We Are More Than Our Sex - Intersectional Discrimination

Intersectionality and Identity: Revisiting a Wrinkle in Title VII, a recent article by Texas attorney Bradley A. Areheart, highlights an important issue in discrimination law - discrimination against workers based on more than one protected characteristic. The article is a must read for anyone interested in a deeper understanding of workplace bias. Practical experience tells us that women of color endure different stereotypes than white men, for example. Women over 40 suffer different prejudices than men over 40, or young(er) women. But in many instances the law has not reflected the practical experience shared by so many. Some judges have thrown out claims of intersectional discrimination, claiming that Title VII only protects the five listed categories, race, color, national origin, sex, and religion - but not combinations of the categories. Areheart reviews the development of the law in this area, beginning with early decisions throwing out intersectional claims and tracing the evolution to the more enlightened rulings recognizing that we are more than one characteristic and protecting workers against the effects of intersectional discrimination. Read Mr. Areheart's article at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=912592

EEOC Updates Regulations - Employers Can Favor Older Workers

The EEOC changed its regulations for employers to clarify that employers can favor older workers without violating the Age Discrimination in Employment Act on July 6, 2007.

Here's the scenario - a group of employees between the ages of forty and forty-nine sued their employer for age discrimination when it eliminated its future obligation to pay retiree health benefits for any employee then under fifty years old. The Supreme Court rejected their claim, finding that the ADEA's prohibition against discrimination ``because of age'' only prevents discrimination that favors younger workers, not actions that place older workers in a more favorable position.

The ADEA only prohibits discrimination based on relatively older age, not discrimination based on age generally. So the EEOC deleted language in its ADEA regulations that prohibited discrimination against relatively younger individuals. The new rule explains that the ADEA only prohibits employment discrimination based on old age and, therefore, does not prohibit employers from favoring relatively older individuals. This change was made to conform them to the Supreme Court's holding in General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004).

The EEOC's new regulations are posted at http://edocket.access.gpo.gov/2007/E7-13051.htm

"English Only" Translates as "Language Bans"

English-Only is a nice way of saying Language Ban. Only it's not so nice. Language Bans squelch communications. Want workers to learn English? Help them. Don't hamper them. Respect them. Don't ridicule. Encourage communications. Don't shut them up. Language Bans are counterproductive.

Enlightened Employers Promote Worker Communication

The English-Only debate rages on. For those in favor of banning languages, please remember this is not about whether the government should translate every document into every language. It is not about what language workers speak. It's not even about whether employers can require workers to speak English. These are the extreme positions that often confuse the issues and turn them into a big heap of Jello that no one can grasp or even hope to solve.


Discreet Issue. It's actually very discreet. Challenging English-Only policies is about employers not harassing people because they're "not from here" - not banning entire languages and threatening termination for speaking. Termination for speaking - that's sick. It's also about not handcuffing the EEOC in carrying out its statutory duty to enforce Title VII.


Tenth Circuit Ruling: Deference to EEOC. The Tenth Circuit has ruled that an employer policy prohibiting employees from speaking any language except English at work could violate Title VII. Although other courts had rejected EEOC guidelines regarding English-only policies, the Court in Maldonado v. City of Altus, explained that "it is enough that the EEOC, based on its expertise and experience, has consistently concluded that an English-only policy, at least when no business need for the policy is shown, is likely in itself to ‘create an atmosphere of inferiority, isolation and intimidation’ that constitutes a ‘discriminatory work environment.’" In Maldonado, the court reversed summary judgment on Title VII disparate impact and disparate treatment claims because there was little, if any evidence, of any business necessity for the policy. Maldonado, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=046062, (10th Cir. 2006).


The Policies Themselves As Expressions of Hostility. According to the Tenth Circuit, the very fact that the City would forbid Hispanics from using their language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions. The Court explained that the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language. According to the Tenth Circuit, the policy itself may create or contribute to the hostility of the work environment, and not just the effect of the policy in evoking hostility by co-workers. Here's the analogy the court offered: A policy requiring each employee to wear a badge noting his or her religion, for example, might well engender extreme discomfort in a reasonable employee who belongs to a minority religion, even if no co-worker utters a word on the matter.


Enlightened Employers Promote Communication. As a preventive measure, many employers easily could offer a benefit to their workers to offer English classes, Spanish classes, or other communication enhancers. Those people who are afraid that "they are talking about 'us' in Spanish" or whatever language, can learn the language and get through their personal fears. Note that many employers offer gym memberships, pet insurance, and myriad benefits and other kinds of training programs.


Enforce Anti-Harassment Policies. Or for those employers who can't afford to offer additional (or any) benefits - here's a big step in the right direction. Simply enforce the anti-harassment policies promised in the handbooks.

Copyright, 2007 (c). Kimberlie K. Ryan, All Rights Reserved.

Common Sense to Ban Languages?

The full Senate appropriations committee approved a fiscal year 2008 spending bill that includes $378 million for the EEOC, $50 million above the President's budget request. The committee also narrowly adopted an amendment added by Sen. Lamar Alexander (R-TN) that would prevent the agency from using those funds to sue companies that require employees to speak English. "The Senate has declared English our national language," said Alexander, "and requiring it in the workplace is not discrimination—it is common sense."

I'm appalled that someone in Congress is trying to tell the EEOC that they will only get certain budget money if the EEOC does not enforce Title VII's national origin protections by ignoring claims relating to "English-Only" workplace policies. Someone asked me why I consider this outrageous, and I thank them for doing so. Since he asked . . .

It's absolutely outrageous for a legislator to select one protected class, national origin, and tell the EEOC that it cannot use the judicial system to protect that class. Would it not be outrageous for our leaders to tell the EEOC that they can have an "extra" $50 million in their budget, as long as they don't enforce the Pregnancy Discrimination Act? Would it not be outrageous for the legislators to condition money for the EEOC on not bringing disability claims? Here, the legislators tell the EEOC they can only have certain budget money if they don't enforce Title VII's protections for national origin. That is outrageous!!

English-only discrimination is not about what language workers speak. It is about singling out a class of workers and harassing them because of their national origin. The harassment accompanying these policies is devastating. It's about not giving employers carte blanche to humiliate people because of their language proficiency in English, their accent, and their entire cultural heritage, especially where it has little if anything to do with their jobs.

It's about the tyranny of the majority. If the concern is job-related, fix that. If English is required to do brain surgery, fine. Limit the restriction to that specific activity (but really, if the surgical team communicates better in Spanish, pig-latin, or otherwise, come on, are you going to quibble?). Don't ban an entire language. Instead of handling the possible barriers created by diverse languages, our legislators want to let employers ban entire languages - at work, where Americans spend 85% of their time! That's outrageous!!

When employers implement an English-Only policy, it is not a nice sight. They follow workers around, monitor their conversations, split them up during lunch and breaks, humiliate them by saying "English-Only, English Only," use it as a threat to their very livelihoods. The workers live in constant fear of uttering their native language at work. Of speaking a word. Some of my clients absolutely clammed up and couldn't even speak out of fear of attack of their very essence. Other workers laugh at them. Consider them stupid. Treat them like trash. When there is a workplace English-Only policy, other workers can harass our citizens with the imprimatur of the company (and the Senate?). That's outrageous!!

How about breaking down the barriers by helping each other learn English and Spanish, and as many languages as we can. I have not met one client, not one, who is not trying to learn English. ALL of my clients, and I've handled a lot of these cases, are trying their best to learn the language in an otherwise hostile environment. They typically work 12 or more hours a day (sometimes 2 and 3 jobs), endure hideous commutes, often involving multiple public transportation stops, give their best at work, balance lives with their children and families, and often take care of their aging parents. Often they endure these conditions for a measly 6 bucks an hour. And they have to fight for their dime raise. I'm not kidding. They get a 10 cent an hour raise, sometimes after 6 months of backbreaking work. There's not a lot of time for English classes. And then some ignorant bigot gets to make fun of them at work for chatting with their friend in Spanish. That's outrageous!!

What it is about - it's about not letting the wealthy and powerful with dictate with the purse strings what aspects of laws the EEOC can enforce. It's about preserving the EEOC's enforcement discretion. It's about treating our new citizens and yes, immigrants, with dignity and respect for their mother tongue and their very humanity. It's about equal protection for our citizens, and yes, our immigrants. It's about not letting our leaders cut off communication between us by creating barriers instead of overcoming them.

Thanks to Workplace Prof Blog for pointing out the troubling development in Congress - link here:
http://lawprofessors.typepad.com/laborprof_blog/2007/07/english-only-am.html

EEOC Issues New Guidance on Work Family Balance and Promotes Employer Best Practices

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting focusing on employer best practices to achieve work/family balance, and issued a guidance document on how agency-enforced laws apply to workers with caregiving responsibilities on May 23, 2007. The guidance is available online at www.eeoc.gov/policy/docs/caregiving.html along with a question and answer fact sheet,

The new guidance is being issued by the EEOC as a proactive measure to address an emerging discrimination issue in the 21st century workplace. The document, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, provides examples under which discrimination against a working parent or other caregiver may constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA). The guidance notes that changing workplace demographics, including women’s increased participation in the labor force, have created the potential for greater discrimination against working parents and others with caregiving responsibilities, such as eldercare – all of which may vary by gender, race or ethnicity.

“With this new guidance, the Commission is clarifying how the federal EEO laws apply to employees who struggle to balance work and family,” said agency Vice Chair Leslie E. Silverman. “Fortunately, many employers have recognized employees’ need to balance work and family, and have responded in very positive and creative ways.”

The guidance, available online at www.eeoc.gov/policy/docs/caregiving.html along with a question and answer fact sheet, states: “This document is not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.”
A wide range of circumstances are highlighted in the guidance, including: sex-based stereotyping and subjective decision making regarding working mothers; assumptions about pregnant workers; discrimination against working fathers and women of color; stereotyping based on association with an individual with a disability; and hostile work environments affecting caregivers. The guidance is intended to assist employers, employees, and EEOC staff alike.
Commissioner Stuart J. Ishimaru said, “This guidance recognizes the connection between parenthood, especially motherhood, and employment discrimination. An employer may violate Title VII when it takes actions or limits opportunities for employees because of beliefs that the employer has about mothers and caretakers that are linked to sex.”
In addition to issuance of the guidance, the Commission heard from a wide range of expert panelists at the meeting who discussed best practices by employers to balance family-friendly workplaces with legitimate business needs.
Vice Chair Silverman said she was glad to learn more about the positive steps that many employers are taking to address work/life balance issues. “I’m very happy that we can showcase the many ways in which progressive employers go above and beyond the requirements of the law and make it possible for employees to successfully balance the demands of the workplace with their family responsibilities.”
Donna Klein, president and founder of Corporate Voices for Working Families, discussed a series of reports issued by her organization on job flexibility for lower-wage workers and highlighted several Fortune 500 companies that have implemented best practices in this area.
“As companies realize the financial benefits of focusing on the needs of lower-wage workers, more and more companies are making the effort and reaping the long-term reward of work/life policies and programs,” Klein said. The benefits to employers, she said, include boosting productivity, reducing staff turnover, increasing employee commitment to the organization, and reducing absenteeism due to child care and other issues.
Dr. Anika Warren, research director of Catalyst, Inc., spoke of the unique challenges faced by women of color in achieving a work/family balance. She highlighted her organization’s research, workforce statistics, and literature in making the “business case” for work/life programs focusing on women of color – including African Americans, Hispanics, Asian/Pacific Islanders, and Native Americans/Alaskan Natives.
Pointing out that “women of color are the fastest growing segment of the workforce,” Warren said employers should consider that “tapping into diverse talent, such as women of color, through effective and inclusive organization policies and practices is a competitive advantage that attracts, retains and advances employees while also facilitating the business success of the organization.”
Horacio D. Rozanski, vice president and chief personnel officer of global consulting firm Booz Allen Hamilton, said “by necessity or choice” many women often “take off-ramps and side routes from the traditional career path and have a hard time maintaining continuous, cumulative lockstep employment – which is a necessary condition for success within the confines of the linear white male competitive model.”
Rozanski, a member of the Hidden Brain Drain Task Force, which is comprised of 35 international corporations representing more than 2.5 million employees in 152 countries, said: “The current model of work is at a turning point. With jobs and careers becoming more extreme by the minute, rethinking the old model has huge potential to burnish companies’ competitive edge and restore hope and greater productivity to women’s lives.”
A complete list of panelists, along with their bios and prepared testimony, is available on the EEOC’s web site at www.eeoc.gov/abouteeoc/meetings/5-23-07/index.html.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available online at http://www.eeoc.gov/.