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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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Walmart raises minimum pay again, while Sam’s Club closes many stores

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There are the Walmart-related headlines Walmart wants you to read, the headlines Donald Trump wants you to read and the headlines neither Walmart nor Trump want you to read. Walmart wants you to read the good news: it’s raising its minimum wage from $9-10 to $11 an hour, and expanding paid parental leave benefits. Donald Trump wants you to read that the company is giving credit for that move to the recent Republican corporate tax cuts. Neither of them wants you to think much about the years-long worker organizing campaign to demand improved wages and benefits, and they definitely don’t want you to think about the news that also just came out that Sam’s Club, the Walmart warehouse chain, is closing dozens of stores, if not more.

At least 63 Sam’s Club stores are closing, with some having closed Thursday without notice to workers. That’s the number the company is giving out, but CBS News says it may be much higher—up to 260 stores. With an estimated 175 workers per store, on average, that means that around 11,000 to as many as 45,000 people could be out of work. At the same time as Walmart says its raises are all about those tax cuts, mind you.

Now, about those Walmart raises and benefits. It’s great that the company is raising its minimum wage to $11. But isn’t it interesting that this is the third recent company-wide minimum pay raise in recent years, and yet we’re supposed to believe that it’s all about the Republican tax law?

“Walmart has made similar announcements in the recent past… even when no tax reform could have affected its decision,” said Gary Burtless, an economist with the Brookings Institution.

The new Walmart employee wage increase follows two earlier pay hikes the retailer implemented in 2015 and 2016 that raised hourly worker pay to $9 and $10 an hour, respectively. (Today, new hires start at $9 and move up to $10 after completing a training course.)

Workers already making $11 an hour will get bonuses based on how long they’ve been working at Walmart. Full-time hourly workers will also become eligible for 10 weeks of paid maternity leave and six weeks of paid parental leave, up from a shorter period of partially paid maternity leave and zero parental leave. But the fact that this only applies to full-time workers means that Walmart’s large part-time workforce is left out. And workers have been pressing hard for these changes.

In December, 2017, Mary Pat Tifft, a Walmart associate, with support from PL+US and Zevin Asset Management, filed a shareholder resolution calling on the company to address the discrepancies in their Paid Leave Policy.  In June 2017, OUR Walmart and their supporters delivered over 100,000 signatures to Walmart Headquarters last year calling for the change to Walmart’s Paid Leave Policy.  The changes directly address the issues OUR Walmart, PL+US and others have raised: adding paternity coverage, adoptive parent benefits and parity with the policy provided to Walmart executives. While impactful for full time associates, Walmart has a high percentage of part-time employees who will not be covered by this new policy.

Walmart associate and OUR Walmart leader Carolyn Davis spoke at Walmart’s 2017 annual shareholder meeting said: “Investing in associates means that new parents at Walmart are allowed time to bond with our children.  Walmart’s female executives receive 10 weeks of paid family leave. Let’s do the same for hourly associates – women and men”.

“The change in policy to 10 weeks paid maternity leave to match what Walmart executives were getting is exactly what OUR Walmart and our Respect the Bump campaign has been calling for. I just had a baby, if I had 10 weeks of paid leave it would have made all the difference in the world. Instead, I had to postpone paying for car insurance and had to leave my newborn and get back to work before I was ready.  This new policy will make sure that full-time associates like me won’t have that do that, but it leaves part-time associates behind,” explained Walmart associate Liz Loudermilk from Seneca, SC.

Yeah, Walmart is getting a fat tax cut from Republicans. But that didn’t save Sam’s Club workers, and this isn’t the first time in the past few years Walmart has given its lowest-paid workers a raise. And the workers pressing the company to do better not just on wages but on parental leave clearly helped shape its new policy on that front, even if the company didn’t go all the way.

This blog was originally published at DailyKos on January 11, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at DailyKos.


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A Scalia-less, deadlocked Supreme Court spares unions. For now.

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When Justice Antonin Scalia died, virtually every labor activist in the country thought one thing: “Friedrichs?” Now, the Supreme Court has announced its decision on the case in question—and all those labor activists are breathing a sigh of relief.

In January, the Supreme Court heard Friedrichs v. California Teachers Association, a case brought by anti-union groups to explicitly weaken public sector unions by allowing non-members to refuse to pay a fee for the representation they receive from the union. Longstanding precedent said that these workers did not have to pay for union political activity but did have to pay a fee for collective bargaining and other representation … but opponents of unions calculated that the time had come when the court would overturn that. Scalia himself was seen as a critical swing vote on this issue. He had stood by the precedent requiring fair share fees in the past, but in 2014, he had voted to chip away at the workers covered by that in Harris v. QuinnThe stakes were high:

One brief in the case indicates that in states where teachers are covered by collective bargaining but aren’t forced to pay agency fees, about 34 percent are “free riders.” Moreover, states that have the compulsory fees for workers have much higher union membership in the public sector—an average of nearly 50 percent—compared with states where such fees are banned (17 percent).

Again, we’re talking about workers paying for things unions do that directly benefit them: Bargaining contracts with better pay and working conditions, and representing them in grievances. And where workers don’t have to pay a fee, they still get the same level of representation as their coworkers who are union members. Antonin Scalia seemed prepared to join in Justice Samuel Alito’s anti-worker crusade and dramatically weaken unions by forcing them to represent non-members for free. And then he died, and the decision we get is:

The judgment is affirmed by an equally divided Court.

That means the precedent stands and unions aren’t gutted. At least as long as Scalia isn’t replaced by another hardcore conservative, anti-union vote on the court. That’s our fight now.

Please donate $3 today to help turn the Senate blue. The future of the Supreme Court depends on it.

This blog originally appeared in dailykos.com on March 29, 2016. Reprinted with permission.

Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.


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