Today’s News & Commentary — February 8, 2019


Published February 8th, 2019 - 02.08.196


Yesterday a three-judge panel of the Fifth Circuit Court of Appeals decided against a transgender employee who brought a claim of discrimination on the basis of sex under Title VII.  Nicole Wittmer, a transgender woman, sued Phillips 66 after the company withdrew an employment offer it made to Wittmer after interviewing her.  The company claimed that it rescinded the offer because it found discrepancies between Wittmer’s stated and actual employment history in a routine background check.  The district court granted Phillips 66’s motion for summary judgment because Wittmer failed to make a prima facie case of discrimination.  But the district court judge said that cases in other circuits extending Title VII’s protections against discrimination on the basis of sex to discrimination on the basis of gender identity and sexual orientation were “persuasive.”  Before the Fifth Circuit, Phillips 66 rested its case on the absence of a prima facie claim, perhaps fearing reputational harm if it challenged the scope of Title VII.  The Fifth Circuit panel ruled for Phillips without reaching the Title VII question.  But in his concurrence, Judge James Ho rejected the notion that Title VII protected LGBTQ workers from discrimination on the job.  He contended that Title VII is meant to prevent employers from favoring men over women or women over men, rather than requiring that an employer be blind to an employee’s sex as arguments extending Title VII depend on.

Representative Alexandria Ocasio-Cortez and Senator Ed Markey introduced a resolution that, if passed, would signal Congress’ support for a Green New Deal.  They describe the Green New Deal as a plan that would “achieve net-zero greenhouse gas emissions through a fair and just transition for all communities and workers,” but they leave open many details to be decided in an eventual bill.  The resolution states that the Deal “must be developed through . . . partnership with frontline and vulnerable communities, labor unions, worker cooperatives [and others]” and must ensure the “creat[ion of] high-quality union jobs,” “guarantee[] a job with a family-sustaining wage,” and “strengthen[] and protect[] the right of all workers to organize, unionize, and collectively bargain free of coercion, intimidation, and harassment.”

In Bloomberg Businessweek, Janet Paskin writes about how workers are organizing online and making their own demands of employers as traditional unions and class action lawsuits suffer legal challenges.  Paskin highlights social media platforms like Facebook and Twitter, as well as worker-focused tools like Coworker.org and Organization United for Respect (OUR), that have allowed workers to find each other, discuss shared issues, and make public demands.  She situates the rise of worker organizing within the broader rise of political activity since the 2016 election.

Yesterday the U.S. House Committee on Education and Labor held a full day of hearings on the Raise the Wage Act, which would bring the federal minimum wage to $15 by 2024.  Workers testified about struggling to make ends meet working multiple jobs at the federal minimum, while economists sparred over whether a higher minimum could deliver wage gains without job loss.  Highlights are available in the Committee’s latest edition of Hearings in a Hurry.  The Illinois Senate passed its own bill yesterday that would gradually raise the state minimum wage to $15 by 2025, moving the fight to the House.  Governor J. B. Pritzker is expected to sign the bill into law if it clears both chambers.

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