Category Archives: Discrimination

#MeToo – A Brief Review

Source: Amy J. Traub and Amanda Van Hoose Garofalo, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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It is clear that the #MeToo movement has spurred many actions from all sides, but we likely will not know its full impact for years to come. The authors of this article review the inception of the #MeToo movement and how things have changed since the movement began.

It has been more than a year since the allegations against Harvey Weinstein broke in The New York Times, which unleashed one of the largest social media-driven movements seen to date: #MeToo. #MeToo did not confine itself to social media; instead, the individuals driving this movement screamed from their social media platforms until real change occurred – not just small changes made to appease some current fad, but truly dramatic changes that have shifted the way employers and the law handle sexual harassment claims….

Related:

California Employers Face Raft of New #MeToo Laws
Source: Benjamin M. Ebbink, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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The author of this article provides a complete summary of all of the relevant labor and employment legislation recently signed—and vetoed—in California….

What Employers Need to Know About Delaware’s New Anti-Sexual Harassment Law
Source: Zachary R. Davis and Jennifer A. Ermilio, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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A new law expands the Delaware Discrimination in Employment Act to add a section on sexual harassment. In addition, a recent federal court case makes compliance even more important for Delaware employers (as well as those in New Jersey and Pennsylvania). This article provides a brief summary of Delaware’s new anti-harassment law and the case, along with compliance tips for employers…..

Many Changes Lie Ahead for Companies in the #MeToo Era
Source: Charrise L. Alexander, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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For a very long time, companies dealt with sexual assault and harassment allegations quietly and in backrooms. However, thanks to the turning tide, more companies are reexamining their internal policies, encouraging change in corporate culture, and addressing sexual assault, harassment, and discrimination claims more directly. The author of this article discusses the changes and recommends that a good insurance program be a part of those changes.

Closing the Gender Pay Gap: New Approaches to an Old Problem

Source: Kurt Stanberry, Compensation & Benefits Review, First Published March 14, 2019

from the abstract:
This article addresses new approaches to address a long-standing employment compensation problem—the gender pay gap. Existing approaches, including the Equal Pay Act and Title VII, are more than 50 years old, and have only been marginally successful in resolving this problem. A pay gap based on gender remains a problem today. New approaches include the potential passage of the Paycheck Fairness Act at the federal level and a variety of laws at the state level. Some states have passed pay equity laws that are more successful than the federal law due to the use of the comparable work concept. Additionally, some states have passed laws regulating the asking of salary history questions, as well as the use of non-compete and no-poaching agreements, all of which have a chilling effect on pay equity. The result of the combination of these actions is a probable reduction of the gender pay gap, although eliminating it remains a distant goal.

Stalking In The Workplace

Source: Maureen Minehan, Employment Alert, Volume 36 Issue 6, March 18, 2019
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An employee reports that a co-worker is making her uncomfortable. Despite repeatedly telling him she is not interested in any type of relationship with him, he regularly leaves presents on her desk. When you ask him about his behavior, he says they are just small things and he gives them to her only because he is sure they are something she will like. If you find yourself in a similar situation, your alarm bells should go off. Giving of unwanted presents is a characteristic often found in stalking situations….

Does Increasing Racial Minority Representation Contribute to Overall Organizational Performance? The Role of Organizational Mission and Diversity Climate

Source: Hongseok Lee, The American Review of Public Administration, Early View, March 10, 2019
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From the abstract:
One underexplored question in the representative bureaucracy literature is whether public employees advocate for their demographic groups at the expense of other groups or their organizational roles. Many studies have focused on the link between passive representation, or the extent to which the public workforce reflects the demographic characteristics of its clients, and active representation, or the extent to which policies advance the interests of those people. However, little research has been done on whether and when increased representation by a certain group enhances overall organizational performance. This study examines the relationship between racial minority representation in U.S. federal agencies and the agencies’ goal achievement while considering the moderating role of organizational mission and diversity climate. The panel data analysis shows that increased minority representation lowers agencies’ goal achievement. However, a positive relationship exists between the two in agencies that mainly work to promote social equity for disadvantaged populations and foster a positive diversity climate in the workplace. These findings suggest that racial minority employees can better contribute to organizational success in agencies where they balance advocacy and organizational roles well and they are treated fairly and respectfully.

Scaling Down Inequality: Rating Scales, Gender Bias, and the Architecture of Evaluation

Source: Lauren A. Rivera, András Tilcsik, American Sociological Review, Early View, March 12, 2019
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From the abstract:
Quantitative performance ratings are ubiquitous in modern organizations—from businesses to universities—yet there is substantial evidence of bias against women in such ratings. This study examines how gender inequalities in evaluations depend on the design of the tools used to judge merit. Exploiting a quasi-natural experiment at a large North American university, we found that the number of scale points used in faculty teaching evaluations—whether instructors were rated on a scale of 6 versus a scale of 10—significantly affected the size of the gender gap in evaluations in the most male-dominated fields. A survey experiment, which presented all participants with an identical lecture transcript but randomly varied instructor gender and the number of scale points, replicated this finding and suggested that the number of scale points affects the extent to which gender stereotypes of brilliance are expressed in quantitative ratings. These results highlight how seemingly minor technical aspects of performance ratings can have a major effect on the evaluation of men and women. Our findings thus contribute to a growing body of work on organizational practices that reduce workplace inequalities and the sociological literature on how rating systems—rather than being neutral instruments—shape the distribution of rewards in organizations.

Future Work

Source: Jeffrey M. Hirsch – University of North Carolina School of Law, February 14, 2019

From the abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

#MeToo whistleblowing is upending century-old legal precedent demanding loyalty to the boss

Source: Elizabeth C. Tippett, The Conversation, March 5, 2019

…. While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.

The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.

It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.

The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements. ….

Why wealth equality remains out of reach for black Americans

Source: Darrick Hamilton, Trevon Logan, The Conversation, February 28, 2019

Black History Month has become the time to reflect on all the progress black Americans have made, but the sobering reality is that when it comes to wealth – the paramount indicator of economic security – there has been virtually no progress in the last 50 years.

Based on data from the Federal Reserve’s Survey of Consumer Finance, the typical black family has only 10 cents for every dollar held by the typical white family.

While there is no magic bullet for racism, access to wealth, and the security to pass it down from one generation to the next, would go a long way toward changing the economic trajectory for blacks.

As researchers who study historical and contemporary racial inequality, we mostly conceive of wealth as a maker of success, but its true value is functional: the independence and economic security that it provides…..

Forced Arbitration Clauses in the #MeToo Era

Source: National Women’s Law Center, Fact Sheet, February 2019

People from all walks of life – from hotel housekeepers to famous actresses – are stepping forward to confront sexual harassment and violence. Yet too often, forced arbitration clauses buried in everyday contracts help companies cover up sexual harassment and violence. These forced arbitration clauses prevent survivors from fighting back. Forced arbitration clauses are buried in the fine print of many employment contracts and strip away our right to challenge wrongdoing in court. In private arbitration, companies often choose and pay the arbitrator. There is no judge, no jury, no public record, and no meaningful chance to appeal the arbitrator’s decision – even if the arbitrator gets the facts wrong or ignores the law.