Category Archives: Discrimination

Four Decades of Federal Civil Rights Litigation

Source: Theodore Eisenberg, Cornell Legal Studies Research Paper No. 14-01, November 14, 2013

From the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.

Hand to God: Times Tracking Practice Might Violate Religious Beliefs

Source: Maureen Minehan, Employment Alert, Vol. 30 no. 26, December 27, 2013
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You introduce a new timekeeping system that eliminates the hassle of keeping weekly time sheets or punching a time clock. It is simple, efficient and accurate and you are sure your workforce will embrace it. You roll it out to employees and receive a big surprise … an employee refuses to use the new system because he believes it violates his religious beliefs….

…The maxim “No good deed goes unpublished” often applies when unintended consequences emerge from employment actions that seem harmless on their face. When requests for religious accommodations are made, employers can mitigate the risk of an employment suit by keeping an open mind and carefully considering whether the costs of accommodating the request outweigh the benefits of allowing an alternative. …

Original Research: Perceptions of Employment-Based Discrimination Among Newly Arrived Foreign-Educated Nurses

Source: Patricia Pittman, Catherine Davis, Franklin Shaffer, Carolina-Nicole Herrera, Cudjoe Bennett, AJN, American Journal of Nursing, Vol. 114 no. 1, January 2014
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From the abstract:
Objective: To determine whether foreign-educated nurses (FENs) perceived they were treated equitably in the U.S. workplace during the last period of high international recruitment from 2003 to 2007.

Background: With experts predicting that isolated nursing shortages could return as soon as 2015, it is important to examine the lessons learned during the last period of high international recruitment in order to anticipate and address problems that may be endemic to such periods. In this baseline study, we asked FENs who were recruited to work in the United States between 2003 and 2007 about their hourly wages; clinical and cultural orientation to the United States; wages, benefits, and shift or unit assignments; and job satisfaction. …

Results: We found that 51% of respondents reported receiving insufficient orientation and 40% reported at least one discriminatory practice with regard to wages, benefits, or shift or unit assignments. FENs educated in low-income countries and those recruited by staffing agencies were significantly more likely than other FENs to report that they receive inequitable treatment comparedwith their U.S. counterparts.

Conclusions: These findings raise both practical and ethical concerns that should interest those striving to create positive health care workplace environments and to ensure staff retention. Health care leaders should take steps to ensure that FENs are, and perceive that they are, treated equitably. …

Pay Equity: Legislative and Legal Developments

Source: Benjamin Collins, Jody Feder, Congressional Research Service, CRS Report for Congress, RL31867, November 22, 2013

The term “pay gap” refers to the difference in earnings between male and female workers. While the pay gap has narrowed since the 1960s, female workers with a strong attachment to the labor force earn about 77 to 81 cents for every dollar earned by similar male workers. Studies have analyzed the earnings and characteristics of male and female workers and found that a substantial portion of the pay gap is attributable to non-gender factors such as occupation and employment tenure. Some interpret these studies as evidence that discrimination, if present at all, is a minor factor in the pay gap and conclude that no policy changes are necessary. Conversely, advocates for further policy interventions note that some of the explanatory factors of the pay gap (such as occupation and hours worked) could be the result of discrimination and that no broadly accepted methodology is able to attribute the entirety of the pay gap to non-gender factors.

The Equal Pay Act (EPA), which amends the Fair Labor Standards Act (FLSA), prohibits covered employers from paying lower wages to female employees than male employees for “equal work” on jobs requiring “equal skill, effort, and responsibility” and performed “under similar working conditions” at the same location. The FLSA exempts some jobs (e.g., hotel service workers) from EPA coverage, and the EPA makes exceptions for wage differentials based on merit or seniority systems, systems that measure earnings by “quality or quantity” of production, or “any factor other than sex.” The “equal work” standard embodies a middle ground between demanding that two jobs either be exactly alike or that they merely be comparable. The test applied by the courts focuses on job similarity and whether, given all the circumstances, they require substantially the same skill, effort, and responsibility. The EPA may be enforced by the government, or individual complainants, in civil actions for wages unlawfully withheld and liquidated damages for willful violations. In addition, Title VII of the 1964 Civil Rights Act provides for the awarding of compensatory and punitive damages to victims of “intentional” wage discrimination, subject to caps on the employer’s monetary liability.

The issue of pay equity has attracted substantial attention in recent Congresses. A number of measures, including bills that would provide additional remedies, mandate “equal pay for equivalent jobs,” or require studies on pay inequity, have been introduced in each of the last several congressional sessions. These bills include the Paycheck Fairness Act (H.R. 377/S. 84) and the Fair Pay Act (H.R. 438/S. 168) in the 113th Congress. This report also discusses pay equity litigation, including Wal-Mart Stores v. Dukes, a case in which the Supreme Court rejected class action status for current and former female Wal-Mart employees who allege that the company has engaged in pay discrimination.

Tales from a Tax Crit

Source: Dorothy A. Brown, Pittsburgh Tax Review, Vol. 10, No. 47, 2013

From the abstract:
My race and class analysis of tax policy has shown that while taxpayers of color are disadvantaged under our tax laws, so are many middle and low-income white taxpayers. The real winners are the Mitt Romney’s and Warren Buffett’s of the world — the real losers are the rest of us. Making our tax laws fairer and simpler would benefit not only taxpayers of color, but white taxpayers too. So instead of everyone being afraid of race scholarship in the area of tax, we should all embrace it.

Newly Uncovered Documents Expose ALEC’s Anti-Gay Past

Source: Calvin Sloan, People For The American Way, December 4, 2013

Throughout the 1980s, the American Legislative Exchange Council (ALEC) — now infamous for its work on behalf of “stand your ground” laws and restrictions on voting rights — was instrumental in pushing anti-gay policies throughout the country, according to documents recently uncovered by People For the American Way and the Center For Media and Democracy.

A 1985 policy memo entitled “Homosexuals: Just Another Minority Group” sums up ALEC’s anti-gay policy positions and the false claims and outrageous stereotypes on which they were based. ALEC disseminated the memo to its public sector members, arguing that the “homosexual movement has had an impact too great and far reaching for Americans to ignore.”

Through the policy memo and its monthly newsletters, ALEC tracked local, state and federal legislation and provided its members with “research” to help them prevent advances in gay rights. However ALEC of course did not view these rights as rights; instead, ALEC asserted that the gay community was organizing “to achieve the privileges it thinks it deserves.”

The Pay Gap in Perspective

Source: John G. Kilgour, Compensation & Benefits Review, Vol. 45 no. 4, July/August 2013
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From the abstract:
This article traces and evaluates the differential between men’s and women’s pay from 1979 through 2011 and the campaign to close that gap. It corrects and puts into perspective a lot of misinformation that abounds on the subject. In the not-too-distant future, the pay gap will disappear, if it has not already done so. After that, women’s earnings on average will be higher than those of men.

“Unequal Pay for Equal Work”: Why Women Still Lag Behind After the 50th Anniversary of the U.S. Equal Pay Act

Source: Kurt Stanberry and Forrest Aven, Compensation & Benefits Review, Vol. 45 no. 4, July/August 2013
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From the abstract:
The purpose of this article is to demonstrate, through the use of empirical evidence, the continued existence of gender-based compensation inequities in the United States. This is confirmed in an analysis of data collected by the authors showing women workers are paid less than men even when holding jobs with the same titles. Similar findings have been reported in a number of other recent studies. There appears to be grounds to conclude that the difference in pay cannot be totally and satisfactorily explained by factors such as experience or education. While inequities exist, whether continued paycheck inequality proves intentional discrimination remains unclear. However, to address the problem, remedial action is recommended in the form of the passage of new statutory law and the expansion of existing common law.

EEOC’s Disabilities Guidance Updates Coincide with the APA’s Manual of Mental Disorders Update and the AMA’s Recognition of Obesity as a Disability – What Does This All Mean?

Source: Frank C. Morris, Jr. and Susan Gross Sholinsky, Employee Relations Law Journal, Vol. 39 no. 3, Winter 2013
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From the abstract:
The authors of this article discuss recent changes to the Equal Employment Opportunity Commission’s guidance on cancer, diabetes, epilepsy, and intellectual disabilities, explain the American Psychiatric Association’s update pertaining to mental disorders, and describe the American Medical Association’s recognition of obesity as a disability.