The next time a woman is forced to choose between her job and her pregnancy, she may not even make it into court.

By Michelle D. Schwartz
AFJ Director of Justice Programs

SCOTUS Rally Sign #2_edited-1There are a number of things that are incredible about Young v. UPS, the Pregnancy Discrimination Act case set to be argued in the Supreme Court today.

It’s incredible that UPS refused to make a reasonable accommodation for driver Peggy Young after she became pregnant and her doctor advised her against lifting packages heavier than 20 pounds.

It’s incredible that UPS then forced Young to take unpaid leave for the remainder of her pregnancy, causing her to lose both her wages and her health insurance at the time she needed them most.

It’s incredible that UPS refused an accommodation for Young even as it made such accommodations for workers injured on the job, workers with disabilities falling under the Americans with Disabilities Act, and even drivers who lost their commercial driver’s licenses because of DUI convictions.

It’s incredible that, in 2014, Peggy Young was forced to choose between a healthy pregnancy and her job.

And it is incredible that Peggy Young’s case against UPS made it into court at all.

Today, more and more employees are compelled to accept forced arbitration clauses in their employment agreements, employee handbooks—even job applications.  These clauses say that if a dispute should arise between the employee and the company they work for, the employee can’t take that dispute before an impartial jury or judge.  Instead, they have to take their case before an arbitrator picked by the company, losing their fundamental right to go to court.

These arbitration clauses apply even in cases of employment discrimination that allegedly violate such hallowed laws as the Age Discrimination in Employment Act, the Equal Pay Act, the Civil Rights Act of 1964, and, yes, the Pregnancy Discrimination Act.

In fact, over the summer we learned that another company that’s no stranger to the Supreme Court—Hobby Lobby—has a forced arbitration clause.  That clause kept an  employee, Felicia Allen, out of court after she was fired for trying to take unpaid leave during her pregnancy.  Hobby Lobby even tried to prevent Allen from receiving unemployment compensation.  As we wrote at that time:

When Allen tried to sue Hobby Lobby for discriminating against her based on her pregnancy, she learned that Hobby Lobby had a forced arbitration clause.  Allen’s lawyers refused to take her case after they learned of the forced arbitration clause and she—like so many other American consumers and employees—was left out in the cold.  Hobby Lobby could take its case all the way to the Supreme Court, but its employee couldn’t even get through the courthouse doors.

Nicole Mitchell

Nicole Mitchell

In our short documentary Lost in the Fine Print, we tell the story of Nicole Mitchell, another woman forced into arbitration after trying to sue her employer for discriminating against her—this time based on her status as a Hurricane Hunter in the Air Force Reserve.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that prohibits employers from firing, demoting, or failing to hire military reservists because of their reserve duty.  But, as Mitchell found, USERRA and other laws protecting against employment discrimination may be worth little more than the paper they’re printed  on when violations are forced into arbitration.

Employees fare far worse in arbitration than they do in the courtroom.  Researchers at Cornell found that outcomes for employees forced into arbitration are “starkly inferior” to those in litigation.

And the harms of forced arbitration extend beyond the outcomes in individual cases.  Because arbitration generally occurs in secret, systemic abuses are never exposed and remedied.  So even on the rare occasion that an employee wins in arbitration, there is little incentive for the employer to protect employee rights moving forward.

Take the case of UPS.

In October, with Peggy Young’s case already pending before the Supreme Court, the company announced that, beginning on January 1, 2015, it would offer light duty assignments for pregnant workers.  That offer comes too late for Peggy Young, but it is unlikely that it would have come at all if not for the public attention the Supreme Court case has brought.  If Peggy Young had been forced into arbitration as Felicia Allen and Nicole Mitchell were, , that policy change likely never would have come.

lost_fine_print_675x390Laws like the Pregnancy Discrimination Act vindicate critically important societal goals.  Their  proper interpretation should be decided in the full sunlight of the courtroom—not in a secret corporate tribunal.

Today, we stand with Peggy Young, and we hope that the Supreme Court will reverse its recent trend of hostility to working women.  In the long term, though, we know that protecting Peggy Young and all who face discrimination at work will require reversing the Supreme Court’s decisions upholding forced arbitration under virtually any circumstances.

Everyone who cares about fair, discrimination-free workplaces should join us in our campaign to do just that.

 Hear Michelle Schwartz discuss these issues on WBAI’s Julianna Forlano Show