Category Archives: Discrimination

Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement

Source: L. Camille Hebert, Ohio State University (OSU) – Michael E. Moritz College of Law, Ohio State Public Law Working Paper No. 301, August 10, 2015

From the abstract:
There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees.

The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.

The Racial Equity Impact of Secret Political Spending by Government Contractors

Source: Naila Awan & Liz Kennedy, Dēmos, 2015

From the summary:
….Many have called for measures that would pull back the curtain on corporate political spending. Greater transparency of such spending is particularly needed with respect to government contractors, who are given taxpayer dollars to do the people’s business. These contractors often turn around and engage in political spending to influence policies that preserve their profits at the public’s expense, or affect contracting decisions. Government contractors often heavily advocate for, and profit when the federal government adopts, policies that disproportionately harm people of color and other traditionally disenfranchised populations. An executive order requiring government contractors to disclose their political spending would help the public hold government contractors accountable for political spending that benefits their bottom lines while entrenching structural racism in our country…..

Racial Discrimination in Local Public Services: A Field Experiment in the US

Source: Corrado Giulietti, Michael Vlassopoulos, Mirco Tonin, IZA Discussion Paper No. 9290, August 2015

From the abstract:
Discrimination in access to public services can act as a major obstacle towards addressing racial inequality. We examine whether racial discrimination exists in access to a wide spectrum of public services in the US. We carry out an email correspondence study in which we pose simple queries to more than 19,000 local public service providers. We find that emails are less likely to receive a response if signed by a black-sounding name compared to a white-sounding name. Given a response rate of 72% for white senders, emails from putatively black senders are almost 4 percentage points less likely to receive an answer. We also find that responses to queries coming from black names are less likely to have a cordial tone. Further tests demonstrate that the differential in the likelihood of answering is due to animus towards blacks rather than inferring socioeconomic status from race.
African Americans discriminated against in access to U.S. local public services
Source: IZA Press, August 20, 2015

Names on Emails Flag Racial Bias in Public Service
Source: University of Southampton, Futurity, August 31, 2015

Emotional Inequality: Solutions for Women in the Workplace

Source: VitalSmarts, 2015
(registration required)

From the summary:
What if your colleagues discriminated against you, just for being assertive? Unfortunately, gender bias is a reality in today’s workplace. A new study from VitalSmarts reveals women’s perceived competency drops by 35 percent and their perceived worth by $15,088 when they are equally as assertive or forceful as their male colleagues.

Emotional inequality is real and it is unfair. And while it is unacceptable and needs to be addressed at a cultural, legal, organizational, and social level, individuals can take control. Those who use a brief framing statement that demonstrates deliberation and forethought reduce the social backlash and emotion-inequality effects by 27 percent.
Emotional Inequality: Skills to Minimize Social Backlash
Source: David Maxfield, Joseph Grenny & Chase McMillan, VitalSmarts, Research Report, 2015

Emotional Inequality: Solutions for women in the workplace
Source: David Maxfield, Joseph Grenny & Chase McMillan, VitalSmarts, eBook, 2015

Gender Bias Is Real: Women’s Perceived Competency Drops Significantly When Judged As Being Forceful
Source: Kathy Caprino, Forbes, August 25, 2015

A new study by New York Times bestselling authors, Joseph Grenny and David Maxfield revealed that gender bias in the workplace is real, finding that women’s perceived competency drops by 35% and their perceived worth falls by $15,088 when they are judged as being “forceful” or “assertive.” Compare this with the drops in competency and worth that men experience when being judged as forceful: their competency drops by 22% and their worth falls by $6,547. This significant difference reveals a true gender bias that prohibits women from succeeding fully in leadership and management roles where assertiveness is, of course, a crucial behavior…..

Race, Federalism, and Voting Rights

Source: Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer, Duke Law School Public Law & Legal Theory Series No. 2015-24, May 28, 2015

From the abstract:
In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated “basic principles” of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter at all to the federalism debate. In this Essay, we ask three basic questions in response to Shelby County. First, what does the Court mean by “federalism costs,” and why have these costs undermined the constitutionality of the VRA? Second, does the failure to discuss Reconstruction and the Reconstruction Amendments undermine the Court’s decision in Shelby County? And third, we ask how should we understand the utility of federalism in the context of race and voting. We suggest that if one purpose of federalism is that it enables minorities to engage in self-rule, we should ask whether federalism enables racial minorities to engage in self-rule.

Still an Equal Opportunity Employer? Public Sector Employment Inequality after the Great Recession

Source: Jennifer Laird, Department of Sociology – University of Washington, April 6, 2015

Historically, the public sector has served as an equalizing institution through the expansion of job opportunities for minority workers. This study examines whether the public sector continues to serve as an equalizing institution in the aftermath of the Great Recession. Using Current Population Survey Data, I investigate changes in public sector employment and unemployment between 2003 and 2013. My results point to a post-recession double disadvantage for black public sector workers: they are concentrated in a shrinking sector of the economy, and they are substantially more likely than other public sector workers to be without work. These two trends are a historical break for the public sector labor market. I find that deteriorating employment outcomes for black public sector workers cannot be explained by differences in education, occupation, or any of the other measurable factors that are typically associated with employment.
Blacks hit hardest by public-sector job losses during recession, study finds
Deborah Bach, University of Washington, Press Release, August 24, 2015

Does Protecting Older Workers from Discrimination Make it Harder to Get Hired? Evidence from Disability Discrimination Laws

Source: David Neumark, Joanne Song, Patrick Button, National Bureau of Economic Research (NBER), NBER Working Paper No. w21379, July 2015
(subscription required)

From the abstract:
We explore the effects of disability discrimination laws on hiring of older workers. A concern with anti-discrimination laws is that they may reduce hiring by raising the cost of terminations and – in the specific case of disability discrimination laws – raising the cost of employment because of the need to accommodate disabled workers. Moreover, disability discrimination laws can affect non-disabled older workers because they are fairly likely to develop work-related disabilities, yet are not protected by these laws. Using state variation in disability discrimination protections, we find little or no evidence that stronger disability discrimination laws lower the hiring of non-disabled older workers. We similarly find no evidence of adverse effects of disability discrimination laws on hiring of disabled older worker

Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act

Source: Michelle A. Travis, University of San Francisco – School of Law, Research Paper No. 2015-17 May 14, 2015

From the abstract:
This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA’s accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and to align the ADA with Title VII of the Civil Rights Act of 1964 by establishing nearly universal impairment-based antidiscrimination protection. While these amendments have largely dismantled the disability status barrier, employers and their attorneys are working to erect a new barrier with the ADA’s “otherwise qualified” provision, which requires plaintiffs to prove the ability to perform all of the “essential functions of the job” as part of a prima facie disability discrimination case. This Article shows how federal courts are using the concept of “essential job functions” to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs to again restrict access to accommodations and undermine the ADA as a universal civil rights law. By replacing “non-disabled” with “non-qualified” as the ADA’s new gatekeeper, this strategy effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.

Voting Rights at 50

Source: Samuel Issacharoff, New York University School of Law, Public Law Research Paper No. 15-26, July 23, 2015

From the abstract:
The fiftieth anniversary of the Voting Rights Act comes at a difficult juncture. The Supreme Court’s decision in Shelby County dismantled the core preclearance provisions of what had been the most successful civil rights law in American history. At the same time, the right to cast a ballot free of unnecessary legal encumbrances is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination today bears little resemblance to the formalized Jim Crow barriers to the black franchise. Even before Shelby County, the Voting Rights Act struggled to keep up with the new voting challenges, which have evolved from exclusively Southern obstacles defined by race to nationwide electoral modifications with at best limited evidence of direct racial motivation. The narrow geographic confines of Section 5 of the Voting Rights Act were largely supplanted by other legal protections of the right to vote, well before Shelby County.

This Article turns to other legal tools that have been invoked since 1965 to address voting claims outside the purview of Section 5. The claim is that more generalized protection of the franchise can better respond to the more fact-laden challenges presented by more contemporary voting rights claims. The Article draws on personal experiences with four voting cases that rely on tools ranging from Section 2 of the Voting Rights Act to the Constitution to the common law to address claims that fall outside the domain of Section 5. These cases illustrate the way in which a more general framework for voting rights protection can be used to tackle electoral schemes that were neither subject to Section 5’s technical scrutiny, nor were Southern, racially specific, or even institutional in nature.