Category Archives: Discrimination

Trans Fat

Source: Elizabeth M. Glazer and Zachary A. Kramer, Social Science Electronic Publishing, February 3, 2009

From the abstract:


In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination is not in terms of protected traits or categories, but rather in terms of what she calls “logics of personhood.” The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law’s categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland’s discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs’ only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland’s logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law’s protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff’s dignity and that antidiscrimination law should take into consideration such dignitary harms.

The Silent Depression: State of the Dream 2009

Source: Jeannette Huezo, Christina Kasica, Dedrick Muhammad, Amaad Rivera, Inequality and the Common Good, January 15, 2009

In this year’s report, we found that people of color are experiencing a silent economic depression. It’s silent because it’s going unnoticed, unacknowledged, and unaddressed — and yet the evidence is striking.

While the general population has been in recession for one year, people of color have been in recession for five years. By definition, a long-term recession is a depression.

We detail additional evidence that shows the current racial economic inequity, including poverty rates, wealth and assets and economic mobility. While racial barriers did not prevent an African American from becoming president, they continue to impede many people of color from achieving the same economic success as their white counterparts.

Addressing Family Responsibilities Discrimination

Source: Stephanie Bornstein and Julie Weber, Work-family Information for State Legislators, Issue 16, 2008

Workplace discrimination against mothers and others based on their family caregiving responsibilities is a rapidly growing problem. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) responded by issuing new enforcement guidance on caregiver discrimination. State policymakers are beginning to respond, too.

Instead of ENDA, A Course Correction for Title VII

Source: Jennifer S. Hendricks, Northwestern University Law Review Colloquy, Forthcoming

From the abstract:
In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical consequences for the relief available to plaintiffs.

Disability Rights, Disability Discrimination, and Social Insurance

Source: Mark C. Weber, Georgia State Univeristy Law Review, Vol. 25, 2009

From the abstract:
This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement’s ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals.

The conflict between the civil rights approach and insurance seems apparent. A person takes out insurance to deal with tragedy, such as premature death, or damage, such as accidental harm to an automobile or home. Social insurance, for example, the United States Social Security old-age and disability programs, consists of government-run insurance to cover risks of advanced age and disability for which the private market has not provided affordable coverage. But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation.

This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy.

Why A Federal District Court’s Decision Is a Victory for Transsexuals’ Right Not to Face Employment Discrimination

Source: Joanna Grossman, FindLaw, September 30, 2008

In a thoughtful, well-reasoned opinion, a federal district judge handed transsexuals a significant victory against employment discrimination. The case was Schroer v. Billington, and the court was the federal district court for the District of Columbia.

The Racial Divide And The Class Struggle In The United States

Source: Michael Goldfield, WorkingUSA, Vol. 11 no. 3, September 2008
(subscription required)

From the abstract:
In this essay, Michael Goldfield examines why questions of race continue to play such a prominent role in contemporary society, particularly in undermining the potential solidarity and strength of the working-class movement, what sustains racist attitudes, practices, and institutions, especially in the face of trends in world economic development that would seem to be undermining them, and what needs to be done to overturn them.

The Age Discrimination in Employment Act (ADEA): A Legal Overview

Source: Jody Feder, Legislative Attorney, American Law Division, September 5, 2008

This report provides an overview of the Age Discrimination in Employment Act (ADEA) and discusses current legal and legislative developments. The ADEA, which prohibits employment discrimination against persons over the age of 40, was enacted “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.”

The ADEA, which applies to employers, labor organizations, and employment agencies, makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The statute not only applies to hiring, discharge, and promotion, but also prohibits discrimination in employee benefit plans such as health coverage and pensions. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the provisions of the ADEA.

In addition, the Supreme Court recently handed down a series of decisions involving the ADEA during its 2007-2008 term, including Sprint/United Management Co. v. Mendelsohn; Federal Express Corp. v. Holowecki; Gomez-Perez v. Potter; Kentucky Retirement Systems v. Equal Employment Opportunity Commission; and Meacham v. Knolls Atomic Power Laboratory. Each of these cases is discussed below.

Women’s Earnings: Federal Agencies Should Better Monitor Their Performance in Enforcing Anti-Discrimination Laws

Source: Government Accountability Office, GAO-08-799, August 11, 2008

In 2003, GAO found that women, on average, earned 80 percent of what men earned in 2000 and workplace discrimination may be one contributing factor. The Equal Employment Opportunity Commission (EEOC) and the Department of Labor (Labor) enforce several laws intended to prevent gender pay discrimination. GAO examined (1) how EEOC enforces laws addressing gender pay disparities among private sector employers and provides outreach and what is known about its performance, and (2) how Labor enforces laws addressing gender pay disparities among federal contractors and provides outreach and what is known about its performance. GAO analyzed relevant laws, regulations, monitoring reports, and agency enforcement data and conducted interviews at the agencies’ central offices and two field offices experienced in gender pay cases.

Reversal of Fortune

Source: Algernon Austin, Economic Policy Institute, Briefing Paper #220, September 18, 2008

While bad economic news continues to pile up for America’s working people, the economic trends are even more disheartening for African American families. Gains made during the strong labor market of the latter 1990s business cycle have eroded, even as the economy grew significantly. On all major indicators–income, wages, employment, and poverty–African Americans lost ground between 2000 and 2007. Algernon Austin, director of EPI’s Program on Race, Ethnicity, and the Economy, examines the trends and their impact in a new report: Reversal of Fortune: Economic Gains of 1990s Overturned for African Americans from 2000-07.