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Amy Coney Barrett could influence workers’ rights, other economic issues if she joins Supreme Court

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The debate surrounding Amy Coney Barrett’s potential appointment to the Supreme Court has focused largely on the fate of abortion rights. But her tenure could significantly affect workers’ rights as well, experts say. 

While no one can predict how justices will ultimately rule once they have a seat on the nation’s highest court, their past records offer a meaningful window into how they interpret the law. And in cases ranging from harassment on the job to debt collection, Barrett’s opinions have often tilted toward bosses and business.

“Through her record on the Seventh Circuit … her rulings have favored employers as opposed to workers,’’ says Carl Tobias, a professor at the University of Richmond School of Law, referring to the 7th U.S. Circuit Court of Appeals based in Chicago.

Barrett’s appointment could have a particular influence on the most vulnerable in the workplace, says Judy Conti, government affairs director for the National Employment Law Project, a worker advocacy group.

“They’re the final arbiter of whether legislation that is designed to help workers is read expansively or narrowly, and everything about her record tells me that she will view things narrowly,” Conti says. She adds that she worries that the balance of the court would tip further from the needs of people who earn lower wages and who are vulnerable to workplace abuse.

But Noah Finkel, a partner in the labor and employment department of the law firm Seyfarth Shaw, says that while Barrett will likely typically side with the five current conservative members of the bench, she will not push the court in a dramatically more right-wing direction.

“I don’t really see her as all that radical,” he says. “I don’t see her bringing a lot of change in the employment sphere. Obviously, Justice (Ruth Bader) Ginsburg is well known for some opinions that are pro-employee, but many are dissents that she offered. So ultimately what it might mean is there’s a 6-3 decision instead of a 5 to 4.” Get the Coronavirus Watch newsletter in your inbox.

Finkel added that Barrett’s record on the 7th Circuit is “fairly even-handed.” And he noted that it was Justice Neil Gorsuch, a conservative, who wrote the decision that enshrined workplace protections for the LGBT community because he stuck to the letter of the law as defined in the statute. Barrett would do the same.

“While many times that results in a pro-employer decision, it doesn’t necessarily,” Finkel says. “It could also be pro-employee. And she’s demonstrated great respect for jury decisions that are in favor of employees and has not upset those decisions.’’

Workplace discrimination 

In the case of Terry L. Smith vs. the Illinois Department of Transportation, a district court ruled against Smith, an emergency traffic patrol worker, who said he had dealt with a hostile work environment and was fired after he complained about being subjected to racial bigotry on the job.

In an August 2019 ruling upholding the lower court’s decision, Barrett wrote that even though Smith had been called the ‘N’ word by Lloyd Colbert, a supervisor – “an egregious racial epithet” – Smith didn’t prove that the slur caused him another type of distress or increased the stress he was already under.

“That won’t do under Title VII,” Barrett wrote, referring to the section of the Civil Rights Act that prohibits workplace discrimination based on factors like race or religion. “Without evidence that Colbert’s outburst changed Smith’s subjective experience during his last two weeks at the department, a reasonable jury could not resolve the hostile work environment claim in Smith’s favor.”

That ruling is troubling, Conti says.

“For a white woman to say a Black person hearing the ‘n’ word doesn’t change their experience at the workplace,” she says, that it “doesn’t make it subjectively hostile to that person and abusive … shows me that she is deeply out of touch with the experience that certainly Black people, and other people of color experience when they’re the victims of that sort of harassment and verbal violence.”https://tpc.googlesyndication.com/safeframe/1-0-37/html/container.html

‘A hostile work environment’ 

But Barrett has sometimes sided with workers. 

The Equal Employment Opportunity Commission sued on behalf of a one-time Costco employee named Dawn Suppo, who said she endured a hostile work environment when she was harassed by a customer for more than a year.

A district court ruled in favor of Suppo, and Barrett later agreed, writing in a 2018 decision that “a reasonable jury could conclude that” the harassment “was severe or pervasive enough to render Suppo’s work environment hostile.”

Age and the workplace

In a decision that was not unanimous, Barrett joined fellow judges in ruling against a then 58-year-old attorney, Dale Kleber, who accused CareFusion Corporation of age discrimination when Kleber applied for a job that went to a 29-year-old instead.

The “disparate impact” Kleber was alleging applied to employees, not job applicants, the decision said.

“As a judge, her rulings have sided with corporations over people 76% of the time,” says Maggie Jo Buchanan, director of legal progress at the Center for American Progress.

Debt collection 

In the case Paula Casillas v. Madison Avenue Associates Inc., Casillas filed a class-action suit against a company that was trying to collect a debt but had failed to specify that if she wanted to seek verification of what she owed, her request had to be in writing.

Barrett wrote in the June 2019 decision that Casillas did not have grounds to bring that suit based on “a bare procedural violation of the Fair Debt Collection Practices Act.” 

“Casillas caught the defendant in a mistake, but it was not one that hurt her,” Barrett concluded. 

Three of Barrett’s fellow 7th Circuit judges disagreed.

“It is a fair inference from Casillas’s complaint that Madison’s omissions at a minimum put her in imminent risk of losing the many protections in the act that are designed to regulate the debt?collection process as it goes forward,” they wrote in a dissenting opinion.

Barrett’s ruling could affect many others, Buchanan says, making “it more difficult for people to protect themselves against abusive debt collection practices.”  

Health care

In her writings, Barrett has been critical of the reasoning that led Chief Justice John Roberts to cast a pivotal vote preserving the Affordable Care Act. And just two years after the act passed, she signed a petition against the law’s provision stating employers should cover birth control in their insurance offerings.

Now, one week after Election Day, the Affordable Care Act will once again be before the justices, and if appointed to the court, Barrett “might well join a majority to basically strike down what’s left of the ACA,” Tobias says. 

“Not only would this mean people would have their health insurance ripped from them,” Buchanan says, “but insurers could once again charge women more just for being a woman, which could cost women $1 billion more annually than men.”

Unions and dues

The funding of unions may also be among the issues Barrett helps decide if she gains a seat on the nation’s highest court.

In June 2018, the Supreme Court decided 5-4 that public sector workers did not have to pay the fees that fund the work of their collective bargaining units, on the grounds that such mandatory payments violated workers’ First Amendment rights. 

Justice Samuel Alito Jr., who wrote the majority opinion “signaled he’s willing to consider that same rule for private-sector unions,” Conti says, “and I certainly worry about where Judge Barrett would come down on that issue should she be a member of the court.’’ 

This blog originally appeared at USA Today on October 5, 2020. Reprinted with permission.

About the Author: Charisse Jones covers retail and workplace issues for USA Today.


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How Amy Coney Barrett’s Appointment Would Escalate the War on Workers

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The death of Supreme Court Jus­tice Ruth Bad­er Gins­berg has trig­gered a hasty search by Pres­i­dent Don­ald Trump and Sen­ate Repub­li­cans for a jus­tice to fill the emp­ty seat before the Novem­ber pres­i­den­tial election. 

Now Trump has cho­sen Amy Coney Bar­rett, of the two women at the top of his short­list, as his Supreme Court nom­i­na­tion, but she has not yet been con­firmed. Bar­rett, a staunch con­ser­v­a­tive groomed by the Fed­er­al­ist Soci­ety, has been iden­ti­fied as a strong­ly anti-abor­tion nominee.

In employ­ment cas­es that Bar­rett has seen, she has adopt­ed large­ly anti-work­er—and on two occa­sions, racial­ly dis­crim­i­na­to­ry—posi­tions. In 2017, Bar­rett vot­ed not to re-hear U.S. Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Auto­zone, in which a three-judge pan­el ruled in favor of an Auto­zone which had seg­re­gat­ed its stores based on race. In a 2019 case, she ruled against a Black Illi­nois Depart­ment of Trans­porta­tion work­er who had alleged that his fir­ing was racial­ly-moti­vat­ed, giv­en racist ver­bal harass­ment he expe­ri­enced on the job. And this year, Bar­rett ruled that Grub­Hub dri­vers could not file a class action law­suit against their employ­er—a blow to work­ers in the rapid­ly expand­ing gig economy. 

If appoint­ed, Bar­rett would cement the con­ser­v­a­tive major­i­ty on a court that has already demon­strat­ed a strong anti-work­er ten­den­cy. In two major labor cas­es in the last three years the Supreme Court ruled 5–4 to curb union and work­er pro­tec­tions. In Epic Sys­tem Corp. v. Lewis, the Supreme Court deter­mined that employ­ers could con­trac­tu­al­ly oblig­ate work­ers to for­go their right to col­lec­tive­ly sue the employ­er—before the deci­sion, class action law­suits were regard­ed as “pro­tect­ed con­cert­ed activ­i­ty” under Sec­tion 7 of the NLRA. And in Janus v. AFSCME, the court ruled that pub­lic-sec­tor unions could no longer require rep­re­sent­ed work­ers to pay union fees, again vot­ing along con­ser­v­a­tive-lib­er­al lines. 

In These Times spoke to James Gray Pope, a labor activist and legal schol­ar from Rut­gers Uni­ver­si­ty, about the con­ser­v­a­tive court and labor. 

In These Times: What kinds of labor lit­i­ga­tion do you antic­i­pate com­ing before the court? And what are the impli­ca­tions for labor when the court becomes so over­whelm­ing­ly conservative?

James Gray Pope: The big-pic­ture point here is that through­out the whole range of issues that affect the work­ing class, the Supreme Court is going to be in a fun­da­men­tal­ly reac­tionary pos­ture. And we’ve been through a peri­od like that, the so-called Lochn­er era, which refers to the late 19th and ear­ly 20th cen­tu­ry Supreme Court trend of oppos­ing legal reg­u­la­tions around work­ing con­di­tions. The Lochn­er case itself involved a New York max­i­mum hours law that the court struck down because it vio­lat­ed the indi­vid­ual free­dom of con­tract of employ­ers and work­ers to agree that the work­er would work for any num­ber of hours that they want­ed. And the court said it was ille­git­i­mate for a leg­is­la­ture to take into account imbal­ances of pow­er in a con­trac­tu­al rela­tion­ship, unless the pro­tect­ed indi­vid­u­als were some­how inca­pable of tak­ing care of them­selves, like chil­dren. So, that being the basic ide­o­log­i­cal cen­ter-point for jurispru­dence dur­ing that peri­od, the court did a lot of inter­ven­tion in terms of strik­ing down work­er-pro­tec­tive leg­is­la­tion, max­i­mum-hours laws, min­i­mum wage laws, union-rights laws, and laws out­law­ing yel­low dog con­tracts.

And this peri­od today is sim­i­lar. The core ide­ol­o­gy is real­ly the same, but the court can’t imple­ment it with the kind of puri­ty that it could imple­ment it dur­ing the Lochn­er era, because labor stat­ues are sit­ting there. The state­ment of pur­pose of the Nation­al Labor Rela­tions Act (NLRA) talks about inequal­i­ty, bar­gain­ing pow­er, and the need for full free­dom of asso­ci­a­tion of work­ers. So they have to deal with that. 

But you can see it in Epic Sys­tems. You can see right from the begin­ning of the opin­ion, Jus­tice Neil Gor­such is irri­tat­ed at the work­ers there for bring­ing a suit against their employ­er after they had agreed not to. So the idea here is that an indi­vid­ual work­er, you know, sits down with an employ­er and is in an equal rela­tion­ship in nego­ti­at­ing some­thing. Where­as, of course, as Jus­tice Ruth Bad­er Gins­burg says, in foot­note two of her opin­ion, it did­n’t hap­pen that way. The com­pa­ny just sends out an edict say­ing, “You either agree to this or you lose your job.” That’s the present-day ver­sion of the Lochn­er era, indi­vid­ual lib­er­ty of contract. 

In These Times: Beyond cas­es that deal direct­ly with the NLRA, what is the kind of lit­i­ga­tion that could come before the Supreme Court that would affect workers?

James Gray Pope: I don’t think any­thing’s going to be so much dif­fer­ent from the recent direc­tion. It’s just that it’s going to be more intense and con­sis­tent. What’s going to be an issue here in terms of what the court does, I think, is the extent to which Supreme Court Jus­tice John Roberts, who has some sense of his­to­ry and some con­cern about what the his­tor­i­cal ver­dict on his chief jus­tice­ship is going to be, is going to con­strain the court in the labor law area. I think he under­stands the need to con­strain the court in the civ­il rights area, and even some of the oth­er con­ser­v­a­tive jus­tices have issued sur­pris­ing pro-civ­il rights opinions. 

The Supreme Court is like any polit­i­cal body in the sense that you spend polit­i­cal cap­i­tal, and there’s an assess­ment: “Well, do we want to spend our polit­i­cal cap­i­tal on this issue? Are we going to spend it on that issue?” And that’s going to be the big ques­tion now that they’re going to have. If this nom­i­nee gets con­firmed, con­ser­v­a­tives are going to have a very strong major­i­ty. And they’re going to have the pow­er to trans­form the law immense­ly. And so the ques­tion is, where are they going to put their ener­gy? And my fear is not so much for labor law, because labor laws are fun­da­men­tal­ly weak any­way, but more in the area of vot­ing rights and gerrymandering. 

In These Times: How does the Fed­er­al­ist Society’s tex­tu­al­ist or orig­i­nal­ist tra­di­tion affect rul­ings on labor-relat­ed cases? 

James Gray Pope: Orig­i­nal­ism ini­tial­ly was a pure­ly con­ser­v­a­tive phi­los­o­phy where basi­cal­ly you imag­ine set­ting a time machine back and ask­ing the peo­ple who enact­ed the 14th Amend­ment, for exam­ple, “Well, did you intend to give women equal rights to men?” And that was the kind of method­ol­o­gy that’s now referred to by more sophis­ti­cat­ed pro­po­nents of orig­i­nal mean­ing as “orig­i­nal expect­ed appli­ca­tion,” where instead of going after the orig­i­nal mean­ing you’re going back and you’re going after the ways in which peo­ple in that his­tor­i­cal era would have applied the provision. 

One of the big prob­lems with orig­i­nal­ism is, what hap­pens if a body of prece­dent builds up that seems to con­tra­dict your view? In a way, the most dra­mat­ic illus­tra­tion is Supreme Court Jus­tice Clarence Thomas on the scope of the Com­merce Clause. And this relates to labor. Thomas thinks that the word “com­merce” is the Con­gress’s pow­er to reg­u­late inter­state com­merce, the word com­merce just means the buy­ing and sell­ing of things. And so, in his view, the deci­sions that upheld the Wag­n­er Act and the Nation­al Labor Rela­tions Act are wrong from an orig­i­nal­ist point of view.

Well, the prob­lem is that stare deci­sis—a judi­cial pol­i­cy that courts gen­er­al­ly fol­low ear­li­er rul­ings (prece­dent), some­times even when the ear­li­er rul­ings were erro­neous—is total­ly manip­u­la­ble: It’s a mul­ti fac­tor analy­sis that’s eas­i­ly manipulable. 

In These Times: Con­sid­er­ing the fact that labor law in the Unit­ed States is real­ly weak, and work­ers’ pro­tec­tions will like­ly be fur­ther erod­ed in the com­ing years, what are the ways that you might antic­i­pate unions or work­ers orga­ni­za­tions respond­ing to that land­scape, through the law or not?

James Gray Pope: Broad­ly, I would say that pol­i­tics are key. And what’s real­ly cru­cial is to get strong pro­gres­sives into elect­ed office, from which point they can pack the court. So if you want it to go through for­mal legal method mech­a­nisms, that would be the way to do it. And obvi­ous­ly, that’s an area that’s fraught right now with the ger­ry­man­der­ing opin­ion, the vot­er ID rul­ings, and Cit­i­zens Unit­ed guar­an­tee­ing the right of mon­ey to skew the polit­i­cal process. All of those things are going to make it very dif­fi­cult to break through. 

The last time this was a prob­lem was around the Lochn­er era, dur­ing which a lot of peo­ple were denied the right to vote, includ­ing not only African Amer­i­cans in the South, but also poor whites in the South, and women. So the demo­c­ra­t­ic process was skewed then as well. Ulti­mate­ly, what was cru­cial was mass resistance. 

And the strikes in 1934—that was the peri­od where you had gen­er­al strikes and threat­ened gen­er­al strikes in a num­ber of cities, bring­ing about the per­ceived pos­si­bil­i­ty of, if not rev­o­lu­tion, some­thing at least threat­en­ing the order. And that got the NLRA passed. And in my opin­ion, that’s what got the NLRA upheld as con­sti­tu­tion­al along with Pres­i­dent Franklin Delano Roosevelt’s threat to pack the Supreme Court with jus­tices sym­pa­thet­ic to the New Deal.

This blog originally appeared at In These Times on September 28, 2020. Reprinted with permission.

About the Author: Alice Herman is an In These Times Good­man Inves­tiga­tive Fel­low, as well as a writer based in Madi­son, Wis­con­sin, where she works at a restau­rant. She con­tributes reg­u­lar­ly to Isth­mus, Madison’s alt-week­ly, and The Pro­gres­sive magazine.


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Working people’s advocates mourn Justice Ruth Bader Ginsburg

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Supreme Court Justice Ruth Bader Ginsburg was not primarily known for her positions on labor issues, though of course many feminist issues are also workplace ones, and Ginsburg’s anti-discrimination work in the 1970s opened up new possibilities for women. In recent years, Ginsburg wrote powerful dissents to the courts’ conservatives’ support of forced arbitration, in which workers are required to sign away their right to a day in court as a condition of employment. She also got the chance to cast a vote for the rights of pregnant workers.

Advocates for workers stepped up to remember Ginsburg. 

From the AFL-CIO:

America has lost one of the greatest jurists in our nation’s history. Justice Ruth Bader Ginsburg spent her career defending the Constitution and the everyday working people who bring that document to life. She was a consistent, unshakable champion of civil and women’s rights and the freedom to form a union. The AFL-CIO, the labor movement and all those who aspire for dignity on the job are better off because of Justice Ginsburg’s service. Her passing leaves a hole in our collective hearts and a vacancy on the highest court in the land, and you can rest assured that America’s unions will honor Justice Ginsburg’s memory as we fight for our democracy in the days and weeks to come.

From the National Education Association:

Justice Ginsburg was a woman, teacher and tenacious fighter for equal rights for women and girls. She reminded us the only thing that keeps women from being on equal footing with men is to take ‘their foot off our necks.’ Truly the Notorious RBG, she showed us the power of dissent. In the landmark decision of Ledbetter v. Goodyear, she boldly wrote that what many of us know far too well and personally: women can be victims of sex discrimination, and we are far from achieving equal pay for equal work. In the power of the written word, Justice Ginsburg urged Congress to take up the issue.

From Pride at Work:

With the passing of Justice Ginsburg, America lost a champion for LGBTQ people, workers, women, and the ideals of equality and justice. Justice Ginsburg’s legal brilliance and work ethic made her more than just a popular hero for so many nationwide, it made her a force to be reckoned with.

From the American Federation of Teachers:

Justice Ginsburg is an icon. She leaves behind a legacy as a brilliant, hardworking jurist and a trailblazing feminist; her loss is incalculable. Long before she became notorious, she broke barriers most never even dreamed to approach. Her unfailing sense of justice reminded us of its awesome power, and her unbending sense of duty reminded us to remain committed to protecting our democracy, our Constitution and the rule of law. But it was her personal courage and resilience, especially in the face of illness, that reminded us just how much strength one single person can have.

This blog originally appeared at Daily Kos on September 19, 2020. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributing editor since December 2006. Full-time staff since 2011, currently assistant managing editor.


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LGBTQ groups vow to extend landmark court ruling beyond workplace

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Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision.

The Supreme Court’s landmark ruling that federal anti-discrimination law extends to gay and transgender workers could usher in a new era of expanded rights for LGBTQ people in areas from housing to health care.

While the high court’s ruling Monday only applies directly to the workplace discrimination protections provided under Title VII of the 1964 Civil Rights Act, advocacy groups are vowing to extend to myriad other laws the justices’ view that discrimination “based on sex” includes sexual orientation or gender identity.

Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision. “Over 100 federal statutes prohibit discrimination because of sex,” wrote Alito.

There are still no explicit federal legal protections for gay and transgender individuals in health care, credit and education, among other areas. Advocates are hoping the ruling will bolster efforts to win such protection in the courts or in Congress. Gabriel Arkles, senior staff attorney with the ACLU’s LGBT & HIV Project, said he expects hundreds of cases to be filed in the wake of the ruling.

“There’s so many other aspects of our lives where there are no federal protections, or where those protections are being challenged,” said Alphonso David, president of the Human Rights Campaign. “We have to recognize that Title VII is a great piece of legislation, but it does not provide comprehensive protections.”

The Supreme Court ruling affects employment, “the area of law where Congress has prohibited sex discrimination,” said Sarah Warbelow, legal director at the HRC, during a press call Monday. “We will fight to ensure that it extends to every sex non-discrimination statute in federal and state law.”

Conservative Justice Neil Gorsuch addressed this concern in the majority opinion, writing that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”

“Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these,” he added.

The ACLU says it already plans to seize on the high court ruling to challenge the Trump administration’s move on Friday to formally roll back an Obama-era policy that banned health care providers from discriminating against transgender patients.

“The administration cannot rewrite the statute,” said Sean Young, legal director of the ACLU of Georgia, “and they cannot overrule the Supreme Court. So today’s decision directly undermines any of the administration’s attempts to eviscerate protections for LGBT people when it comes to health care.”

The Supreme Court ruling is a matter of statutory interpretation, meaning that Congress still has the ability to change the law.

“Not all of the provisions of the Act include sex as a protected characteristic, most notably, it’s missing from public accommodations, and from a guaranteed across the board non-discrimination with respect to federally funded programs,” said Warbelow. “Congress must act to provide those protections.”

Gay and transgender people have reported widespread harassment due to their orientation or gender identity.

At least 1 in 5 said they have experienced discrimination when applying for jobs, in their compensation, when being considered for promotion, or when trying to rent a room or apartment or buy a house, according to a 2017 survey conducted by National Public Radio and the Harvard School of Public Health.

A 2016 survey of nearly 28,000 people conducted by the National Center for Transgender Equality also found that 26 percent of trans people lost a job due to bias and that 50 percent were harassed on the job. Some 20 percent of respondents said they were evicted or denied housing, and 78 percent of trans students said they were harassed or assaulted.

Of the more than 23,000 Title VII sex-based discrimination charges the Equal Employment Opportunity Commission received in fiscal 2019, 1,868 were related to LGBTQ discrimination, according to the agency’s data.

In May 2019, the Democratic-controlled House passed the Equality Act, which would codify anti-discrimination protections based on sexual orientation and gender identity in housing, employment, credit and federally funded programs, among other areas.

But the bill hasn’t been taken up by the Republican-majority Senate and is not likely to go far, especially during an election year.

Absent a new law passed by Congress, attorneys say discrimination in other areas outside the workplace will have to be litigated in court.

“These issues are out there.” said Jim Paretti, a former chief of staff to the acting chair of the EEOC during the Trump administration. “They will continue to percolate,” he said, saying that questions around other statutes that use the same language as Title VII will have to be worked out in the courts.

This blog originally appeared at Politico on June 16, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.


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In massive win for equality, Supreme Court rules no one can be fired for being gay or transgender

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In a stunning 6-3 decision written by Justice Neil Gorsuch (!), the Supreme Court has ruled that LGBTQ people cannot be discriminated against on the basis of their sexual orientation or gender identity. It is now against the law to be fired from your job for being LGBTQ. Gorsuch wrote the majority opinion, with Chief Justice John Roberts joining: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Title VII bars discrimination on the basis of “race, color, national origin, sex, and religion,” but the original statute did not define what “sex” meant. The Trump administration argued that the original intent of the drafters of the Civil Rights Act of 1964 would not have included LGBTQ workers, but was focused specifically on women and meant only cis women. Gorsuch doesn’t let them pass it off that way—he acts like an actual textualist. “Only the written word is the law,” he wrote, “and all persons are entitled to its benefit.”

This blog originally appeared at Daily Kos on June 15, 2020. Reprinted with permission.

About the Author: Joan McCarter is a Senior Political Writer for Daily Kos.


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Get Ready for Janus 2.0, Which Could Devastate Labor More Than the First

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On June 27, 2018, the Supreme Court issued its ruling in Janus v. AFSCME, which radically changed established constitutional interpretation to make it a violation of the First Amendment for public-sector unions to collect fair-share fees. These fees are equivalent to the portion of union dues that are germane to collective bargaining. The plaintiff in the case was Mark Janus, a child support specialist with the Illinois Department of Healthcare and Family Services, who objected to paying $23.48 in fair-share fees per pay period to AFSCME, the union that represented him and his coworkers. Backing Janus was a coterie of anti-union groups, headed by the National Right to Work Legal Defense Foundation, which has spent decades attacking labor. 

Despite this stinging loss before the Supreme Court, many unions had prepared for this possibility, and laid the groundwork to help mitigate the damages. The result was that—at least in the short term—the case that was intended to serve as a major body blow to labor appears to have had a rejuvenating effect.

For many, it seemed like the Janus case was over. Mark Janus, the lead plaintiff, had left his state job and went to work for the anti-union Liberty Justice Center, which helped represent Janus before the Supreme Court and whose entire “Workers’ Rights” platform consists of workers suing unions to recover fair-share fees. Janus was gone, fair-share fees in the public sector were gone, and unions became better at membership engagement such that they didn’t see the “free-rider” tidal wave that many had feared.

Now, Mark Janus is back before the Supreme Court, asking to make their 2018 decision retroactive, and force public sector unions to refund much of the fair-share fees they collected in recent years. If the Court agrees to hear the case and sides with Janus again, it could cost organized labor many millions of dollars.

Janus’s case is being brought under the Civil Rights Act of 1871—or “Section 1983” as it is more commonly called—which allows people to sue state actors for constitutional violations. The typical subject of such lawsuits includes such issues as excessive use of force by police, cruel and unusual punishment towards prisoners and violations of public employees’ First Amendment rights. In rare instances, usually when a private creditor uses state procedures to attach a debtor’s assets in violation of due process, a private actor can be found to be engaging in state action and sued under Section 1983 for violating constitutional rights. Therefore, AFSCME and other public sector unions could be sued for collecting fair-share fees under state law, which a 5-4 majority of the Supreme Court found in the 2018 Janus case was a violation of the First Amendment.

However, what makes this second Janus case truly bizarre is that the Supreme Court has stated, and every court has agreed, that there is a good-faith defense for private parties being sued under Section 1983.

Sheldon Nahmod, Emeritus Professor at Chicago-Kent College of Law and an expert on Section 1983, says that the good faith defense grew out of the simple “matter of public policy that private parties follow the law rather than act contrary to it.” With regard to public-sector fair-share fees, the union relied on a decades-old state law that was passed pursuant to a 1977 Supreme Court decision that treated fair-share fees as constitutional. Janus is arguing here that Justice Alito and several other conservative Justices voiced their discomfort with public-sector fair-share fees over the past few years, so unions should have been on notice that the law was problematic. But the Seventh Circuit Court of Appeals in this case rebuked this idea, stating, “The Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future.”

The trial court judge went even further, acknowledging the empty Supreme Court seat left by Sen. Mitch McConnell’s refusal to call a Senate vote for President Obama’s nominee Merrick Garland, stating, “had the general and/or presidential election resulted differently, the composition of the Supreme Court that decided the case may well have been different, leading to a different result.” If ever there was a case for arguing that a party acted in good faith in following the widely accepted law, this was it.

Another strange facet of Janus’s petition to the Supreme Court is that, though it claims to be attacking the good faith defense available to private parties under Section 1983, it does not cite any articles about the good faith defense. Instead, the only articles it cites concern the very different and problematic issue of qualified immunity, which is available to state actors.

Qualified immunity was created by the courts to protect public actors from liability unless they violated “clearly established” statutory or constitutional rights that a reasonable person would have known. However, over the years, the courts interpreted the doctrine so broadly that it has become extremely difficult to win a lawsuit against police for extreme misconduct.

A recent investigation by Reuters describes in grizzly detail how police killed a confused hospital patient with pneumonia who refused to return to his room, a man who suffered brain damage after being smashed to the ground by police, a bicyclist who was shot 17 times in a case of mistaken identity, and many more where qualified immunity protected unlawful action by police.

For years, there has been growing anger at the doctrine of qualified immunity because of the ways that it shields police officers, and since the murder of George Floyd by Minneapolis police, that drumbeat for reversal or reform of the doctrine has grown louder. Several Justices have called for a reexamination of qualified immunity and there are currently eight qualified immunity cases pending before the Court. A bill has been introduced by a broad bipartisan group in the House to eliminate qualified immunity. Now, it appears that Janus is trying to use the important issue of qualified immunity reform to get rid of the relatively rare good faith defense that unions are relying on.

On June 18, the Supreme Court is scheduled to consider whether it will accept the second Janus case for review. Labor law professor Charlotte Garden of the Seattle University School of Law says, “I don’t think there’s any reason for the Court to take this case. The lower courts have been unanimous in holding that there is a good faith defense. Absent a circuit split, the Court would typically take this case only if it presented an especially important question (such as the constitutionality of a major federal program)—and I just don’t see a question that rises to that level here.”

However, Justice Alito writing for the majority in the original Janus case, stated “It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.” This sentiment was echoed by one of the judges on the 7th Circuit panel who heard this case. The conservative majority of Justices has shown that it is willing to accept cases where there is no split in the circuits and that it’s willing to overturn established precedent if the result is to harm labor.

Janus II may represent such a case. But, as Professor Garden stated concerning the “windfall” that unions are alleged to have received, “if we really wanted to unwind union agency fees, we’d also have to think about what represented workers got in exchange for their agency fees. Suppose Janus’s union (backed by agency fees) negotiated pay raises, or better insurance benefits, etc., and then enforced those contractual provisions through a grievance process. Assuming the union negotiated pay/benefits/etc. that were worth more than the amount of union dues, then, shouldn’t we say that by Janus’s logic, Janus received a windfall, or at least got the benefits he paid for with his agency fees?”

This blog originally appeared at In These Times on June 11, 2020. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.


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Supreme Court stacks the deck in favor of businesses, again

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The Trump Supreme Court sided with business over workers yet again, in a case that got the four liberal justices so exercised that they each wrote their own dissent. Justice Ruth Bader Ginsburg even noted that she wrote her dissent to “emphasize once again how treacherously the court has strayed from the principle that arbitration is a matter of consent, not coercion.”

In Lamps Plus v. Varela (note the name if you’re in the market for a lamp), Frank Varela, one of 1,300 workers whose tax information had been compromised thanks to his employer, Lamps Plus, tried to sue, only to be tripped up by a mandatory arbitration clause in his contract. But the U.S. Court of Appeals for the 9th Circuit did say that class arbitration would be allowed. The Trump-Bush wing of the court disagreed, because class arbitration would be inconvenient for businesses, and they are all about stacking the deck in favor of employers.

In the primary dissent, Justice Elena Kagan noted that Varela’s contract called for “any and all disputes, claims, or controversies” to go to arbitration without explicitly rejecting class arbitration, and that California law requires ambiguity in a contract to go against the party that wrote the contract. “Lamps Plus drafted the agreement. It therefore had the opportunity to insert language expressly barring class arbitration if that was what it wanted. It did not do so,” Kagan wrote. But Republican justices care neither about California law nor about workers’ rights when an employer’s wishes are at stake.

This blog was originally published at Daily Kos on April 27, 2019. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

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Should Workers Be Punished for Being Employed By Subcontractors? This Legal Battle Will Decide.

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Over the last few decades, a growing number of American workers have effectively lost many of their labor rights because of the way their bosses structure the employment relationship. These workers are contractors who are hired by one company but work for another: the Hyatt Hotel housekeepers who actually work for Hospitality Staffing Solutions, the Microsoft tech workers who actually work for a temp agency called Lionbridge Technologies, and the Amazon warehouse workers who actually work for Integrity Staffing Solutions. These workers often perform the same work at the same place as other workers, frequently on a permanent basis.

But because their employers have entered into complicated contracts with each other, these workers have been unable to exercise their labor rights. If the workers can only bargain with the staffing company and not the lead company where they actually work, they are negotiating with the party that often has no power to change the terms of their employment. For that reason, workers have fought for a more inclusive definition under the National Labor Relations Act of what constitutes an employer—and when two employers are joint employers.

Recently, the Washington, D.C. Circuit Court of Appeals issued a major ruling that was a win for workers, and now this issue seems destined for the Supreme Court. As the legal battle heats up, workers everywhere should be paying close attention, since their livelihoods—or unions—could be affected.

Contracting expands as workers’ rights shrink

Under a traditional employment relationship, workers have one employer who has the power to hire, fire, pay, supervise and direct them. If such workers form a union, the law requires the employer to recognize the union and bargain in good faith. (Employers routinely violate the law and suppress workers’ labor rights, but workers at least have a theoretical path to collective bargaining.) Workers also have the right to picket and engage in other disruptive activities when they have a labor dispute with that employer.

However, there is a growing group of blue-collar, white-collar and service workers who find themselves working for two employers, either through contractors or temporary help firms. “In 1960 most hotel employees worked for the brand that appeared over the hotel entrance,” David Weil, former adminstrator for the Department of Labor Wage and Hour, explains in his 2014 book, The Fissured Workplace. “Today, more than 80 percent of staff are employed by hotel franchisees and supervised by separate management companies that bear no relation to the brand name of the property where they work.”

For those who work in a fissured workplace, organizing a union can be especially tough. The contracting firms have little power to raise wages or change working conditions, unless the company that controls the worksite agrees. Therefore, workers need both employers at the bargaining table.

Starting in 1984, the National Labor Relations Board (NLRB) began imposing difficult requirements to show that two employers are joint employers. By 2002, the NLRB was requiring that it be shown that the putative joint employer exercises direct and immediate control over employment matters. This meant that even when a company hired workers through a staffing agency to work at its site, chose the number of workers, gave specific work assignments and directions, and exercised supervision, it was not found to be a joint employer. Workers could, of course, form a union to negotiate with the staffing agencies, but those agencies usually have little room to maneuver alone.

Obama’s labor board

Recognizing this growing problem, in 2015 the NLRB changed the test to determine when two employers constitute a joint employer in its landmark Browning-Ferris Industries decision. No longer would workers have to show that both employers exercise direct control over them. Instead the NLRB recognized how power actually functions in the workplace and ruled that it would only require a showing that an employer had indirect or reserved control over the workers.

In its ruling, the NLRB recognized that for 30 years its approach to continuously adding requirements was moving in exactly the opposite direction from what was required: “As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded.” And indeed, according to data from the Bureau of Labor Statistics’ most recent Contingent Worker Survey, there are approximately 2.3 million workers who work for contractors or temporary help agencies, and this figure captures only a portion of those that one could reasonably find have joint employers.

The NLRB’s new Browning-Ferris test looked at whether two employers actually share or codetermine employment matters by also considering reserved or indirect control. Therefore, an employer could no longer avoid its liabilities and obligations by structuring its power in an indirect fashion. James Hoffa, the president of the Teamsters, the union that represented Browning-Ferris workers, said at the time, “This decision will make a tremendous difference for workers’ rights on the job. Employers will no longer be able to shift responsibility for their workers and hide behind loopholes to prevent workers from organizing or engaging in collective bargaining.”

Similarly, employer-side attorneys recognized the scope of the decision. In their dissent in Browning-Ferris, NLRB Members Philip Miscimarra and Harry Johnson wrote that the decision was “the most sweeping of recent major decisions. Attorney Marshal B. Babson who represented the U.S. Chamber of Commerce in its opposition to this case, said at the time, “The decision today could be one of the more significant by the NLRB in the last 35 years. Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

The right strikes back

Reaction among corporate groups and Republicans was immediate, severe and comprehensive. Within two weeks, both House and Senate Republicans had introduced the Protecting Local Business Opportunity Act, which would amend the National Labor Relations Act to define joint employers as those who “directly, actually and immediately” exercise control. In 2017, the House passed its version of the bill in a vote that fell largely along party lines.

Once the NLRB came under Republican control and was presented with a case that touched upon the joint employer question, the NLRB, in the Hy-Brand case, overruled Browning-Ferris. This decision was so potentially damaging to workers that former NLRB Member and current executive director of the Labor and Worklife Program at Harvard Law School, Sharon Block, wrote that the decision constituted part of a “December Massacre.” 

But then, on February 9, 2018, the NLRB Inspector General issued a memorandum that determined that there was a “serious and flagrant problem and/or deficiency” in the NLRB’s deliberations surrounding the Hy-Brand case. Specifically, the memorandum found that Hy-Brand was effectively a “do-over for the Browning-Ferris parties,” and since NLRB Member William Emanuel’s former law firm represented Browning-Ferris in that case, he should have recused himself. Following this memorandum and Emanuel’s recusal, the NLRB unanimously vacated its Hy-Brand decision that overruled Browning-Ferris—and announced that Browning-Ferris was still good law.

The fight heats up

The Republican-controlled NLRB, intent on overturning the Browning-Ferris decision, decided to pass a rule redefining joint employers under its rarely used administrative rule-making authority. But since administrative rules require the agency to go through a series of steps and collect public comments, this rule will likely take years to become final. 

On December 28, 2018, the Washington, D.C. Circuit Court of Appeals, which, according to The New York Times, is “widely views as second in importance only to the Supreme Court,” released its long-awaited decision on the Browning-Ferris appeal. The Court issued an important and unqualified win for workers in affirming the NLRB’s 2015 Browning-Ferris decision, agreeing with the NLRB that its new Browning-Ferris test was firmly grounded in the common law. Using the unfortunate legal language of “master-servant,” the Court explained that “retained but unexercised control has long been a relevant factor in assessing the common-law master-servant relationship.”

The court fully affirmed the NLRB’s new Browning-Ferris joint employer test, but it sent the case back to the NLRB, because the NLRB did not fully apply its new test to all the facts of the particular case. This means that the NLRB must use its Browning-Ferris test going forward, which is good news for labor rights. 

The case is now headed to the NLRB, but that is unlikely to be the end of the road for this major issue. It is quite possible that this matter will eventually end up before the U.S. Supreme Court, and this should be cause for some concern among workers. The Supreme Court currently has an ultra-conservative majority, which has shown no hesitation in rewriting decades of law in support of employers in labor cases. As recently as 2014, the conservative majority of the Supreme Court engaged in a bizarre misreading of the definition of joint employer in order to deny labor rights to home healthcare workers. With the addition of Brett Kavanaugh, the Court has become more conservative since that time. Labor may have won this latest battle, but the fight is far from over.

This article was originally published at ThinkProgress on January 10, 2019. Reprinted with permission. 

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.


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The Trucking Industry Is a “Sweatshop on Wheels.” Here’s How Kavanaugh Could Make It Worse.

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While the nation was focused on Brett Kavanaugh’s contentious confirmation process, the Supreme Court began hearing arguments in New Prime Inc. v. Oliveira, a major labor case that could impact thousands of workers throughout the country. The Court will determine whether workers in the hyper-exploitive trucking industry can sue their bosses for breaking the law. Kavanaugh wasn’t present for oral arguments and new Justices often recuse themselves from such cases, but there’s nothing but an unwritten rule preventing him from casting a vote. If Kavanaugh’s vote were to prove decisive, he could choose to participate or the justices could decide to re-hear the case.

New Prime (Prime) is a transportation outfit that runs an interstate trucking company. Dominic Oliveira claims that he participated in Prime’s apprenticeship program and was told by the company that he’d make more money as an independent contractor than he would as an actual employee. Oliveira signed an Independent Contractor Operating Agreement which allowed him the flexibility to determine his own schedule and work for companies besides Prime. However, Oliveira claims that Prime had a “pervasive involvement” in his work which prevented him from working for other places, despite the fact the company wasn’t supposed to. Oliveira filed suit against Prime in district court, alleging that the company failed to pay him minimum wage, a clear violation of the Fair Labor Standards Act.

Prime’s contract with Oliveira contained an arbitration clause that hypothetically required the two parties to resolve any work disputes through an arbitration process, as opposed to a lawsuit. Prime filed a motion to compel arbitration and dodge the legal action, but Oliveira opposed the action, pointing out that the contract is exempted by the Federal Arbitration Act (FAA) which makes arbitration agreements enforceable. The FAA exempts “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.” In 2001, the Supreme Court determined that his exemption applied to “contracts of employment of transportation workers.”

The Supreme Court will now determine whether Oliveira should have been classified as a contractor, and therefore will be forced to settle for arbitration, or whether he will be allowed to take Prime to court. “If the Supreme Court rules for the bosses in this case, it will send a clear message: that big companies that break the law get to decide if and when the rules apply to them,” Ceilidh Gao, a staff attorney who filed an amicus brief in the case with the National Employment Law Project, said in a statement. “If the Supreme Court rules against the workers, it would create further incentives for companies to misclassify their employees as independent contractors. Such a perverse outcome would be an affront to the basic fairness American workers demand.”

The case shines a light on an industry that has become tremendously exploitative over the last 40 years. In the 1960s and 70s, trucking was a lucrative profession with regular hours—drivers were taking home around $100,000 a year in today’s dollars. But things have changed drastically since the business was deregulated in 1980. In his 2000 book Sweatshop on Wheels: Winners and Losers in Trucking Deregulation, analyst Michael H. Belzer sounded an alarm, writing that truckers’ median earnings had dropped 30 percent. Eighteen years later, things have gotten even worse: After factoring inflation, the wages for truckers have fallen since 2003.

Deregulation also had the predictable effect of weakening the industry’s unions and increasing the number of “independent contractors” like Oliveira who end up owing their company money as a result of the associated expenses. “In the modern unregulated industry, the solution has been to shift the risks of truck ownership to the workers themselves,” explained Steve Viscelli, economic sociologist and author of The Big Rig Trucking and the Decline of the American Dream, in a 2016 interview. “Companies insulate themselves from the costs of market [and fuel-price] volatility by getting the workers themselves to buy the trucks and pay the operating expenses. That’s what they’ve achieved with these independent contractors.”

Oliveria’s case is just one of three arbitration cases that the Court is scheduled to hear this term, with Kavanaugh recently added to the bench. Typically, Justices don’t cast a vote in cases where they weren’t present for oral arguments. Most recently Justice Gorsuch recused himself from cases that had been heard before he was confirmed. However, there’s nothing compelling Kavanaugh from participating and he could weigh in if he wanted to.

Kavanaugh’s judicial career indicates that he’ll consistently side with business over workers. In 2008, he dissented from a ruling that established undocumented workers as employees who can start a union. In 2016, he wrote for the majority in a case that overruled an NLRB decision which allowed Verizon workers to adorn their vehicles with pro-union messages. Most infamously he sided with SeaWorld after one of its trainers was killed by a whale, criticizing calls to sanction the company and impose regulations on it.

The case is also being heard amid dozens of gig economy lawsuits filed by workers fighting to be classified as employees. One recent suit showed that Uber saves $500 million a year by classifying drivers as independent contractors in California. Early analysis of New Prime Inc. v. Oliveira indicates that the Court might be more skeptical of the employer’s claims than initially expected, but it remains to be seen whether a surprising outcome can be won on a Supreme Court that will now presumably remain conservative for decades to come.

Clarification: An earlier version of this piece implied Kavanaugh would definitely be voting in this case. Although that is a possibility, Justices often recuse themselves from cases in which they weren’t present for oral arguments.

This blog was originally published at In These Times on October 10th, 2018. Reprinted with permission.

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Kavanaugh Is Terrible on Workers’ Rights—And That’s Anti-Woman, Too

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On October 6, the Senate voted to confirm Brett Kavanaugh, the Republican federal appellate judge accused by multiple women of sexual assault, to the Supreme Court.

In light of the allegations—which include attempted rape—the opposition to Kavanaugh has been dominated by concerns about the impact he will have on the lives of women. In addition to his alleged history of physical and sexual violence, protesters fear what Kavanaugh’s “radical” conservatism may augur for reproductive-rights victories, namely Roe v. Wade, the landmark 1973 decision that expanded the legal right to abortion in the United States. Yet these don’t constitute the only perils of the judge’s appointment: Kavanaugh bears a pattern of anti-worker adjudication—a stance that inordinately harms women.

Kavanaugh’s catalog of judicial decisions indicates a clear predilection for the capitalist class. In 2008’s Agri Processor Co. Inc. v. National Labor Relations Board, Kavanaugh argued that a kosher-meat wholesaler, Agri Processor Co., wasn’t required to bargain with an employee union. Before the suit, the United Food and Commercial Workers Union, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) after Agri Processor Co. refused to bargain. Kavanaugh upheld the company’s claim that the workers who had voted in the union election were undocumented workers and therefore didn’t qualify as “employees” protected by the National Labor Relations Act—and thus were prevented from unionizing, so their votes in the union election were invalid.

There are numerous other examples of Kavanaugh issuing anti-worker rulings. In 2015, Kavanaugh ruled in favor of a Las Vegas casino that requested that police officers issue criminal citations against demonstrators protesting the lack of collective-bargaining rights of casino employees. And in 2013, he argued that a Black woman, LaTaunya Howard, couldn’t pursue a race discrimination suit after being fired from her position at the Office of the Chief Administrative Officer of the U.S. House of Representatives for “insubordination.” Howard alleged that her termination was both racially motivated and in response to complaints she’d made about racial pay disparities at her place of work. What’s more, Kavanaugh helped thwart an NLRB order that would have required the Trump Plaza Hotel and Casino to bargain with the United Auto Workers.

This anti-labor positioning is particularly injurious to women, who benefit disproportionately from union membership. The Institute for Women’s Policy Research found that women covered by a union contract earn an average of 30.9 percent more per week that women with non-union jobs, compared to men’s increase of 20.6 percent. Correspondingly, the wage gap between men and women workers is more narrow among those with union representation than those without it. The Economic Policy Institute reported last year that female union workers earn 94 cents for every dollar their male peers earn, versus 74 cents on the dollar without union safeguards.

Kavanaugh also has a history of jeopardizing the work benefits that inform earnings. Workers with union representation enjoy greater access to family, medical and maternity leave—an advantage for women, who are more often tasked with child and elder care than men, and often lose wages as a result. Unionized women are much more likely to have at least partially paid health insurance than those who aren’t unionized: Notably, 73.1 percent of women in union jobs have employer- or union-provided health insurance, an advantage only 49.1 percent of their non-union counterparts receive. It’s virtually the same case for retirement: The ratio of unionized to non-unionized women with employer-sponsored plans is 74.4 percent to 41.8 percent.

If unions and earnings among women are to be examined, it’s necessary to consider the huge impact a figure like Kavanaugh could have on Black women. Though the unionized workforce has decreased precipitously over the last several decades, Black women have traditionally had a higher rate of unionization, particularly in public-sector jobs, than women of other racial and ethnic groups. As of 2013, Black women outnumbered white, Latinx and Asian-American women in terms of unionization. And by 2015, unionized Black women outnumbered unionized Black men.

This is essential for a demographic that, research shows, would have to work an additional seven months to receive the same pay as white men, despite working more hours than white women. (Black women are also paid less than white men for the same job, independent of education level.)

The same urgency for protections applies to Latinx women, who are now the least likely of all women to have union representation. Statistics show that they’re in the most dire need of the boons of organized labor: Latinx women, for example, make 54 cents for every dollar earned by white men. As Esther López of United Food and Commercial Workers urges, “There exists a sure-fire way for Latina women to earn the better wages they deserve: joining a union in their industry. Latina women who have joined a union earn more than their non-union counterparts—$242 more per week, in fact, according to the Bureau of Labor Statistics.”

Another concern arising from Kavanaugh’s anti-labor record—and one particularly pointed in the wake of the allegations levied against him—is women’s vulnerability to workplace sexual harassment. The Equal Employment Opportunity Commission found that “25 percent to 85 percent of women report having experienced sexual harassment in the workplace.” Echoing López, writer Michelle Chen contends that collective bargaining is a viable means of combating this. “Union agreements,” she writes, “protect equality at work, provide everyday organizational support for workers, and promote public accountability by establishing legally binding conditions of employment,” and can pursue such measures as municipal anti-harassment ordinances.

Heeding Kavanaugh’s roster of rulings, the AFL-CIO, Communications Workers of AmericaNational Nurses United and other unions have formally opposed the now-Supreme Court associate justice. NNU has cited specific concerns for women, stating his assaults on collective bargaining rights and workers’ healthcare render him “unfit to serve on the Supreme Court of the United States.” The subtext is that women will pay the greatest price.

This article was originally published at In These Times on October 8, 2018. Reprinted with permission. 

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.


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