Tracking the latest developments in the fight for a fair America
With a growing chorus calling for Senate Republicans to drop their obstruction of President Obama’s judicial and executive nominees, Judiciary Chairman Chuck Grassley is finding it hard to explain away all the delays.
Yesterday, Grassley was asked about attorney general nominee Loretta Lynch, who has been pending for more than five months, longer than any other attorney general nominee in over 30 years. Straining credulity, Grassley claimed that November and December should not be counted toward Lynch’s overall wait time, because Democrats controlled the Senate back then, and Republicans did not take control until January.
That claim is absurd on its own—White House Press Secretary Josh Earnest called it “an astounding display of duplicity”—but it’s even worse considering what Grassley has said about judges. As we’ve noted before, although the Senate has in fact confirmed only one judge this year, Grassley claims that 11 more judges, reported out of committee and confirmed during the lame duck session last congress, should be counted toward Republican totals for this congress.
As reported by Reuters:
A spokeswoman for Senator Charles Grassley, the new chairman of the Senate Judiciary Committee, said that by the senator’s count, Obama already had 11 nominees confirmed in the new Congress because Democrats pushed them through during a “lame duck” session last [year], against tradition.
In other words, Grassley is perfectly happy to take credit for confirmations that happened last year, just not the delay. He can’t have it both ways.
It’s an inescapable fact that judicial vacancies have worsened under Republican Senate leadership, but that doesn’t mean the GOP accepts responsibility. After the Senate finally confirmed its first judge of the year yesterday, Senator John Cornyn, R-Texas, was asked about the rising number of vacancies—an astonishing 10 of which are in Texas—since Republicans took over the Senate.
He blamed the president.
“We can’t nominate the judges,” he told the Dallas Morning News. “The president has to nominate the judges. The White House doesn’t seem to be making this a priority. It’s not really a partisan difference.”
This remarkable claim ignores both the Senate’s failure to confirm existing nominees, and the essential role that home-state senators play in nominating judges for vacancies in their own states.
Let’s look at the facts.
It took more than three months for the Republican-controlled Senate to confirm its first judge of 2015. Southern District of Texas Judge Al Bennett, who had been recommended to the president by Cornyn and fellow Texas Republican Ted Cruz, was unanimously confirmed yesterday after waiting more than six weeks for a floor vote. By this time in 2007, the penultimate year of the George W. Bush administration, Senate Democrats had confirmed 15 judges.
The delay to confirm Bennett is just one example of Senate Republicans’ do-nothing approach to judicial nominations. There are still three district court nominees pending on the Senate floor, including two more nominated to critical vacancies in Texas’s overburdened Southern District, and one to the District of Utah. All three have the support of their Republican home-state senators. Yet instead of pushing Majority Leader Mitch McConnell, R-Ky., to schedule votes for Texas judges, Cornyn—who is the Senate’s Majority Whip, not merely a rank-and-file member—dismisses the vacancy problem with a partisan attack on the president.
In the Judiciary Committee, Chairman Chuck Grassley, R-Iowa, has held only two confirmation hearings in 2015, passing over five nominees who have been waiting for a hearing since November 2014.
While the Senate sits on its hands, judicial vacancies have jumped from 44 to 54, and “judicial
emergencies,” the official designation for courts with the most dire need for judges, have nearly doubled, increasing from 12 to 23. These numbers could be reduced by confirmations, but the Senate hasn’t acted.
Republicans have also failed to recommend nominees for vacancies in their home states. As Cornyn well knows, home-state senators typically take the lead in selecting nominees, particularly for district court vacancies, and the president will not nominate without the senators’ support. Cornyn’s explanation helpfully ignores this practice, but it is no accident that 89 percent (32 of 36) of current judicial vacancies without a nominee are in states with at least one Republican senator.
What’s more, the state in most desperate need of judicial nominees, by far, is Texas. There are nine district court vacancies in Texas (eight are current and another is coming next month), and the White House is waiting for Cornyn and Cruz to submit recommendations for seven of them. Worse, five of these vacancies are judicial emergencies, meaning that Texas’s federal courts are facing a crushing caseload they cannot handle without more judges.
Sadly, this isn’t the first time that Cornyn has deflected blame on Texas vacancies. Back in May 2013, during a Judiciary Committee hearing, Cornyn said that “the president has to nominate someone before the Senate can act on it. It’s as simple as that.” In response, Senators Sheldon Whitehouse, D-RI, and Patrick Leahy, D-VT, explained why the president cannot unilaterally nominate judges in Texas. We do so again here, but we’d rather Cornyn, and the full Senate, simply do the work of confirming judges so that judges can do the work of providing justice for the American people.
Last week, in a 6-3 ruling authored by Justice Stephen Breyer, the Supreme Court in Young v. UPS gave Peggy Young and lots of pregnant workers like her a victory. Peggy worked as a driver at UPS. When she got pregnant, she informed UPS that her doctor had advised her to avoid lifting more than 20 pounds during her pregnancy. However, Peggy was pushed onto unpaid leave because UPS refused to accommodate her, even though it accommodated other groups of workers, including those who required accommodation under the Americans with Disabilities Act, those who lost their Department of Transportation certification, and those who needed lifting restrictions due to an on-the-job injury.
Peggy sued UPS for violating the Pregnancy Discrimination Act (PDA)—which states that women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment purposes as workers not so affected, but who are similar in their ability or inability to work. She argued that UPS cannot accommodate just some workers and not pregnant workers, when pregnant workers have similar restrictions to those who are accommodated. UPS argued that because there were also various non-pregnant workers they did not accommodate, and because they did not explicitly single out pregnancy for lesser treatment, they did not violate the PDA. The Supreme Court rejected UPS’s argument, and ruled that a jury could find an employer violated the PDA based on the employer’s accommodation of a large percentage of non-pregnant workers but refusal to accommodate pregnant women. Accordingly, the Supreme Court vacated the decision of the Fourth Circuit, which had ruled against Peggy, and sent it back to the court for reexamination.
While, for pregnant workers, this is an important victory, employers, employees, and courts will have to answer a lot of questions in figuring out when a pregnant worker is entitled to accommodations under the standard set out in Young. What constitutes a large percentage of workers? Must the employer already be accommodating a large percentage of non-pregnant workers with physical limitations? Is the employer obligated to accommodate pregnant workers where it has a policy that could potentially accommodate a large percentage of non-pregnant workers with physical limitations? What other kinds of evidence may prove a discriminatory refusal to accommodate? The Supreme Court allowed Peggy’s case to go forward, but for many other pregnant workers and their employers, the path forward may not be quite so clear.
That is exactly why we need the Pregnant Workers Fairness Act (PWFA)—a bill introduced in the last two congresses and soon to be reintroduced. The Supreme Court took us a good part of the way towards ensuring clarity and justice for workers who are affected by pregnancy, childbirth, or related medical conditions, and the PWFA will take us the rest of the way. Under the PWFA, an employer would be required to provide reasonable accommodations for limitations arising out of pregnancy, childbirth, or related medical conditions if the accommodations did not impose an undue hardship on the employer. It’s that simple. The PWFA incorporates the accommodation language from the Americans with Disabilities Act—a law is already familiar to employers—to protect pregnant women with physical limitations from being pushed onto unpaid leave, transferred, or fired because they are pregnant. Where the Supreme Court’s decision in Young might allow some employers to claim they are confused about their obligations, the PWFA makes them absolutely clear.
Indeed, providing accommodations to pregnant workers who need them would provide real benefits to employers as well as workers. By providing reasonable accommodations—many of which come at a nominal cost, such as allowing an employee to carry a water bottle to stay hydrated, or to sit on a stool during a long shift—employers get to retain valuable employees, save money on recruitment and training, and oversee a more productive workforce.
In fact, the PWFA is such a commonsense solution that so far 12 states and several municipalities have passed their own versions of the law. Many of these laws have been passed unanimously and with broad bipartisan support. And more states are working this year to pass pregnancy accommodations laws, such as Nebraska, North Dakota, and Massachusetts. If the states can do it, certainly Congress can pull together on this bipartisan issue to support women, families, business, and the economy.
The Supreme Court’s decision in Young affirmed that employers cannot refuse to provide pregnant workers with rights to accommodation that most non-pregnant workers enjoy. Congress must strengthen and reaffirm that decision by passing the PWFA now. Accommodating pregnant workers has not been a partisan issue in the states, and it shouldn’t be a partisan issue in Congress—and no woman should have to choose between the health of her pregnancy and her paycheck.
A recent article by Orange County Register Watchdog Columnist Teri Sforza explains some of the harm done to consumers and employees from forced arbitration, drawing in part on AFJ’s short documentary Lost in the Fine Print. The film details the story of Alan Carlson, the owner of Italian Colors restaurant in Oakland, California, who tried to challenge American Express’s high “swipe fees” in court. A forced arbitration clause buried in the fine print of American Express’s terms of service kept Alan from being able to vindicate his rights.
Marina Hoffmann Norville, a vice president at American Express, told the paper her company recently made changes to its forced arbitration policy to keep customers satisfied.
But how significant are the changes for consumers?
For the past decade, companies have been free to make claims about their arbitration policies with little factual support or scrutiny. There was no way to know what the typical arbitration process looked like, if customers were able to take advantage of seemingly consumer-friendly clauses, and whether consumers were actually winning cases in arbitration. But all that changed earlier this month, when the Consumer Financial Protection Bureau released its comprehensive, in-depth study of forced arbitration. Now, consumers are able to fact-check company claims.
So we decided to fact-check American Express. Is its arbitration clause as consumer-friendly as the company implies?
The answer is a resounding no.
American Express touts its new opt-out policy, which gives customers 45 days from when they first use a new card to opt out of the agreement’s arbitration provision. While “agreeing” to forced arbitration is as easy as swiping your Amex card, opting out is a bit more onerous. To even find the provision, customers have to get to one of the last pages of the cardmember agreement—just past the “governing law” and “assigning the agreement” sections. Customers then have to print, sign, and snail mail a rejection notice to a P.O. box in El Paso.
It’s unsurprising that consumers rarely take advantage of these opt-out provisions. According to the CFPB’s study, though over a quarter of credit card contracts include a similar provision, not a single consumer of the 570 interviewed had opted out. Only three consumers reported being given an opportunity to do so—but those three were mistaken. None of them actually had a contract which would have allowed them to opt out.
We did find one place where American Express is an industry leader: conducting forced arbitration in secret.
Only two credit card issuers of the 66 examined by the CFPB expressly includes a confidentiality or non-disclosure clause in its forced arbitration provision. American Express, which mandates that “[t]he arbitration will be confidential,” is presumably one of them. These clauses prevent wrongdoing from being exposed and remedied on a large scale. Consumer laws, which protect us all from fraud and discrimination, vindicate critically important societal goals. They should be enforced in the full sunlight of the courtroom—not in a private tribunal that American Express closes off to the public.
The rest of Amex’s arbitration clause is similarly unfriendly to consumers. The company provides a carve-out from forced arbitration for small claims court, as do 99 percent of credit card contracts. But like the opt-out clauses, these provisions rarely help consumers; they are more likely to be used by companies trying to collect debt. In 2012, looking at selected states and large cities, the CFPB was only able to identify—at most—39 small claims cases brought against American Express by a consumer.
Like 40.9 percent of credit card forced arbitration clauses, American Express’s includes a right to appeal an arbitrator’s decision—but only to three more arbitrators. The company is also unusual in that it “will consider in good faith making a temporary advance of your share of any arbitration fees.” Over 40 percent of credit card contracts require the issuer to do so.
If American Express truly wants a consumer-friendly arbitration policy, it should give its customers the right to choose whether or not they arbitrate—not in the form of an arcane opt-out policy, but after a dispute arises. If arbitration is as fair, quick, and affordable as proponents claim, it’s hard to imagine why customers would turn it down.
Spotify specifies that when listeners click “sign up,” they agree to its terms and conditions – found on a separate page of the Spotify website. Buried in the fine print of those “terms and conditions of use” is a forced arbitration clause. As the ad says, that means if you have a dispute with Spotify, you have to take your case to a decision-maker at a firm they choose – not a judge or jury. In addition, if Spotify violates the rights of thousands, even millions of its listeners, they can’t band together to seek justice.