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The Civil Rights Vicious Circle

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This is a terrific story about pregnant employees being forced to do heavy lifting until they miscarry, in the midst of working conditions that are horrible for everyone:

If you are a Verizon customer on the East Coast, odds are good that your cellphone or tablet arrived by way of a beige, windowless warehouse near Tennessee’s border with Mississippi.

Inside, hundreds of workers, many of them women, lift and drag boxes weighing up to 45 pounds, filled with iPhones and other gadgets. There is no air-conditioning on the floor of the warehouse, which is owned and operated by a contractor. Temperatures there can rise past 100 degrees. Workers often faint, according to interviews with 20 current and former employees.

One evening in January 2014, after eight hours of lifting, Erica Hayes ran to the bathroom. Blood drenched her jeans.

She was 23 and in the second trimester of her first pregnancy. She had spent much of the week hoisting the warehouse’s largest boxes from one conveyor belt to the next. Ever since she learned she was pregnant, she had been begging her supervisor to let her work with lighter boxes, she said in an interview. She said her boss repeatedly said no.

She fainted on her way out of the bathroom that day. The baby growing inside of her, the one she had secretly hoped was a girl, was gone.

“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.

Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.

The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters.

Pregnancy discrimination is widespread in corporate America. Some employers deny expecting mothers promotions or pay raises; others fire them before they can take maternity leave. But for women who work in physically demanding jobs, pregnancy discrimination often can come with even higher stakes.

A big problem here is that the Pregnancy Discrimination Act was, no pun intended, a really poorly conceived piece of legislation. Not only has it been largely ineffective in protecting pregnant employees, in many cases it creates perverse incentives:

But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve.

The Pregnancy Discrimination Act is the only federal law aimed at protecting expecting mothers at work. It is four paragraphs long and 40 years old. It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.”

That means that companies that do not give anyone a break have no obligation to do so for pregnant women. Employees say that is how the warehouse’s current owner, XPO Logistics, operates.

For example, last October, a 58-year-old woman died of cardiac arrest on the warehouse floor after complaining to colleagues that she felt sick, according to a police report and current and former XPO employees. In Facebook posts at the time and in recent interviews, employees said supervisors told them to keep working as the woman lay dead.

If companies “treat their nonpregnant employees terribly, they have every right to treat their pregnant employees terribly as well,” said Representative Jerrold Nadler, Democrat of New York, who has pushed for stronger federal protections for expecting mothers.

In every congressional session since 2012, a group of lawmakers has introduced a bill that would do for pregnant women what the Americans With Disabilities Act does for disabled people: require employers to accommodate those whose health depends on it. The legislation has never had a hearing.

The Democratic Party is a lot better than it was when the PDA was passed, but there was a lot on the agenda in the less than a year in which they most recently held a filibuster-proof Senate majority and House majority, and as soon as Republicans control any veto point the problem becomes that the Republican Party believes that life begins at conception and ends at birth, only if they can’t force women to do something they’re willing to waive the former “principle.”

Another part of the story here is that the Burger Court is a lot more conservative than its reputation — the Fortas filibuster is a hugely underdiscussed moment in American history — and the PDA was a response to the Supreme Court farcically holding in 1976 that discrimination against pregnant employees was not a form of gender discrimination under the Civil Rights Act. Congress formally responded but not very effectively. I’ll have more on this soon, as Michael McCann and George Lovell have a really important new book coming out about the history of the Filipino cannery workers who were the victims of the infamous Ward’s Cove case in 1989, but something similar happened with the 1991 Civil Rights Act, which if often described as overriding a string of early Rehnquist Court decisions hollowing out the employment protections of the Civil Rights Act but really didn’t. It’s the vicious cycle when Republicans control the courts: a progressive Congress passes robust civil legislation, the Court effectively guts it, and a more conservative Congress either passes legislation more concerned with appearing to address the problem than actually addressing it, or just does nothing because it supports the Court (cf. Shelby County and Perez v. Abbott.) The Senate elections of 2014 and elections of 2016 mean that the next Democratic Congress will face this kind of problem on numerous issues even if it passes good legislation.

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