Category Archives: Discrimination

Women in the Workplace 2019: Five years in, the path to equality is clear

Source: McKinsey & Company and LeanIn.Org, 2019

From the summary:
• Women are less likely to be hired and promoted to manager: For every 100 men promoted and hired to manager, only 72 women are promoted and hired.
• Men hold 62% of manager-level positions, while women hold just 38%. The number of women decreases at every subsequent level.
• One third of companies set gender representation targets for first-level manager roles, compared to 41% for senior levels of management.
• We can add 1 million more women to management in corporate America over the next five years if women are hired and promoted to manager at the same rates as men.
• Together, opportunity and fairness are the strongest predictors of employee satisfaction. Across demographic groups, employees universally value opportunity and fairness.
• Only 6 of the 323 companies have a full range of best practices in place to support inclusive and unbiased hiring and promotions.
• 1 in 4 women think their gender has played a role in missing out on a raise, promotion or chance to get ahead.
• Everyone benefits from opportunity and fairness. Diversity efforts are about ensuring employees of all genders, races, and backgrounds have access to the same opportunities.
• Black women and women with disabilities face more barriers to advancement and get less support than other groups of women.
• Women with disabilities face far more everyday discrimination like having their judgment questioned, being interrupted, or having their ideas co-opted.
• Lesbian women, bisexual women, and women with disabilities are far more likely than other women to hear demeaning remarks about themselves or others like them.
• Commitment to racial diversity is similar to commitment to gender diversity: 77% of companies, 59% of managers, and 56% of employees say it is a high priority. Challenging bias in the workplace

How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong

Source: Jessica A. Clarke, Vanderbilt Law Research Paper No. 19-32, Last revised: October 6, 2019

From the abstract:
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title VII forbids an employer from insisting that men or women conform to sex stereotypes. This account has important implications for the pending cases, as well as for social movements that seek to disable prejudice.

Building America – The making of the black working class

Source: William P. Jones, The Nation, October 7, 2019

Books in Review
Workers on Arrival: Black Labor in the Making of America
By Joe William Trotter Jr.

Four hundred years ago, “about the latter end of August,” an English pirate ship called the White Lion landed at Point Comfort in the Virginia Colony carrying “not anything but 20 and odd Negroes,” wrote colonist John Rolfe. Though this is often viewed as the starting point of slavery in what would become the United States, the anniversary is somewhat misleading. Africans, both enslaved and free, had lived in St. Augustine, in Spanish Florida, since the 1560s, and since slavery was not legally sanctioned in Virginia until the 1640s, early arrivals would have occupied a status closer to indentured servants. But those ambiguities only point to how essential people of African descent were to the establishment and development of the imperial outposts that became the United States. It was their work, as much anyone else’s, that helped build the world we live in today.

In his new book, Workers on Arrival, the historian Joe William Trotter Jr. shows that the history of black labor in the United States is thus essential not only to understanding American racism but also to “any discussion of the nation’s productivity, politics, and the future of work in today’s global economy.” At a time when mainstream political rhetoric and analysis related to economic change still tend to center on white men displaced by job loss in manufacturing and mining, similar challenges faced by black workers are often examined through a distinct lens of racial inequality. As a result, Trotter contends, white workers are viewed as the victims of “cultural elites and coddled minorities,” while African American workers suffering from the very same economic and political conditions are treated as “consumers rather than producers, as takers rather than givers, and as liabilities rather than assets.” Reminding us that Africans were brought to the Americas “specifically for their labor” and that their descendants remain “the most exploited and unequal component of the emerging modern capitalist labor force,” Workers on Arrival provides an eloquent and essential correction to contemporary discussions of the American working class…..

Race, Gender, and Equal Protection Jurisprudence

Source: Dan Ziebarth, George Washington University, Date Written: July 21, 2019

From the abstract:
This essay forwards the discussion of equal protection jurisprudence concerning considerations of fairness and equality in relation to race and gender through a four-section comparative assessment. Section I will describe the historical and jurisprudential background of issues and debates in racial discrimination. Section II will describe the historical and jurisprudential background of issues and debates in gender discrimination. Section III will analyze the distinct convergence and divergences that have appeared in constitutional interpretation of equal protection jurisprudence. Section IV will assess the underlying theoretical disparities between two major schools of thought in equal protection jurisprudence, referred to as colorblind constitutionalism and antisubordination constitutionalism. Finally, the conclusion will provide remarks on equal protection jurisprudence, discuss how this has affected the state of contemporary social affairs, and argue for the adoption of equal protection jurisprudence that focuses on just procedure, which targets the consistency in unbiased processes of judicial application, as opposed to the final decision, as principal in the determination of fair and equal treatment in the administration of justice.

Democracy Diverted: Polling Place Closures and the Right to Vote

Source: Leadership Conference Education Fund, 2019

From the summary:
The surge in voting changes at the state and local level after the U.S. Supreme Court’s Shelby County v. Holder decision catalyzed a systemic examination of poll closures and other seemingly innocuous changes that could have negatively impacted voters of color. In 2016, The Leadership Conference Education Fund identified 868 polling place closures in formerly Section 5 jurisdictions in our initial report, The Great Poll Closure. This report, Democracy Diverted: Polling Place Closures and the Right to Vote, is both an update to — and a major expansion of — our original publication.

Our first report drew on a sample of fewer than half of the approximately 860 counties or county-equivalents that were once covered by Section 5. This report covers an expanded data set of 757 counties. What’s more, the 2016 report relied on voluntary reports of aggregate numbers of polling places that state election officials gave to the U.S. Election Assistance Commission. This report relies largely on independent counts of polling places from public records requests and publicly available polling place lists.

In this report, we found 1,688 polling place closures between 2012 and 2018, almost double the 868 closures found in our 2016 report. Additionally, Democracy Diverted analyzes the reduction of polling places in the formerly covered Section 5 jurisdictions in the years between the 2014 and 2018 midterm elections. We found 1,173 fewer polling places in 2018 — despite a significant increase in voter turnout. To understand the discriminatory impact of these closures, we analyzed how voters of color were impacted at the precinct level. This analysis — precisely the kind that the U.S. Department of Justice conducted under preclearance — takes time and resources. Our hope is that journalists, advocates, and voters will use this county-level polling place data to scrutinize the impact of poll closures in their communities, to understand their impact on voters of color, and to create a fairer and more just electoral system for all.

Will Nondisclosure Agreements Become A Relic Of The Past?

Source: Maureen Minehan, Employment Alert, Volume 36, Issue 18, September 4, 2019
(subscription required)

An employee alleges her manager sexually harassed her for months. She quits and files a lawsuit alleging sex discrimination. After a series of negotiations, she agrees to settle the charges for $100,000 and a positive reference. In exchange, your company wants her to sign a nondisclosure and non-disparagement agreement to protect you from bad publicity. You know some states have outlawed this practice in the wake of the #MeToo movement. Is it still legal?

L&E Evolution Part III: Managing Employees in a Digital Age

Source: Lorene D. Park, Labor Law Journal, Vol. 70 no. 2, Summer 2019
(subscription required)

The expectation that business will be done electronically, the trend toward paperless records, and ongoing advances in technology have birthed so many legal issues that, for employers, compliance may seem impossible.

For example, much was made of the promise of using artificial intelligence to screen job applicants, but it emerged that AI can both learn and perpetuate human biases that may violate Title VII. And using online employment agreements also may result in litigation over whether an employee “clicked” on a screen to agree.

What follows is an overview of key issues that have emerged for employers, organized around the lifespan of an employment relationship. We’ll start with the hiring process, covering accessibility, screening methods, electronic agreements, and more. Then we’ll cover computer use policies, trade secrets, wiretapping and electronic privacy statutes, data breach notification, social media, NLRA protections, and other issues that arise during the employment relationship. We’ll wrap with a discussion on privacy, including surveillance of employees, as well as issues surrounding termination of employment.

A Review of MCAD Public Hearings: Suggestions for Practice

Source: Michael Carlozzi, Employee Responsibilities and Rights Journal, OnlineFirst, June 29 2019
(subscription required)

From the abstract:
Public hearing decisions from the Massachusetts Commission Against Discrimination (MCAD) offer public administrators, private employers, and researchers actionable information. This article analyzes the outcomes of these decisions over a 16-year period (2002–2018). Key findings are that private-sector employers were significantly more likely to lose at hearings than public-sector employers and that this gap appeared to result largely from differences in organizational size and gender-based claims. Smaller companies, in particular, lost at hearings significantly more than larger organizations in both sectors. Additional findings are that employers who participated in an interactive process were significantly more likely to prevail in reasonable accommodation disability cases and that appeals were rarely overturned by the MCAD’s Full Commission. Implications for administrators and human resource managers are discussed.

INSIGHT: ‘You Look Mahvelous!’ Avoiding Appearance-Based Discrimination at Work

Source: Linda B. Dwoskin, Melissa Bergman Squire, Bloomberg Law, June 28, 2019

Employers that allow gender-based stereotypes to affect employment decisions or, in some jurisdictions, impose gender-based grooming codes risk violating anti-discrimination laws. Dechert attorneys discuss appearance-based discrimination framed as race or sex discrimination and provides practical advice for employers to avoid liability.