Abortion Restrictions as Forced Labor in the Age of Trump

The new administration has made no secret of its intent to dismantle remaining protections for reproductive rights.  Despite the fact that 79 percent of Americans think abortion should be legal in at least some circumstances, President Trump and Vice President Pence have both made statements indicating their desire to overturn Roe v. Wade, and Trump’s Supreme Court nominee Neil Gorsuch is likely to be hostile to reproductive rights.  The administration has also made moves to defund Planned Parenthood via the global gag rule, entrench the Hyde amendment, and repeal the contraceptive mandate of the Affordable Care Act.  A drastic anti-choice bill was introduced in Congress that would ban abortion after six weeks, a point at which many people do not even know they are pregnant.

These attempts to constrict reproductive choice are not only an affront to the basic principles of liberty and privacy that underlie this country’s abortion jurisprudence, but also a threat to the labor rights of anyone capable of becoming pregnant.  Should the new administration’s assault on reproductive rights come to fruition, many of those capable of becoming pregnant will be coerced into pregnancy and parenthood—a kind of labor they did not choose.  These burdens will be placed most severely on low-income women and women of color who cannot afford to access reproductive services.  Cuts to funding and services will further negatively impact trans men, who already face ignorance and discrimination when trying to access reproductive healthcare.

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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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Today’s News & Commentary — February 8, 2016

Yesterday, Republican lawmakers “proposed sweeping changes to Iowa’s collective bargaining laws” in the form of House Study Bill 84 and Senate File 213.  As the Des Moines Register explains, the new bills would limit mandatory negotiations for most public-sector union workers (public safety workers such as firefighters and police officers are exempted) to base wages only; negotiations over issues like health insurance and overtime would be prohibited.  The bills would also require unions to go through a certification process before each new contract negotiation.  Additional coverage is available at the New Republic, which also provides a brief historical overview of collective bargaining law in Iowa.

The New York Times reports that New York is attempting to revive the once-thriving, now-troubled garment industry.  City officials have increased efforts to create a new garment industry in Sunset Park, including a $115-million renovation of the city-owned Brooklyn Army Terminal, which will expand manufacturing space by 500,000 feet.  They have also partnered with the Council of Fashion Designers of America in order to assist companies with modernizing their manufacturing processes and workplaces.

Can Andy Puzder survive?  That’s the question Politico asks, noting that Puzder has faced allegations of beating his wife, began his career working for “one of the most notorious mob lawyers in the country,” and just admitted that he employed an undocumented immigrant as his house cleaner and didn’t pay taxes on her employment.  Despite these scandals, however, Puzder is “somehow . . . still standing.”

In other news, the New York Times observes that the appeals panel that heard oral argument yesterday in State of Washington v. Donald Trump “appear[ed] skeptical of Trump’s travel ban.”  The Times also notes that nearly 130 companies, most of them from the tech industry, filed an amicus brief in support of Washington State.

 

Gorsuch’s Judicial Approach and Workplace Protection

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Guest Post: An Obama Executive Order That Trump Should Love

Sharon Block served in the Obama Administration as the Principal Deputy Assistant Secretary for Policy at the Department of Labor and Senior Counselor to the Secretary of Labor.  In February, she will become the Executive Director of Harvard University’s Labor and Worklife Program.  Chris Lu served in the Obama administration as the Deputy Secretary of Labor, and is now a Senior Fellow at the University of Virginia Miller Center.  This post originally appeared in The Huffington Post.

As former political appointees in the Obama administration’s Labor Department, we can think of few areas where we are in agreement with Donald Trump.  In fact, we have fundamental differences with him about how to build an economy that works for everyone.

Yet, we share his belief that government needs to do more to lift up American workers.  If the new president is interested in delivering on his promise of creating jobs and growing wages for workers, there’s an executive order already in place that he should support.

Every year, the federal government spends hundreds of billions of dollars on procurement contracts.  By some estimates, one quarter of all American workers are employed by a federal contractor — that’s millions of families whose livelihoods are connected to the federal procurement system.

In 2014, Barack Obama signed an executive order called “Fair Pay and Safe Workplaces” that was premised on two fundamental principles: doing business with the federal government is a privilege, not a right; and taxpayer money should only go to companies that are abiding by the laws that protect American workers.  Under the Obama executive order, the federal government would give contracts only to companies that pay their workers the wages they’ve earned, protect the health and safety of employees, and prohibit discriminatory practices.

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Today’s News & Commentary — January 31, 2017

2017 could be a tough year for labor unions at the state level.  According to NPR, Kentucky has become the nations’s 27th “right-to-work” state, and Missouri and New Hampshire could join it in February.  New Hampshire would become the first “right-to-work” state in the Northeast.  Advocates in New Hampshire claim that “right-to-work” will entice businesses to relocate to the state, while opponents assert that “right-to-work” creates free rider problems and constitutes political reprisal against unions for supporting Democrats.

At the federal level, things might not be much better.  The Washington Examiner reports that two Republicans will introduce national “right-to-work” legislation tomorrow.  President Trump’s purported support has “right-to-work” advocates optimistic, despite previous failures in Congress.

With respect to President Trump’s agenda, unions are prepared to fight.  Per Bloomberg BNA, “labor groups representing immigrants, women, blacks, Latinos and Asian-Americans vowed collective action against President Donald Trump at a rally in Washington Jan. 27” and “[Representatives from AFL-CIO constituency groups] promised grass-roots organizing with regional union chapters to protect immigrants and union workers and to ensure sanctuary cities remain.”

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The Supreme Court Vacancy and Labor: William Pryor

President Donald Trump plans to announce his nominee to fill the late Justice Scalia’s seat on the Supreme Court this Thursday.  Among the rumored candidates is Judge William H. Pryor Jr. of the 11th Circuit, who met with the president two weeks ago.  Judge Pryor was appointed by President George W. Bush to his seat in Alabama in 2005 after the Senate voted to confirm him 53–45.  From 1995–97, Judge Pryor served as a deputy attorney general of Alabama.  He was elected as Alabama’s Attorney General in 1997, at 34 years old, and served in that position until his nomination to the 11th Circuit.  SCOTUS Blog has extensively covered Judge Pryor’s record on a variety of legal topics, but did not discuss the judge’s record on labor and employment.  We do so here.

Judge Pryor has not developed a particular reputation with respect to labor and employment law, but one impression that emerges from a look at the admittedly few labor and employment opinions he has written or joined is deference to the determinations of the NLRB.

Unlike his fellow shortlist member Neil Gorsuch, Judge Pryor has not publicly expressed concern over excessive deference to administrative agencies.  His NLRB opinions reflect a preference for deferring to agency interpretations and findings.  Out of nine cases he heard in which the NLRB was a party, Judge Pryor sided with the NLRB in eight of them.  In seven of these cases, Judge Pryor found that “substantial evidence” supported the NLRB’s determinations.  Judge Pryor was part of the unanimous or per curiam opinion in six of these cases.  In Lakeland Health Care Assocs. v. NLRB, Judge Pryor dissented from the majority opinion holding that substantial evidence did not support the NLRB’s decision to not count defendant employer’s licensed practical nurses as supervisors, thereby precluding their attempts to unionize.  Criticizing the majority, Judge Pryor wrote, “[i]n reweighing the facts and setting aside the Board’s order, the majority opinion ‘improper substitute[s] its own views of the facts for those of the Board,’ […] and fails to adhere to our deferential standard of review.”  696 F.3d 1332, 1350 (11th Cir. 2012).  He recognized that though some circuits gave a less deferential standard of review to NLRB determinations of who counts as a “supervisor” under § 2(11) of the NLRA, “our Court has refused to make ‘judicial adjustments to the statutory standard of review because we believe the wiser course is a robust application of the standard that has typified review of Board decisions.’”  Id. (citations omitted). Continue reading