Category Archives: LGBT

Sexual Orientation in the Labor Market

Source: Trenton D. Mize, American Sociological Review, Published online before print November 15, 2016
(subscription required)

From the abstract:
Most analyses of sexual orientation and earnings find that gay men face a wage gap, whereas lesbian women earn higher wages than similar heterosexual women. However, analyses rarely consider bisexual men and women as a unique group separate from other sexual minorities. I argue that such binary views of sexual orientation—treating sexual minorities as a homogenous non-heterosexual group—have obscured understandings of the impact of sexual orientation on labor market outcomes. Specifically, I predict that unequal outcomes for gay men and lesbian women are partly due to the influence of family arrangements and their effects on earnings. In contrast, I argue that bisexual men and women should be the most disadvantaged in the labor market, due to particularly disadvantaging stereotypes, perceptions of choice to their sexual orientation, and prejudicial treatment. Using data from the General Social Survey (N = 13,554) and the National Longitudinal Study of Adolescent to Adult Health (N = 14,714), I show that family arrangements explain some of the observed earnings differentials for gay men and lesbian women. Bisexual men and women, in contrast, face wage penalties that are not explained by human capital differences or occupational characteristics. Perceptions of prejudicial treatment partially explain the observed wage gaps.

Blue Cities, Red States

Source: Abby Rapoport, American Prospect, August 22, 2016

As cities have moved left and states have moved right, the conflicts between them have escalated. ….

…..“PREEMPTION” LAWS ARE not new, nor are they necessarily about undoing local legislation. But with some notable exceptions, past preemption laws have generally enforced what can be called “minimum preemption”: They force localities to do something where they might otherwise have done little or nothing. As it’s often said, they set a “floor” for regulation. For instance, the federal government has been setting minimum standards of environmental protection for years, preempting the states from allowing lower environmental standards. Similarly, states often set a floor for various local regulations, whether regarding pollution, trade licensing, gun ownership, or other matters.

Most current preemption laws, by contrast, are what one might call “maximum preemption.” These laws aren’t about setting minimums; instead, they prohibit local regulation. States have prevented localities from creating paid sick leave requirements for businesses, or raising the minimum wage. Many who oppose these measures blame their proliferation on the conservative American Legislative Exchange Council, known as ALEC, which has drafted “model” preemption bills for state lawmakers to use. “Pretty much anything you can think of that matters to the American family is under assault by local preemption,” says Mark Pertschuk, the director of Grassroots Change, which fights preemption laws around the country……

Food Insecurity and SNAP Participation in the LGBT Community

Source: Taylor N.T. Brown, Adam P. Romero, and Gary J. Gates, Williams Institute, July 2016

From the abstract:
This study analyzes the extent of food insecurity experiences and participation in the federal Supplemental Nutrition Assistance Program (SNAP) among LGBT adults and adults in same-sex couples. Using data from four representative, population-based surveys the authors find higher rates of these experiences among LGBT adults and adults in same-sex couples than among non-LGBT adults and adults in different-sex couples.

Key findings from the study include that more than 1 in 4 LGBT adults (27%) – approximately 2.2 million people – experienced a time in the last year when they did not have enough money for the food that they or their families needed, compared to 17% of non-LGBT adults. More than 1 in 4 LGB adults aged 18-44 (27%) participated in SNAP, compared to 20% of non-LGB adults in the same age range. Food insecurity is not distributed evenly in the LGBT community. Certain racial and ethnic minorities (42% among African-Americans, 33% among Hispanics, and32% among American Indians and Alaskan Natives), women (31%), unmarried individuals (30%), and those raising children (33%) are particularly likely to report not having enough money for the food that they or their families needed at some point in the last year. Additional findings are available in the full study which presents both descriptive and multivariate analyses.
Press release

Collective bargaining language on domestic violence, discrimination, disabilities, and LGBTTI rights

Source: Canadian Union of Public Employees (CUPE), 2015

Domestic violence and the workplace: A bargaining guide
September 29, 2015

Discrimination: A checklist and sample collective agreement language
October 19, 2015

Duty to accommodate: A checklist for collective agreement language
October 19, 2015

Bargaining LGBTTI rights: A checklist for collective agreement language
October 19, 2015

The Politics of Preemption and Local Labor Laws: From Minimum Wage to “Right to Work”

Source: Melissa Greenberg, OnLabor blog, May 25, 2016

Increasingly frustrated by their inability to affect employment law at the federal and state level, progressive advocates have turned their attention to local government. At this level, they have been able to enact ordinances to raise the minimum wage, guarantee paid sick day laws, and even protect LBGT rights in the workplace — proposals, which have all failed at the federal level. Conservative groups, most notably, the American Legislative Exchange Council (ALEC), have fought these reforms by lobbying for state bills preempting local action.

But, in another context, this dynamic has been turned on its head: ALEC has led the campaign to enact local right to work ordinances. While ALEC’s instrumentalism has been noted, progressives also have a conflicted position on preemption. In the face of a rigid preemption regime governing federal labor law, the progressives cannot explore whether the NLRA would benefit from more regional variation as it has in the minimum wage context. ….

Discrimination, Diversity, and Development: The Legal and Economic Implications of North Carolina’s HB2

Source: Christy Mallory & Brad Sears, Williams Institute and Out Leadership, May 2016

This report considers the legal and economic implications of North Carolina’s HB2. After considering the size of the LGBT population in North Carolina, and the legal landscape and social climate they face, this report estimates that HB2 directly puts at risk almost $5 billion just in terms of federal funding and business investment. In addition, HB2 contributes to a challenging environment for LGBT people that potentially costs the state tens to hundreds of millions of dollars each year.
The Fiscal Impact of North Carolina’s HB2
Christy Mallory and Brad Sears, Williams Institute, May 2016

From the abstract:
North Carolina’s law restricting access to restrooms based on sex listed on an individual’s birth certificate impacts an estimated 37,800 transgender people in the state, and puts at risk $4.8 billion in federal funding to state and local government entities. The law is in conflict with the gender identity non-discrimination requirements under several federal laws including Title IX of the Education Amendments of 1972, Executive Order 13672, Workforce Innovation and Opportunity Act, the Violence Against Women Act, the Affordable Care Act, the Equal Access Rule, and Title VII of the Civil Rights Act of 1964. Federal agencies that enforce the laws are authorized to suspend or terminate funding if recipients violate the non-discrimination requirements, and the US Department of Justice has notified North Carolina that its law does violate these requirements. Loss of federal funding under the laws could impact schools, workforce development programs, law enforcement, health care programs, housing assistance, and programs for survivors of violence.

Inequality, Opportunity, and the Law of the Workplace

Source: Stetson Law Review, Volume 45, Issue 1, 2015

On March 6, 2015, the Stetson Law Review hosted a symposium titled “Inequality, Opportunity, and the Law of the Workplace.” The symposium brought together legal academics, economists, attorneys, journalists, and students to explore the relationship between rising economic inequality in the United States and the complex web of federal, state, and local laws that constitute the field of labor and employment law. Following the live symposium, works by many of the panelists and speakers were published in the Stetson Law Review, Volume 45, Issue 1.

Symposium Introduction and Dedication
Jason R. Bent

“Regilding the Gilded Age”: The Labor Question Reemerges
Wilma B. Liebman

….This year, as we celebrate the eightieth anniversary of the passage of the Wagner Act—our nation’s basic law that guarantees workers the right to organize and bargain collectively with their employers-organized labor is, as a percentage of the private sector workforce, at a historic low, steady decline since the 1950s. Workers’ bargaining power is, as a consequence, sharply reduced, and income inequality is at levels not seen since the Gilded Age. I leave it to other speakers on this program to document the nature and extent of present-day wealth and income disparity. I will confine my remarks to outlining the relevance of labor law to this serious challenge, the limits of existing law, and what the future might hold for restoring the promise of labor law……

Can Dystopia be Avoided? Increasing Economic Inequality Can Lead to Disaster
Michael J. Zimmer

….So what can be done to turn back the long-term trend of ever increasing economic inequality? First, it is necessary to realize that “[t]he evolution of inequality is not a natural process.” That the level of economic inequality is a question of politics becomes clear by looking at the United States experience in the period starting with World War II and ending in the early 1980s. While economic inequality was being reduced until the late 1970s, the Reagan Revolution that radically reduced taxes at the high end of the income pyramid also resulted in the reversal of the trend toward less inequality and replaced it with the ever increasing inequality seen since then. No matter how impossible it seems at the moment, new politics could reverse the present trends. That the problem is political does not, of course, make it simple to solve.

Added to the political challenges within any particular country that is active in the globalized economy is the fact that the problem of economic inequality is essentially a worldwide problem, requiring at least a coordinated, if not uniform, response by the major countries….. Finally and perhaps most significantly, the best way to turn around the ever increasing economic inequality would be to turn around the virtually worldwide decline in the union movement or to create a new transnational social movement aimed at using the collective strength of workers to protect and enhance their employment opportunities…..

Florida Workers’ Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo
Viktoryia Johnson

In 1935, Florida passed workers’ compensation legislation that made the quid pro quo justification its central theme. At first, the scheme worked efficiently and furnished injured workers with the benefits it had been designed to deliver. As time passed, however, the workers’ compensation legislation failed to keep up with legal developments and eventually lost its backbone. This Article is designed to expose deficiencies in the Florida workers’ compensation scheme—as they relate to the Florida Workers’ Compensation Act’s “Exclusiveness of Liability” provision—and propose solutions to address them.

Part I of this Article will describe workers’ compensation’s path to recognition in the United States, while Part II will review its adoption in Florida. Part III will overview the 1970 legislative changes that permanently altered the character of the Florida Workers’ Compensation Act (FWCA or the Act) by barring injured workers from recovery in tort and making the Act an exclusive remedy. Part IV will explain how these legislative amendments fail to support the archaic rationale behind the workers’ compensation scheme in light of the recent Florida tort law developments. Part V will review the constitutionality of the FWCA—with a concentration on the right of court access—under the Kluger paradigm. And finally, Part VI of this Article will propose solutions to mend the exposed statutory deficiencies….

How to Raise Wages: Policies that Work and Policies that Don’t
Lawrence Mishel and Ross Eisenbrey

…As this Article explains, wage stagnation is not inevitable. It is the direct result of public policy choices on behalf of those with the most power and wealth that have suppressed wage growth for the vast majority in recent decades. Thus, because wage stagnation was caused by policy, it can be alleviated by policy. In particular, policymakers must address two distinct sets of policies….. One set of policies that has stifled wage growth includes aggregate factors, which have led to excessive unemployment over uch of the last mfour decades, as well as others that have driven the financialization of the economy and excessive executive pay growth. …. Another set of policies concerns the business practices, eroded labor standards, and weakened labor market institutions that have reduced workers’ individual and collective power to bargain for higher wages. ….

Indirect Threats to the Wages of Low-Income Workers: Garnishment and Payday Loans
Steven L. Willborn

……First, let me set the framework. When one talks about “inequality,” one can focus on some workers being paid too little, or others being paid too much. Working on either dimension could reduce inequality. I will focus on the workers-being-paid-too-little side of that equation. When we think of workers being paid “too little,” the discussion normally begins, and sometimes ends, with discussions of how to increase the income that low-income workers earn from their employers. Increases in the minimum wage would be the prime example: if we increase it, low-income workers might receive more income from their employers. When discussing topics such as garnishment and payday loans, the narrative becomes complicated in two main ways. First, we are not talking about the total amount those workers are owed—for example, the number of hours they work times the minimum wage. Rather, we are talking about the amount they actually receive at the end of the day. We are talking about a different kind of threat to the earnings of low-wage workers—not only the direct threat of simply being paid too little, but also the indirect threat of not getting all of those meager wages. To state it somewhat differently, if a worker needs $X/month to survive, she might fail to get there because the minimum wage is too low, or she might fail to get there because—even though the minimum wage is sufficient—the amounts taken out of her check through garnishment will cause her to fall below that amount. The two scenarios are equally problematic for the worker, but the second tends to be less on the radar screen than the first……

The Employment Non-Discrimination Act After Hobby Lobby: Striving for Progress–Not Perfection
Giovanni P. Giarratana

Despite the pervasiveness of discrimination based on sexual orientation and gender identity, federal legislation that explicitly prohibits it does not exist. To combat sexual orientation and gender identity discrimination, the Employment Non-Discrimination Act (ENDA) has been proposed. ENDA, if enacted, would explicitly prohibit discrimination based on “actual or perceived sexual orientation or gender identity.” ….. Some legal scholars assert that ENDA, as it is currently written, includes concerning language that may have the effect of decreasing protection rather than increasing it. One of the more concerning provisions is the religious exemption section, especially in the wake of the Supreme Court’s Hobby Lobby decision in June 2014. ….. As a consequence, many major gay activist groups pulled their support for ENDA because of the religious exemption that is included, asserting that the decision in Hobby Lobby is just “a hop, skip and jump” from allowing employers to discriminate against LGBT individuals because of religious beliefs. …..

Income Inequality and Corporate Structure
Matthew T. Bodie

Efforts to address income inequality generally focus on wealth redistribution through taxation and government benefits. But these efforts do not attack the core problem — the unfair distribution of wealth at the firm level. This essay, a contribution to the “Inequality, Opportunity, and the Law of the Workplace” symposium, argues that workers need power within their firms to stake their claims to larger slices of the corporate pie. Even though the current law of the workplace does provide regulatory support for workers, it fails to change internal firm governance. Policymakers who want to take on income inequality as a structural matter should turn to corporate law and provide workers with a way of playing a role in the ongoing governance of the business.

Businesses opposing N.C.’s HB2 helped elect legislators behind it

Source: Alex Kotch, Institute for Southern Studies, April 5, 2016

Since the hurried passage of North Carolina’s HB2 last month in a special legislative session, numerous businesses have publicly spoken out against the law, which bars transgender individuals from using public bathrooms that correspond to their gender identity and blocks local governments from enacting their own nondiscrimination and minimum wage ordinances.

Over 120 companies including Dow Chemical, Red Hat, American Airlines, Apple, PayPal, Cisco, IBM and Google have stated their opposition to the law. CEOs of many of these companies sent a letter to Gov. Pat McCrory (R) last week opposing the law.

But many of these same businesses funded two outside political groups that helped elect five of the bill’s sponsors, 13 other legislators who voted for it, and McCrory, who immediately signed the measure into law. Outside groups are unaffiliated with campaigns and are not allowed to coordinate with candidates.

At least 36 companies that have come out against HB2 so far have given a combined $10.8 million to those Washington, D.C.-based groups, the Republican State Leadership Committee (RSLC) and the Republican Governors Association (RGA), in recent election cycles….

What’s Going on with LGBT Discrimination in the Workplace?

Source: Lauren Godles, OnLabor blog, April 6, 2016

Three years ago, a HuffPost/YouGov poll found that 69% of Americans (incorrectly) believed that firing an employee for being gay was already illegal. Now, in a post-Obergefell legal regime, those Americans would likely find it even more incredible that the federal government and most states still have not passed anti-discrimination laws, nor has the Supreme Court ruled such discrimination to be illegal. Unlike the right to interracial marriage, which the Supreme Court upheld after Congress banned race discrimination, gay marriage came with no such analog. The EEOC has interpreted Title VII to prohibit sexual orientation or transgender (gender identity) discrimination, but EEOC protection alone is inadequate. This post examines what protections currently exist for LGBT workers and some possible paths forward for more comprehensive anti-discrimination protections.