Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2003

Workplace Chaplains: Important Source of Comfort or Likely Source for Discrimination?

Wednesday, May 28th, 2003

This week, an Associated Press article reported that more and more private businesses are hiring workplace chaplains to counsel employees. Ironically, just two days before, it was reported that a group of California firefighters are suing their employer because the chaplains went too far in imposing their religion (Christian) on firefighters, allegedly violating the separation between church and state. (See New York Times article.) And some members of the U.S. House of Representatives are upset and offended by a chaplain’s recent prayer, which made veiled but condemning references to homosexuality and abortion. (See World Net Daily article.) Could this growing trend ultimately result in more religious discrimination lawsuits, by those workers who don’t share the chaplain’s (or employer’s) religious values? Certainly, the increasing presence of employees who are hired by corporations specifically for the purposes of ministering to employees provides an additional opportunity for workplace conflict over religious issues.

Long a staple in hospitals, prisons, and military organizations, chaplains are also increasingly employed in the public sector as well. Chaplains can provide a religious alternative to secular employee assistance programs, and can minister to employees who have lost touch with local churches because they work so much. Some employers believe that even in these tough economic times, chaplains are a worthwhile investment. A growing number of employers believe that providing workers with spiritual guidance and limiting their stress makes them more productive. A plant manager of a steel manufacturer says that the $1,200 a month his company pays — $3 per employee — is a tiny price for a spiritually healthy workforce. John Fisher of MACSTEEL says, “They say you need to leave problems at work at work and problems at home at home, but realistically you can’t do it. If they come to work and aren’t thinking about making steel, we’re in trouble.” (See AP article.) In additional to spiritual counseling of employees, some chaplains, especially in paramilitary-type operations such as police and fire departments, actually work alongside employees. One police department chaplain, in Seabrook, New Hampshire, helps with the difficult duty of going to the door of residents who will be told that a loved one has died, counseling the family while other officers gather the necessary evidence. (See Portsmouth Herald article.) In fact, the New Hampshire chaplain is perceived to be so much a part of the force that officers recently chipped in to purchase him a bulletproof vest, as he does not carry a weapon, but wears a uniform distinguished only by small cross pins.

Chaplains must be very careful not to cross the line between ministering to workers and offending an employee’s spiritual sensibilities or breaking religious harassment laws. The chaplains at the MACSTEEL plant, hired through a separate company called Corporate Chaplaincy Services, follow the same protocol as secular EAPs, which means no talk of religion until the chaplain receives an employee’s open invitation for spiritual guidance. The National Institute of Business and Industrial Chaplains, NIBIC, based in Houston, has trained about 150 corporate chaplains or organizations, following military chaplain standards, to properly address the needs of employees of other faiths. Chaplains are required in NIBIC trainings to study Title VII , the federal statute that prohibits religious discrimination by private companies. NIBIC’s code of ethics specifically requires of its claplains that:

We show sensitivity for the moral, cultural, social and religious standards of people with whom we have a pastoral care relationship. We avoid imposing our beliefs on others, although we may express them when appropriate, especially when invited to do so.

However, some companies hire chaplains precisely because they will work to convert employees. A supervisor at MACSTEEL, Russ Barr, believes that “For me as a devout Christian, employees who are Christians should be better, more productive workers with fewer problems.” One of the two largest sources of corporate chaplains is Corporate Chaplains of America near Raleigh, North Carolina. A look at the Corporate Chaplains of America (CCA) web site reveals the organizations strict adherence to specific Christian doctrine and prominently features the quotes of business owners praising how many employee “salvations” the chaplains have produced. An employer who hires this organization’s chaplains is likely to do so precisely because of this organization’s specific approach to chaplaincy, given the direct expression of CCA’s purpose and mission.

The more that chaplain ministries permeate the private workplace, the more likely it is that some chaplains will cross boundaries that employees believe subjects them to inappropriate religious proselytizing. That has already happened, albeit in a public workplace, in San Luis Obispo, California, where firefighters have filed suit against their employer over the chaplaincy program. (See New York Times article.) Six California firefighters there have gone to federal court asking for an end to the California Department of Forestry and Fire Protection’s chaplain’s corps because of the program’s alleged commingling of church and state. The plaintiffs say that unlike chaplains in the military and most other public safety organizations, the California forestry chaplains mix religious ministry with their day-to-day duties as firefighters or supervisors. While military chaplains are outside the chain of command, do not serve as combat troops, and have no authority to promote or assign troops, the Forestry Department’s program is run by an evangelical minister who is also a senior official of the department. The complaining officers, who call themselves the “Satanic Six,” seek an end to the official chaplain’s corps be disbanded, asking that it be replaced with a nonuniformed, volunteer group of religious counselors. It also asks that no state money be spent for the training or services of chaplains, and that no explicitly religious language be used at public ceremonies, like fire academy graduations. The lawyer representing the six firefighters also claims that the chaplain services are unnecessary. Carol Sobel, a former ACLU attorney, says

“The department has other programs that virtually duplicate what the chaplain program is doing in a nonreligious context. They have psychologists and other counselors on staff, and they had a nonreligious peer counseling program, which this replaced. The only reason for this program is to add a religious component to what the department is already doing in a nonreligious manner.”

While private groups do not face the same First Amendment concerns as public employers, there still may be scrutiny of whether the work of chaplains merely duplicates the role of employee assistance programs, with the only distinguishing factor being the religious component of the counseling.

Even the highest echelons of government currently face chaplain problems. According to a recent story, some members of the House of Representatives were extremely peeved by a prayer offered by a guest chaplain before the House’s session opened for the day on May 14. (See World Net Daily article.) The Rev. George Dillard III of Peachtree City Christian Church near Atlanta in his prayer before Congress, asked God for “leaders who will seek your truth … who accept that a lie is a lie and not spin; that it is immorality and not an alternative lifestyle; that it is murder not a procedure; that it is stealing and not creative accounting; that rebellion is rebellion no matter what name we give it.” Since the invocations of guest chaplains are supposed to “be free from personal political views, from sectarian controversies, from any intimations pertaining to foreign policy,” according to the House chaplain’s rules, some members objected to what they believed were references to homosexuality and abortion. (Rev. Dillard for his part denies this, claiming that his words referred to “the taking of a human life for no other reason than convenience … whether it is abortion, euthanasia or genocide,” and that his “alternative lifestyle” comment was referring to adultery and pedophilia.) If Congress faces such controversies about the appropriate boundaries for religious expression, it is likely that the private workplace will as well.

Questions About Religion and the Workplace? See our site’s page on religious discrimination.

Supreme Court Upholds FMLA Cases Against States

Tuesday, May 27th, 2003

The U.S. Supreme Court, and in particular, Chief Justice William H. Rehnquist, handed employee advocates an unexpected victory today, in the case of Nevada Department of Human Resources v. Hibbs. (See USA Today article.) Although the Family and Medical Leave Act (FMLA) was expected by some to be yet another civil rights casualty in the federalism wars, a 6-3 majority of the Supreme Court upheld a state worker’s right to sue the state for damages after he was terminated for taking family leave to care for his wife who had been injured in a car accident. While Chief Justice Rehnquist and Justice Sandra Day O’Connor had previously voted for the majority in rejecting claims brought by state workers who suffered discrimination on the basis of age (Kimel v. Fla. Bd. of Regents) and disability (Board of Trustees of Univ. of Ala. v. Garrett, in this case, the outcome was different. Why? The short answer is sex discrimination.

William Hibbs worked for the Welfare Division of Nevada’s Department of Human Resources. (The Department’s motto, ironically enough, is “Helping People: That’s What We Do.” Hibbs might beg to differ.) In April and May 1997, he sought FMLA leave to care for his wife, Diane, who was recovering from a car accident and neck surgery. (For more information about FMLA leave, see our web site’s page on family/medical leave.) The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Hibbs took leave intermittently until August 5, 1997, after which he did not return to work. In October 1997, the Department informed Hibbs that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Hibbs was dismissed after failing to return to work on the requested date. (See New York Times article.)

Hibbs then sued to get his job back and to receive money damages for the wages he lost in the federal district court of Nevada. The state of Nevada immediately claimed that it was immune from suits like Hibbs’, and Hibbs lost at the initial level without ever receiving a trial on the merits of his case. Hibbs appealed his case to the next highest court, the 9th Circuit Court of Appeals, and the 9th Circuit reversed the lower court’s decision, ruling in favor of Hibbs. Last summer, the Supreme Court decided to hear the case, and heard arguments in January about whether the law should apply to state employees.

Chief Justice Rehnquist was the author of today’s ruling in Hibbs’ favor. The decision begins by discussing basic federalism doctrine: that states are presumed immune from federal lawsuits against them, unless they have expressly consented to these lawsuits under state law. However, Congress can override that immunity and allow states to be sued in federal court under certain circumstances. First, the law passed by Congress must make it unmistakably clear that Congress intended to allow suits against states. The FMLA passed that test: the law allows employees to seek damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction. Next, by passing this law, Congress must be seeking to enforce a right guaranteed by certain other provisions of the Constitution. For purposes of civil rights cases, the most common constitutional provision that Congress is seeking to enforce is the Fourteenth Amendment guarantee of “equal protection of the laws.” Section 5 of the 14th Amendment allows Congress to enforce this provision by passing “appropriate legislation,” which can have the effect of making unconstitutional conduct illegal, and also working as a deterrent to prevent the denial of equal protection from happening in the first place.

However, if Congress goes too far in passing this type of remedial legislation, it is up to the courts to stop Congress from exceeding its authority, as Congress cannot expand or rewrite the 14th Amendment when passing the laws intended to enforce it. The test to determine whether Congress has overstepped its bounds is called the “congruence and proportionality” test. This language was first adopted by the Supreme Court in 1996, in the case of City of Boerne v. Flores, where the Court ruled that this type of legislation must demonstrate “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” What this essentially means is that the remedy must very closely match the harm: if the remedy is too much or the harm is too little when compared to the remedy, the law will be found to be unconstitutional when applied to the states.

So the Court took a look at the harm that the FMLA was designed to prevent, to determine whether the remedy, being able to sue a state for damages and reinstatement, was congruent and proportional to that harm. That harm was sex discrimination. Before the FMLA was passed, members of Congress heard testimony about workplace discrimination encountered by both female and male workers who needed to take leave, but still encountered pervasive gender stereotypes in the employment context, specifically in the administration of leave benefits. Women were often presumed to be the primary caregivers in family situations, and were therefore more likely to need leave, and to be adversely affected when leave was denied. Employers often assumed that a woman was more likely to take leave, and accordingly denied employment and advancement to women who needed (or might need, in the case of women of childbearing age) leave currently or in the future. Men suffered from gender stereotyping as well: because men were not the traditional caregivers, men who either had no choice but to be primary caregivers or who wanted to take leave, for example, for child-rearing purposes, were not entitled in some states to take leave comparable to that permitted for pregnant women. Congress heard many examples of both women and men suffering discrimination, based on different, but equally serious, kinds of gender stereotyping, which was summarized by the Court as follows:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

(See Hibbs at pages 6-11 of the PDF file for a more detailed discussion of the legislative history.)

Congress also heard testimony about discrimination against older workers when passing the Age Discrimination in Employment Act (ADEA) and against disabled workers when passing the Americans with Disabilities Act. Yet as noted above, in Kimel and Garrett, the Supreme Court (with Rehnquist and O’Connor as part of the majority) previously refused to allow state workers to maintain the same kind of lawsuits against the states as were at issue in Hibbs. While you can quibble about how much evidence of past discrimination by states (not just in the private sector) was before Congress when passing each of these laws (and Justice Kennedy, who writes the primary dissenting opinion does quibble about that), the answer, according to Rehnquist and his colleagues joining the majority, is that sex discrimination has a special elevated status under the Constitution.

Veterans of law school classes in constitutional law wil remember the debate and discussion over whether the standard governing gender-based classifications should be called “heightened scrutiny” or “intermediate-level scrutiny,” but it’s definitely not “rational basis.” What these various tests refer to is the level of justification a state must provide for discriminating against a particular group of its citizens. Under the rational basis test (the lowest standard), a state merely has to show that it has “a rational basis for [discriminating] at a class-based level, even if it ‘is probably not true’ that those reasons are valid in the majority of cases.” (See Kimel, 528 U.S. at 86.) While it is occasionally possible to show the irrationality of the state’s conduct (see, for example, Romer v. Evans, where the Court held that the state of Colorado’s discrimination against its gay and lesbian citizens didn’t pass constitutional muster), generally it is not very hard for a state to demonstrate a constitutionally acceptable rational basis for discrimination.

A state that wants to discriminate on the basis of gender, however, must show that the discriminatory law, policy or activity “serv[es] important governmental objectives,” and “the discriminatory means employed [is] substantially related to the achievement of those objectives.” That’s tougher for states to demonstrate, and here, the Court found that there was sufficient evidence of constitutional violations by states denying family leave on the basis of gender stereotyping for Congress to attempt to remedy the problem by passing the FMLA. Therefore, the remedy chosen by Congress, a unpaid family-leave guarantee for full-time employees employed for a year or more, which permits those whose rights are violated to sue for damages, was considered “congruent and proportional.” While Congress could have simply said that states and private employers could not discriminate on the basis of gender for providing leave, the most likely response would have been for employers to simply not provide leave at all. Since the need for leave disproportionately falls on women, women would still suffer discrimination in disproportionate amounts, and so Congress did not go too far, in the Court’s opinion, in requiring that everyone who qualifies be allowed to take a certain amount of unpaid leave without adverse consequences.

What are the implications of this ruling, especially if you’re not a state employee or don’t expect to take leave any time soon? One, it prevents the protections provided by the FMLA from being further eroded. This is only the 2nd FMLA case decided by the Supreme Court, and in the previous case, Ragsdale v. Wolverine World Wide, Inc., the Court scaled back some worker-friendly provisions found in Department of Labor regulations interpreting the FMLA. It is thus encouraging to see a case that upholds the FMLA in a way that not only benefits workers, but reinforces the constitutional objectives underlying the law. It also demonstrates that there are some limits in how far the Court’s federalism cases will go. Over the last several years, civil rights advocates had become increasingly discouraged about the constitutional validity of any law protecting state workers–this shows that there are some protections left, and that it is unlikely, for example, that the Court will undo a previous decision applying Title VII, the primary federal antidiscrimination law protecting against race, color, sex, religion and national origin discrimination, to the states.

However, there are a couple of cautionary notes to be sounded. One involves the standard that Justice Scalia proposes to adopt in his dissent. Justice Scalia would require workers hoping to overcome their state’s immunity to show that their state, not just the states collectively, have a history of discrimination. In this case, for example, Hibbs would have to show that Nevada had a history of denying workers leave, not just that some states other than Nevada had a history of denying leave that Congress considered when crafting a legislative remedy. While Scalia’s approach did not command a majority here, if the composition of the Court changes (Chief Justice Rehnquist and Justice O’Connor are rumored to be considering retirement, allowing the Bush Administration and Republican Senate to appoint one or more Supreme Court justices if that happens in the next year and half.), Scalia’s position could ultimately win out in future federalism cases. One other lingering question, not before the Court in this case, is whether the FMLA’s provision guaranteeing leave for one’s own medical condition would be considered congruent and proportional, or whether it would be rejected for the same reasons that disability discrimination protections were rejected in the Garrett case. Those questions may indeed be considered at some future point, but today, workers can celebrate the Hibbs victory.

Genetic Discrimination Bill Advances

Thursday, May 22nd, 2003

Yesterday (5/21), while the decidedly partisan deals were being cut on tax reform, one Senate committee was hard at work crafting a bipartisan solution that actually benefits workers for a change. The Senate’s Health Education Labor & Pensions (HELP) Committee unanimously (!) passed the Genetic Information Nondiscrimination Act (S 1053), a bill that would bar employers and insurance companies from discriminating against people based on their genetic histories. While Democrats and Republicans rarely agree on anything in the Senate these days, this bill passed as a result of a compromise on Tuesday night by nine senators, including the leaders of both parties. (See New York Times article.)

In short, the bill would bar health insurance companies from using genetic information to deny coverage or to set premiums, and would prohibit employers from using such information to hire or fire workers. Neither insurers nor employers could ask for genetic information or require people to take genetic tests. (See Kansas City Star article.) According to a more detailed summary prepared by the HELP Committee, the bill:

Protects against genetic discrimination from health plans and insurance companies:

• Prohibits health insurance plans from denying an individual enrollment in the plan because of individual’s or family member’s genetic information.

• Prohibits health insurance plans from charging higher premiums to individuals because of individual’s or family member’s genetic information.

• Prohibits health insurance companies from basing premiums of a group health plan on genetic information of members (including family members) of the plan.

Keeps genetic information private:

• HHS privacy rules govern the use and disclosure of genetic information, except this bill also:

• Bans the use and disclosure of genetic information for insurance underwriting purposes.

• Bans the collection (i.e., requesting, requiring, and purchasing) of genetic information for purposes of underwriting.

• Prohibits insurance companies from collecting genetic information prior to enrollment in any plan.

Structure and Enforcement of Health Provisions:

• Creates a single federal standard for protection of genetic information, which does not exist today.

• Generally builds on the existing law framework under HIPAA. In doing so, this ensures that genetic

information is treated consistently with other health information and individuals, who face

discrimination, whether they are healthy, sick or disabled, have the same rights and remedies.

• The non-discrimination provisions are enforced in same manner as current law, however some

procedural protections are established for group health plan participants including the ability to seek

injunctive relief and to have retroactive reinstatement of coverage for violations. Penalties may be

payable to the individual or levied against the plan.

• The privacy provisions are enforced in the same manner as HIPAA privacy rules through HHS Office

of Civil Rights; with the same civil penalty and criminal enforcement structure.

Protects employees from genetic discrimination at the workplace:

• Prohibits the use of genetic information in employment decisions, such as hiring, firing, job

assignments, and promotions.

• Prevents the acquisition and disclosure of genetic information.

• Applies the same procedures and remedies as other forms of employment discrimination, such as race

under the Civil Rights Act of 1964 and disabilities under the Americans with Disabilities Act of 1990.

Supporters say the bill is long past due, given the advances in technology, including the mapping of the Human Genome and the development of tests that can predict whether a patient is vulnerable to a wide array of genetic disorders like breast cancer and neurological ailments like Huntington’s disease. But many people shy from the tests that might save their lives or lead to major scientific advances, fearing the loss of health insurance or a threat to their work. Some companies have even started performing genetic testing on their employees, even in the face of much legal uncertainty about whether such testing is legal. Last year, Burlington Northern Santa Fe Railway paid over $2 million to settle claims with employees who after developing symptoms for carpal tunnel syndrome, were forced to submit to genetic testing. (See Reuters article.) The passage of this legislation would prevent such future abuses, and encourage the lawful use of testing to promote scientific advances and better health, rather than impede employees’ employment and advancement.

The bill was first introduced in the Senate in 1997 (1997 version) by Sen. Olympia J. Snowe (R-ME), and then was aimed only at health insurers. While the idea attracted the support of prominent senators such as Sen. Bill Frist (R-TN), now the Republican leader, and Sen. Tom Daschle (D-SD), the Democratic leader, the measure nonetheless languished for several years. Insurers objected to language that they said would prevent them from collecting information that could help them manage the health care of patients with genetic diseases, so that section was removed. While Republicans wanted to limit the bill to health insurers, Democrats wanted to see it expanded to include employers; it now includes employers.

Given the bill’s strong bipartisan recommendation from the HELP Committee, it is expected to easily pass the Senate. Its fate is more uncertain in the House of Representatives, however. A similar measure, the Genetic Nondiscrimination in Health Insurance and Employment Act (HR 1910), has been introduced in the House by Rep. Louise McIntosh Slaughter (D-NY), and already has over 140 cosponsors. The bill also has the support of Tommy Thompson, Secretary of Health & Human Services (HHS), who indicated his support in a recent letter to HELP Chair Sen. Judd Gregg (R-NH). It is hoped that the Senate’s action yesterday finally represents significant progress, and will lead to swift passage of new protections against genetic discrimination.

More resources on genetic discrimination:

Genetic Alliance Genetic Discrimination Resources

Genetic Information and the Workplace Enacted State Legislation

ACLU Genetic Discrimination in the Workplace Factsheet

CRTRA Provision Not Part of Final Negotiated Tax Package

Wednesday, May 21st, 2003

As previously reported here, the Senate on May 15 passed its tax package, the Jobs and Growth Tax Relief Reconciliation Act of 2003, which contained one of the reforms that is part of the Civil Rights Tax Relief Act (House version/Senate version). Section 521 of the Senate bill contained a provision eliminating the double taxation of attorneys fees in employment discrimination and civil rights cases. (If this search doesn’t work, go to the Thomas web site and search by the bill number, S 1054. The CRTRA provision is sect. 521). This would allow plaintiffs incurring legal fees in discrimination cases to take an “above-the-line” deduction of the legal fees, putting attorneys fees on the same footing as other business expenses that are fully deductible (dollar-for-dollar) from income. For more information on this topic, see WF’s fair taxes page.

However, we have recently learned that this provision, along with a large number of other additions and amendments, is not part of the final tax package negotiated with the House of Representatives. While we have not yet seen the final language, the House and Senate are both expected to pass a bill this week that does not contain the attorneys fees provision or any other part of the CRTRA. We are told that there will possibly be future tax reform opportunities later this year, but this measure will not be part of the measure that the President is expected to sign by Memorial Day. For more information on the tax cut that was negotiated, see Washington Post article.

We will continue our efforts to get this bill passed this year, and will work to ensure that the provisions added to larger tax packages include all plaintiffs who have won or settled cases in this tax year (which the Senate provision did not do) and the other pieces of the CRTRA that were not included in the Senate tax package (removing the taxability of emotional distress damages and the additional taxation of lump sum back wage awards.)

Please continue to lobby Congress on this subject: if we are to pass legislation this year, we must keep up the pressure. At the Workplace Fairness Action Center, please respond to one of the action alerts listed below: Stop Taxing Discrimination Awards Unfairly! (for those not currently involved in a civil rights lawsuit); or our second alert especially designed for Current Plaintiffs in Civil Rights Cases.

Our web site’s current update page will continue to report new developments as they happen, as will the NELA web site, so please visit often and keep those letters to Congress coming.

What Not to Do at Work

Tuesday, May 20th, 2003

I’ve recently become a fan of the TV show “What Not to Wear.” (There’s both a British version on BBC America and an American version on TLC–aside from the different hosts and the difference in American and British sensibilities, the two are otherwise the same). The premise is this: well-meaning friends identify someone who needs serious fashion help, and submit surreptiously-taped videotape to the show’s producers. Those selected for the show get a considerable sum of money ($5000 US /&pound2000 GB) to throw out their old clothes and select a whole new wardrobe. They also receive a hair and cosmetic makeover to complete their new look. The conditions of the gift are, however, that they use the money to buy more flattering outfits, chosen according to the fashion rules established by the show’s co-hosts. Most find it difficult to break their old fashion habits and follow the new rules, but do make a considerable effort to try new and different types of clothing, in the end generally achieving the dramatic and more flattering results hoped for by the show’s hosts and the guest’s friends and family.

The other day, when reading a published appellate decision for inclusion in our site’s “This Week in the Courts” feature, I devised an idea for a new TV show called “What Not To Do at Work.” The premise is similar to “What Not to Wear.” Well-meaning family members or coworkers identify a talented worker whose job is in nonetheless in jeopardy due to the choices he or she makes in the workplace. The show selects workers whose talents are valuable and whose jobs are worth saving, who agree to work with the show’s co-hosts, an attorney and a job counselor, to determine “what not to do at work.” My show would be much less expensive to make, as it wouldn’t involve an expensive shopping spree. In fact, employers would save money by not having to face a messy termination, potential lawsuit, or severance pay–in fact, maybe employers should pay me to do the show (like that’s going to happen.)

The point is that even the most determined employee advocate (and I place myself firmly in that category, as you would expect of an employee of an organization called Workplace Fairness) occasionally is confounded by certain appellate cases, and can’t help but wonder how certain situations escalated so far as to reach a federal appellate case. Admittedly, there are at least two sides (and often more!) to every story, and the version you read in the opinion may not adequately represent the full story, either because certain relevant evidence was inadmissible and thus could not be considered by the court, or because key details took place in private “he said/she said” situations that could only be related by biased parties. But nonetheless, it’s possible to hear about certain cases and wonder why friends and family members didn’t insist “you’ve gotta let this one go.” (Perhaps they did, and the employee was just too entrenched or stubborn to listen.) These are the kind of cases that make it harder for other workers to be taken seriously, however, so intervention at an early point really does benefit everyone.

The case that triggered my TV production fantasies was Driver v. United States Postal Service. Plaintiff Bill Driver had worked for the U.S. Post Office for 15 years when he was transferred due to a long-running feud he had with another co-worker, Carolyn Markham. Because the transfer caused Driver to lose seniority, he filed a lawsuit against his union for failing to pursue his grievance over the transfer and the Post Office for allegedly violating the collective bargaining agreement. It is clear from the court’s description than Bill Driver and Carolyn Markham did not get along. Not at all. Ms. Markham complained about Driver’s work and demeanor, bothered Driver with phone calls at home and at work, and accused him of sexual harassment and other misconduct; however, the Postal Service found Ms. Markham’s most serious allegations unsupported. Ms. Markham’s husband also became part of the feud, coming into the post office, staring at Driver and others for long periods of time, belittling employees, and accusing Driver — falsely, investigators later found — of stealing post office equipment. Driver, for his part, complained to the postmaster about Markham’s work performance, circulated a petition claiming that work conditions had been “very stressful since the hiring and problems caused by Carolyn Gregory Markham,” and according to other employees, found other subtle ways to antagonize Markham.

Various postal supervisors spent considerable amounts of time trying to determine fault, and when that was impossible, tried to no avail to diffuse the conflict. Customers were aware of the conflict and complained. Union officials, who represented both employees as members of the union, tried as well to diffuse the situation. The conflict went on for over three years–years that were very long indeed for Driver and Markham’s coworkers, who were constantly surrounded by conflict. Finally, both employees were transferred to different post offices, reasoning that even if only Markham were transferred, Markham’s husband was still a customer of the Carthage post office, and would still be able to continue the conflict if Driver remained.

One thing is reasonably clear to me when reviewing this case. If Driver and Markham were not unionized employees with just-cause protections against termination, their employer would never have tolerated their mutual animosity and the office conflict it caused for nearly so long. The union was also exceedingly patient as well: union official James Green testified that he made several trips to the Carthage Post Office to deal with their disagreements, and he spoke with the postmaster “several” times, in the postmaster’s words, and perhaps as many as twenty-five. This was in addition to the more than fifty times he claims to have spoken to each of the two employees themselves about their battle. Both parties are also lucky that both the union and postal service management were able to remain neutral as to the conflict between the two employees, for in other similar situations where fault is unclear, there are instances where management nonetheless chooses sides and accordingly disciplines the employee deemed to be more at fault. But the real question is why no one was able to convince Bill Driver to set aside his animosity towards Carolyn Markham and just do his job, and why Driver insisted in litigating his interpersonal dispute all the way to the Sixth Circuit Court of Appeals.

We may never know what was at the heart of this particular conflict; only Driver and Markham do, and their perceptions of the feud at this point are obviously worlds apart. But on “What Not to Do At Work,” Driver would be forced to explain to a career counselor and attorney why participating in and maintaining this extreme level of workplace conflict for several years could ever be worth it, personally or professionally. Even after he was transferred, Driver was unhappy with the long commute, but how could a long commute be worse than the level of conflict he was part of each day in the Carthage post office? Carthage employees greatly welcomed the transfers as well, and said that “the office had become so much more pleasant without Driver and Markham.” and that Carthage had finally become “a nice place to come to work now.”

It really seems that what Driver most wanted was to be officially declared “right,” and have Markham officially declared “wrong.” It shouldn’t take an attorney and a job counselor, however, to get across that while employees have a number of rights in the workplace, there’s no “right to be right,” especially when your interpersonal conflict makes work simply unbearable for your coworkers. So if you’re that supportive friend, family member or coworker, the best thing you can do (until my TV show comes on, that is) is to give that person a reality check, as the likelihood of being declared “right” when you’re participating in extreme levels of interpersonal conflict at work is slim indeed. It just may mean the end of a job.

Whose Recession Is It Anyway? And Does It Matter?

Monday, May 19th, 2003

The headline caught my eye: Deciding Who Hurts Most in a Slump. The recent New York Times article, by labor reporter Steven Greenhouse, asks the question whether the current recession is more of a white-collar slump or a blue-collar slump. While there are certainly arguments to be made in favor of both positions, the piece ultimately fails to draw a firm conclusion either way.

The article begins by discussing some of the more unexpected layoffs when compared to previous recessions: “Goldman Sachs dismisses 2,900 workers in 2002 alone, while J.P. Morgan Chase lays off 2,000. Dozens of Silicon Alley start-ups go under while $300,000-a-year tech whizzes are laid off and become sales clerks at apparel shops to support their families.” The last statement refers to the story of Jeff Einstein, profiled in the New York Times Magazine article, Commute to Nowhere, who becomes a Gap salesman as a last resort after being unable to find comparable employment to his position as an executive vice president paying $300,000 a year. “Commute to Nowhere” and other articles like it tell the story of a recession that has hit white-collar workers especially hard.

Dr. Irwin Kellner, an economics professor at Hofstra University, echoes the belief that this recession is primarily a white-collar one. He says, “[i]t’s true that manufacturers have cut their payroll 39 months in a row, but with the three-and-a-half-year bear market, there have been massive layoffs in New York of brokers, bankers, analysts and other people associated with Wall Street. And of course there’s been the dot.com implosion, which has hit Silicon Alley.” Kellner looked at nationwide numbers based on employer payroll records to conclude that managerial and professional specialty workers represent 17 percent of the unemployed, nearly double the 9.5 percent level during the 1990-91 recession and up from 13 percent three years ago, before the current slump started.

Other economists disagree, believing that the unemployment of white-collar workers is receiving a disproportionate amount of attention, based on statistics showing that blue-collar workers remain unemployed in a percentage that is proportionately higher than their percentage in the workforce at large. In an analysis conducted by the Community Service Society of New York City, researchers found that 78 percent of New York City’s unemployed are workers in manufacturing, construction, service, clerical and sales jobs, while 22 percent of the unemployed are white-collar workers, defined as executive, managerial, professional or technical. (See A Portrait of Inequality: Unemployment and Joblessness in New York City, 2002.) Study author Mark Levitan found that “blue-collar workers are pretty strongly over-represented among the unemployed and that white-collar workers are pretty much underrepresented,” based on statistics which indicate that executives and managers make up 14.5 percent of the city’s labor force but just 9 percent of the unemployed, while professional and technical workers comprise 20 percent of the work force, but just 13 percent of the unemployed. In contrast, blue-collar workers, defined as those in manufacturing, construction and repair work, represent 20 percent of the labor force but 30 percent of the unemployed.

Why does it matter whether it is a blue-collar recession or a white-collar position? Some theories offered by Greenhouse:

Some advocates have seized on the notion of a blue-collar slump with the aim of persuading policymakers to give more aid to the lower strata of city workers. But other advocates have embraced the idea of a white-collar slump, believing that politicians will grow more concerned knowing that affluent workers have been hit hard.

And some refuse to make that judgment call at all: James P. Brown, who analyzes the New York City’s economy for the State Department of Labor, argued that the important issue was not whether the downturn was blue-collar or white-collar, but that the city was in a protracted slump, affecting everyone: “We have unemployment rising,” he said. “We have a lot of layoffs in the financial sector, white-collar and clerical support. That leads to less office buildings being built, which hits blue-collar workers because there is less construction going on.” James Parrott, chief economist for the Fiscal Policy Institute, a union-backed research group, said both sides are right: “It’s both a white-collar recession and a blue-collar recession. It’s a severe recession that’s touched virtually every occupational and industrial sector.”

Another dichotomy not even discussed by Greenhouse which is nonetheless present, is whether male or female workers are most bearing the brunt of this recession. In Commute to Nowhere, the author focuses on the “special” impact of the recession on males.

By the numbers, women have been hit as hard as men, but white-collar men tend to experience unemployment differently, organizational psychologists say. For most women, survival trumps ego; they simply adapt and find some job. For men, grappling with joblessness inevitably entails surrendering an idea of who they are — or who others thought they were.

However, in a piece published in The Nation, author Katha Politt asks “How do we know the economy is in bad shape? Unemployed white male hotshots are back in the news.” She goes on to observe, in response to the previous Commute to Nowhere quote:

It’s all about masculinity, Mahler informs us. Women have been as likely to lose their jobs as men in the current climate, but “for most women, survival trumps ego; they simply adapt and find some job.” I like that “simply.” No cover story there.

But wait. Those $10-an-hour jobs, the ones we’re supposed to pity the men for having lowered their masculine dignity to take, look kind of familiar, don’t they? They’re the “good jobs” women on welfare are encouraged to get, the ones that are supposed to transform them from mooching layabouts to respectable, economically self-sufficient, upright and orderly citizens….

What happened to all those homilies about personal responsibility and the dignity of a job–any job–that were trotted out to justify forcing welfare mothers to work off their checks at subminimum wage by cleaning toilets in public parks or scraping chewing gum off subway platforms? Somehow, those sermons don’t apply to Mahler’s guys, but only to those single mothers of small children who get up at dawn for long bus rides to jobs as waitresses or hotel maids or fast-food workers–jobs that one calls “menial” at the risk of being tarred as an elitist snob by welfare-reform enthusiasts…

Pollitt’s point is very well taken–a double standard does appear to be hard at work here.

It also appears that women may have even fewer resources to withstand unemployment. While the men “commuting to nowhere” have 401(k)s and savings accounts to exhaust, severance payments which initially provided some cushion, and working spouses providing some familial support, a new report shows that “the rising jobless rate is often harder on women because their tendency to earn less and work part-time so they can care for family members disqualifies them from unemployment benefits in many states.” (See Women’s E-News article.) In the study Between a Rock and a Hard Place: Confronting the Failure of State Unemployment Insurance Systems to Serve Women and Working Families, conducted by the National Employment Law Project, researchers found that in 41 states, unemployed men are more likely than unemployed women to receive jobless benefits. Some of the reasons for this difference:

• Almost all states require workers to meet a minimum income eligibility standard in order to receive unemployment benefits. Since women make up 60 percent of low-wage workers, they are less likely than men to meet the income requirements.

• When women do qualify for unemployment benefits, their checks are usually lower than men’s because their wages are lower. On average, women earn 76 cents for every dollar earned by men.

• Family duties also contribute to the unemployment-insurance gender gap: women make up 73 percent of all family primary caregivers and also comprise 70 percent of part-time workers. In 33 states, workers are not eligible for unemployment insurance unless they are able to look for full-time jobs, and 30 states lack adequate provisions for workers to collect unemployment when they quit their jobs for family reasons.

• Women are also more likely than men to leave their jobs due to sexual harassment or domestic violence. Though state unemployment programs are designed to pay benefits to people who lose jobs through no fault of their own, women who suffer from violence or harassment do not fit that definition in a vast majority of states. Only 13 states allow workers who quit their jobs due to sexual or other harassment to collect unemployment benefits, and only 18 states have unemployment insurance that covers women who leave their jobs due to domestic violence.

Like Pollitt suggests, the fact that women are unemployed in vast numbers, yet in many cases unable to access even the minimal safety net unemployment insurance provides, is not nearly as newsworthy as the continued unemployment of white male executives.

What will it take, policymakers? If it takes vast amounts of white-collar unemployment for lawmakers to sit up and take notice, then by all means, this is a white-collar recession–certainly, there are no shortage of examples. However, this is not license to forget all the rest of the unemployed: the blue-collar workers whose jobs have been eliminated as a result of technological advances and overseas migration; the single mother struggling to balance family responsibilities and low-wage employment; and the minority workers who cannot get hired due to the combination of a recession and simultaneous decline of diversity and affirmative action work. All those people are out of work too, and just as miserable, if not more so, than the white-collar workers who are shocked, shocked! to find themselves in this position for the first time ever.

Tax Relief Measure Passes Senate

Friday, May 16th, 2003

Last night (5/15), after the usual amount of philosophical amendments and long-winded debate, the Senate passed its tax package, S 1054, the Jobs and Growth Tax Relief Reconciliation Act of 2003, on a 51-49 vote, mostly but not strictly along party lines. (See S 1054 Vote for more information.) While the passage of this measure is significant for many reasons, because of the tax breaks that will affect most if not all taxpayers, it is especially significant for workers, as the final package passed by the Senate contains one of the reforms that is part of the Civil Rights Tax Relief Act (House version/Senate version).

Section 521 of the Senate bill contains a provision that will eliminate the double taxation of attorneys fees in employment discrimination and civil rights cases. (If this search doesn’t work, go to the Thomas web site and search by the bill number, S 1054. The CRTRA provision is sect. 521). This provision was previously inserted in the bill during the Senate Finance Committee’s markup of the bill, and remained intact at the conclusion of the vote by the full Senate to ratify its tax relief package. The Senate provision would allow plaintiffs incurring legal fees in discrimination cases to take an “above-the-line” deduction of the legal fees. This puts attorneys fees on the same footing as other business expenses that are fully deductible (dollar-for-dollar) from income, rather than subject to various limitations that “below-the-line” miscellaneous itemized deductions face, including the alternative minimum tax, the 2% floor, and phaseouts at higher income levels–all of which often mean that only a very small amount of attorneys fees is now deductible. For more information on this topic, see WF’s fair taxes page.

Also added as an amendment to the Senate package is another provision which will assist some workers who litigate discrimination and civil rights cases. Sen. Orrin Hatch (R-UT) submitted an amendment (No. 627) affecting the taxation of punitive damage awards. In the same 1996 change in the law that made emotional distress damages taxable (see WF’s fair taxes page for further information), punitive damages were also made taxable. However, under the laws in some states, which Hatch’s amendment refers to as “split-award statutes,” those who win punitive damages are required to give a certain fixed percentage of that award to the state, rather than keeping the amount themselves once they receive a judgment. The Hatch amendment would prevent plaintiffs from being taxed on the amount of the award that goes to the state, as well as on the portion of attorneys fees attributable to that share of the award. Like the provision discussed above, this amendment would prevent plaintiffs from being taxed on money that they never see and is theirs in name only. However, it will only apply to a very small number of people, as virtually no settled cases involve punitive damages (defendants generally do not admit fault when cases are settled), and many of the cases where punitives are initially awarded by a jury are ultimately settled on appeal without punitives. This amendment passed as a unanimous consent measure (deemed uncontroversial), not subject to a separate vote.

Despite the excitement about having these provisions for the first time in a bill passed by the Senate, the bill is not perfect. For those who have cases pending, there is one aspect of the provision that is very important for you to know about. The Senate provision would only apply to awards received after the date of enactment. The specific language reads as follows:

The amendments made by this section shall apply to fees and costs paid after the date of the enactment of this Act with respect to any judgment or settlement occurring after such date.

This means, that until it is more clear whether or not the measure will pass this year, you may wish to delay receipt of any award you would otherwise receive while the bill is pending, if at all possible. (You should, of course, consult with your attorney immediately for further information.) Otherwise, any award containing attorneys fees that you receive before the bill becomes effective would be subject to being taxed, when receiving the award later could help you avoid paying taxes on the attorneys fees. We will continue to report new developments here, as will NELA at its web site.

Now that the Senate bill has passed, it must be reconciled with the version of the bill passed by the House of Representatives, which does not contain the CRTRA and punitive damages provisions. At this point, the two houses would typically work to resolve the key differences between the two bills in a conference committee. However, the House may be balking, due to major philosophical differences with the Senate approach, and may not cooperate at this point with the Senate in conferring on the bill. (See Detroit Free Press article.) Thus it remains to be seen whether the conference process will start any time soon, despite President Bush’s desire to pass tax relief by Memorial Day. (See Washington Post article.)

Everyone should now be contacting key players on the House Ways & Means Committee as well as the Senate conferees (see lists below) to ensure that the bill which ultimately emerges includes this provision and has an effective date that covers all settlements and awards after 12/31/02. This may be the most realistic date we can hope for.

Republican CRTRA supporters on the Ways and Means Committee:

Nancy Johnson (CT)

Amory Houghton (NY)

Mark Foley (FL)

Phil Crane (IL)

Phil English (PA)

Republican Ways and Means Committee Members who have been CRTRA co-sponsors in the past:

Jim Ramstad (MN)

Jennifer Dunn (WA)

Scott McInnis (CO)

Republicans in leadership positions in the House who are CRTRA co-sponsors:

Principal House Sponsor Rep. Deborah Pryce (OH)

F. James Sensenbrenner (WI)

Tom Davis (VA)

Senate Conferees:

Charles E. Grassley (IA)

Orrin Hatch (UT)

Don Nickles (OK)

Trent Lott (MS)

Max Baucus (MT)

John D. Rockefeller (WV)

John Breaux (LA)

If you are from any of these states, it is especially important that you let these Members of Congress TODAY know that this is an important issue and that their support is imperative. Please visit the Workplace Fairness Action Center today, and respond to one of the action alerts listed below: Stop Taxing Discrimination Awards Unfairly! (for those not currently involved in a civil rights lawsuit); or our second alert especially designed for Current Plaintiffs in Civil Rights Cases. We’re farther along than ever, but we still have a long ways to go, so please help us today!

Nannies Are Doing It For Themselves

Thursday, May 15th, 2003

Yesterday (5/14) was a landmark day in New York City and perhaps even for the country at large, as the New York City Council passed the first legislation of its kind in the nation giving domestic workers rights, such as making them aware of labor laws regarding salary, benefits, and vacations. The bill, Int. 96-A, requires that employment agencies notify nannies and other live-in workers in writing about their responsibilities, wages, and expected hours. Families hiring domestic workers through an agency must sign an agreement that they are aware of the domestic workers’ rights regarding minimum wage, overtime pay, and Social Security. Violations can bring a $1,000 fine and one-year prison sentence. (See Christian Science Monitor article.) West Side Councilmember Gale Brewer, who drafted the legislation, said it was a concrete way to help bring “dignity and respect” to the city’s estimated 600,000 domestic workers who are often overlooked or mistreated. (See Stated Meeting Report.)

Passage of the new legislation was largely the result of the hard work of many domestic workers themselves. Domestic Workers United (DWU), a grassroots group of nannies, housekeepers, and elder-care givers, was the primary group pushing the bill forward. The new legislation is the culmination of DWU’s campaign, which begain over a year ago, called Dignity for Domestic Workers. DWU organizers visited parks around the city where domestic workers bring their charges, and urged them to tell their stories and write letters in support of the legislation, facing many challenges. “It’s really hard to galvanize domestic workers, because we’re dispersed in isolated homes and sometimes working 11, 12 hours a day,” said Carolyn H. de Leon, a former household worker who is a founder of DWU. (See Village Voice article.) DWU’s campaign also drew little attention from policy makers at first. When first starting their campaign, they had trouble merely confirming that councilmembers were receiving their letters, as they continued to barrage legislators’ offices with information about subminimum wages, long hours, and sexual and racial harassment. But DWU and its allies persevered until they had the backing of the City Council and Mayor Michael Bloomberg

The bill contains a set of very basic protections often denied domestic workers. The bill requires domestic-work placement agencies to inform applicants of job conditions in writing. Most important, agencies would have to obtain a signed acknowledgment from a hiring family that it understands rules concerning wages, hours, Social Security, and other basic obligations. Under current law, these workers are to receive overtime after 40 hours a week, unless they are live-ins, who are entitled to time-and-a-half overtime pay after 44 hours. The federal minimum wage of $5.15 an hour covers all domestic workers.

The emphasis on documentation speaks to the lack of formality in the private-home-based industry, which impedes wronged workers and, sometimes, employers from proving their claims. Agencies would have to keep copies of these records for no less than three years. Under the law, enforceable through the Department of Consumer Affairs, violators could be fined as much as $1,000 and possibly be imprisoned up to one year. Advocates for domestic workers said the bill should help stop the many abuses faced by these workers. Many domestic workers complain about being paid for 40 hours’ work when they work 50- or 60-hour weeks. Some also complain about having to work seven days in a row, about not being given any paid vacation and about not having private rooms when they are live-ins. (See New York Times article.)

The measure will now provide some protection for an estimated 600,000 domestic workers live in the New York City area. Most are immigrants, who are often not aware of labor laws or are scared to challenge employers out of fear of losing their jobs or visas. One of the domestic workers who testified before the City Council is Justina Dumpangol, a Maylasian native, who worked for a New York family 2-1/2 years ago. She told the Council of her experience of being pushed down basement stairs by a child she was caring for and left lying semiconscious until an ambulance was called. “He locked the door behind me, and I was there for a very long time,” says Ms. Dumpangol. That moment marked the beginning of what the Malaysian native calls a period of “abuse, exploitation, and humiliation.” When Dumpangol tried to complain about her working conditions to the agency that had placed her, she says she was told she was too old (59 at the time) to be choosy about her jobs.

Ms. Dumpangol’s story, unfortunately, is not atypical. In a study of immigrant domestic workers released in June 2001, the organization Human Rights Watch detailed some of the horrors faced by domestic workers who hold special temporary visas to work as live-in migrant domestic workers.

In the worst cases, the domestic workers are victims of trafficking-deceived about the conditions of their employment, brought to the United States, and held in servitude or performing forced labor. They work up to nineteen hours per day; are allowed to leave their employers’ premises rarely and virtually never alone; are paid far less than the minimum wage, sometimes $100 or less per month; are ordered not to speak with individuals outside their employers’ families; and are psychologically, physically and/or sexually abused. In these cases, workers’ isolation is so extreme and the culture of fear created by their employers through explicit threats and/or psychological domination is so great that the workers believe they will suffer serious harm if they leave their jobs and have no choice but to remain in and continue laboring in abusive conditions.

Although this description represents the most extreme cases, HRW also found that workers suffered one or more forms of abuse in the vast majority of employment relationships examined. Workers were commonly paid significantly below the minimum wage and worked long hours, with the median hourly wage in the cases reviewed $2.14 (including deductions for room and board) or only forty-two percent of the median federal hourly minimum wage of $5.15. The median workday was fourteen hours. Workers were also rarely free to leave their employers’ homes without permission, resulting in the imposition of myriad restrictions on their freedom of movement, most often only being allowed to leave the employers’ premises on their days off. (See HRW Report Summary.)

This legislation has been a long time in coming. During the New Deal of President Franklin D. Roosevelt, legislators argued that they were household workers rather than industrial employees and did not require the same protections, said Phyllis Palmer, professor of American civilization and women’s studies at George Washington University. During the 1970s, Social Security and minimum wage laws extended to nannies. But legalizing this work has pushed much of nannies’ pay off the books, Palmer said. “They’re completely wage laborers and yet they’re still being treated as wards of the family,” she said. “The fact that this is just paid employment vanishes in this beautiful romantic picture of caring for children.” (See Washington Post article.)

The bill is not perfect: it does not apply to those domestic workers who are not hired through employment agencies, but rather through word-of-mouth or personal connections. One critic, agency owner Clifford Greenhouse, said the measure would do little for domestic workers because only a small percentage of them are placed by employment agencies. “The licensed agencies are placing people in positions that far exceed the legal standards, even double or triple,” he said. “This legislation is asking the agencies to police the very people that are paying our fees. They’re also asking families to commit to very rigid job specifications which change almost daily in a private home.” However, this legislation is an important start, and the Domestic Workers Union’s success will undoubtedly inspire other similar movements around the country to improve conditions for domestic workers.

Say What You Will About France...

Wednesday, May 14th, 2003

The nation of France is not at its height of popularity right now in the United States, to put it mildly. Primarily due to the French opposition of the war against Iraq, many Americans are boycotting French products and generally denouncing all that is French.

Sales of French wine have dropped. (See Daily Star article.) French food, whether imported or served at French restaurants, is still being boycotted (See Seafood.com article.). Even the most Americanized of diet staples, the French fry, has not escaped the wrath of some: in some places, including a Congressional cafeteria, they are now called “Freedom Fries. (See Daily Telegraph article.) Tensions between the countries, while abating somewhat due to the end of the war and attempts to normalize relations, still remain high, as France is now accusing the United States of engaging in a purposeful “disinformation” campaign to tar France as a collaborator with Iraq because of its opposition to U.S. military action to topple Saddam Hussein’s regime–a charge that US officials deny. (See UPI article.)

Whatever your feelings about France, however, you have to admit they know how to throw a good labor strike–one that really mobilizes workers and has a very visible (and often quite effective) impact. Today (5/14) in France was the second day of labor strikes involving more than a million workers and protestors. (See Expatica article.) The issue at stake: changes to the pension system, made necessary by France’s changing demographics which will cause the national fund to run a considerable deficit in future years if the same level of benefits is to be sustained.

The strike immediately had an impact: Some 80 percent of international and domestic flights have been cancelled at airports. Many hospitals, schools and post offices are reportedly closed. Over 100 protests have been planned across France with unionists threatening to further their cause. (See Channel News Asia article.) Those attending the world-renowned Cannes Film Festival were affected, as many were stranded at various points throughout Europe on their way to Cannes. (See Reuters article.)

It’s hard to conceive of any social cause, much less one related to pension reform, which would cause one million Americans (a much smaller percentage of the overall population here than the same number is in France) to take action, much less strike for a day or two. Hats off to the French labor unions, who have been very successful in creating a political climate where workplace concerns are near and dear to the hearts of the French citizenry. Workplace Fairness will continue to do its part to encourage more citizen involvement in workplace issues, as we would be extremely happy (and extremely effective in the political universe) if one million Americans each took five minutes to write a letter to their members of Congress about workplace issues. How many people can you personally encourage to join us?

Workplace Fairness Action Center

You Think It's Bad Here...Try the Rest of the World (Part I)

Tuesday, May 13th, 2003

The headline read: Bias Still Prevalent in Workplace. “Tell me something I don’t know,” I thought to myself. But the story actually alerted me to a recent report issued by the International Labor Organization, the United Nations‘ specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights. The report, entitled Time for Equality at Work,

examines the diverse forms of discrimination at work that have been identified and formally condemned nationally and internationally. It gives an update of the various policy and practical responses, with the aim of mobilizing greater support for the elimination of discrimination in respect of employment and occupation.

(See Executive Summary.) This is a formidable task and an admirable goal, to be sure. What does the report teach us about the world of discrimination and discrimination throughout the world?

What is Discrimination, and Why Is It So Harmful?

The report defines discrimination as “treating people differently because of certain characteristics, such as race, colour or sex, which results in the impairment of equality of opportunity and treatment.” Discrimination is harmful on both an individual and societal level:

The freedom of human beings to develop their capabilities and to choose and pursue their professional and personal aspirations is restricted, without regard for ability. Skills and competencies cannot be developed, rewards to work are denied and a sense of humiliation, frustration and powerlessness takes over. Society at large is also profoundly affected. The waste of human talent and resources has a detrimental effect on productivity, competitiveness and the economy; socio-economic inequalities are widened, social cohesion and solidarity are eroded and political stability comes under threat.

What Is the Current State of Workplace Discrimination?

The report notes some recent positive developments:

• Countries have adopted laws against discrimination and have undertaken proactive approaches to eliminate unequal treatment at work.

• Enterprises and employers worldwide have modified recruitment and hiring procedures and practices, wage-setting systems and management policies to ensure fairness at work.

• Trade unions have made equality their goal in collective bargaining and in other actions, as well as in their internal representative structures.

As a result: “[s]ome of the most blatant forms of discrimination have faded away; however, many still remain or have taken on new forms. In many cases, discrimination has acquired more subtle, less visible forms. Changes in the structure and dynamics of labour markets, which stem from broader political, economic and cultural processes, redefine patterns of social stratification and social mobility. They produce new manifestations of discrimination.” Eliminating discrimination in the workplace,

however, has broader societal implications:

The workplace — be it a factory, an office, a plantation, a farm or the street — is a strategic entry point to free society from discrimination. When the workplace brings together people with different characteristics and treats them fairly, it helps to combat stereotypes in society as a whole. It forces a situation where prejudices can be defused and rendered obsolete. A socially inclusive world of work helps to prevent and to redress social fragmentation, racial and ethnic conflict and gender inequalities. If the capacity to deal efficiently with discrimination in the workplace is not strengthened, it will be more difficult to face the challenges arising out of increases in internal and external migration, unprecedented technological change, transition to market economies with their rapidly shifting groups of winners and losers, and the need to accommodate and reconcile a variety of languages, cultures and values. This may well be the most challenging task of contemporary society, and it is essential for social peace and democracy.

(See Report Introduction.)

These excerpts are insightful and helpful as we consider the larger problem of societal discrimination and measure our efforts to promote fairness in the workplace. Further blog entries will look in more detail at some of the report’s findings and conclusions, as the breadth of the report is too vast to address in one single entry here. However, those interested in tackling the full report can access it online at the ILO site, divided into several parts:

Report: Part 1

Report: Part 2

Report: Part 3

Report: Part 4

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