Category Archives: Discrimination

Unreported Sexual Harassment: Should You Have A Crystal Ball?

Source: Maureen Minehan, Employment Alert, Volume 35, Issue 3, February 8, 2018
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As stories of previously unreported behavior ranging from boorish to egregious emerge, individuals across the country are wondering whether the employers involved were turning a blind eye to sexual harassment in their workplaces or if they were truly unaware.

Harassment-Free Workplace Series: A Focus on Sexual Harassment

Source: Society for Human Resource Management (SHRM), January 31, 2018

Organizations must proactively create a culture that does not tolerate sexual harassment.

With increased attention on sexual harassment in the workplace, organizations have begun to reassess and revise their sexual harassment policies. Many HR professionals believe they have a clear picture of what is happening in their organization. However, much of the sexual harassment that employees experience or observe goes unreported. In addition, employees may be unaware of their organization’s sexual harassment policy, even though many organizations have policies in place.

To help organizations address the serious issue of workplace harassment, SHRM launched its year-long research initiative, the Harassment-Free Workplace Series. The first part of this series focuses on the topic of sexual harassment in the workplace. The infographics below provide insight on the perspectives of two groups surveyed as part of this series, HR professionals (SHRM members) and nonmanager employees.

Sex Discrimination Law and LGBT Equality

Source: Katie R. Eyer, Advance: The Journal of ACS Issue Briefs, Vol. 11 no. 1, Fall 2017
(scroll down)

….This Issue Brief sets out the reasons why both sexual orientation and gender identity discrimination necessarily must be considered sex discrimination under well-established anti-discrimination doctrine. It also responds to the most common arguments raised against such a conclusion. Finally, the Issue Brief concludes by briefly discussing the reasons why, despite the move towards coverage of anti-LGBT discrimination under federal sex discrimination law, explicit formal statutory prohibitions on sexual orientation and gender identity discrimination remain important….

Equal Work

Source: Stephanie Bornstein, Maryland Law Review, Vol. 77, No. 3, 2018, Forthcoming

From the abstract:
Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average 80 cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap: black and Latino men average only 71 cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay. As women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was 35 years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in women’s hours worked and time off for childbearing, and in minority workers’ education and experience levels), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?

Existing federal law prohibits sex and race discrimination in pay, but requires an employee to provide proof of an employer’s intent to discriminate or a nearly identical “comparator” of a different sex or race performing “equal work” who is paid more. Current proposals for reform focus on narrowing an employer’s defenses in a lawsuit alleging unequal pay. This approach, while likely to improve plaintiffs’ successes in court, misses the forest for the trees. Leaving the definition of “equal work” untouched in threshold requirements for legal protection fails to account for the workforce segregation and gender and racial stereotyping at the root of much of the current pay gaps.

This Article explores how the limitations of existing law allow the gender and racial pay gaps to persist and analyzes proposals for improvement. To do so, the Article contrasts current reform efforts with alternatives, including the historical movement in the 1980s for “comparable worth” legislation and its echo in recently enacted laws in three states requiring equal pay for “substantially similar” or “comparable work.” Given the difficulty of enacting legislative change at the federal level, the Article then proposes a reframing of the concept of “equal work” in existing law by drawing on examples of broader definitions used to set pay in some union, government, and private sector employment contexts. Debunking the outdated criticism that strong equal pay laws force employers to “compare apples and oranges” and framing the comparison of “equal work” more broadly are essential to overcoming the impacts of occupational segregation and stereotyping on pay, and to closing the pay gaps.

The Gig Economy Is Especially Susceptible to Sexual Harassment

Source: Nathan Heller, New Yorker, January 25, 2018

…..Slowly, and in drips, though, data are trickling in. This afternoon, HoneyBook, a platform for freelance events-industry workers—photographers, caterers, stationery designers, and so forth—released results from a sexual-harassment survey it ran, in December, among users. The sample is limited, and hardly random. (The company sent a survey invitation to thirty-eight thousand of its users; a thousand and eighty-seven participated anonymously, and ninety-seven per cent were women.) But it’s not nothing, and the data start to light a candle in a room that has been dark.

The harassment numbers in the HoneyBook report are—one wishes this were a shock—high. Fifty-four per cent of the freelancer respondents reported being sexually harassed in the course of their work. Of those, seventy-seven per cent cited “unprofessional comments” about their appearance, three-quarters were called “demeaning nicknames” on the job, and a horrifying sixty per cent reported physical intimidation. Eighty-seven per cent never brought these incidents to anyone’s attention, even though eighteen per cent say they were harassed by the same person more than four times. (More than eighty per cent, in fact, continued working on whatever the harassment-filled project had been.) Those who did lodge complaints found their claims ignored more than half of the time…..

How Organizational Policies Influence Bystander Likelihood of Reporting Moderate and Severe Sexual Harassment at Work

Source: Ryan K. Jacobson, Asia A. Eaton, Employee Responsibilities and Rights Journal, Online First, December 19, 2017
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From the abstract:
Little is known about the causal effect of sexual harassment policies on sexual harassment outcomes at work. Based on schema theories of social cognition, organizational policies related to sexual harassment should have a greater impact on responses to moderate, versus severe, forms of sexual harassment. In Study 1, 219 undergraduate students were shown a fictitious company website describing one of three company policies on sexual harassment (a zero-tolerance policy, a standard harassment policy, or no policy), and were then assigned to read about a moderate or severe instance of sexual harassment they ostensibly observed at the organization. Results indicated participants in the zero-tolerance policy condition were more likely to intend to formally report the harassment to their organization than those in the other conditions. This effect was especially strong for the moderate, or more ambiguous, sexual harassment scenario. Study 2 replicated and extended Study 1 using 101 Human Resources professionals and actual policy statements from an organization. Results again indicated that a zero-tolerance policy leads to the highest estimates of bystander reporting, especially for instances of moderate sexual harassment. Implications for practice include a caution against using minimal or compulsory harassment policies in place of salient zero-tolerance policies.

#MeTooWhatNext: Strengthening Workplace Sexual Harassment Protections and Accountability

Source: Maya Raghu & JoAnna Suriani, December 2017

From the summary:
Employees are protected from workplace sexual harassment – a form of sex discrimination defined as unwelcome attention or behavior that workers experience because of their sex – by Title VII of the Civil Rights Act of 1964, the federal law prohibiting discrimination in the workplace. Almost every state also has some form of workplace antidiscrimination law providing protections. Yet sexual harassment remains a widespread problem, affecting workers in every state, in every kind of workplace setting and industry, and at every level of employment. In Federal Fiscal Year 2016, nearly 30,000 harassment charges were filed with the U.S. Equal Employment Opportunity Commission (EEOC); nearly one-quarter of those charges alleged sexual harassment, and 83.4 percent of sexual harassment charges were brought by women. But the charge statistics do not even begin to represent the extent of sexual harassment in the workplace, given that a survey found that 70 percent of workers who experience sexual harassment say they have never reported it. Whether suffering harassment from supervisors, coworkers, or third parties, such as customers, most victims of harassment are suffering in silence.

ISSUE PAGE: #MeTooWhatNext

FACT SHEET: Sexual Harassment in the Workplace
FACT SHEET: FAQ About Sexual Harassment in the Workplace
FACT SHEET: The Fair Employment Protection Act: Why Workers Need Strong Protections from Harassment
FACT SHEET: Fair Employment Protection Act (S. 3089, H.R. 5693) Section-by-Section Summary
FACT SHEET: The Fair Employment Protection Act: Restoring Protections from Workplace Harassment

Union Women: #MeToo & #TIMESUP Movement
Source: Coalition of Labor Union Women (CLUW), 2018

Top 10 Things Unions Can Do Right Now to Address Sexual Harassment in the Workplace

Source: Ana Avendaño and Linda Seabrook, On Labor blog, November 10, 2017

…. The following are practices that unions could adopt right now to address sexual harassment in America’s workplaces:

1)      Recognize that sexual harassment is a workers’ rights issue. ….
2)      Make sure that the union’s constitution and collectively bargained agreements contain guarantees against sexual harassment and retaliation. ….
3)      Address member-on-member harassment. ….
4)      Create a union culture that connects union values and behavior and welcomes women as equal partners in the struggle for social and economic justice. ….
5)      Focus on prevention. ….
6)      Encourage men—especially male leaders—to step up, speak out, and work to change the culture. ….
7)      Create channels for members, union staff and others to report harassment quickly, before it escalates, without having to resort to formal mechanisms. ….
8)      Train stewards in trauma-informed practices on handling claims of harassment. ….
9)      Protect victims who file charges of harassment against retaliation. ….
10)   Give women a voice in the grievance process, and include them as active participants. ….

LGBT Policy Spotlight: Public Accommodations Nondiscrimination Laws

Source: Movement Advancement Project, 2018

From the abstract:
This report LGBT Policy Spotlight: Public Accommodations Nondiscrimination Laws a provides a comprehensive overview of the patchwork of federal, state, and local protections against discrimination in public spaces. As the Supreme Court prepares to issue a ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, public places have become the next battleground in the fight for full equality for LGBT people. The core issue is whether public accommodations—places of business, public transit, hotels, restaurants, taxi cabs and more—can refuse service to people just because of who they are or whom they love.

Progress toward Pay Equity in State Governments?

Source: Gregory B. Lewis, Jonathan Boyd and Rahul Pathak, Public Administration review, Early View, December 28, 2017
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From the abstract:
Are state governments fulfilling their responsibilities to be model employers of women and minorities? Using U.S. Census Bureau data on individual employees from 1980 to 2015, this article looks at how much progress state governments have made toward eliminating racial and gender pay differences. It examines whether differences in education, age/experience, citizenship, English ability, hours worked, and occupation explain the pay differences. Patterns and explanations vary substantially by group, but state governments are doing a better job than private firms of closing pay gaps on almost every measure.