Category Archives: Discrimination

We’ve Heard this Before: The Legacy of Interracial Marriage Bans and the Implications for Today’s Marriage Equality Debates

Source: Gregory N. Johnson, Vermont Law School Research Paper No. 09-18, 2009

From the abstract:
This article examines the many cases upholding bans on interracial marriage prior to 1948, the year the California Supreme Court became the first high court to strike down such a ban. The arguments courts made in defense of the ban on interracial marriage are strikingly similar to arguments made today against same-sex marriage. These include arguments based on religion and natural law, procreation, concern for the children, deference to the legislature, and the slippery-slope argument. The thesis of this article is that, given the commonality in arguments, the earlier struggle for marriage equality by interracial couples is relevant to today’s debate on same-sex marriage. The ultimate rejection of the arguments against interracial marriage speaks to the long-term viability of the same arguments in the same-sex marriage debate.

Through the Price Waterhouse-Looking Glass: Dominance and Oppression Revealed

Source: Cameron Cloar, University of San Francisco Law Review, Winter 2009

Viewing through the Price Waterhouse-Looking Glass, Part II documents another Catch 22, drawn from unfair stereotypes, which establishes a similar social system of superiority and subordination of gay men and lesbians. … Defining the Price Waterhouse-Looking Glass: The Story of Ann Hopkins After nearly four decades since society recognized the harmful effects of sex-based discrimination, the overriding gender issue in professional workplaces is persistent stereotypes. … Research indicates that forty-one percent of gay and lesbian parents raising children have been together five years or longer as compared to twenty percent of unmarried heterosexual couples. … Therefore, laws that prohibit adoption by homosexuals place gays and lesbians into an intolerable double bind – criticized for their inability to maintain family relationships but legally unable to enter such settings. … By 1982, epidemiologists suspected that blood and sexual fluids transmitted whatever caused AIDS. … Such oppression may prove particularly severe on gay men and lesbians because their exclusion from the institutions of marriage, adoption, and blood donation is state sponsored.

The Moral Responsibility of Business to Protect Homosexuals from Discrimination ion the Workplace

Source: Paul Lansing and Cory Cruser, Employee Relations Law Journal, Vol. 35 no. 1, Summer 2009

The US government, through legislation, has provided protection for certain classes of citizens to prevent discrimination in the workplace. Among these protected classes are race, religion, gender, age, disability, etc. However, sexual orientation is not presently covered by the federal government. To fill this void, management should take it upon itself to provide protection in the workplace for the gay community.

The Lilly Ledbetter Fair Pay Act: The Death of the Statute of Limitations Defense?

Source: Geoffrey S. Sheldon and James E. Oldendorph, Jr., California Public Employee Relations, no. 195, May 2009
(subscription required)

On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009 (FPA). The act overturned the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.

With the enactment of the FPA, the statute of limitations defense is dead, or at least dying, in employment discrimination claims. The FPA resets the limitations period with each paycheck issued to the employee, and whenever benefits or other compensation are paid. Employees may now resuscitate discrimination claims that involve decisions that are years or decades old so long as a plaintiff can tie that decision to the employee’s compensation. The FPA likely will lead to an enormous increase in pay discrimination claims that previously were time barred but now
have been revived due to the retroactive application of the act.

The PDA’s Causation Effect: Observations of an Unreasonable Woman

Source: Michelle A. Travis, Yale Journal of Law & Feminism, Forthcoming

From the abstract:
While many scholars rightfully have critiqued the Pregnancy Discrimination Act (PDA) as falling short of achieving the ultimate goal of equal employment opportunities for women, this Article reveals one of the PDA’s most important successes. By recognizing pregnant women as a given in the workplace, the PDA launched a quiet revolution in the way that judges make causal attributions for adverse employment outcomes. Specifically, the PDA provided judges with the conceptual tools that were needed to help shift causal attributions to an employer, rather than attributing a pregnant woman’s struggles in the workplace to her own decision to become a mother. Because our notions of responsibility follow our notions of causation, this shift in causal attribution enabled judges to more easily identify employers as legally responsible for the misfit between the conventional workplace and working women’s lives. While this causal attribution shift has been incomplete, it at least laid the foundation for ongoing conversations about how the law might achieve even deeper structural and organizational transformations in the workplace looking forward. By revealing the PDA’s causation transformation story, this Article seeks to shore up that foundation for future efforts at designing workplaces more fully around a caregiving worker norm.

The Gender Pay Gap

Source: American Association of University Women, April 22, 2009

From the press release:
To commemorate Equal Pay Day, April 28, 2009, AAUW has released a new state-by-state earnings comparison by gender that shows that the wage gap is stubbornly in place despite the overall positive effect a college degree has on women workers. Observing Equal Pay Day reminds the nation of the gross inequities facing women, who must work from January 2008 through April 2009 to earn what their male counterparts received in 2008 alone.
See also:
Map data explained
Map data table

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

Source: Patricia Quinn Robertson, Employee Responsibilities and Rights Journal, Published online: 16 April 2009
(subscription required)

From the abstract:
A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.

Working for Cents on the Dollar : Race and Ethnic Wage Gaps in the Noncollege Labor Market

Source: Gregory Acs, Pamela J. Loprest, Urban Institute, March 23, 2009

From the abstract:
This paper uses data from the 2007 Survey of Employers in the Low-Skill Labor Market to analyze whether wage differences among workers of different races and ethnicities in the low-skill labor market remain after controlling for individual, job, and employer characteristics. The employer-provided data include detailed information on job requirements and employer characteristics rarely available in household surveys. We find that black workers earn significantly less than white workers in the less-skilled labor market, and a significant difference (12 percent) remains even after controlling for worker, job, and employer characteristics.

Perceptions of Discrimination and Justice Among Employees with Disabilities

Source: Lori Anderson Snyder, Jennifer S. Carmichael, Lauren V. Blackwell, Jeanette N. Cleveland, George C. Thornton, Employee Responsibilities and Rights Journal, Published online: 18 March 2009
(subscription required)

From the abstract:
Despite the passage of almost two decades since the enactment of the Americans With Disabilities Act in the United States, individuals with disabilities are still underrepresented in the workforce, tend to hold lower status jobs, and receive lower wages. This study examines whether disabled workers also continue to encounter more negative workplace experiences in terms of discrimination and injustice. A sample of 1,880 employees of a large university, including 90 self-identified disabled individuals completed a work experience survey. Analyses indicate that disabled employees reported more overt and subtle discrimination and more procedural injustice than their non-disabled counterparts. Examination by the type of disability also revealed that those with non-physical disabilities reported more negative experiences than employees with physical disabilities. Perceived organizational and supervisory support were shown to have promise in reducing the effects of disability status on workplace attitudes and perceptions.

Gender (in)Equality in the Labour Market

Source: Stephen Glenn, Simone Melis, Louisa Withers, International Trade Union Confederation (ITUC), 2009

From the press release:
A new report released by the ITUC for March 8, International Women’s Day, has revealed that the pay gap between men and women worldwide may be much higher than official government figures. The report, “Gender (in)Equality in the Labour Market”, is based on survey results of some 300,000 women and men in 20 countries. It puts the global pay gap at up to 22%, rather than the 16.5% figure taken from official government figures and released by the ITUC on March 8 last year.

The report also confirms previous findings that union membership, and particularly the inclusion of women in collective bargaining agreements, leads to much better incomes for both women and men, as well as better pay for women relative to their male co-workers
See also:
video on maternity protection