Legal Momentum News Brief, July 2013

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July 26, 2013

Legal Momentum Offers Expertise and New Resources on Pregnancy Discrimination

Pregnancy discrimination in the workplace continues to be a reality for women across the country.  While the federal Pregnancy Discrimination Act (PDA) offers some protection against discrimination in the workplace, pregnant employees may face serious challenges when requesting on-the-job accommodations.  All too often, bathroom and water breaks, periodic rest for those standing for long intervals, and an adjustment in duties such as heavy lifting, are denied.  Federal courts have largely held that the PDA does not cover such accommodation requests for pregnant workers.  Thus far, proposed federal and state legislation in New York to provide increased protections to pregnant employees has not passed.

Now, the New York City Council is considering a bill to implement those protections.  Legal Momentum’s senior staff attorney Michelle Caiola testified before the Council in June, to explain the importance of this legislation, called the Pregnant Workers Fairness Act (Proposed Int. No. 974-A).  The Act would require that employers provide reasonable accommodations in the workplace to those who suffer conditions related to pregnancy and childbirth.  Michelle made the point that if this law had been in place, Angie Welfare, Legal Momentum’s client who experienced pregnancy discrimination by a major airline at JFK airport, may not have suffered the economic harm she did.  Ms. Welfare also testified and described her trying experience of losing her paycheck and health benefits while pregnant due to pregnancy discrimination. 

As part of Legal Momentum’s expertise in pregnancy discrimination in the workplace, we now feature a new interactive, user-friendly map providing a state-by-state guide to pregnancy discrimination laws in the U.S. on our website.  The guide also includes information about rights pertaining to breastfeeding and pregnancy leave. 

Domestic Violence and Guns—Educating on the Laws

An issue commonly arising in domestic violence cases is that of abusers and access to firearms.  This problem has not received the public attention it deserves, but Legal Momentum is working to shine more light on the laws involved.  In June, Christina Brandt-Young, Legal Momentum’s senior attorney, presented a well-received legal seminar on the federal, New York State, and New York City laws relating to domestic violence and firearms possession.  Under federal law, anyone who is subject to an order of protection made on notice or who has been convicted of a misdemeanor crime of domestic violence cannot possess a firearm.  In New York State, family court judges may declare a person subject to a civil order of protection ineligible for a state handgun license, and can order the individual to surrender any guns owned.

The seminar was for the New York Legal Assistance Group, and the New York City Lawyers' Committee against Domestic Violence.

Legal Momentum’s NJEP Joins Human Trafficking and the State Courts Collaborative

Legal Momentum’s National Judicial Education Program is proud to be part of a new initiative funded by the State Justice Institute (SJI).  The initiative, the Human Trafficking and the State Courts Collaborative (HTC), aims to increase understanding and awareness about the challenges state courts face in dealing with cases involving trafficking victims and their families.  The HTC’s activities will include developing resources and technical assistance for some courts, to assist in cases involving human trafficking.

Legal Momentum was invited to join because of the relationship of our Intimate Partner Sexual Abuse (IPSA) web course to the issue of human trafficking.  Domestic violence organizations and prosecutors’ offices are now seeing more intersection between domestic violence, intimate partner sexual abuse, and trafficking.  These cases often involve a victim gradually disclosing the escalating violence done to her, from battering to trafficking--as seen in this case from the Miami District Attorney's office that resulted in a full-scale state court case for trafficking earlier this year.

Read more about the HTC here:


***News Stories from Around the Nation***

Shocking House Vote Cuts Food Stamp Program from Agriculture Bill

In a stunning vote last week, House Republicans managed to pass an agriculture bill that completely left out the Supplemental Nutritional Assistance Program (SNAP), what used to be known as the food stamp program.  Food stamp assistance has been part of the agriculture bill for decades--a cornerstone of the social safety net helping needy Americans.  As Legal Momentum has repeatedly pointed out, SNAP now aids many more families and children than the Temporary Assistance for Needy Families program (TANF).  However, SNAP has been consistently under attack.  A harsh budget plan the House recently passed would leave already-impoverished families currently enrolled in SNAP with far less to spend on food.  While the House can still draft separate SNAP legislation, this latest procedure seems to be part of an ongoing attempt to drastically slash the SNAP program.

The Senate has passed its own version of the agriculture bill, and some senators are strongly pushing for the House to go to conference with the Senate on the bill before the current farm bill extension expires.

Legal Momentum is very disappointed at this maneuver by the House. At a time when the U.S. is still struggling to recover from a recession, and when an Academic Pediatric Association task force recently described childhood poverty as the "most important problem facing children in the United States today,” cutting out the SNAP program is especially callous.

More on the House vote can be read at the New York Times and in Paul Krugman’s op ed.  

On a more positive note, Legal Momentum is extremely gratified to be listed in The Nation and on Bill Moyer’s website as an excellent source of information on poverty.

Supreme Court Cases at End of Term – The Good, The Bad, and The Ugly

At the end of its term this summer, the U.S. Supreme Court has handed down several decisions pertaining to civil rights.

In two decisions, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar ,the Court issued opinions that made it more difficult for plaintiffs to prevail in employment discrimination cases under Title VII.

In Vance, in a sharply divided 5-4 decision, the Court narrowed the definition of a “supervisor.”  This is meaningful because, under Title VII, an employer is vicariously responsible when an employee is subjected to employment discrimination by a supervisor, whereas harassment by a non-supervisor is assessed under a less-rigorous standard.  Incredibly, the Court rejected the U.S. Equal Employment Opportunity Commission’s guidance on what constitutes a supervisor for this purpose, saying supervisors must have the power to make tangible employment decisions such as hiring and firing, not just day-to-day supervision such as assigning job duties.

In the Nassar case, the Court reversed the accepted standard used in federal courts to prove retaliation in a Title VII race or gender harassment suit.  Now, a plaintiff must show that the retaliation was the “but-for” cause of the adverse action.  Previously under Title VII, an employee had to show only that retaliation was one motivating reason for an employer’s action. Showing that an employer would not have acted adversely against a plaintiff but for a retaliatory motive is a high hurdle and will likely result in fewer successful retaliation suits. 

In an affirmative action case challenging the consideration of race in college admissions in  which Legal Momentum joined an amicus brief supporting the challenged policy, Fisher v. University of Texas, the Supreme Court sent the case back to the lower courts for further consideration without deciding the merits of the challenge.

The Court rendered a disturbing decision regarding minority voting rights, Shelby County v. Holder.   The Voting Rights Act, a law intended to protect minority voting rights, contains a provision specifying the state and local governments with a history of racial discrimination which must obtain federal approval before making changes in their voting procedures.  The Court invalidated this provision on the ground that it was based on outdated data. The decision may lead to a reduction in minority voting and minority office holding.

The Supreme Court issued two important decisions on marriage equality for same sex couples.  Legal Momentum joined amicus briefs in both cases in support of same sex marriage equality.  In U.S. v. Windsor, the Court held unconstitutional the federal Defense of Marriage Act to the extent that it refused federal recognition of same-sex marriages valid under state law.  In Hollingsworth v. Perry, the Court refused to consider the merits of an appeal from a lower court decision invalidating California’s refusal to recognize same-sex marriage.  The Court did not decide whether states must recognize same-sex marriage.


** Special congratulations to Legal Momentum board member Laura Wilkinson, on her appointment to the Cornell University board of trustees.   Ms. Wilkinson currently is an antitrust partner in the Washington, D.C., office of Weil, Gotshal and Manges, where her work focuses on mergers and acquisitions.  In addition to her being on the board of trustees, Ms. Wilkinson is a member of the Cornell University Council, President’s Council of Cornell Women, Cornell Black Alumni Association and Cornell Law School Advisory Council. **