Category Archives: LGBT

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.
Related:
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.

Digital Transgender Archive (DTA)

Source: Digital Transgender Archive (DTA), 2016

The purpose of the Digital Transgender Archive (DTA) is to increase the accessibility of transgender history by providing an online hub for digitized historical materials, born-digital materials, and information on archival holdings throughout the world. Based in Worcester, Massachusetts at the College of the Holy Cross, the DTA is an international collaboration among more than twenty colleges, universities, nonprofit organizations, and private collections. By digitally localizing a wide range of trans-related materials, the DTA expands access to trans history for academics and independent researchers alike in order to foster education and dialog concerning trans history.

The DTA uses the term transgender to refer to a broad and inclusive range of non-normative gender practices. We treat transgender as a practice rather than an identity category in order to bring together a trans-historical and trans-cultural collection of materials related to trans-ing gender. We collect materials from anywhere in the world with a focus on materials created before the year 2000.

The Civil Rights Act of 1964 at 50: Past, Present, and Future

Source: Boston Law Review, Volume 95, Number 3, May 2015

More detailed information about this symposium, including video recordings of the panels and keynote addresses is available here.

From an abstract:
This Symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future,” published in the Boston University Law Review (volume 95, pp. 683-1232), observes the fiftieth anniversary of the landmark Civil Rights Act of 1964. Growing out of a live conference held at Boston University School of Law in November 2014, the Symposium includes twenty-two articles by prominent scholars from law, economic history, political science, and sociology. Topics addressed include: (1) historical perspectives on the 1964 Act and other civil rights laws; (2) classifications and categories in the 1964 Act and in subsequent civil rights laws; (3) reshaping public and private space in public accommodations, neighborhoods, and housing; (4) reshaping public and private space in education, the workplace, and the military; (5) proving discrimination; and (6) the limits and future of antidiscrimination law. The Symposium concludes with remarks on the role of transformational leadership in the civil rights movement by a colleague at Boston University’s School of Theology, the alma mater of Dr. Martin Luther King, Jr. The articles are also available for download at the website of the Boston University Law Review.

Articles include:
Editors’ Foreword

PANEL I: HISTORICAL PERSPECTIVES
The Long Civil Rights Act and Criminal Justice
Margaret Burnham

Intersectionality and Title VII: A Brief (Pre-)History
Serena Mayeri

Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VII
George Rutherglen

The Regional Economic Impact of the Civil Rights Act of 1964
Gavin Wright

PANEL II: CLASSIFICATIONS AND CATEGORIES IN THE 1964 ACT AND IN SUBSEQUENT CIVIL RIGHTS LAWS
Reading Amendments and Expansions of Title VII Narrowly
Henry L. Chambers, Jr.

Marital Status Discrimination 2.0
Courtney G. Joslin

Backlash, Courts, and Disability Rights
Michael Waterstone

PANEL III: RESHAPING PUBLIC AND PRIVATE SPACE: PUBLIC ACCOMMODATIONS, NEIGHBORHOODS, AND HOUSING
Can’t We Be Your Neighbor? Trayvon Martin, George Zimmerman, and the Resistance to Blacks as Neighbors
Jeannine Bell

Model Neighborhoods Through Mayors’ Eyes Fifty Years After the Civil Rights Act
Katherine Levine Einstein & David M. Glick

The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Stateways” can Change “Folkways”
Linda C. McClain

We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom
Joseph William Singer

Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights
Robin Fretwell Wilson

PANEL IV: RESHAPING PUBLIC AND PRIVATE SPACE: EDUCATION, THE WORKPLACE, AND THE MILITARY
On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII
Deborah L. Brake

Right to Serve or Responsibility to Protect? Civil Rights Framing and the DADT Repeal
Catherine Connell

Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law
Joanna L. Grossman

Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus Sexual Assault
Katharine Silbaugh

PANEL V: PROVING DISCRIMINATION
On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the “Monell Analogue”
Tristin K. Green

Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court
Michael C. Harper

Addressing Systemic Discrimination: Public Enforcement and the Role of the EEOC
Pauline T. Kim

Special Treatment Everywhere, Special Treatment Nowhere
Noah D. Zatz

PANEL VI: THE LIMITS AND FUTURE OF ANTIDISCRIMINATION LAW
The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constitution and the Constitution of South Africa
Sonu Bedi

Blaming Mothers: A Disability Perspective
Ruth Colker

RECEPTION ADDRESS
Now We Must Cross a Sea: Remarks on Transformational Leadership and the Civil Rights Movement
Walter Earl Fluker

The ACA and LGBT Health

Source: Wayne Turner, Health Advocate, Vol. 39, July 2015

From the summary:
In this month’s Health Advocate, NHeLP examines the issue of health care coverage and some of the important gains and unrealized goals for the LGBT community under the Affordable Care Act (ACA). We also examine ACA outreach and implementation challenges and identify advocacy opportunities to help ensure that health reform benefits everyone.

Workplace Violence and Harassment of Low-Wage Workers

Source: Elizabeth Kristen, Blanca Banuelos and Daniela Urban, Berkeley Journal of Employment and Labor Law, Vol. 36 no. 1, 2015
(subscription required)

From the abstract:
Low-wage workers face harassment and violence in the workplace. These vulnerable workers then face tremendous obstacles in seeking justice. In this article, attorneys from the Legal Aid Society – Employment Law Center and California Rural Legal Assistance discuss patterns they see in low-wage worker harassment and violence cases. Citing to real worker experiences, this article addresses industry-based challenges for restaurant, agricultural, homecare, and domestic workers, as well as specialized concerns for LGBT and undocumented workers. This article discusses both the barriers low-wage workers often face in deciding to take legal action and the challenges they confront when they do seek justice. Finally, this article proposes strategies for legal advocates in helping combat violence and harassment in the workplace.

Federal Equal Protection

Source: Taylor Flynn, Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide ch. 15, 2014

From the abstract:
The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss the significance of Price Waterhouse v. Hopkins, a Supreme Court case which ruled that Title VII’s prohibition against discrimination because of sex includes discrimination based on gender stereotyping. Importing this reasoning, courts have ruled that the constitutional prohibition against discrimination on sex also prohibits gender stereotyping.

The Author then discusses how, because gender stereotyping is often the root of discrimination faced by LGBT employees, Price Waterhouse lays a foundation for sex-based employment discrimination by these individuals. This includes linking discrimination against LGBT employees to comments or views about the person’s gendered appearance or about stereotypes of sexuality linked to a person’s sex (e.g., a man should only form physical and emotional attachments to a woman). For transgender employees, discrimination may be linked to stereotypes about physical manifestations of gender identity.

The Author then goes on to explore how various courts have interpreted constitutional claims brought by LGBT and transgender employees under the above theories, with some theories proving more successful than others. Finally, the Author discusses the level of scrutiny applied by courts when evaluating equal protection and due process claims.