Category Archives: Working Women

The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act after Young v. UPS

Source: Deborah A. Widiss, Indiana University Maurer School of Law, Indiana Legal Studies Research Paper No. 369, Last revised: April 25, 2017

From the abstract:
Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under the PDA. This Article fills that gap, updating analysis from an earlier article I wrote on this subject to incorporate the Court’s holding in Young and to discuss how lower courts are applying Young.

The PDA mandates that pregnant employees be treated “the same” as other employees “similar in their ability or inability to work.” Young established that employees who receive accommodations pursuant to the ADA or workers’ compensation laws may be used as comparators in PDA analysis, rejecting lower court decisions to the contrary. The Court stated that evidence that an employer routinely accommodates other health conditions but refuses to provide support for pregnancy is strong circumstantial evidence of discriminatory bias.

The ADAAA magnifies the importance of this holding; it also largely resolves the Young Court’s concern that the PDA not be interpreted to confer a “‘most-favored-nation’ status” on pregnant employees. Under the ADAAA and its implementing regulations, employers must provide reasonable accommodations for impairments that substantially limit an individual’s ability to lift, bend, walk, or stand, even on a temporary basis. Thus workplace accommodations for health conditions that cause limitations like those caused by pregnancy should now be commonplace (and many conditions associated with pregnancy may qualify as disabilities themselves). Robust enforcement of the PDA’s “same treatment” mandate does not create a danger that pregnant employees will be treated better than other employees; rather, it helps ensure that pregnant employees are not consistently treated less well than other employees.

Divergent Trends in US Maternity and Paternity Leave, 1994–2015

Source: Jay L. Zagorsky, American Journal of Public Health, Vol. 107, No. 3, March 2017
(subscription required)

From the abstract:
Objectives. To determine the number and type of US workers taking maternity or paternity leave.

Methods. We created a publicly available ecological long-term series for measuring parental leave from 1994 to 2015 by using the Current Population Survey, which interviews about 60 000 randomly selected households monthly.

Results. The average month from 1994 to 2015 saw 273 000 women and 13 000 men on maternity or paternity leave. Maternity leave rates per 10 000 births showed no trend over 22 years (mean = 677.6). Paternity figures increased by a factor of 3, but started from a small base (14.7–54.6). We observed no national impact on maternity or paternity leave after implementation of state laws that provided paid leave. About half (51.1%) of employees on maternity or paternity leave during 2015 received paid time off. The typical woman on maternity leave was older, more likely married, more likely non-Hispanic White, and more educated than the typical woman who gave birth.

Conclusions. Although the US economy has expanded dramatically since 1994, this improvement does not appear to have translated into more women taking maternity leave.

The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman’s Health

Source: Mary Ziegler, Florida State University – College of Law, Public Law Research Paper No. 832, March 9, 2017

From the abstract:
The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Universal Child Care, Maternal Employment, and Children’s Long-Run Outcomes: Evidence from the US Lanham Act of 1940

Source: Chris M. Herbst, Journal of Labor Economics, Vol. 35 no. 2, April 2017
(subscription required)

From the abstract:
This paper analyzes the US Lanham Act of 1940, a heavily subsidized and universal child care program administered during World War II. I first estimate its impact on maternal employment using a triple-differences model. I find that employment increased substantially following the introduction of the program. I then study children’s long-run labor market outcomes. Using Census data from 1970 to 1990, I assess well-being in a life-cycle framework by tracking cohorts of treated individuals throughout their prime working years. Results from difference-in-differences models suggest the program had persistent positive effects, with the largest benefits accruing to the most economically disadvantaged adults.

Projected Year the Wage Gap Will Close by State

Source: Julie Anderson, Jessica Milli, Melanie Kruvelis, Institute for Women’s Policy Research, Fact Sheet, R476, March 22, 2017

From the abstract:
If the earnings of women and men who are employed full-time, year-round change at the rate they have between 1959 and 2015, the gender wage gap in the United States will not close until 2059. The wage gap is projected to close first in Florida, with women achieving pay parity with men in 2038. In four states—North Dakota, Utah, Louisiana, and Wyoming—the wage gap will close in the 22nd century.   A girl born in the United States in 2017 has a life expectancy of 87 years.[1]  In 2082, when she turns age 65, a wage gap will still remain in 13 states.
Related:
The Gender Wage Gap by Occupation 2016; and by Race and Ethnicity
Source: Ariane Hegewisch, Emma Williams-Baron, Institute for Women’s Policy Research, IWPR #C456, April 4, 2017

The Gender Wage Gap 2016: Earnings Differences by Race and Ethnicity
Source: Ariane Hegewisch, Emma Williams-Baron, Institute for Women’s Policy Research, IWPR #C454, March 7, 2017

Equal Pay For Women Won’t Happen Until the 23rd Century, Study Says
Source: Rebecca Dancer, Teen Vogue, March 14, 2017

According to Institute for Women’s Policy Research data, it could take 232 years for all women to see equal pay, at current rates.

Your Boss’s Big Little Secret

Source: Rebecca Kolins Givan, Jacobin, April 4, 2017

You have a right to know how much your coworkers are paid — and if you want to close the wage gap, you should. …

….For most American workers, however, the salaries of their fellow workers remain a mystery. But it’s a mystery that can be solved, and the best way to do so is through collective bargaining. Most collective bargaining agreements include transparent pay scales where an employee can locate his or her salary based on job title, credentials, skills, seniority, experience, or some combination thereof. Pay under most collective bargaining agreements is open and transparent. Unions can eliminate wage disparities within a single employer and dramatically limit wage inequality even across employers. Collective bargaining agreements remove the ability for managers to set pay based on their own criteria which may be arbitrary, or influenced by implicit or explicit bias…..

Tax is a feminist issue: Why national budgets need to take gender into account

Source: The Economist, February 23, 2017

Designing fiscal policies to support gender equality is good for growth.

….Like many rich-country governments, Britain’s prides itself on pursuing policies that promote sexual equality. However, it fails to live up to its word, argues the Women’s Budget Group, a feminist think-tank that has been scrutinising Britain’s economic policy since 1989. A report in 2016 from the House of Commons Library, an impartial research service, suggests that in 2010-15 women bore the cost of 85% of savings to the Treasury worth £23bn ($29bn) from austerity measures, specifically cuts in welfare benefits and in direct taxes. Because women earn less, rely more on benefits, and are much more likely than men to be single parents, the cuts affected them disproportionately…. For instance, if the British government diverted investment worth 2% of GDP from construction to the care sector, it could create 1.5m jobs instead of 750,000. Many governments treat spending on physical infrastructure as an investment, but spending on social infrastructure, such as child care, as a cost. Yet such spending also increases productivity and growth—partly by increasing the number of women in the workforce….

Do Highly Paid, Highly Skilled Women Experience the Largest Motherhood Penalty?

Source: Paula England, Jonathan Bearak, Michelle J. Budig, Melissa J. Hodges, American Sociological Review, Vol 81, Issue 6, December 2016
(subscription required)

From the abstract:
Motherhood reduces women’s wages. But does the size of this penalty differ between more and less advantaged women? To answer this, we use unconditional quantile regression models with person-fixed effects, and panel data from the 1979 to 2010 National Longitudinal Survey of Youth (NLSY79). We find that among white women, the most privileged—women with high skills and high wages—experience the highest total penalties, estimated to include effects mediated through lost experience. Although highly skilled, highly paid women have fairly continuous experience, their high returns to experience make even the small amounts of time some of them take out of employment for childrearing costly. By contrast, penalties net of experience, which may represent employer discrimination or effects of motherhood on job performance, are not distinctive for highly skilled women with high wages.

States Struggle to Close Their Own Gender Pay Gaps

Source: Teresa Wiltz, Stateline, February 17, 2017

California has the most stringent equal pay laws in the nation. But among its own workers, the state is still struggling to close the pay gap between men and women.

Women who work for the state earn 79 cents for every dollar that men earn, according to a 2014 report by the California Department of Human Resources. That’s a wider gap than that faced by women who work in the private sector or for the federal government in the state.

California isn’t alone. While nationwide data is not available, male state workers earn more than their female counterparts in many states, including Idaho, Maryland and Texas.

An assessment last year by the online salary data firm PayScale listed the gender pay gap in public administration the fourth-highest among 21 professions and industries across the economy, with women making less than 75 percent of what men make — an average of $16,900 less. The gap in public administration trailed only finance and insurance, professional services and mining.

Many cities, including Alexandria, Virginia, New Orleans and Sacramento, have spotted the gap and tried to address it, just as some states have…..