Medical Coercion During Pregnancy and Childbirth

*Cherie Correlli

I. Introduction

Maternity care is a distinctive medical setting in which there is a startling lack of informed-consent-based medical procedures.[1] Women’s reports of their care indicate that interventions are routinely performed without meaningful consent, violating their autonomy in medical decision-making.[2] These interventions may include medical inductions, medications, mobility-limiting fetal monitoring methods, episiotomies, and cesarean-section surgeries.[3] Using coercive tactics to induce compliance with providers’ medical recommendations is one category within a broader range of mistreatment in pregnancy and childbirth termed “obstetric violence.”[4] These incidents of mistreatment and consent violations occur in the context of the complex power relationship between providers and patients during pregnancy and childbirth.[5] The current debate around fetal personhood has serious implications for medical coercion in pregnancy and childbirth.[6]

II. Medical Coercion

A. Informal Coercion

Informal coercion, a violation of proper informed consent, is the most commonly used method of medical coercion during pregnancy and birth, which involves persuasion, pressure, and threats.[7] This may include providing inaccurate or incomplete information to obtain consent or using emotional scare tactics.[8] Doctors believe patients should trust the physician’s expertise when it comes to potential risks to the baby.[9] Most patients do acquiesce when faced with the emotional pressure to either follow the doctor’s recommendation or jeopardize the baby’s safety.[10] Pregnancy provides a unique context where doctors commonly assert the right to compel their patients to comply with their medical advice.[11] Doctors’ responses to their pregnant patients emerge as a startling exception to the nearly universal consensus that patients, not doctors, should determine whether and when to undergo medical treatment.[12]

The rationalization for coerced medical procedures usually invokes a perceived risk to the fetus; however, many compelled medical treatments in pregnancy lack scientific basis.[13] Many obstetric recommendations are based on limited, inconsistent evidence and recommendations and standard practices vary widely among providers.[14] The recommendations a pregnant person receives can be vastly different, depending on where the person seeks care and the provider they see.[15] This makes a case for autonomous decision-making in childbirth even more compelling.

B. Threats of Child Protective Services

Threats of involving Child Protective Services are sometimes invoked as a coercive measure when a patient declines to follow medical advice.[16] These threats can be a powerful method of coercion to secure compliance with the medical recommendation of a care provider.[17] In 2010, Michelle Mitchell’s (Mitchell) doctors recommended that she plan an induction or cesarean based on the belief that she was carrying a large baby.[18] At the hospital, Mitchell signed a form acknowledging her intention to decline the surgery and waive liability.[19] The on-call physician became angry and threatened to seek a court order to compel a cesarean and call the child welfare authorities to remove her baby after the birth.[20] In response to these threats, Mitchell rescinded her informed refusal and agreed to the surgery.[21] Despite Mitchell’s eventual acquiescence, the hospital reported Mitchell to the child welfare agency and refused to release the baby into her care.[22] After three months of interviews and home visits, the child welfare agency dismissed the investigation as baseless.[23] For Mitchell, and many others, the threat of Child Protective Services involvement is enough to compel compliance, whether or not the agency actually gets involved.[24] This threat is particularly powerful for poor women, women of color, and young women, who are more likely to have experienced state involvement and scrutiny of their reproductive decision-making.[25]

C. Medical Procedures and Forced Surgeries Without Consent

Coercive medical interventions can also include formal coercion by overriding a pregnant person’s autonomic choices in a forceful, violent manner.[26] In the case of Laura Pemberton, who had chosen to give birth at home with a midwife, a court ordered that she instead undergo a cesarean section, citing a substantial risk of uterine rupture due to her previous cesarean birth, which could potentially could result in the death of the fetus.[27] A sheriff went to her home and forced her to be taken to the hospital by ambulance against her will, where the court-ordered cesarean section was performed.[28]

Not all forced surgeries or procedures involve court orders. In the midst of a labor that was progressing normally, Laura Turbin’s doctor informed her that he was going to cut an episiotomy, an incision in the perineum, to prevent tearing during birth.[29] She said no and repeatedly protested while the doctor proceeded to cut her perineum twelve times, an incident that Turbin’s mother captured on video.[30]

III. Fetal Personhood’s Impact on Medical Coercion

The fetal personhood debate has renewed vigor in the wake of the Supreme Court’s overturning of Roe v. Wade.[31] In the context of obstetric care during pregnancy and childbirth, the concept of fetal personhood is ever-present.[32] Outside of pregnancy and childbirth, physicians generally accept that patients hold the final decision-making power, aligning with medical principles of self-determination, autonomy, and bodily integrity.[33] However, many obstetric providers see themselves as having a duty to the fetus during pregnancy and birth.[34] Often, they perceive this duty as overriding their duty to their pregnant patient.[35] Obstetricians often use a standard of care that prioritizes the fetus, attempting to minimize all fetal risks, at the expense of maternal medical risks.[36] Laws that recognize fetal personhood will bolster the rationalization of coercion in pregnancy.[37] As a result, unconsented and forced medical interventions during pregnancy are almost certain to increase.[38] Fetal personhood ideas will lend support to the notion of a separate “fetal interest” as identified by the physician, who also determines how that interest relates to the plan of care.[39] The physician, then, is in the position of dictating the care decisions if the pregnant woman’s own autonomous medical care decisions are in conflict with what the physician has decided are the best interests of the fetus.[40]

IV. Conclusion

Coercion in the obstetric relationship between provider and patient often occurs at moments of intense vulnerability for pregnant and birthing people, both physically and emotionally.[41] This power dynamic, which portrays the mother as a threat to the fetus when not acting in complete compliance with a provider’s wishes, is part of an ongoing relationship of control that pervades the doctor-patient relationship.[42] Laws recognizing fetal personhood may strengthen care providers’ perceptions regarding their duty to act in the best interest of the fetus and exacerbate issues of coercive control already prevalent in the obstetric care setting. As the debate over fetal personhood continues to make headlines, action is required to eliminate medical coercion and implement consent-based treatment as the standard of care in pregnancy and childbirth.

*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.

[1] Jamie R. Abrams, The Illusion of Autonomy in Women’s Medical Decision-Making, 42 Fla. State U. L. Rev. 17, 49 (2014).

[2] Saraswathi Vedam et al., The Mothers on Respect (MOR) Index: Measuring Quality, Safety, and Human Rights in Childbirth, 3 SSM Population Health, 201, 202 (2017).

[3] Elizabeth Kukura, Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making, 47 U. Balt. L. Rev. 247, 249 (2018).

[4] Alexa Richardson, The Case for Affirmative Consent in Childbirth, 37 Berkeley J. Gender L. & Just. 1, 8 (2022).

[5] Id.

[6] Debra DeBruin & Mary Faith Marshall, Coercive Interventions in Pregnancy: Law and Ethics, 23 J. Health Care L. & Pol’y 187, 197 (2021).

[7] Stephan Oelhafen et al., Informal Coercion During Childbirth: Risk Factors and Prevalence Estimates from a Nationwide Survey of Women in Switzerland, 21 BMC Pregnancy &Childbirth 369, 369 (2021).

[8] Vedam, supra note 2, at 202.

[9] Abrams, supra note 1, at 49.

[10] Id.

[11] Id.

[12] Id.

[13] Richardson, supra note 4, at 39.

[14] Id.

[15] Id.

[16] Kukura, supra note 3, at 254.

[17] Id. at 258.

[18] Id.

[19] Id. at 259.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 261.

[25] Id.

[26] Oelhafen, supra note 7, at 369.

[27] Id.

[28] Id. at 189. Ms. Pemberton went on to deliver her subsequent pregnancies vaginally, raising serious questions about the risk assessment that led to the court order. Id.

[29] Richardson, supra note 4, at 13. The American College of Obstetricians and Gynecologists (ACOG) recommends against the use of routine episiotomies. Id. (citing Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 198: Prevention and Management of Obstetric Lacerations, 132 Obstetrics & Gynecology e87, e97 (Sept. 2018)).

[30] Id.

[31] Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N. Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.

[32] See Debruin & Marshall, supra note 6, at 193.

[33] Richardson, supra note 4, at 44.

[34] Debruin & Marshall, supra note 6, at 193.

[35] Id.

[36] Abrams, supra note 1, at 49.

[37] Debruin & Marshall, supra note 6, at 197.

[38] Rebecca Kluchin, If Courts Recognize Fetal Personhood, Women’s Rights are Curtailed, Wash. Post (May 12, 2022, 6:00 AM), https://www.washingtonpost.com/outlook/2022/05/12/if-courts-recognize-fetal-personhood-womens-rights-are-curtailed/.

[39] Abrams, supra note 1, at 43.

[40] Id. at 49.

[41] Richardson, supra note 4, at 9.

[42] Id. at 11.

In the Name of Public Safety: Issues and Exceptions to Maryland’s Child Interrogation Protection Act

*Qiara Butler

I. Introduction

In April 2022, the Maryland General Assembly passed several pieces of legislation involving police accountability and their interactions with the community.[1] One of the most impactful pieces of legislation was Senate Bill 53, also known as the Child Interrogation Protection Act.[2] This statute, which went into effect October 1, 2022,[3] establishes three key requirements when children under 18 years of age are taken into custody by police: (1) “actual notice” to the parent, guardian, or custodian that the child is in police custody,[4] (2) the maintenance of detailed records,[5] and (3) for the child to have a consultation with an attorney prior to an interrogation.[6]  Because Black children are vastly over represented in Maryland’s juvenile prisons,[7] this legislation will have a critical impact on Maryland’s legal system.

II. Legal Development

These new requirements are starkly different from the previous juvenile criminal law requirements.[8] The law requires that the officer give notice in a manner that is “reasonably calculated to give actual notice,”[9] including keeping a record of the following information: (1) the child’s location, (2) the reason for the child being taken into custody, and (3) instructions to the parent, custodian, or guardian on how to make immediate in-person contact with the child.[10] The requirement of the attorney consultation before custodial interrogation by police is a completely new addition to this criminal law.[11] Not only is the consultation required, but it cannot be waived.[12] Both notice and consultation requirements must occur prior to a law enforcement officer’s custodial interrogation of a child.[13]

The purpose of this legislation is to provide juveniles with added due process protections, recognizing “juveniles’ increased vulnerability in custodial interactions with officers due to their lessened developmental capacity and increased deference to adult authority figures.”[14] These added measures are proposed to decrease the likelihood of harm to juveniles in the criminal legal system such as self-incrimination and false confessions.[15] Often, when children are questioned by police, they do not understand their Miranda rights,[16] the “risks and consequences” of speaking with officers, nor whether they are even in custody.[17] Lack of support from an attorney or even a parent for these children can lead to statistically detrimental effects.[18]

III. Foreseeable Obstacles

However, despite its honorable purpose, this legislation was not embraced unanimously. It faced fierce opposition from law enforcement and other representatives in the legal community.[19] This opposition could present unforeseen procedural resistance to the enforcement of this law through the overuse of exceptions in the statute.[20]

A. The Public Safety Exception

The Child Interrogation Protection Act (Act) seems to provide added protections to juveniles, but it comes with exceptions.[21] Section G(1)(I) of Senate Bill 53 provides that a “lawful” custodial interrogation can occur without following the aforementioned requirements[22] if “[t]he law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety[.]”[23] This public safety exception could be overused by law enforcement to circumvent the protections of this law. Recently, juvenile crime has been spotlighted in the media.[24] This exception could easily provide a way for law enforcement to disregard the statute’s requirements and conduct their interrogations of juveniles while still being deemed “lawful.”[25]

B. Rebuttable Presumption of Inadmissibility

The Act also appears to provide an exception through a rebuttable presumption of inadmissibility,[26] meaning that even if law enforcement fails to meet the statutory requirements to perform a custodial interrogation of a child, the ill-gotten evidence is not automatically barred from admission against the child in court.[27] Instead, the statute creates a rebuttable presumption of inadmissibility which can be overcome by showing that the child’s statement was made “knowingly, intelligently, and voluntarily.”[28] This showing disregards the scientific evidence that juveniles have a diminished developmental capacity[29] and essentially negates the reason the statute was created.

IV. Conclusion

Because the Act went into effect on October 1, 2022, it can only be speculated how law enforcement and the courts will construe and apply the statute. Although this legislation was created in hopes that it would provide much needed protections for Maryland juveniles, in practice, this law will likely face lots of practical opposition. The exceptions are potentially fatal to the legislation’s original purpose.[30] Only time will tell.

*Qiara Butler is a third-year evening student at the University of Baltimore School of Law. She has been working for the Social Security Administration as a Disability Examiner for twelve years, and since 2017, splits her day to work as a union steward and, most recently, as 5th Vice President for the American Federation of Government Employees Union Local 1923.

On her path to becoming an attorney, Qiara has managed to balance many responsibilities, including, but not limited to volunteering for internships and other activities. She interned for the U.S. Attorney’s Office in Baltimore as a Volunteer Law Clerk and as a Judicial Intern with the Honorable Judge Myshala Middleton for the Baltimore City Circuit Court. She is now a member of the University of Baltimore’s Law Review as a Staff Editor, the Community Service Chair for the Mid-Atlantic Region of the Black Law Student’s Association, and the University of Baltimore’s Representative for Alliance of Black Women Attorneys of Maryland. She is also currently taking a Mediation Skills course that will provide her the 40 hours she needs to become a practicing mediator. In addition, Qiara serves as a research assistant for Professor John Lynch.

Qiara will be summering in the Baltimore office of Saul Ewing Arnstein & Lehr LLP for the summer of 2023.

[1] See Bills Passed by the House and Senate during the 2022 Legislative Session (April 13, 2022). https://reznikformaryland.com/bills-passed-by-the-house-and-senate-during-the-2022-legislative-session/.

[2] Md. Code Ann., Crim. Proc. § 2-108 (West 2022) (hereinafter “the Act”).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Ryan McFadden, Juvenile Detention Declined, Yet Black Children Detained at High Rate, Capital News Service (Jan. 2, 2021), https://www.marylandmatters.org/2021/01/02/juvenile-detention-declined-yet-black-children-detained-at-high-rate/ (According to semi-recent data Black children make up 77% of detainees, but only about 31% of the total population).

[8] See Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).

[9] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022) (emphasizing that the Maryland Code on Juvenile Causes Courts and Judicial Proceedings Section 3-8A-14 only required an officer to provide minimal notice).

[10] Id.

[11] Compare id., with Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (repealed Oct. 2022) (West 2022).

[12] Id.

[13] Id.

[14] Haley Shefferman, Legislative Update: Maryland’s New Child Interrogation Protection Act Will Provide Much Needed Safeguards for Youth, 42 Child. Legal Rts. J. 181 (2022).

[15] Id.

[16] Id. (defining Miranda rights as “the constitutional rights to refuse to answer questions and to consult with an attorney, which officers must inform individuals of before any custodial interrogation can take place”).

[17] Id. at 182.

[18] Id.  at 183 (“Youth waive their Miranda rights in eighty percent of custodial interrogations nationally. Youth are also far more likely to confess to crimes they did not commit–thirty six percent of exonerees nationally made false confessions when they were children, while ten percent made false confessions as adults, according to the National Registry of Exonerations. In addition, youth of color are even more likely to make false confessions due to police bias in these interactions.”).

[19] Id. at 182.

[20] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[21] Id.

[22] Id.

[23] Id.

[24] See Pilar Aris, Two Juveniles in Custody for Killing a Maryland Gas Station Employee, Police Say, Fox News (Aug. 14, 2022), https://www.foxnews.com/us/two-juveniles-custody-killing-maryland-gas-station-employee-police-say.

[25] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[26] Id.

[27] PRESUMPTION, Black’s Law Dictionary (11th ed. 2019).

[28] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-14 (effective Oct. 2022) (West 2022).

[29] See Shefferman, supra note 13.

[30] Id.

Bad Financials or Pretextual Reasoning: Is the Closure of Unionizing Stores Illegal Union-Busting?

*Erin Turvey

I. INTRODUCTION

In 2021, American approval of labor unions reached the highest point since 1965.[1] During the first half of fiscal year (FY) 2022, union representation petitions[2] filed with the National Labor Relations Board (NLRB) increased by 57%.[3] Moreover, unions won more NLRB representation elections in the first half of FY 2022 than in FY 2021.[4]

At the same time, unionization has frequently been in the news as union organizing efforts have increased at large corporations such as Amazon, Apple, and Starbucks.[5] During organizing efforts, many workers alleged that these employers resorted to union-busting techniques.[6] Retaliation efforts against employees seeking to unionize include termination,[7] suspension,[8] preventing union organizers from speaking with employees,[9] threats,[10] and offering better pay and benefits to non-union employees.[11] The alleged anti-union activities have caused speculation regarding whether recent store closures have less to do with supposed labor shortages and decreased profits at certain locations, and more to do with chilling unionization efforts.[12] Ultimately, whether these closures are indeed illegal union-busting depends on the employers’ motive.[13]

II. AN EMPLOYER’S RIGHT TO CLOSE UP SHOP

In Textile Workers Union v. Darlington Manufacturing Company (Textile Workers Union), the Supreme Court held that, in relation to the unfair labor practices provision of the National Labor Relations Act (Act), “an employer has the absolute right to terminate his entire business for any reason he pleases.”[14] In such cases, the termination of an entire business is generally assumed to protect the employer from obligations under the Act.[15]

On the other hand, when an employer decides to close just a portion of their business (i.e., one or more locations in a chain or individual departments) while maintaining other portions, the employer may be committing unfair labor practices in violation of section 8(a)(3) of the Act.[16] The Court in Textile Workers Union reasoned that a discriminatory partial closing could affect the remaining business by giving the employer leverage to discourage the protected organizational efforts of remaining employees[17] who may become fearful of further closures if they seek to unionize.[18]

Accordingly, the Court held that the partial closing of a business is an unfair labor practice under section 8(a)(3) if the motivation is to “chill unionism” in the remaining locations and if the employer should have reasonably foreseen that the partial closing would likely have such an effect.[19] However, conclusory assertions alone are insufficient to establish that a partial closing is an unfair labor practice.[20] Rather, to amount to an unfair labor practice in violation of section 8(a)(3), there must be an affirmative showing that; 1) the partial closing was motivated by the employer’s desire to halt any unionization efforts of employees in remaining locations, 2) the closure did have such an effect on those employees, and 3) the effect was foreseeable.[21] When the effects are minimal, however, an employer’s non-discriminatory reasoning for such a partial closing is often accepted, regardless of its pretextual nature.[22]

III. RECENT PARTIAL CLOSURES

So far, 2022 has seen partial closures by numerous large employers.[23] Starbucks, for example, recently announced the closure of sixteen stores—two of which were newly unionized and one of which had petitioned for a union vote.[24] A popular organic frozen food company, Amy’s Kitchen (Amy’s), recently closed one of its production facilities, laying off around 300 workers.[25] While Amy’s alleged that the closure was due to economic reasons,[26] suspicions have arisen regarding the rationale, because workers at the closing location sought to unionize earlier this year in response to years of alleged unsafe working conditions.[27] Chipotle also recently closed one of its locations, just hours before a union representation election was scheduled to take place.[28]

Ironically, Chipotle’s stated reasoning for its partial closing was the same as the primary reason employees were seeking to unionize.[29] Chipotle could still be liable for unfair labor practices, however, if there is evidence that its motive was to thwart unionism in its remaining locations and if the NLRB finds evidence that the closure did have such effect on the remaining employees.[30] Similarly, in the cases of Amy’s and Starbucks, the companies could be held liable for unfair labor practices if their motivation for the closures stemmed from anti-union animus and a chilling of unionism elsewhere in the company was foreseeable.[31]

In determining an employer’s intent, the Supreme Court has noted that “specific evidence of [a] subjective intent”[32] to chill unionism is not necessary, rather when an “employer[’s] conduct inherently . . . discourages union membership,” the employer is “held to intend the foreseeable consequences of [it’s] conduct,”[33] as long as those consequences are “inherently destructive.”[34] Conversely, when the consequences are “comparatively slight” (such as a decrease in union membership alone) and the employer provides evidence of “legitimate and substantial business justifications for the conduct,”[35] discriminatory conduct is often exonerated, even if its foreseeable consequence is a chill of unionism.[36] Accordingly, if Chipotle, Amy’s, and Starbucks employees are unable to show that the effects of the partial closings extended beyond a decrease in union membership, the employers’ “financial” reasoning will likely be accepted.

IV. CONCLUSION

With American support of unions at the highest rate since 1965[37] and a substantial increase in union representation petitions,[38] the alleged union-busting tactics of well-known corporations have come to light.[39] Media coverage has led to speculation as to whether companies’ partial closures at newly unionized locations or where employees were in the process of unionizing were instances of illegal union-busting. While union-busting is arguably good for the bottom line, it infringes upon individuals’ rights to organize and collectively bargain. In an era where CEOs are making record profits,[40] it is imperative that the employees whose work helped achieve those profits are afforded the opportunity to organize and collectively bargain for better working conditions. Ultimately, if unfair labor practice complaints are filed, the issue will boil down to the employer’s motive behind the partial closure and the closure’s effects on the remaining employees.[41] While there is a strong likelihood that recent partial closings have in fact stemmed from anti-union animus and bad intentions, absent explicit evidence of motive and a clear showing of substantial union chilling among remaining employees, the arguably pretextual reasoning of these corporations will likely be accepted.

*Erin Turvey is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I, a Law Scholar for Contracts I, and a Research Assistant for Professor Tiefer. After receiving her J.D., Erin hopes to work in public interest or labor law.

Photo Credit: Elliot Stoller (licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license)

[1] Megan Brenan, Approval of Labor Unions at Highest Point Since 1965, Gallup: News (Sept. 2, 2021), https://news.gallup.com/poll/354455/approval-labor-unions-highest-point-1965.aspx. According to the poll, 68% of Americans approve of labor unions, Id.

[2] Union representation petitions are filed by employees, unions, or employers prior to the NLRB conducting an election. Union Election Petitions Increase 57% in First Half of Fiscal Year 2022, Nat’l Lab. Rel. Bd.: News & Publications (Apr. 6, 2022), https://www.nlrb.gov/news-outreach/news-story/union-election-petitions-increase-57-in-first-half-of-fiscal-year-2022.

[3] Id. The NLRB reported 1,174 petitions for union representation from October 1–March 31, 2022, compared to 748 during the same time frame in 2021. Id.

[4] NLRB Election Statistics: Mid-Year 2022 1, Bloomberg L. (August 2022), https://aboutblaw.com/4mG. In the first half of FY 2022, unions won 76.6% of the 837 elections conducted compared to 76.1% of the 465 elections held in the first half of FY 2021. Id.

[5] See generally Jennifer Elias & Amelia Lucas, Employees Everywhere Are Organizing. Here’s Why it’s Happening Now, CNBC (May 7, 2022), https://www.cnbc.com/2022/05/07/why-is-there-a-union-boom.html.

[6] See, e.g., Nitasha Tiku et al., From Amazon to Apple, Tech Giants Turn to Old-school Union-busting, Washington Post (Apr. 24, 2022), https://www.washingtonpost.com/technology/2022/04/24/amazon-apple-google-union-busting/; Henry Snow, Today’s Union-busters are Following a Centuries-old Playbook, The Washington Post (Sept. 14, 2022), https://www.washingtonpost.com/made-by-history/2022/09/14/todays-union-busters-are-following-centuries-old-playbook/.

[7] Caroline O’Donovan, Amazon Calls Cops, Fires Workers in Attempts to Stop Unionization Nationwide, Washington Post (June 13, 2022) (“In the two months since the ALU’s victory, more than half a dozen Amazon workers claim to have been fired in what they call an effort to intimidate others who might be interested in unionizing.”).

[8] Aaron Gregg, NLRB Accuses Starbucks of Retaliating Against Workers Seeking to Unionize, Washington Post (Mar. 16, 2022), https://www.washingtonpost.com/business/2022/03/16/starbucks-nlrb-complaint/.

[9] See Tiku et al., supra note 6.

[10] See, e.g., Id.; Amelia Lucas, Starbucks Union: Company Threatens That Unionizing Could Jeopardize Gender-affirming Health Care, CNBC (June 14, 2022), https://www.cnbc.com/2022/06/14/starbucks-union-company-threatens-that-unionizing-could-jeopardize-gender-affirming-health-care.html (Starbucks managers at one store allegedly threatened workers that unionization could worsen health care benefits, specifically gender-affirming health care benefits).

[11] Hilary Russ, Starbucks Adds Benefits for Non-union U.S. Workers Ahead of Investor Day, Reuters (Sept. 12, 2022) https://www.reuters.com/markets/us/starbucks-adds-benefits-non-union-us-workers-ahead-investor-day-2022-09-12/ (Starbucks has increased hourly pay and added student loan repayment tools for non-union employees).

[12] Aaron Gregg, Chipotle Closes Maine Store That Sought to Unionize, Washington Post (July 20, 2022), https://www.washingtonpost.com/business/2022/07/20/chipotle-union-maine-store-closure/. Just hours before a union representation election was scheduled to take place at a Chipotle in Maine, the employer notified workers that the location would be closing permanently, citing worker shortages as the root cause. Id.; Alexandra Martinez, Amy’s Kitchen Closes San Jose Facility After Workers Seek to Form a Union, Prism (Aug. 4, 2022), https://prismreports.org/2022/08/04/amys-kitchen-closes-san-jose-workers-organize/. In July 2022, Amy’s Kitchen, a well-known organic frozen food company, abruptly announced that it would be closing its factory in San Jose, California, where workers had been organizing, citing supply chain issues and decreased demand as reasoning for the closure. Id.

[13] Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 275 (1965) (holding that a partial closing motivated by the intent to chill unionism throughout the rest of the company is an unfair labor practice).

[14] Id. at 268. In the pertinent part, the unfair labor practices provision of the Act discussed by the Court states: “It shall be an unfair labor practice for an employer – (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . .” National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3).

[15] Textile Workers Union, 380 U.S. at 270–71.

[16] Id. at 274–75.

[17] Id.

[18] See, Id.

[19] Id.

[20] Textile Workers Union, 380 U.S. at 276.

[21] Id.

[22] See infra note 35 and accompanying text.

[23] See infra notes 23-27 and accompanying text.

[24] Emily Heil, Starbucks is Closing 16 Locations Due to Worker, Customer Safety Fears, Washington Post (July 13, 2022), https://www.washingtonpost.com/food/2022/07/13/starbucks-closures-worker-safety/. Starbucks cited safety concerns for the reasoning of these store closures. Id.

[25] Len Ramirez, Amy’s Kitchen Set to Close San Jose Frozen Food Plant; Employees in Shock, CBS News (July 18, 2022), https://www.cbsnews.com/sanfrancisco/news/amys-kitchen-san-jose-frozen-food-plant-closure/.

[26] Id. Amy’s alleged it was losing $1 million a day operating the San Jose location due to increased supply costs and decreased demand for its products, although three of its other facilities remain “unaffected and running at full capacity.” Id.

[27] Alexandra Martinez, Workers at Amy’s Kitchen Are Organizing After Years of Unsafe Working Conditions, Prism (Apr. 1, 2022), https://prismreports.org/2022/04/01/amys-kitchen-workers-organize-unsafe-conditions/.

[28] Gregg, supra note 8. Chipotle cited worker shortages for the permanent closure of a Maine location seeking to unionize. Id.

[29] Chipotle Workers Are Trying to Form the Company’s First Union, More Perfect Union (July 18, 2022), https://perfectunion.us/chipotle-workers-are-trying-to-form-the-companys-first-union/.

[30] Textile Workers Union, 380 U.S. at 275.

[31] Id.

[32] NLRB v. Erie Resistor Corp., 373 U.S. 221, 227 (1963).

[33] Radio Officers’ Union of Com. Telegraphers Union v. NLRB, 347 U.S. 17, 45 (1954).

[34] Rebecca Hanner White, Modern Discrimination Theory and the National Labor Relations Act, 39 Wm. & Mary L. Rev. 99, 135 (1997).

[35]  Id. at 135–36.

[36] Id. at 137.

[37] Brenan, supra note 1.

[38] National Labor Relations Board, supra note 2.

[39] Gregg, supra note 8; Tiku et al., supra note 6; Gregg, supra note 12; Martinez, supra note 12.

[40] See, e.g., Nitasha Tiku & Jay Greene, The Billionaire Boom, Washington Post (Mar. 12, 2021), https://www.washingtonpost.com/technology/2021/03/12/musk-bezos-zuckerberg-gates-pandemic-profits/.

[41] Textile Workers Union, 380 U.S. at 274–76.

Cannabis in the Workplace: A Hazy Line Between Legalization and Discrimination

*Kenneth Wyatt II

I. INTRODUCTION

On May 26, 2022, Assembly Bill (AB) No. 2188 (Bill), passed the California State Assembly.[1] If signed into law, the Bill would take effect January 1, 2024.[2] As currently drafted, the Bill would amend California’s Fair Employment and Housing Act (FEHA),[3] which prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful employer practices.[4] Specifically, the Bill would extend to employees protections against termination or discrimination related to cannabis use.[5] AB 2188, states that the Bill would:

[M]ake it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace . . . or upon employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites[6] in their hair, blood, urine, or other bodily fluids.[7]

Continue reading “Cannabis in the Workplace: A Hazy Line Between Legalization and Discrimination”