Pregnancy Discrimination: The Supreme Court Speaks

On March 25, 2015, the Supreme Court of the United States answered the following question: Does the Pregnancy Discrimination Act of 1978 require an employer that offers accommodations to non-pregnant employees with work limitations to provide accommodations to pregnant employees who are “similar in their ability or inability to work,” and if so, under what circumstances?  In Young v. United Parcel Service, Inc, the High Court considered the plight of Peggy Young, a part-time driver for UPS. The company required that all driv­ers be able to lift up to 70 pounds (and up to 150 pounds with assistance). Young became pregnant and because of several previous miscarriages, her physician advised her not to lift more than 20 pounds during the first 20 weeks of pregnancy or more than 10 pounds thereafter. UPS did not allow Young to work at all during her pregnancy, which caused her to lose substantial pay and ultimately, her medical coverage.

In her federal lawsuit, Young claimed that UPS had accommodated other drivers who were “similar in their . . . inability to work” and, in addition, that her co-workers were willing to help her with heavy packages. UPS responded that the “other persons” whom it had accommodated were employees who had become disabled on the job, lost their Department of Transportation certifications, or suffered from a disability covered by the Americans with Disabilities Act of 1990. Since Young did not fall within any of those categories, UPS maintained, the company had not discriminated against her based upon pregnancy but rather, had treated her just as it had all “other” relevant “persons.”

The lower court dismissed Young’s case pursuant to UPS’s motion (i.e., formal request) and an appeals court affirmed.  Both concluded that the employees to whom Young had compared herself were too different to qualify as “similarly situated comparator[s].” Writing for a 6-3 majority, Supreme Court Associate Justice Breyer noted that the Act requires employers to “treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or in­ability to work.” The query, he stated, is how the above-quoted provision applies in the context of an em­ployer’s policy that accommodates many, but not all, workers with non pregnancy-related disabilities. In the High Court’s view, the Act requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to work.

The Young Decision stands for the proposition that there may be some situations in which employers can accommodate some groups of employees without also accommodating pregnant employees.  But the Court articulated a high legal burden that employers will have to meet in order to justify their policies or practices that provide accommodations to some categories of employees, but not to pregnant women.

Equitable is What Equitable Does (or Doesn’t)

Upon divorce in New York, spouses are entitled to “equitable distribution” (i.e., a fair division) of the marital assets.  But consider the following scenario: one spouse files for divorce and the other does not respond (i.e., fails to answer the Complaint). The court issues a default judgment in favor of the spouse who filed but makes no decision regarding the allocation of the couple’s belongings and most importantly, the house.  Twenty years later, the defaulting spouse seeks equitable distribution, including a piece of her former spouse’s earnings as a medical doctor. In a July 15, 2014 Order, a Nassau County Supreme Court Judge held that the doctrine of “res judicata” can operate to bar such relief.  Res judicata prevents a party who has been given a full and fair opportunity to litigate a claim from re-litigating that claim after it has been decided; the concept applies when the party has actually raised or could have raised the claim before.

In E.K. v. T.K., Supreme Court, Nassau County, Index No.: 012302 (July 2014), plaintiff, a medical doctor, had obtained a Judgment of Divorce on default in 1990 and after Inquest, he secured exclusive possession and occupancy of the marital home and sole custody of the parties’ four children. But while it awarded defendant two years of maintenance and liberal visitation, the Judgment did not provide for equitable distribution of the marital property (which included a jointly-owned home in Old Westbury), and the transcript of the Inquest was silent on the issue.   Plaintiff raised the couple’s four children in and generally maintained the marital home (encumbering it to finance their professional educations), and paid a high-interest mortgage, the taxes, and all other associated expenses for the 20+ years. No longer able to afford the financial burden by 2011, plaintiff asked his former spouse to deed the house to him for purposes of sale and division of the proceeds. Defendant refused, ostensibly desiring to keep this “piece of history” in the “family.” Plaintiff filed a partition action in Nassau County, and defendant cross-petitioned for equitable distribution of all marital assets, one of which, she claimed, was her former husband’s medical license.

Justice Margaret C. Reilly acknowledged that a court must determine the parties’ respective rights even if one is in default.  But, Her Honor noted, “litigants are not freed from their obligation to litigate all issues affecting the marriage.” Rather, “res judicata…requires that ‘once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.  As a result, plaintiff was able to sell the house and divide the proceeds with his former spouse.

Quit Your (Cheap) Wining

There are a number of ways to get arsenic poisoning, the most common of which is from drinking water.  One of the arguments against hydraulic fracturing (“fracking”), in fact, is that this method of mining may mobilize arsenic in the groundwater.  In addition, harmful exposure can occur occupationally (smelting of zinc and copper ores) and from food products (rice can accumulate arsenic from the soil rather easily) and feed has been found to contain levels detectable in commercially-raised chickens.  Now add wine as another potential source.  Cheap wine.

In a recently-filed lawsuit naming 28 wineries, four individuals complain that some 83 low-priced (i.e., $5-$10 per bottle) California wines contain dangerously high levels of arsenic.  The litigation claims that testing by three independent laboratories on 1,306 bottles (representing 75% of the U.S. market), found that in some cases arsenic levels were 500% higher than what is considered safe.  It appears that the high levels may have been due to the vinting process and were not naturally-occurring.  A few of the brands named in the lawsuit are Almaden, Beringer, Fetzer, Franzia, Korbel, Sutter Homes, and kosher brand, Mogen David.

The Wine Institute (which represents some 1,000 wine producers), called the suit “irresponsible,” and sees no reason to recall any wines.  An Institute spokesperson stated that “all wines being sold in the U.S. marketplace safe” and that California vintages have never come close to exceeding acceptable levels.

There seems to be no question that wines costing over $20 are safe for consumption.  So with the Passover and Easter holidays approaching, don’t be cheap when it comes to the fruit of the vine.

Time to Round Up “Roundup”?

The International Agency for Research on Cancer (a research arm of the World Health Organization), reported this past week that glyphosate, the main ingredient in Monsanto’s Roundup, is a “probable carcinogen.”  Specifically, the finding links the product to non-Hodgkin’s lymphoma and lung cancer.  And while it was not the first time that that connection has been made, it is “one of the strongest indictments of glyphosate”, says the international director for the Organic Consumers Association.  Monsanto responded with a written statement that “all labeled uses of glyphosate are safe for human health and supported by one of the most extensive worldwide human health databases ever compiled on an agricultural product.”  The manufacturer issued an “urgent request for the WHO to meet with the global glyphosate taskforces and other regulatory agencies to account for the scientific studies used in their analysis and, equally as important, to account for those scientific studies that were disregarded.”

The U.S. Department of Agriculture does not test food for glyphosate residues.  While the EPA raised the allowable  limits of glyphosate residues on fruits and vegetables in 2013, the agency is scheduled to review the chemical this year.  Most genetically modified crops, such as corn and soybeans, are modified to survive applications of Roundup, the most widely used herbicide in the world.  “The widespread adoption of genetically modified agricultural products has led to an explosion in the use of glyphosate,” says Ken Cook, president of the Environmental Group, which promotes labeling of all such products.  “Consumers have the right to know how their food is grown,” says Cook, “and whether their food dollars are driving up the use of a probable carcinogen.”