Category Archives: Discrimination

Before and After: Gender Transitions, Human Capital, and Workplace Experiences

Source: Kristen Schilt, Matthew Wiswall, The B.E. Journal of Economic Analysis & Policy, Vol. 8, Issue 1, 2008
(subscription required)

From the abstract:
We use the workplace experiences of transgender people – individuals who change their gender typically with hormone therapy and surgery – to provide new insights into the long-standing question of what role gender plays in shaping workplace outcomes. Using an original survey of male-to-female and female-to-male transgender people, we document the earnings and employment experiences of transgender people before and after their gender transitions. We find that while transgender people have the same human capital after their transitions, their workplace experiences often change radically. We estimate that average earnings for female-to-male transgender workers increase slightly following their gender transitions, while average earnings for male-to-female transgender workers fall by nearly 1/3. This finding is consistent with qualitative evidence that for many male-to-female workers, becoming a woman often brings a loss of authority, harassment, and termination, but that for many female-to-male workers, becoming a man often brings an increase in respect and authority. These findings challenge the omitted variables explanations for the gender pay gap and illustrate the often hidden and subtle processes that produce gender inequality in workplace outcomes.

Marital Status Discrimination: Are Family-Friendly Policies Meeting the Needs of Unmarried Workers?

Source: Mary Curlew, Sloan Work and Family Research Network, Policy Brief no. 21, December 2009

From the summary:
According to the U.S. Census Bureau, 95.9 million Americans 18 years of age and older were unmarried in 2008, up from 37.5 million in 1970. Unmarried employees make up over 40% of the full-time workforce. [. . .] These facts do not lessen the claims of married workers with dependent children. However, they do point to the need for work and family policies that look beyond a narrow view of family and encompass the many different types of personal needs faced by today’s workers.
See also:
Topic Page on Single Workers
Marital Status Discrimination
Domestic Partnerships, Civil Unions and Same-Sex Marriage
Unmarried America

Caregivers as a Protected Class?: The growth of state and local laws prohibiting family responsibilities discrimination

Source: Stephanie Bornstein, Robert J. Rathmell, Center for WorkLife Law at the University of California, December 2009

From the press release:
At least 63 local governments in 22 states–including some of the nation’s major urban areas–have passed employment anti‐discrimination laws that go beyond federal and state statutes to ensure that those with caregiving responsibilities are not discriminated against at work. Cases filed under these local laws, such as one recent decision in Chicago, have the potential to result in substantial damages, fines, and attorneys fees.

Today, the Center for WorkLife Law at the University of California, Hastings College of the Law released the first comprehensive nationwide survey of state and local laws that prohibit family responsibilities discrimination, or FRD. FRD occurs when employees are penalized at work–fired, demoted, denied promotions or employment benefits, or harassed–because of their caregiving responsibilities at home, whether for children, an ill partner, or an elderly relative. While most of the local laws cover parents and those with responsibilities for children, some go further to include other caregiving relationships.

The new report shows that, going beyond state and federal statutes, cities and counties have taken it upon themselves to ensure their residents are not discriminated against in public and private employment settings based on familial status or responsibilities.

Layoffs: The New Economic Reality

Source: Leonora M. Schloss and Aaron N. Colby, Employee Relations Law Journal, Vol. 35 no. 2, Autumn 2009
(subscription required)

This article discusses basic principles and recent developments along with providing practical advice on two key areas associated with layoffs: state and federal reduction in workplace statutory compliance, and race and age discrimination claims.

Managing the Expanding Definition of “Discrimination”: A Practical Review of the Ledbetter Fair Pay Act and Its consequences for Employers

Source: Micahel Brittan and Amy Onder, Employee Relations Law Journal, Vol. 35 no. 2, Autumn 2009
(subscription required)

Earlier this year, President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law following the bill’s passage in the House of Representatives two days earlier. The Fair Pay Act allows individuals and other affected parties to file charges of alleged pay discrimination under title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and the Rehabilitation Act. The Fair Pay Act effectively overturns a portion of the US Supreme Court’s decision in Ledbetter V. Goodyear Tire and Rubber Co., Inc. The authors outline the current situation both in terms of how women and other employees fare in equitable pay and what norms exist for setting salaries, negotiation increased pay, determining what factors constitute merit, and evaluating whether recruiting practices have a disproportionately negative effect on pay. The authors believe that previous gender pay gap studies are incomplete and often misleading. While the Act arguably ensures fair pay, some feel that the Act too broadly tolls the statute of limitations period for such claims. Many also fear that employers will now base pay decisions on gender rather than on merit, education, and experience. This article provides proactive steps for employers seeking guidance on practices that ensure fair pay decisions.

Information on Employment Litigation, Housing and Civil Enforcement, Voting, and Special Litigation Sections’ Enforcement Efforts from Fiscal Years 2001 to 2007

Source: United States Government Accountability Office, GAO-10-75, October 23, 2009

From the summary:
The Civil Rights Division (Division) of the Department of Justice (DOJ) is the primary federal entity charged with enforcing federal statutes prohibiting discrimination on the basis of race, sex, disability, religion, and national origin. GAO was asked to review the Division’s enforcement efforts. This report addresses the activities the Division undertook from fiscal years 2001 through 2007 to implement its enforcement responsibilities through four of its sections (1) Employment Litigation, (2) Housing and Civil Enforcement, (3) Voting, and (4) Special Litigation. To conduct our review, GAO analyzed data on cases filed in court and matters (e.g., a referral or allegation of discrimination) investigated. To supplement this analysis, GAO also reviewed a sample of closed matter files (about 210 of 5,400). GAO randomly selected matters investigated under different statutes for each section and considered the government role (e.g., plaintiff or defendant) and type of issues investigated (e.g., the nature of the alleged discrimination or violation) to ensure that the sample reflected the breadth of the work and practices of each section. While not representative of all closed matters, the sample results provided examples of why matters were closed. Additionally, GAO analyzed complaints and other relevant court documents for a comparable number of cases filed as plaintiff by each section, as well as DOJ documents, such as annual reports, that described the Division’s enforcement efforts.
See also:
Opportunities Exist to Strengthen the Civil Rights Division’s Ability to Manage and Report on Its Enforcement Efforts

An Examination of the Workplace Experiences of Police Patrol Officers: The Role of Race, Sex, and Sexual Orientation

Source: K. D. Hassell, S. G. Brandl, Police Quarterly, Vol. 12, No. 4, 2009
(subscription required)

From the abstract:
Reform efforts in many police departments have diversified the workforce, especially with regard to race, sex, and sexual orientation. Research, however, has demonstrated that the assimilation of these officers has not been problem-free. Using data collected from a large, municipal police department, this article examines the workplace experiences of patrol officers and a potential consequence of those experiences: stress. We find that being female and being a racial/ethnic minority brings with it substantially different experiences on the job compared to male and White officers. Our findings also confirm previous research that workplace climate has an effect on workplace stress.

Civil Rights and the Low-Wage Worker

Source: University of Chicago Legal Forum, Volume 2009
(subscription required)

Articles include:

* Noah D. Zatz – The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments?
* David A. Weisbach – Toward a New Approach to Disability Law
* Maria L. Ontiveros – Labor Union Coalition Challenges to Governmental Action: Defending the Civil Rights of Low-Wage Workers
* Michael Selmi – Unions, Education, and the Future of Low-Wage Workers
* Scott L. Cummings, Steven A. Boutcher – Mobilizing Local Government Law for Low-Wage Workers
* Kathleen Kim – The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers
* Devah Pager, Bruce Western, David Pedulla – Employment Discrimination and the Changing Landscape of Low-Wage Labor Markets
* Leticia M. Saucedo – Three Theories of Discrimination in the Brown Collar Workplace
* Michael A. Stoll – Ex-Offenders, Criminal Background Checks, and the Racial Consequences in the Labor Market
* Ruben J. Garcia- Toward Fundemental Change for the Protection of Low-Wage Workers: The ‘Workers’ Rights are Human Rights’ Debates in the Obama Era
* Benjamin F. Burry – Testing Economic Reality: FLSA and Title VII Protection for Workfare Participants

Race and Sex in Organizing Work: ‘Diversity,’ Discrimination, and Integration

Source: Tristin Green, Emory Law Journal, 2009

From the abstract:
This Article provides the first extended analysis of the conscious use of race and sex in decisions organizing work. It takes the position that race and sex are being used in organizing work-in assigning clients and job tasks, in composing work teams, in staffing committees and outreach groups-and that they are being used pursuant to a “diversity” narrative in ways that are likely to entrench workplace inequality. At the same time, it argues that race and sex could be used in those same decisions to reduce workplace discrimination and to further equality in work. Drawing on a rich body of research in sociology, social psychology, and organizational theory, the Article exposes the risks and possibilities of race and sex in organizing work by focusing on the role that social interactions play in producing and reproducing disadvantage and on the role of organizational and institutional structures in shaping those interactions.

Based on this empirical foundation and on the Supreme Court case law governing the use of race and sex in employment decisions under Title VII of the Civil Rights Act, the Article advances a comprehensive approach to the permissibility of race and sex in decisions organizing work. It argues that Title VII permits the use of race and sex in decisions organizing work to serve the goal of reducing employment discrimination, provided that individual race- and sex-based decisions are part of an employer’s systemic integrative effort. This approach recognizes that decisions organizing work differ from decisions at moments of entry, promotion, and exit in ways that matter to an anti discrimination analysis. They are “softer” in that their benefits and harms are not always immediately discernible, and they can impose costs as well as benefits on women and people of color, even when they are intended to (and do) further anti discrimination goals. The approach to Title VII developed in this Article accounts for these differences and offers a unique opportunity to harness the existing business case for diversity to progress meaningful integration in work and to foster reduced workplace discrimination.