Posts Tagged ‘discrimination’
Friday, January 29th, 2016
On December 30, 2015, the unanimous Commonwealth Court of Pennsylvania, sitting en banc, declared the lifetime employment ban contained in The Older Adults Protective Services Act (OAPSA) to be facially unconstitutional and enjoined Pennsylvania from further enforcement of the law (See Peake v. Commonwealth). OAPSA is a Pennsylvania law that, among other things, prohibits anyone who has ever been convicted of any disqualifying crime at any time in his or her life from ever holding any job at any covered residential health care facility. In essence, the Act imposes a lifetime employment ban, forever disqualifying individuals from work due to often long-past actions for which the offender’s debt to society has since been repaid. Even if the owner or operator of a covered facility, based upon his or her years of experience in the industry, believes that an applicant or employee with a prior conviction is the best qualified for the job, the criminal history of the applicant or employee is the only factor the employer may consider and employment is barred. Employers have no discretion to make individualized hiring decisions.
Writing for the 7-0 Commonwealth Court, Judge Leavitt ruled that the ban “is unconstitutional on its face” because “it goes beyond the necessities of the case and is not substantially related to the Act’s stated objective of protecting older adults.” The Court also found that OAPSA’s employment ban unconstitutionally imposes an irrebuttable presumption of unfitness for employment that is not universally true and that reasonable alternative means exist for ascertaining an individual’s fitness. The Court therefore granted the Petition for Summary Relief, declared OAPSA’s employment ban unconstitutional on its face, and enjoined the Commonwealth of Pennsylvania from future enforcement of the law.
Barring all individuals with prior criminal convictions from employment is antithetical to any concerns for rehabilitation and reintegration with society. An individual who has successfully completed his or her punishment after a criminal act should not be further stigmatized by being unable to get a job. Not surprisingly, recidivism rates are substantially lower for individuals with steady employment opportunities; thus, public safety is actually harmed by statutory employment bars like OAPSA or hiring practices that automatically exclude individuals with criminal records. Allowing those with prior criminal convictions to reenter the work force also saves public tax dollars by avoiding the high costs of corrections and other social service benefits to which an unemployed individual may be entitled. To successfully reintegrate an individual with a record back into society is the very epitome of a win-win situation.
In addition to making for bad public policy, lifetime employment bans such as that in OAPSA are based on a faulty premise: namely, that a past criminal act is indicative of an increased risk of future criminal behavior. Rigorous social science studies have now confirmed that after a limited number of years – four to seven years for a single conviction and no more than ten years for multiple convictions – an individual with a prior criminal conviction is no more likely to commit a criminal offense than any member of the general public. Lifetime employment bans like OAPSA, which are based on an irrebuttable presumption of “once a criminal, always a criminal,” simply are not supported by social science results.
A more thoughtful and balanced approach is required: Yes, under certain circumstances, a prior conviction may be relevant to the fitness of a specific candidate or employee for the requirements of a specific job; but those determinations must be made on a individualized basis with due consideration of all relevant factors, including the nature and severity of the prior criminal conduct, the time elapsed since the conviction, the efforts at rehabilitation and reintegration the individual has made in the interim, and the specific job requirements of the position for which he or she would be hired. The decision whether to hire an individual with a past criminal conviction is not amenable to a one-size-fits-all solution. And a lifetime ban, which completely precludes an employer from hiring an individual with a record (often from decades past), even if the employer thinks that he or she is well-qualified for the position, is irrational and counterproductive.
It’s time to bring some common sense back to this issue: Individuals with a prior criminal conviction already have plenty of barriers to overcome in becoming reemployed. Their reintegration into society should not be made impossible through misguided efforts that are premised upon faulty assumptions and actually result in increased safety risks.
A version of this article was originally published on the LeVan Law Group website. Printed with Permission.
Peter H. (“Tad”) LeVan, the lead attorney working pro bono on Peake and it predecessor case, Nixon v. Commonwealth of Pennsylvania, is a seasoned trial and appellate attorney who has tried a number of high-stakes cases against national banks, Wall Street financial institutions and a Madoff investment firm, securing settlements on behalf of injured plan participants that have exceeded $700 million
Monday, January 18th, 2016
Women filing discrimination lawsuits against Walmart are nothing new. Walmart firing people for questionable and controversial reasons is also nothing new. Now a woman is suing the low-wage retail giant, saying she was fired after complaining about discriminatory treatment. Specifically, Rebecca Wolfinger says her boss told her she had to “choose between her career and her kids.”
Wolfinger’s suit focuses on what she claims was her mistreatment while working as a shift manager. She was being required to work seven days a week when she received the “career or kids” threat, she contends.
Other male shift managers weren’t on a seven-day work schedule, Wolfinger claims. Her February 2012 firing occurred after she reported her boss’ comment to a company human resource officer, the suit states.
Wolfinger was officially fired, she says, for selling Pampered Chef outside of work—but coworkers who engaged in similar activities weren’t fired. And of course a sophisticated company like Walmart doesn’t admit to having fired someone for complaining about illegal discrimination.
Several years ago, 1.5 million women who worked or had worked at Walmart attempted a class action lawsuit against the company, only to have the Supreme Court say that “[e]ven if every single one of these accounts is true, that would not demonstrate that the entire company operate[s] under a general policy of discrimination.” That’s despite evidence like this:
Many female Walmart employees have been paid less than male coworkers. In 2001, female workers earned $5,200 less per year on average than male workers. The company paid those who had hourly jobs, where the average yearly earnings were $18,000, $1.16 less per hour ($1,100 less per year) than men in the same position. Female employees who held salaried positions with average yearly earnings of $50,000 were paid $14,500 less per year than men in the same position. Despite this gap in wages, female Walmart employees on average have longer tenure and higher performance ratings.
Doubtless all just a coincidence, though. Just like Rebecca Wolfinger was coincidentally fired for something that other workers did after she reported being discriminated against.
This blog originally appeared in dailykos.com/blog/labor on January 13, 2016. Reprinted with permission.
Laura Clawson is the Daily Kos contributing editor and has been since December 2006. She has also been the labor editor since 2011.
Thursday, January 14th, 2016
The topic of LGBT rights has dramatically increased in the last few years. Most have heard about the recent Supreme Court case, Obergefell v. Hodges, which legalized same-sex marriage throughout the nation. Whether on the legislative floor or in the courthouse, there is no question that LGBT rights have really come a long way in America in the last few years. But what about in the workplace? What employment law protections are there against LGBT discrimination at work?
What many people do not know is that workplace protections for LGBT employees vary by state jurisdiction. This can be confusing as many people may assume that the law is uniform throughout the nation. It’s not. Simply put, federal and state laws may differ as to whether an employer may discriminate against an employee because of his or her sexual orientation.
Federal Law Does Not Ban Sexual Orientation Discrimination
Federal law is not very good at protecting LGBT employees in the workplace. The main federal anti-discrimination law is Title VII. It doesn’t ban discrimination based on sexual orientation. Some federal courts have held that discrimination by an employer based on an employee’s sexual orientation is not a violation of federal law. See Hamner v. St. Vincent Hosp. & Health Ctr., Inc. (7th Cir. 2000) and Bibby v. Philadelphia Coca Cola Bottling Co. (3rd Cir. 2001) (“It is clear…that Title VII does not prohibit discrimination based on sexual orientation.”) What is really interesting is that Title VII prohibits an employer from discriminating against an employee based upon their “sex,” but some courts have interpreted that to refer only to their biological gender, not someone’s sexual orientation or identity.
However, just because an LGBT employee is not be protected at the federal level does not mean they are out of luck. Most states have some sort of protection banning discrimination in the workplace based on an employee’s sexual orientation. For example, California explicitly bans employment discrimination based on “sexual orientation,” “gender identity,” and “gender expression.” See CA Government Code § 12940. Case law supports this as well.
State Law is Better for LGBT Employment Rights (Depending on Where You Live)
Complicating the matter, there are still a few states (eighteen in total) that have no state laws whatsoever prohibiting LGBT discrimination in the workplace. To make it even more confusing, some states prohibit discrimination in all workplaces (public and private) but some states, such as Alaska and Arizona, only prohibit public employers from discriminating based on sexual orientation.
The good news is that there is an increasing amount of states joining the movement of implementing laws that are very favorable to LGBT employees. From 2012 until present, three states have enacted laws prohibiting discrimination in the workplace based on sexual orientation. I’m an lawyer in California which has had laws protecting LGBT employees in the workplace since the early 1990s. So why is the federal government not on board with most of these states yet?
Answering that question is pretty difficult as there are so many factors to be considered as to why the federal government has not followed the majority of the states yet. But what can be said is this; in today’s legislative environment, the federal government usually does not implement controversial or hotly debated law until an overwhelming majority of the states have already done so. Rather than anger many states by forcing them to adopt a law they dislike, the federal government will sit on the sidelines until enough political pressure has built up that Congressional leaders and the Supreme Court align with the states. For example, the Supreme Court did not legalize same sex marriage until thirty-seven states had already done so and public opinion swung towards legalization. So if that is the case then when is the federal government going to implement favorable laws protecting LGBT employees in the workplace?
The Momentum is Growing for Federal Protection
As stated above, most states offer some level of protection to LGBT employees, but some states provide a higher level or protection than others. So arguably, there is not yet an overwhelming majority of states that offer LGBT employees total protection like that of the laws in California. But every year a state or two adopts favorable LGBT employment laws. Thus, assuming a state or two adopts favorable laws every year we may see some major changes to federal law within the next decade protecting LGBT employees.
Moreover, aside from statutory changes, the Equal Employment Opportunity Commission has taken a stance on the issue. In 2015, the EEOC released a statement that federal law prohibits an employer from discriminating against an employee based on his or her sexual orientation because it is a type of sex discrimination. Considering that the EEOC is the federal administrative body that handles employment claims, this is a huge step in the right direction. However, such statements made by the EEOC are not binding on the federal courts or the legislature, but they can influence a court or the legislature to take a certain stance.
At the end of the day, LGBT rights in the workplace have come a long way from what they used to be only a few decades ago. In the span of only a couple decades, most states have adopted some sort of law protecting LGBT employees, and almost half of the states have total protection for LGBT employees. Things are looking good for the LGBT community when it comes to protection in the workplace, but there is still some work to be done. In light of Obergefell v. Hodges and the most recent stance taken by the EEOC, I would not be surprised if in the next decade or so, whether it be by the legislature or a Supreme Court ruling, that the federal government amend Title VII to offer more protection to LGBT employees in the workplace.
Branigan Robertson is an employment attorney in Orange County, California. He is a member of the California Bar, California Employment Lawyers Association, and the National Employment Lawyers Association. He exclusively represents employees (the little guy/gal!) in lawsuits against employers and focuses his practice on discrimination and wrongful termination. Mr. Robertson attended Chapman University School of Law and was President of the Employment Law Society.
Sunday, November 22nd, 2015
When a parking lot attendant dared to recycle trash he picked up outside an upstate New York Walmart, the store fired him. Now generous strangers are trying to help cushion his sudden fall.
Thomas Smith, 52, had been earning $9 an hour at an upstate New York Walmart for less than three months when his manager terminated him over the cans. Smith was in charge of rounding up shopping carts from the lot outside the store, and started collecting trash from the lot while making his rounds. After storing up cans for a couple months, he recycled them in the store’s machines in early November. He got $5.10 for them.
Then he got fired. His manager told Smith his actions were “tantamount to theft of Walmart property,” the Albany Times Union reports, and said he would have to repay the $5.10 or lose his job. Smith, who commuted an hour by bus from Albany for the job, returned to the store two days later with the cash. But he’d already been fired.
“I didn’t know you couldn’t take empties left behind. They were garbage. I didn’t even get a chance to explain myself,” Smith told the paper. He also said his manager told him that a coworker who’d been caught stealing cash from a store register was allowed to keep her job because she repaid the theft and “because she has five kids.”
That thief was white. Smith collected trash while black.
The store manager who made the decision refused to speak with the Times-Union, and a Walmart spokesman told the paper it does not comment on personnel matters. After the story got picked up by local TV news, a company representative claimed Smith had admitted to stealing from inside the store itself. “They certainly didn’t indicate that both when I talked to them and our attorney talked to them,” Alice Green of the Center for Law and Justice said of that claim. Smith says he wrote out a statement for managers acknowledging he’d recycled the cans and no more.
Smith’s story has prompted strangers to send money through the crowdfunding site GoFundMe. So far the effort has collected more than $2,200 – an amount Smith would’ve had to work more than six weeks at full-time hours to earn.
While going viral for his sudden termination from a low-wage job has provided some short-term help, Smith will likely still have a hard time getting back on his feet. He was paroled in May after more than a dozen years in prison for armed robbery. He’d spent four months homeless after his release before finding housing through a charitable group. The Walmart job would have been one of his first, if not his very first, opportunities since his release for earning a living and achieving a degree of economic independence.
Formerly incarcerated people face immense hurdles to re-entering society and the workforce. Trust is hard to come by. Many job applications feature a check-box requiring applicants to volunteer information about their criminal history, which generally ruins their chances of even getting an interview.
The rejection naturally encourages desperate people to return to criminal activity for an income, as Glenn Martin, who now runs a non-profit that works with the formerly incarcerated and wasturned away from 50 different jobs in the month after his own release from prison, has described. Activists like Martin say efforts to reform the criminal justice and prison systems should include “ban the box” measures to restrict how hiring managers can ask about criminal histories – something President Obama recently did for federal hiring practices – and a revamp of education programs behind bars.
Since being fired, Smith has gotten plugged in with a legal aid group in Albany that is helping him recover his footing and that may eventually help him sue Walmart over his treatment. For now, though, he’s more worried about how he’s going to buy Christmas presents for his two teenage children.
This blog was originally posted on Think Progress on November 20, 2015. Reprinted with permission.
About the Author: Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org. He previously worked as an organizer on various political campaigns from New Hampshire to Georgia to Missouri. His writing on music and film has appeared on TinyMixTapes, IndieWire’s Press Play, and TheGrio, among other sites.
Saturday, November 14th, 2015
A woman’s pregnancy is supposed to be a reason to celebrate – baby showers, nursery decorating, and 3D ultrasounds. When you’re pregnant the last thing you should have to worry about is your job. Unfortunately, pregnancy discrimination seems to be on the rise in American workplaces. Employment lawyers like me seem to be getting more and more phone calls from women claiming that they were fired because of their pregnancy.
What is Pregnancy Discrimination?
In 2013 I got a phone call from a woman who said that she got fired after she delivered a stillborn baby. I almost fell out of my chair. The company fired her the day she returned from maternity leave. After filing the case we discovered that the company made the decision to terminate her after she informed the owners that her baby had passed. We also found out that after making the decision to terminate her, the company hired an auditor to come in and “audit” her department to find that she was performing poorly. However, documentary evidence showed that she was a great employee. The case failed to settle and proceeded to trial. The jury found that the company discriminated against her because of her pregnancy and awarded her substantial punitive damages.
While this was an unusual case, it highlights the opposite of how a company should act. A company should never make a decision to fire a woman because she is pregnant, because she is having complications, or because she is planning on taking a maternity leave. While that may seem like common sense in today litigious environment, I am continuously surprised how often expecting women are fired for suspicious reasons.
A Rise in Pregnancy Related Lawsuits
My firm receives hundreds of phone calls each year from prospective clients. Over the last year or so, we’ve noticed a lot more calls from women who believe they were fired or passed over for a promotion because of they became pregnant or had a pregnancy related disability. We’re not the only ones who have noticed this. More and more lawsuits are being filed and federal and state legislatures are enacting or trying to enact more laws to protect women.
Why are their more lawsuits? It may be because more women are career driven today than in the past. Human Resources MBA has a great info graphic discussing this. Inevitably, this topic also leads lawyers to talk more about gender discrimination (which is also unlawful under Federal and State law). Regardless of the reason, lawyers are trying to help their clients in whatever situation they happen to find themselves in.
What Should You Do If You Are a Victim of Pregnancy Discrimination
A lot of pregnant women who are still employed call my firm because they are starting to sense that their manager is upset with them. “What should I do?” “Should I go to HR?” “Should I complain?” “Can I go on maternity leave early?” All of these questions are valid but each and every situation is different. Further complicating the issue is that each state has different laws on point. For example, in California there are a multitude of laws that could apply to a woman’s situation: Pregnancy Disability Leave, the Fair Employment & Housing Act, the Family Medical Leave Act, the California Family Rights Act, the Labor Code, State Disability Insurance, etc.
I first recommend that you spend some time doing basic online research. Look up your respective state’s labor department and see if there are any online resources. You should also speak with HR if your company has competent HR professionals. If you feel like the situation is worsening I recommend that you call a lawyer. Many employment lawyers like me who represent individuals will do a free consultation over the phone.
Hopefully you are never in this situation. A woman’s pregnancy should be celebrated and a time of great excitement. Although pregnancy discrimination seems to be on the rise, collectively we can fight against it by informing each other of the laws that protect women. So please do your research and don’t be afraid to call a lawyer!
If you have additional questions concerning pregnancy discrimination, visit WorkplaceFairness and see their pages on parental leave and pregnancy discrimination. If you need help finding a lawyer, visit their attorney database here.
About the Author: Branigan Robertson is an employment attorney in Irvine, California. He is a member of the California Bar and the California Employment Lawyers Association. He exclusively represents CA employees in lawsuits against employers and focuses his practice on pregnancy discrimination and wrongful termination. Visit his law firm’s website for more information.
Friday, November 13th, 2015
Gosh, why are people with disabilities so much less likely to be employed than people without disabilities (34 percent to 74 percent in 2013)? One reason is what researchers from Rutgers and Syracuse universities discovered when they sent out resumes for fake job applicants who either had a spinal cord injury, Asperger’s syndrome, or did not mention a disability: applicants who mentioned a disability heard back from employers 26 percent less often than applicants who didn’t mention a disability, and it was actually worse for more experienced applicants.
You know how Republicans are always railing against laws that would prohibit employers from discriminating and the like? Maybe that’s because such laws work:
The study showed that the Americans With Disabilities Act, the 1990 federal law banning discrimination against those with disabilities, appeared to reduce bias. The lack of interest in disabled workers — and especially in the rate at which they were called back for an interview — was most pronounced in workplaces with fewer than 15 employees, the study found. Businesses that small are not covered by the federal law. At publicly traded companies, which may be more concerned about their reputations and more sensitive to charges of discrimination, evidence of discrimination on the basis of disability seemed largely to disappear. The same was true at firms that receive federal contracts, which are required by the government to make a special effort to hire disabled workers.
This is why we need stronger laws and more enforcement, not Republicans blocking progress because hey, we already have laws that kinda sorta cover that.
This blog was originally posted on Daily Kos on November 7, 2015. Reprinted with permission.
About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
Wednesday, November 11th, 2015
This Veterans Day we’d like to take a moment to thank all veterans for their service and sacrifice for our country. In turn, we’d like to make sure that veterans are aware of their rights in the civilian workplace. At the federal level, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the main source of protections for veterans in the civilian workplace.
USERRA has two main goals:
- To ensure that veterans seeking civilian employment can do so free from discrimination because of their service; and
- That should a veteran need to take military leave — or is activated from reserve to active duty status – they can retain their civilian employment and benefits.
Generally, a veteran is eligible for USERRA benefits if they left a civilian job to perform military service and:
– Have given prior written or verbal notice of the military leave to their civilian employer;
– Have 5 years or less of cumulative service during the employment relationship with the civilian employer;
– Have been released from service under conditions other than dishonorable;
– And return to work, or apply for reemployment, at their civilian job in a timely manner after the completion of service.
For more information on veterans’ rights under USERRA and how to enforce these rights, see our page on military leave.
Additionally, it is important to know your state’s laws on military leave. While some state laws merely reinforce the USERRA benefits, others include additional benefits for veterans. To view the applicable laws for your state, see our State Laws on Military Leave page.
Finally, veterans should be aware of the Vietnam Era Veterans’ Readjustment Act (VEVRAA), which provides additional protections to “protected veterans” who are employed by federal contractors. Protected veterans are defined to include disabled veterans and veterans who are recently separated (are within the initial 3 year period after discharge or release from active duty). VEVRAA makes it illegal for federal contractors to discriminate against protected veterans in employment decisions and further requires that federal contractors take affirmative action to recruit, hire, and promote protected veterans. For more information on VEVRAA see this fact sheet from the Department of Labor’s Office of Federal Contractor Compliance Programs.
About the Author: The author’s name is Grace Baehren. Grace Baehren is a student at The University of Hawaii’s William S. Richardson School of Law and an intern at Workplace Fairness.
Saturday, September 12th, 2015
Jessi Dye was excited about her new job at the Summerford Nursing Home in Alabama. Her experience watching her grandmother be put in a nursing home when she was younger made her want to help others who end up in the same situation. “She felt alone a lot of the time,” the 28-year-old said. “I wanted to be there for people, make it a little brighter place for these people who might not have somebody to visit them.”
She had also been working in fast food, but this job would come with better pay, better hours, and the possibility of fast advancement.
Yet she would only spend four hours actually doing her new job. After going through half a day of training, she says she was told to report to the manager’s office after lunch. “And the first thing the manager said to me when I stepped into his office is, ‘What are you?’” she said. “That’s not a question you ask me as a person, it’s a question you ask some little knickknack… It’s honestly not even a question for a pet.”
As a transgender woman, she had changed the photo on her driver’s license to match her gender expression, but her gender marker was wrong. That was what the manager was looking at as he asked her blunt questions about her gender. Getting a driver’s license updated can be difficult; more than 40 percent of transgender people across the country go without an ID that matches their gender identity, and 11 percent say they were denied in an attempt to update it. But having an ID that doesn’t reflect someone’s gender identity is correlated with much higher rates of discrimination and harassment.
“I can’t describe easily how that felt,” she said of that first question the manager asked her. “The closest thing I can say is that it felt like somebody punched me in the stomach.” She says that the manager not only told her he was letting her go just hours after she started, but that he confirmed it was because she is transgender.
“I walked out the door of the nursing home, said my goodbyes to the ladies I’d been working with, and made the hardest phone call of my life to my wife to say I couldn’t support us the way I’d planned on,” she said. “It was the worst feeling I’ve ever had.”
She has since received some good news: On Thursday, the Southern Poverty Law Center, which represented her in her lawsuit against Summerford, announced that the nursing home has agreed to pay her a financial settlement, as well as to implement a workplace nondiscrimination policy for sexual orientation and gender and to provide LGBT training for human resource employees, including the manager who fired Dye. A representative of the nursing home declined to comment on the settlement.
The policy change is the most important part for Dye. “That was more of a victory for me than any money could have ever been. Making sure the world’s a little bit safer for the next person who comes along,” she said. “I don’t want anybody to ever have to make that phone call I made that day.”
The loss of a job can be catastrophic, and losing her job at the nursing home was a blow for Dye and her wife. “Our financial stability was completely taken out from under us,” she said. She was able to rescind her two weeks notice at the fast food job, but her entire shift was laid off just a couple of months later. After that, she spent six months looking for work until she found the retail job she has now. “It’s hard to find a job in Alabama anyway, but one that’s openly accepting and easy to work with, not so much,” she noted.
The hope is also that such a case, which is likely the first of its kind won against a private Alabama employer, resonates beyond Dye. “There still seems to be a misperception among many employers that they can fire employees at will for any reason or no reason at all,” said Sam Wolfe, an attorney with the Southern Poverty Law Center. “But there are federal protections against individuals because they are transgender, and we’re hopeful this lawsuit will raise awareness.”
Federal law doesn’t explicitly enumerate gender identity as a protected class against workplace discrimination. But the Equal Employment Opportunity Commission has ruled that employer discrimination on that basis violates Title VII of the Civil Rights Act, which bans discrimination based on sex. Just in April, it ruled that the Army illegally discriminated against a transgender civilian employee by forcing her to use a single bathroom. Yet just 19 states and Washington, D.C.have laws prohibiting employment discrimination that include gender identity. The Equality Act, introduced in Congress in July, would explicitly ban employment discrimination against all LGBT people, but has not yet been passed and doesn’t have any Republican sponsors.
This is part of what motivated Dye to take action in the first place. “It was never about money,” she said. “It was about doing what’s right, standing up and and letting it be known you can’t do this to people, you can’t treat people like objects.”
This blog originally appeared at ThinkProgress.org on September 11th, 2015. Reprinted with permission.
About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.
Thursday, August 27th, 2015
The recently released minutes of the last meeting of the Federal Reserve Board’s Open Market Committee revealed there was serious discussion of the fact the labor market still showed signs of weakness. A primary issue was the lack of evidence of strong wage growth, which would be a clear signal the labor market was tightening. This has unleashed the Wall Street bettors, who want a jump on the Fed’s changing monetary policy, giving them more active play on the bond market, where interest rate movements can fuel their gambling addiction. The voices being raised to have the Fed raise interest rates march out lots of theory to predict uncontrolled inflation, despite a global slowdown, falling oil and natural resource prices, and flat real wages. We must hope that the Fed makes policy based on what is good for the economy, not what is good for the reckless gamblers on Wall Street.
The current directive to the Fed comes from the Humphrey-Hawkins Act, which in 1978 established that the nation’s primary economic policy is to achieve full employment, within reason—not by creating unsustainable budget deficits or igniting uncontrollable inflation. Unfortunately, many have twisted the legislation’s purpose to their own ends, changing the act’s intent to balance budgets and maintain low inflation in hopes those policies don’t increase unemployment. The act does not place full employment on equal footing with fighting inflation; it merely constrains full-employment policy to a measure of prudence.
With that in mind, the Fed should understand it is not at full employment. In addition to wages rising with productivity, a main tenant of evidence of full employment, the Fed needs to embrace some additional senses of full employment. One is that discrimination would disappear, since it would become prohibitively costly in a full-employment economy.
A problem for the Fed is that there is little diversity in its staffing, which reflects the low level of diversity among economists. Economists have convinced themselves there is little to explain about the persistence of the disparity in black and white unemployment rates, the ratio of which remains stubbornly at 2-to-1. It is enough to assume there are lower skill levels among African Americans and societal structural issues that permanently disadvantage African Americans, and that these circumstances will persist no matter what the level of unemployment.
Of course, many economists do appreciate that this pat answer is hard to reconcile with the great sensitivity that the black unemployment rate has to the economy—a tightening labor market brings down the black unemployment rate at twice the rate for whites. That makes the structural argument difficult to maintain.
There is another key element. The unemployment rate gaps between blacks and whites are stubborn at every education level, and the gaps are glaring. In fact, what the unemployment rate gaps for blacks suggest is the old adage that blacks must be twice as good to compete in the labor market with whites. The unemployment rate for blacks with more education is similar to that of whites with less education. This is true for blacks at all education levels, from college graduates to associate degree holders to high school graduates. And it is very difficult to argue that those huge gaps do not reflect discrimination.
When the labor market tanks, and the number of unemployed workers per job opening goes up, the gaps faced by better educated blacks to less educated whites get wider. Black college graduates find themselves with unemployment rates closer to white high school graduates, and blacks with associate degrees find themselves with unemployment rates worse than white high school dropouts.
When the labor market tightens, unemployment rates for blacks with more education improve such that they are better than those of less educated whites, though still off the mark compared with equally educated whites. When employers are faced with two unemployed working people for each job opening, many stop seeing color and start seeing qualifications. Employers faced with a growing economy and smaller applicant pools find it would now cost to discriminate by passing over the qualified African American applicant. We don’t know what would happen if the nation maintained its commitment to full employment, because just as the black unemployment rates near parity with whites, our economic policy switches all reverse to slow the economy, increase unemployment and push blacks off the path to equality.
The Fed needs to see that its policies are part of that problem. Slowing the economy before we reach full employment means employers never have to raise wages nor understand the costs of their discriminatory practices.
This blog originally appeared in AFL-CIO on August 21 ,2015. Reprinted with permission.
About the Author: William E. Spriggs is the Chief Economist for AFL-CIO. His is also a Professor at Howard University. Follow Spriggs on Twitter: @WSpriggs.
Wednesday, August 5th, 2015
Craig James is a former professional football player and longtime sports broadcaster who, in 2012, took time off from his broadcasting career to mount an unsuccessful bid for the United States Senate. During that campaign, according to a lawsuit James filed Monday, he opposed equal marriage rights for same-sex couples, and called upon “Christians” to “stand up” against the advance of marriage equality. Though he briefly worked as a broadcaster for Fox Sports following his campaign, James says he was fired shortly after Fox uncovered his past anti-gay statements.
James now works for the Family Research Council, an anti-gay organization that the Southern Poverty Law Center designates as a “hate group.”
The crux of James’s lawsuit are claims that Fox “discriminated against James because of his religionin violation of the Texas Commission on Human Rights Act.” Yet his complaint (which, admittedly, is only available to the public in a redacted form) cites no actual evidence that Fox’s decision to fire James was motivated by the fact that James identifies as a Christian. Nor does it claim that Fox Sports treated other employees who held similar anti-gay views differently because those employees are not Christian. Rather, James says that “Fox Sports informed James that his short off-the-cuff statement about his beliefs regarding marriage . . . was the sole reason Fox Sports terminated him,” and he does not appear to disagree with Fox’s alleged claim that they were motivated solely by their own opposition to James’s anti-gay statements.
Instead, James attempts a two-bumper bank shot to convert this anti-anti-gay firing into a kind of religious discrimination. James, his lawsuit emphasizes, holds anti-gay beliefs that are motivated byhis religious beliefs, and this, he claims, is enough to protect his job even if Fox would be allowed to fire an employee who made similar statements that were driven by a secular belief.
In other contexts, the Supreme Court has rejected attempts to use cries of religious discrimination to excuse acts of bigotry. Four years after Congress banned whites-only restaurants, for example, the owner of a South Carolina barbecue chain put up a sign protesting that “[t]he law makes us serve n***ers, but any money we get from them goes to the Ku Klux Klan.” He also claimed that the Civil Rights Act of 1964 “contravenes the will of God,” and that he should be exempted from having to follow it because of his religious beliefs. The Supreme Court disagreed, in Newman v. Piggie Park Enterprises, labeling the restaurant owner’s claim “patently frivolous.”
James’s case, however, was filed in Texas court, where the conservative Texas Supreme Court may see things differently than the justices of another era. It also arises under a different area of the law than Piggie Park. James sued under the Texas Commission on Human Rights Act, which, among other things, prohibits discrimination “because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicantwithout undue hardship to the conduct of the employer’s business.”
There is surprisingly little Texas case law interpreting this particular provision. Nevertheless, Texas civil rights law explicitly tracks “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” so federal court decisions examining similar cases should inform the Texas judges confronted by James’s case. At least one federal appeals court case, however, suggests that employers are not required to accommodate the anti-gay views of their employees, even if those views are motivated by religion.
In Peterson v. Hewlett-Packard Co., the United States Court of Appeals for the Ninth Circuit considered an employee who posted Bible verses that, among other things, said that men who have sex with men should be “put to death.” Admittedly, this is a more egregious case than theJames case, as James was not fired for saying that gay or bisexual men should be executed (when he was later asked about executing gay people, he responded tepidly). Nevertheless, the court inPeterson offered a sweeping dismissal of the idea that an employer is required to accommodate statements that could cause lesbian, gay or bisexual employees to feel unwelcome. It is an undue hardship, the court explained, to inhibit an employer’s “efforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success.”
James was an unusually visible employee who made his anti-gay statements in an unusually public forum. And James admits that Fox Sports was motivated by similar fears to the ones that concerned the employer in Peterson. He quotes a Fox spokesperson, who reportedly said that James was fired because “[w]e just asked ourselves how Craig’s statements would play in our human resources department” and concluded that “[h]e couldn’t say those things here.”
Nevertheless, the Texas judicial system is unusually conservative, so there is no guarantee that it will not give people like James a special right to make offensive statements about LGBT people with impunity.
This blog originally appeared in ThinkProgress.org on August 4, 2015. Reprinted with permission.
Ian Millhiser is a Senior Fellow at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal. Ian’s first book is Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.