Category Archives: Discrimination

The Politics of Preemption and Local Labor Laws: From Minimum Wage to “Right to Work”

Source: Melissa Greenberg, OnLabor blog, May 25, 2016

Increasingly frustrated by their inability to affect employment law at the federal and state level, progressive advocates have turned their attention to local government. At this level, they have been able to enact ordinances to raise the minimum wage, guarantee paid sick day laws, and even protect LBGT rights in the workplace — proposals, which have all failed at the federal level. Conservative groups, most notably, the American Legislative Exchange Council (ALEC), have fought these reforms by lobbying for state bills preempting local action.

But, in another context, this dynamic has been turned on its head: ALEC has led the campaign to enact local right to work ordinances. While ALEC’s instrumentalism has been noted, progressives also have a conflicted position on preemption. In the face of a rigid preemption regime governing federal labor law, the progressives cannot explore whether the NLRA would benefit from more regional variation as it has in the minimum wage context. ….

The Simple Truth about the Gender Pay Gap

Source: American Association of University Women (AAUW), Spring 2016

From the abstract:
You’ve probably heard that men are paid more than women are paid over their lifetimes. But what does that mean? Are women paid less because they choose lower-paying jobs? Is it because more women work part time than men do? Or is it because women have more caregiving responsibilities?

AAUW’s The Simple Truth about the Gender Pay Gap succinctly addresses these issues by going beyond the widely reported 79 percent statistic. The report explains the pay gap in the United States; how it affects women of all ages, races, and education levels; and what you can do to close it.
The Gender Pay Gap by State and Congressional District
The gender pay gap exists in almost every congressional district according to the most recent statistics from the U.S. Census Bureau. Not only do some districts in the 114th Congress lag especially far behind, but some states also have large disparities between districts. How do your state and district stack up?

Barriers and Bias: The Status of Women in Leadership

Source: American Association of University Women (AAUW), 2016

From the press release:
The American Association of University Women (AAUW) today released Barriers and Bias: The Status of Women in Leadership, new research documenting why women are still woefully underrepresented in top leadership positions. The report demonstrates how that gender leadership gap limits both women and our society and details real solutions for lawmakers, industry leaders, and everyday Americans. …
Barriers and Bias offers an in-depth and expansive set of findings and recommendations for policy makers, industry leaders, and individuals:

  • For policy makers, the report outlines ways to promote equity and diversity at the local and national levels and demonstrates why closing the gender leadership gap is good for both the country and lawmakers’ constituents at home.
  • For businesses, the report details both the bottom-line and cultural implications of losing opportunities to the gender leadership gap, while offering a set of recommendations that range from blind résumé reviews and flexible schedules to evidence-based diversity training.
  • For individuals, the report shows how closing the gender leadership gap supports a healthier work-life balance and illustrates the effects of the leadership gap on women from diverse backgrounds.
  • The report is being released in coordination with AAUW’s new Implicit Association Test about women’s leadership. The test was developed in collaboration with Harvard University’s Project Implicit so that everyday Americans and leaders alike can measure their own biases about gender and leadership — biases people may not know they have.

    The bad news? AAUW’s initial findings reveal that, on average, most people have a negative bias toward women in leadership. The good news? Barriers and Bias provides real steps to confront those biases — and the barriers standing in the way of women leaders and society as a whole.
    Fact Sheet

    Discrimination, Diversity, and Development: The Legal and Economic Implications of North Carolina’s HB2

    Source: Christy Mallory & Brad Sears, Williams Institute and Out Leadership, May 2016

    This report considers the legal and economic implications of North Carolina’s HB2. After considering the size of the LGBT population in North Carolina, and the legal landscape and social climate they face, this report estimates that HB2 directly puts at risk almost $5 billion just in terms of federal funding and business investment. In addition, HB2 contributes to a challenging environment for LGBT people that potentially costs the state tens to hundreds of millions of dollars each year.
    The Fiscal Impact of North Carolina’s HB2
    Christy Mallory and Brad Sears, Williams Institute, May 2016

    From the abstract:
    North Carolina’s law restricting access to restrooms based on sex listed on an individual’s birth certificate impacts an estimated 37,800 transgender people in the state, and puts at risk $4.8 billion in federal funding to state and local government entities. The law is in conflict with the gender identity non-discrimination requirements under several federal laws including Title IX of the Education Amendments of 1972, Executive Order 13672, Workforce Innovation and Opportunity Act, the Violence Against Women Act, the Affordable Care Act, the Equal Access Rule, and Title VII of the Civil Rights Act of 1964. Federal agencies that enforce the laws are authorized to suspend or terminate funding if recipients violate the non-discrimination requirements, and the US Department of Justice has notified North Carolina that its law does violate these requirements. Loss of federal funding under the laws could impact schools, workforce development programs, law enforcement, health care programs, housing assistance, and programs for survivors of violence.

    To Serve and Collect: The Fiscal and Racial Determinants of Law Enforcement

    Source: Michael D. Makowsky, Thomas Stratmann, Alexander T. Tabarrok, George Mason University, Working Paper in Economics No. 16-17, March 8, 2016

    From the abstract:
    We examine the fiscal determinants of arrest rates for violent and non-violent crimes across the United States between 2002 and 2012. We find that drug arrest rates for African-Americans increase with local government deficits where state tax and expenditure limitations (TELs) allow the retention of revenues generated by arrests. We find similar effects of fiscal distress on both black and white drug arrests, as well as an increase in black DUI arrests, in a separate analysis of Colorado where municipalities have the option to exempt themselves from the nation’s strictest TELs via general referendum. Our findings support a revenue-driven model of law enforcement.

    Inequality, Opportunity, and the Law of the Workplace

    Source: Stetson Law Review, Volume 45, Issue 1, 2015

    On March 6, 2015, the Stetson Law Review hosted a symposium titled “Inequality, Opportunity, and the Law of the Workplace.” The symposium brought together legal academics, economists, attorneys, journalists, and students to explore the relationship between rising economic inequality in the United States and the complex web of federal, state, and local laws that constitute the field of labor and employment law. Following the live symposium, works by many of the panelists and speakers were published in the Stetson Law Review, Volume 45, Issue 1.

    Symposium Introduction and Dedication
    Jason R. Bent

    “Regilding the Gilded Age”: The Labor Question Reemerges
    Wilma B. Liebman

    ….This year, as we celebrate the eightieth anniversary of the passage of the Wagner Act—our nation’s basic law that guarantees workers the right to organize and bargain collectively with their employers-organized labor is, as a percentage of the private sector workforce, at a historic low, steady decline since the 1950s. Workers’ bargaining power is, as a consequence, sharply reduced, and income inequality is at levels not seen since the Gilded Age. I leave it to other speakers on this program to document the nature and extent of present-day wealth and income disparity. I will confine my remarks to outlining the relevance of labor law to this serious challenge, the limits of existing law, and what the future might hold for restoring the promise of labor law……

    Can Dystopia be Avoided? Increasing Economic Inequality Can Lead to Disaster
    Michael J. Zimmer

    ….So what can be done to turn back the long-term trend of ever increasing economic inequality? First, it is necessary to realize that “[t]he evolution of inequality is not a natural process.” That the level of economic inequality is a question of politics becomes clear by looking at the United States experience in the period starting with World War II and ending in the early 1980s. While economic inequality was being reduced until the late 1970s, the Reagan Revolution that radically reduced taxes at the high end of the income pyramid also resulted in the reversal of the trend toward less inequality and replaced it with the ever increasing inequality seen since then. No matter how impossible it seems at the moment, new politics could reverse the present trends. That the problem is political does not, of course, make it simple to solve.

    Added to the political challenges within any particular country that is active in the globalized economy is the fact that the problem of economic inequality is essentially a worldwide problem, requiring at least a coordinated, if not uniform, response by the major countries….. Finally and perhaps most significantly, the best way to turn around the ever increasing economic inequality would be to turn around the virtually worldwide decline in the union movement or to create a new transnational social movement aimed at using the collective strength of workers to protect and enhance their employment opportunities…..

    Florida Workers’ Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo
    Viktoryia Johnson

    In 1935, Florida passed workers’ compensation legislation that made the quid pro quo justification its central theme. At first, the scheme worked efficiently and furnished injured workers with the benefits it had been designed to deliver. As time passed, however, the workers’ compensation legislation failed to keep up with legal developments and eventually lost its backbone. This Article is designed to expose deficiencies in the Florida workers’ compensation scheme—as they relate to the Florida Workers’ Compensation Act’s “Exclusiveness of Liability” provision—and propose solutions to address them.

    Part I of this Article will describe workers’ compensation’s path to recognition in the United States, while Part II will review its adoption in Florida. Part III will overview the 1970 legislative changes that permanently altered the character of the Florida Workers’ Compensation Act (FWCA or the Act) by barring injured workers from recovery in tort and making the Act an exclusive remedy. Part IV will explain how these legislative amendments fail to support the archaic rationale behind the workers’ compensation scheme in light of the recent Florida tort law developments. Part V will review the constitutionality of the FWCA—with a concentration on the right of court access—under the Kluger paradigm. And finally, Part VI of this Article will propose solutions to mend the exposed statutory deficiencies….

    How to Raise Wages: Policies that Work and Policies that Don’t
    Lawrence Mishel and Ross Eisenbrey

    …As this Article explains, wage stagnation is not inevitable. It is the direct result of public policy choices on behalf of those with the most power and wealth that have suppressed wage growth for the vast majority in recent decades. Thus, because wage stagnation was caused by policy, it can be alleviated by policy. In particular, policymakers must address two distinct sets of policies….. One set of policies that has stifled wage growth includes aggregate factors, which have led to excessive unemployment over uch of the last mfour decades, as well as others that have driven the financialization of the economy and excessive executive pay growth. …. Another set of policies concerns the business practices, eroded labor standards, and weakened labor market institutions that have reduced workers’ individual and collective power to bargain for higher wages. ….

    Indirect Threats to the Wages of Low-Income Workers: Garnishment and Payday Loans
    Steven L. Willborn

    ……First, let me set the framework. When one talks about “inequality,” one can focus on some workers being paid too little, or others being paid too much. Working on either dimension could reduce inequality. I will focus on the workers-being-paid-too-little side of that equation. When we think of workers being paid “too little,” the discussion normally begins, and sometimes ends, with discussions of how to increase the income that low-income workers earn from their employers. Increases in the minimum wage would be the prime example: if we increase it, low-income workers might receive more income from their employers. When discussing topics such as garnishment and payday loans, the narrative becomes complicated in two main ways. First, we are not talking about the total amount those workers are owed—for example, the number of hours they work times the minimum wage. Rather, we are talking about the amount they actually receive at the end of the day. We are talking about a different kind of threat to the earnings of low-wage workers—not only the direct threat of simply being paid too little, but also the indirect threat of not getting all of those meager wages. To state it somewhat differently, if a worker needs $X/month to survive, she might fail to get there because the minimum wage is too low, or she might fail to get there because—even though the minimum wage is sufficient—the amounts taken out of her check through garnishment will cause her to fall below that amount. The two scenarios are equally problematic for the worker, but the second tends to be less on the radar screen than the first……

    The Employment Non-Discrimination Act After Hobby Lobby: Striving for Progress–Not Perfection
    Giovanni P. Giarratana

    Despite the pervasiveness of discrimination based on sexual orientation and gender identity, federal legislation that explicitly prohibits it does not exist. To combat sexual orientation and gender identity discrimination, the Employment Non-Discrimination Act (ENDA) has been proposed. ENDA, if enacted, would explicitly prohibit discrimination based on “actual or perceived sexual orientation or gender identity.” ….. Some legal scholars assert that ENDA, as it is currently written, includes concerning language that may have the effect of decreasing protection rather than increasing it. One of the more concerning provisions is the religious exemption section, especially in the wake of the Supreme Court’s Hobby Lobby decision in June 2014. ….. As a consequence, many major gay activist groups pulled their support for ENDA because of the religious exemption that is included, asserting that the decision in Hobby Lobby is just “a hop, skip and jump” from allowing employers to discriminate against LGBT individuals because of religious beliefs. …..

    Income Inequality and Corporate Structure
    Matthew T. Bodie

    Efforts to address income inequality generally focus on wealth redistribution through taxation and government benefits. But these efforts do not attack the core problem — the unfair distribution of wealth at the firm level. This essay, a contribution to the “Inequality, Opportunity, and the Law of the Workplace” symposium, argues that workers need power within their firms to stake their claims to larger slices of the corporate pie. Even though the current law of the workplace does provide regulatory support for workers, it fails to change internal firm governance. Policymakers who want to take on income inequality as a structural matter should turn to corporate law and provide workers with a way of playing a role in the ongoing governance of the business.

    Something to Talk About: Information Exchange Under Employment Law

    Source: Joni Hersch, Jennifer Bennett Shinall, Vanderbilt Public Law Research Paper No. 16-27, April 14, 2016

    From the abstract:
    To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre-employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work-family balance.
    Press release

    Women should own up about gaps on resume
    Source: Amy Wolf, Futurity, May 20, 2016

    Businesses opposing N.C.’s HB2 helped elect legislators behind it

    Source: Alex Kotch, Institute for Southern Studies, April 5, 2016

    Since the hurried passage of North Carolina’s HB2 last month in a special legislative session, numerous businesses have publicly spoken out against the law, which bars transgender individuals from using public bathrooms that correspond to their gender identity and blocks local governments from enacting their own nondiscrimination and minimum wage ordinances.

    Over 120 companies including Dow Chemical, Red Hat, American Airlines, Apple, PayPal, Cisco, IBM and Google have stated their opposition to the law. CEOs of many of these companies sent a letter to Gov. Pat McCrory (R) last week opposing the law.

    But many of these same businesses funded two outside political groups that helped elect five of the bill’s sponsors, 13 other legislators who voted for it, and McCrory, who immediately signed the measure into law. Outside groups are unaffiliated with campaigns and are not allowed to coordinate with candidates.

    At least 36 companies that have come out against HB2 so far have given a combined $10.8 million to those Washington, D.C.-based groups, the Republican State Leadership Committee (RSLC) and the Republican Governors Association (RGA), in recent election cycles….

    Task Segregation as a Mechanism for Within-job Inequality: Women and Men of the Transportation Security Administration

    Source: Curtis K. Chan, Michel Anteby, Administrative Science Quarterly, Vol. 61 no. 2, June 2016
    (subscription required)

    From the abstract:
    In this article, we examine a case of task segregation—when a group of workers is disproportionately allocated, relative to other groups, to spend more time on specific tasks in a given job—and argue that such segregation is a potential mechanism for generating within-job inequality in the quality of a job. When performing those tasks is undesirable, this allocation has unfavorable implications for that group’s experienced job quality. We articulate the processes by which task segregation can lead to workplace inequality in job quality through an inductive, interview-based case study of airport security-screening workers in a unit of the U.S. Transportation Security Administration (TSA) at a large urban airport. Female workers were disproportionately allocated to the pat-down task, the manual screening of travelers for prohibited items. Our findings suggest that this segregation led to overall poorer job quality outcomes for women. Task segregation overexposed female workers to processes of physical exertion, emotional labor, and relational strain, giving rise to work intensity, emotional exhaustion, and lack of coping resources. Task segregation also seemed to disproportionately expose female workers to managerial sanctions for taking recuperative time off and a narrowing of their skill set that may have contributed to worse promotion chances, pay, satisfaction, and turnover rates for women. We conclude with a theoretical model of how task segregation can act as a mechanism for generating within-job inequality in job quality.

    School District Socioeconomic Status, Race, and Academic Achievement

    Source: Sean F. Reardon, Stanford University, Center for Education Policy Analysis, Working Papers, April 2016

    From the abstract:
    How much does academic performance vary among school districts and communities in the U.S.? How much of that variation is due to the socioeconomic context of the schools and the socioeconomic background of the students? How do test scores vary by race within and between districts? This short report uses new data from the Stanford Education Data Archive to investigate these questions. It is a working draft that will be updated in the next few weeks. The intended purpose is to highlight key patterns of academic achievement across the country; in future papers I will add additional more detailed analyses.
    The Geography of Racial/Ethnic Test Score Gaps
    Source: Sean F. Reardon, Demetra Kalogrides, Ken Shores, Stanford University, Center for Education Policy Analysis, Working Papers, April 2016

    Money, Race and Success: How Your School District Compares
    Source: Motoko Rich, Amanda Cox, Matthew Bloch, New York Times, April 29, 2016

    Sixth graders in the richest school districts are four grade levels ahead of children in the poorest districts.