Workplace Fairness

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!

Yesterday (5/21), while the decidedly partisan deals were being cut on tax reform, one Senate committee was hard at work crafting a bipartisan solution that actually benefits workers for a change. The Senate's Health Education Labor & Pensions (HELP) Committee unanimously (!) passed the Genetic Information Nondiscrimination Act (S 1053), a bill that would bar employers and insurance companies from discriminating against people based on their genetic histories. While Democrats and Republicans rarely agree on anything in the Senate these days, this bill passed as a result of a compromise on Tuesday night by nine senators, including the leaders of both parties. (See New York Times article.)

In short, the bill would bar health insurance companies from using genetic information to deny coverage or to set premiums, and would prohibit employers from using such information to hire or fire workers. Neither insurers nor employers could ask for genetic information or require people to take genetic tests. (See Kansas City Star article.) According to a more detailed summary prepared by the HELP Committee, the bill:

Protects against genetic discrimination from health plans and insurance companies:
• Prohibits health insurance plans from denying an individual enrollment in the plan because of individual's or family member's genetic information.
• Prohibits health insurance plans from charging higher premiums to individuals because of individual's or family member's genetic information.
• Prohibits health insurance companies from basing premiums of a group health plan on genetic information of members (including family members) of the plan.

Keeps genetic information private:
• HHS privacy rules govern the use and disclosure of genetic information, except this bill also:
• Bans the use and disclosure of genetic information for insurance underwriting purposes.
• Bans the collection (i.e., requesting, requiring, and purchasing) of genetic information for purposes of underwriting.
• Prohibits insurance companies from collecting genetic information prior to enrollment in any plan.

Structure and Enforcement of Health Provisions:
• Creates a single federal standard for protection of genetic information, which does not exist today.
• Generally builds on the existing law framework under HIPAA. In doing so, this ensures that genetic
information is treated consistently with other health information and individuals, who face
discrimination, whether they are healthy, sick or disabled, have the same rights and remedies.
• The non-discrimination provisions are enforced in same manner as current law, however some
procedural protections are established for group health plan participants including the ability to seek
injunctive relief and to have retroactive reinstatement of coverage for violations. Penalties may be
payable to the individual or levied against the plan.
• The privacy provisions are enforced in the same manner as HIPAA privacy rules through HHS Office
of Civil Rights; with the same civil penalty and criminal enforcement structure.

Protects employees from genetic discrimination at the workplace:
• Prohibits the use of genetic information in employment decisions, such as hiring, firing, job
assignments, and promotions.
• Prevents the acquisition and disclosure of genetic information.
• Applies the same procedures and remedies as other forms of employment discrimination, such as race
under the Civil Rights Act of 1964 and disabilities under the Americans with Disabilities Act of 1990.

Supporters say the bill is long past due, given the advances in technology, including the mapping of the Human Genome and the development of tests that can predict whether a patient is vulnerable to a wide array of genetic disorders like breast cancer and neurological ailments like Huntington's disease. But many people shy from the tests that might save their lives or lead to major scientific advances, fearing the loss of health insurance or a threat to their work. Some companies have even started performing genetic testing on their employees, even in the face of much legal uncertainty about whether such testing is legal. Last year, Burlington Northern Santa Fe Railway paid over $2 million to settle claims with employees who after developing symptoms for carpal tunnel syndrome, were forced to submit to genetic testing. (See Reuters article.) The passage of this legislation would prevent such future abuses, and encourage the lawful use of testing to promote scientific advances and better health, rather than impede employees' employment and advancement.

The bill was first introduced in the Senate in 1997 (1997 version) by Sen. Olympia J. Snowe (R-ME), and then was aimed only at health insurers. While the idea attracted the support of prominent senators such as Sen. Bill Frist (R-TN), now the Republican leader, and Sen. Tom Daschle (D-SD), the Democratic leader, the measure nonetheless languished for several years. Insurers objected to language that they said would prevent them from collecting information that could help them manage the health care of patients with genetic diseases, so that section was removed. While Republicans wanted to limit the bill to health insurers, Democrats wanted to see it expanded to include employers; it now includes employers.

Given the bill's strong bipartisan recommendation from the HELP Committee, it is expected to easily pass the Senate. Its fate is more uncertain in the House of Representatives, however. A similar measure, the Genetic Nondiscrimination in Health Insurance and Employment Act (HR 1910), has been introduced in the House by Rep. Louise McIntosh Slaughter (D-NY), and already has over 140 cosponsors. The bill also has the support of Tommy Thompson, Secretary of Health & Human Services (HHS), who indicated his support in a recent letter to HELP Chair Sen. Judd Gregg (R-NH). It is hoped that the Senate's action yesterday finally represents significant progress, and will lead to swift passage of new protections against genetic discrimination.

More resources on genetic discrimination:

Genetic Alliance Genetic Discrimination Resources
Genetic Information and the Workplace Enacted State Legislation
ACLU Genetic Discrimination in the Workplace Factsheet

As previously reported here, the Senate on May 15 passed its tax package, the Jobs and Growth Tax Relief Reconciliation Act of 2003, which contained one of the reforms that is part of the Civil Rights Tax Relief Act (House version/Senate version). Section 521 of the Senate bill contained a provision eliminating the double taxation of attorneys fees in employment discrimination and civil rights cases. (If this search doesn't work, go to the Thomas web site and search by the bill number, S 1054. The CRTRA provision is sect. 521). This would allow plaintiffs incurring legal fees in discrimination cases to take an "above-the-line" deduction of the legal fees, putting attorneys fees on the same footing as other business expenses that are fully deductible (dollar-for-dollar) from income. For more information on this topic, see WF's fair taxes page.

However, we have recently learned that this provision, along with a large number of other additions and amendments, is not part of the final tax package negotiated with the House of Representatives. While we have not yet seen the final language, the House and Senate are both expected to pass a bill this week that does not contain the attorneys fees provision or any other part of the CRTRA. We are told that there will possibly be future tax reform opportunities later this year, but this measure will not be part of the measure that the President is expected to sign by Memorial Day. For more information on the tax cut that was negotiated, see Washington Post article.

We will continue our efforts to get this bill passed this year, and will work to ensure that the provisions added to larger tax packages include all plaintiffs who have won or settled cases in this tax year (which the Senate provision did not do) and the other pieces of the CRTRA that were not included in the Senate tax package (removing the taxability of emotional distress damages and the additional taxation of lump sum back wage awards.)

Please continue to lobby Congress on this subject: if we are to pass legislation this year, we must keep up the pressure. At the Workplace Fairness Action Center, please respond to one of the action alerts listed below: Stop Taxing Discrimination Awards Unfairly! (for those not currently involved in a civil rights lawsuit); or our second alert especially designed for Current Plaintiffs in Civil Rights Cases.

Our web site's current update page will continue to report new developments as they happen, as will the NELA web site, so please visit often and keep those letters to Congress coming.

I've recently become a fan of the TV show "What Not to Wear." (There's both a British version on BBC America and an American version on TLC--aside from the different hosts and the difference in American and British sensibilities, the two are otherwise the same). The premise is this: well-meaning friends identify someone who needs serious fashion help, and submit surreptiously-taped videotape to the show's producers. Those selected for the show get a considerable sum of money ($5000 US /£2000 GB) to throw out their old clothes and select a whole new wardrobe. They also receive a hair and cosmetic makeover to complete their new look. The conditions of the gift are, however, that they use the money to buy more flattering outfits, chosen according to the fashion rules established by the show's co-hosts. Most find it difficult to break their old fashion habits and follow the new rules, but do make a considerable effort to try new and different types of clothing, in the end generally achieving the dramatic and more flattering results hoped for by the show's hosts and the guest's friends and family.

The other day, when reading a published appellate decision for inclusion in our site's "This Week in the Courts" feature, I devised an idea for a new TV show called "What Not To Do at Work." The premise is similar to "What Not to Wear." Well-meaning family members or coworkers identify a talented worker whose job is in nonetheless in jeopardy due to the choices he or she makes in the workplace. The show selects workers whose talents are valuable and whose jobs are worth saving, who agree to work with the show's co-hosts, an attorney and a job counselor, to determine "what not to do at work." My show would be much less expensive to make, as it wouldn't involve an expensive shopping spree. In fact, employers would save money by not having to face a messy termination, potential lawsuit, or severance pay--in fact, maybe employers should pay me to do the show (like that's going to happen.)

The point is that even the most determined employee advocate (and I place myself firmly in that category, as you would expect of an employee of an organization called Workplace Fairness) occasionally is confounded by certain appellate cases, and can't help but wonder how certain situations escalated so far as to reach a federal appellate case. Admittedly, there are at least two sides (and often more!) to every story, and the version you read in the opinion may not adequately represent the full story, either because certain relevant evidence was inadmissible and thus could not be considered by the court, or because key details took place in private "he said/she said" situations that could only be related by biased parties. But nonetheless, it's possible to hear about certain cases and wonder why friends and family members didn't insist "you've gotta let this one go." (Perhaps they did, and the employee was just too entrenched or stubborn to listen.) These are the kind of cases that make it harder for other workers to be taken seriously, however, so intervention at an early point really does benefit everyone.

The case that triggered my TV production fantasies was Driver v. United States Postal Service. Plaintiff Bill Driver had worked for the U.S. Post Office for 15 years when he was transferred due to a long-running feud he had with another co-worker, Carolyn Markham. Because the transfer caused Driver to lose seniority, he filed a lawsuit against his union for failing to pursue his grievance over the transfer and the Post Office for allegedly violating the collective bargaining agreement. It is clear from the court's description than Bill Driver and Carolyn Markham did not get along. Not at all. Ms. Markham complained about Driver's work and demeanor, bothered Driver with phone calls at home and at work, and accused him of sexual harassment and other misconduct; however, the Postal Service found Ms. Markham's most serious allegations unsupported. Ms. Markham's husband also became part of the feud, coming into the post office, staring at Driver and others for long periods of time, belittling employees, and accusing Driver -- falsely, investigators later found -- of stealing post office equipment. Driver, for his part, complained to the postmaster about Markham's work performance, circulated a petition claiming that work conditions had been "very stressful since the hiring and problems caused by Carolyn Gregory Markham," and according to other employees, found other subtle ways to antagonize Markham.

Various postal supervisors spent considerable amounts of time trying to determine fault, and when that was impossible, tried to no avail to diffuse the conflict. Customers were aware of the conflict and complained. Union officials, who represented both employees as members of the union, tried as well to diffuse the situation. The conflict went on for over three years--years that were very long indeed for Driver and Markham's coworkers, who were constantly surrounded by conflict. Finally, both employees were transferred to different post offices, reasoning that even if only Markham were transferred, Markham's husband was still a customer of the Carthage post office, and would still be able to continue the conflict if Driver remained.

One thing is reasonably clear to me when reviewing this case. If Driver and Markham were not unionized employees with just-cause protections against termination, their employer would never have tolerated their mutual animosity and the office conflict it caused for nearly so long. The union was also exceedingly patient as well: union official James Green testified that he made several trips to the Carthage Post Office to deal with their disagreements, and he spoke with the postmaster "several" times, in the postmaster's words, and perhaps as many as twenty-five. This was in addition to the more than fifty times he claims to have spoken to each of the two employees themselves about their battle. Both parties are also lucky that both the union and postal service management were able to remain neutral as to the conflict between the two employees, for in other similar situations where fault is unclear, there are instances where management nonetheless chooses sides and accordingly disciplines the employee deemed to be more at fault. But the real question is why no one was able to convince Bill Driver to set aside his animosity towards Carolyn Markham and just do his job, and why Driver insisted in litigating his interpersonal dispute all the way to the Sixth Circuit Court of Appeals.

We may never know what was at the heart of this particular conflict; only Driver and Markham do, and their perceptions of the feud at this point are obviously worlds apart. But on "What Not to Do At Work," Driver would be forced to explain to a career counselor and attorney why participating in and maintaining this extreme level of workplace conflict for several years could ever be worth it, personally or professionally. Even after he was transferred, Driver was unhappy with the long commute, but how could a long commute be worse than the level of conflict he was part of each day in the Carthage post office? Carthage employees greatly welcomed the transfers as well, and said that "the office had become so much more pleasant without Driver and Markham." and that Carthage had finally become "a nice place to come to work now."

It really seems that what Driver most wanted was to be officially declared "right," and have Markham officially declared "wrong." It shouldn't take an attorney and a job counselor, however, to get across that while employees have a number of rights in the workplace, there's no "right to be right," especially when your interpersonal conflict makes work simply unbearable for your coworkers. So if you're that supportive friend, family member or coworker, the best thing you can do (until my TV show comes on, that is) is to give that person a reality check, as the likelihood of being declared "right" when you're participating in extreme levels of interpersonal conflict at work is slim indeed. It just may mean the end of a job.

The headline caught my eye: Deciding Who Hurts Most in a Slump. The recent New York Times article, by labor reporter Steven Greenhouse, asks the question whether the current recession is more of a white-collar slump or a blue-collar slump. While there are certainly arguments to be made in favor of both positions, the piece ultimately fails to draw a firm conclusion either way.

The article begins by discussing some of the more unexpected layoffs when compared to previous recessions: "Goldman Sachs dismisses 2,900 workers in 2002 alone, while J.P. Morgan Chase lays off 2,000. Dozens of Silicon Alley start-ups go under while $300,000-a-year tech whizzes are laid off and become sales clerks at apparel shops to support their families." The last statement refers to the story of Jeff Einstein, profiled in the New York Times Magazine article, Commute to Nowhere, who becomes a Gap salesman as a last resort after being unable to find comparable employment to his position as an executive vice president paying $300,000 a year. "Commute to Nowhere" and other articles like it tell the story of a recession that has hit white-collar workers especially hard.

Dr. Irwin Kellner, an economics professor at Hofstra University, echoes the belief that this recession is primarily a white-collar one. He says, "[i]t's true that manufacturers have cut their payroll 39 months in a row, but with the three-and-a-half-year bear market, there have been massive layoffs in New York of brokers, bankers, analysts and other people associated with Wall Street. And of course there's been the dot.com implosion, which has hit Silicon Alley." Kellner looked at nationwide numbers based on employer payroll records to conclude that managerial and professional specialty workers represent 17 percent of the unemployed, nearly double the 9.5 percent level during the 1990-91 recession and up from 13 percent three years ago, before the current slump started.

Other economists disagree, believing that the unemployment of white-collar workers is receiving a disproportionate amount of attention, based on statistics showing that blue-collar workers remain unemployed in a percentage that is proportionately higher than their percentage in the workforce at large. In an analysis conducted by the Community Service Society of New York City, researchers found that 78 percent of New York City's unemployed are workers in manufacturing, construction, service, clerical and sales jobs, while 22 percent of the unemployed are white-collar workers, defined as executive, managerial, professional or technical. (See A Portrait of Inequality: Unemployment and Joblessness in New York City, 2002.) Study author Mark Levitan found that "blue-collar workers are pretty strongly over-represented among the unemployed and that white-collar workers are pretty much underrepresented," based on statistics which indicate that executives and managers make up 14.5 percent of the city's labor force but just 9 percent of the unemployed, while professional and technical workers comprise 20 percent of the work force, but just 13 percent of the unemployed. In contrast, blue-collar workers, defined as those in manufacturing, construction and repair work, represent 20 percent of the labor force but 30 percent of the unemployed.

Why does it matter whether it is a blue-collar recession or a white-collar position? Some theories offered by Greenhouse:

Some advocates have seized on the notion of a blue-collar slump with the aim of persuading policymakers to give more aid to the lower strata of city workers. But other advocates have embraced the idea of a white-collar slump, believing that politicians will grow more concerned knowing that affluent workers have been hit hard.

And some refuse to make that judgment call at all: James P. Brown, who analyzes the New York City's economy for the State Department of Labor, argued that the important issue was not whether the downturn was blue-collar or white-collar, but that the city was in a protracted slump, affecting everyone: "We have unemployment rising," he said. "We have a lot of layoffs in the financial sector, white-collar and clerical support. That leads to less office buildings being built, which hits blue-collar workers because there is less construction going on." James Parrott, chief economist for the Fiscal Policy Institute, a union-backed research group, said both sides are right: "It's both a white-collar recession and a blue-collar recession. It's a severe recession that's touched virtually every occupational and industrial sector."

Another dichotomy not even discussed by Greenhouse which is nonetheless present, is whether male or female workers are most bearing the brunt of this recession. In Commute to Nowhere, the author focuses on the "special" impact of the recession on males.

By the numbers, women have been hit as hard as men, but white-collar men tend to experience unemployment differently, organizational psychologists say. For most women, survival trumps ego; they simply adapt and find some job. For men, grappling with joblessness inevitably entails surrendering an idea of who they are — or who others thought they were.

However, in a piece published in The Nation, author Katha Politt asks "How do we know the economy is in bad shape? Unemployed white male hotshots are back in the news." She goes on to observe, in response to the previous Commute to Nowhere quote:

It's all about masculinity, Mahler informs us. Women have been as likely to lose their jobs as men in the current climate, but "for most women, survival trumps ego; they simply adapt and find some job." I like that "simply." No cover story there.

But wait. Those $10-an-hour jobs, the ones we're supposed to pity the men for having lowered their masculine dignity to take, look kind of familiar, don't they? They're the "good jobs" women on welfare are encouraged to get, the ones that are supposed to transform them from mooching layabouts to respectable, economically self-sufficient, upright and orderly citizens....

What happened to all those homilies about personal responsibility and the dignity of a job--any job--that were trotted out to justify forcing welfare mothers to work off their checks at subminimum wage by cleaning toilets in public parks or scraping chewing gum off subway platforms? Somehow, those sermons don't apply to Mahler's guys, but only to those single mothers of small children who get up at dawn for long bus rides to jobs as waitresses or hotel maids or fast-food workers--jobs that one calls "menial" at the risk of being tarred as an elitist snob by welfare-reform enthusiasts...

Pollitt's point is very well taken--a double standard does appear to be hard at work here.

It also appears that women may have even fewer resources to withstand unemployment. While the men "commuting to nowhere" have 401(k)s and savings accounts to exhaust, severance payments which initially provided some cushion, and working spouses providing some familial support, a new report shows that "the rising jobless rate is often harder on women because their tendency to earn less and work part-time so they can care for family members disqualifies them from unemployment benefits in many states." (See Women's E-News article.) In the study Between a Rock and a Hard Place: Confronting the Failure of State Unemployment Insurance Systems to Serve Women and Working Families, conducted by the National Employment Law Project, researchers found that in 41 states, unemployed men are more likely than unemployed women to receive jobless benefits. Some of the reasons for this difference:

• Almost all states require workers to meet a minimum income eligibility standard in order to receive unemployment benefits. Since women make up 60 percent of low-wage workers, they are less likely than men to meet the income requirements.
• When women do qualify for unemployment benefits, their checks are usually lower than men's because their wages are lower. On average, women earn 76 cents for every dollar earned by men.
• Family duties also contribute to the unemployment-insurance gender gap: women make up 73 percent of all family primary caregivers and also comprise 70 percent of part-time workers. In 33 states, workers are not eligible for unemployment insurance unless they are able to look for full-time jobs, and 30 states lack adequate provisions for workers to collect unemployment when they quit their jobs for family reasons.
• Women are also more likely than men to leave their jobs due to sexual harassment or domestic violence. Though state unemployment programs are designed to pay benefits to people who lose jobs through no fault of their own, women who suffer from violence or harassment do not fit that definition in a vast majority of states. Only 13 states allow workers who quit their jobs due to sexual or other harassment to collect unemployment benefits, and only 18 states have unemployment insurance that covers women who leave their jobs due to domestic violence.

Like Pollitt suggests, the fact that women are unemployed in vast numbers, yet in many cases unable to access even the minimal safety net unemployment insurance provides, is not nearly as newsworthy as the continued unemployment of white male executives.

What will it take, policymakers? If it takes vast amounts of white-collar unemployment for lawmakers to sit up and take notice, then by all means, this is a white-collar recession--certainly, there are no shortage of examples. However, this is not license to forget all the rest of the unemployed: the blue-collar workers whose jobs have been eliminated as a result of technological advances and overseas migration; the single mother struggling to balance family responsibilities and low-wage employment; and the minority workers who cannot get hired due to the combination of a recession and simultaneous decline of diversity and affirmative action work. All those people are out of work too, and just as miserable, if not more so, than the white-collar workers who are shocked, shocked! to find themselves in this position for the first time ever.