Coleman v. Court of Appeals of Maryland: A Warning to Women

@RHRealityCheck

Last week the U.S. Supreme Court held that states cannot be sued for denying workers sick leave. An employee of the Maryland state courts, Daniel Coleman, had sued for monetary damages after he was fired for requesting time off to take care of his health.

States generally cannot be sued for damages, but one exception is in cases that involve unconstitutional treatment, including discrimination. While the case decided on Tuesday therefore was framed in terms of state sovereignty, the Court’s very understanding of discrimination was at stake.

The majority opinion handing down last Tuesday should be a warning to women: the Supreme Court most definitely does not have our backs.

Here’s how.

US federal law protects the right to sick and family leave (unpaid leave either to take care of yourself or of a family member such as a spouse, an elderly parent or a newborn child) through the Family and Medical Leave Act (FMLA).

In 2003, in the context of family leave-related discrimination against a state employee of Nevada, William Hibbs, the Supreme Court detailed the congressional intention behind the FMLA as predominantly a desire to overcome gender-based discrimination. Indeed, the 2003 ruling was very clear: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.”

At the time, the Court held that employees of the state of Nevada were entitled to seek monetary damages for infringements of the family leave part of the FMLA. The Court felt that absent such due process guarantee, government officials would somehow lose their constitutional right not to be discriminated against on the basis of sex. The final opinion was narrowly focused on the family leave provisions of the law because those were the provisions at stake in the case at hand, but prior to last week’s case, it seemed reasonable to apply the court’s conclusions in the 2003 case to the FMLA as a whole.

Last week’s ruling limits that precedent by concluding that the U.S. Congress didn’t have gender-based discrimination in mind when it enacted the sick leave protections of the FMLA.

The court’s analysis is based on technical considerations of what evidence Congress had before it when it enacted the FMLA—“Congress made no findings, and received no specific testimony” that women might face discrimination for taking more sick leave than men.

But the result is a decision that essentially says that sick leave—taking care of oneself—is fundamentally different from family leave—taking care of someone else—in that it does not depend on gender differences or stereotypes. This is an erroneous conclusion.

Had the Court argued that men and women take equal amounts of long-term sick leave—which is true—the majority opinion in last week’s Coleman case would at least only have been a selective reading of the facts, not a retrograde interpretation of discrimination laws. However, the Court argued that even though the denial of sick leave might have a disproportionate impact on women, denying anyone the protection of such leave still does not constitute discrimination. Such a conclusion flies in the face of international human rights law and even US legal definitions of disparate impact as discrimination.

It is ironic that this sentence was handed down the same week new research on health insurance was published, showing that women still pay more than men for the same health plan. Private insurers justify the price differential by reference to the fact that, all other things being equal, women need more medical care than men, notably due to our ability to bear children and recommended routine health visits related to our reproductive organs.

Of course, PAP smears and prenatal check-ups do not automatically translate into time off or sick leave, though as most of us know, they generally do. The Court majority opinion glosses over this fact by noting that most states have other protections that allow women time off to take care of their health. Again the Court majority inexplicably insists that the denial of a right that disproportionately affects women qua women is not discrimination, all the while reaffirming the fact that the differential impact is real.

None of the three female justices of the Supreme Court held with the majority. Justices Ginsberg, Kagan, and Sotomayor were joined by Justice Breyer to resoundingly disagree with the majority opinion in Tuesday’s ruling in the Coleman case. These four Justices rightly noted that “[i]t would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby."

Indeed, it makes no sense as a matter of effective policy or legitimate legal analysis.

It does, however, make the same warped sense as the many recent state initiatives to simultaneously curb access to contraception, abortion, and child benefits. The message last week’s majority opinion for the Supreme Court seems to send is that women matter only as incubators and care-givers and not as equal citizens in a modern democracy.

A Timely, and Perfect, Mother's Day Gift

(Originally posted on the Huffington Post)

Leading up to Mother's Day, the commercial world would have us believe that flowers and jewelry are the best gift a mother could receive. Yet most mothers I know (including myself) don't need roses or bracelets.

We need time.

Time to be with our children. Time to care for them when they are sick, or just take them to the doctor for routine check-ups. Time to participate in our children's education as active learning partners, and to be constructive members of Parent Teacher Associations.

Unfortunately, the United States provides few legal protections to enable women--or men--to have this much-needed time with our children. There is no law to guarantee paid sick leave or vacation, and as a result half of U.S. workers must pay for their own sick days, and one out of five lose pay if they take any vacation time. There is no law to require paid maternity leave, and there are no allowances for time off to breast-feed. Federal law provides eligible workers with 12 weeks of unpaid extended sick leave to be used as parental leave, but about 40 percent of workers don't even qualify for that.

In fact, American lawmakers are loathe even to contemplate paid maternity benefits. In 2002 the Senate Foreign Relations Committee voted on whether the United States should ratify the international women's rights treaty (formally called the Convention on the Elimination of All Forms of Discrimination against Women, the CEDAW). The alternative was to remain in the company of Somalia, Iran, Qatar and a few others as one of only 8 countries in the world that refuse to accept its provisions.

At that time the Senate Committee concluded that, yes, the United States should ratify, but only if we can opt out of the commitment to paid maternity leave or other maternity related benefits. An overcrowded fall Senate schedule prevented the treaty
from being considered by the full Senate, and the United States still has not ratified the treaty.

This contrasts sharply with other high-income countries--such as Canada, Denmark, Australia, and Spain, all parties to the treaty--where the law provides for paid parental leave without exception, often with the right to return to work gradually, on a part-time basis. Many high-income countries entitle parents to tailor parental leave to their needs, with options such as taking the leave in one block with a paid allowance, or working part-time over a longer period; reducing the working day during a set time period, or extending the paid leave period into unpaid leave, with job guarantees.

Not surprisingly, parents in other high-income countries tend to spend more time with their children. The percentage of families with two working parents who work 80 hours a week or more is twice as high in the United States as in the closest comparable European country.

What is perhaps less well-known is that many lower income countries have much stronger legal protections for paid parental leave and related issues than the United States. Most Latin American countries require employers to allow breastfeeding mothers the time and physical space to breastfeed for at least a year after childbirth. And paid vacation and sick leave are protected by law in most of the region.

Of course, legal provisions don't necessarily translate into effective protection. Many women in Latin America can't take advantage of their legal rights because they work in undocumented jobs or because they have to work several full-time jobs to make ends meet.

It is, however, noticeable that all the talk about family values in the United States doesn't seem to translate into actual legal protection, and that lawmakers in other countries--rich and poor--seem to have a much better grasp of what it really takes to be a good parent: time and support.

The good news is that our Senators soon get another chance to show they get it. The Obama administration has sent the women's rights treaty for review by various government agencies, and the Senate is likely to consider approving it by fall. When they do, they may look back at the 2002 transcripts and feel tempted to carve out similar exceptions on paid maternity leave and benefits. But when that time comes, the Senate Foreign Relations Committee members should think about Mother's Day and ask themselves: what do mothers need?

Here's a hint: it's not flowers. It's time.

US Women Also Have Human Rights Issues

(Originally posted on the Huffington Post)

On October 10, 2003, after years of abuse at the hands of her former partner, a 35-year-old woman in Hungary decided to seek intervention in a way American women can currently only wish for. The woman, identified as A.T., filed a petition with a United Nations body on women's rights. The body promptly asked her government to prevent further harm while they considered her case. Subsequently, it directed Hungary both to take measures to guarantee her physical and mental health and to ensure protection and justice for all the nation's victims of domestic violence.

The petition, was filed with the UN Committee on the Elimination of Discrimination against Women, known as CEDAW. It diligently analyzed Hungarian law and court proceedings, and concluded that available remedies both in A.T.'s case and in general were too weak, too slow, and too begrudgingly implemented.

Women living in the United States cannot appeal to CEDAW, though, when their rights are inadequately protected by US law. Why? Because the United States still, almost 30 years after it came into force, has not agreed to be bound by the provisions of the Convention on the Elimination of All Forms of Discrimination against Women, which created the committee.

The Convention is a global treatise on women's equality. It reflects the consensus of the international community on what specific protections and actions states must take to ensure equality between men and women. The treaty has been ratified by 185 UN Member States, placing the United States in the dubious company of Iran, Nauru, Palau, Qatar, Somalia, Sudan, and Tonga as the last states that have not ratified it. The convention was signed by President Carter in July 1980, but was not considered by the Senate Foreign Relations Committee till 1990. It was favorably voted out of the Foreign Relations Committee twice: once in 1994 and once in 2002. The convention has been awaiting comments from the Justice Department ever since. Senate rules require the treaty to be taken up in Committee again before it goes to full Senate vote.

Opponents of ratification cite a general opposition to international treaties as infringing upon national sovereignty. But they also contend that the convention includes provisions that are offensive to "American" culture. They contend that ratification would force the United States government to provide abortion on demand, to intrude in family situations and to legalize sex work.

The first argument is sometimes used to oppose the very concept of international human rights. Such arguments maintain that every nation is free to pursue whatever policies it wants, even slavery and apartheid. Such arguments are hard to defend in the context of modern international relations. Perhaps more to the point, the very act of ratifying a treaty, and thereby agreeing to uphold universally recognized standards, is a classic exercise of national sovereignty - a declaration that a nation believes in and will uphold these standards.
With regard to the clash between US culture and the specific provisions of the Convention, the opposition is also wrong:

Abortion. The CEDAW Convention protects a woman's equal right to life and health, and to decide on the number and spacing of her children. The full protection of these rights will in some cases require access to abortion services, and will also require the state to provide such services to some. The United States is already bound by international human rights commitments in this regard through its ratification of the International Covenant on Civil and Political Rights, and through its membership of the Organization of American States. The ratification of the CEDAW Convention would not substantively alter existing obligations.
Intrusion of privacy. The CEDAW Convention requires the nations to end practices based on the idea of the inferiority of either of the sexes. This provision is key, and indeed Human Rights Watch research shows that even the best policies are not effective if they are undermined by existing prejudices. Moreover, US federal law on violence against women, education, and other issues, already includes the need for government oversight of what at some point was seen as private matters.

Sex work. The CEDAW Convention contains a provision requiring states to take all measures "to suppress exploitation of prostitution of women." Human Rights Watch's research on this issue indicates that the criminalization of women involved in sex work tends to expose them to specific types of exploitation--including extortion by police. Various countries have fulfilled this particular CEDAW obligation in many ways, including decriminalizing sex work while clamping down on trafficking, providing health care options for sex workers and investigating police abuse.

Back in Hungary, since A.T.'s case was filed in 2003, the government has both held awareness-raising sessions for police officers about domestic violence and developed a more stringent mandate for police to deal with domestic violence. Moreover, the CEDAW Committee's analysis and recommendations have provided much needed fuel to domestic groups seeking to reform the law. Women in the United States should be able to benefit from this kind of support too. The Obama administration and the US Senate should make ratification of the Convention on the Elimination of All Forms of Discrimination against Women a priority.