Today’s News & Commentary — April 19, 2017

The New York Times weighs in on the effect that Trump’s “Hire American” order may have on tech worker visas.  According to the Times, the order “represents a small win for bigger tech companies,” but may hurt smaller technology companies that “cannot afford to pay high salaries and are already struggling to attract talent.”  Senator Schumer, however, had a different take: “This does nothing,” he said. “Like all the other executive orders, it’s just words — he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”

Is O’Reilly no longer a factor?  That’s the question being asked at Politico, which cites the Wall Street Journal’s report that Fox News “is preparing to cut ties with . . . O’Reilly.”  Since an April 1 New York Times story broke the news that Fox had paid out about $13 million to settle sexual harassment allegations against O’Reilly, pressure has been mounting on Fox to fire its biggest star.

As the New York Times puts it, “[t]he threat of a Hollywood strike is getting real.” Members of the Writers Guild of America will begin voting today on whether to authorize a walkout.  If members approve a strike, it could have “serious implications.” When writers went on strike a decade ago, it cost the Los Angeles economy an estimated $2.5 billion, affecting everyone from the writers themselves to caterers, limo drivers, and florists.  As for how a strike would affect viewers, the Times explains that late-night comedy shows would screen reruns, some scripted series would be delayed, and daytime soap operas would probably end (unless producers bring in non-union writers).  A strike might also speed the shift from network viewing to Netflix and Amazon.

Dressing as Yourself: RFRA Exemptions from Title VII’s Transgender Protections

In 2012, the EEOC ruled in Macy v. Holder that Title VII’s prohibition against sex discrimination included discrimination against transgender employees. The unanimous decision was the first time the EEOC held that transgender people are protected from discrimination by federal law. Its decision was binding on federal employers and made legal protection accessible to employees experiencing workplace discrimination based on gender identity.

No Article III court has yet to establish that transgender status is a protected class under Title VII. However, some circuits, like the Sixth and Tenth circuits, have found that Title VII protects transgender employees from sex discrimination under the gender-stereotyping theory of sex discrimination. In Price Waterhouse Coopers v. Hopkins, partners sexually discriminated against Ann Hopkins, a senior manager up for partnership, because they criticized her for failing to conform to female stereotypes. Though she was an “outstanding professional” with “independence and integrity,” she was aggressive and macho. She was told to walk, talk, and dress more femininely and wear make-up and jewelry.

If employers discriminate against women who fail to wear dresses or makeup, then employers also discriminate against men who do wear dresses or makeup and do not meet normative expectations of masculinity. Transgender individuals face sex discrimination when employers make decisions based on whether they acted in accordance to the stereotypes of their biological sex. The EEOC has successfully brought many suits under this gender-stereotyping theory; consent decrees have required employers to pay damages, retain experts to develop trainings on LGBT workplace issues, and more. However, developments towards greater protections have been met with increasing resistance through the Religious Freedom Restoration Act (RFRA).

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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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The Modeling Industry Needs a Makeover. A Bill in CA Offers Hope.

A girl walks into a job interview.  After engaging in some small talk with her prospective employer, she is asked to undress and perform a sexual act right then and there.  Outrageously inappropriate?  Yes.  Illegal sexual harassment within the modeling industry?  Sadly, not yet.

A friend of mine who is a former model allegedly experienced this scenario when her agent sent her to a casting with top photographer Terry Richardson.  She’d be told that working with Richardson, who lensed covers for Harper’s Bazaar and Rolling Stone and advertising campaigns for the likes of Gucci and H&M, could be her big break.  She booked the job, but had gone home in tears and turned it down.  When she told her agent what had happened, her agent said he didn’t see the problem.

Despite the significant control that modeling agencies and clients exert over models’ working lives, they generally insist that models are independent contractors, not employees.  As contractors, models do not benefit from the laws intended to curb sexual harassment on the job.

Widespread Sexual Abuse

Numerous models have accused Richardson and other powerbrokers in the fashion industry of sexual abuse.  In many cases, the allegations go beyond mere harassment.  In 2008, the fashion designer Anand Jon was found guilty of rape and multiple counts assault of aspiring models who ranged from 14 to 21 years old.  In her memoir, Beauty, Disrupted, published in 2011 by Harper Collins, supermodel Carré Otis named the man who she claims raped her repeatedly when she was 17-years-old: Gérald Marie, her agent at the time, and the head of her modeling agency.  Model-turned-mental health advocate Nikki DuBose recently described being drugged and raped by a photographer at a meeting arranged by the director of her modeling agency, who she was also pressured to sleep with; “When I did, I worked more, and when I didn’t the work stopped coming.”

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Today’s News & Commentary — October 27, 2015

The New York Times has more on the recently-announced tentative agreement between the United Auto Workers and General Motors.  Union leaders from plants across the country will meet Wednesday to hear details about the plan and decide whether to approve and submit it to members for a vote.  As with the initial announcement, details of the agreement remain undisclosed.  The International Business Times reported further about the United Auto Workers negotiations with automakers and the implications of pattern bargaining for manufacturing sectors.

According to Engadget, Democratic presidential candidate Bernie Sanders spoke at a picket line with Verizon workers in New York.  40,000 Verizon employees nationwide have been without a union contract for months.

As New York moves toward adopting a $15 an hour wage for fast food workers, restaurateurs and the public remain at odds.  The Journal News reports that the National Restaurant Association “filed a challenge late last week with the state Industrial Board of Appeals, asking the panel to throw out a September order from the state Department of Labor implementing a higher minimum wage at fast-food chains like McDonald’s and Burger King.”  The appeal is a precursor to any future court battle.  Meanwhile, according to WBNG News, a Siena Poll released Monday found that 62% of New York voters support the wage increase.

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Today’s News & Commentary — July 15, 2015

Employees have filed a class action suit against Walmart for discriminating against gay employees, Bloomberg reports, by not providing health insurance to same-sex spouses.  According to named plaintiff Jacqueline Cote’s statements in the complaint, Walmart failed to provide health insurance to her wife for years, in violation of the 1964 Civil Rights Act and Massachusetts fair-employment law.  Although Walmart changed its policy in 2014, Cote’s wife already had $150,000 in out-of-pocket expenses battling ovarian cancer.  The complaint argues Walmart’s actions amount to sex discrimination, since benefits would have extended to Cote’s spouse, and others, but did not because of their sex.  As Carisa Cunningham, of Gay & Lesbian Advocates & Defenders, explained, “Benefits provided as a matter of grace, not right, are not secure.  Walmart’s policy change was voluntary, and we seek a court order to ensure that the change is permanent.”  The case is Cote v. Wal-Mart Stores Inc., 1:15-cv-12945, U.S. District Court, District of Massachusetts.

Almost half of the staffers working on Capitol hill get paid less than $50,440, according to Politico.  Nevertheless, the Obama administration’s proposed overtime rule would not apply automatically to congressional staff.  The Office of Compliance, the congressional agency that enforces work rules under the Congressional Accountability Act, will draft a regulation to make Capitol Hill compliant, but legislators will need to sign off on it in order for it to take effect.  Even though the CAA was a product of the 1994 “Republican Revolution,” and Republicans’ pledge to “hold congressional Democrats accountable to whatever rules on others,” today’s congressional Republicans oppose the overtime rule.  Under the current rule on Capitol Hill, staffers only qualify for overtime pay if they make less than $8,060 a year, about one-third the decades-old national standard.

Earlier this week, the Los Angeles Times reported that California legislators are considering a bill that would grant work permits to farmworkers living in the US without authorization and working in agriculture.  Three years ago, a similar effort failed, as immigrant rights groups and labor unions pushed national immigration reform instead of state-by-state programs.  “Here we are three years later, and we can’t wait any longer,” said Assemblyman Luis Alejo, who introduced the current bill.  The bill would grant permits for farmworkers and their immediate families, with the exception of those with felony or three misdemeanor convictions.  California farmers are supportive of the bill, which passed in the Assembly and is pending in the state Senate. Continue reading