Your source for the latest developments in workplace rights and employment law. "Today's Workplace" is the the blog (weblog) written by Paula Brantner, Program Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace. Whether you're an advocate trying to stay on top of the latest case developments and workplace trends, or a worker wanting to follow and understand the issues, keep up to date here!
Friday, May 09, 2003
Yesterday (May 8), the House of Representatives passed a bill known as the Workforce Reinvestment and Adult Education Act (HR 1261). The bill is designed to renew a $6.6 billion employment training program first established in 1998, that was set to expire on Sept. 30. The House passed the bill, largely along party lines, with a vote of 220 to 204. Why is a job training program in these troubled economic times so controversial and partisan? The answer is because of a small provision that bill critics say will promote workplace discrimination.
Section 123 of the bill contains a religious exemption that would allow groups with religious affiliations that receive federal money to limit employment to those sharing their religious views. This provision would allow groups who receive federal money to conduct job training programs to use those funds to hire only those of their religious faith without being liable for religious discrimination claims. This means that an organization affiliated with members of one faith can legally hire only members of its own faith, and refuse to hire members of any other faith (or no faith at all). A Catholic organization could refuse to hire a Jew. A Protestant organization could refuse to hire a Catholic. A Mormon organization could hire only Mormons. All of these organizations could thus legally discriminate on the basis of religion.
Supporters of the provision say the provision is similar to one that already exists in Title VII, the federal antidiscrimination law, and that they were extending to religious groups the same protections offered to other organizations providing social services. (See NY Times article.) For example, Rep. John Shadegg (R-AZ) noted, 'We don't say to Planned Parenthood that if you take money from the government you have to hire somebody who is prolife." (See AP article.) Religious groups ''have a right to hire people who share their values.'' Rep. Marilyn Musgrave, (R-CO) said, "Faith-based organizations cannot be expected to sustain their religious mission without the ability to employ individuals who share in their tenets and practices. It is that very faith that motivates these people to help Americans that are in trouble."
While Title VII does contain an exemption for religious organizations only to engage in religious discrimination by hiring only those who are members of their faith, most religiously-affiliated groups currently receiving federal funding are not created as religious organizations per se, but as separate nonprofit public welfare or educational organizations pursuant to section 501 (c)(3) of the Internal Revenue Code. In fact, many governmental funding programs require section 501(c)(3) status in order for groups to qualify for funding. These separate entities are not entitled to the Title VII exemption for religious organizations, and therefore cannot legally discriminate on the basis of religious affiliation or religious practices. Moreover, in order to receive specific grants, organizations may be required to sign an anti-discrimination pledge in order to receive the funds, even if those organizations might otherwise be entitled to claim the religious exception. So, it is not entirely accurate to say that this proposal is necessary to provide equivalent protections to Title VII, as the provision under consideration would allow religiously-affiliated groups who are not true religious organizations (and therefore not entitled to Title VII's religious exemption) to simultaneously discriminate on the basis of religion and to receive federal funds for doing so.
House Democrats strongly objected to the proposal. The House Democratic leader, Rep. Nancy Pelosi of California, said it was "profoundly unwise to allow the federal government to fund religious discrimination. It is bad for our churches, bad for our work force and bad for our society." (See Pelosi press release.) As Rep. Pelosi also noted, "the legislation will overturn a federal anti-discrimination policy established more than 60 years ago. At that time, President Franklin D. Roosevelt decided to forbid federal contracts from discrimination based on religion, as well as race and national origin. Following in the same tradition, the current job training law prohibits religious discrimination."
Rep. Barney Frank (D-MA) also decried the deletion of antidiscrimination provisions. "Don't take people's tax dollars and say you can only hire your own," he said. Frank has previously objected to other similar attempts to repeal antidiscrimination provisions applicable to groups accepting federal funds. In January 2003, he joined four other House Democrats in challenging the deletion of existing civil rights protections in the new faith-based rule proposed by the Department of Housing and Urban Development. (See Frank press release.) As one of the few openly gay members of Congress, Frank's concerns with these kinds of provisions echo those by many in the gay community that these provisions will enable sexual orientation discrimination to flourish. (See Lambda's Public Funding of Religious Groups.) One oft-cited case, in which a court decision is currently pending, involves that of a Kentucky Baptist children's home which despite receiving two-thirds of its funding from the state, chose to discriminate against one of its employees, youth counselor Alicia Pedreira, when it learned that she was a lesbian. (See Lambda case report.) Many fear many more cases like Pedreira's if provisions like the one currently part of HR 1261 are allowed to stand.
The Labor Department praised the passage of HR 1261. Labor Secretary Elaine Chao called the Workforce Reinvestment and Adult Education Act "a giant leap toward getting them the employment and training services they need to better provide for themselves and their families" (See DOL statement.) According to a recent report, the Labor Department is also more quietly involved in further regulatory changes benefitting religious groups. As originally reported in the Boston Globe, DOL has altered regulations for the nation's leading job training program to allow faith-based organizations to use "sacred literature," such as Bibles, in their federally funded programs. (See Salt Lake Tribune article.) In guidelines published April 4, the Labor Department said the job-training grants "may not be used for instruction in religion or sacred literature, worship, prayer, proselytizing or other inherently religious practices, and that "[t]he services provided under these grants must be secular and nonideological." But in amended guidelines published in the Federal Register on April 18, the words "sacred literature" were removed, along with the sentence saying that the services provided must be secular and nonideological. So if evangelical Christian organizations want to use Bibles in their job training activities, they would be permitted to do so, as this use would not constitute an "inherently religious practice."
President Bush has made the establishment of faith-based initiatives one of the top priorities of his administration. This issue was consistently promoted throughout his presidential campaign, and one of his first acts as President, on January 29, 2001, was to create a new "White House Office for Faith-Based and Community Initiatives" to promote the participation of faith-based and community organizations in federal social service programs. (See Establishment of White House Office of Faith-Based and Community Initiatives, Executive Order 13198.) These two provisions presided over by the Department of Labor are yet two additional ways that this administration continues its efforts to insinuate faith-based provisions and funding for organizations who practice discrimination into federal law.
Additional Resources on Faith-Based Initiatives:
Americans United for the Separation of Church & State
American Civil Liberties Union
Section 123 of the bill contains a religious exemption that would allow groups with religious affiliations that receive federal money to limit employment to those sharing their religious views. This provision would allow groups who receive federal money to conduct job training programs to use those funds to hire only those of their religious faith without being liable for religious discrimination claims. This means that an organization affiliated with members of one faith can legally hire only members of its own faith, and refuse to hire members of any other faith (or no faith at all). A Catholic organization could refuse to hire a Jew. A Protestant organization could refuse to hire a Catholic. A Mormon organization could hire only Mormons. All of these organizations could thus legally discriminate on the basis of religion.
Supporters of the provision say the provision is similar to one that already exists in Title VII, the federal antidiscrimination law, and that they were extending to religious groups the same protections offered to other organizations providing social services. (See NY Times article.) For example, Rep. John Shadegg (R-AZ) noted, 'We don't say to Planned Parenthood that if you take money from the government you have to hire somebody who is prolife." (See AP article.) Religious groups ''have a right to hire people who share their values.'' Rep. Marilyn Musgrave, (R-CO) said, "Faith-based organizations cannot be expected to sustain their religious mission without the ability to employ individuals who share in their tenets and practices. It is that very faith that motivates these people to help Americans that are in trouble."
While Title VII does contain an exemption for religious organizations only to engage in religious discrimination by hiring only those who are members of their faith, most religiously-affiliated groups currently receiving federal funding are not created as religious organizations per se, but as separate nonprofit public welfare or educational organizations pursuant to section 501 (c)(3) of the Internal Revenue Code. In fact, many governmental funding programs require section 501(c)(3) status in order for groups to qualify for funding. These separate entities are not entitled to the Title VII exemption for religious organizations, and therefore cannot legally discriminate on the basis of religious affiliation or religious practices. Moreover, in order to receive specific grants, organizations may be required to sign an anti-discrimination pledge in order to receive the funds, even if those organizations might otherwise be entitled to claim the religious exception. So, it is not entirely accurate to say that this proposal is necessary to provide equivalent protections to Title VII, as the provision under consideration would allow religiously-affiliated groups who are not true religious organizations (and therefore not entitled to Title VII's religious exemption) to simultaneously discriminate on the basis of religion and to receive federal funds for doing so.
House Democrats strongly objected to the proposal. The House Democratic leader, Rep. Nancy Pelosi of California, said it was "profoundly unwise to allow the federal government to fund religious discrimination. It is bad for our churches, bad for our work force and bad for our society." (See Pelosi press release.) As Rep. Pelosi also noted, "the legislation will overturn a federal anti-discrimination policy established more than 60 years ago. At that time, President Franklin D. Roosevelt decided to forbid federal contracts from discrimination based on religion, as well as race and national origin. Following in the same tradition, the current job training law prohibits religious discrimination."
Rep. Barney Frank (D-MA) also decried the deletion of antidiscrimination provisions. "Don't take people's tax dollars and say you can only hire your own," he said. Frank has previously objected to other similar attempts to repeal antidiscrimination provisions applicable to groups accepting federal funds. In January 2003, he joined four other House Democrats in challenging the deletion of existing civil rights protections in the new faith-based rule proposed by the Department of Housing and Urban Development. (See Frank press release.) As one of the few openly gay members of Congress, Frank's concerns with these kinds of provisions echo those by many in the gay community that these provisions will enable sexual orientation discrimination to flourish. (See Lambda's Public Funding of Religious Groups.) One oft-cited case, in which a court decision is currently pending, involves that of a Kentucky Baptist children's home which despite receiving two-thirds of its funding from the state, chose to discriminate against one of its employees, youth counselor Alicia Pedreira, when it learned that she was a lesbian. (See Lambda case report.) Many fear many more cases like Pedreira's if provisions like the one currently part of HR 1261 are allowed to stand.
The Labor Department praised the passage of HR 1261. Labor Secretary Elaine Chao called the Workforce Reinvestment and Adult Education Act "a giant leap toward getting them the employment and training services they need to better provide for themselves and their families" (See DOL statement.) According to a recent report, the Labor Department is also more quietly involved in further regulatory changes benefitting religious groups. As originally reported in the Boston Globe, DOL has altered regulations for the nation's leading job training program to allow faith-based organizations to use "sacred literature," such as Bibles, in their federally funded programs. (See Salt Lake Tribune article.) In guidelines published April 4, the Labor Department said the job-training grants "may not be used for instruction in religion or sacred literature, worship, prayer, proselytizing or other inherently religious practices, and that "[t]he services provided under these grants must be secular and nonideological." But in amended guidelines published in the Federal Register on April 18, the words "sacred literature" were removed, along with the sentence saying that the services provided must be secular and nonideological. So if evangelical Christian organizations want to use Bibles in their job training activities, they would be permitted to do so, as this use would not constitute an "inherently religious practice."
President Bush has made the establishment of faith-based initiatives one of the top priorities of his administration. This issue was consistently promoted throughout his presidential campaign, and one of his first acts as President, on January 29, 2001, was to create a new "White House Office for Faith-Based and Community Initiatives" to promote the participation of faith-based and community organizations in federal social service programs. (See Establishment of White House Office of Faith-Based and Community Initiatives, Executive Order 13198.) These two provisions presided over by the Department of Labor are yet two additional ways that this administration continues its efforts to insinuate faith-based provisions and funding for organizations who practice discrimination into federal law.
Additional Resources on Faith-Based Initiatives:
Americans United for the Separation of Church & State
American Civil Liberties Union
Thursday, May 08, 2003
Here's a story of great personal interest to me that I hope will affect you as well. I (Paula Brantner, WF's Program Director) work from a home office in Kansas City, Missouri, and live less than two miles from some of the areas hit most hard in Sunday's (5/4) deadly tornadoes. (See Tornadoes Rank Among Worst in Bistate History.) Like many other Kansas City residents, I huddled in my basement wondering if my home would be destroyed, and like most, but not all, breathed a sigh of relief once the storms passed and my immediate vicinity remained unscathed. On Sunday night and Monday, like many residents, I watched television reports, read newspaper accounts and drove to see what I could of the damage. (And as I write this on Thursday, the region is under another tornado watch--the third of the week--and a severe thunderstorm warning in some areas. It looks like weather.com and I may remain very good friends for a while.)
The first place I traveled to where massive damage was readily apparent was the nearby town of Riverside, Missouri, located along the Missouri River. There I saw what appeared to have been a body shop or repair facility, but most of the large building housing the operation was gone, and trucks were strewn nearby, many completely overturned and/or demolished. The facility, I later learned, was called America's Body Co., and was a truck-detailing facility employing 41 employees. (See 5/6 KC Star article.) One of America's Body's employees, Operations Manager Steve Bowles, was in the building preparing the weekly schedules when the tornado passed through on Sunday; he was one of the extremely lucky survivors featured in multiple newscasts and newspaper articles, after watching the building disintegrate around him while he huddled next to a concrete barrier (See Witness to Storm Has Reason to Respect Nature's Power.)
On Monday (5/5), the employees of America's Body Co. reported to work, some even wearing the company polo shirts with the ABC insignia. As noted by local columnist Barbara Shelby,
The employees took the news hard. This is a very difficult time for anyone to be employed, and some of the workers affected are sure to have more dark days ahead. Mechanic Dennis Falk has a health condition requiring medicine costing about $6,000 a year and can't go long without insurance. "What am I going to do?" he asks. Mechanic Joe Nichols, who lost the job he'd had for 17 years, said "I'll start looking for a job. I gotta work," but acknowledged "I'm 55 and there's not a demand for older people." No doubt there are others who will face some difficulty finding new jobs, given the current state of the economy.
Who is to say what the company should have done in these circumstances? Admittedly, the company suffered massive losses given the total destruction of the business, although much if not all of the cost may be borne by insurance. However, it seems at a minimum, given that the local office is part of a national enterprise which is still in existence, that more support could be provided for the Kansas City employees, by extending their wages and benefits longer than this week and the end of this month respectively. And while the company is under no legal obligation to rebuild, there would be disaster relief funding and strong community support here for doing so. The last few days have been filled with many instances of neighbors helping one another and the local community supporting those most affected by the quake, so we hope that someone will step up to the plate to help these 41 workers. As Shelby points out, "today's workplace doesn't specialize in happy endings, and theirs was not going to be the exception." But the story has not yet ended, and the publicity drawn to their plight may ultimately result in jobs for all or most of the newly unemployed ABC workers.
The first place I traveled to where massive damage was readily apparent was the nearby town of Riverside, Missouri, located along the Missouri River. There I saw what appeared to have been a body shop or repair facility, but most of the large building housing the operation was gone, and trucks were strewn nearby, many completely overturned and/or demolished. The facility, I later learned, was called America's Body Co., and was a truck-detailing facility employing 41 employees. (See 5/6 KC Star article.) One of America's Body's employees, Operations Manager Steve Bowles, was in the building preparing the weekly schedules when the tornado passed through on Sunday; he was one of the extremely lucky survivors featured in multiple newscasts and newspaper articles, after watching the building disintegrate around him while he huddled next to a concrete barrier (See Witness to Storm Has Reason to Respect Nature's Power.)
On Monday (5/5), the employees of America's Body Co. reported to work, some even wearing the company polo shirts with the ABC insignia. As noted by local columnist Barbara Shelby,
They at least looked sharp for the gawkers, whose ranks included motorists who slowed traffic along Missouri 9 [like myself!] and railroad engineers who gaped, open-mouthed, as their trains rolled by. The workers, clustered at the edge of the company's parking lot, were gawking as much as anyone. The flat-roofed, T-shaped building just north of the Missouri River resembled a scrap heap.(See Tornado Leaves Workers' Jobs in Limbo.) But employees could see the handwriting on the wall:
Some employees talked about their jobs in the past tense. America's Body Co. provided steady work at competitive pay, they said. "Looks pretty good right now," someone mused.On Wednesday, storm survivor Steve Bowles had another most unenviable duty. He had to tell ABC workers that the company would not be reopening, and that their jobs were no more. (See Tornado Takes Jobs ... and Hopes.) Workers were told Tuesday night that they should assemble at the business in the morning. Many wore their uniforms, in case they were going to work. When they arrived, Bowles relayed the unhappy news from company headquarters in Cleveland: The business was gone and it wasn't coming back. Most of the 41 employees were terminated as of Monday, two days ago. Vacation time would be paid to those who had it coming. Medical insurance would expire at the end of this month.
"I thoroughly enjoyed working here," said Amber Flachs, who signed on just a month ago. "What a way to be unemployed."
Mechanics said their main concern was retrieving their tools from the building. That is their ticket to another job.
The employees took the news hard. This is a very difficult time for anyone to be employed, and some of the workers affected are sure to have more dark days ahead. Mechanic Dennis Falk has a health condition requiring medicine costing about $6,000 a year and can't go long without insurance. "What am I going to do?" he asks. Mechanic Joe Nichols, who lost the job he'd had for 17 years, said "I'll start looking for a job. I gotta work," but acknowledged "I'm 55 and there's not a demand for older people." No doubt there are others who will face some difficulty finding new jobs, given the current state of the economy.
Who is to say what the company should have done in these circumstances? Admittedly, the company suffered massive losses given the total destruction of the business, although much if not all of the cost may be borne by insurance. However, it seems at a minimum, given that the local office is part of a national enterprise which is still in existence, that more support could be provided for the Kansas City employees, by extending their wages and benefits longer than this week and the end of this month respectively. And while the company is under no legal obligation to rebuild, there would be disaster relief funding and strong community support here for doing so. The last few days have been filled with many instances of neighbors helping one another and the local community supporting those most affected by the quake, so we hope that someone will step up to the plate to help these 41 workers. As Shelby points out, "today's workplace doesn't specialize in happy endings, and theirs was not going to be the exception." But the story has not yet ended, and the publicity drawn to their plight may ultimately result in jobs for all or most of the newly unemployed ABC workers.
Wednesday, May 07, 2003
Unless you are a state employee in one of 19 states that officially observe the day, you may not be aware that today, May 7, is "State Employee Recognition Day." (I just learned about the event myself.). It comes at a good time, as state legislatures nationwide are forced to address record state deficits, and employees are forced to bear the brunt of their states' economic difficulties by facing massive layoffs and cutbacks, as well as increased workloads in many cases, as more private citizens in need turn to their states for relief.
The annual event, sponsored since 2001 by the National Association of State Personnel Executives (NASPE), is part of Public Service Recognition Week, which runs May 5-11 (so it's not too late to celebrate). Public Service Recognition Week is, according to the organizers, "a time set aside each year to honor the men and women who serve America as federal, state and local government employees." In the wake of the more general observance, State Employee Recognition Day creates a special focus within the existing week-long observance on the work of state employees. Some of the ways that NASPE encourages states to observe the day include: proclamations signed by the governor proclaiming a Public Employee Recognition Day, some type of ceremony recognizing long-serving employees, outstanding employees, and other employee achievements or recognitions.
In Olympia, Washington's state capital, a public event for workers included free food, information booths with goodies and giveaways, a talent contest, awards ceremonies and speeches by a few state officials. (See The Olympian article. Washington Governor Gary Locke told the assembled crowd, "Public service is not the most glamorous or profitable line of work. But it is one of the most important. It's a noble calling -- putting others first and trying to make the world a better place, one service and one need at a time." Washington workers needed some positive reinforcement: as is typical of the situation in many states, current Washington state budget proposals contain fairly bleak scenarios for many state workers, some of whom face layoffs and all of whom are looking at potentially another two years without even a cost-of-living pay increase. Nine-year Washington state employee Clyde Strickland acknowledged that "[t]hese are difficult times, and we all have to share in the burden. But you can focus too much on the negative, and you shouldn't let yourself do that. This is a positive day, instead of a negative one."
Other states holding employee recognition days include: Alabama, Arizona, Colorado, Delaware, Georgia, Idaho, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Nevada, North Carolina, Oklahoma, South Carolina, Virginia, Washington, Wisconsin and Wyoming. Festivities in participating states range from an awards ceremony in Georgia to a barbecue in Idaho to a singing contest in Washington. South Carolina Gov. Mark Sanford (R) has asked local merchants to offer discounts to state employees. (See Stateline.org article.)
Protections against discrimination for state workers have also taken a huge hit over the last several years as the U.S. Supreme Court continues to hack away at antidiscrimination provisions in the name of "federalism." While federalism is a complicated legal issue (see NOW LDEF summary for a basic explanation.), it's very simple to describe its effects on state workers: workers who could formerly sue their states when they were discriminated against in many cases can no longer do so. By a single deciding vote, the Supreme Court has invalidated parts of a number of Congressional enactments, including several designed to protect the civil rights of women, racial and ethnic minorities, the disabled and workers over 40. They have thrown out important sections of the Violence Against Women Act, limited the reach of overtime protections for state employees, weakened gun control and environmental laws, and even diluted patent and trademark protections. Pending before the Supreme Court is the question whether state workers denied family and medical leave can sue their state employers. (See Nevada D.H.R. v. Hibbs for more information about this pending Supreme Court case.) These cases affect all of the estimated two million state workers, who in many geographic areas across the country, work for the region's largest employers, and thus have very few remaining options when encountering on-the-job discrimination.
A day to honor state workers is very admirable. In this day and age, they need all the support they can get.
More resources on federalism:
NSCLC Federal Rights Project
NOW LDEF Project on Federalism: Latest Developments
Community Rights Counsel: "States Rights vs. Civil Rights"
The annual event, sponsored since 2001 by the National Association of State Personnel Executives (NASPE), is part of Public Service Recognition Week, which runs May 5-11 (so it's not too late to celebrate). Public Service Recognition Week is, according to the organizers, "a time set aside each year to honor the men and women who serve America as federal, state and local government employees." In the wake of the more general observance, State Employee Recognition Day creates a special focus within the existing week-long observance on the work of state employees. Some of the ways that NASPE encourages states to observe the day include: proclamations signed by the governor proclaiming a Public Employee Recognition Day, some type of ceremony recognizing long-serving employees, outstanding employees, and other employee achievements or recognitions.
In Olympia, Washington's state capital, a public event for workers included free food, information booths with goodies and giveaways, a talent contest, awards ceremonies and speeches by a few state officials. (See The Olympian article. Washington Governor Gary Locke told the assembled crowd, "Public service is not the most glamorous or profitable line of work. But it is one of the most important. It's a noble calling -- putting others first and trying to make the world a better place, one service and one need at a time." Washington workers needed some positive reinforcement: as is typical of the situation in many states, current Washington state budget proposals contain fairly bleak scenarios for many state workers, some of whom face layoffs and all of whom are looking at potentially another two years without even a cost-of-living pay increase. Nine-year Washington state employee Clyde Strickland acknowledged that "[t]hese are difficult times, and we all have to share in the burden. But you can focus too much on the negative, and you shouldn't let yourself do that. This is a positive day, instead of a negative one."
Other states holding employee recognition days include: Alabama, Arizona, Colorado, Delaware, Georgia, Idaho, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Nevada, North Carolina, Oklahoma, South Carolina, Virginia, Washington, Wisconsin and Wyoming. Festivities in participating states range from an awards ceremony in Georgia to a barbecue in Idaho to a singing contest in Washington. South Carolina Gov. Mark Sanford (R) has asked local merchants to offer discounts to state employees. (See Stateline.org article.)
Protections against discrimination for state workers have also taken a huge hit over the last several years as the U.S. Supreme Court continues to hack away at antidiscrimination provisions in the name of "federalism." While federalism is a complicated legal issue (see NOW LDEF summary for a basic explanation.), it's very simple to describe its effects on state workers: workers who could formerly sue their states when they were discriminated against in many cases can no longer do so. By a single deciding vote, the Supreme Court has invalidated parts of a number of Congressional enactments, including several designed to protect the civil rights of women, racial and ethnic minorities, the disabled and workers over 40. They have thrown out important sections of the Violence Against Women Act, limited the reach of overtime protections for state employees, weakened gun control and environmental laws, and even diluted patent and trademark protections. Pending before the Supreme Court is the question whether state workers denied family and medical leave can sue their state employers. (See Nevada D.H.R. v. Hibbs for more information about this pending Supreme Court case.) These cases affect all of the estimated two million state workers, who in many geographic areas across the country, work for the region's largest employers, and thus have very few remaining options when encountering on-the-job discrimination.
A day to honor state workers is very admirable. In this day and age, they need all the support they can get.
More resources on federalism:
NSCLC Federal Rights Project
NOW LDEF Project on Federalism: Latest Developments
Community Rights Counsel: "States Rights vs. Civil Rights"
Archive
