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Posts Tagged ‘sex discrimination’

Caster Semenya gets reprieve from discriminatory regulations, but it’s not all it’s cracked up to be

Wednesday, June 5th, 2019

On Monday, news outlets around the globe ran headlines reporting that South African middle-distance runner Caster Semenya won an important court battle. The two-time Olympic champion in the 800 meters had filed an appeal last week to challenge the Court of Arbitration in Sports’ (CAS) ruling that she must artificially lower her testosterone levels in order to compete in her best events.

The Swiss Federal Supreme Court (SFT) provided Monday’s announcement on the matter, ruling that the International Association of Athletics Federations (IAAF) would have to temporarily suspend its testosterone regulations for Semenya, while her appeal awaits decision. As such, she is currently permitted to participate in competition without having to self-administer hormone treatments.

But while these headlines provide an optimistic spin on these events, they hardly paint a realistic picture.

First of all, the suspension of CAS’s ruling is very temporary — right now, it only lasts until June 25, 2019. Furthermore, this three-week grace period only applies to Semenya. Any other women with naturally-occurring levels of testosterone above five nanamoles per liter (nmol/L) are still required to undergo medical treatment to artificially suppress their testosterone levels if they want to compete in IAAF events from 400 meters to a mile.

It’s fair to say that this decision has left athletes more perplexed than ever.

“There’s widespread confusion and even panic among athletes and coaches about whether they can compete, at what level, and what this implementation means for them,” Dr. Katrina Karazis, a senior visiting fellow at Yale University’s Global Health Justice Partnership and co-author of Testosterone: An Unauthorized Biography, told ThinkProgress.

Semenya has been battling the IAAF for the right to run in the body she was born in for 10 years now, ever since she first burst onto the scene at the 2009 World Championships. In May, CAS upheld the ability of the IAAF to target athletes with disorders of sex development (DSD). People with DSD — a condition which is commonly referred to as intersex — might have hormones, genes, or reproductive organs that develop outside the gender binary.

CAS agreed with Semenya that the IAAF regulations were discriminatory. However, the majority of the people serving on that panel endorsed the decision anyway.

“The Panel found that the DSD Regulations are discriminatory, but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable, and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events,” the ruling states.

In her appeal, Semenya’s team argued that forcing Semenya and other women with DSD to artificially suppress their testosterone levels is a human rights violation. However, on Tuesday, the IAAF released a defiant open letter to a group of women’s rights organizations that have opposed the testosterone regulations. The letter provides a window into the IAAF’s mindset, painting the members of the governing body as angered at having their wisdom challenged. And the IAAF is not only is it doubling down on its decision, it is doing everything short of explicitly calling Semenya a man along the way.

“It is not fair and meaningful for biological women (with XX chromosomes that lead to ovaries that produce much lower levels of testosterone) to compete against men,” the letter reads.

“The challenge that the IAAF faces is how to accommodate individuals who identify as female (and are legally recognised as female) but who — because of a difference of sex development — have XY chromosomes that lead to testes that produce high levels of testosterone, and therefore have all the same physical advantages over women for the purposes of athletics as men have over women,” it continues.

It is worth noting that if Semenya competed against the men, her time in the 800 meters would not put her anywhere near even qualifying for the Olympics.

“I am a woman and I am a world-class athlete,” Semenya said in her appeal last week. “The IAAF will not drug me or stop me from being who I am.”

For now, the IAAF will have until June 25 to fight this temporary suspension. If it does not get the suspension overturned, or misses the deadline, Semenya will be able to continue to compete in her best events in the body she was born in until there is a ruling on her appeal — a process that could take a year or more, depending on the SFT’s actions.

But this narrow ruling will have consequences in the meantime, as all other women with DSDs will have to either take medication, undergo invasive surgery, or abandon events between 400 meters and one mile if they want to continue to compete against women in elite competitions. If the temporary suspension is overturned on June 25, Semenya has stated that she will not take medication or suppress her testosterone levels in any way; she plans to compete in events longer than one mile, such as the 2,000 meters.

Semenya is scheduled to compete in one event in the next three weeks, the Meeting de Montreuil outside of Paris, France, on June 11.

This article was originally published in ThinkProgress on June 4, 2019. Reprinted with permission. 

About the Author: Lindsay Gibbs covers sports. SportsReporter CoHost  Tennis  Mystics   

Missouri Supreme Court opens the door to LGBTQ nondiscrimination protections

Tuesday, February 26th, 2019

The Missouri Supreme Court ruled Tuesday that a gay employee’s case alleging sex discrimination in the workplace could proceed, reversing a lower court ruling and establishing a new precedent that could help protect embattled non-heterosexual workers in the future.

The court also ruled on a separate but similar case involving a transgender student who claimed his school discriminated against him by blocking him from bathrooms and other facilities, saying the student deserved a fair hearing.

At stake in the first case is the extent to which gay, lesbian, and bi people in Missouri are protected on the basis of their sex. State law does not extend employment nondiscrimination protections on the basis of “sexual orientation,” meaning it’s fully legal to fire someone based on their sexuality. But in this case, while the plaintiff acknowledged that he is gay, he claimed that he faced discrimination because of sex stereotyping, not because of his sexual orientation.

Harold Lampley, an employee in the state’s Department of Social Services Child Support Enforcement Division, filed a complaint arguing that he was harassed at work for his non-stereotypical behaviors, noting that employees with stereotypical behaviors were not similarly treated. He claimed to have experienced regular verbal abuse and forced closed-door meetings about his performance. After he complained, he also alleged that he experienced retaliation in the form of poor performance evaluations not consistent with his work.

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Lampley’s friend and coworker Rene Frost likewise claimed that she suffered discrimination merely for her affiliation with Lampley. The employer allegedly violated her privacy by publicly announcing her performance review. After she complained, she said she faced retaliation, such as having her desk moved away from Lampley’s and other coworkers with whom she collaborated. Frost claimed she was also banned from eating lunch with Lampley and allegedly faced similar verbal abuse and harassment.

The Missouri Commission on Human Rights concluded this discrimination wasn’t actionable because Lampley’s sexual orientation isn’t protected, and a lower court agreed. It relied on a similar ruling against a recycling company employee named James Pittman, who claimed he had been called a “cocksucker,” asked if he had AIDS, and harassed for having a same-sex partner. The Western District Missouri Court of Appeals ruled in 2015 that Pittman could find no relief under state law, and a circuit court concluded the same must be true for Lampley and Frost.

But in Tuesday’s ruling, the Missouri Supreme Court concluded that being gay does not preclude an employee from protection on the basis of “sex,”which includes sex stereotyping. “[A]n employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act can support an inference of unlawful sex discrimination,” the majority wrote.

“Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping,” they explained. The Commission was wrong not to give them an opportunity to demonstrate their sex-stereotyping claim, and the Court ordered it to issue Lampley and Frost right-to-sue letters.

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The second case on which the Court ruled this week similarly focused on the debate over protections on the basis of sex.

Student “R.M.A.” filed a complaint against Blue Springs School District for denying him access to the boys’ restrooms and locker rooms. The school initially countered both that “gender identity” was not protected under the state’s “sex” protections and also that it should not be considered a “public accommodation” and thus the nondiscrimination law should not apply to it at all. Without specifying which reasoning informed its opinion, a lower court dismissed R.M.A.’s complaint outright.

In a 5-2 ruling this week, the state Supreme Court reached a different conclusion. Rather than considering sex stereotyping, the majority recognized that once a transgender individual has legal changed their sex, as R.M.A. has, they are protected on the basis of that sex. In a footnote, the majority called out the dissenting justices for relying on a distinction between “legal sex” and “biological sex” that is not actually found anywhere in the law. R.M.A. is a boy, and if he’s not being allowed to use boys’ facilities, then he deserves his day in court.

This pair of rulings opens the door to far greater protection for LGBTQ people under Missouri state law — but with some limitations.

The first ruling, for example, accepts the premise that sexual orientation is not itself connected to sex stereotyping, even though expectations about the gender of a person’s romantic partners are obvious stereotypes themselves. This means that while Lampley and other gay, lesbian, and bi workers will now have an opportunity to pursue discrimination claims moving forward, it will require them to prove that they were targeted because of sex stereotypes not directly connected to their sexual orientation.

Likewise, the ruling in favor of R.M.A. seems to rely on transgender people legally changing their sex designation before they are eligible for protection. State law requires transgender people provide proof of surgery to update their birth certificates, although some judges have granted the new gender markers without that requirement. This means that there may still be inconsistent financial and medical obstacles to qualifying for legal protection.

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Neither ruling weighs the merits of the discrimination claims, so it also remains to be seen whether Lampley or R.M.A. will prevail once their complaints are given due consideration.

This article was originally published at ThinkProgress on February 26, 2019. 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.

Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

Wednesday, October 18th, 2017

During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. 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.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at zford@thinkprogress.org.

EEOC lawsuits allege sex discrimination in physical ability tests

Wednesday, August 9th, 2017

Three different cases. Three different theories of gender discrimination. But one common thread – an old school presumption that certain blue-collar jobs are a “man’s work.”

The Equal Employment Opportunities Commission (EEOC) has filed suit against three U.S. employers for sex discrimination in hiring. The lawsuits allege overt bias against female job candidates in the form of bogus physical tests, physical appearance, and a blatant “no girls allowed” hiring policy.

EEOC takes a strong stand against gender bias

Perhaps it was simply a coincidence of timing. But the EEOC is sending a message in three unconnected cases that gender discrimination will not be tolerated in 21st century America. When the EEOC was unable to resolve each of the cases through pre-litigation channels, it filed suit against a railroad (CSX Transportation), a shipping company (R&L Carriers) and a parking management service.

  • At CSX, female applicants failed physical requirement tests at a substantially higher rate than male candidates. Rather than indicating women are physically unfit for the industry, the EEOC contends that the tests favor men through arbitrary benchmarks.

Apparent rationale: They all take the same test. Not our fault if the ladies can’t cut it.

  • In the Eagle Parking case, a woman was turned down on the presumption – based on nothing more than her appearance – that she could not handle the “physicality” of the job. She was urged to apply for a desk job instead.

Apparent rationale: In the manager’s professional opinion, based on years of parking cars, a woman could not perform such a back-breaking feat.

  • In the R&L Carriers case, the EEOC alleges straight-up discrimination; no women are hired as dockworker and loaders, even when they are qualified candidates.

Apparent rationale: Some jobs are for dudes, and you’re not a dude.

Physical requirements can be an unfair barrier to women

The EEOC litigation will prompt a close look at physical ability requirements in candidate screening and hiring, particularly in traditionally male occupations. Courts have generally upheld the right of employers to use physical ability as a hiring criteria, with a few caveats: (a) physical tests must reflect the actual job duties, and (b) minimum requirements cannot be set arbitrarily high to exclude women.

For instance, only 7 percent of U.S. firefighters are female, chiefly because so few can pass the rigorous obstacle course exams. Through equal opportunity lawsuits, the physical ability standards have been scaled back in many jurisdictions to give female applicants a fighting chance to win the job and prove themselves. Detractors say the revised standards are watered down and compromise safety. Proponents say the standards were based on male demographics and were unnecessarily tough — no firefighter performs all those feats in an actual fire call.

Is the job really that rigorous?

Most blue-collar jobs do not require “American Ninja” strength and agility. Basic physical fitness is typically sufficient, and those who truly can’t do the work will soon quit or be let go. Too often, the barrier to employment is not women’s muscles but men’s outdated attitudes.

This blog was originally published at passmanandkaplan.com on August 8, 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.

Justice Department brief argues against protections for LGBTQ workers

Thursday, July 27th, 2017

On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.

The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.

“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.

The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.

The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.

Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.

“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”

In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.

“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”

Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.

“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”]

This article was originally published at ThinkProgress on July 26, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress.

Federal appeals court holds workers can’t be fired for being gay

Wednesday, April 5th, 2017

With a lopsided majority joined by a bipartisan coalition of judges, the United States Court of Appeals for the Seventh Circuit held on Tuesday that discrimination on the basis of sexual orientation violates federal civil rights law, at least in the context of the workplace.

The court telegraphed in an order last October that Hively v. Ivy Tech Community College was likely to be a victory for victims of discrimination in the workplace. The final vote in the case, however, is a bit more surprising.

Eight of the Seventh Circuit’s judges joined Tuesday’s opinion, including Republican appointees Richard Posner, Joel Flaum, Frank Easterbrook, Ilana Rovner, and Kenneth Ripple. Only three judges dissented.

The case involves Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee’s “sex.” Though Title VII contains no explicit statement that discrimination on the basis of “sexual orientation” is prohibited, two crucial Supreme Court precedents inform Chief Judge Diane Wood’s majority opinion in Hively.

The first is Price Waterhouse v. Hopkins, which established that Title VII’s ban on sex discrimination is violated when an employee faces discrimination due to gender stereotyping. Thus, in that case, a female accountant could allege illegal discrimination if she was denied a partnership because her superiors deemed her too masculine. (One partner told her to take “a course at charm school.” Another deemed her too “macho.”)

One of the the core insights of Chief Judge Wood’s decision in Hively is that, because she is a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype.” Stereotypical women enter into romantic and sexual partnerships with men. Hively defies this stereotype by engaging in such relationships with women. So presuming that she must prefer relations with men is itself a form of gender stereotyping forbidden by Hopkins.

Wood’s opinion also offers several other reasons why sexual orientation discrimination should be understood as a form of sex discrimination. Indeed, as Wood explains, this case is actually pretty straightforward. “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Wood writes. If this claim proves to be true, then it “describes paradigmatic sex discrimination.”

In reaching this conclusion, Wood acknowledges that the lawmakers who drafted the Civil Rights Act of 1964 probably did not expect it to be used this way. But the conclusion that Title VII can be read more expansively than its drafters anticipated was embraced by Justice Antonin Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services.

Oncale was a case of male-on-male sexual harassment, something that, as Scalia wrote, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But so what?

As Scalia explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

A prohibition on discrimination “because of . . . sex” was expansive enough to cover male-on-male sexual harassment in Oncale. And it is big enough to encompass discrimination on the basis of sexual orientation. So holds the Seventh Circuit in Hively.

As Wood notes in her opinion, “for many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation.” Hively is now an outlier, and the Supreme Court typically takes up cases where the federal appeals courts disagree. It is all but certain to take up this case.

That means the fate of gay and bisexual workers is likely to rest with Justice Anthony Kennedy, a conservative who often provides the fifth vote in favor of gay rights. Whether Kennedy does so in this case remains to be seen—though the lopsided vote in Hively should be an encouraging sign for supporters of LGBT rights.

This blog originally appeared in ThinkProgress.org on April 4, 2017. Reprinted with permission.

Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at  imillhiser@thinkprogress.org.

We’ve Finally Reached 2016 African American Women’s Equal Pay Day

Friday, August 26th, 2016

 

elizabeth-kristen

Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year.  It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,”which included wages of women of all races, and was marked on April 12th of this year.  The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races.  So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar.  African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.

Eliminating the racial gender wage gap would provide concrete economic benefits to African American women. To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages.  Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.

Harriet Tubman portrait

Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others.  It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs.  For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified.  The California Labor Commissioner is charged with enforcing the California Fair Pay Act.

This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act.  Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity.  An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well.  With SB 1063, she would be able to more effectively address racial wage inequality.

Certain cities already are specifically addressing wage inequality by sex, race and ethnicity.  For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City.  California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval.  And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.

Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities.  In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.

It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency.  With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.

The Legal Aid Society-Employment Law Center together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

This article was originally posted at CelaVoice.org on August 23, 2016. Reprinted with permission.

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society – Employment Law Center.

Woman Claims She Was Fired By The Same Company Twice For Being Pregnant

Wednesday, September 9th, 2015

Bryce CovertAshley Lucas alleges she was fired not once, but twice, for being pregnant from her job with Service Boss Inc., a company that provides clients with household services such as cleaning, plumbing, and landscaping.

In a lawsuit filed last month in federal court, Lucas says she began working at the company in February 2014 but says she was fired in April, then reinstated, only to be fired again in June. She was pregnant at both times, but she says she had no work restrictions and was able to perform her job. She also says that she was a reliable employee. Given all of these factors, she believes she was fired because she was pregnant.

Lucas also describes management making derogatory comments about her pregnancy. According to her lawsuit, she was told that being pregnant made her unreliable and a liability, that she shouldn’t be working while pregnant, and that she should file for disability or welfare benefits.

Lucas’s lawsuit claims the company violated Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, and the Pregnancy Discrimination Act (PDA). She’s seeking to ensure that the practice of firing pregnancy employees ends at Service Boss, as well as back pay, punitive damages, and legal fees. The company could not be immediately reached for comment.

Lucas may be somewhat unique for being fired twice for the same pregnancy, but she’s not the first employee by far to be terminated for getting pregnant. A nonprofit had to pay $75,000 for having a “no pregnancy in the workplace” policy that led to the termination of a pregnant employee. A woman says she was fired after being told to “stay home and take care of [her] pregnancy.” Another says she was fired after being told her pregnancy would make her “move too slow.” The terminations can be swift: one woman claimed she was fired two weeks after telling her employer she was pregnant, while another says it only took hours.

Employers have been warned that these actions run afoul of existing law. Last year, the Equal Employment Opportunity Commission (EEOC) updated its guidance for the first time since 1983 to remind businesses that Title VII and the PDA protect employees from being fired for being pregnant and also require them to be treated the same as any others “in their ability or inability to work” when it comes to accommodations and work adjustments so they can stay on the job. UPS also lost a high-profile case at the Supreme Court this year in a lawsuit brought by Peggy Young for failing to give her light duty during her pregnancy despite giving it to workers with disabilities or even suspended licenses.

And violating the law could come with steep financial consequences — in July, for example, AutoZone was made to pay a record-breaking $185 million in damages in a case where an employee said she was demoted and then fired for being pregnant.

Even so, pregnancy discrimination appears to be an increasing problem. Charges filed with the EEOC have increased from more than 3,900 in 1997 to more than 5,000 in 2013, and they have also outpaced the influx of women joining the labor force. The majority of charges are from women claiming they were fired for being pregnant. Meanwhile, an estimated quarter million women are denied their requests for pregnancy accommodations at work each year.

This blog originally appeared at ThinkProgress.org on September 8th, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Flight Attendants Honored for Battle Against Workplace Sex Discrimination

Tuesday, October 28th, 2014

Image: Mike HallThe Association of Flight Attendants-CWA (AFA-CWA) was honored for its “pioneering role” in fighting sex discrimination in the workplace at a ceremony this week marking the 50th anniversary of the Civil Rights Act of 1964. The Chicago event was part of a yearlong series of events by the U.S. Equal Employment Opportunity Commission (EEOC) celebrating the landmark civil rights law.

Shari Worrell, who began her flight attendant’s career as “stewardess” for United Airlines in 1968, told Burt Constable of the Arlington (Ill.) Daily Herald she had to step on the scale to prove she weighed between 105 and 118 pounds, undergo an inspection to make sure the seams in her stockings were straight and submit to a girdle check.

But armed by Title VII of the act, the AFA-CWA began challenging discriminatory policies based on gender, race, age, weight, pregnancy and marital status. Over the next decade, AFA-CWA defeated airline rules requiring mandatory resignation at ages 30-35, prohibiting employment of married and pregnant flight attendants and demanding equal pay.

Professor Mary Rose Strubbe, assistant director of the Institute for Law and the Workplace at IIT Chicago-Kent College of Law, which hosted the event said, “The flight attendants played an astonishing role in the development of Title VII.” She told Constable that the changes pushed by flight attendants:

“forced employers to look at the idea that you can’t have rules that address what woman can and can’t do in the workplace if you don’t have rules for men.”

Former AFA-CWA President Patricia Friend, who began flying in 1966 with United, spoke about her career and the union’s battle for gender equality. Said AFA-CWA President Sara Nelson:

“AFA has a long and proud history of beating back discrimination. Through persistent efforts, AFA has worked to ensure that women receive equal pay, domestic partners receive equal benefits, weight restrictions were removed, men could serve as Flight Attendants and all Flight Attendants have the right to marry and have children. Our union fought for decades and overcame discriminatory policies one by one and we are honored that this dedicated work is being recognized.”

This blog originally appeared in AFL-CIO on October 25, 2014. Reprinted with permission. http://www.aflcio.org/Blog/Other-News/Flight-Attendants-Honored-for-Battle-Against-Workplace-Sex-Discrimination

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When his collar was still blue, he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen him at one of several hundred Grateful Dead shows. He was the one with longhair and the tie-dye. Still has the shirts, lost the hair.

Tinder on Fire: How Women in Tech are Still Losing

Thursday, August 21st, 2014

  A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

 This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.
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