Category Archives: Discrimination

Black Women Best: The Framework We Need for an Equitable Economy

Source: Kendra Bozarth, Grace Western, and Janelle Jones, Roosevelt Institute, Issue Brief, September 2020

From the summary:
This brief explains how centering Black women in US politics and policymaking in the short and long term will bolster immediate recovery efforts, build durable and equitable institutions, and strengthen collective prosperity.

Labor, Poverty, and Power

Source: Cambridge Now Blog, September 3, 2020

Countries around the world are struggling with the economic repercussions of the pandemic, and the United States in particular has recorded levels of unemployment not seen since the Great Depression. While the CARES Act, passed by Congress and signed by President Trump in March, provided $600/week in supplemental income to some workers, this benefit lapsed at the end of July and no replacement program has been enacted, leaving millions in a state of housing and food insecurity. At the same time, states have made cuts or are considering steep cuts to Medicaid and other social safety programs precisely as need surges, with millions of Americans losing health insurance along with their jobs. A disproportionate number of those who are at risk are Black Americans and people of color who worked—or still work, in some cases, but at minimum wage—in industries without organized labor, which has also been in decline over the past several decades in the United States. Indeed, the precarious position of low-wage workers and the unemployed stands in contrast to legislation designed to protect businesses and employers—for example, a $25 billion bailout to the airline industry, or the GOP Liability Shield Bill, which would give employers sweeping immunity against Covid-19 related lawsuits brought by employees.

We spoke to several Cambridge University Press authors and editors about the legal, political, and historical factors that explain these converging crises and make low-income and unemployed Americans especially vulnerable. We also asked about connections between calls to end anti-Black racism and to reinvigorate organized labor, and, more generally, how anti-labor and anti-poor measures have exacerbated the systemic effects of racism.

US racial inequality may be as deadly as COVID-19

Source: Elizabeth Wrigley-Field, Proceedings of the National Academy of Sciences (PNAS), first published August 24, 2020

From the abstract:
The COVID-19 pandemic is causing a catastrophic increase in US mortality. How does the scale of this pandemic compare to another US catastrophe: racial inequality? Using demographic models, I estimate how many excess White deaths would raise US White mortality to the best-ever (lowest) US Black level under alternative, plausible assumptions about the age patterning of excess mortality in 2020. I find that 400,000 excess White deaths would be needed to equal the best mortality ever recorded among Blacks. For White mortality in 2020 to reach levels that Blacks experience outside of pandemics, current COVID-19 mortality levels would need to increase by a factor of nearly 6. Moreover, White life expectancy in 2020 will remain higher than Black life expectancy has ever been unless nearly 700,000 excess White deaths occur. Even amid COVID-19, US White mortality is likely to be less than what US Blacks have experienced every year. I argue that, if Black disadvantage operates every year on the scale of Whites’ experience of COVID-19, then so too should the tools we deploy to fight it. Our imagination should not be limited by how accustomed the United States is to profound racial inequality.

A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation

Source: Mark Gough, ILR Review, OnlineFirst, Published April 24, 2020
(subscription required)

From the abstract:
This article presents data from a novel survey of 1,256 employment plaintiff attorneys to test whether employee rights and remedies are affected by mandatory employment arbitration. By surveying attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, the author presents a systematic empirical comparison of outcomes between civil courts and arbitration with robust controls. The ability to control for the legal basis of the claim, defendant size, use of summary judgment, and attorney and plaintiff characteristics significantly improves on previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower than those found in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to employees who prevail in their cases are significantly lower in arbitration compared to outcomes in state and federal jury trials.

The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace

Source: Richard A. Bales, Katherine V.W. Stone, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
(subscription required)

From the abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. With these tools, employers can record their workers ’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (AI) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by AI will accompany workers from job to job as they move around the boundaryless workplace. Thus AI and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways AI is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on five areas of law in which AI threatens to undermine worker protections: antidiscrimination law, privacy law, antitrust law, labor law, and employee representation. Finally, this article maps out an agenda for future law reform and research.

“When Do You Plan on Having a Baby?” and Other Questions Not to Ask

Source: Melissa Torres, Employee Benefit Plan Review, Vol. 74, No. 5, July-August 2020
(subscription required)

From the abstract:
Employers interviewing women of child-bearing age may be tempted to ask about plans for having a baby, but doing so poses risks. While an employer might be concerned about staffing coverage, the Pregnancy Discrimination Act prohibits employers with 15 or more employees from discriminating against a woman based on her potential or capacity to become pregnant. Taking adverse action against a pregnant employee because of her pregnancy is equally unlawful.

Nonetheless, an article in The New York Times not too long ago bore the striking headline: “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies.” The article indicated that, notwithstanding the law, many pregnant women were either passed over for promotions or fired when they complained.

Yet another Times headline focused on the failure of employers to provide light duty to pregnant women: “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination.”

“Defund the (School) Police”?: Bringing Data to Key School-to-Prison Pipeline Claims

Source: Michael Heise, Jason P. Nance, Cornell Legal Studies Research Paper 20-23, August 23, 2020

From the abstract:
Calls across the nation to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, motivated derivative calls for public school districts to consider “defunding” (or, at the very least, revisit or modify) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether it involves referrals to law enforcement agencies matter, particularly as it may fuel a growing “school-to-prison pipeline.” The “school-to-prison pipeline” research literature features two general claims that frame key debates about changes in how public schools approach student discipline and the growing calls to defund school resource officer programs. One is that public schools’ increasingly “legalized” approach toward student discipline increases the probability that students will be thrust into the criminal justice system. A second, distributional claim is that these adverse consequences disproportionately involve students of color, boys, students from low-income households, and other vulnerable student sub-groups. Both claims include important legal and policy dimensions as students’ adverse interactions with law enforcement agencies typically impose negative consequences on students and their futures. We subject both claims to the nation’s leading data set on public school crime and safety, supplemented by data on state-level mandatory reporting requirements and district-level per pupil spending, and explore three distinct analytic approaches in an effort to better isolate the possible independent influence of a school’s SRO/police presence on that school’s student discipline reporting behavior. Results from our analyses, largely robust to various analytical approaches, provide mixed support for the two claims. Specifically, and largely consistent with prior research, we find that a SRO/police presence at a school corresponds with an increased probability that the school will report student incidents to law enforcement agencies. However, we do not find support in the school-level data for the distributional claim.

The Relationship between Prejudice and Wage Penalties for Gay Men in the United States

Source: Ian Burn, ILR Review, Volume 73 Issue 3, May 2020
(subscription required)

From the abstract:
This article estimates the empirical relationship between prejudicial attitudes toward homosexuality and the wages of gay men in the United States. It combines data on prejudicial attitudes toward homosexuality from the General Social Survey with data on wages from the U.S. Decennial Censuses and American Community Surveys—both aggregated to the state level. The author finds that a one standard deviation increase in the share of individuals in a state who are prejudiced toward homosexuals is correlated with a decrease in the wages of gay men of between 2.7% and 4.0%. The results also suggest that the prejudice of managers is responsible for this correlation. The author finds that a one standard deviation increase in the share of the managers in a state who are prejudiced toward homosexuals is associated with a 1.9% decrease in the wages of gay men. The author finds no evidence that the wage penalty for gay men is correlated with the prejudice of customers or co-workers.

Racial Economic Inequality Amid the COVID-19 Crisis

Source: Bradley L. Hardy, Trevon D. Logan, Hamilton Project, Brookings Institution, Essay 2020-17 August 2020

From the introduction:
COVID-19 confronts Americans with two crises: a public health crisis and an economic crisis. The two operate together, since the public health crisis has dramatically reduced economic activity and overall spending. Moreover, this crisis has broader distributional consequences than any economic event in recent memory, altering most aspects of how we live, work, and conduct business—and in truth, who will survive.

Across the economy and society, the distributional consequences of COVID-19 are uneven: the pandemic and its broader economic and health consequences are disproportionately impacting Black Americans.

The outsized challenges that Black Americans are facing are a reflection of the generally diminished economic position and health status that they faced prior to this crisis. Several pre–COVID-19 economic conditions—including lower levels of income and wealth, higher unemployment, and greater levels of food and housing insecurity—leave Black families with fewer buffers to absorb economic shocks and contribute to Black households’ vulnerability to the COVID-19 economic crisis.

The interaction of those pre–COVID-19 economic and health disparities—including a higher rate of preexisting health conditions such as hypertension and lung disease—has contributed to higher COVID-19 mortality rates for Black Americans (e.g. Benitez, Courtemanche, and Yelowitz 2020; Weimers et al. 2020). According to the APM Research Lab, Black Americans continue to experience the highest overall actual COVID-19 mortality rates (80.4 per 100,000)—more than twice the rate of white Americans (35.9 per 100,000) or Asian Americans (33.1 per 100,000), who have the lowest COVID-19 mortality rates. In 2020 more Black Americans will die of COVID-19 than will succumb to diabetes, strokes, accidents, or pneumonia. In fact, COVID-19 is currently the third leading cause of death for Black Americans (APM Research Lab 2020).

The COVID-19 public health and economic crises leave vulnerable populations exposed

Source: Jevay Grooms, Alberto Ortega, and Joaquin Alfredo-Angel Rubalcaba, Brookings Institution, August 13, 2020

The coronavirus (COVID-19) pandemic has created a new reality worldwide. In the United States it has exposed the fragility of some of the most marginalized groups, particularly the millions of Americans we rely on for some of our most basic necessities. The pandemic has arguably buttressed the racial and ethnic inequities that persist in our society. Black and Hispanic households face additional social and economic disparities which are deeply rooted in structural discrimination and systemic racism—both of which have tremendous implications for health and well-being.

We use a novel panel data set collected between March and July of 2020 to describe disparities in outcomes related to the COVID-19 pandemic across race/ethnicity and employment status. Essential workers are a new class of employee defined as those who work in industries that are considered essential for a society’s survival, including (among others) health care, food service, and public transportation. We find that unemployed and essential workers are the most vulnerable given their lower income, lack of health insurance, and differences across household structure. When evaluated across race/ethnicity, the results suggest that some of these disparities are intensified among Black and Hispanic Americans.

This timely evidence suggests a need for a more robust safety net, such as an expanded unemployment benefits program and more-accessible public health insurance during the COVID-19 pandemic, as well as more-deliberate targeting of federal support to Black and Hispanic households.