Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Kennedy’

Supreme Court will decide if it is legal to fire someone for being LGBTQ

Tuesday, April 23rd, 2019

When Justice Anthony Kennedy announced he would leave the Supreme Court last June, he gave a giant middle finger to millions of gay, lesbian, and bisexual Americans who saw the Court slowly begin to respect their humanity. Though Kennedy was very conservative on most issues, he was relatively moderate on gay rights questions, and often joined with the Court’s liberal bloc to vindicate these rights.

Kennedy’s replacement, Brett Kavanaugh, is a much more doctrinaire conservative who is unlikely to have much sympathy for LGBTQ plaintiffs. So the shift from Kennedy to Kavanaugh is likely to be felt hard in three cases the Supreme Court agreed to hear on Monday.

Altitude Express Inc. v. Zarda and Bostock v. Clayton County both ask whether existing federal law prohibits employment discrimination on the basis of sexual orientation. R.G. & G.R. Harris Funeral Homes v. EEOC asks the same question about anti-trans discrimination.

In all three cases, the legal arguments against saying that such discrimination is forbidden are exceedingly weak. Title VII of the Civil Rights Act of 1964 forbids employment discrimination “because of . . . sex” (the word “sex” in this context refers to gender and not to sexual intercourse), and it is difficult to argue that firing someone for being LGBTQ is not a form on gender discrimination.

As the appeals court explained in Harris Funeral Homes, the trans discrimination case, “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 whole point of such a firing is that the employee’s boss does not believe that the employee identifies with the proper gender.

Similarly, suppose that a woman is fired because she is a lesbian. A lesbian is a woman who is sexually attracted to women, but presumably the same employer would not fire men who are sexually attracted to women. Thus, this woman was fired because she has desires that male employees are allowed to have. That is gender discrimination.

Additionally, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is illegal gender discrimination. Firing an employee because you believe them to be a man who is behaving too much like a woman is sex stereotyping. Similarly, the notion that only men may have sex with women and vice-versa may be the ultimate sex stereotype.

So if the Supreme Court follows the law in ZardaBostock, and Harris Funeral Homes, they will rule in favor of the plaintiffs in a 9-0 decision. That outcome, however, is unlikely.

If a decade of increasingly ridiculous judicial opinions striking down Obamacare has taught the legal profession anything, it should be that, in politically charged cases, judges are more likely to behave like raw partisans rather than as jurists.

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Republicans control a majority on the Supreme Court. Republicans oppose LGBTQ rights. It’s not hard to guess how ZardaBostock, and Harris Funeral Homes are likely to be decided.

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

This article was originally published at ThinkProgress on April 22, 2019. Reprinted with permission.

Trump’s Justice Department Is Trying to Turn Back the Clock on Workers’ Rights 100 Years

Thursday, October 5th, 2017

On Monday, the Supreme Court heard oral arguments in a trio of cases, captioned as NLRB v. Murphy Oil, that examined whether management commits an unfair labor practice when it requires employees to sign arbitration agreements that waive their right to wage class-action lawsuits. The question of whether an employee can give up her right to act in concert with other workers may seem technical, but it implicates the very core of collective action.

During the hearing, Trump’s Department of Justice clearly sided with employers, who are calling for significant cutbacks to workers’ rights to take collective action.

The significance of this case was evident throughout the oral arguments. On one side the National Labor Relations Board (NLRB) and a University of Virginia Law Professor argued that the issue implicates the basic employment rights of tens of millions of U.S. workers. On the other side, the Principal Deputy U.S. Solicitor Jeff Wall (“Solicitor”) and an attorney for the companies argued that these are technical issues related to contract and civil procedure.

The case revolves around a key question: Do forced arbitration agreements that ban collective or class legal actions violate Section 7 of the National Labor Relations Act (NLRA)? That section permits employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The employers’ and Solicitor’s position is that Section 7 only protects workers’ rights to get to the “courthouse door.” According to the line of reasoning this side presented in the courtroom, the NLRA gives workers the right to act together at work, but the moment their workplace concerns get to a legal forum, they have no right to continue together. Once they enter the courtroom or arbitrator’s chambers, the argument went, all parties must abide by the rules of the forum, be it the NLRB, the federal courts or the arbitrator. They argued that this principle applies even if those rules require workers to proceed individually.

The problem, of course, is that there is a long history of employers using forced contracts to require employees to waive their rights as a condition of employment.

Justice Ruth Bader Ginsburg invoked this history when she asked the attorney for the employers whether forced arbitration agreements are simply “yellow dog” contracts by another name. This was a reference to contracts where employees agree not to join a union as a condition of employment. (“Yellow dog” contracts were made illegal in the 1932 Norris LaGuardia Act.)

Justice Stephen Breyer put an even finer point on the matter when he expressed his concern that the employers’ position “is overturning labor law that goes back to, for [Franklin D. Roosevelt] at least, the entire heart of the New Deal.”

Nonetheless, the arguments of the management-side attorneys appeared to gain traction with conservative Justices. This iss despite the fact that the employers’ side consistently failed to address a key problem: the rules of the forum that they said everyone has to follow are not made by some neutral third party. They are written by the employer, who then makes participation in the forum a condition of employment for the employee to sign the agreement. Research shows that almost 25 million non-union workers have been forced to sign such arbitration agreements.

Yet, some Justices bought the management-side argument. At one point, Justice Anthony Kennedy, who seemed to be the swing vote in this case, insisted that workers can still engage in collective action because they can simply go to the same attorney and ask her to represent them each individually.

Presumably, Justice Kennedy did not intend to imply that the attorney could share the details of each of the cases with each worker, because that would violate the confidentiality clause in many of these agreements. And presumably, he did not mean that the attorney could share confidential information, because then there would be no attorney-client privilege protection.

The employers’ counsel agreed with Justice Kennedy, and said that even though the confidentiality clause would prohibit the attorney from sharing information among the workers, it couldn’t “stop the same lawyer from thinking about the three cases in conjunction.” In Justice Kennedy’s words, “that is collective action.”

In reality, forced arbitration agreements that prohibit class or collective action have grown exponentially in recent years through a tactical decision by corporations to strip Americans of their rights to litigate their claims together. The NLRB responded in 2012 to the growing use of these forced arbitration agreements by finding that these agreements violate federal labor law.

The liberal Justices repeatedly demonstrated that this case is not about neutral rules of a forum, or technical issues of civil procedure, but about basic concepts of power.

Justice Ginsburg asked the Solicitor, “What about the reality? I think we have in one of these cases, in Ernst & Young, the individual claim is $1,800. To proceed alone in the arbitral forum will cost much more than any potential recovery for one. That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.”

Justice Ginsburg was making the point that if workers cannot bring class or collective actions, many who have low-dollar claims will be denied justice because it would be more expensive to bring their cases than they could possibly win.

The Solicitor’s response was telling. He claimed that the different arbitration agreements have different clauses, which deal with issues of costs and fees. In essence, he insisted, the contract takes care of those concerns. And, in the final analysis, the employers’ attorney and Solicitor explained that the contract—even if it is a forced contract—should trump any possible rights workers may have to bring their actions collectively.

In a sense, this position answered Justice Breyer’s initial question: Yes, this case does bring us back to a pre-New Deal framework, and the employers and Trump administration are comfortable with that.

This case is poised to have a far-reaching impact. When the Supreme Court struck down a California law prohibiting consumer arbitration agreements that waive consumers’ rights to file a class action, such arbitration agreements ballooned. If the Court similarly holds that workers do not have a substantive right under the NLRA to vindicate their labor and employment rights collectively, then it is likely that soon almost every non-union worker will face even more limitations to real justice.

This blog was originally published at In These Times on October 4, 2017. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

If Trump Has His Way, You’ll Certainly Miss This Agency You Probably Don’t Even Know Exists

Wednesday, June 28th, 2017

The Trump Administration has released its proposed budget for the 2018 fiscal year. Who’s set to lose big if this budget comes to fruition? Women—specifically working women and their families.

The only federal agency devoted to women’s economic security—the Department of Labor’s Women’s Bureau—is on the chopping block. The agency, which currently has a budget of only $11 million (just one percent of the DoL’s total budget), would see a 76 percent cut in its funds for the next fiscal year under the proposed budget.

Despite making up only 1 percent of the Department’s current budget and having only a 50-person staff, the Bureau serves in several crucial roles—simultaneously conducting research, crafting policy and convening relevant stakeholders (from unions to small businesses) in meaningful discussions about how to best support working women. The Women’s Bureau’s priorities have changed with the times—focusing on working conditions for women in the 1920s and 30s, and helping to pass the monumental Equal Pay Act in the early 1960s. (President Kennedy signed the Equal Pay Act in 1963, making pay discrimination on the basis of sex illegal. However, because of loopholes in the 54-year-old law, the wage gap persists.) Throughout its nearly 100-year history, however, the agency has remained a powerful advocate for working women and families. Recent efforts have included advocating for paid family leave, trying to make well-paying trades jobs available to women and supporting women veterans as they re-enter civilian life.

Eliminating or underfunding the Women’s Bureau would be a huge setback for working women across the nation. Take the issue of paid family leave, for example. In recent years, the Bureau awarded over $3 million in Paid Leave Analysis grants to cities and states interested in creating and growing their own paid leave programs while federal action stalls. With the funding provided by the Women’s Bureau, states and localities have developed comprehensive understandings of what their own paid leave programs might look like. In Vermont, where the Commission on the Status of Women received a Paid Leave Analysis grant in 2015, state lawmakers are now on track to pass a strong paid family leave policy.

So why is the Trump Administration considering cutting such a low-cost, high-impact agency? Some suspect it’s at the suggestion of the conservative Heritage Foundation’s 2017 budget proposal, which calls the Women’s Bureau “redundant” because “today, women make up half of the workforce.”

What this justification conveniently leaves out is that despite important gains in recent decades, too many women, particularly women of color, are still stuck in low-paying, undervalued jobs, being paid less than their male counterparts and taking on a disproportionate amount of unpaid labor at home. It also leaves out the fact that those previously-mentioned important gains are largely the result of targeted efforts led by government agencies like the Women’s Bureau. Eliminating the agencies responsible for immense strides in preserving civil rights is, to quote the brilliant Ruth Bader Ginsburg, “like throwing away your umbrella in a rainstorm because you are not getting wet.” Instead of punishing an agency for its accomplishments, the Trump Administration should give the Women’s Bureau the resources it needs to tackle the problems remaining for working women.

Donald Trump is happy to engage in shiny photo-ops and feel-good listening sessions about women’s empowerment, but when it comes to doing concrete work to support the one government agency tasked with supporting women’s economic empowerment, this administration is nowhere to be found. If this government actually cares about women at all—that is, cares about more than good press and tidy, Instagrammable quotes—it should step up to defend this agency and its 97-year history. The working women of America deserve better.

This blog was originally published by the Make it Work Campaign on June 21, 2017. Reprinted with permission.

About the Author: Maitreyi Anantharaman is a policy and research intern for the Make it Work Campaign, a communications intern for Workplace Fairness and an undergraduate public policy student at the University of Michigan.

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