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  The 11th Circuit’s ruling seems particularly outdated in light of recent changes to the United States Army’s grooming regulations.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  The court’s decision is rooted in an outdated and formalist approach to racial identity that ignores both the interplay of race and other identities, as well more contemporary notions of what constitutes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  This outdated line of reasoning fails to properly capture the purpose of Title VII.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.

The Future of Labor

This post is part of a series on Labor in the Trump Years.

From the end of Reconstruction up through the election of 2016, political elites have done a masterful job convincing the white working class that they do not share a common interest with nonwhite workers.  They used regional differences to political advantage by convincing Southern and rural voters that Northerners, urbanites, and intellectuals disdain them.  The task for labor and the left now is to make sure that the 2016 election is the last time that happens.  Rather than demonize those who voted for Trump as bigots, labor should take their economic demands seriously.  Labor should seek common cause among all people around the economic issues that animated the vote for change.  White voters in Michigan, Ohio, and Wisconsin put Trump in office because he promised to improve their lives.  When he doesn’t deliver on his populist promises because his policy agenda is entirely about cutting taxes and freeing corporations from all labor regulation, labor must remind middle class and working class voters of all races and ethnicities that corporate interests are dominating a Trump Administration.

Republicans now have to govern in a way that at least makes a gesture toward the populist campaign that Trump ran.  The longstanding Republican strategy of using religion and social issues as wedges to divide the working and middle classes may not work in a Trump Administration.  Trump is not beholden to the religious right; for the first time since 1980, the religious right did not get the Republican candidate they wanted.  Trump will not be able to make good on, and has already begun backing away from, his most hateful nativist promises to build a wall along the Mexican border and to deport 11 million people because business elites in agriculture, shipping, service work, and manufacturing depend on immigrant labor.  He has also begun to back away from the most reckless promises about repealing the Affordable Care Act because too many of his likely voters depend on some of its protections.  Unless there is a major attack, Trump cannot use the threat of terrorism, as the George W. Bush administration did, to distract the electorate from serious attention to the declining or stagnant fortunes of the vast majority of Americans.  He ran on domestic economic malaise in the regions of the country that haven’t seen the spectacular increases in wealth of the urbanized coasts, and labor should now hold government to account for doing something about it.

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Picking the New Secretary of Labor: A Backgrounder on Victoria Lipnic

This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.

Victoria Lipnic, now in her second term as an EEOC Commissioner, was one of the 15 recess appointments President Obama made in the spring of 2010. Her reappointment to the Commission was unanimously confirmed by the Senate in 2015. A frequent member of the Commission’s two-person Republican minority, Lipnic served as Assistant Secretary of Labor for Employment Standards in the Bush Administration from 2002 to 2009. During that time she oversaw the Wage and Hour Division’s 2004 overtime regulations, as well as teams managing issues such as workers’ compensation, compliance, and revising FMLA regulations. In addition to her work with the Department of Labor, Lipnic previously served as Workforce Policy Counsel to the Republican members of the Committee on Education and the Workforce in the House of Representatives. Before her work for Congress, Lipnic acted as in-house counsel for labor and employment matters to the U.S. Postal Service and served as a special assistant in the Department of Commerce under Malcolm Baldrige.



Lipnic dissented in the EEOC’s decision in Baldwin v. Foxx, which held that discrimination based on sexual orientation is necessarily a form of sex discrimination, and as such violates Title VII. While Lipnic did join the unanimous opinion in Macy v. Holder, holding that intentional discrimination due to a person’s transgender identity falls under Title VII’s prohibition on sex discrimination, she dissented in Lusardi v. Dep’t of the Army, which held that prohibiting a transgender person from using the restroom of his or her identified gender also constitutes sex discrimination.

Lipnic did separate from the other Republican member to support the 2012 guidance on criminal background checks, which discouraged blanket exclusions of convicted individuals and recommended individualized assessments of whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity. Continue reading

Weekend News & Commentary — November 12-13, 2016

The postmortem continues, as commentators seek to understand the reasons behind Donald Trump’s win this week.  Writing for The Wall Street Journal, Professor Michael Kazin argues that the decline of unions had an important role, creating an institutional vacuum that left white working-class workers vulnerable to Trump’s brand of populism.  NPR breaks down the numbers, suggesting that the GOP’s huge gains in certain states — especially among uneducated white voters — are a sign of the Democrats’ “cratering with blue-collar white voters.”

Meanwhile, questions abound over what a Trump presidency will mean for workers.  On the campaign trail, President-elect Trump talked tough on trade and promised to keep jobs in the United States.  Now, his supporters are counting on him to keep those promises.  The Christian Science Monitor takes a look at whether Trump can deliver on his promise to coal country to “bring the . . . industry back 100 percent.”  And The New York Times shares the perspective of factory workers in Indiana who — having cast their ballots for Trump — now expect him to stop their plants from moving overseas.

Commentators have also started to speculate over the details of the next President’s labor policies.  Fast Company offers a few predictions, including new restrictions on hiring foreign workers and a potential reshaping of the NLRB.  POLITICO weighs the chances that the Labor Department’s overtime rule, set to take effect this December, will survive the Trump administration unscathed.  JD Supra looks at how the Trump administration could shake up the EEOC, starting with personnel changes and a tighter budget.

And finally, lest we forget another big winner in this week’s election, The National Review discusses the renewed momentum of the right-to-work movement.  Republicans who campaigned on right-to-work platforms in three states — Kentucky, Missouri, and New Hampshire — could now be in a position to pass legislation making union dues optional.  Moreover, now that the GOP will be filling the vacant seat on the Supreme Court, the 4-4 split in Friedrichs could also tilt in their favor, extending right-to-work to government employees nationwide.

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.