Category Archives: Discrimination

Inch by Inch: Gender Equity Since the Civil Rights Act of 1964

Source: Mary E. Guy and Vanessa M. Fenley, Review of Public Personnel Administration, Vol. 34 no. 1, March 2014
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From the abstract:
The Civil Rights Act of 1964 was influential in leveling the playing field for women. More than the actual protections afforded by the act itself, it triggered subsequent laws that collectively have lessened the pay gap, provided protections from harassment, and increased opportunities for women to participate in education, sports, and workplace opportunities that were previously reserved for men. However, the pace at which these changes have occurred has extended over generations, and the goal of parity has yet to be reached. This article traces legislation that has helped women advance in the workplace and concludes by arguing for the expansion of how gender is conceptualized. Rather than the dichotomous male/female view, gender equity should embrace fairness for all, wherever they fall on the continuum from masculine to feminine.

How Johnson Fought the War on Poverty: The Economics and Politics of Funding at the Office of Economic Opportunity

Source: Martha J. Bailey, Nicolas Duquette, National Bureau of Economic Research (NBER), NBER Working Paper No. w19860, January 2014

From the abstract:
This paper presents a quantitative analysis of the geographic distribution of spending through the 1964 Economic Opportunity Act (EOA). Using newly assembled state and county-level data, the results show that the Johnson administration systematically directed funding toward poorer and more nonwhite areas. In contrast to the distribution of New Deal spending, short-term political considerations appear to have played a minor role in distributing EOA funds. Choosing to fight poverty and discrimination rather than playing politics may help explain some of the immediate backlash against the War on Poverty programs. It also suggests that the implementation of the War on Poverty may play an important role in explaining why it is remembered as a failure.

The Voting Rights Act in Winter: The Death of a Superstatute

Source: Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer, Indiana Legal Studies Research Paper No. 278, 2014

From the abstract:
The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to first understand how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this article we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. We outline three paths for the future of voting rights policy: rebuilding a new consensus over the racial discrimination model; forging a new consensus over what we call an autonomy model; or reconceiving voting rights in universal terms.

State’s Rights, Last Rites, and Voting Rights

Source: Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer, Indiana Legal Studies Research Paper No. 279, 2014

From the abstract:
There are two ways to read the Court’s decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

Millions to the Polls: Restrictive Photo ID Laws for Voting

Source: J. Mijin Cha, Liz Kennedy, Dēmos, February 2014

– Overly burdensome photo ID laws add an unnecessary layer of bureaucracy that disenfranchises millions of otherwise eligible voters.
– Photo ID requirements place tremendous fiscal burdens on states and localities.
– States should look to their constitutions to protect the freedom to vote from onerous ID laws.

Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions

Source: Caroline Mala Corbin, American Constitution Society Issue Brief, January 2014

From the abstract:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”

This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
See also:
Corporate Religious Liberty

Race and Immigration Reform, Then and Now

Source: Elizabeth Keyes, University of Baltimore School of Law Legal Studies Research Paper No. 2014-04, January 7, 2014

From the abstract:
This essay looks at how far immigration reform has come from the explicit civil rights character of the 1965 immigration law that reshaped America. The optimism surrounding that law’s dismantling of national-origins barriers to immigration proved to be overstated in the intervening decades, as the factors determining an immigrant’s “worth and qualifications” too often became proxies for race. After briefly looking at work done by critical race theorists tracing some of ways race and immigration have long intersected in immigration legal history, the article closely examines modern-day immigration reform proposals, particularly the Senate bill that remains the most complete articulation of the state of political agreement on the role of immigrants present and future. The article suggests that the criteria for worthiness dominating today’s rhetoric of reform are race-neutral in name only; the criteria for the proposed legalization program will exclude millions, and those exclusions particularly affect immigrants of color who will become the new “super-undocumented.” While always present in immigration law’s history, the laudable sounding concept of “worthiness” has become an increasingly powerful concept and sorting device within immigration law, but one that provides a sharp and problematic counterpoint to the egalitarianism envisioned by the civil rights era 1965 immigration law.

Employment Discrimination Based on Sexual Orientation and Gender Identity in Ohio

Source: Amira Hasenbush and Christy Mallory, Williams Institute, January 2014

From the press release:
Approximately 212,000 LGBT workers in Ohio are vulnerable to employment discrimination absent state or federal legal protections, according to a new report co-authored by Amira Hasenbush, Jim Kepner Law and Policy Fellow; and Christy Mallory, Senior Counsel at the UCLA School of Law’s Williams Institute. Thirteen localities in Ohio prohibit private employment discrimination against LGBT people, yet 81 percent of Ohio’s workforce is not covered by one of these local ordinances. Even within the localities providing discrimination protections, the exact coverage varies from place to place, leaving a patchwork of protections.

Despite the state’s lack of legal protections for LGBT workers, a 2013 opinion survey found that 68 percent of Ohioans supported such laws and 84 percent believed that they were already in place. ….

Key findings from the report include:

• Several recent instances of employment discrimination against LGBT people in Ohio have been documented in the media, court cases and reports to legal organizations; these include reports from a teacher, a bus driver and a county child services employee.
• Census data show that in Ohio, the median income of men in same-sex couples is 24 percent lower than men in different sex marriages. Disparities in wages are also a traditional way that discrimination has been measured.
• Approximately 81 percent of Ohio’s workforce is not covered by a local ordinance prohibiting private employment discrimination based on sexual orientation or gender identity.
• Thirteen localities in Ohio provide protection from sexual orientation and gender identity employment discrimination by local ordinance. An additional 14 localities provide protections for government workers alone.
• A statewide non-discrimination law would result in 100 additional complaints being filed with the Ohio Civil Rights Commission each year.
• It would cost the state approximately $214,500 annually; only 2.8 percent of the Ohio Civil Rights Commission’s annual budget.

It’s Complicated: Age, Gender, and Lifetime Discrimination Against Working Women -The U.S. and the U.K. as Examples

Source: Susan Bisom-Rapp, Malcolm Sargeant, Thomas Jefferson School of Law Research Paper No. 2367859, December 14, 2013

From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.

To capture this phenomenon, this paper develops a model of “Lifetime Disadvantage,” which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-Based Factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental Disadvantage Factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.

An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by “disjointed incrementalism” (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.

State of the Dream 2014: Healthcare for Whom?

Source: Brian Miller, United for a Fair Economy, January 2014

UFE’s eleventh annual MLK Day report–Healthcare for Whom?–explores the racial economic implications of one of the most important human rights issues and public policy debates of the day: healthcare. The report looks at both disparate health outcomes–driven largely by racial segregation and concentrated poverty–and the current state-by-state fights over implementing the Affordable Care Act.

The report also includes the latest data on racial disparities in education, employment, income, poverty and wealth that indicate the dream of racial equity, as so clearly articulated by Dr. King, remains unfinished.

For the first time, this MLK Day report includes an “organizers toolbox” with a series of interactive workshops organizers can use at local worker centers, union halls, church groups, and community groups to examine the causes and consequences of the racial wealth divide and move people to action.
See also:
Executive Summary