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Depending on Employers for Abortion Access is a Nightmare

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Sarah Lazare

Following last week’s Supreme Court ruling that struck down federal protections for abortion rights, major companies, including a number of Silicon Valley giants, publicly broadcast their intention to assist their workers in traveling out of state to obtain an abortion.

Meta, Apple, Disney, Dick’s Sporting Goods and Condé Nast were among them, the New York Times noted, joining companies that had made similar pledges in May, when a leaked memo revealed that the Court would overturn Roe v. Wade. These companies include Reddit, Tesla, Microsoft, Starbucks, Yelp, Airbnb, Netflix, Patagonia, DoorDash, JP Morgan Chase, Levi Strauss & Co. and PayPal, the Times reports.

Meanwhile, Google pledged to allow workers to apply to relocate “without justification” if they live in states that do not allow abortion. Uber reiterated that its “insurance plans in the U.S. already cover a range of reproductive health benefits, including pregnancy termination and travel expenses to access healthcare.”

On its face, these gestures by employers may seem like a good thing.

But this response opens up another door to hell: The reality that workers will be even more reliant on capricious and self-interested employers to provide basic, necessary healthcare, handing bosses even more power, while giving workers one more thing to fight tooth and nail to protect.

The Problems with Employment Health Care

Let’s look at how this approach has worked out for general health coverage.

In a country that, unlike other industrialized nations, does not provide free and universal healthcare to its people, individuals rely on employers for this vital good. This means that a worker’s boss has control over their ability to get emergency heart surgery without going bankrupt, to pay for a child’s leukemia treatment, to get preventative healthcare to ward off serious complications, to afford insulin in order to not die from diabetes, etc.

Routine, day-to-day matters — like asking for time off, or asking a boss not to sexually harass you, or even banding together with your coworkers to organize a union — have higher stakes under this system. If you lose your job, you lose your healthcare. And if this healthcare is extended to your dependents and spouse, so does your family.

And what of other, more-difficult-to-quantify matters, like personal happiness and fulfillment at work? According to a May 2021 survey from West Health and Gallup, one out of six adults who receives employer-provided healthcare is staying in a job they don’t want because they’re afraid of losing these benefits.

In a capitalist society, work is how we spend our lives. Squandering our one precious life in an unwanted job is a tragic waste.

Unions Can Protect Workers’ Health

Of course, the best way to protect one’s health benefits, short of winning universal healthcare, is to organize a union.

Union workers are significantly more likely than their non-union counterparts to have health benefits at all. But imagine all the things workers could win if they didn’t have to spend their time at the bargaining table negotiating over their members’ ability to survive. If healthcare were off the table, because it was already provided by the government, maybe we would have stronger common good wins, or clauses protecting the right to strike under any circumstance, or 30-hour work weeks.

Now, apply this principle to the realm of abortion.

To think of having to add protection of one’s ability to get an abortion to the list of things employers provide, and can therefore take away, is terrifying. Some of the companies that publicly claim they will protect abortion rights are among the most viciously anti-union employers of our time.

There are Employers who Leverage Employees’ Health Against Them

How will they use this new form of leverage to crack down on workers’ rights to demand better conditions?

We are already seeing an example in Starbucks, which has said that it can’t “make promises” that any benefits for workers in need of abortions will be guaranteed for unionized shops, though they are currently provided.

Other companies making such pledges have pursued astoundingly anti-worker policies, like Uber, which is currently fighting against classifying its workers as employees, a move that would give workers access to key benefits, like the right to form a union and access to workers’ compensation.

Do we really think that a company that doesn’t want its workers to have basic rights is truly committed to ensuring they’re able to receive abortions when they need one?

Abortion travel funding shouldn’t have to be a chip on the bargaining table. But this is the terrain that unions must fight on. And they are, right now, some of their members’ best protection.

There are a host of other things unions could be doing to protect union members. Dr. Rebecca Givan, a labor law expert, has suggested creative solutions, including using union release time, to help people get abortions, drive them there, or provide childcare.

Unions should absolutely be thinking along these lines. Any step that could put abortion protections in the hands of workers, rather than their bosses, is a good thing.

Attacking Abortion Rights is Attacking Workers’ Rights

But let’s be clear-eyed about what the attack on abortion rights does.

Suddenly stealing a fundamental right to bodily autonomy helps place workers in a lower social class. It strips away workplace leverage — to give people who need abortions one more thing they have to beg their bosses for. One more thing to protect in a society where the safety net is already thin, and working-class people face rising prices and a potential looming recession. One more reason employers can claim benevolence as they crush union drives.

We can’t only rely on the bargaining table to win back the societal rights we have lost. It’s time for the resurgent labor movement to organize like hell to say that this attack on self-determination and humanity is unacceptable, and will not be tolerated — in the workplace and beyond.

This is a shortened version of a blog that originally appeared in full at In These Times on June 27, 2022. Reprinted with permission.

About the author: Sarah Lazare is a web editor and reporter for In These Times.

Visit Workplace Fairness’ page on unions to learn about them and your rights as an employee.


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This Supreme Court also hates worker power

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Laura Clawson

This week, the Supreme Court gutted abortion rights. This is a workers’ issue, in a country where many struggle to afford an abortion and lack the paid leave needed to take multiple days off work to travel out of state for abortion access as state bans go into effect. The Economic Policy Institute’s Heidi Shierholz points out research showing that people who want but cannot get an abortion experience long-term financial consequences and increased poverty. Also highlighted here: The states where abortion bans are most likely are also states where wages and worker power are low.

The Supreme Court also essentially nullified states’ rights to limit permits to carry firearms, sending a signal that it would become more and more extremist on guns. This, too, is a workers’ issue, in a country where workplace shootings are all too common.

But make no mistake that this Supreme Court is also specifically opposed to workers’ rights and efforts to build worker power. Justice Samuel Alito may end his career most remembered for his spiteful opinion overturning Roe v. Wade, but he also has a long and equally spiteful track record of anti-union activism. As Jenny Hunter wrote at Balls and Strikes in 2021, “Alito’s ‘impartiality’ in cases about unions can not only ‘reasonably be questioned’; it simply does not exist. There is no doubt he will rule to limit workers’ collective power at every opportunity. The only question is how quickly he’ll upend the law in order to engineer his desired result.”

This month, the court gutted an important California workplace enforcement rule. Because, of course, Alito has company in his basic anti-worker stance. A lot of company on this Trump-packed court. Workers around the country are showing renewed interest in unions, but they will encounter a hostile Supreme Court for a generation or more, unless Democrats expand the court.

This is a blog that originally appeared on Daily Kos on June 25, 2022. Reprinted with permission.

About the author: Laura Clawson is the assistant managing editor for Daily Kos.

Visit Workplace Fairness’ page on unions to learn about them and your rights as an employee.


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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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A sexist Republican just gave the Supreme Court exactly what it needs to legalize sex discrimination

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Mississippi state lawmaker and Republican gubernatorial candidate Robert Foster refused to travel with a reporter covering his campaign — because the reporter is a woman.

The reporter, Larrison Campbell, is one of several journalists from the outlet Mississippi Today, who asked if they could shadow Republican candidates running to lead the state. Both of Foster’s opponents agreed to this arrangement, although the reporter assigned to cover their campaigns happened to be male. Foster, however, refused to allow Campbell to ride along with him unless she was accompanied by a man.

On Twitter, Foster later explained that he discriminated against Campbell because of an arrangement with his wife.

It must be very sad to be in a marriage built on such a foundation of mistrust, but Foster’s sexism could also have profound legal implications. While Foster’s discrimination against a reporter is unlikely to end in a civil rights lawsuit, an employer who followed this “Billy Graham Rule” would necessarily deny professional opportunities to their female employees.

Imagine, for example, that a female campaign aide asked to ride with Foster because they wanted to share an idea for how to improve Foster’s stump speech. That aide would be denied this opportunity, while a male colleague with a similar idea would be allowed to ride with Foster.

Such an arrangement violates Title VII of the Civil Rights Act of 1964, which provides that employers may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But here’s the problem — after Foster’s initial tweet explaining that he would not ride with Campbell because of his arrangement with his wife, Foster explained that this arrangement is tied up in his religious identity.

If you’ve followed the drama about whether anti-LGBTQ business owners should have a right to discriminate if they claim a religious justification for doing so, it’s not hard to see how Foster’s arrangement — or a similar arrangement by another employer — could end.

Let’s say that Foster refuses to travel with female aides while giving this professional opportunity to male aides. One of them sues, asserting that Foster violated Title VII. Foster then claims that he has a right to violate Title VII because his sexism is rooted in his religious beliefs. How would the Supreme Court handle such a case?

The short answer is that we don’t know for sure, but the court gave us a pretty good hint in Burwell v. Hobby Lobby, and that hint suggests that there are five votes on this Supreme Court to hold that sexist religious beliefs trump Title VII.

Hobby Lobby involved an employer who, in violation of federal regulations, refused to cover certain forms of birth control in their employee health plan. Prior to Hobby Lobby, this employer would have lost because the law did not allow “religious liberty” claims to diminish the rights of third parties — in this case, the rights of the company’s employees who wanted contraception. Hobby Lobby scrapped this longstanding rule, and permitted religious objectors to wield their objections against the rights of others.

But if religious objections now trump other peoples’ rights, what does that mean for anti-discrimination law? In a single paragraph, Justice Samuel Alito, who wrote the majority opinion in Hobby Lobby, tried to calm this concern. “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race,” he wrote, “and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Notice what Alito did there, however. While he specifically states that race discrimination in employment cannot be justified by religion, he rather pointedly does not say that other forms of discrimination — such as sexism or homophobia — cannot be justified by a religious objection to obeying a civil rights law.

The Supreme Court, moreover, has only grown less sympathetic to victims of discrimination since Hobby Lobby. Both of Trump’s appointees to this court, Neil Gorsuch and Brett Kavanaugh, are significantly more conservative than the man they replaced.

So, while it is not certain that there are now five votes to say that sexist religious beliefs nullify Title VII, it is quite likely that they are. And the “Billy Graham Rule” that Foster says he follows would give this Supreme Court exactly the vehicle it needs to hold that laws banning discrimination against women must bow to religious conservatives.

This article was originally published by Think Progress on July 10, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.


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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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After Janus, Cities and Towns Are Poised to Become the New Battleground Over “Right to Work”

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In December 2015, Lincolnshire, Illinois, a Chicago suburb with a population of a little over 7,000, passed a right-to-work (RTW) ordinance. While a slim majority of states have enacted RTW laws over the past several decades, RTW measures at the county or municipal level are rare in comparison. A group of unions quickly sued to strike down the ordinance, and after nearly three years of litigation, the next stop for the legal battle might be the Supreme Court.

The unions have been successful so far in their fight against the ordinance, winning first in the U.S. District Court and then again after Lincolnshire appealed to the Seventh Circuit Court of Appeals. But on February 14, Lincolnshire filed a petitionwith the Supreme Court, which will now decide whether it will hear the village’s appeal. Lincolnshire is being represented in the lawsuit by the Liberty Justice Center, one of the groups that represented plaintiff Mark Janus in Janus v. AFSCME, the case that abolished public-sector fair-share fees nationwide.

The legal arguments in the case, which is named Village of Lincolnshire v. IUOE Local 399, are not particularly complicated. The National Labor Relations Act (NLRA) clearly allows employers and unions to enter into union security agreements, which require workers to pay union dues (or reduced “fair-share fees” for non-members). However, a provision in the 1947 Taft-Hartley Act allows states to pass RTW laws, which permit workers to refuse to pay union dues while still enjoying all of the benefits of union representation. The unions argue that the Taft-Hartley provision means what it says—that states can pass RTW laws, not counties or cities. Lincolnshire argues that the law’s reference to “states” actually includes states and their subordinate political bodies.

Allowing local RTW ordinances could lead to what the unions described in their Seventh Circuit brief as a “crazy-quilt” of overlapping and inconsistent regulations. Illinois alone could be home to more than 300 different RTW ordinances among counties and municipalities with home rule authority. And numerous different laws could apply to the same collective bargaining agreement, as agreements commonly cover multiple facilities or job sites.

There is reason to suspect that the Supreme Court will decide to hear Lincolnshire’s appeal. The Seventh Circuit’s decision in favor of the unions conflicted with a 2016 decision of the Sixth Circuit, UAW Local 3047 v. Hardin County, which held that counties and municipalities have the legal authority to enact RTW measures. The Supreme Court will often hear an appeal to resolve this kind of conflict, which is called a circuit split. Troublingly, the Supreme Court refused to hear the UAW’s appeal of the Sixth Circuit decision, leaving that decision as law of the land in Michigan, Ohio, Kentucky, and Tennessee, and potentially tipping the justices’ hands on the issue.

In Janus, the right-wing majority of the Supreme Court overturned more than 40 years of precedent to make the country’s entire public sector RTW. There is no reason to expect Justice Kavanaugh to be any more sympathetic to labor rights than now-retired Justice Kennedy. If the Supreme Court decides to hear the case, it may well be the next step in the steady erosion of labor rights that has occurred under the Roberts Court.

Meanwhile, local RTW laws have started to spread elsewhere. Lobbying efforts by the Koch-funded Americans for Prosperity have made quick progress in New Mexico, with 10 of the state’s 33 counties and one village passing RTW ordinances since January 2018. The group previously used the same county-by-county approach in Kentucky, where over a dozen counties passed RTW ordinances before statewide RTW legislation passed in 2017.

In Delaware, attacks on unions at the local level have been less successful. In late 2017 and early 2018, two local governments in the state were considering RTW measures. While a proposal in Sussex County eventually stalled following union protests and warnings from the Delaware Attorney General and the county’s own attorney that the county lacked the legal authority to enact the proposal, the town of Seaford quietly enacted a RTW ordinance without holding any public hearings. The Seaford ordinance was quickly quashed in June 2018 when Governor John Carney signed legislation permitting private union security agreements statewide.

Local RTW laws have been slow to spread in part because local governments like Sussex County fear that they violate the NLRA. But with union busters running out of states in which they could realistically seek to pass RTW laws, they have looked to local RTW laws as a way to make inroads into non-RTW states. If the Supreme Court gives local RTW laws their blessing, the significant legal risks will be removed and right-wing groups will begin pushing them on counties and towns throughout the country.

What can the labor movement do in the meantime? One strategy is legislative. In states where Democrats hold the governorship and the majority in both state legislatures, we can push politicians to follow the Delaware approach and enact laws guaranteeing the right to enter into union security agreements. But even after significant Democratic gains in the midterm elections, there are only 13 of these states other than Delaware.

Another strategy is for private-sector unions to conduct vigorous internal organizing campaigns as public sector unions did in preparation for Friedrichs v. CTA and then Janus. Unlike public-sector unions, private-sector unions do not have onerous restrictions on the subjects over which they can collectively bargain, which many public sector unions have been forced to deal with in recent years. These campaigns to increase worker participation in existing unions and to sign up fair-share-fee payers as full members will prepare unions to contend with local RTW laws in unexpected locations, while also building stronger unions if we are fortunate enough to avoid another attack from the Supreme Court.

This article was originally published at In These Times on February 28, 2019. Reprinted with permission. 

About the Author: Nick Johnson is a union lawyer in New York.

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Missouri Supreme Court opens the door to LGBTQ nondiscrimination protections

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The Missouri Supreme Court ruled Tuesday that a gay employee’s case alleging sex discrimination in the workplace could proceed, reversing a lower court ruling and establishing a new precedent that could help protect embattled non-heterosexual workers in the future.

The court also ruled on a separate but similar case involving a transgender student who claimed his school discriminated against him by blocking him from bathrooms and other facilities, saying the student deserved a fair hearing.

At stake in the first case is the extent to which gay, lesbian, and bi people in Missouri are protected on the basis of their sex. State law does not extend employment nondiscrimination protections on the basis of “sexual orientation,” meaning it’s fully legal to fire someone based on their sexuality. But in this case, while the plaintiff acknowledged that he is gay, he claimed that he faced discrimination because of sex stereotyping, not because of his sexual orientation.

Harold Lampley, an employee in the state’s Department of Social Services Child Support Enforcement Division, filed a complaint arguing that he was harassed at work for his non-stereotypical behaviors, noting that employees with stereotypical behaviors were not similarly treated. He claimed to have experienced regular verbal abuse and forced closed-door meetings about his performance. After he complained, he also alleged that he experienced retaliation in the form of poor performance evaluations not consistent with his work.

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Lampley’s friend and coworker Rene Frost likewise claimed that she suffered discrimination merely for her affiliation with Lampley. The employer allegedly violated her privacy by publicly announcing her performance review. After she complained, she said she faced retaliation, such as having her desk moved away from Lampley’s and other coworkers with whom she collaborated. Frost claimed she was also banned from eating lunch with Lampley and allegedly faced similar verbal abuse and harassment.

The Missouri Commission on Human Rights concluded this discrimination wasn’t actionable because Lampley’s sexual orientation isn’t protected, and a lower court agreed. It relied on a similar ruling against a recycling company employee named James Pittman, who claimed he had been called a “cocksucker,” asked if he had AIDS, and harassed for having a same-sex partner. The Western District Missouri Court of Appeals ruled in 2015 that Pittman could find no relief under state law, and a circuit court concluded the same must be true for Lampley and Frost.

But in Tuesday’s ruling, the Missouri Supreme Court concluded that being gay does not preclude an employee from protection on the basis of “sex,”which includes sex stereotyping. “[A]n employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act can support an inference of unlawful sex discrimination,” the majority wrote.

“Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping,” they explained. The Commission was wrong not to give them an opportunity to demonstrate their sex-stereotyping claim, and the Court ordered it to issue Lampley and Frost right-to-sue letters.

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The second case on which the Court ruled this week similarly focused on the debate over protections on the basis of sex.

Student “R.M.A.” filed a complaint against Blue Springs School District for denying him access to the boys’ restrooms and locker rooms. The school initially countered both that “gender identity” was not protected under the state’s “sex” protections and also that it should not be considered a “public accommodation” and thus the nondiscrimination law should not apply to it at all. Without specifying which reasoning informed its opinion, a lower court dismissed R.M.A.’s complaint outright.

In a 5-2 ruling this week, the state Supreme Court reached a different conclusion. Rather than considering sex stereotyping, the majority recognized that once a transgender individual has legal changed their sex, as R.M.A. has, they are protected on the basis of that sex. In a footnote, the majority called out the dissenting justices for relying on a distinction between “legal sex” and “biological sex” that is not actually found anywhere in the law. R.M.A. is a boy, and if he’s not being allowed to use boys’ facilities, then he deserves his day in court.

This pair of rulings opens the door to far greater protection for LGBTQ people under Missouri state law — but with some limitations.

The first ruling, for example, accepts the premise that sexual orientation is not itself connected to sex stereotyping, even though expectations about the gender of a person’s romantic partners are obvious stereotypes themselves. This means that while Lampley and other gay, lesbian, and bi workers will now have an opportunity to pursue discrimination claims moving forward, it will require them to prove that they were targeted because of sex stereotypes not directly connected to their sexual orientation.

Likewise, the ruling in favor of R.M.A. seems to rely on transgender people legally changing their sex designation before they are eligible for protection. State law requires transgender people provide proof of surgery to update their birth certificates, although some judges have granted the new gender markers without that requirement. This means that there may still be inconsistent financial and medical obstacles to qualifying for legal protection.

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Neither ruling weighs the merits of the discrimination claims, so it also remains to be seen whether Lampley or R.M.A. will prevail once their complaints are given due consideration.

This article was originally published at ThinkProgress on February 26, 2019. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.


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Trump wants to dismantle decades of discrimination protections

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The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.

For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.

Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.

Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”

This article was originally published at ThinkProgress on January 3, 2019. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. 


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SCOTUS rules that ADEA applies to all public employers

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By unanimous decision, the Supreme Court has clarified that the Age Discrimination in Employment Act applies to all public sector employers.

The case centered on two Arizona firefighters who believe they were terminated because of their age. Their fire district claimed that the wording of the ADEA excluded smaller public agencies with less than 20 personnel. SCOTUS firmly rejected that interpretation.

Age Discrimination law is not limited to large agencies

At question was the Age Discrimination in Employment Act of 1967, which protects employees age 40 and over from discrimination in hiring, the workplace and termination. The case (John Guido; Dennis Rankin v. Mount Lemmon Fire District) was brought by two firefighters. When they were fired in 2009, they were the oldest full-timers (age 46 and 54) in their district.

They filed age discrimination charges with the Equal Employment Opportunity Commission. The EEOC found reasonable cause that the fire district had violated the ADEA, and they filed suit in 2013.

A district court granted summary judgment to the fire district, based on an interpretation of the term “employer” in the ADEA. The two firefighters appealed to the U.S. Ninth Circuit Court of Appeals, which reversed the lower court. The fire district appealed to the U.S. Supreme Court.

Unanimous decision

The Supreme Court unanimously upheld the Ninth Circuit, settling any ambiguity in the law. The crux of the case was the language of the ADEA. The act exempts private employers with fewer than 20 employees. But the ADEA goes on to say “The term (employers) also means … a State or political subdivision of a State.”

The Mount Lemmon Fire district asserted that the 20-employee limit applied to public employers. The Supreme Court disagreed, ruling that the ADEA applies to all public agencies regardless of size. This is consistent with how the EEOC and courts have interpreted the discrimination provisions of Title VII of the Civil Rights Act.

As a result of the SCOTUS ruling, Mr. Guido and Mr. Rankin can press their age discrimination lawsuits against the fire district. It should serve as notice to any public agency that they cannot use the size of their workforce as an excuse for laying off or discriminating against older employees.

ADEA, ADA and Title VII apply to federal employees too

The ADEA was originally written to protect private sector workers from ageism. It was later was amended to specifically apply to public employees, including federal employees. This is in line with the Americans with Disabilities Act and other federal discrimination statutes that specifically cover federal employees or to which the Supreme Court has extended that interpretation.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on December 3, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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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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