Considering how many talking points in the 2012 election have had to do with religion (Romney’s Mormonism, the morality of the Ryan budget, and Christian views on abortion and gay marriage) it’s easy to forget that in some countries, religion and party-politics are considered a private matter, not to be discussed in polite society.

The United Kingdom is one of these countries; in the land of tea and crumpets, discussing politics or religion at dinner parties is considered cheeky. And so it is surprising that religious liberties in the workplace have been brought center stage by four of Her Majesty’s subjects.

CNN’s Belief Blog brought my attention to Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane, who allege that they were each reprimanded at work for upholding their religious beliefs. After losing on appeal in British courts, their cases were heard by the European Court of Human Rights (ECHR) on September 4. A decision could take months.

Both Ms. Eweida, a nurse, and Ms. Chaplin, a flight attendant for British Airways, wore necklaces with hanging crosses to work, were told to take them off, and refused. Ms. Eweida was suspended; Ms. Chaplin was forced into early retirement.

Ms. Ladele and Mr. McFarlane both had government jobs. Ms. Ladele was a registrar who was disciplined for refusing to process civil unions involving same-sex couples. Mr. McFarlane, who has been spearheading the legal process for all four of these cases with the support of the Christian Legal Centre, was a couples counselor paid by the National Health Service. He was fired after telling his superior that because of his Christian faith he was not willing to work with same-sex couples on sex related issues.

How would their cases fare in the U.S.? How will their cases actually fare in Europe? LASIS investigates.

A word about why the European Court heard an English case involving English people, in the first place. Britain, along with 27 continental neighbors, forms part of the European Union by giving up select parts of its sovereignty to the European government, much like our 50 states vis-à-vis our federal government. An ECHR decision will have the effect of a binding court order within Britain.

Stateside, Title VII of the Civil Rights Act of 1964 protects employees of both public and private institutions against religious discrimination in the workplace. The Act set up the Equal Employment Opportunity Commission, which evaluates discrimination claims and allows people a means to litigate them. So far, this sounds pretty similar to Britain’s employment tribunal — where our litigants lost their case.

Our Civil Rights Act states that employers must give their employees “reasonable accommodation” for their religious needs. A 2001 U.S. Court of Appeals case echoed a 1975 U.S. Court of Appeals case, and defined the reasonable accommodation standard. In the 2001 case, a police officer sued the department after being fired for not complying with uniform rules prohibiting him from wearing a gold cross pin on his shirt. He lost.

In these important cases, our courts have said that to prevail in a workplace religious discrimination case, an employee must show three things: First, that a religious belief conflicted with a work requirement; second, that the employee informed her employer of this conflict; and third, that the employee was not given reasonable accommodation and was then dismissed or sanctioned in some way.

The employer has two possible defenses. She can show that she actually offered the employee a reasonable accommodation or that after trying, no reasonable accommodation was available that wouldn’t cause the employer “undue hardship.” This “undue hardship” would constitute outlaying more than a minimal amount of money, or risking the health and safety of the workplace.

In 2004, a Christian employee was asked to sign a new diversity policy that included a provision mandating respect for homosexual co-workers. The employee considered such a requirement to be contrary to his beliefs and refused to sign – he was fired, and sued in Colorado district court on the grounds of religious discrimination. He won, with the court deciding that so long as his actions and statements were nondiscriminatory, his personal beliefs, even illogical or meanspirited ones, are protected under the law.

But for the most part, U.S. courts have dodged how we should balance individual rights to freedom of religion and the exercise of those rights sometimes being discriminatory.

In a 2012 U.S. Court of Appeals case a counselor working for a government agency was dismissed after refusing to work with same-sex couples and making her religious views clear to a woman she was paid to help. The court didn’t rule whether or not the employee’s actions were discriminatory; it simply stated that her actions did not conform to her professional standards as a licensed counselor

In the opinion of Michael J. Broyde, a law professor and senior fellow of Emory’s Center for the Study of Law and Religion, creating a discrimination exception for religious beliefs would be a “bad idea.” He believes that it would serve as a get-out-of-jail-free card for people to discriminate in the name of religion.

Organizations like the ACLU agree, and have been trying to draw the courts’ attention to this issue for years now. Many of the cases they are supporting (on the opposite side of McFarlane and the Christian Legal Centre) are still in litigation and will continue to be for some time. We can only guess as to when or how the courts will decide.

Cross-wearers Ms. Eweida and Ms. Chaplin might not like what our courts have to say on religious symbols added to uniforms of any kind. Like the British tribunal, our courts would probably not uphold the women’s right to wear crosses while at work especially if, as the defendants in these cases maintain, it was a safety issue: no hanging necklaces are allowed for either nurses or flight attendants.

As for Ms. Ladele and Mr. McFarlane, the government workers who refuse to work with same sex couples, we can probably call this one a toss-up both in the ECHR and in our own courts.

Last year, LASIS did a story about this very issue. A government worker refused to marry same sex couples. Lots of protests. But she maintained that she was just following her religious beliefs. She was reelected.

This particular area of law is still developing and the next few years on both sides of the pond should make for interesting dinner-party conversations.

EDITOR’S NOTE: An astute reader points out that the European Union’s court is the European Court of Justice. The European Court of Human Rights is part of the Council of Europe.

This blog originally appeared in New York Law School’s Program in Law and Journalism blog, Legal As She Is Spoke, on September 29, 2012. Reprinted with permission.

About the Author: José Ortiz (JD Class 2014) is a graduate of the University of Puerto Rico where he majored in Political Science. He is a classically trained pianist, organist and singer having performed with the San Juan Philharmonic Chorale and the Puerto Rico Symphony Orchestra. Other than music and law, he also enjoys heated political debate and the Yankees.

Plaintiffs suing Costco for sex discrimination face another round of litigation thanks to the Supreme Court’s recent dismissal of the Wal-Mart sex discrimination case. Because of the Supreme Court’s decision, the Ninth Circuit Court of Appeals ruled on Friday that the Costco trial court must reconsider whether the plaintiffs can prove that the company should be liable for sex discrimination in store-level promotions. On this question the Court of Appeals, like the Supreme Court before it, ruled the wrong way, discouraging companies from implementing measures that would prevent discrimination.

When companies leave employment decisions like promotions to individual decision-makers without giving them clear, relevant criteria to guide their decisions, those decisions are often discriminatory, albeit sometimes unintentionally. Many corporations, including Costco, provide no uniform criteria – or any guidance at all – for making promotion decisions. This leaves each individual manager (the vast majority of whom are male at Costco) to make promotion decisions as he sees fit. When making decisions with unfettered discretion, people tend to rely on stereotypes and to promote those they are most comfortable with and who are most like them – in short, in the absence of clear criteria, men usually promote men. Witness Costco’s demographics: female lower-level managers at Costco are less likely to be promoted than their male counterparts. It appears that only two of Costco’s top 34 executives are women. The problem is not a shortage of interested or qualified women: Costco’s competitors have a much higher proportion of women in management than Costco does.

Companies can prevent this kind of discrimination. Sociological research shows that holding top management responsible for establishing and enforcing uniform, unbiased promotion criteria goes a long way. When companies provide managers with performance-related criteria for promotion decisions, managers can evaluate whether a candidate satisfies those criteria instead of making a gut-level decision based on personal relationship or other irrelevant factors.

Companies can also prevent sex discrimination in promotions by increasing the pool of candidates. When employees don’t know promotions are available, managers may not even consider qualified women for the positions – they may not know them well, or may rely on stereotypes to conclude that they don’t want promotions. The Costco case illustrates these consequences: the three women who sued desperately wanted promotions, but none of them ever applied for one – they couldn’t, because Costco did not accept applications, and they never knew when promotions were available anyway. An easy fix is to inform employees of promotion opportunities and invite applications. Interested women will throw their hats in the ring and managers will evaluate them based on the relevant criteria, resulting in more promotions of women.

The courts in Costco and Wal-Mart ruled the wrong way because they discouraged companies from adopting these measures. They held that corporations are not liable in class actions for the discretionary decisions of individual managers, creating an incentive for companies to wash their hands of preventing discrimination in their ranks. The more anarchic the system for decisions about promotions and other perks – raises, bonuses, etc. – the more insulation the company has from discrimination class actions. The Costco decision quoted the Supreme Court’s Wal-Mart ruling on this point: “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to [bring] a nationwide class [action] will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” In other words, if the only thing promotion decisions have in common is that managers make those decisions however they want, the company as a whole is not liable for resulting discrimination. In contrast, if the company disseminates guidelines for making promotion decisions that result in discrimination, the company can be held liable.

Smart companies will adopt best practices like enforcing uniform criteria for promotion decisions, both to retain and get the benefit of employing talented people and to avoid discrimination suits by individuals, which are not affected by the Wal-Mart and Costco decisions.

The Court of Appeals sent the Costco class action case back to the trial court for reconsideration, giving the plaintiffs another chance. But the trial court will labor under the higher court’s instruction (again, quoting the Wal-Mart decision) that it “must determine whether there was ‘significant proof that [Costco] operated under a general policy of discrimination.’” Proving that Costco operated under a general policy of laissez faire will not suffice to save this sex discrimination case.

This post originally appeared on Piper Hoffman-Rock the Boat: Law, Society, and Social Justice on September 22, 2011. Reprinted with permission.

About the Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

Mitchell Hirsch catches a whole bunch of discriminatory job listings showing up at CareerBuilder.com:

The latest examples appear two months after the National Employment Law Project (NELP) released a report detailing similarly exclusionary job postings this spring.  Since then, federal legislation has been introduced that would ban hiring practices, including job ads, that discriminate against unemployed workers by excluding them from consideration for employment opportunities.  As these harmful practices have attracted growing attention, one leading job site — Indeed.com — recently announced it would no longer post such exclusionary ads.

That’s even as the movement to ban such discrimination gains steam. Wednesday, Representatives Rosa DeLauro and Hank Johnson and Senator Richard Blumenthal, sponsors of House and Senate bills prohibiting discrimination against unemployed jobseekers, held a press conference on the issue, at which:

Congress today received a petition with 250,000 names in support of ending discrimination against the unemployed, said David Elliot, a spokesman with the Washington-based USAction, a federation of 22 state affiliates that advocates for human- service programs and support for public education.

Shockingly,

Already, Rep. Louie Gohmert (R-Texas) took to the House floor to speak out against the idea as just creating another “protected class.”

Johnson said much of Republican objection is politically motivated.

“[Some Republicans] don’t want to see the president be successful.” He added the American people “are looking past the cynicism and they’re looking at their pocket books. … They want some action.”

There’s no question about the political motivations of Republicans—the question is if they’ll be willing to go to the mat against a bill simply saying that employers can’t flatly rule out hiring unemployed people, a type of discrimination a poll has shown people want banned by a two-to-one margin.

This post originally appeared at Daily Kos Labor on September 21, 2011. Reprinted with permission.

Disclaimer: The views of this post reflect those of the author and not of Workplace Fairness.

About the Author: Laura Clawson is labor editor at Daily Kos. She has a PhD in sociology from Princeton University and has taught at Dartmouth College. From 2008 to 2011, she was senior writer at Working America, the community affiliate of the AFL-CIO.

Last week, Wal-Mart announced the latest component of its relatively successful campaign to shift its image from corporate villain to socially responsible role model.

The company promised that it would double its business with women-owned contractors and suppliers in the U.S. and internationally, and educate and train hundreds of thousands of women through its nonprofit Wal-Mart Foundation. That means the company will buy products from more women-owned factories and farms and hire more women to construct its stores.

The move comes after Wal-Mart was up against the largest sex-discrimination class-action lawsuit in history, until the Supreme Court threw it out this summer.

Most labor and social justice advocates are glad to see any corporation change its practices in the face of social and economic pressure, so Wal-Mart’s recent announcement and its other recent efforts, such as contracting with minority suppliers, adopting sustainable environmental practices and increasing diversity and fairness in its stores, can be seen as small victories for campaigns that expose Wal-Mart’s practices.

But many labor and watchdog groups are still skeptical of the mega-corporation’s sincerity and the larger significance of its corporate responsibility initiatives, and they are calling on the company to continue examining and reforming its practices in a big way.

Jennifer Stapleton is spokesperson for Making Change at Wal-Mart, a campaign of the United Food and Commercial Workers international union. She said in a statement last week:

Wal-Mart’s latest PR gambit is trying to cover up decades of unjust treatment of women, but women know better. Wal-Mart causes systematic economic harm to women in the U.S. and around the world, and that is precisely why Wal-Mart is trying to sell us on a new image. Wal-Mart keeps millions of women in the U.S. and around the world in poverty, fails to protect women from unacceptable sexual and other forms of workplace harassment and works many women to the bone in sweatshop conditions around the globe. And, according to the women in the Dukes v. Wal-Mart gender discrimination law suit, Wal-Mart pays women less than men.

In May and June, a group called Organization United for Respect at Wal-Mart (OUR Wal-Mart) surveyed 501 Wal-Mart associates. On a number of questions about pay, fairness and opportunity, women were consistently less satisfied and felt treated less fairly than male workers, by margins of about 10 to 25 percent, depending on the question.

More than half the workers answered that conditions were “poor” or “fair” in terms of having dependable schedules, opportunities for advancement and training, just procedures for discipline and termination and other measures.

These answers imply a mediocre to substandard employment situation–not overwhelming dissatisfaction, but not as positive a result as one might expect from a company that has gone into overdrive to improve its image. Three-quarters of workers also said they thought under-staffing is a serious problem that has resulted in customer dissatisfaction and/or messy stores.

And given the lawsuit and the company’s recent announcement, the group stressed that the disparity between men’s and women’s answers is significant. A release quoted Lancaster, Calif.-Wal-Mart worker Maggie Van Ness saying:

If what’s going on at Wal-Mart happened at a small company, it would be bad enough. But because Wal-Mart’s the nation’s largest employer and sets standards for our communities and other companies, this is a full-scale epidemic. The data show widespread problems that are especially bad for women, who need these jobs.

Wal-Mart is the largest private employer of women in the U.S., with 808,000 women making up 65 percent of its domestic workforce as of 2001, according to a paper by Making Change at Wal-Mart. Between 1996 and 2001, women working at Wal-Mart earned on average $5,200 less per year than men, and were also much less likely to have salaried, upper-level management positions, according to a 2003 report. It also noted women in salaried positions earned $14,000 less per year than their male counterparts.

Last year, the Equal Employment Opportunity Commission negotiated an $11.7 million settlement with the company over complaints that at a Kentucky distribution facility, women were systematically discriminated against for certain positions that usually went to young males.

In light of Wal-Mart’s recent promise to increase business with women, Wal-Mart critics also point to the story of Margaret Garner, an African-American construction-business owner whom Wal-Mart had celebrated for her lead role in building its controversial first Chicago store, on the city’s impoverished West Side. Four years after it opened, Wal-Mart has billed that store as a success and planned dozens more stores for Chicago. But Garner’s firm declared bankruptcy last year, driven by $11.9 million in debt from cost over-runs on the Wal-Mart, as reported by Crain’s Chicago Business. The Crain’s investigation explains that Garner’s firm, which received incentives under city programs for minority contractors, sent most of the actual work to firms owned by white males. Garner’s firm sunk into debt when it couldn’t pay those companies as promised.

Also, a University of Illinois at Chicago and Loyola University study alleges that the West Side Wal-Mart drove other local companies out of business, a long-standing complaint which Wal-Mart says is not borne out by facts.

But according to Making Change at Wal-Mart,

For decades, Wal-Mart has shown that when it “invests” in a community, that community can expect lost jobs, depressed wages, bankrupt local business, and lowering of labor standards to follow quickly. Women in the U.S. and around the world would be far better served if Wal-Mart would improve its labor practices, raise its wages, and use its power to stand up for human rights instead of undermining them through its day-to-day business practices.

This post originally appeared in Working in These Times on September 19, 2011. Reprinted with permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

Article first published as Judge: Bloomberg Did Not Discriminate Against Women on Blogcritics.

The judge who ruled that Bloomberg LP did not illegally discriminate against women for taking pregnancy leave raised an important policy question in her written opinion. Judge Preska did not drop “an anvil…on the work-life balance scale,” despite commentators’ efforts to portray her decision as a calculated blow against work-life balance; in deciding in Bloomberg’s favor, all she did was follow the existing law. In her commentary, however, she questioned the wisdom of the law itself, and noted that one alternative might be for employers to “treat pregnant women and mothers better or more leniently than others.” Judge Preska did not say whether she thinks that would be a good idea. It is a dreadful idea.

The judge’s legal reasoning in the Bloomberg ruling is by the book. The federal law bans pregnancy discrimination as a form of gender discrimination, as it should – only women get pregnant. The law does not require employers to treat pregnant women better than other employees, just not to treat them worse. Based on the evidence Judge Preska summarized in her decision, Bloomberg LP did not treat women who took pregnancy leave worse than other leave-takers; to the contrary, if that evidence is to be believed (in an earlier ruling Judge Preska threw out the Equal Employment Opportunity Commission’s expert witnesses, leaving the evidence lopsided in Bloomberg’s favor), women returning from maternity leave may have fared slightly better in terms of compensation than employees returning from other kinds of leave.

The evidence also showed that taking leave for any reason is not a wise career move at Bloomberg. The company policy is, in essence, that employees must put Bloomberg LP ahead of God, country, family, and whatever else figures in their particular pursuits of happiness. Bloomberg scoffs at work-life balance, and while that might be poor business judgment or even reprehensible, Judge Preska was correct that it is not against the law.

Judge Preska makes it clear that the law, whether she likes it or not, grants employers the right to ignore and even discourage workers’ lives outside of work. She quotes former General Electric CEO Jack Welch’s grim assessment that there is “no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

The judge writes that “it is not the Court’s role to engage in policy debates or choose the outcome it thinks is best. It is to apply the law.” Judge Preska goes on to discuss all the things that courts do not have the power to police. She includes in that list what she calls “work-family tradeoffs” – she does not believe one can have it all. But maybe one can have more than Bloomberg gives: the judge observes that it “may be desirable” and “may make business sense” for companies to “treat pregnant women and mothers better or more leniently than others.”

I disagree. Treating pregnant women and mothers more leniently than other employees is not desirable. The view that pregnant women and mothers deserve special treatment may appear feminist, but it actually serves the interests of those who want women pregnant and at home while daddy wins the bread. The law already bars employers from discriminating against women because of pregnancy and related medical conditions, so this policy question is not about whether women’s biology holds them back in the workplace. It is about whether some mothers’ choices to spend more time away from work than fathers and non-parents do should be underwritten by the government and employers.

“Treat[ing] pregnant women and mothers better…than others” would be an insult and a disservice to several groups of “others.” First, fathers: why should employers treat mothers better than fathers? To ensure that women take more time off work and that men don’t? To reinforce sexist stereotypes that, compared to men, women are better at/prefer/should be raising children? Those stereotypes don’t need much reinforcement: studies have shown that men who take paternity leave are later penalized in terms of compensation and promotion compared to men who leave all the child-rearing to women. The attitudes behind those penalties are the same attitudes that support treating mothers better than other employees.

The second group of slighted “others” is the ill and disabled: why should pregnant women and new mothers be treated better than employees who take leave that is necessary for different medical reasons? Pregnant women at least chose to suffer their medical condition, unlike people who have to take leave for, say, a kidney transplant, or to care for a dying parent. Pregnant women and new mothers should not be treated worse than others with medical conditions, and they should not be treated better.

Third, non-mothers: treating female employees who choose to bear children better than those who do not (and in some cases cannot) devalues the lives of women without kids. Requiring employers to treat mothers better in the workplace than women who are not mothers would divert both public and private resources to subsidize the individual lifestyles of people who choose to have children. People do not have children for the greater good or out of a sense of civic duty – they have children because they want to. It makes no sense to force employers to grant preferential treatment to women who choose to spend their time and resources having children over women who choose to spend their time and resources doing something else. It is not up to employers to value any of these private, non-employment-related choices over the others.

Judge Preska put a point on this policy debate by referring to “work-family tradeoffs” rather than “work-life tradeoffs.” But these are not the same thing. Family is not a substitute for life; family is a part of life, but there is more. For most people blessed with the resources to choose how to spend their time, life includes friends, the arts, physical activity, spirituality, or any of many other interests. The judge’s phrase, “work-family tradeoffs,” frames the issue as a question of trading family time for work time, implying that family is the only thing that could possibly merit time off of work. In the context of a gender discrimination case like this one, this framing is not only reductionist, it is frightening in its confinement of female employees to only two spheres: family and making a living.

Judge Preska merely outlines the policy choice of favoring mothers over other employees. She does not claim it as her own. But it is not a straw man: it is at the heart of many “work-life balance” criticisms of the judge’s ruling. Critics are not satisfied with the law’s requirement that employers treat women who take medical leave related to pregnancy the same as other employees who take leave for other reasons. They want pregnancy and motherhood to be privileged.

I am not on Bloomberg’s side. Expecting employees to put work above all else is a recipe for misery for all but workaholics, and an ugly manifestation of corporate greed. But putting children above all else is not the answer for everyone either.
Judges lack the power to force employers to facilitate humane work schedules, and in a free market with more workers than jobs, employees lack the leverage to reach company- or industry-wide bargains for a better balance. At least for now, people who choose to have children will have to make trade-offs to pursue their dreams the same way that people without children do. Under the Pregnancy Discrimination Act and Judge Preska’s ruling, pregnancy and related medical conditions are not a part of that trade-off – they should have no different effect than any other medical condition.

If other “work-family” trade-offs continue to fall more heavily on mothers than fathers, they will have a discriminatory effect. The most immediate and attainable palliative is for fathers to step up and mothers to step back. As more fathers take more parental leave the stereotype of women as children’s natural caretakers will begin to erode, and if women take less leave, the stereotype that women are not as committed to their work as men are may begin to erode too. Parents who can afford for mom to take non-medical time off with the kids should not wait for the courts or the legislature to solve their childcare challenges. They should tap underutilized in-house talent instead: dads.

This blog originally appeared  at Piper Hoffman on August 26, 2011. Reprinted with permission.

About the Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

Some 25 million Americans are unemployed, underemployed or have stopped looking for work, and wages are essentially flat. Workers are struggling to get the few jobs that are available—there are 4.7 unemployed people for every one job open.

As if those odds weren’t difficult enough, jobless workers face another obstacle: Many employers are discriminating against the jobless by prohibiting them from even applying for open positions. Their “Help Wanted” signs come with a caveat—if you are unemployed, you need not apply.

American Rights at Work alerts to an action by the advocacy group USAction, which is taking a stand against this unfair policy. Click here to sign a petition and join USAction in asking the popular job search sites CareerBuilder and Monster.com to stop promoting ads for companies that discriminate against the unemployed.

Last month, The New York Times reported that its review of job vacancy postings on sites like Monster.com, CareerBuilder and Craigslist revealed:

hundreds that said employers would consider (or at least “strongly prefer”) only people currently employed or just recently laid off.

The National Employment Law Project (NELP) also released a report last month that found:

employers and staffing firms continue to expressly deny job opportunities to those workers hardest hit by the economic downturn, despite increased scrutiny and strong public opposition to the practice.

The report coincided with the introduction in the House of the Fair Employment Opportunity Act of 2011, a measure sponsored by Reps. Rosa DeLauro (D-Conn.) and Hank Johnson (D-Ga.) to create a level playing field for unemployed job seekers by prohibiting employers and employment agencies from screening out or excluding job applicants solely because they are unemployed.

This blog originally appeared in AFL-CIO Now Blog on August 22,2011. Reprinted with permission.

About the Author: James Parks – My first encounter with unions was at Gannett’s newspaper in Cincinnati when my colleagues in the newsroom tried to organize a unit of The Newspaper Guild. I saw firsthand how companies pull out all the stops to prevent workers from forming a union. I am a journalist by trade, and I worked for newspapers in five different states before joining the AFL-CIO staff in 1990. I also have been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. My proudest career moment, though, was when I served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

XX

Think you know about LGBT employment protections? Take this quiz and see how much you know. A new poll from the Center for American Progress shows that 9 out of 10 voters think there is a federal law protecting LGBT people from workplace discrimination. They’re wrong. The poll found that 73 percent of voters do support such protections, including strong support from Catholics (74 percent), senior citizens (61 percent), and even people with unfavorable attitudes toward gay people (50 percent). Unfortunately, in most states the protections don’t exist, and levels of discrimination and harassment are high.

As many as 43 percent of LGB people and a staggering 90 percent of transgender people have experienced workplace mistreatment. Another column from CAP shares some of the personal stories of individuals who had these negative experiences and the consequences that come with, such as the fact that gay men earn 10-32 percent less than their heterosexual peers (PDF). Meanwhile, transgender individuals are twice as likely to be unemployed and four times as likely to be living in poverty (PDF).

If support for protections is so strong and people think they already exist, it’s peculiar that employment protection bills face such challenges in getting passed. The federal Employment Non-Discrimination Act has been introduced for decades now without passing. Just last week, non-discrimination protections in Connecticut got a very transphobic pushback. Equality opponents raise alarm over these bills, focusing on nuanced details and promoting untrue fears. This new polling suggests that the number of people actually concerned about offering these protections is near-negligible. Legislators need to begin listening to the stories of those truthfully affected by discrimination instead of the absurd cries of a small pocket of extremists.

This Blog originally appeared in Think Progress on June 2, 2011. Reprinted with Permission.

About the Author: Zack Ford is an LGBT researcher/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. Zack has a bachelor’s in Music Education from Ithaca College, where we served as student body president, a Master’s in Higher Education Student Affairs from Iowa State University, and also helped found the Central Pennsylvania LGBT Aging Network. Zack holds a B.M. in music education from Ithaca College and an M.Ed. in higher education (student affairs) from Iowa State University, but he’s originally (and proudly) from rural central Pennsylvania.

The promise that 2011 will be a year of economic recovery rings hollow for the workers held back by their past. For many who’ve been in trouble with the law, not even a lifetime is enough to recover from a bad rap sheet.

A brand-new report by the National Employment Law Project shows that people with criminal backgrounds, even those who’ve paid their dues to the state, are unfairly shut out of employment opportunities and denied the second chance they need to overcome their past.

Today, about one in 100 adults in America are in the prison system. Prison releases have exceeded 700,000 per year, according to recent federal data . And many are headed for a job market where the vast majority of employers screen applicants for criminal histories. According to NELP, “more than one in four U.S. adults—roughly 65 million people—have an arrest or conviction that shows up in a routine criminal background check.” All that adds up to a dead end for people who have a criminal taint on their record.

In the midst of fierce competition for scarce jobs, a second chance is hard to come by for people with criminal backgrounds—which could range from an arrest for smoking a joint decades ago, to a more serious conviction for which a sentence has been fully served. NELP’s research reveals that employers across the country routinely post job ads that include blanket clauses disqualifying applicants with criminal records. A compilation of online job listings includes phrases like, “You must not have any felony or misdemeanor convictions on your record. Period.”

(Image via Ban the Box campaign, The Defenders Online)

But civil rights advocates aren’t letting biased employers get the last word. They have launched legal challenges against these exclusionary hiring policies under the framework of Title VII of the Civil Rights Act, which bars discrimination on the basis of race, gender and other protected categories. Since blacks and Latinos are historically overrepresented throughout the criminal justice system—in arrest rates as well as length of the sentence—advocates argue that the words “need not apply” in effect act as a structural barrier to opportunity in communities of color.

The downward spiral of exclusion and marginalization is intensified when the job market is increasingly under the grip of mega-companies. People seeking entry-level jobs in their communities may be completely at the mercy harsh screening policies at major employers like Radioshack, Aramark, and, that bastion of legal rectitude, Bank of America.

There are reasonable arguments for screening applicants for criminal histories, particularly if employers have workplace security concerns. Yet, as NELP points out, there is often little if any connection between a rap sheet and the personality, goals or capacities of the person behind it. A minor drug charge during one’s youth may look like a glaring blight on an application form. But the employer who screens her out automatically will never hear the job-seeker explain in an interview how she’s been sober,  steadily employed for the past ten years, or how the police record was erroneous in the first place and never corrected.

The data, in fact, shows that giving the benefit of the doubt to people with less-than-pristine records pays dividends for employee, employer and society as a whole. In the long run, NELP argues:

The irony is that employers’ attempts to safeguard the workplace are not only barring many people who pose little to no risk, but they also are compromising public safety. As studies have shown, providing individuals the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.

A few progressive employment and training programs have emerged to address some of these barriers, but social services alone cannot make up for the economic toll of a criminal justice system aimed at punishment and not rehabilitation, much less helping people build a future from a rough past.

In addition to racial disparities, exclusionary policies may have special impacts on women struggling to to reintegrate into work and family life after prison. A 2008 study published by University of California-Berkeley School of Law examined the economic prospects of formerly incarcerated women and found hidden obstacles that prevent them from staying employed (and out of jail).

When you peel back the stigma of a criminal record, you’ll find much more troubling histories underlying their struggles, including physical and sexual abuse, health problems, and the hardships of long-term separation from their children. Focus group studies with women in the Bay Area suggested that the social services and programs in their communities were inadequate for helping overcome these hurdles.

One of the lead researchers in the study, Monique Morris, told In These Times of how legal barriers to employment, coupled with misguided policies within prison, sometimes reach the height of absurdity:

In a number of instances, women were qualified to work in a field because of work experience while incarcerated, but precluded from working in that same area upon their release because of their criminal record. For example, a number of women worked as fire fighters while incarcerated. But they could not do that work on the outside.

According to the study’s analysis of job applications showing a woman had done time versus those that didn’t, “formerly incarcerated women were 31 percent less likely to receive a positive response from potential employers.”

The consequences go beyond the sting of rejection. When an unalterable stigma is combined with long-term unemployment, being permanently branded as a criminal can lead to crippling self-doubt, frustration, and in some cases, desperation that is deep enough to drive someone back into crime.

Over time, thousands of individuals who are asked to “check the box” on an application form are slowly drained of the will to put their lives back together. That only adds to the sense of hopelessness dogging the country’s working class—building a social prison that our “recovering” economy can ill afford.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen@inthesetimes.com.

This blog originally appeared In These Times on March 24, 2011. Reprinted with Permission.

Here are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him (“the white guy”) to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files — over 1800 documents — which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company’s code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it’s  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

This week Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, called Anita Hill and left a message on her answering machine inviting her to apologize for testifying during Clarence Thomas’ confirmation hearings.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.