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Black Women’s Equal Pay Day is a powerful reminder of how equal pay isn’t

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Equal Pay Day, the day when women had made as much since January 1, 2018, as white men made in 2018, was back on April 2. It is just now—August 22, 2019—Black Women’s Equal Pay Day. That’s because while women overall make 80 to 81 cents for every dollar a white man makes, there are major racial disparities among women.

Asian women have the smallest disparity, making a whopping 85 cents on the dollar, so their equal pay day comes in early March. White women come next, at 77 cents—their equal pay day is just a few days after the overall one, on April 19. For black women, it’s 61 cents, which is why we’re here in late August talking about equal pay, by which we mean how equal the pay isn’t. That gap adds up fast, Jocelyn Frye writes at the Center for American Progress, “amounting to $23,653 less in earnings over an entire year. In the span of a 40-year career, this translates into an average lifetime earnings gap of $946,120 between Black women and white men.” Black women face a massive gap no matter how much education they get—and they’re left with higher student loan debt than any other racial group.

When we talk about Equal Pay Day, we’re always talking about apples to apples—people who work full time and year round. And with black women, we’re talking about the group of women that has always worked outside the home at the highest rates, with a complicated and often viciously discriminatory history in which, Frye writes, “Black women frequently encounter a workplace narrative that deemphasizes the importance of their personal caregiving responsibilities or suggests that their caregiving roles should be secondary to their paid work.” Black women have long cared for white children for low wages while their caregiving role for their own children was shoved to the side, and black women remain disproportionately in occupations in which scheduling abuses and unpredictable weekly hours of work make life even more difficult than low wages alone would do.

Since Native American women earn 58 cents for every dollar a white man makes and Latina women earn 53 cents, their equal pay days won’t come until September 23 and November 20.

This blog was originally published at Daily Kos on August 22, 2019. Reprinted with permission.

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

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The Trump Administration’s Backdoor Plan to Erode the Rights of Workers to Act Collectively

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On October 2, the U.S. Supreme Court will hear a case that implicates the very concept of collective action. NLRB v. Murphy Oil asks whether it is a violation of workers’ rights to force them to enter into arbitration agreements that prohibit collective or class litigation. Such agreements, often entered into as conditions of employment, require workers who want to sue their employers to do so individually in a private arbitration setting, rather than as a class of aggrieved workers who can pool their resources and knowledge. According to a recent study by the Economic Policy Institute, more than 60 million U.S. workers have now lost access to the courts because of such forced arbitration agreements.

Now, the Trump administration is entering the fray, submitting a brief to the Supreme Court in the Murphy Oil case aimed at advancing an anti-worker legal theory poised to erode protections for workers outside of the union context.

Such efforts could have far-reaching implications. In a 1997 paper for Arizona Law review, professor of law emeritus Jack Greenberg argued, “Civil rights and class actions have an historic partnership,” with class actions routinely used “to challenge discrimination in employment, education, the use of public facilities and housing, to assert prisoners’ rights, and to promote welfare reform, to name just a few areas that conventionally are put in the civil rights category.”

More recently, the NAACP went further, arguing in an amicus brief submitted in August 2016 to the Supreme Court that “American democracy depends upon our unwavering commitment to equal opportunity. Federal labor law honors that commitment by guaranteeing employees the right to challenge workplace discrimination through concerted activity, including picketing, striking and group adjudication of workplace rights.”

Yet, in recent years, the rights of most Americans to engage in concerted legal has greatly diminished. In a 2015 investigative series on this trend, The New York Times reported that, starting in 1999, a “Wall Street-led coalition of credit card companies and retailers”—with soon-to-be Chief Justice of the Supreme Court John Roberts Jr. involved—engineered a plan to get rid of class action lawsuits, because such lawsuits allow individuals to pool their power against companies.

Years later, in a pair of cases decided in 2011 and 2013, with John Roberts Jr. as Chief Justice, the Supreme Court narrowly held that companies could include contract provisions that require plaintiffs to go through arbitration instead of court, while waiving their rights to class actions.

A federal judge interviewed in 2015 by the Times explained that the result is that now, “business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

The Times study of thousands of arbitrations—most of which are not publicly available—found that more and more consumer and labor and employment cases are being funneled into arbitration. Between 2010 and 2014, there was a 215 percent rise in arbitrations in labor cases over the previous four years. This represents a privatization of the justice system.

Furthermore, in many instances, the funneling of cases to individual arbitrations rather than class actions pressures workers into foregoing the process altogether. Looking at 2010 to 2014, the Times found that Verizon and Time Warner Cable, which have 140 million subscribers combined, faced only 72 arbitrations. After all, who would go up against an outmatched opponent alone?

It is understandable that workers would bow out, given that such arbitration settings are favorable to the employer. Unlike judges who are assigned cases randomly, arbitrators are chosen by the parties, meaning they are chosen regularly to arbitrate before the same corporations. If arbitrators against the corporations too often, there is a strong likelihood that the arbitrators will not be chosen again and therefore lose business in the future. This creates a financial incentive for arbitrators to side with corporations. The Times series notes that dozens of arbitrators “described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

Various attempts have been made to protect individuals from these arbitration provisions, including state laws holding these provisions to be unconscionable, as well as legal arguments claiming that such provisions violate federal anti-trust rules. But these arguments have failed at the Supreme Court. What has remained is the National Labor Relation Board’s (NLRB) position that Section 7 of the National Labor Relations Act (NLRA) protects workers’ substantive rights to join together in class actions. Section 7 provides that workers have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB has taken the position that employment class actions constitute “other concerted activities,” which are protected under labor law. And workers cannot sign away these rights, in the same way that they cannot sign away the right to form or join a union. The Seventh and Ninth Circuit Courts of Appeals agreed with the Board that the employer violated workers’ rights by making them sign arbitration agreements with class action waivers, but the Fifth Circuit held otherwise.

This split in the circuits made the issue ripe for Supreme Court review, and the matter was indeed appealed to the Supreme Court in September 2016, and accepted for review by the Supreme Court in January 2017. At the time, President Obama’s Solicitor General filed a brief with the Supreme Court supporting the NLRB’s position. But Trump’s Solicitor General later changed this position in order to side with employers.

In this case, the Trump administration expresses a view of labor law in the Solicitor’s brief that completely reorients workers’ rights. The brief acknowledges that Section 7 of the NLRA contains what it terms “core” rights, which relate to unionizing and collective bargaining, but pushes aside all other concerted activities as only contained in “residual language” and therefore not deserving of the same level of protections. Such a reading of labor law effectively states that the law’s protections only apply to workers’ activities as they relate to unions.

However, the NLRB clearly states that “the law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.” These rights are far broader than the Trump administration acknowledges in its brief before the Supreme Court, and any limitation of them would greatly diminish the few rights workers have in the workplace.

This week, management-side Republicans gained a majority on the NLRB, and soon a management-side Republican will become the agency’s General Counsel. This new conservative Board is likely to shift labor law away from worker protections, as was the case during the George W. Bush years. However, Trump’s Solicitor’s argument goes much further. It invites the Supreme Court to formally bifurcate and limit workers’ rights to act collectively.

This piece was originally published at In These Times on September 28, 2017. 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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Lieutenant Sotomayor?

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Could Sonia Sotomayor have moved up the ranks in the New Haven Fire Department? The stark contrast between a Hispanic lawyer who has risen to the top of the legal profession and a group of African-American firefighters whose efforts to move up have been stymied by a test points to how differently equal opportunity has played out in education and in employment.

Educational and employment tests rose to prominence after the civil rights revolution of the 1960s. They signaled that a college or employer valued ability and was committed to equal treatment. With the SAT, the New Haven fire captain’s exam, or the popular General Aptitude Test Battery, each candidate’s numerical score could be plotted on a curve. A scientific judgment could be made about who was most able, most meritorious, and most deserving of a desk in the classroom or a seat on the fire truck.

While both kinds of tests were popularized by equal opportunity laws, educational tests have had a very different legal and practical history than employment tests. Berkeley and the University of Michigan and Yale and Harvard took SAT test scores with a grain of salt, in part because data from millions of test-takers showed that the test does not predict college performance very well for African-Americans. When elite colleges made a concerted effort to diversify the student body in the 1960s, they avoided hard numerical cutoffs for SAT performance and instead took a range of different indictors, like high school grades, into account. Non-elite colleges were admitting almost all comers, so the test mattered little for the average college applicant.

Many companies responded to the Civil Rights Act of 1964 by installing hiring and promotion tests on the theory that these could guarantee that placement was based on merit, not bias. While police and fire departments came to rely heavily on tests, the relationship between test and job performance was problematic, like the relationship between SAT and college performance. Employers often used general ability tests that covered basic high school math and English skills for jobs in auto factories and airplane plants that didn’t require these skills. People who do well on the GATB can make lousy bricklayers. The disconnect between test scores and job performance was the basis of a the Supreme Court’s landmark Griggs v. Duke Power decision in 1971, in which African-American plaintiffs argued that they had been denied posts at Duke Power because they scored poorly on a test that measured skills unrelated to the job. Substandard segregated high schools had prepared African-Americans poorly for such tests, and so many promising candidates for jobs botched the test. The Court ruled that hiring and promotion practices that have a “disparate impact” on certain groups, and serve no business purpose, can be discriminatory.

Personnel psychologists echoed the court’s call for tests to be validated — statistically proven to predict job performance. Lower courts encouraged validation, but Washington made no hard and fast rule that employers must validate job tests. As a result, HR departments sometimes used psychologists’ stringent criteria to validate employment tests, but more often they used guesswork or, as one HR manager told me in an interview, decided they would “throw themselves on the mercy of the court” if they were sued for using a discriminatory test. Even big city police and fire departments, many of whom were under court order to integrate, continued to use tests that had not been validated, and that were known to exclude almost all African-American or Latino candidates. New Haven’s captain’s test had not been validated. While some police and fire departments followed colleges in using supplemental criteria for selection, such as performance in a mock fire, many did something like New Haven, which gave the multiple choice exam a weight of 60% and an oral exam a weight of 40%. In effect, no one below a certain threshold could win a lieutenancy or captaincy.

In colleges, we know that the SAT isn’t a perfect predictor of success, and so we don’t exclude all candidates below a particular score. In fire departments, which use any number of different tests, fire chiefs frequently have no idea of whether the exam is a good predictor of job performance, and yet they rule out candidates below a particular score.

Would Sonia Sotomayor have passed the New Haven lieutenant’s exam? Perhaps, though there are some reasons to think she might not have. She reports that her SAT scores for Princeton and her LSAT scores for Yale were not on par with those of her peers, and that she had to teach herself grammar and vocabulary and the classics when she got to Princeton. She likely wouldn’t have gotten into either Princeton or Yale if they had used hard cutoffs, but that didn’t stop her from graduating summa cum laude from Princeton and making the Law Review at Yale. She may have done a middling job on the SAT for any number of reasons. Perhaps growing up in a housing project in the Bronx didn’t give the preparation that a childhood in Scarsdale and at Exeter Academy might have. Perhaps learning English as a second language put her at a disadvantage. Or perhaps she choked. Social psychologists find that minorities often blow tests when they are thinking of their status, and excel when they aren’t.

Soon to be Justice Sotomayor hoped as a child to become a detective. If she had followed that dream, she might well have struggled with the police department’s detective exam and been stuck as a beat cop. The world of policing would have lost a natural leader, and a great intellect. Police and fire departments could stand to learn one thing from colleges and universities. If multiple choice tests don’t predict college test-taking very well, they surely don’t predict policing and firefighting very well. Chiefs would be well advised to look at a wider range of criteria, as Princeton and Yale did in the case of Sonia Sotomayor.

Frank Dobbin is the author of Inventing Equal Opportunity

Frank Dobbins: Frank Dobbin is professor of sociology at Harvard. He has studied corporate equal opportunity and diversity programs for more than two decades. In his most recent work, with Alexandra Kalev, he is developing an evidence-based approach to diversity management, using a large sample of firms and thirty years of data to analyze the effects of popular diversity programs on workforce integration. His Inventing Equal Opportunity (Princeton University Press, 2009) traces the evolution of corporate equal opportunity and diversity programs put into place by human resources managers – programs that ultimately define discrimination in the American mind.

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