Guest Post: Criminal Employment Law

Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School.

What role do private employers have to play in the criminal justice system? And, what does employment law doctrine have to do with mass incarceration?

In Criminal Employment Law (forthcoming in the Cardozo Law Review), I answer these questions.  I argue that existing employment law doctrines and institutions extend the effects of criminal punishment and make private employers complicit in the continued marginalization of people with criminal records.

In the post that follows, I offer a brief overview of the article’s central claims and the ways that they should frame debates about ban the box and reentry reforms.

Criminal Employment Law focuses on the continuing problem of employment for people with criminal records and asks how the law on the books (coupled with cultural attitudes) encourages employers to steer clear of workers and job applicants with any criminal history.

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Hair and Employer Regulations: Redefining Race-Based Discrimination

This fall, the 11th Circuit upheld an employer policy banning dreadlocks in the workplace; the court ruled that dreadlocks are not an “immutable characteristic of black persons,” and as such, an employer’s decision to rescind an offer based on the employee’s hairstyle did not violate Title VII.  The ruling drew much criticism, and sparked debate about whether Title VII jurisprudence is antiquated.  The 11th Circuit’s ruling seems particularly outdated in light of recent changes to the United States Army’s grooming regulations.  This January, the army issued a directive that permits female soldiers to wear deadlocks.  This change is the latest in a gradual relaxing of grooming standards that have disproportionately impacted black servicewomen.  The army has said little about what prompted the change, but one official said that many black servicewomen have been asking for a change in policy, given the ease of maintaining dreadlocks as opposed to other hairstyles.

The 11th Circuit’s decision comports with Title VII jurisprudence pertaining to discrimination based on race, but the outcome is, nonetheless, troublesome.  The court’s decision is rooted in an outdated and formalist approach to racial identity that ignores both the interplay of race and other identities, as well more contemporary notions of what constitutes racial discrimination.  This outdated line of reasoning fails to properly capture the purpose of Title VII.

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Workplace Discrimination Against Muslims

It’s a difficult time to be a Muslim in America.  Since the tragic events of September 11, 2001, Muslim Americans have faced greater scrutiny, with recent global events triggering further anti-Muslim rhetoric in the United States and abroad.  According to a 2015 Pew Research Center study, 39% of Americans and 49% of Republicans believe that Muslims in America should be subject to more scrutiny than people of other religions.

Anti-Muslim sentiment has translated into a serious issue of anti-Muslim discrimination in the workplace.  After September 11th, the Equal Employment Opportunity Commission (EEOC) saw a 250% increase in cases of religion-based discrimination against Muslims.  Since 2002, Muslims continue to make up a disproportionate amount of the commission’s religion-based discrimination charges, hovering over 20%.

While in office, President Obama spoke out against Muslim discrimination on several occasions.  Last July, seen as a response to the growing anti-Muslim rhetoric of then candidate Trump’s campaign, President Obama called discriminatory policies against Muslims an insult to the “values that already make our nation great.”

The EEOC looked poised to further take on discrimination against Muslims in the workplace under President Obama.  Last September, the commission adopted its strategic enforcement plan for 2017 to 2021.  Among other things, the plan added the “emerging issue” of anti-Muslim discrimination to its list of priorities.  Specifically, the plan called for a focus on “backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.”

It’s not clear how anti-Muslim workplace discrimination will evolve under President Trump’s administration.  The President appointed Commissioner Victoria Lipnic as the acting chair of the EEOC shortly after taking office.  Lipnic, a Republican, voted against the strategic enforcement plan that called for an increased focus on discrimination against Muslims and is expected to move the commission in a conservative direction.

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Gig News: EEOC Strategic Enforcement Plan Prioritizes Gig Economy

Last month, the Equal Employment Opportunity Commission adopted a Strategic Enforcement Plan for 2017-2021 to “set forth its continued commitment to focus efforts on those activities likely to have strategic impact in advancing equal opportunity and freedom from discrimination in the workplace” – and indicated  that the gig economy will be a priority for the agency going forward.

Notably, the EEOC recognized that employment discrimination ensuring from the rise of the gig economy is a major issue.  Categorizing the gig economy as an “Emerging and Developing Issues priority,” the Plan states the EEOC will “address issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”  The EEOC specifically stated that it will prioritize “clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”

Professor Sachs and Professor Noah Zatz have both addressed how the gig economy can give rise to discrimination against workers on the basis of race, sex, religion or national origin, and recently an Uber driver filed a complaint with the EEOC alleging Uber ratings are racially discriminatory.  While Title VII only applies to discrimination against employees, and not independent contractors, the EEOC’s demonstrated commitment to addressing the gig economy indicates it may become an ally of workers seeking rightful classification as employees.

Today’s News & Commentary — November 7, 2016

The week-long strike by transit workers in Philadelphia, which shut down the city’s transit system and could have reduced voter turnout, has ended.  According to The Philadelphia Inquirer, the four-year contract between Transportation Workers Union Local 234 and the Southeastern Pennsylvania Transportation Authority covering 4,738 workers must still be formally approved, but SEPTA will resume some operations today and full operations tomorrow, Election Day.  Details of the agreement have yet to be released.  SEPTA had considered pursuing an injunction to enjoin the strike on Election Day, and eventually unsuccessfully sought a court order to enjoin the strike completely.

A federal court has ruled that the EEOC correctly interprets Title VII of the Civil Rights Act of 1964 to prohibit LGBT workplace discrimination, in one of the first cases brought by the agency under its interpretation of the law.  Buzzfeed notes that Judge Cathy Bissoon of the Western District of Pennsylvania found in denying a Motion to Dismiss in EEOC v. Scott Medical Health Center, P.C. that “there is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”  She further wrote that “forcing an employee to fit into a gendered expectation — whether that expectation involves physical traits, clothing, mannerisms or sexual attraction — constitutes sex stereotyping and, under Price Waterhouse, violates Title VII.”  The case will now move forward.

Chicago may be the “Second City,” but its federal court fielded the fifth-most wage-and-hour lawsuit filings in America last year.  Per Crain’s Chicago Business, in the Northern District of Illinois “542 lawsuits were filed in 2015 alleging an employer violated the Fair Labor Standards Act.”  The number of filings was exceeded only by courts in New York, Miami, Orlando and Tampa.  Furthermore, “wage and hour lawsuits rose 117 percent in Chicago between 2011 and 2015, mirroring a national uptick.”

In other news, NPR reports on how poverty-level wages for US child care workers may explain high industry worker turnover, while The New York Post features a program which assists autistic workers with job placements.

Today’s News & Commentary — October 31, 2016

Happy Halloween! In order to get your fright night started right, check out this list of union-made candies from the AFL-CIO.

The Washington Post reports that federal workers earn 34.07% less on average than comparable workers in the private sector. The number was derived by the Federal Salary Council, a group that oversees the General Schedule pay system that covers most government workers. This figure is around the same as it has been the last three years, which has led federal employee unions to call for higher wages, though the number has been disputed by conservative and libertarian groups (finding a 14 to 78% pay advantage) and the Congressional Budget Office (finding a 2% pay advantage).

A new poll by the National Employment Law Project found 84% of voters, both Republican and Democrat, “bristle when corporations illegally misclassify employees,” as put by the NELP’s Rebecca Smith in The Hill. These voters are in favor of policies that make it harder for companies to classify workers as independent contractors and that subject such companies to higher fines.

In Uber news, a new study from researchers at MIT, Stanford, and University of Washington found that Boston Uber drivers “canceled rides for men with black-sounding names more than twice as often as for other men” and “Black people in Seattle faced notably longer wait times for a car using Uber and Lyft Inc. than white customers,” as reported in Bloomberg. The researchers proposed fixes such as hiding passenger names and increasing repercussions to canceling rides, as well as periodic discrimination reviews. The paper researchers also noticed that “women were sometimes taken on significantly longer rides than men.”

Today’s News & Commentary — September 21, 2016

On Tuesday, the Senate Banking Committee held a hearing on Wells Fargo’s sham account case.  As the New York Times reports, Wells Fargo employees created nearly two million fake accounts to pad their sales numbers.  At the hearing, senators noted that top executives had faced no real consequences, while the bank’s lowest-paid workers had “borne the brunt of the punishment.”  As Senator Elizabeth Warren put it to John G. Stumpf, Wells Fargo’s chief executive, “Your definition of accountability is to push this on your low-level employees. This is gutless leadership.”

Forbes reports that 21 states have filed a lawsuit against the Department of Labor to block its new overtime rule.  The suit, filed in the Eastern District of Texas, alleges that the rule is in contravention of the Tenth Amendment and the APA.  Most of the states party to the lawsuit have also joined lawsuits seeking to block other Obama administration rules, including the challenge to DACA, the Clean Water Rule, and the Clean Power Plan.

According to Politico, the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. has served as a catalyst for state legislation protecting pregnant workers from workplace discrimination.  In Young, the Court held in favor of a pregnant UPS worker who alleged that she had been denied pregnancy-related accommodations as required by the Pregnancy Discrimination Act.  Although the holding was a narrow one, it seems to have prompted legislative action.  Emily Martin, general counsel at the National Women’s Law Center, explained that since the decision, “we’ve seen even more bipartisan support for the notion that pregnant workers … should be entitled to very reasonable accommodations at work.”

A Thai court has found a British labor activist, Andy Hall, guilty of criminal defamation and violating cyber crimes law.  The charges came in connection with his work on a 2013 report accusing Natural Fruit, a Thai-based company, of violating its workers’ rights.  Hall was originally sentenced to three years in prison and fined $4,300, but the judge suspended his sentence.  Still, human rights advocates are worried that the case will seriously hinder efforts to investigate and monitor workers’ rights abuses in Thailand.  Coverage is available at the New York Times, Human Rights Watch, and Jurist.