Category Archives: Discrimination

Laundering Racism Through the Court: The Scandal of States’ Rights

Source: Lynn Adelman, Dissent, Summer 2018

When three conservative law students founded the Federalist Society at Yale Law School in 1982, they probably didn’t expect that it would become one of the most influential legal organizations in the United States. They styled themselves as renegades, fighting back against a liberal legal establishment that was using the courts to trample individual freedoms. But the students had support from a few prominent jurists, including Antonin Scalia—one of their first faculty advisers—and with Ronald Reagan in office, the political tide was turning in their favor. Three-and-a-half decades later, the Federalist Society has some 40,000 members and millions of dollars in funding from conservative megadonors including the Koch brothers. No less than five of its current or former members have served on the Supreme Court (including Trump appointee Neil Gorsuch). Membership in the organization has become an important qualification for an appointment to the federal bench.

Moreover, since roughly the Society’s founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law. The last two Chief Justices of the Supreme Court, William Rehnquist and John Roberts, have been strong adherents of federalism, as have virtually all of the other conservative justices. And President Trump is currently stocking the lower federal courts with like-minded jurists at a record pace.

By federalism, these legal conservatives mean that the authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. On its face, the conservatives’ attachment to federalism may not seem particularly objectionable. After all, the founders did divide power between the federal government and the states so as to facilitate policymaking by those legislators most familiar with the issues in question. It is becoming clear, however, that the practical consequences of the conservatives’ attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating—so much so that the justices’ view that it is justified by the principle of state sovereignty is indefensible.

In this article, I explore this issue primarily in the context of two of the Roberts Court’s most important federalist decisions, Shelby County v. Holder and National Federation of Independent Business (“NFIB”) v. Sebelius. In Shelby County, the Court struck down, on states’ rights grounds, the formula provided in the Voting Rights Act (“VRA”) for determining whether states and municipalities had to get approval from Washington (preclearance) for any change in their voting rules to ensure that the change was not racially discriminatory. Similarly, in NFIB, the Court struck down the inducement in the Affordable Care Act (ACA) for states to participate in the act’s Medicaid-expansion program on the grounds that it violated states’ rights. In both Shelby County and NFIB, Chief Justice Roberts wrote the principal opinion…..

How Trump’s tax cuts favor whites over minorities

Source: Alexis Gravely, Center for Public Integrity, August 21, 2018

Data analysis shows people of color will get much smaller tax breaks over time. ….

…. Starting next year, every income group will see their average tax rates drop. But rates for the super wealthy, those earning more than $200,000 a year, will decrease between 2.1 and 3.1 percent of their income, compared to half a percent for those earning less than $30,000, according to the Joint Committee on Taxation, a nonpartisan congressional panel that analyzes the effect of proposed tax changes in bills.

For later years, the disparities only become greater.

Between 2019 and 2025, many Americans earning less than $30,000 will see their taxes increase until their effective rates are actually higher, as much as 0.7 percentage points more than if the new tax law had not passed, according to the JCT. The wealthy will continue to pay at lower rates, as much as 1.5 percentage points lower.

That’s not only a bad deal for the poor; it has a disproportionate impact on blacks and Hispanics. Nearly 40 percent of black households earn less than $30,000, followed by 30 percent of Hispanic households, according to the Center’s analysis. Only 22 percent of white households earn less than $30,000. ….

The Effects of Sexism on American Women: The Role of Norms vs. Discrimination

Source: Kerwin Kofi Charles, Jonathan Guryan, Jessica Pan, University of Chicago, Becker Friedman Institute for Economics Working Paper No. 2018-56, July 12, 2018

From the abstract:
We study how reported sexism in the population affects American women. Fixed effects and TSLS estimates show that higher prevailing sexism where she was born (background sexism) and where she currently lives (residential sexism) both lower a woman’s wages, labor force participation and ages of marriage and childbearing. We argue that background sexism affects outcomes through the influence of previously internalized norms, and that estimated associations regarding specific percentiles and male versus female sexism suggest that residential sexism affects labor market outcomes through prejudice-based discrimination by men, and non-labor market outcomes through the influence of current norms of other women.

Pay Equity: What You Don’t Do Can Hurt You

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 16, August 6, 2018
(subscription required)

$2.66 million. That’s the amount of money the University of Denver has agreed to pay to settle claims it paid full female professors in its law school less than their male counterparts.

Despite warnings that pay equity was high on the Equal Opportunity Commission (EEOC)’s priority list, the institution of higher education allegedly paid female full professors in its Sturm College of Law an average of $20,000 less per year than male full professors for substantially equal work under similar working conditions. The salary disparity wasn’t confined to just a portion of the female full professors. According to the EEOC’s lawsuit, the salaries of all seven female full professors in the school were below the average salary paid to men.

How To Fire An Employee Returning From Leave

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
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An employee has major surgery and uses six weeks of Family and Medical Leave Act (FMLA) leave during recovery. While he’s absent, another employee takes on his duties and finds a major mistake had been made in a calculation on an important project and a number of assigned tasks were incomplete or poorly done. Normally, this level of performance would result in termination, but you can’t fire someone just returning from leave, can you? Isn’t that just asking for a lawsuit?

Terminating an employee who is returning from any type of protected leave can be tricky, but it’s doable if you have the right evidence and documentation. Courts will look closely to be sure the termination isn’t a pretext for illegal discrimination, but if the business justification is clear, they are apt to side with the employer.

Navigating the Maze of State and Local Employment Laws Concerning Sick Time and Family Leave, Criminal and Salary History Checks, Pregnancy and Lactation Accommodation, and Anti-Discrimination Protection for Medical Marijuana Users

Source: Alan D. Berkowitz, J. Ian Downes, and Jane E. Patullo, Employee Relations Law Journal, Vol. 43, No. 4, Spring 2018
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This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

State and local laws have long been an integral part of the web of laws that regulate the workplace. Among other things, such laws have for many years expanded the scope and reach of anti-discrimination laws, and imposed complex requirements concerning the payment of wages and other compensation issues. In recent years, however, state and local legislators seem to have widened their gaze to expand regulation into numerous new areas, including family and sick leave laws, prohibitions on consideration of criminal histories and prior salary information, and protection of the rights of pregnant and breastfeeding employees. Additionally, the dramatic proliferation of medical marijuana laws in many states has brought with it numerous challenges and issues in the employment area. This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
(subscription required)

Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.