Archive for the 'Discrimination' CategoryPage 2 of 17

The Wage Gap: Women Face Lower Wages than Men Based on Salary History

Aileen Rizo was excited to start her new job as a math consultant for Fresno County schools. After working as a schoolteacher in Arizona for 13 years, she began her new job in 2009 with a $62,733 salary. The salary was based on an automatic system where the County added 5% to the applicant’s previous pay rate.

Three years later, Ms. Rizo discovered during lunch hour conversations that a recent hire in her position was earning $79,000 a year. After asking around, she learned that all her male co-workers in her position were also making more than she was. Ms. Rizo filed suit.

The County argued that the Equal Pay Act creates exemptions based on factors other than sex, including seniority, merit, and quality or quantity of work. Salary history could be another factor added to the list. Ms. Rizo won in the trial court, but the three judge appeals panel on the Ninth Circuit agreed with the County and overturned the lower court’s ruling. Rizo’s attorney is considering an appeal to the Supreme Court.

working womenSalary History Could Make Sexism in Pay Rates Worse

The Ninth Circuit panel’s ruling has been widely criticized as perpetrating institutional sexism.  If women are paid 80 cents for every dollar a man earns, then salary history would only continue that trend. In fact, no matter how qualified the woman, she would never catch up with her male counterpart if the system automatically gave them each 5% per year. In fact, the pay rate difference would actually increase which will create a permanent wage gap.

Below is a chart showing this exact issue (all numbers rounded up). If a man earns $79,000 a year and a woman holding the same position earns $62,733 a year and they both received a 5% increase per year, than the difference between their pay rates would slowly climb up over the years:

Women Annual Income Women Hourly Rate Men Annual Income Men Hourly Rate Difference Between Hourly Rates
$62733

 

$33 $79000 $41 $8/hour
$65870

 

$34 $82950 $43 $9/hour
$69164 $36 $87098 $45 $9/hour
$72622

 

$38 $91453 $48 $10/hour
$76253 $40 $96026 $50 $10/hour

 

However, the County’s argument is a fair one. The County did not enact the discrimination, even if the previous salary history was based on sexism. However, there would be no way for the County to know whether a woman earns less than her male co-workers because of her sex or because she’s not a good worker. Ms. Rizo would be well-served if she compared her salary to her female co-workers as well as her male co-workers.

If every woman holding the same position made less than men working the same position, than there would likely be systemic discrimination, even if the County itself did not enact the discrimination. On the other hand, if Rizo’s income is lower than other women as well as other men, than the issue probably lies with Rizo’s performance or career path rather than her sex.

Removing Human Discretion Does Not Make a System More Fair

The biggest issue with this debate is whether systemic sexism is holding half the population back or whether the system truly promotes individual merit. Regardless of which side of the debate you find yourself in though, there is one point that should be obvious. The County argued that since they give everyone they hire a 5% increase regardless of where they came from, then the system cannot be discriminatory. Everyone is given the same 5% raise and there is no human being who could unfairly discriminate based on inappropriate factors.

This assumption, that automation is fairness, needs to die. Simply giving out a 5% increase does nothing to combat inappropriate discrimination because the discrimination is built into the system itself. If a woman always earns less than men, then giving both sexes the same increase does nothing to resolve the issue. Likewise, even if you believe that increases are appropriate, then such increases would also hold back men who deserve the increase, regardless of the sex of their competition.

In short, automation of a system hurts everyone. One can see the same effect in mandatory minimum sentences in criminal law. By taking away human discretion, the system arbitrarily perpetuates increased sentences rather than treating people more fairly. Americans want to increase fairness and so they remove human input. But if some people’s discretion can be biased against a certain class of persons, discretion can also remove it.

Same-Sex Couple Sues County Clerk after Insults while Applying for Marriage License

Many look back at the day they were married as the happiest day of their life. However, one West Virginia couple have been forced to look back at the day they received their marriage license as a day of tears, embarrassment, and recrimination. Samantha Brookover and Amanda Abramovich, a lesbian couple that had been together since high school, had already been married in front of their family and friends back in September 2014. When they went to the Gilmer County courthouse to get a marriage license and make it official, they were greeted with lies and verbal abuse.

What Happened?

After the Supreme Court upheld the decision of a Virginia District Court ruling Virginia’s statutory and constitutional ban on same-sex marriage unconstitutional in 2014, the West Virginia Governor Ray Tomblin ordered state agencies to grant marriage licenses to same-sex couples. It was after this order that the happy couple went, for the first time, to seek a marriage license. This first time, they were greeted at the Gilmer County Clerk’s Office by Deputy Clerk Debbie Allen. After asking for their marriage license, Ms. Allen turned the couple away, lying to their face and telling them that they required a drivers license to get a marriage license. Brookover and Abramovich relied on Ms. Allen’s statements and left.

After this first failed attempt, it took some time before the couple sought a marriage license again.  During their delay, the Supreme Court ruled in Obgerfell v. Hodges that same-sex marriage is a constitutional right across the nation. After this ruling, they again returned to the Gilmer County Clerk’s Office–this time with family in tow to celebrate the occasion. They again encountered Debbie Allen, but this time Ms. Allen was not content to simply turn them away on false pretenses. As she performed the paperwork to celebrate the love of a couple that had been together for years, Ms. Allen repeatedly insulted them. She called them names, called them an abomination to God, and finished by slamming the paperwork down and telling the couple that God would “deal” with them. When asked to stop, she told the couple, their family, and their 3-year-old niece that her statements were her religious right so long as she gave them the certificate. She also told them that nobody would perform their marriage in Gilmer County. The couple, in tears,allegedly signed the documents with shaking hands and left.

After the incident, Brookover’s mother called the County Clerk Jean Butcher to report the behavior of her subordinate Ms. Allen. Butcher told her that she knew what happened and supported Allen, other same-sex couples could expect the same or worse at the Gilmer County Clerk’s Office. Having had enough, the couple finally decided to sue.

same-sex coupleAllen and Butcher obviously have a different account of the encounter in their interviews with the media–although less different than you would imagine.  Allen says she “briefly and calmly told the couple what they were doing was wrong and that God would judge them, and then continued helping them, as she would other couples,” Butcher told the news that she simply told Brookover’s mother that she supported Allen’s actions.  She went on to say that it didn’t matter how they were treated so long as they received a license.

In the assertions within the couple’s lawsuit they claim that they have uncovered evidence that the treatment they received was a premeditated policy of the Allen and Butcher.  Allen had told other employees at the courthouse that she intended to humiliate and refuse a license to any same-sex couples which came in.  Butcher had previously told her employees that she would vouch for any employee who committed such harassment or refused a marriage license to a same-sex couple.

The Couple’s Lawsuit

The suit, brought in April on the behalf of Abramovich and Brookover by Americans United for Separation of Church and State, alleges that this harassment unconstitutionally denies them–any any same-sex couple–equal access to the services of the Gilmer County Clerk’s Office. This is a claim made under the Equal Protection Clause of the Fourteenth Amendment.

The Equal Protection Clause forbids states from denying to any person equal protection of the laws.  Sexual orientation has been a tricky subject when it comes to equal protection over the years. While discrimination based on race, national origin, or religion are held to highest levels of scrutiny before being approved, discrimination based on sexual orientation is held to the lowest level of scrutiny. However, the might to marry specifically has been ruled as a fundamental right of same-sex couples under the Equal Protection Clause. This means that, if the Gilmer County Clerk’s Office’s policy of harassment denies equal access to marriage to same-sex couples they have acted unconstitutionally.

While Allen and Butcher allege that such speech is their religious right, they fundamentally misunderstand their rights in this scenario. While they may individually have a First Amendment right to whatever hateful speech they wish, they do not act as an individual in their capacity as County Clerk and Deputy. They are representatives of the state and their actions and the policy

History Of Clerks Acting Out Against Same-Sex Couples

Ever since the Supreme Court ruled same-sex marriage a constitutional right in Obgerfell, the ruling has led to clerks refusing to do their duty.  Perhaps the most famous instance of this is well publicized case of Kim Davis.  In her case, and in many other states, laws have been passed either taking the names of clerks off marriage licenses or allowing clerks to recuse themselves from issuing same-sex marriage licenses.

For example, Texas has recently been considering S.B. 522 would allow any clerk to refuse to issue marriage licenses to same-sex couples if they have a personal objection and instead delegate the duty to another.  Such laws are likely constitutional on their face, but could be unconstitutional in practice.  As Gilmer County proves, if a group of clerks all refuse to issue marriage licenses to same-sex couples they could create unconstitutional roadblocks to marriage through their policies.

White House Emboldens Such Action

We recently discussed the new “religious freedom” executive order out of the White House. Specifically, we discussed that it accomplishes virtually nothing in practical terms. However, while essentially impotent as an action, what it does accomplish is emboldening the hate of people like Ms. Allen and Ms. Butcher. The order does not, could not and should not, provide protection to federal employees performing their duties based on a claim of religious objection. However, in the face of being called an abomination in front of their families, it’s doubtful that the legal effect of the order will make Samantha Brookover and Amanda Abramovich feel much better about what it implies about the future of their rights.

Not a Hate Crime, WV Supreme Court Determines about Attack on Gay Men

In April 2015, Steward Butler was in his car at a stoplight when he saw two men kissing on the sidewalk. He directed homophobic comments toward them, then exited his car and punched both men in the face. He was charged with battery, as well as violations of an individual’s civil rights under West Virginia Code Section 61-6-21(b), which makes it unlawful to injure a person because of that person’s “sex.” Though Butler was found guilty of battery, the lower court ruled he had not committed a civil rights violation under Section 61-6-21(b) because his assault on the men was not based on their “sex,” a term the court asserted was unambiguous and could not be expanded to include “sexual orientation.” The West Virginia Supreme Court upheld the ruling.

Sex v. Sexual Orientation

In reaching its decision, the Court explained that because use of the word “sex” in the statute was unambiguous, it should not be subject to interpretation and its plain meaning should be applied. Further, a word used in a statute is not deemed ambiguous merely because the parties in the case do not agree on its meaning.

The Court asserted that because the word “sex” was not defined in the statute, it was required to apply the “common, ordinary and accepted meaning.” In this case, it argued, “sex” and “sexual orientation” have different meanings. Referencing dictionaries to explain the difference, the Court explained that “sex” involves the physical structures such as genitalia and functions that separate males and females. By contrast, “sexual orientation” is about an individual’s sexuality or predisposition when it comes to sexual behavior and activity with other males or females.

Other States Have Included “Sexual Orientation” in Their Statutes

The Court went on to say that most of the states have enacted hate crime statutes, and there is an irrefutable distinction between “sex” and “sexual orientation” among the states. Six states, including West Virginia, use the term “sex” or “gender.” With respect to 20 of the states, the legislature used the term “sex” or “gender” in addition to the term “sexual orientation.” Six other states mention only “sexual orientation.” Some states use the terms “sexual orientation” in addition to “gender expression” or “gender identity.” Finally, certain states do not use any of these terms. Moreover, the Court pointed out that there have been prior court decisions on the matter involving states that use only the word “sex” in their hate crime statutes, and in these cases the courts did not define it to include or exclude “sexual orientation.”

Hate Crime

West Virginia’s Legislature Has Indisputably Left Out “Sexual Orientation”

According to the Court’s analysis of the legislature’s intent, it is undeniable that the term “sexual orientation” has been purposefully left out of the state’s hate crime statute. Since the statute’s enactment in 1987, the legislature has failed to add the term “sexual orientation.” Thus, the Court asserted, it must recognize the legislature’s intent to not include “sexual orientation” in the statute.

Dissenting Justices: Majority’s Take on the Law is Wrong

Justice Workman and Justice Davis wrote a dissenting opinion, arguing the majority opinion showed a detrimental misunderstanding of the phrase “because of . . . sex” in the statute. The Court is required to look at the entire language of a statute, and in this case, the dissenting Justices assert, the victims were assaulted because of their sex. In a hate crime situation, it is the bias and motivation for the crime that are ultimately punished, and the victims were clearly attacked because they were not behaving in a manner their assailant perceived men should behave with other men.

Justices Workman and Davis supported their argument with a case that came under Title VII of the Civil Rights Act of 1964. There, a female manager was denied partnership at her accounting firm and told she should act and appear more feminine. The case came before the U.S. Supreme Court, which concluded the phrase “because of . . . sex” in the federal statute included mistreatment due to gender stereotypes. According to Justices Workman and Davis, the woman was discriminated against not just because she had the anatomical parts of a female, but because she did not conform and act in the manner she was expected to as a woman in a corporate setting. But for her sex, Justices Workman and Davis argue, the woman in the accounting firm would not have been discriminated against. Likewise, but for their sex, the two male victims in this case would not have been attacked by the defendant.

That Victims Suffered “No Injustice” Is Highly Questionable

The Court stated in its opinion that, despite the dismissal of the hate crime charges, there was no injustice because the two counts of battery against Butler were upheld. This remark is undoubtedly an oversimplification of the meaning of hate crimes and what justice means for its victims.

Religious Liberty Executive Order, Is It Something to Fear?

Recently, President Trump signed a new executive order titled “Presidential Order Promoting Free Speech and Religious Liberty.” While the order is not a surprise, what came out of the White House was very different from expected. Early drafts of the order, leaked by White House aides, included sections which permitted discrimination based on faith. These provisions would have almost been unconstitutional, and several organizations promised lawsuits if the order takes effect.

However, while Trump is no stranger to signing overreaching orders into effect which are later found unconstitutional, this most recent order is different. Instead, this order fits into another common theme for Trump executive orders: symbolic orders that basically do nothing on a legal level. After the order was published, the ACLU said that they didn’t think it was worth the time or resources of challenging the order. They described it as “an elaborate photo-op with no discernible policy outcome…[which] does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process.”

The order has three parts that could have some effect: 1) the government will enforce existing laws protecting religious freedom; 2) the agencies of the executive branch will temporarily not enforce a law preventing churches from participating in political campaigns–as much as is allowed by law; and 3) in the future the Secretary of Health and Human services will introduce regulations on already existing law regarding the contraceptive mandate of the Affordable Care Act (ACA). That may sound like an order that stands to substantially alter the face of the law. But a closer look will show that is not the case.

Vigorous Enforcement of What’s Already There

The first section of this new order promises that “the executive branch [will] vigorously enforce Federal law’s robust protections for religious freedom.” So basically, the executive branch promises to enforce the laws that are already in effect.

So what does this section accomplish or mean? Effectively nothing. It does not guarantee protection to federal employees who want accommodations over religious beliefs. It changes no laws or approaches. It promises no concrete changes. It does actually nothing. So, with that out of the way, let’s move on to sections that have marginally more impact on the state of the law.

Religious LibertyRelaxing the Johnson Amendment

The next section of the order promises that “all executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.” This by itself is so vague, it can’t be relevant. But, the section goes on to specifically target the Johnson Amendment.

The Johnson Amendment is an element of the code used by the Internal Revenue Service. It says that a 503(c) tax-exempt company–basically any non-profit whether secular or non-secular–may not “directly or indirectly [participate] in, or [intervene] in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

The law itself already saw very infrequent application. But, the order states that the Department of the Treasury will take adverse action under the Johnson Amendment against religious organization for talking about politics from a religious perspective as little as possibly permitted while still following the law. This could mean anything from a relaxed standard about prosecution to nothing as the Johnson Amendment itself is law. It is most likely meant to imply that the IRS will be less likely to penalize of revoke 503(c) status for religious organizations or persons who are openly involved in politics. Including speeches or monetary contributions.

No matter what the order says, it’s actual effect has limits. No executive order can overcome or repeal an act of congress such as the Johnson Amendment. Nor can it repeal any existing regulations. The most it can do is relax the approach to this law temporarily. But doing so provides no benefit to organizations normally covered by the Johnson Amendment. This is because any religious organization which takes advantage of the relaxed enforcement–despite the uncertain level of protection the order provides–will just find itself in hot water in a few years upon the inevitable repeal under a new president.

But what exactly does this section of the order do? Pretty much nothing. It doesn’t have an effect, relaxing the enforcement of the Johnson Amendment is an actual change in approach if the Department of the Treasury changes how it handles Johnson situations. However, no lawyer could recommend taking advantage of such tenuous promises without an actual repeal of the law.

Targeting Women’s Access to Contraceptives

The final relevant section of the new order states that “the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services will consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under” the ACA. So sometime in the future, agencies working under Trump could possibly add regulations dealing with the provisions of law that already exists. Like the ACA which needs employers with more than a certain number of employees to provide insurance plans offering no-cost birth control to their female employees.

To understand exactly what this part of the order does, it’s important to first understand the famous Hobby Lobby case of recent years and it’s history. In 1990, the Supreme Court ruled that you cannot break a law that applies the same to everybody as an expression of your religious beliefs. In response, Congress passed the Religious Freedom Restoration Act (RFRA). Under RFRA, practice is any exercise of religion whether compelled by, or central to, a system of religious belief or not. The RFRA is still in force and, although it is unconstitutional to apply it to state laws, it still applies to laws passed by the federal government.

This means that the ACA, in particular its provisions regarding contraception, were subject to the RFRA. This was the central argument in Hobby Lobby. The company was saying that providing contraceptives to its employees violated their RFRA rights as their religion didn’t support contraception. The Supreme Court decided that, in the case of closely held corporations (corporations owned by a small number of people with no public stock) RFRA meant that the ACA couldn’t require them to provide coverage with contraception. After this, the Obama administration added rules which allowed insurance companies to pay for contraceptives instead of the companies.

That’s the current state of the law already, the order is basically saying that it will try and make sure the law is properly enforced through new regulations. That being said, the Secretary of Health and Human Services has already announced quick follow up on this part of the order. It’ll be important to keep an eye on exactly what regulations spring forth from this section as they could easily make the jump from following the state of the law–no matter how unfortunate that state is–to improperly barring women from access to health services above and beyond what the law allows.

What it Does vs. What it Implies

In general, the right to free practice of religious or any other right is not supposed to limit others, but protect yourself. But this order does not offer protection to federal employees, even when they claim religious objection. Like the West Virginia County Clerk currently being sued for a practice of verbally assaulting homosexual applicants for marriage licenses. However, it has the potential to embolden such abusive actions. This order accomplishes as close to nothing for the cause it claims to champion that it can without being pure grandstanding. But at the same time has the potential to endanger the rights of women and the LGBT community through its implications. In the end, this is an order where everybody loses.

Survivor Contestant Publicly “Outed” Highlights the Mistreatment of Transgender Community

The reality competition show Survivor has been running strong for seventeen years and is on its thirty-fourth season. But in all their seasons, never had they had a transgender contestant. And never has someone been “outed” on their show. Both happened recently.

Background

Survivor contestant Zeke Smith was outed by a fellow contestant as being transgender in an attempt to show that Zeke had the capability of being “deceptive”. Zeke’s tribemates/fellow contestants quickly came to his aid, arguing his transgender status had nothing to do with the game and was a personal aspect of his life. Although Survivor is just a reality TV show, it highlighted a genuine issue in today’s society – the misconception of transgender people and the discrimination they face.

Survivor ContestantWhat is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

Transgender Laws in the U.S.

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

Despite the laws in place to protect the transgender community, they still are bullied, fired from their jobs, passed up for raises, and discriminated against simply for being transgender.

Transgender Rights and the Bathroom

During his last term in office, President Obama issued a directive to all public schools in the country allowing transgender students to use bathrooms matching their gender identity. The declaration was signed by the Justice and Education department officials and described what schools can do if any of their transgender students were discriminated against. While it did not carry the force of law, it did impose a threat for any school that did not abide by the law as they may face lawsuits or loss in federal aid.

Consistent with his hateful propaganda and lack of support for the LGBT community, President Trump rescinded the protections for these students that President Obama created.

Continued Discrimination

The transgender community is still sadly misunderstood. During March Madness, North Carolina (the eventual winners of the tournament) was scheduled to host championship games. They were stripped of the honor by the National Collegiate Athletic Association (NCAA) because the state of North Carolina bans individuals from using public bathrooms that do not correspond with their biological sex. In other words, in North Carolina, transgender individuals cannot use the restroom of the gender they identify as, but as the gender they were born as. Eventually, the NCAA reversed course and scheduled championship games in North Carolina, but received harsh criticism for doing so.

The significance of Survivor highlighting a transgender player and the type of discrimination he faced shows that we are nowhere near inclusive civil rights for the transgender community. But at least it brought about discussion, which can hopefully lead to change.