Category Archives: Discrimination

The Supreme Court’s Quiet Assault on Civil Rights

Source: Lynn Adelman, Dissent, Fall 2017
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It is a little-known and disturbing fact that the Supreme Court is in the process of gutting what may be the most important civil rights statute Congress has ever passed. It is particularly distressing that the harm is being done by a largely unanimous court—and that, other than a few legal scholars, no one seems to be paying any attention.

The statute in question is Section 1983 of the United States Code, which was enacted in 1871 as part of Reconstruction. Section 1983 enables people to bring suits in federal court to enforce the rights created by the Fourteenth Amendment—which, among other things, prohibits state officials from depriving persons of due process and equal protection of the law. The law was designed to provide a federal remedy against officials who violated the rights of the newly freed slaves or who stood by while others, like the Ku Klux Klan, did so. Specifically, it authorizes individuals to sue in federal court “any person who under color of law” violates their constitutional rights. The purposes of the law are to compensate persons whose constitutional rights have been violated and to deter future violations. Actions brought under Section 1983 are known as constitutional tort suits.

After Congress enacted Section 1983, the law lay largely dormant for some ninety years. In 1961, however, in Monroe v. Pape, the Warren Court breathed life into the statute. The plaintiff in Monroe alleged that thirteen Chicago police officers broke into his home in the early morning without a warrant, made his family stand naked, and interrogated him under physical threat. The Supreme Court upheld the plaintiff’s claim for damages under Section 1983 and interpreted the “under color of law” requirement to include actions by government officials taken under the badge of their authority even if the actions exceeded what they were permitted to do under state law. A police officer who used excessive force—as in the Monroe case—would be a prime example.

As the result of Monroe, Section 1983 became the primary vehicle for enforcing constitutional rights in the United States, and that remains true to this day. As Professor Lynda Dodd of the City University of New York (CUNY) has shown, although the statute has never received as much attention as some of the 1960s-era statutes such as the Civil Rights Act of 1964, Section 1983 has served as a central pillar of civil rights work for more than half a century. It is the means by which plaintiffs challenge the use of excessive force by police officers, race-based patterns of stop and frisk, unconstitutional conditions of confinement, wrongful convictions, and other kinds of official misconduct…..

The Haves & Have Nots of Paid Family Leave

Source: PL+US: Paid Leave for the United States, May 2017

In the United States today, paid family leave is an elite benefit: 94% of low-income working people have no access to paid family leave. Millions of Americans don’t get even a single day of paid time for caregiving. 1 in 4 new moms in the U.S. is back at work just ten days after childbirth. While public discourse often focuses on income inequality, there is another critical way families experience inequality: the inability to be with their babies and families for the most important moments of their lives.

Over the last year, a slate of the largest employers in the United States have announced paid family leave policies: Starbucks, Yum! Brands (KFC, Taco Bell, Pizza Hut), and others. While the media has largely heralded these announcements as a boon for working families, most of these benefits are only accessible for people who work in white-collar corporate jobs, leaving out the hourly employees who comprise the vast majority of a company’s workforce. In fact, overall access to paid family leave in the United States has actually declined over the last decade. We’ve conducted independent research to uncover the paid family leave policies at the largest employers in the country to understand who has access to family leave, who doesn’t, and what that says about the need for change in both corporate and public policy.

Many of the companies that employ the most people have policies that provide significantly more paid family leave to corporate employees, while offering little — or nothing at all — to hourly/field/part-time workers…..

Related:
Left Out: How Corporate America’s parental leave policies discriminate against dads, LGBTQ+ and adoptive parents
Source: PL+US: Paid Leave for the United States, June 2017

In America, Parental Leave Is Still A Class Issue
Source: Lea Rose Emery, Brides, September 12, 2017

….Unfortunately, Starbucks is correct when they argue that they provide better benefits than some. Walmart, Kroger, Nike, and Marriott are just some of the corporations offering no paid leave at all. Yum! Brands, owner of chains such as KFC, Pizza Hut, and Taco Bell, employs hundreds of thousands of US workers, and none of the staff working the restaurants get any paid leave. Yet birth mothers working in the headquarters get 16 weeks. At Amazon, it’s 20 weeks for full-time birth mothers and nothing for those in the warehouse. While all parents deserve adequate paid leave (a guarantee in so many other countries), there is something especially perverse about a company recognizing the need for its corporate employees while denying it to its lower paid staff—people who are much more likely to have trouble affording child care to being with.

The worst part? It doesn’t have to be this way. It is possible to treat your retail and corporate employees equally, to give part-time workers the same benefits of those working full-time while still flourishing. Wells Fargo and Nordstrom give all new mothers at least 12 weeks of paid leave, though they do give less to fathers and adoptive parents. Bank of America and Ikea give all new parents 16 weeks. These are huge companies with huge profits. If they can do it, why can’t others?….

Meta-analysis of field experiments shows no change in racial discrimination in hiring over time

Source: Lincoln Quillian, Devah Pager, Ole Hexel, and Arnfinn H. Midtbøen, Proceedings of the National Academy of Sciences, Early Edition, August 8, 2017

From the abstract:
This study investigates change over time in the level of hiring discrimination in US labor markets. We perform a meta-analysis of every available field experiment of hiring discrimination against African Americans or Latinos (n = 28). Together, these studies represent 55,842 applications submitted for 26,326 positions. We focus on trends since 1989 (n = 24 studies), when field experiments became more common and improved methodologically. Since 1989, whites receive on average 36% more callbacks than African Americans, and 24% more callbacks than Latinos. We observe no change in the level of hiring discrimination against African Americans over the past 25 years, although we find modest evidence of a decline in discrimination against Latinos. Accounting for applicant education, applicant gender, study method, occupational groups, and local labor market conditions does little to alter this result. Contrary to claims of declining discrimination in American society, our estimates suggest that levels of discrimination remain largely unchanged, at least at the point of hire.

Significance:
Many scholars have argued that discrimination in American society has decreased over time, while others point to persisting race and ethnic gaps and subtle forms of prejudice. The question has remained unsettled due to the indirect methods often used to assess levels of discrimination. We assess trends in hiring discrimination against African Americans and Latinos over time by analyzing callback rates from all available field experiments of hiring, capitalizing on the direct measure of discrimination and strong causal validity of these studies. We find no change in the levels of discrimination against African Americans since 1989, although we do find some indication of declining discrimination against Latinos. The results document a striking persistence of racial discrimination in US labor markets.

Related:
Bias against hiring African Americans hasn’t budged
Source: Hilary Hurd Anyaso, Futurity, September 13th, 2017

Public Opinion on Civil Rights: Reflections on the Civil Rights Act of 1964

Source: Cornell University – Roper Center, 2017

Likely the most sweeping civil rights legislation since Reconstruction, the Civil Rights Act of 1964 ushered in a new era in American civil rights as discrimination on the basis of race, color, religion, sex or national origin was outlawed. By signing the law into effect on July 2, 1964, President Johnson also paved the way for additional school desegregation and the prohibition of discrimination in public places and within federal agencies.  Public opinion polls held in the Roper Center for Public Opinion Research archives reveal changing attitudes about race in the U.S., exposing how divisive racial issues were at the time, how much improvement there has been since the Act – and how very far the country still has to go…..
Related:
iPOLL questions from the civil rights era on race relations
iPOLL questions on race relations today
Datasets on race relations

Black Lives Matter and America’s long history of resisting civil rights protesters
Source: Elahe Izadi, Washington Post, The Fix, April 19, 2016

Young Women Are Losing Ground in U.S. Race for Equal Pay

Source: Jeanna Smialek, Bloomberg, August 22, 2017

Women between 25 and 34 years old are slipping when it comes to pay equality with men, data from the Bureau of Labor Statistics show. In that age group, of mostly millennials, women made just under 89 cents on a man’s dollar in 2016, down from a high of 92 cents in 2011. That means the gender gap in median weekly earnings is the widest in seven years.

Young women’s experience stands in contrast to that of their older counterparts, who are starting from a lower level but continue to creep toward equality. The dip is surprising, given that millennial women are increasingly highly-educated relative to their male peers. Part of the explanation could be that in recent years, a big chunk of gender-wage parity had come because men’s wages weren’t doing well…..

Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions

Source: D. Wendy Greene, university of Miami Law Review, Vol. 71 no. 4, 2017

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine — and the biological notion of race that informs it — have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women….

Reckless Discrimination

Source: Stephanie Bornstein, California Law Review, Vol. 105, 2017

From the abstract:
If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination — a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.

In doing so, the Article seeks to revive the importance of social science research on bias — research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII.

Can You Fire Someone for Attending a Rally of Racists?

Source: Jon Steingart, Daily Labor Report, August 14, 2017

A campaign to publicly identify participants in white supremacist rallies has been met with calls for employers to fire the protesters. That’s the dilemma Top Dogs in Berkeley, Calif., faced after Twitter user @YesYoureRacist shared a photo it said showed one of the hot dog restaurant’s employees at a demonstration in Charlottesville, Va., last weekend. Participants carried torches and reportedly chanted “white lives matter” and “Jews will not replace us.” The next day, participants showed up carrying Nazi swastikas, Confederate battle flags, and insignia of white supremacist groups…..

The Status of Black Women in The United States

Source: Asha DuMonthier, Chandra Childers, and Jessica Milli, Institute for Women’s Policy Research, July 2017

From the summary:
Black women are integral to the well-being of their families, their communities and the nation as a whole. Through their work, entrepreneurship, caregiving, political participation, and more, Black women are creating opportunities for themselves, their loved ones, and improving the our economy and society. They have all the makings of what should be success, yet their contributions are undervalued and under compensated. Black domestic workers are particularly vulnerable because of the ways in which racial disparities, gender discrimination, and immigration status serve to further marginalize and disempower the very people who power our economy and push our democracy to be the best that it can be. Whether one examines Black women’s access to healthcare, earnings, or access to much needed social supports like childcare and eldercare, Black women are getting the short end of the stick, despite having contributed so much to the building of this nation. …. The report analyzes data by gender, race and ethnicity for all 50 states and the District of Columbia across six topical areas: political participation, employment and earnings, work and family, poverty and opportunity, health and well-being, and violence and safety. In addition, the report includes basic demographic data for each state and a set of policy recommendations. ….
Related:
Executive Summary