As Black History Month 2015 comes to an end and the Civil Rights Act of 1964 approaches its 51st anniversary, the realization that the American workplace has yet to grasp the golden ring of equal employment opportunity can be discouraging.
I would venture to say that the activists responsible for the enactment of our civil rights statutes would find it unfathomable that in the 21st century:
courts and legislatures across the country are still grappling with laws that define impermissible workplace practices;
more than 90 years after its introduction, an equal rights amendment to the U.S. Constitution has yet to pass;
overt discrimination against certain “categories” of workers is still permissible; and,
pregnant workers are not entitled to any accommodation as they labor to propagate our species.
Discrimination, Retaliation and Association Discrimination
Discrimination in the workplace is still a significant problem and comes in many forms.
On February 4, the U.S. Equal Employment Opportunity Commission (EEOC) – the federal agency charged with enforcing workplace discrimination laws – released its 2014 Enforcement and Litigation Data. The reports show that the overall number of complaints of employment discrimination were down in 2014 (in part due to the government shutdown). However, the total number of complaints were still 18% higher than they were in 2005.
The 2014 statistics also show that the number of retaliation complaints – those alleging an employer retaliated against an employee for complaining about discrimination – now account for 43% of all charges filed; an all-time high. The percentage of charges alleging race discrimination, the second most common allegation, remained steady at 35%.
If it’s not enough that discrimination based on race, religion, sex, national origin, disability and sexual orientation still exists in the American workplace, a recent case in New York demonstrates that association discrimination – discrimination against someone because of who their friends and family are – is yet another unlawful barrier to equal employment opportunity.
In that case, Jeffrey Chiara v. Town of New Castle, 2015 Slip Op. 00326 (2d Dept. Jan. 14, 2015), the court ruled that under the New York State Human Rights Law a viable claim of discrimination based on religion exists where the victim was harassed and fired, not because of his own religion, but because his wife is Jewish.
It’s Time for an Equal Rights Amendment.
Discrimination against women comes in many forms – pregnancy discrimination; sexual harassment; pay inequity.
The gender pay disparity was recently brought into the Hollywood spotlight during this week’s Academy Awards ceremony when best supporting actress Patricia Arquette ended her Oscar acceptance speech with a call for women’s rights: “To every woman who gave birth to every taxpayer and citizen in this nation – We have fought for everybody else’s equal rights. It’s our time to have wage equality in the United States of America.”
The gap has narrowed in recent years and opinions differ on its size. However, it is indisputable that women earn less than men for comparable work. As reported by the Wall Street Journal, for example, the U.S. Census Bureau estimated that the 2012 median earnings of men working full time at $49,398 while women earned $37,791.
In the professional ranks, the gap varies but still exists. For example, female lawyers earn 83% of what men do. Female financial managers earn 75%.
While federal and various state laws prohibit discrimination in pay and other terms of employment based on sex, gender and pregnancy, the Equal Rights Amendment would provide a Constitutional guarantee of equality between men and women. According to The Alice Paul Institute, the Equal Rights Amendment would
explicitly guarantee that the rights guaranteed by the U.S. Constitution are held equally by all citizens without regard to sex;
provide a clearer standard – known as “strict scrutiny” – for judges deciding cases of sex discrimination;
provide a strong legal defense against the erosion of statutory rights occasioned by judicial interpretations, amendments or repeal of those statutes; and
affirm American commitment to legal gender equality to the world community.
Supreme Court Justice Ruth Bader Ginsburg explained why she believes an Equal Rights Amendment is long overdue: “I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”
Since 2003 New York has prohibited discrimination in employment based on sexual orientation. Federal employment law has no similar prohibition. The Employment Non-Discrimination Act (ENDA) would extend the federal protections against employment discrimination to the LGBT community but has failed to pass every year since it was first introduced in Congress in 1994; and has just as much a chance of passing now.
Nevertheless, that arbitrary barrier to equal opportunity, like the ones before it, is slowly eroding.
On Feb. 3, the EEOC issued a field memo stating that workers are protected under Title VII of the Civil Rights Act from employment discrimination based on sexual orientation, as well as gender identity. Some see this memo as simply reiterating the long-standing EEOC position that discrimination against an employee who does not conform to gender “norms” is a form of sex discrimination. However, the memo goes beyond that reiteration of the law when it states, “Individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent …”
While the memo is not binding on the courts, it remains to be seen how influential it will be.
The Family and Medical Leave Act (FMLA) is a federal law that guarantees qualified employees unpaid leaves of absence to care for a family member suffering a serious health condition. On Monday, the U.S. Department of Labor issued a rule allowing employees to take FMLA leave to care for a same-sex spouse even if the state where they reside does not recognize same-sex marriage.
That rule is a necessary result of the U.S. Supreme Court’s decision declaring the Defense of Marriage Act – which defined marriage as that between people of the opposite sex – unconstitutional.
Gay & Lesbian Advocates & Defenders executive director Janson Wu told BuzzFeed News that now is the time to expand the way the law is interpreted. “Decades ago, the courts made a wrong turn when they separated out sexual orientation from sex discrimination protections. And we are trying to right that wrong,” he said. “When you are discriminating against somebody because of who they love or because of the sex of who they love, then you are discriminating against them on the basis of sex. You can’t separate out those two things.”
During the State of the Union Address in January, President Obama urged Congress to send him a bill providing employees with limited paid family leave. I wrote about the proposal here. Unfortunately, a federal paid family leave law is as likely to happen as ENDA.
A more realistic probability exists that the current laws will be enforced and interpreted to provide pregnant employees with an accommodation during their pregnancy.
This past summer, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination explaining that employers may have to provide light duty for pregnant workers, and the same accommodations offered to other workers with similarly disabling medical conditions.
In January, the U.S. Supreme Court heard argument on whether and to what extent an employer must provide pregnant employees with work accommodations under the Pregnancy Discrimination Act (PDA) such as light duty, extra bathroom breaks, job reassignment, or a modified work schedule to accommodate doctor’s appointments. Again, while the EEOC Guidance Memo is not binding, it will be interesting to see how much weight the Supreme Court gives the opinion of the federal agency charged with enforcing the pregnancy discrimination laws.
OK so it’s not Merriam-Webster or Cambridge but I like the definition of “Equal Opportunity” found at Wikipedia:
Equal opportunity is a stipulation that all people should be treated similarly, unhampered by artificial barriers or prejudices or preferences, except when particular distinctions can be explicitly justified. The aim according to this often complex and contested concept is that important jobs should go to those “most qualified” – persons most likely to perform ably in a given task – and not go to persons for arbitrary or irrelevant reasons.
While great strides have been made in advancing equal employment opportunity for all, we still have a long way to go before employment decisions are based solely on qualifications and not other arbitrary criteria.
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Ralph A. Somma is a Long Island, NY employment lawyer who handles cases involving discrimination in the workplace.
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About the Author: Ralph A. Somma Ralph A. Somma is an experienced employment lawyer from Long Island, New York. For over 25 years, Ralph has been working to enforce workplace rights in New York and Long Island.