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4 From the 4th: SCOTUS Grants Include Pregnancy, Teeth Whitening

By William Peacock, Esq. on October 07, 2014 | Last updated on March 21, 2019

Our "SCOTUS Week" coverage continues with the Fourth Circuit, where the Court has granted certiorari in four cases, with a massive amount of petitions still pending, according to CertPool's tracker. And while some of those pending petitions are likely grants and will be among the most heavily watched of the Court's cases (we're thinking King v. Burwell, the Obamacare subsidies case specifically), today we're looking at the birds in hand, not the ones in the bush.

What've we got? How about a bank robber, alleged fraud on the government, pregnancy discrimination, and a state-sanctioned monopoly on teeth whitening.

SCOTUS Week at FindLaw

North Carolina Board of Dental Examiners v. Federal Trade Commission (Oral Arguments: October 14)

Dentists wanted to preserve their monopoly on teeth whitening services. The state requires a license to "[r]emove[] stains, accretions or deposits from the human teeth." The Board of Dental Examiners, which is all private actors (six dentists, one hygienist, one consumer) cease-and-desisted all of the non-dentists out of business, and out of the state.

The FTC sued, screaming antitrust. The Fourth Circuit sided with the FTC, holding that the state exemption for antitrust did not apply because the state-created board was an unsupervised group of private actors: "At the end of the day, this case is about a state board run by private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market."

Issue: Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a "private" actor simply because, pursuant to state law, a majority of the board's members are also market participants who are elected to their official positions by other market participants.

Young v. United Parcel Service (Oral Arguments: December 3)

Peggy Young was working as a UPS driver when she got pregnant. The company refused to give her light duty, despite extending that courtesy to other classes of drivers listed in the collective bargaining agreement. The Fourth Circuit held that the Pregnancy Discrimination Act (PDA) doesn't require employers to extend such accommodations to pregnant women, and agreed with UPS' argument that its policy was "pregnancy neutral."

The PDA provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Issue: Whether, and under what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are "similar in their ability or inability to work."

Yeah, we said four cert. grants, didn't we? Sorry, we ran out of room. But we've got your attention with bank robbery and fraud, right? Check back later this week for the rest of the lot.

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