely watched cases of the year.

Before the Roberts Court were two provisions of Texas’ HB 2, the omnibus anti-abortion bill that has been the sustained focus of legal challenges since 2013. One provision required an abortion clinic to be outfitted with the same physical and professional requirements as stand-alone surgical centers—even if the clinic provides medical, rather than surgical, abortions. That provision has been blocked from being enforced in Texas, due to an earlier temporary Supreme Court order.

The second provision before the Court required any doctor performing abortions in clinics in the state to have admitting privileges at a hospital within 30 miles of the clinic. That part of the law has been in effect in most of the state, after extensive previous litigation.

As reported earlier by Rewire, before the implementation of HB 2, there were approximately 41 facilities providing abortion services in the state, and at least 16 of those facilities had either closed or stopped providing abortion services by the end of 2013, once much of the law took effect. Had the Roberts Court ruled against abortion rights advocates, Texas could have been left with only nine clinics serving patients in the entire state.

“Today, the Supreme Court affirmed what we at Whole Woman’s Health have known all along—that every woman, no matter where she lives, deserves access to compassionate, respectful, and comprehensive care from a clinic she trusts. Today justice was served,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the case, in a statement immediately following the decision.

HB 2 also includes restrictions on medication abortions and a 20-week ban. Those provisions are in effect and not a part of this litigation.

Culture & Conversation Law and Policy

The Modern Struggle Over Anti-Trans Bathroom Laws Has Its Roots in Decades of Title VII Fights

Jessica Mason Pieklo

Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.

In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’s manufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.

That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.

So opens Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Workwritten by Gillian Thomas, senior staff attorney with the American Civil Liberties Union (ACLU) Women’s Rights Project. Despite its full title, though, Because of Sex goes beyond cases that helped shape workplace anti-discrimination policies, focusing on ten key women whose own lives changed the law.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.

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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby and Zubik v. Burwell.

“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.

Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.

In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.

The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.

But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.

“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”

This disconnect is most apparent in the case of United Automobile Workers vJohnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”

The policy amounted to a demotion for many female employees and a closed door for others.

Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.

The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.

As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”

But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.

In other words, these policies didn’t exist in female-dominated fields.

Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.

In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.

Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t?

The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”

Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.

By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.

The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.

If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.

1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”

“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.

That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball State made it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.

Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.

But the Roberts Court has yet to weigh in.

“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”

This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.