Because of Sex(ual Orientation)

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees and prospective employees “because of . . . sex.”

In the Supreme Court’s view, this language “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Therefore, since its enactment by President Lyndon Johnson and the 88th Congress during the heyday of the Civil Rights Movement, Title VII has come to proscribe “far more than the simple decision of an employer not to hire a woman for Job A” simply because she is a woman — the paradigm case of sex discrimination. Today, Title VII also protects workers from discrimination based on non-conformity with gender stereotypes, as well as protects workers from sexual harassment in the workplace, including same-sex sexual harassment. To the Court, it is no concern that prohibition of certain employer conduct “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” As Justice Scalia observed for a unanimous Court, “statutory prohibitions [like Title VII] often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Applying these principles, an en banc U.S. Court of Appeals for the Seventh Circuit recently made history by becoming the first federal court of appeals to hold that employer discrimination based on an employee’s sexual orientation is a form of sex discrimination prohibited by Title VII.

Continue reading

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.

Today’s News & Commentary — April 3, 2017

The New York Times has a thorough feature about how Uber is using “psychological tricks” to subtly control the drivers who use the service. The article focuses on how the company “solves” the problem of how it cannot exert too much control over its drivers—currently treated as independent contractors—by using inducements: alerts questioning decisions to log out of the app, reminders of monetary goals, and sending drivers their next ride even before their previous ride is over. In turning the app into a video game, the article—and several researchers it cites—argue that Uber is in reality asserting quite a bit of control over drivers.

California Assemblymember Lorena Gonzalez Fletcher plans to introduce a bill allowing gig economy workers—like Uber and Lyft drivers—to unionize, according to the Los Angeles Times. Fletcher introduced a bill last year attempting to do the same, but pulled it after facing both business and labor opposition. The California push comes at the heels of Seattle’s ordinance allowing ride-hailing drivers to unionize and New York City’s informal union affiliation.

Mother Jones has an article providing more detail into how a private prison company put detained immigrants to work without pay, leading to a lawsuit that was certified as a class action a little over a month ago. By using “voluntary” workers, the prison company—the GEO Group—plausibly saved hundreds of thousands of dollars.

Continue reading

Weekend News & Commentary — April 1-2, 2017

Fox News has paid out as much as $13 million to fend off sexual harassment claims against their top anchor, Bill O’Reilly.  A New York Times investigation has revealed that five women (including employees) have received payouts either from O’Reilly or the network in exchange for their promise not to pursue litigation or speak out in public.  This is the second sexual harassment scandal to hit Fox News in the last year: long-time chairman Roger Ailes resigned in July after several female employees accused him of inappropriate conduct.

President Trump’s nominee for Labor Secretary is on his way to the Senate floor.  On Thursday the Senate HELP Committee approved Alexander Acosta.  No date has been set for the confirmation vote, but the expectation is that he will be approved.  And while Acosta has been welcomed as a far more qualified candidate than Trump’s last nominee, Andrew Puzder, some remain skeptical.  The Nation warns that Acosta’s deference to the President’s labor policies — such as the rollback of overtime rules and the elimination of OSHA training grants — makes him “more dangerous” than he might appear.

Does the United States need a wall?  Not according to the numbers, The New Yorker argues.  A recent paper from researchers at UC San Diego reveals that the pace of undocumented immigration into the United States has slowed over the past decade, meaning that the competitive pressure on low-skilled jobs and wages is easing up.  The dilemma facing the United States is not how to protect its borders, the researchers claim, but rather “how to prepare for a lower-immigration future.”

Continue reading

Today’s News and Commentary — February 28, 2017

The fate of several of President Obama’s signature labor and employment policies could soon hang in the balance.  The Hill reports that “President Trump is facing pressure to roll back union-friendly policy changes made by the Obama-era National Labor Relations Board” from the U.S. Chamber of Commerce.  In particular, the Chamber urged Trump to target “policies that hold companies accountable for labor violations committed by their partners, speed up union elections, and allow small groups of workers to organize multiple unions inside a single company.”  Meanwhile, a Washington Post columnist notes that the Republican Congress is targeting President Obama’s “Fair Pay and Safe Workforces” executive order aimed at ensuring the compliance of federal government contractors with labor laws.

As President Trump acts, Americans work confidently while those without or about to lose work struggle.  USA Today highlights data from payroll company ADP which shows that American workers are increasingly “shifting into new sectors, such as a marketing manager who leaves retail for finance.”  Notably, “in eight of the 10 major industries tracked by ADP, the share of job-switchers who came from a different industry increased from late 2014 to late 2016 while the share swapping jobs within the same industry fell.  That’s up from seven of 10 sectors that met that criteria in the third quarter.”  ADP attributes such shifts to a tight labor market and worker confidence.  Many workers are, of course, struggling.  USA Today also features the story of John Feltner, an Indiana machinist whose union job is being outsourced to Mexico.  Feltner “is left to wonder how Middle America will endure in the age of offshoring moves such as the one [his employer] is executing.”

The reports of sexual harassment of female engineers at Uber continue to make headlines.  According to The New York Times, “the company dismissed the head of its engineering efforts for failing to disclose a sexual harassment claim from his previous job.”  If Americans are surprised by the allegations, many female engineers are not.  The CBC interviewed women in the tech world who note the commonality of harassment and misogyny in the industry.

Continue reading

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.

Weekend News & Commentary — October 15-16, 2016

After a long stretch of stagnating sales and customer dissatisfaction, Walmart recently reported an uptick in business.  How did it do it?  Higher wages for its workers, according to The New York Times.  The retail giant — once famous for its cost-cutting — has flipped the script, offering better pay and more training opportunities for its workers.  And the results have been promising.  For a nation still struggling with slow productivity gains, Walmart’s wage experiment could hold important lessons.

In the aftermath of Donald Trump’s leaked-tape scandalpolls have shown that he has lost support among one of his most important constituencies: the white working class.  This latest tumble in the polls has been due in large part to white working-class women; although Trump still maintains a lead over Hillary Clinton among white blue-collar male voters, Clinton has now pulled even among their female counterparts.  POLITICO examines this gender gap, reporting on the growing rift between white working-class women and the GOP.

Meanwhile, as more women come forward with sexual harassment allegations against Trump, a national conversation has started about the prevalence of sexual harassment in the workplace.  NPR discusses the persistence of the problem — last week, fifteen McDonald’s workers filed harassment charges with the EEOC — while Fortune offers a look back on its long history in the American workplace.

Continue reading