Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘employment discrimination’

New York City’s transgender community faces significant employment discrimination, new report finds

Wednesday, December 12th, 2018

The New York City Anti-Violence Project (AVP) released a new report Tuesday detailing systemic discrimination against transgender and gender non-conforming (TGNC) people across the city.

Compared to the general New York City population, TGNC individuals are five times more likely to be unemployed, and among those with college degrees, more than four times more likely to be making less than $30,000 a year, the report found.

The report also outlines specific barriers TGNC people face while trying to find a job. Thirty-one percent reported experiencing discrimination before they even finished applying for jobs because they were asked what gender they were assigned at birth, a question employers are not legally allowed to ask. Others said they were asked for references from past employers who only knew them by their “dead name,” or the name they used before they transitioned.

Over half of respondents said they were forced to educate their coworkers about their identities, and a third reported being isolated by coworkers and receiving unwanted sexual comments. Many were overqualified for their jobs, while others said non-TGNC peers received higher salaries for the same work. A third of respondents said they were unable to use their health insurance to receive the gender affirming care they needed.

The New York City Anti-Violence Project (AVP) released a new report Tuesday detailing systemic discrimination against transgender and gender non-conforming (TGNC) people across the city.

Compared to the general New York City population, TGNC individuals are five times more likely to be unemployed, and among those with college degrees, more than four times more likely to be making less than $30,000 a year, the report found.

The report also outlines specific barriers TGNC people face while trying to find a job. Thirty-one percent reported experiencing discrimination before they even finished applying for jobs because they were asked what gender they were assigned at birth, a question employers are not legally allowed to ask. Others said they were asked for references from past employers who only knew them by their “dead name,” or the name they used before they transitioned.

Over half of respondents said they were forced to educate their coworkers about their identities, and a third reported being isolated by coworkers and receiving unwanted sexual comments. Many were overqualified for their jobs, while others said non-TGNC peers received higher salaries for the same work. A third of respondents said they were unable to use their health insurance to receive the gender affirming care they needed.

Renata Ramos, a 57-year-old transfeminine Latina immigrant, claimed she lost a catering job when she transitioned because the business owner was allegedly concerned about “how their customers would react.” She claimed she was repeatedly told by employers such Trader Joe’s and a local dollar store that there were no open positions for which she could apply.

ThinkProgress has reached out to Trader Joe’s for comment on the allegation.

Lolan Sevilla, an AVP training coordinator and co-author of the report, told ThinkProgress that for many TGNC individuals, instances of discrimination were often compounded by their race. “For example, there was a significant disparity between trans and gender non-conforming people of color and white respondents on education, employment, and income,” they said, noting TGNC people of color with bachelor’s degrees were nearly four times more likely than to their white counterparts to make less than $10,000 a year.

“In order for us to have true economic justice for trans and gender non-conforming people, these issues must be looked at, and addressed, holistically with a framework that includes other identities held like race, disability, and immigration status,” Sevilla said.

New York City protects against employment discrimination on the basis of gender identity and expression, and has even issued guidance specifying that those protections apply to issues like correct name and pronoun usage in the workplace. The report recommended the city take things one step further and create educational opportunities and employment programs to help TGNC individuals overcome inequities they still face while attempting to enter the workforce.

It’s often impossible for TGNC individuals to know whether they are being treated differently, as many are simply unaware of the favorable treatment afforded to their non-TGNC peers. The report therefore recommends screening employers to ensure they are welcoming of TGNC employees through methods like resume testing.

The Washington, D.C. Office of Human Rights conducted one such test in 2015, sending various fake resumes to different employers, some with indications that the invented job candidate was transgender. In nearly half of the tests, employers favored a less-qualified cisgender candidate over a more qualified transgender candidate. As a result, the office was able to take enforcement actions against several of these employers for violating nondiscrimination laws, even though no real-life transgender people experienced discrimination.

New York City has used a similar process for identifying anti-transgender discrimination at substance abuse centers.

Chanel Lopez, Transgender Communities Liaison at the NYC Commission on Human Rights, emphasized the importance of such work and the need to continue pushing for more transparency in a statement Tuesday. “As we know all too well at the NYC Commission on Human Rights, TGNC individuals endure a range of discrimination and harassment in their daily lives, including in the workplace,” she said. “This is simply unacceptable.”

This article was originally published at ThinkProgress on December 12, 2018. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”

Supreme Court poised to drastically reverse LGBTQ equality

Tuesday, November 27th, 2018

There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trump’s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.

The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of “sex.” If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.

Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.

Employment discrimination

Two of the cases before the Court address the question of whether it’s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.

In Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized “sex stereotyping” as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that “sexual orientation” enjoys no recognition under Title VII’s employment protections on the basis of sex.

Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion in Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased, was illegally fired for being gay under Title VII. The Trump administration had argued otherwise.

With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there are several compelling arguments that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, it’s not clear that there are five justices who will agree.

While they’re at it, the Court may also consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VII’s “sex” protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral home violated the law when it fired employee Aimee Stephens for being transgender.

The Trump administration recently filed a brief in this case arguing that the Supreme Court should overturn the Sixth Circuit’s decision and rule that it’s legal to fire someone for being trans. But the administration also argued that the Court should consider Zarda or Bostock first — in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.

In any of these cases, a ruling narrowly defining “sex” could set back employment rights for the entire LGBTQ community.

Trans military ban

On Friday, the Trump administration asked the Supreme Court to take the reins on the four different court battles over President Trump’s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the case Trump v. Karnoski.

The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that they’re willing to flout judicial norms and procedures. Nevertheless, given the Court’s willingness to cater to executive power in the Muslim ban cases, it might similarly be charitable to Trump’s claim that banning transgender people somehow improves military readiness, even though there’s no evidence to support that claim.

Another bakery

Just months after the Supreme Court granted a one-off victory to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details of Klein v. Oregon Bureau of Labor and Industries are almost identical to the Masterpiece Cakeshop case.

As ThinkProgress previously explained, Aaron and Melissa Klein — owners of Sweet Cakes by Melissa — are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs — against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.

Transgender students

While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year, the anti-LGBTQ hate group is still heavily involved in this year’s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania school’s inclusive policies.

In Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, they’re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IX’s sex protections don’t extend to transgender students.

If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, it’d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces — and several thousand transgender service members would lose their jobs.

For now, the Court is delaying making any decisions.

This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.

This man was denied a job as a sheriff’s deputy just because he has HIV. Now he’s suing.

Wednesday, November 1st, 2017

A Louisiana man has filed a federal lawsuit against the Iberia Parish Sheriff’s Office (IPSO) for allegedly discriminating against him in 2012. According to the complaint, filed last week by Lambda Legal, IPSO was prepared to hire Liam Pierce as a deputy sheriff, but allegedly opted not to after learning that Pierce has HIV.

“It was like a punch to the gut,” Pierce, 46, told ThinkProgress in a phone interview. “It really frustrated me that for all the wonderful things that are here in Louisiana and all the wonderful people we have, we still have people that are not appropriately educated with HIV, how it’s transmitted, what the risks are, and what isn’t risky.”

As the complaint recounts, two days after Pierce had his in-person interview with IPSO in March, 2012, Captain Rickey Boudreaux told him that was going to be hired by the department, pending a medical examination. That examination, completed two weeks later, found that Pierce indicated “no significant abnormalities or medical findings,” with all physical findings “within normal limits.” But it did state that he is HIV-positive. Two days after submitting the medical examination, Pierce received a letter from IPSO indicating that he would not be hired.

“It’s clear on the medical evaluation: The only thing negative was the HIV status,” Pierce said, adding that a friend’s contact at the department relayed to him that he wasn’t hired because he failed the medical. He immediately knew it was because of his HIV status. “Anybody with a simple amount of education is able to see right and wrong and this is plainly wrong. It’s no different than discriminating against somebody because they have diabetes or because they have cancer. You can’t discriminate against that. It’s wrong.”

Indeed, the U.S. Department of Justice has resources dedicated specifically to educating the public about how discrimination on the basis of HIV status is a violation of the Americans with Disabilities Act.

Pierce has a long history of service to others. He’s been an EMT, a paramedic, a firefighter, and a police officer. It was actually Hurricane Katrina that brought him to Louisiana in the first place; he ditched his old job after securing authorization to join the first-responder recovery efforts. He was hired full-time shortly thereafter by a local agency. To this day, he still teaches various public safety courses, including firearm safety, first aid, CPR, and — ironically — blood-born pathogens. His enthusiasm for helping others even convinced his husband to take an interest in firearm safety and they now teach the classes together.

9th Circuit Revists Ruling on Unequal Pay in Some Situations

Wednesday, September 20th, 2017

In a conundrum with profound implications, a federal appeals court will revisit whether – in some circumstances — men can be paid more than women for the same job.

On the surface, that conflicts with the Equal Pay Act. But a three-judge panel of the 9th Circuit ruled in April that salary history could justify unequal pay. In essence, the panel determined the male hires in question were paid more because of their last paycheck and that their gender was a coincidence.

The EEOC appealed, saying that the ruling perpetuates the gender gap and conflicts with precedent in other circuits. The full 9th U.S. Circuit Court of Appeals has agreed to review the case, with oral arguments set for December.

She was hired at less pay than all the men in her job

Aileen Rizo, a math consultant, took a job with the public schools in Fresno County, California. Her $62,000 salary was a nice bump from her previous teaching job. But she soon learned that a male colleague was hired at $79,000 for the same job. Further investigation revealed that all her male colleagues earned more.

When human resources did not act on her complaint, Rizo sued for employment discrimination. The school district’s rationale was that the men’s higher pay was based on their salary history. Per county policy, starting pay was determined by adding 5 percent to the hiree’s preceding salary.

The Equal Pay Act allows unequal pay for men and women doing the same work if the disparity is based on factors other than gender, such as seniority. In ruling against Rizo, the appeals court panel cited a prior 9th Circuit decision that salary history can be a factor if the practice (a) effectuates some business policy and (b) is implemented in a reasonable way.

Salary history exception may perpetuate the wage gap

The Equal Employment Opportunity Commission (EEOC) strongly disagrees and appealed the panel’s ruling. Before the 9th Circuit took up the review, the panel had remanded the case to the trial court to explore the “business reason” for the Fresno County salary policies.

The EEOC contends that the ruling enables the pay gap’s vicious cycle. If men are routinely paid more than women, their salary history will dictate they be paid more at the next job, and so on. The American Association of University Women, which studies the gender pay gap, says the wage gap is partially rooted in outdated concepts of men as family providers. For example, AAUW statistics reveal that women who are moms earn less than their female peers (the “Motherhood Penalty”), but men who are dads are paid more than average (the “Fatherhood Bonus”). This bias can be perpetuated in salary history and parental leave policies.

The AAUW says that women earn, on average, 80 percent of their male counterparts. The wage gap varies, but it is true across all industries and all levels of employment, including public sector employees. There is already a pay gap when females enter the workforce in their teens. While women tend to top out in salary in their 40s, male salaries continue to rise into their 50s and 60s.

On the other hand, many economists say it’s a myth that women are paid 80 cents on the dollar compared to men. Rather than a wage gap, they say, it’s an earnings gap. Men gravitate toward – or have more access to – higher-paying jobs. Some moms drop out of the workforce or scale back. Et cetera. Without settling the broader pay gap dispute, the 9th Circuit case is in fact about unequal pay for equal work.

This blog was originally published by Passman and Kaplan, P.C. on September 12, 2017. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Recognizing Signs of Age Discrimination in the Workplace

Friday, June 30th, 2017

In the ideal workplace, employees would be evaluated based on their knowledge, skills, and work ethic.

Unfortunately, this is not always the case. Employment discrimination and other forms of discrimination can plague a workplace.

For an employer, it’s not only a bad idea to discriminate against someone because of his or her age – it’s also against the law.

The Employment Act protects employees who are 40 years of age or older. Employers that discriminate against an employee on the basis of age (or inclusion in another protected class) can be held responsible for their conduct.

Examples of age discrimination

Can you recognize signs of age-related discrimination? Any of these employer actions may indicate that age discrimination is occurring in your workplace:

  • Treating older employees differently than younger employees
  • Failing to promote older workers
  • Targeting older employees in layoffs
  • Targeting younger applicants in job recruitment efforts (such as “seeking young and energetic employees”)
  • Asking an applicant’s age or date of birth in an interview
  • Repeatedly inquiring about an employee’s retirement plans
  • Encouraging an employee to retire
  • Age-based name calling (calling an employee “old man” or “grandma”, for example)

If age discrimination has occurred, a federal employee may be eligible for compensation to cover back pay, front pay, job reinstatement, attorney fees, court costs, and more. It is advisable for an employee to promptly discuss his or her legal options with an employment law attorney.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on June 28, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Trump’s Labor pick hasn’t even had a hearing yet and his confirmation is in serious jeopardy

Wednesday, February 15th, 2017

The fight against President Donald Trump’s pick for secretary of the U.S. Department of Labor, fast food CEO Andy Puzder, is shaping up to be as intense as opposition to Betsy DeVos’ nomination for education secretary. Puzder’s long delayed confirmation hearing is set for Thursday, and a few Republican senators are already signaling they may vote against him.

Sen. Susan Collins (R-ME), Sen. Lisa Murskowski (R-AK), Sen. Tim Scott (R-SC), and Johnny Isakson (R-GA) are withholding their support of his nomination. Sen. Elizabeth Warren (D-MA) made it clear through a 28-page letter with 83 questions for Puzder that she will ensure his confirmation process will be a knock-down, drag-out fight. Other prominent Democrats have spoken out against his record as an employer, and Senate Minority Leader Chuck Schumer (D-NY) has called on President Trump to withdraw Puzder’s nomination.

DeVos ultimately squeaked through a Senate floor debate, but only after an unprecedented tie-breaking vote from Vice President Mike Pence. For weeks before that vote, thousands of people flooded Senate offices with calls against her nomination, and teachers and their allies protested.

Two Republican senators, Sen. Collins and Sen. Murkowski, who now represent half of the Republican senators withholding support for Puzder, voted against her confirmation. Now that twice as many Republicans have already voiced apprehension regarding Puzder, his chances of being confirmed appear even lower.

In her letter, Warren mentioned his “record of prolific labor law abuses and discrimination suits” and “a sneering contempt for the workers in your stores, and a vehement opposition to the laws you will be charged with enforcing.”

Puzder’s CKE Restaurants, which owns fast food restaurants such as Hardee’s and Carl’s Jr., has been the subject of class action lawsuits over the denial of overtime pay as well as lawsuits accusing the company of discrimination. Workers also allege that they were fired for protesting as part of the Fight for 15 campaign.

ROC United, a restaurant employee advocacy group, released a report last month showing that many of the over 500 workers surveyed experienced sexual harassment and unsafe conditions working at CKE restaurants. Sixty-six percent of female CKE employees said they had experienced sexual harassment at work, compared to 40 percent of women who reported such incidents across the entire industry. Puzder has also opposed a $15 per hour minimum wage.

Puzder’s nomination has also been plagued with reports of domestic abuse against his first wife, Lisa Fierstein. On Tuesday, a Missouri judge will rule on whether to unseal records from Puzder’s 1987 divorce, just two days before the nominee’s confirmation hearing. Republican and Democratic senators have also received a tape from the Oprah Winfrey Network that shows a 1990 episode titled, “High-Class Battered Women,” in which Fierstein appeared to discuss the alleged domestic abuse. Fierstein has since retracted the domestic abuse allegations.

Collins has seen the tape, according to Bloomberg, and said, “I am reviewing the other information that has come to light and I’m sure all of this has been explored thoroughly.”

Like the teachers unions that opposed DeVos, which often work with the Fight for $15 campaign, labor groups also have the power to galvanize opposition to Puzder. Last Thursday, thousands of workers protested against his nomination across the U.S., a spokesman for the Fight for 15 campaign told The New York Times. Some of the protesters demonstrated at Carl’s Jr. and Hardee’s locations.

The passionate response to DeVos’ nomination, and eventually confirmation, may also be owed to the broad appeal of protecting public school funding, since plenty of middle class Americans of all political stripes send their kids to public schools or know someone who is a teacher. There is a possibility that a broad swath of Americans would similarly oppose a nominee for labor secretary whose record suggests that he will trample on labor protections.

This blog originally appeared at Thinkprogress.org on February 14, 2017. Reprinted with permission.

Casey Quinlan is an education reporter for ThinkProgress. Previously, she was an editor for U.S. News and World Report. She has covered investing, education crime, LGBT issues, and politics for publications such as the NY Daily News, The Crime Report, The Legislative Gazette, Autostraddle, City Limits, The Atlantic and The Toast.

Workers Say Trump’s Labor Secretary Nominee Is a Habitual Violator of Labor Law

Tuesday, January 17th, 2017

Andrew Puzder, Donald Trump’s nominee for labor secretary, is uniquely unqualified for that job. As secretary, he’d be charged with enforcing health and safety, overtime and other labor laws. But as CEO of CKE Restaurants, the parent company of Hardee’s and Carl’s Jr., he’s made his considerable fortune from violating these very same laws, according to a report by the Restaurant Opportunities Centers (ROC) United released this week.

ROC, which advocates for restaurant workers nationwide, surveyed 564 CKE workers, 76 percent of them women. In discussing the results of the survey, it’s important to note that while ROC surveyed a large number of workers, the respondents are people who chose to fill out a survey distributed by a workers’ rights organization, which they learned about through their social media networks. Still, ROC reported “unprecedented” interest in the survey among workers at CKE and their eagerness to be part of the study, and the experiences they reported, are striking reminders that by tapping Puzder, Trump has made clear that his administration will be a dystopian nightmare for U.S. workers.

A recent national survey among non-managerial women working in fast food found that 40 percent of such women have experienced sexual harassment on the job. Under Puzder, the problem could worsen: A whopping 66 percent of female CKE workers ROC surveyed had faced sexual harassment. Harassment came from supervisors, co-workers or—most often—customers, and took the form of sexual comments, groping, unwanted sexual texts and pressure for dates.

CKE is known for its sexist advertising, which depicts women in skimpy bikinis devouring cheeseburgers. And, certainly, imagery contributes to the culture, but when harassment is as pervasive as it appears to be at CKE, there are usually more structural problems at play. Companies in which women are harassed are generally places in which women—indeed, workers in general—are not valued or respected, and in which workers lack any institutional means to stand up for their rights.

In such companies, women are often not paid and promoted fairly. And, as one might expect, nearly one in five of the CKE workers ROC surveyed said he or she had faced discrimination at work, most commonly on the basis of gender, age or race.

Of the CKE employees who participated in the ROC survey, nearly one-third said they did not get meal breaks that are mandated by law; around one-fourth had been illegally forced to work off the clock or had timecards altered; almost one-third had been illegally deprived of overtime pay.

The ROC survey also found widespread health and safety violations. Nearly one-third of those surveyed said they had become sick or injured on the job. Workers described an environment of slippery floors, frequent grease burns and many said they had to do dangerous tasks—like cleaning a hood over a hot char broiler, for instance—without proper protective equipment.

Appointing Puzder as labor secretary is like inviting Tony Soprano to serve as attorney general. Let’s hope this enemy of working people will face humiliation and defeat when his confirmation goes before the Senate. His hearing, originally set for next Tuesday, may now be postponed until February. That delay would give labor—meaning anyone who works for a living—more time to mobilize against him. Let’s get started.

This post originally appeared on inthesetimes.com on January 13, 2017.  Reprinted with permission.

Liza Featherstone is a journalist and author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart and False Choices: The Faux Feminism of Hillary Rodham Clinton. 

Black Livelihoods Matter: The Civil Justice System Needs Reform Too

Friday, October 14th, 2016

downloadThe Black Lives Matter movement has brought much-needed attention to the disparity in the way our criminal justice system treats African Americans.

But there’s another side of American justice that matters too: our civil courts.

In the United States today, the civil justice system is the last line of defense for workers who have faced discrimination on the job. And not just for individuals, either. Lawsuits and the threat of lawsuits have been the most effective way to force recalcitrant employers to take action against discrimination.

Still, our courthouses are not open to all. As a black lawyer who focuses on employment discrimination, I’ve seen first-hand how access to the courts, the racial makeup of law firms and the way cases are handled can throw up barriers to justice.

Here’s a step-by-step guide to how black workers’ cases get derailed.

Step 1: Black workers are more likely to represent themselves.

Few people can afford to pay an employment attorney up front. Instead, most lawyers in the field work on contingency—meaning they will only get paid if the worker receives a cash award. That makes these cases financially risky for lawyers, who might get nothing for hours of work if the case is dismissed. As a result, it can be hard for many workers to find an employment lawyer.

But for black workers, the problem is even worse. A study commissioned by the American Bar Association found that black plaintiffs are 2.5 times more likely than white plaintiffs to file employment discrimination claims pro se, or without a lawyer. Other racial minorities, including Hispanics and Asians, are 1.9 times more likely to file pro se than their white counterparts.

Winning an employment case is already difficult, even under the best circumstances. Pro se litigants, assuming that they can even get their cases inside a courtroom, are almost guaranteed to lose—no matter how strong the details of their case may be.

For example, litigants may be required to file their case with the Equal Employment Opportunity Commission within a certain number of days, and that time limit varies by state. Workers representing themselves may miss that deadline, and lose their cases before they even start.

Step 2: Attorneys are less likely to take cases involving black workers.

Even when black workers have found an attorney who might be interested in their case, they are less likely to get help. The ABA study found that the way employment attorneys screen their cases can contribute to the racial disparity.

In some cases, employment attorneys charge expensive consultation fees before considering a potential client. Black workers who can’t afford those fees never get in the front door. In other cases, the ABA study found that attorneys favored clients based on criteria that weren’t related to the merits of their case, such as perceived demeanor, mannerisms or a personal referral.

The disparity in pay between black and white workers adds to the problem. Because lost wages are a major part of the case, workers who make less money will receive smaller payouts. For employment attorneys who have to work for free upfront, that means less money at the back end.

Step 3: Juries aren’t always sympathetic to black workers.

Even when employment cases make it to trial, the worker still has only a 15 percent chance of winning, compared to a 50 percent win rate for other types of plaintiffs.

That means employment cases are particularly sensitive to jurors’ beliefs and prejudices. If a jury does not find the plaintiff’s story credible, or doesn’t believe that discrimination occurred, or doubts whether discrimination is all that common anyway—the worker loses.

In addition, damages for emotional distress are allowed in many employment discrimination cases. But jurors may not be as willing to provide them to black workers even when they have found in favor of them overall due to prejudices about their mythical inner strength or whether discrimination is serious.

The end result is that the same discrimination that black workers face in the workplace can also negatively affect them in the eyes of a jury.

Step 4: Even if they win, they are often awarded less money.

Workers who win their cases can receive money for emotional distress, punitive damages intended to send a message to the employer and lost wages. Under federal law, those first two amounts are limited between $50,000 and $300,000, levels set in 1991 that have not been adjusted since. (If they had been pegged to the Consumer Price Index, the cap would be closer to $525,000.)

Generally, the largest award in employment cases is for lost wages. Employees who win their cases can only get the difference between what they made since being illegally fired and what they would have made had they not been fired.

Black employees, on average, make less than white employees. As a result, black employees bringing discrimination cases are disproportionately affected by caps for damages for lost wages. This means that these employees have less leverage to negotiate an out-of-court settlement with employers prior to trial because of the low risk to the employer of having to pay a significant judgment—if the employee prevails at trial. As a result, employers may have less incentive to adequately address discrimination against black employees.

The deep-seated flaws in our civil justice system cannot be ignored. It’s a problem that needs to be addressed by employers, legal professionals, and lawmakers. There needs to be a serious examination as to why black employees who have often been unlawfully excluded from the workplace are then again denied recourse through the legal system.

This article originally appeared on the Huffington Post on October 10, 2016. Reprinted with permission. 

Phillis h. Rambsy is a partner with the Spiggle Law Firm, which has offices in Arlington, Virginia, Washington, D.C., and Nashville, Tennessee. Her legal practice focuses on workplace law where she represents employees in matters of wrongful termination and employment discrimination including racial discrimination, pregnancy discrimination, and other family-care issues such as caring for a sick child or an elderly parent. To learn more, visit www.spigglelaw.com.

A governor just sued his own attorney general over LGBT employment protections

Wednesday, October 5th, 2016

pphlnood_400x400The attorney general said he wasn’t going to stop blocking contracts unless he was sued, so the governor sued.

Louisiana’s governor just sued its attorney general over whether lawyers the state hires should be allowed to discriminate against LGBT people.

If that sounds odd, that’s because it is. And though there’s an easy moral answer to the conundrum, the legal answer might be far more complicated.

Gov. John Bel Edwards (D) was elected last year to succeed Bobby Jindal (R). One of the first things he did when taking office was reverse Jindal’s anti-LGBT policies, including Jindal’s executive order allowing businesses to discriminate against same-sex couples without any consequence from the state. Edwards then issued his own executive order protecting state workers and contractors from discrimination on the basis of sexual orientation and gender identity. It was nearly identical to President Obama’s 2014 executive order protecting LGBT federal employees and contractors, as well as Louisiana gubernatorial executive orders protecting LGB state employees that were in place before Jindal rescinded them in 2008.

But despite both the state and federal precedent for such executive action, Attorney General Jeff Landry (R) wasn’t having it. Prompted by anti-LGBT lawmakers opposed to both Edwards’ executive order and the Obama administration’s guidance protecting transgender students, he issued an eight-page opinion in May declaring that neither was legally enforceable in the state.

“The brief answer is an Executive Order cannot expand or create state law,” Landry wrote. “‘Gender identity’ is not and has never been a legally protected class under state or federal anti-discrimination laws.” He insisted that the order protecting LGBT employees “should be interpreted as merely aspirational and without any binding legal effect.”

Even giving Landry the benefit of the doubt that he was just trying to check the power of the executive, his own anti-LGBT biases are not in doubt. He also said that the federal transgender guidance “creates an environment in which children may be more easily exposed to sexual predators.” Rules simply affirming transgender students’ identities “place the mental well-being and privacy rights of ninety-nine percent of Louisiana’s children at risk without any demonstrable evidence of benefit to the less than one percent of the population this policy purports to benefit.”

For the past four months, Landry and Edwards have engaged in this standoff, warring over state legal contracts. Edwards keeps including LGBT nondiscrimination language in proposed contracts with private lawyers, and Landry keeps blocking them specifically because of this language. He hasblocked at least 37 contracts, including 11 from the Department of Insurance. Defending his actions, Landry’s office has asserted, “The Attorney General requires antidiscrimination clauses in legal contracts to be written in conformity with State and Federal law, therefore, these provisions should not contain language exceeding what the law requires.”

Matthew Block, general counsel for the Edwards administration, explained last week that these blocked contracts are starting to have a big impact on the management of the state. “We have a lot of things that need to get attended to and we need to have people doing their work,” he told NOLA.com. “I have law firms not getting paid for the work that they are doing. I have law firms that are waiting around to start work.”

1-ttjhkebbo9sxiijhid_lyaSo on Friday, Edwards sued Landry in state court. At a press conference Friday, he was pretty blunt about the standoff. “He basically told me that if I wanted him to approve those contracts that I would have to sue him,” Edwards said. “So I’m obliging him on that.”

The lawsuit states that Landry “has refused to perform the ministerial task of approving private contracts and appointing private counsel for numerous executive agencies of the State.” He has “explicitly rejected most of the contracts on the grounds that the contracting attorneys should not have agreed not to discriminate in employment and the rendering of services” in accordance with the executive order. In other words, the lawyers who would be impacted by the LGBT protections have already agreed to them, but Landry has still denied the contracts because that language is in them.

The conflict is spurring some interesting political divisions. For example, Louisiana Senate President John Alario (R), voted against LGBT nondiscrimination protections in the legislature, but he told NOLA.com that he believes the governor isn’t overstepping his authority. It’s Landry, he said, who he thinks “is stepping out of bounds.”

Landry has stood by his actions, saying in an interview that he looks forward to “defending the legislature and their priorities and their wishes.” He added that he believes the protections create “additional liabilities and expenses for the state,” but refused to answer questions about his own position on protecting LGBT people from discrimination.

It will now be up to the state courts to resolve the conflict, or at least to interpret whether Landry is within his authority as attorney general to rebuff the executive order. It could, however, be the first time that a court weighs the validity of an executive order that protects workers from discrimination.

But Louisiana is hardly an outlier for the actions Edwards took. There are 12 other states that, through executive order or similar administrative regulation, extend employment protections to state employees on the basis of sexual orientation or gender identity that exceed protections under state law. And of course, past Louisiana governors protected sexual orientation without having to sue their attorneys general to enforce them.

This article was originally posted at Thinkprogress.org on October 5, 2016.
Reprinted with permission
.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

 

House Republicans stand strong for anti-LGBT discrimination in the wake of Orlando shootings

Thursday, June 23rd, 2016

LauraClawsonLGBT people may be able to marry, but in many states they can also be fired or not hired because they’re LGBT. And House Republicans are fighting to keep that from changing.

President Obama’s executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity went into effect in 2015. Democratic Rep. Sean Patrick Maloney has been trying to get the House to pass an amendment backing up that executive order, but House Republicans are not having it. They’ve beenfighting to keep allowing employers to discriminate against LGBT workers even if they get federal money, and they’re not stopping now.

The House Rules Committee blocked Maloney’s amendment from getting a full House vote. Again, we’re talking about something saying that if you want federal money, you can’t discriminate. And context matters here:

Maloney argued that allowing a vote to prohibit discrimination in the workplace after the targeted attack on the gay nightclub would send a message of solidarity with the LGBT community.

“It’s hard to imagine that any act that is so horrific could lead to anything positive. But if we were going to do anything, it would be a very positive step to say that discrimination has no place in our law and to reaffirm the president’s actions in this area,” Maloney told The Hill. “Seems to me a pretty basic thing to do.”

Sorry, make that—context should matter here. But House Republicans have made it clear that there’s no context that would stop them from enabling discrimination.

This blog originally appeared at DailyKos.com on June 15, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

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