Outten & Golden: Empowering Employees in the Workplace

The Trump administration wants to make it easier to fire women who act too ‘masculine’

August 20th, 2019 | Ian Millhiser
Thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

The Trump Justice Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.

It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.

“Because of . . . sex”

Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims to “believe that the Bible teaches that a person’s sex is an immutable God-given gift.”

In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, as a textual matter, Stephens should have an easy case. Title VII’s language is capacious. It forbids any discrimination “because of” an employee’s “sex” (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

The entire reason why Stephens was fired is that her employer believes that she is a man, and that men must dress and act a certain way. That’s discrimination because of sex.

Stereotyping

Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping — or, at least, she does under those cases as they currently stand.

Price Waterhouse is a bit of a confusing decision because it did not produce a single majority opinion. Nevertheless, a majority of the Supreme Court clearly agreed that sex stereotyping is not allowed. Brennan concluded, on behalf of himself and three other justices, that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Meanwhile, Justice Sandra Day O’Connor said that the plaintiff in Price Waterhousecould proceed with her lawsuit because she proved that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to make her a partner. So Brennan’s opinion plus O’Connor’s opinion equals five votes against sex stereotyping in the workplace.

Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that “Title VII creates no independent cause of action for sex stereotyping.” Though Kennedy conceded that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.

Which brings us to the Trump administration’s argument in is Harris Funeral Homesbrief:

Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.

See the problem here? This passage does not describe the majority’s view in Price Waterhouse at all. To the contrary, it’s the exact same view that Justice Kennedy took in dissent.

Having confused the majority’s view with a dissent, the Trump administration then claims that much of Price Waterhouse must be rolled back.

Indeed, it’s notable that the Trump administration is only able to cite one lower court opinion that supports its novel view of Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho — a Trump judge known for writing aggressive opinions that read more like Fox News editorials than like judicial decisions. The Ho opinion that Trump’s Justice Department relies upon does not cite any other case that shares his reading of Price Waterhouse.

Price Waterhouse, moreover, is hardly an obscure case. It is a seminal decision that recognized an entire branch of American civil rights law. According to the legal research database Lexis Advance, 6,265 court decisions cite Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasn’t able to find a single one that supports his reading of Price Waterhouse is compelling evidence that Ho is wrong.

It’s unclear just how drastically the Trump administration’s reading of Price Waterhousewould roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. Unless Price Waterhouse is read narrowly, the Trump Justice Department warns, “a dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.”

Perhaps. A prototypical example of sex stereotyping is declaring that men must look a certain way and women must look another way (although some lower courts permit gender-specific dress codes so long as they are “equally burdensome” on men and women). At the very least, the Trump administration appears eager to strip all American workers of their right to keep their job even if they don’t tailor their appearance to their employer’s gender norms.

One lesson of Harris Funeral Homes, in other words, is likely to be that the fate of various civil rights plaintiffs are unavoidably linked. Denying trans workers the right to be free of employment discrimination means rolling back doctrines that protect other workers as well.

If the Supreme Court joins the Trump administration’s crusade against trans rights, the consequences will spill over to all workers.

This article was originally published by Ian Millhiser on August 20, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Permalink


Why Join a Labor Union? The Key Benefits Workers May Not Know About

August 19th, 2019 | Janet B. Gerhard

Unions are struggling in this country. The U.S. Department of Labor reported that the percent of U.S. wage and salary workers who were members of unions in the year 2018 was 10.5 percent, down from 20.1 percent in 1983. That low level of membership has not been seen since the 1930’s—just before the introduction of labor laws protecting workers’ rights to organize—a September 2018 PBS News Hour article observed. When only 1 in 10 U.S. workers is a member of a union, according to Bureau of Labor statistics, it would seem that many working Americans are missing out on the key benefits that union membership affords.

Biggest Reasons to Join a Union – How Unions Improve Workers’ Welfare

When I asked my friend Ray Greaves, who is General Chairman of New Jersey’s Amalgamated Transit Union, how he would sum up the benefits of joining a union, he said this: “Any worker who has the opportunity to join a union should, because when you join a union, you improve your safety at work, prioritize the health of both you and your family, protect your financial stability, invest in your retirement savings, and access a whole community of support in your job.”

Those benefits were worth unpacking further, with a closer look at how unions improve workers’ welfare— starting with these three key benefits:

  1. Better Wages and Job Benefits Via “Collective Bargaining” – Membership in a union means that you are part of an organized body of employees who can negotiate better, more favorable wages and other conditions of employment, such as health insurance benefits, retirement plans and fair work practice policies. As evidence, a study by the Economic Policy Institute found (among still other economic advantages to joining a union) that:
  • Unions raise wages of unionized workers by roughly 20% and raise compensation, including both wages and benefits, by about 28%.
  • Unionized workers receive more generous health benefits than non-unionized workers— and pay less for those more generous health benefits. In retirement, unionized workers are 24 percent more likely to be covered by health insurance paid for by their employer.
  • Unionized workers are more likely than their nonunionized counterparts to receive paid leave, are 18 to 28 percent more likely to have employer-provided health insurance, and are 23 percent to 54 percent more likely to be in employer-provided pension plans.

In other words, there is strength in numbers. Whereas one person won’t convince HR and management that they need comprehensive health insurance coverage, a large body of unionized employees will be much more persuasive at making the same case.

  1. Better Job Security and Just Representation of Your Employee Rights – Unions have successfully championed legislation to protect employees from unfair work environments and labor practices. A case in point: the Weingarten Act, passed in 1974, which allows a union member to ask for union representation if they are called into a meeting that may change their job status or take disciplinary action.

Often, union representation can ensure the mitigation of disciplinary actions against you. Imagine, for example, a scenario in which you have a drug or alcohol problem and test positive for a drug screening or begin to exhibit problem behaviors at work. In addition to successfully advocating for protection of your job and milder punitive actions on the part of your employer, your union may help you find a low-cost treatment option that allows you to keep your job by seeking treatment for your condition. (In many cases, a union will have contracted with a specific provider for just these sorts of situations.) That access to low-cost addiction treatment and protection of your job while you are away are benefits that many non-unionized workers often don’t get.

  1. Safer Working Conditions – A 2016 study in the American Journal of Public Health concluded that labor unions promote healthier, safer workplaces by ensuring “higher wage and benefit standards, working hours limits, workplace hazards protections, and other factors.” The researchers further concluded that unions promote workers’ well-being by encouraging “democratic participation” and “a sense of community among workers.”

There are many benefits to union membership: This list is not exhaustive. Still, better wages and benefits, better job security and representation of your rights, and safer working conditions are three key reasons to join a union. Together, they make the case that more working Americans should be joining unions.

About the Author: Janet B. Gerhard is Director of Public Affairs for FHE Health, a nationally recognized addiction and mental health treatment provider. Janet is regularly invited to speak to workforce gatherings about addiction-related topics. Learn about FHE Health’s addiction treatment programs here. If you have questions about this issue or other treatment-related inquiries, feel free to contact Janet at 1-866-768-7021.

Permalink


Supreme Court to decide if LGBTQ workers are protected by US civil rights law

August 19th, 2019 | Casey Quinlan

The U.S. Supreme Court in its upcoming session will hear arguments on whether anti-LGBTQ employment discrimination is sex discrimination.

The court will hear arguments on October 8 about whether LGBTQ workers are protected by the Title VII of the Civil Rights Act of 1964.

“This is a momentous occasion. It is a pivotal moment and the public should be paying attention,” Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a civil rights organization focused on LGBTQ people, told ThinkProgress.

“These cases will affect the ability of LGBTQ people to be full members of society and to contribute to society by entering the workplace and be free of discrimination.”

In the worst case scenario, LGBTQ people would have to rely on a patchwork of state protections for employment protections and the Equality Act, a sweeping LGBTQ nondiscrimination bill passed by the U.S. House of Representatives in May, would become even more critical to protecting LGBTQ rights.

Twenty-one states, the District of Columbia, and two territories explicitly prohibit employment discrimination based on sexual orientation and gender identity.

Christy Mallory, senior counsel for the UCLA School of Law’s Williams Institute, said, “The court may decide that neither sexual orientation or gender identity discrimination are forms of sex discrimination prohibited by Title VII. This would remove existing non-discrimination protections for LGBT people under Title VII, which would have a particularly significant impact on LGBT people who live in states without statewide non-discrimination laws.”

There are three cases but two questions before the court. Zarda v. Altitude Express and Bostock v. Clayton County have been consolidated to consider sexual orientation as sex discrimination and Harris Funeral Homes v. EEOC will consider discrimination against transgender people.

The Zarda case involved an employee named Donald Zarda being fired from Altitude Express, where he worked as a skydiver. He informed a woman he was gay while they were strapped to each other because he thought it would make her feel more comfortable. She later informed his employer that she wasn’t happy with his sharing his being gay and he was subsequently fired. Zarda died in 2014 but his estate pursued the case.

The Bostock case focuses on Gerald Bostock, a child welfare services coordinator who was in a gay recreational softball league. He said his participation in the league and his sexual orientation became a problem with someone at work. Then he was fired for “conduct unbecoming of a county employee,” which he said was tied to his sexuality.

Harris involves Aimee Stephens, a trans woman, who was fired from her job at a funeral parlor after she informed the funeral director she worked for that she was transgender. She had worked in funeral services for nearly 20 years and received positive feedbackfrom her employer.

The briefs from plaintiffs and their supporters have focused on a textualist understanding of the law — hewing closely to the original text of the Constitution, which the conservative justices may be more inclined to accept — rather than legislative intent, or what lawmakers had in mind in passing related legislation.

Several law professors have argued in their briefs that the court can look to Price Waterhouse v. Hopkins (1989), which says employers can’t use sex-based stereotypes when taking employment actions.

Gonzalez-Pagan said one doesn’t need to believe that anyone can be transgender. Despite the mountains of evidence, “the reality is that in the discrimination in this case against this employee, Aimee Stephens, she did not conform to the expectations of her birth-assigned sex that the employer had.”

The Alliance Defending Freedom, a legal group whose attorneys have linked marriage equality with a “degradation of our human dignity,” and filed a petition asking the court to hear one of these cases, has argued that lower courts “redefined” sex in the law. Mallory pointed out that Title VII itself does not define the term “sex.”

But plaintiffs and others can also argue that when discriminating against queer and trans people, you necessarily have to consider sex.

“The fact is that in the arguments we are making, that plaintiffs are making, and others are making in this case, this is really about the text of the statute. This is really a very conservative argument — textualist and adhering to the letter of the law. And the reality is that when you consider somebody’s same-sex attraction, somebody’s transgender status — by definition you have to consider their sex,” Gonzalez-Pagan said.

“You are impermissibly considering sex in taking an employment action. There’s no way around that. It’s not that we are in this case proposing that there be another definition of sex. It is being elucidated in other cases and in scientific literature and the medical establishment and there is a consensus that is built but we don’t even have to go there. Because either way, because no matter the definition you consider of sex, you’re still considering that sex in making that employment decision.”

Some historians have argued in an amicus brief that the understanding of sex in the 1940s, 50s, and 60s was such that LGBTQ people could have been understood to be included. They wrote, “This broad understanding of sex, as evoking a range of sex roles, sexual expression, and sexual instincts, shaped public knowledge about LGBT individuals. Mid-twentieth century writers sometimes grouped LGBT people under the term ‘sex variants’—a term introduced by psychiatrist George Henry to mean primarily persons he considered homosexuals, though he sometimes also included individuals who wished to change their sex, regardless of their sexual desires.”

They added, “The word ‘sex’ thus covered a broad range of meaning in the mid-twentieth century—one that encompassed the behavior, practices, and identities of LGBT individuals.”

Gonzalez-Pagan said that a common argument against the Equal Rights Amendment in the 1970s was that by prohibiting sex discrimination, one could apply it to LGBTQ people.

“[O]pponents of LGBTQ equality that are trying to dismantle these protections recognized by EEOC and federal courts and vast majority of public — what they’re trying to do is have their cake and eat it too,” he said.

“They are saying these protections aren’t necessary because they will essentially protect LGBTQ people and now they’re saying they don’t cover LGBTQ people. So it’s really illustrative of their bad faith.”

He added, “It’s not about not whether we have arguments on our side, but whether the court will adhere preferences for statutory interpretation, or political ideology. That’s what really what’s at stake here.”

This article was originally published at Think Progress on August 17, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Permalink


What Sanders' political revolution looks like in real life

August 19th, 2019 | Holly Otterbein

Image result for Holly OtterbeinIn May, an Illinois man emailed info@berniesanders.com with a plea: Graduate students at the University of Chicago were going on strike, and he wanted Bernie Sanders’ presidential team to help.

“I’ve been super inspired by seeing the Bernie campaign support similar actions,” he said.

A few days later, Sanders’ aides obliged, and then some: They used his massive email list to target his fans in the area, asking them to stand on the picket line with students. Some 100,000 texts and emails went out from the campaign, and hundreds of people showed up.

The Vermont senator’s team was ready to act quickly on the stranger’s request because it dovetailed with its plan to harness his state-of-the-art digital infrastructure and grassroots army of volunteers to keep Sanders’ promise to help American workers from the campaign trail. While other candidates have also stood on picket lines and used their email lists to raise money for progressive groups, the scale of Sanders’ efforts appears to be unparalleled in the 2020 field.

His moves also serve an important campaign purpose: to make clear to voters what Sanders means when he calls for a “political revolution.” His advisers acknowledge that the concept is fuzzy to some Democrats and they need to clearly show how he would usher in a revolt from the White House if elected president.

“He knows that when he talks about a revolution, there are some segments of people who don’t know what he’s talking about,” said Faiz Shakir, Sanders’ campaign manager. “That’s why you see us trying to demonstrate that much more clearly — to give you a sense of what he would be like as a president.”

Sanders has tapped his email list to push his fans to join picket lines and labor rallies at Veterans Affairs hospitals, University of California campuses, Ralphs grocery stores, Reagan National Airport, a Kaiser Permanente campus, and McDonald’s restaurants in at least 12 places, including the first-in-the-nation caucus state Iowa and delegate-rich California. His efforts haven’t been limited to labor events: Sanders has also used his campaign apparatus to recruit volunteers to get out the vote for Queens District Attorney candidate Tiffany Cabán in New York and to boost turnout at a protest at a proposed migrant detention center in Oklahoma.

At times, Sanders’ team has utilized the same infrastructure to raise money for labor groups and other progressive organizations, like when it pulled in $100,000 for a strike fund for Los Angeles teachers by emailing its base. Sanders has also sought to portray himself as the country’s “organizer in chief” through public appearances, including when he crashed a Walmart shareholders meeting to push for a $15 hourly minimum wage or brought two buses of reporters and activists to Canada to highlight the exorbitant cost of prescription drugs in the United States.

The campaign’s moves reflect the intense competition underway for progressive voters and labor endorsements among the 20-plus candidates vying for the Democratic nomination. Sanders’ aides and allies are careful to point out that he has spent his career trying to build a political movement, including by standing on picket lines for decades. But they also think his efforts could help in the primary by building goodwill in the labor movement and distinguishing him from rivals.

“It’s not just about issues,” said Claire Sandberg, Sanders’ national organizing director. “It’s about whether you’re willing to pick the big fights.”

There’s evidence it’s working. Penny Logsdon, president of the Lee County, Iowa, Labor Council, said “it was wonderful” that Sanders utilized his email list to draw people to the group’s rally against President Donald Trump’s new trade deal with Mexico and Canada.

Scott Slawson, president of Pennsylvania’s United Electrical, Radio & Machine Workers of America Local 506, had similar words for Sanders after the Vermont senator dragged his supporters to the union’s strike earlier this year. “The outpouring of support we had from the campaign was amazing,” he said.

After Sanders’ appearance at the Walmart shareholders meeting, the campaign revealed that the company’s workers were his biggest donor in the second fundraising quarter of the year. Likewise, the Los Angeles Unified School District was among the top 10 employers of donors to his campaign after the second primary debate last month.

Sanders’ campaign said it has sent hundreds of thousands of emails and a half-million texts to his supporters to push them to attend more than 50 strikes, protests and other events this year. It’s a significant investment for a presidential campaign, considering there’s only so much time or money Sanders’ supporters are willing to give overall, and he’s asking that they commit themselves to causes that only indirectly benefit his candidacy.

The decision to use his campaign in a sustained way to show solidarity with union members and other progressive groups was made before he launched his second bid for the White House, his aides said. According to his advisers, he determined he would only run for president again if he could do that. He believes that one of his biggest achievements is the fact that Amazon raised its minimum wage to $15 an hour after he rallied millions of people to the idea during his 2016 presidential campaign.

Sanders’ allies see his “theory of change” as one of the key ways he differs from fellow left-wing populist Sen. Elizabeth Warren. In their view, he’s pushing for change by building a movement to overturn the political and economic status quo, while she wants to overhaul the government by working from within the system. One former government official described Warren’s theory of change as being, “You focus on one or two levers, and you push them hard.”

But it’s unclear whether Sanders’ efforts are resonating with voters — or if Democrats, after three years of Trump, will want to be more engaged in politics, not less, once he leaves office.

Shi Williams, an operations coordinator at Philadelphia’s Hahnemann University Hospital, recently attended a rally protesting the planned closure of the facility where one of Sanders’ campaign co-chiefs spoke. Sanders’ team also emailed his supporters to push them to come to the event. Williams hasn’t yet decided who she’ll vote for in the Democratic primary, but she praised Sanders’ campaign for drawing attention to the cause.

“The more people that know about it, the more people that speak behind it, the more positive it is,” she said. “I like Bernie. Bernie’s for the people.”

There’s another problem facing Sanders: By his own estimation, no president in the history of the United States has pursued progress with a mass movement of workers. In other words, there’s no model for him to point to when he tries to explain to voters what a revolution would look like.

“We actually had this conversation one time, and he said to me candidly, ‘I don’t think there’s a precedent for this,’” Shakir said. “He thinks that’s one of the challenges that he faces, quite frankly, when he talks about building or bringing about a revolution.”

This article was originally published by Politico on August 19, 2019. Reprinted with permission. 

About the Author: Holly Otterbein is a reporter.

Permalink


State Department watchdog details political retaliation against 'disloyal' staffers

August 16th, 2019 | Nahal Toosi

Nahal ToosiTop officials in the State Department bureau that deals with international institutions engaged in “disrespectful and hostile treatment” of staffers, including harassing some over suspicions that they were “disloyal” due to their suspected political views, a federal watchdog says.

At least one top career employee was forced out of her position for inappropriate reasons, while others found themselves stripped of their duties because of their superiors’ political biases, according to the watchdog.

The findings were contained in a report published Thursday by the State Department inspector general’s office. The report, obtained in advance by POLITICO, is the first of two from the inspector general that explores allegations that President Donald Trump’s political appointees retaliated against career State Department employees. The second report is still being drafted.

Thursday’s report singles out the assistant secretary of State for the department’s Bureau of International Organization Affairs, Kevin Moley, as failing to stop the misbehavior despite numerous complaints. It also contains a raft of examples of alleged inappropriate actions by Mari Stull, another senior political appointee in the bureau, who has since left.

Stull and Moley were said to have “frequently berated employees, raised their voices, and generally engaged in unprofessional behavior toward staff,” according to the report.

The majority of the employees the inspector general’s office interviewed “either directly experienced hostile treatment or witnessed such treatment directed at others. In fact, one IO employee told [the Office of the Inspector General] that working with Ms. Stull involved ‘six to eight hostile interactions per day.’”

The report has been eagerly anticipated by Democrats in Congress. On Thursday, Rep. Eliot Engel of New York, the chairman of the House Foreign Affairs Committee, called its findings “offensive” and said that Moley should “resign or be fired.”

Engel added that he and his colleagues “won’t stop until this culture of impunity is ended and everyone responsible faces stiff consequences.”

Moley did not immediately reply to a request for comment, but in a response to the investigation, which the inspector general included in his report, he said the misbehavior attributed to him “does not represent the person I am or have ever been.” He also insisted that many of the alleged incidents had been mischaracterized.

Stull, who served as a senior adviser to Moley, could not immediately be reached for comment. She declined the inspector general’s interview request during the investigation. Because she was no longer a federal employee — she left the State Department in January — she was not required to cooperate.

Stull, who was known to describe herself as “the Vino Vixen” because of her past keeping of a wine blog, was also alleged in past media reports as having tried to keep lists of career government staffers she considered disloyal or loyal to the president.

The report did not appear to directly address that allegation, but it noted that many of the bureau’s staffers said Moley and Stull “made positive or negative comments about employees based on perceived political views.”

For example, several career employees reported that throughout her tenure at the department, Ms. Stull referred to them or other career employees as “‘Obama holdovers,’ ‘traitors,’ or ‘disloyal.’”

Moley, however, insisted to the inspector general’s office that “the only occasion on which he heard Ms. Stull make such remarks was in reference to former political appointees whom she believed were converted to career employees.”

Career government staffers are sworn to serve in government in a nonpartisan fashion, no matter who or which party controls the White House. But many of Trump’s political appointees believe there exists a “deep state” among the career staffers that is determined to thwart the president’s agenda.

The Bureau of International Organization Affairs deals with institutions such as the United Nations. That description alone made it a target of scorn among some top Trump political appointees because of the Republican president’s general disdain for multilateral institutions.

In Stull’s case, it may not have been all about ideology. Investigators wrote that they found evidence that she tried to retaliate against two employees of the bureau who she determined had failed to help her deal with a legal issue in one of her past jobs.

Stull had previously worked at the U.N.’s Food and Agriculture Organization, and had filed an administrative claim regarding her time there. While still at the FAO, she tried to enlist a staffer in the State Department bureau to help with her case. The employee, after talking to his manager, consulted with legal advisers, who told him it was best not to intervene.

The report describes how, after joining the bureau, Stull went out of her way to undermine and complain about that employee and his manager.

“Ms. Stull’s criticism of these employees and her attempts to remove job responsibilities from the employee whose assistance she sought appear likely to have been based on her belief that the individuals did not provide her with sufficient assistance in her private employment dispute,” the report states.

In at least one case, the report says, there’s strong evidence that Moley forced out a high-ranking staffer — a principal deputy assistant secretary with an excellent record and extensive experience — after she raised concerns to him about Stull’s behavior and morale issues in the bureau.

“The circumstances of Assistant Secretary Moley’s removal of the PDAS suggests that he undertook a personnel action based on non-merit factors, namely, her articulation of concerns about Ms. Stull’s conduct,” the report states.

In another case, Moley and Stull are accused of deciding not to fill a bureau role that dealt with human rights because they did not like the leading candidate for the role, possibly because of the person’s relationship with the LGBTQ community. The person’s past work dealing with the U.N. agency that deals with Palestinian refugees was also said to have bothered Stull, who felt the agency was anti-Semitic.

Stull and Moley didn’t appear to understand or be willing to follow established chains of command at the State Department. They would assign duties to staffers without going through supervisors, for instance, or get upset if they weren’t immediately copied on certain papers, even though staffers were following standard procedures on when to route papers to them.

“For example, in April 2018, Ms. Stull asked a mid-level employee, without going through the employee’s supervisors, for information about another nation’s contributions to the UN,” the report states. “Ms. Stull did not believe the data provided was accurate, called the work product ‘garbage,’ and threw it at another employee.”

In one case, Moley is said to have implied, in an email, that the reason he needed to offer clearance on a document was to make sure it reflected the Trump administration’s position.

In another case, multiple witnesses said Stull and Moley had berated a junior employee over a document-routing issue, making her cry. Moley told investigators that he’d never raised his voice at an employee, and that the only time he had heard Stull raise her voice was to him.

Employees alleged that Stull even criticized some of them for clearing certain documents before she’d joined the bureau. “Two employees told OIG that Ms. Stull’s inappropriate conduct had become so pervasive that employees were afraid to put their name on any clearance pages,” the report states.

Moley, meanwhile, “criticized employees when they told him that official travel that he planned in May 2018 did not qualify for first class accommodations under the department’s travel policies and accused them of ‘not fighting hard enough’ to meet his demands,” the report states.

Stull appeared especially fixated on the career staffers’ political views, even though such employees are supposed to serve in a nonpartisan fashion. Some staffers told investigators that “Stull made positive comments about some specific career employees because they reportedly made contributions to Republican candidates.”

Stull also berated an employee because she’d accompanied a delegation of members of the Congressional Black Caucus to the United Nations. The bureau’s staffers routinely accompany such delegations regardless of its composition, the report notes. But Stull “expressed displeasure with her for accompanying the Congressional Black Caucus delegation because it consisted of only Democratic members.” She accused the employee of trying to “thwart” Trump’s agenda, the report says.

The staffer soon found herself stripped of many of her responsibilities; she eventually left the State Department.

Inspector General Steve Linick recommended that the department develop a “corrective action plan” to fix the leadership deficiencies in the bureau. He also recommended that the department consider other moves, including “disciplinary action” against Moley.

The State Department has agreed on both counts.

Linick has been investigating allegations that Trump appointees had targeted career staffers for political retaliation since spring 2018. His other cases include ones involving the alleged actions of aides to former Secretary of State Rex Tillerson. They include one case exposed by POLITICO in which a career staffer of Iranian descent was ousted from a top policy role.

Linick’s investigation grew to cover the international organizations bureau after a June 2018 report in Foreign Policy about Stull, whom career staffers accused of deeply hostile behavior, including compiling loyalty lists.

The report issued on Thursday is based on thousands of emails and other documents, as well as investigators’ interviews with more than 40 people, including Deputy Secretary of State John Sullivan. Secretary of State Mike Pompeo is not listed as having been interviewed.

“Nearly every employee interviewed by OIG raised concerns about the leadership of IO and the treatment of staff,” the report states.

The report, in a footnote, says Stull sent the inspector general’s office a letter in August 2018 that raised concerns “regarding fraud, waste, and abuse, as well as allegations that she had herself experienced retaliation as a result of her efforts to address these concerns.”

Investigators have looked separately into Stull’s claims, but they noted that the probe that led to the soon-to-be-released report did not uncover information to corroborate her allegations.

Many staffers said that they approached Moley with concerns about sinking morale, but that he would minimize it, according to the report. Moley told investigators no employee had ever brought such concerns to him.

“When individuals raised concerns with Ms. Stull about her treatment of employees, she asserted that she was herself the victim of harassment and informed at least one employee that raising such concerns was pointless because the Trump administration ‘has my back,’” the report states.

The report details several attempts by the State Department’s top leaders to get Moley and Stull to adjust their behavior, but it appeared to have limited effect, according to the report.

“Approximately 50 of 300 domestic IO employees have departed IO since Assistant Secretary Moley took over its leadership, and nearly all of the former employees who OIG interviewed stated that poor leadership of the bureau contributed to their decision to depart,” the report states.

This article was originally published by Politico on August 15, 2019. Reprinted with permission. 

About the Author: Nahal Toosi is a foreign affairs correspondent at POLITICO. She joined POLITICO from The Associated Press, where she reported from and/or served as an editor in New York, Islamabad, Kabul and London. She was one of the first foreign correspondents to reach Abbottabad, Pakistan, after the killing of Osama bin Laden. Prior to joining the AP, Toosi worked for the Milwaukee Journal Sentinel, where she mostly covered higher education but also managed to report from Iraq during the U.S. invasion in 2003, as well as from Egypt, Thailand and Germany.

Permalink


Discrimination complaints hit group fighting Trump's health policies

August 16th, 2019 | Rachana Pradhan

Rachana PradhanSome of its employees have described an environment allowing mistreatment of minority and LGBTQ employees.

A legal aid organization leading the fight against several Trump administration policies, including health care for LGBTQ and low-income people, is facing its own internal allegations of discrimination.

The National Health Law Program, or NHeLP, was founded in 1969 to advocate for health care rights of underserved people. It has grown more prominent in the Trump era, taking on causes like fighting Medicaid work requirements. But some of its employees have described an environment allowing mistreatment of minority and LGBTQ employees, including instances of bullying black women; employees telling “off-color jokes” about women and Jewish people; and a “sense of not belonging among LGBTQ staff,” according to a 2018 assessment on its workplace culture obtained by POLITICO.

Elizabeth Taylor, a former Justice Department attorney who became the group’s executive director in 2014, said leadership has worked, and continues to work, to fix problems flagged by the 53-pageassessment, which the organization commissioned amid high staff turnover and concern about workplace culture.

“We appreciate the urgency of addressing racism both internally and in our outward facing work,” said Taylor. She said remedies include diversifying leadership, bringing in a human resources company to do management training, convening all-staff retreats focused on equity issues and establishing ground rules for conduct during meetings and other workplace interactions.

But a half dozen individuals who work or have worked for the social justice nonprofit claimed workplace inequities persist. All of them worked there after the January 2018 report.

NHeLP employs roughly three dozen attorneys, policy experts and administrative staff across its three offices in Washington, Los Angeles and CarrboroN.C.

“They say we hear you and we understand you but then don’t see results,” said one employee who called the pace of change too slow. “Things have to change.” That employee, as well as other current and former employees who spoke to POLITICO, asked to remain unidentified.

Taylor acknowledged that improvements may not occur quickly enough for certain employees — but that the changes can’t be rushed if they are to be done correctly and sustainably.

The January 2018 report, in addition to interviews with several former and current employees, depict an organization struggling to create an equitable workplace even as it battles the Trump administration over policies it says are discriminatory or punitive to low-income people and other marginalized groups.

The legal group is not alone in grappling with these issues; many sectors of society including Hollywood, Congress, the media and both the corporate and nonprofit worlds are uncovering mistreatment, abuse andemployee discrimination.

Since 2016, 14 people have left NHeLP, including eight people of color, according to figures the organization provided to POLITICO. Four of them left this year, including two individuals who are ethnic minorities.

It is unclear whether all these departures were related to the issues raised in the report. POLITICO was unable to reach some of the people who left in recent years; others did not respond to queries.

One employee who left after the 2018 assessment told POLITICO there were challenges around the retention of minority staff and lack of leadership opportunities.

“I think that there are situations that they are trying to improve. I just think it’s a long road ahead,” said the individual who left after concluding there was no opportunity for advancement.

NHeLP for decades has fought in court for patient access to a range of health care services, such as medications for severe chronic illness, children’s mental health benefits and abortion. It has also advocated for legislation expanding health insurance coverage. The group’s profile — along with its fundraising — has grown in the Trump era, its work seen as indispensable among health care advocates who oppose a range of Trump policies they believe will weaken the health care safety net for millions of people.

The organization has led successful lawsuits blocking the Trump administration from allowing the first-ever Medicaid work requirements in three states, though the Justice Department has appealed and other states are still planning on adding work rules. NHeLP is also likely to challenge the administration’s looming rollback of civil rights protections for LGBTQ patients, which the nonprofit helped shape as part of the Affordable Care Act.

The organization raised $8.3 million in 2017, more than triple the $2.6 million it raised in 2014, according to tax documents (though below the nearly $11 million that came in during 2013.) In 2017, as Republicans in Washington sought to repeal the Affordable Care Act, the group hired 11 people, about three times as many as the year before. Despite staff turnover, the organization grew.

NHeLP has stood out as a rare legal organization that is primarily led by womenYet it has struggled with retaining a diverse staff, even as it expanded.

“We know that we still have work to do and we’re doing it,” Taylor said.

Many nonprofits as well as for-profit entities struggle with boosting diversity and installing leadership that is more representative of the populations they serve.

“This is something that’s urgent and most every nonprofit in the country is struggling with,” said one individual in the nonprofit sphere who has worked with NHeLP for years. “Figuring out a way to address it is vital.”

Taylor said the departures in 2016 of three employees of color who worked on policy issues was one reason NHeLP stepped up its diversity and equity efforts, including hiring an outside firm to examine its workplace culture. That review by the Management Assistance Group produced the January 2018 assessment.

“There were certainly things in it that resonated with me,” said Wayne Turner, a senior attorney based in Washington, declining to give specifics. But he added, “I think for people who have been here for a while, it’s kind of history and we’ve moved beyond that.”

The group’s board in 2017 also adopted a strategic plan that included priorities to boost equity internally as well as in other areas, including partnering with organizations that represent the interests of people of color.

Then the January 2018 report came. The report, which is based on interviews and observations provided by current and former staff as well as board members, detailed management styles that alienated staff of color and LGBTQ workers.

The report noted the perception among some employees that “there were instances where women of color had more experience but white staff were identified as more capable.” It also relayed descriptions of instances when individuals acted “surprised when a person of color is a good writer.”

“Management issues are so bad and pervasive,” the report quotes one employee saying. “While I’ve benefited from being a white woman, it is hard to see it because it is such a challenge. It is worse for people of color.”

The report said people observed “bullying” of black female employees, but it did not provide details or indicate how many individuals witnessed it. Nor did it provide more details about off-color jokes.

“There were things in there that were shocking as leaders of the organization to read,” Taylor said.

The report said NHeLP’s emphasis on maintaining a workplace culture of “niceness” and avoiding conflict can prevent employees from raising concerns related to treating workers equally. Managers also “often” meant to create an inclusive atmosphere, but those efforts backfired at times, the report said.

“We learned that managers often have the best intentions to make staff feel included and welcome, however due to miscommunication, disparate management styles, and assumptions about what people want, are skilled at, and need, their actions do not land as intended, and too often create an atmosphere of unintended hostility,” the report reads.

Not all employees perceived that hostility; the report found most staff believed NHeLP’s offices were pleasant and knew their colleagues had “the best intentions in mind.” Many of the current and former employees interviewed by POLITICO, who represented a diverse group, also had a positive impression.

“It was a pretty decent organization,” said one former employee who nonetheless witnessed staff turnover and people of color voicing concern about the workplace environment. This individual said that managers attributed staff departures to millennial “job hop,” rather than looking at deeper issues.

“There was definitely that brush off — ‘oh, that age group,’” the former employee said.

Taylor said she had never heard anyone on the management team make such a remark.

She said the organization views the effort to improve workplace culture as a “long-term commitment.” Employees said NHeLP set up committees to address various issues, from improving partnerships with organizations led by people of color to hiring, retention and office culture.

“I feel like staff was given a lot of leeway from management to come up with a staff-driven process on how to address these issues that were going on,” said one employee who had not personally witnessed bullying but did occasionally hear off-putting jokes at work. This individual was concerned that co-workers might be impatient and “lose faith.”

“It’s not a short-term process,” the person said. “Doing something on a consensus basis, staff-led process is going to be slower.”

Two individuals who work or have worked at the organization viewed some of the remedies as inadequate. “We have all of these committees and I honestly just don’t know why,” said one.

NHeLP’s director of health policy Leonardo Cuello said the organization is making changes deliberately and doesn’t view improving diversity and equity as “a check the box thing.”

“You have to do things in the right order and you have to do it with professional support, and you have to do it thoughtfully and kind of in accordance with the model practices. And that takes time,” he said.

“We’ve been working on it for two years and there’s a reason for that.”

This article was originally published by Politico on August 16, 2019. Reprinted with permission. 

About the Author: Rachana Pradhan is a health care reporter for POLITICO Pro. Before coming to POLITICO, she spent more than three years at Inside Health Policy focusing on implementation of the Affordable Care Act. Prior to that, Pradhan worked at The Daily Progress in Charlottesville, Va., and spent most of her time covering city government (with the occasional foray into stories on urban chicken-keeping and the closure of neighborhood pools).

Pradhan is a rare local of the Washington, D.C., area and graduated from James Madison University. She was also news editor of JMU’s student newspaper, The Breeze.

Permalink


Construction workers prepare to battle former ally Trump

August 16th, 2019 | Ian Kullgren

Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)

A powerful union group uneasy about a Labor Department apprenticeship proposal has “the potential to be a significant force in the 2020 election.”

One of the nation’s largest labor groups embraced Donald Trump at the start of his presidency, in hopes he would create construction jobs and retreat from proposals that might reduce workers’ wages.

But now the two sides are on the brink of war, endangering a key bloc of Trump’s support in Midwestern swing states in 2020.

At issue is a deal gone bad between Trump and North America’s Building Trades Unions over a Labor Department apprenticeship initiative, the politics of which have grown more complicated since last month’s ouster of Secretary Alexander Acosta. Leaders of the union federation worry that the final version will undermine their own job-training programs and create a supply of cheap labor for developers, undercutting high-skilled construction workers who rely on prevailing-wage jobs to make ends meet.

“It’s an existential threat to the Building Trades,” said a former administration official with knowledge of the discussions. And it has the powerful group — a union federation that represents millions of construction workers across the U.S. — seeing early signs of a member-driven revolt against Trump in 2020.

Such a turn could further weaken Trump’s already-declining support in the Midwestern states that won him the presidency in 2016, when many Building Trades members embraced his pledge to create working-class jobs and improve the nation’s infrastructure.

“The Building Trades have the potential to be a significant force in the 2020 election,” said Steve Rosenthal, a strategist and former political director for the AFL-CIO, “particularly in some of the key swing states like Michigan, Wisconsin, Pennsylvania and Iowa.

“The Building Trades know how to mobilize their members and move votes,” he added. “And their opposition to Trump can have a ripple effect beyond their members and their families to other voters in the communities where their members live and work.”

Trump sought to shore up support with the Building Trades this week at an appearance in Pennsylvania. Aninstruction sheet given to workers attending the event said the president hoped to “promote good will from the labor unions,” and he wasted no time doing so.

“I love the unions and I love the workers,” Trump said. “And, you know, when I built buildings in New York … I built them exclusively with unions. People don’t understand that. I was exclusive.” (Until recently, it was virtually impossible for anyone to build anything in New York City without union labor.)

Though its leadership endorsed Hillary Clinton in the 2016 campaign, NABTU has always been viewed as more conservative than other labor groups, and since Trump’s victory it has weathered criticism from the left for that reason. Trump — who won the majority of white male union members — made a point of meeting with the leaders of several construction unions on his third day in office, after which NABTU President Sean McGarvey exalted their “common bond with the president.”

“We come from the same industry,” McGarvey told The New York Times after the meeting. “He understands the value of driving development, moving people to the middle class.”

In April 2017, McGarvey praised Trump as “the very definition of an American success story” before an audience of members in Washington.

McGarvey’s group had a keen interest at the time in securing construction jobs from the Trump administration’s proposed $2 trillion infrastructure program, which never came to fruition. McGarvey also had an interest in dissuading Trump from an early impulse to push repeal of the 1931 Davis-Bacon Act, which requires the federal government to pay prevailing wage — typically union scale — on construction projects. Trump backed off the idea after floating it early in his presidency.

But the Building Trades and the administration are increasingly at odds over the apprenticeship initiative, a proposed rule that would create industry-supervised job training programs. The Labor Department’s proposal has received more than 160,000 comments, the vast majority of them from union members vouching for the strength of the unions’ existing training programs. Most of the comments implicitly rebuke officials in the White House who have sought to make the proposal less favorable to unions.

The two sides appeared more in agreement in June 2017, when Trump issued an executive order aimed at “easing the regulatory burden” on apprenticeships. In an effort to expand job training to new industries, the administration proposed to create a class of “industry-recognized” programs with fewer restrictions than existing government-sanctioned programs.

McGarvey agreed at the time to join Trump’s committee to help create the apprenticeship system — with the understanding that NABTU’s own government-supervised apprenticeships would be untouched, according to his chief of staff, Michael Monroe.

NABTU says it had a deal with the administration to exclude construction jobs from the new proposal, to protect the Building Trades’ existing programs for training pipe fitters, iron workers and roofers, among others. But that agreement was with Acosta. Now NABTU’s leaders fear that White House acting chief of staff Mick Mulvaney and his deregulation hawks won’t honor the bargain.

Trust between the Building Trades and the White House began to unravel in May, when the White House forced out Acosta’s chief of staff, Nick Geale, after an inquiry raised questions about his treatment of subordinates. But there was perhaps a deeper source of tension: Mulvaney and some domestic policy advisers judged Acosta too cautious on deregulation and too accommodating to unions.

When he took over as acting chief of staff in January, Mulvaney had judged the situation so dire that he seized Acosta’s rulemaking authority, commanding final say on policy matters. Then came the Labor secretary’s resignation in July, days after Mulvaney urged Trump to fire him over a lenient 2008 plea deal that Acosta, then the U.S. attorney for southern Florida, had struck with wealthy sex offender Jeffrey Epstein.

Before he left, Acosta persuaded Ivanka Trump, who was involved in the apprenticeship rulemaking, to keep construction out of the new industry-led program, according to the former administration official. The Building Trades had told Acosta that letting developers pay industry-recognized apprentices less than prevailing wage would create price competition with NABTU’s program.

“It would lower standards, it would put workers at risk, it would put projects at risk, it would put communities at risk,” Monroe said. “All the features that make ours successful, to undermine that is to undermine the veracity of the system at large.”

Acosta’s decision was also driven by politics, according to the former official, who noted the Building Trades’ strong grassroots operation in the Midwest. Democrats on Capitol Hill were sounding alarms about the Labor Department’s new industry-led program, too, warning that it risked creating low-quality programs with lax oversight.

Acosta and three White House officials did not respond to requests for comment.

In the proposed rule published in June, the Labor Department said it would not “initially” accept industry-led apprenticeship applications for the construction sector, but didn’t rule out doing so later. That language stirred deep anxiety among Building Trades leaders, and prompted NABTU to direct a torrent of public comments to the Labor Department about the proposal.

NABTU leaders say they’ve observed a high volume of comments from the Midwest. An iron worker from Indiana, encapsulating the sentiment, told the Labor Department that his union apprenticeship provided a pathway to the middle class — and expressed concern that it would “disappear” under the administration’s proposal.

In April, meanwhile, McGarvey said the Building Trades might not endorse any candidate 2020. Hacked emails released by WikiLeaks showed internal dissent from some member unions, including the Teamsters and the International Brotherhood of Boilermakers, following the federation’s endorsement of Clinton — demonstrating how tenuous NABTU support was for any candidate.

Clinton performed poorly in 2016 among union households, winning only 51 percent — the narrowest margin of victory for a Democratic presidential candidate since 1984. In Ohio, Trump bested Clinton among union households by 9 percentage points. But the next Democratic nominee could poll more strongly with that group in 2020, Building Trades brass argue, if their voters feel betrayed by Trump.

“This is not necessarily what people supported or thought they would get out of this administration,” Monroe said. “The fact that they’re out there engaging on this is something I would think that people in more political circles than I am would probably take notice of.”

This article was originally published by Politico on August 16, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

Permalink


Save Veteran Construction Training Programs

August 15th, 2019 | Union Veterans Council

After coming home from the Army, Union Veteran Council Executive Director Will Attig struggled to find his place. “I came home without a job, a degree or a future,” Attig said. That changed when he found a Registered Apprenticeship Program with the North America’s Building Trades Unions (NABTU) and became a journeyman pipe fitter with the Plumbers and Pipe Fitters (UA).

This is not only Attig’s story but countless other veterans who have found the registered apprenticeship programs as a way to achieve the American dream after returning home from service. At the same time, we have seen private organizations and for-profit schools create phony programs that prey on veterans leaving them with sub-par training and no true education. Right now, the future of America’s veteran construction workers, the integrity of their industry and programs that support tens of thousands of veterans’ transitions are at risk.

“The Registered Apprenticeship model gives us the same level and quality of training we received in the military,” Attig added. “This is one of the reasons why veterans choose to attend NABTU Registered Apprenticeship Programs and are joining construction unions at a rate almost double then non-veterans.”

A new proposal by the U.S. Department of Labor could drive down training and labor standards in construction registered apprenticeship programs and set off a race to the bottom throughout this industry. We have less than a month to stop it from becoming a reality. Here is how you can add your voice to the fight. While we applaud the government’s interest in expanding apprenticeship opportunities in new industries, [Industry-Recognized Apprenticeship Programs] have no place in construction.

How Can You Help?

First, if you are a union veteran and a member of a building trades union, we need you to click the link below to submit a comment. It takes less than five minutes and could mean the difference in defending the way of life for your fellow construction workers, your family and yourself.

Building Trade Veterans: Click here to take a stand!

Second, if you are not a member of the building trades but support your fellow union veteran brothers and sisters, please follow the link below to send in a comment voicing your support and solidarity for your fellow union veterans in the trades and the programs that are helping thousands of veterans find a way to truly return home.

Veterans and Supporters: Click here to take a stand!

The proposed IRAPs differ significantly from registered apprenticeship programs. Construction registered programs help recruit, train and retain workers through progressive wage increases; apprentice-to-journey worker ratios that promote safety; quality assurance assessments by the government; uniform standards; mandatory safety training; instructor eligibility requirements; and transparency requirements. The proposed IRAP regulations abandon the important protections of the registered model and give employers the license to implement whatever low-road standards they see fit.

IRAPs in construction would jeopardize both the quality of construction and the safety and security of veterans in the construction workforce, thereby weakening every community across the country where our fellow veterans and workers reside and are needed.

As veterans and supporters of veterans, the time is now to stand together and oppose second-rate IRAP certifications that would undermine the gold-standard that the registered apprenticeship programs have attained.

This post originally appeared at the Union Veterans Council.

This article was originally published at AFL-CIO on August 14, 2019. Reprinted with permission.

About the Author: The Union Veterans Council brings working-class veterans together to speak out on the issues that impact us most, especially the need for good jobs and a strong, fully funded and staffed VA.

Permalink


Proposed anti-LGBTQ Labor Department rule would let federal contractors discriminate

August 15th, 2019 | Casey Quinlan

The Labor Department proposed a new rule Wednesday that would allow broad religious exemptions for businesses with federal contracts, which could undermine the rights of LGBTQ people and other marginalized groups. This could apply to hundreds of thousands of contractors and subcontractors.

It applies to a number of organizations, such as schools, societies, and corporations. The rule says, “A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used.”

“The problem isn’t so much that [contractors] will necessarily hold sincerely religious beliefs, but they will use this as an excuse for their homophobia and their transphobia,” said Victoria Rodriguez-Roldan, senior policy counsel for the National LGBTQ Task Force. “At the Task Force, we are concerned and many people of faith and faith-based communities that are progressive may see this as a problem.”

Several LGBTQ organizations and organizations focused on the separation of church and state attended meetings with Office of Federal Contract Compliance Programs (OFCCP) officials this summer in anticipation of the rule. The National LGBTQ Task Force, Americans United for Separation of Church and State, National Women’s Law Center, National Center for Transgender Equality, and the Human Rights Campaign held meetings with officials from May to July about the proposed rule.

Rodriguez-Roldan said that she met with the director of the OFCCP, Craig E. Been, and that he “kept insisting” that, under OFCCP regulations, gender identity and sexual orientation were still protected.

“I did say we are aware but we don’t want any exceptions to them based on religion,” she said.

An August 2018 directive mentioned several U.S. Supreme Court cases to justify its guidance to OFCCP officials, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Communication,Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. and recent executive orders.

In the Masterpiece Cakeshop case, in which shop owner Jack Phillips refused to make a wedding cake for a gay couple, the court narrowly ruled in 2018 that the Colorado Civil Rights Communication did not employ religious neutrality when it found that the bakery discriminated against the couple. It reversed the CCRC’s decision. In the case involving Trinity Lutheran Church, the court held in 2017 that when a state program denied a grant to a religious school and provided grants to non-religious groups, it violated freedom of religion. The court ruled in Burwell v. Hobby Lobby Stores, Inc. that closely held for-profit corporations are legal persons under the Religious Freedom Restoration Act.

In 2017, President Donald Trump released an executive order on Promoting Free Speech and Religious Liberty that would “guide the executive branch in formulating and implementing policies with implications for the religious liberty of persons and organizations in America.” In 2018, the president established a White House Faith and Opportunity Initiative. LGBTQ rights groups said they were concerned these orders would weaponize religious freedom rights to discriminate against LGBTQ people.

In 2014, President Barack Obama signed an executive order that amended two executive orders by addressing LGBTQ anti-discrimination protections for federal employees. Trump said he would not rescind it. However, a Justice Department brief argued against protections for queer workers.

In a statement following news of the rule, m the National Center for Transgender Equality said the regulation is “another attempt to allow contractors to circumvent a 2014 executive order prohibiting discrimination on the basis of sexual orientation or gender identity by any federal contractor. In 2017, President Trump weakened this rule by eliminating reporting standards for contractors.”

“This administration has clearly shown a propensity to use religious liberty to give a license to discriminate,” said Frank J. Bewkes, policy analyst for the LGBT Research and Communications Project at the Center for American Progress. (ThinkProgress is an editorially independent newsroom housed within the Center for American Progress Action Fund.)

In an interview before the proposed rule dropped, Bewkes said he does not see how the cases mentioned in the directive would justify this rule. Shannon Minter, legal director for the National Center for Lesbian Rights, told INTO last year that the directive was “contrary to established law” and said that, in the past, the department has made it clear religious contractors can prefer members of their religion but can’t discriminate because of their religion.

“By eliminating that important qualification, the new directive is confusing at best and at worst sends a dangerous and false message that such discrimination is now permitted,” he said.

Protections for workers or prospective workers for federal contractors and subcontractors are important for the protection of LGBTQ workers’ rights when there is only a patchwork of employment protections on the state level. Senate Republicans refuse to consider the Equality Act, which would clarify and expand LGBTQ protections on the national level in employment, housing, and other areas. According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing.

The Williams Institute at the UCLA School of Law, using Gallup data, estimates that 4.5% of American adults are LGBTQ. Among millennials, 8.2% identified as LGBTQ. Federal contractors are responsible for employing about one-fifth of the country’s workforce.

Bewkes said the rule could affect an even larger number of people.

“This is a huge number of people this is affecting who are LGBTQ workers. And once you consider religious exemptions, sometimes people use it for other things. What if you’re in an [interracial marriage] and your employer disagrees with that on religious grounds?” Bewkes said. “Is that something that is going to be a problem? We’ve seen in South Carolina with adoptions and religious exemptions that people are not necessarily turned away because of their sexual orientation and identity. They’re being turned away because their specific religion is not the religion of the agency.”

Bewkes added that this is really an expansion of exemptions that already apply to The Civil Rights Act of 1964.

“They are asking for an expansion of that … They’re asking for [an exemption] for anyone who is religiously affiliated in any way, and that opens up a whole Hobby Lobby issue and would be very concerning. The larger the exemption the more undermined any nondiscrimination protection becomes, because it’s enforceable against fewer people. It’s just simple numbers. What they’re asking for would be overly broad.”

This article was originally published at Think Progress on August 14, 2019. Reprinted with permission.

About the Author: Casey Quinlan covers policy issues related to gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, Teen Vogue, The Atlantic, and In These Times. They studied economic reporting, political reporting, and investigative journalism at the CUNY Graduate School of Journalism, where they graduated with an M.A. in business journalism.

Permalink


9 Reasons LGBTQ Workers Need Federal Protections

August 14th, 2019 | Alex Schwartz

Currently, there’s no federal law that protects LGBTQ people from discrimination at work. But this April, the Supreme Court agreed to hear three cases involving people who claim they were fired for being LGBTQ. Arguments are set to begin during the fall of this year, and decisions will likely be made next summer. The Court will decide whether Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex and national origin, also includes gender identity and sexual orientation. If the plaintiffs win their cases, it could become illegal in all states to fire someone for identifying as LGBTQ.

But LGBTQ-identifying individuals who aren’t fired for their sexual orientation or gender identity may still face other types of discrimination at work. These nine statistics show just how far we still have to go to make workplaces accepting and supportive for LGBTQ folks.

  • 46% – LGBTQ people who were closeted at work in the U.S. in 2018
  • 22% – LGBTQ people who had experienced discrimination in pay or in consideration for a promotion
  • 20% – LGBTQ people who had felt pressured by coworkers to dress more feminine or masculine
  • 53% – LGBTQ people who had heard jokes about lesbian or gay people on the job
  • 10% – LGBTQ people who had left a job because the workplace was not accepting of them
  • 32% – LGBTQ people of color who had experienced discrimination when applying for jobs as of 2017
  • 73 – Countries that protect workers from discrimination based on sexual orientation (the U.S. is not among them)
  • 26 – U.S. states that allow private employers to fire someone based on sexual orientation or gender identity
  • 3 – States that explicitly ban local governments from passing nondiscrimination provisions: Arkansas, Tennessee and North Carolina

This article was originally published at In These Times on August 13, 2019. Reprinted with permission.

About the Author: Alex Schwartz is a 2019 editorial intern for In These Times.

Permalink



Your Rights Job Survival The Issues Features Resources About This Blog