News & Commentary

October 30, 2020

Alexandra Butler

Alexandra Butler is a student at Harvard Law School.

According to the Department of Labor, last week, an additional 732,000 people sought unemployment assistance for the first time. While this marks a decrease in new weekly claims, this number only tells part of the story. The Pandemic Unemployment Assistance Program, which provides relief to gig workers, saw new claims increase by 15,000. Moreover, increased participation in the Pandemic Emergency Unemployment Compensation program reveals that many workers now face extended periods of job loss, the program serving as a lifeline for those who are no longer covered by state unemployment insurance. In addition, the pandemic’s devastation to the workforce continues to disproportionately impact Black and Latino workers. According to the New York Times, some economists note that any path forward must prevent long-term unemployment, a task that could prove difficult as business and spending patterns shift in response to surges in COVID-19 cases. 

On Thursday, the NAACP filed a class action against President Trump, the Department of Labor and Labor Secretary Eugene Scalia that called into question the constitutionality of Executive Order 13950 (E.O. 13950). E.O. 13950 prohibits federal contractors from implementing diversity training programs that focus on what the Order refers to as “divisive concepts.” Under the Order, such concepts would include, according to the Trump Administration, training on white privilege or systemic racism. In its complaint, the NAACP argues that E.O. 13950 amounts to unconstitutional viewpoint discrimination under the First Amendment, given that “[t]he order identifies viewpoints that the Trump Administration dislikes . . . and attempts to purge them from the national conversation by denying benefits, such as government contracts and grants, to private entities like [the] Plaintiffs.” In so claiming, the NAACP notes that “[t]he Order was intended to have, is having, and will likely to continue to have, the effect of chilling constitutionally protected speech on issues of racial and gender equality as well as efforts to reckon with historical systems of oppression in order to shape a more just and fair society.” In addition, the NAACP also alleges that the Order is vague and thus constitutes a violation of due process under the Fifth Amendment. 

recent lawsuit brought by the American Federation of Teachers (AFT) and the American Federation of State, County and Municipal Employees seeks to compel the Occupational Safety and Health Administration (OSHA) to finally issue a permanent infectious disease rule to address healthcare worker safety. OSHA has been developing the standard for the past ten years. Since 2017, however, the rule has taken a backseat due to the Trump administration’s recategorization of the process as a “Long Term Action.” The lawsuit emphasizes that, although the pandemic has exacerbated safety risks, these risks have always been present in healthcare facilities. 

A recent article entitled, 2020 Supreme Court Commentary: Employment Law, provides readers with a detailed summary and in-depth analysis of both the Supreme Court’s employment-related decisions from the past term, as well as a preview of future cases. In doing so, the author, Jonathan R. Harkavay, argues that the 2019-2020 SCOTUS opinions reveal a potential threat to the “legislative imperative of workplace fairness,” as demonstrated by “an unsettling thread of religious and moral liberty running through the opinions that would excuse compliance with generally applicable laws.” For example, in focusing on the Court’s decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) (extending Title VII’s ban on sex discrimination so as to protect gay and transgender employees), Harkavay highlights that Justice Gorsuch’s majority opinion leaves open a potential path to limit Bostock‘s scope in cases involving religious liberty and freedoms.

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