Thursday, August 24, 2017

Allies Along The Way

By Prof. Justine Dunlap

In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Image1 Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.

I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.

In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.

Romney, in a Facebook post, declared that Trump’s words “caused racists to rejoice, minorities to weep, and the vast heart of America to mourn."   I mourn with you, Mitt.

Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.

Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.

Other conservatives have spoken out, too.  Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.

But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda.  But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.

“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr.   Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.

August 24, 2017 in Discrimination, Justine Dunlap, Race, social justice | Permalink | Comments (0)

Monday, August 7, 2017

The Continuing Campaign to Make America White Again

Two opinion pieces were published this week that underscore the foundation of racism upon which the Trump Administration policies are built.  Both pieces follow the "leak" this week of a memo outlining the Department of Justice's plans to pursue dismantling of affirmative actions programs.  Both pieces point out the absurdity of portraying US whites as victims.   Prof. Carol Anderson , is the author of White Rage, the Unspoken Truth of Our Racial Divide. She reminds us in her NYT opinion, white men benefit from flexible undergraduate admissions programs.  If objective scores and grades were the predominant selection method, white males would be a distinct minority on campus.  Flexible admissions policies that consider gender as a bona fide admissions factor, benefit white males as much as anyone else.  But it is race of which whites most complain.

 In his New Yorker piece, Jelani Cobb focuses on the heart of racist thinking.  Whites view their economic status comparatively.  One African American succeeding financially is an affront to less affluent whites.  The underlying assumption that whites deserve to be successful in every way before any person of color "succeeds", (however that is defined), is the source of white resentment.  Whiteness as the ideal standard is what Trump and many followers look to preserve. 

Mr. Trump may not be a seasoned politician.  He may be unable to deliver on his major campaign promises. But he knows how to stoke his base. Through feeding anger and irrationality, Mr. Trump has begun his re-election campaign. 

 

August 7, 2017 in Books and articles, Discrimination, Margaret Drew, Race | Permalink | Comments (0)

Sunday, August 6, 2017

Cancelling Safety for African Americans

You may recall for Martha Davis' post on preemption, Missouri legislators overrode St. Louis' efforts to raise the minimum wage within city limits.

Missouri continues to lead the nation in disregard of human rights.  In response, last week the NAACP issued its first ever state-wide travel advisory.  The NAACP warns people of color to avoid the entire state of Missouri through August 28th.  The warning comes after a disturbing series of events.   Since the presidential election, an increase in race based incidents has been reported nation wide.  Missouri was, of course, the scene of the notorious Michael Brown killing.  Recently the Missouri Attorney General revealed that African-Americans are 75% more likely to be stopped by police.  Derrick Johnson, interim NAACP president and CEO stated:   “The numerous racist incidents, and the statistics cited by the Missouri Attorney General in the advisory, namely the fact that African Americans in Missouri are 75 percent more likely to be stopped and searched by law enforcement officers than Caucasians, are unconscionable, and are simply unacceptable in a progressive society."

Missouri Bill SB 43, signed by the governor on June 30th, virtually legalized individual harassment and discrimination in the state, while prohibiting self-defense by those who experience the harassment.  This bill restricted the civil rights African-Americans and other vulnerable populations,  including women and immigrants.   The bill shifted the burden to the Plaintiffs to prove that their protected class was the "motivating" factor in the firing or other damaging action.  Not only was the burden of proof shifted, but the amount of potential damages is capped.  The governor disguised his discriminatory action by referring to this law as a "pro-business" move.   

The NAACP issued the state-wide advisory partially in response to the implementation of the "Jim Crow" bill, SB 43.

August 6, 2017 in Discrimination, Margaret Drew | Permalink | Comments (0)

Monday, July 31, 2017

Trump Administration Abandons LGBT Rights - Again

Last week the Justice Department submitted a brief arguing that the anti-discrimination law Title  VII do not protect LGBT employees. The administration filed an amicus brief in a New York case in which the government is not directly involved.  The brief was filed on the same day that the President announced in a tweet that transgender individuals would not be permitted to serve in the military. 

By filing, Justice Department has made it clear that the administration is withdrawing Obama era guidance that Title VII's provisions protect from discrimination based on gender identity. 

The case before the court was brought by a man who was fired after disclosing to the a customer that he is gay.  The circumstances were that Mr. Zarda, an employee who accompanied customers o parachute jumps, told a female customer with whom he was about to do a tandem jump that he is gay.  The customer's husband complained to the employer, who then fired Zarda.  Mr. Zarda sued under Title IX. 

While courts are not mandated to follow Justice's guidance, many do.  Mr. Zarda's case will be a test of whether the courts will be guided by the new administration's interpretations or will consider marriage equality and other changes in federal law sufficient to reinterpret the reach of Title VII.   We have seen the importance and power of an independent judiciary over the past six months.  How the court decides is not a slam dunk for Mr. Sessions.

 

July 31, 2017 in Discrimination, LGBT, Margaret Drew | Permalink | Comments (0)

Tuesday, May 23, 2017

The Yogyakarta Principles and HIV Human Rights Advocacy

The Yogyakarta Principles for eliminating sexual identity and gender discrimination were written in 2006.  In 2010, an Activists Guide to the principles was published. The target audience for the guide is LBGTQ activists, with a secondary audience being academics and others interested in human rights implementation.  The principles themselves are directed toward the state, and in particular those creating and implementing policy.

Recently a global conference was held in Bangkok to discuss updating the principles by addressing any existing gaps.

Stephen Leonelli of the Men Who Have Sex with Men Global Forum, seeks to bring more awareness of HIV to the principles. At present, there are only two references to HIV contained in the principles.  Leonelli, who was a representative at the Bangkok meeting,  has written a critique of the principles from the perspective of what changes might be made in order to appropriately address HIV/AIDS. 

One of Leonelli's goals is to bring awareness to the collateral consequences of having HIV.  Often acknowledged are the public health concerns HIV raises.  But less appreciated are the impacts of criminalization, discrimination, violence and stigma.  To read more on Leonelli's suggestions for advancing HIV awareness through the Yogyakarta Principles, click here.

The revisions are scheduled to be completed this fall.

May 23, 2017 in Discrimination, Global Human Rights, Health | Permalink | Comments (0)

Wednesday, April 5, 2017

Finally - Discrimination Due To Sexual Orientation Recognized as Civil Rights Violation

For the first time, the U.S. Court of Appeals ruled, in an 8-3 decision, that the Civil Rights Act of 1964 protects lesbian, gay, bi-sexual, and transgender employees from workplace discrimination.  The Seventh Circuit recognized that discrimination based upon one's perceived or actual sexual orientation is a civil rights violation.  The decision of Hively v. Ivy Tech was heard en banc after a three judge panel earlier ruled against the Plaintiff, Kimberly Hively, who claimed that she experienced workplace discrimination based upon her identification as a lesbian. 

Historically, opponents argued successfully that LGBT individuals could not benefit from discrimination protections because discrimination based upon sexual orientation was not specifically mentioned in the act.   As recently as March 10, 2017, the 11th circuit wrote that it was bound by prior case law that limited protections to straight men and women. "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument [that LGBT individuals are protected] raised by the Commission and the dissent is before Congress, not this court."  A dissenting opinion forecast the reasoning used in Hively.

Hively's Judge Wood declared on Tuesday that "For many years, the court of appeals of this country understood the prohibition against sex discrimination  to exclude discrimination on the basis of a person's sexual orientation. We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."  Judge Wood continues: "It would take considerable calisthenics to remove the 'sex' from 'sexual orientation'."  

Ms. Hively was represented by Lambda Legal who undoubtedly will next argue the case before the US Supreme Court.  Watch for more posts on this case. 


 

April 5, 2017 in Discrimination, Gender | Permalink | Comments (0)

Wednesday, January 25, 2017

My Slant on Lee v Tam

by Jeremiah Ho

 

Image1Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office.  (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.

Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.

What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New Image1York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.

Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “immoral, deceptive, or scandalous matter[,] or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.  

What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?        

Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)

Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.                

One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.

One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.

 

 

Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.

January 25, 2017 in Discrimination, Ethnicity, Immigrants, Jeremiah Ho | Permalink | Comments (1)

Monday, November 28, 2016

November 29: International Women's Rights Defender's Day

Special Rapporteur on Violence Against Women,  Dubravka Simonovic, spoke about global concerns of increased risks to women as fundamentalism and "populism" rise around the Image1globe.    A group of UN human rights experts including Simonovic, Alda Facio, Chairperson-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice; and Michel Forst, Special Rapporteur on the situation of human rights defenders, issued a joint statement expressing the concerns of many women around the globe.

“In the face of rising populism and fundamentalisms and deplorable setbacks on the women's human rights agenda, we need more than ever to unite our forces to preserve the democratic space in which women human rights defenders represent an essential counter-power and a colossal force of action.” 

"The experts highlighted a host of specific challenges faced by women rights defenders – including misogynistic attitudes, threats of sexual assault, travel bans, lack of protection and access to justice, imprisonment, killings, laws which violate their rights, gender-based defamation questioning their “femininity” or sexuality, and gender stereotyping which questions their engagement in public life instead of sticking to their caretaker role in the family."

US women recognize the fragility of their advances in the post-Trump climate.  

What supports the concerns of US women is the fact that there has been no general outcry from men denouncing the wave of misogyny that has let lose since the Trump campaign began.  If men are not willing to risk the ridicule of other men by taking a public stand against misogyny, how can women be safe? Particularly silent are the men of Congress.  Are all too busy worrying about how to get along with the incoming president? Or they are concerned with how to retain their seats and have Trump's support.  This is no time for cowards to represent us.  But bravery has not been a hallmark of many of our male representatives for some time.  The few vocal male congressional supporters are insufficient to create change. There was some hope when Republican leadership publicly stated they could not support Trump because of his videotaped remarks. But that assessment seems to have diminished in the race to preserve their status.  Respecting and accepting the process is very different from silence in the face of bias.   

 

November 28, 2016 in Discrimination, Gender Oppression, Margaret Drew, Women's Rights | Permalink | Comments (0)

Sunday, September 18, 2016

Mainstream Media Might Elect President Trump

I do not recall a presidential campaign where news coverage of the candidates was so lopsided.   Donald Trump would be trailing Hillary Clinton by quite a bit except for the publicity he has been provided at the expense of a campaign that actually focuses on issues.  Thanks to reality tv and exploitative, rather than balanced, journalism, the "soundbite" method of reporting has been an advantage to Mr. Trump.  Bullies are ready producers of soundbites.  More respectful folks are not.  The nation now believes that Mr. Trump has just about an equal chance of being elected president, largely a media creation. The media kept Donald Trump in the spotlight for years with his false "birther" claims.  The media knew these claims were ridiculous but supported the offensive and racist theory by providing coverage any time that Mr. Trump yelled "birther".  If anyone else had made such a claim, it is doubtful the Times  would have printed the story.  But because a rich bully said it, media printed the defamatory allegations over and over, thus providing another distraction from President's Obama's number one task of governing.

The lopsided coverage continues.

Take for example, today's poll as reported by the NYT. The reporting soundbites give more credibility to the Trump campaign than is deserved.  The lead reads "Our poll shows a nearly even split among voters nationally, with Donald Trump seen as riskier but more potentially transformative and Hillary Clinton seen as safer and more temperamentally suited for the job."  The transformation question was designed in a way that gives Mr. Trump a more positive bounce than he otherwise would have.  No information was given to the type of transformation we could expect from a Trump presidency.  Media can not stand behind faux neutrality to defend coverage that pretends Mr. Trump's brand of transformation is anything but dangerous to millions of voters and others living within our borders. 

Misogyny is substituting for the racism of the last two elections. The press would do well to acknowledge the undercurrent of hatred that drives Mr. Trump's campaign.  Recently Mr. Trump suggested that his opponent's government provided protection should stand down so that we could "see what happens to her." Earlier Mr. Trump encouraged supporters to rebel against Mrs. Clinton should she be elected.  Perhaps the headlines should have read that Mr. Trump is planting the seeds of violence and treason, whose growth will be seen post election.  Mr. Trump provided the perfect opening for an article on the dangers portended by his rise.  Reporting on the dangers Mr. Trump creates might have been a better service to readers than providing shocking but dangerous soundbites originating with the  Republican nominee.  For anyone who doubts the role of misogyny in this campaign, watch this disturbing interview with the Trump supporter whose t-shirt reads "Trump that Bitch".  

More credible reporting would characterize Mr. Trumps remarks as what they are:  divisive and dangerous.    Our mainstream media has fallen for the bully's tactics through its coverage.  You cannot stop bullies from speaking the outrageous.  But you can encourage  their escalation through reporting the sensational soundbite slogans while avoiding discussion of the consequences.

September 18, 2016 in Discrimination, Gender Oppression, Margaret Drew | Permalink | Comments (0)

Sunday, July 3, 2016

Honoring Elie Wiesel: On the Opposite of Love

Elie Wiesel was our conscience and our memory of the Holocaust.  He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters.  But also the Jewish citizens died due to the overwhelming silence of others.  It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing.  Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.

Anyone who read Night was no doubt haunted by the inhumanity.   But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed,  lead to the sort of unimaginable suffering that Mr. Wiesel endured.   Not confronting hatred when it first appears permits inhumanity to grow.  Failure to confront hatred opens the door for demagogues.

As we celebrate July 4th, we might ponder how easily we could lose our independence through our silence.  As Mr. Wiesel taught: "The opposite of love is indifference."

                                                                                                                                                                                                                                                                    

 

 

 

 

 

 

 

 

 

 

 

 

 

July 3, 2016 in Discrimination, Ethnicity, Gender Oppression, Global Human Rights, Immigrants, law, Margaret Drew, Migrants, Refugees, social justice | Permalink | Comments (0)

Wednesday, March 30, 2016

Money Talks - This Time in the Language of Human Rights

When the Georgia legislature passed a bill that would protect religious organizations when they discriminate against gay and transgender individuals, the business community reacted.  The "religious freedom" bill would have permitted faith based organizations to discriminate because of sexual identity. In what were likely unnecessary provisions, the bill also would have protected clergy who decline to perform same sex marriages and those who would not attend weddings based on their religious beliefs.

The Georgia statue was not unique. It followed a wave of states passing similar legislation.  Georgia's Governor Deal vetoed the bill, saying it was unnecessary to protecting religious freedom.  He also claimed that his decision was a matter of "character" of the state.   Deal said that "Georgia is a welcoming state." What was out of character for Governor Deal was his decision to veto the bill.  But he had impressive economic pressure to do so.  

Major corporations threatened to move their operations from Georgia.  Fans of "The Walking Dead" would no longer see their show filmed on a Georgia landscape because AMC threatened to film elsewhere.  Disney and Marvel joined AMC in stating that they are inclusive companies Image1 and would no longer film in Georgia.  Perhaps the most economically powerful company that threatened to leave the state is Coca-Cola, for decades a major Atlanta employer.  The National Football League announced that the chances of Atlanta hosting a super bowl would be hurt. 

While businesses such as Bank of America in Charlotte, NC,  have voiced concern about their state's recent array of anti-gay and transgender legislation, they did not assert their economic power to prevent the enactment of the bills. Granted, the NC bill was passed and signed into law during a twelve hour period.  BOA and others (PayPal, Dow Chemical, NBA and Google) have voiced opposition but have not threatened any economic consequences.  

By contrast, Georgia based businesses put money on the line.  While re-locating a major business, such as Coca-Cola, would cost millions of dollars, the economic damage to the state would cost more.

Cheers to these Georgia businesses for using their power to effect positive change and promoting human rights principles along the way.

 

 

March 30, 2016 in Discrimination, Economics, Margaret Drew | Permalink | Comments (0)

Wednesday, March 2, 2016

Lively v Parkside: A Case to Watch

by Jeremiah Ho


Image1In the wake of marriage equality at the Supreme Court, pro-gay rights cases that are trying to expand anti-discrimination protections based on sexual orientation have ensued. In the employment realm, there are a few pending cases that are trying to expand Title VII’s protections to include discrimination based on sexual orientation. One of them to watch for is Lively v. Fletcher Hospital, a case that was filed in federal district court in North Carolina on February 10, 2016.

Sandra Lively and Catherine Hipwell have been together as a couple for 15 years. Sandra has been a registered nurse at North Carolina hospital Park Ridge Health since 2012, while Catherine is self-employed. In 2005, Catherine was diagnosed with stage three uterine cancer and has been through intensive treatment. In October 2014, after North Carolina permitted same-sex marriages, Sandra and Catherine were quickly married. Soon afterwards, Sandra sought health care coverage for Catherine through Park Ridge Health, but was rejected repeatedly. Catherine, as a cancer survivor, needs health coverage. However, with Park Ridge Health’s refusal to cover Catherine and cuts in her subsidy through the Affordable Care Act because of her marital status, thousands of dollars were spent out-of-pocket for a private health plan. After Sandra complained through the EEOC in April 2015, Park Ridge Health changed its policy and allowed Catherine to enroll in May. But Park Ridge Health still refuses to reimburse the couple for the expenses they incurred for private coverage while they were denied enrollment in the employee plan. A suit filed by Lambda Legal alleges that Park Ridge Health’s prior policy of denying spousal coverage to married same-sex couples on the basis of sex and religion violated Title VII of the federal Civil Rights Act of 1964 and the Equal Pay Act.

Although Title VII does not explicitly protect sexual orientation, it does protect against sex discrimination. In addition, the EEOC has recently ruled that sexual orientation discrimination is protected under sex discrimination. Among her several Title VII claims (including one for sex discrimination), Lively’s claim tries to extend her sex discrimination claim to also cover discrimination based on sexual orientation. Her complaint reads: “Sexual orientation inherently is a sex-based consideration because sexual orientation cannot be defined or understood without reference to sex. Ms. Lively’s sexual orientation as a lesbian is inseparable from, and inescapably linked to, the fact that she is a woman who fell in love with and married another woman.” In this way, “denying spousal coverage to Ms. Lively based on her sexual orientation denies her spousal coverage based on her sex.”

Now that the same-sex marriage question has been directly resolved by the Supreme Court, will litigation such as Lively’s, which uses marriage, in part, to leverage toward antidiscrimination finally bring actual progress for more protections based on sexual orientation? The question from the federal district court in North Carolina is one to watch.

The complaint in the case can be found here.  More on the Lively case can be found on the Lambda Legal website.  

 

March 2, 2016 in Discrimination, Gender, Jeremiah Ho | Permalink | Comments (0)

Monday, February 1, 2016

Does Bias Influence the Career Paths of Gays & Lesbians?

by Jeremiah Ho   Jeremiah Ho - University of Massachusetts School of Law

 

Image1A recent report from the social sciences field explores the trend of higher gay and lesbian presence in certain fields of labor and careers than others. The title of the report is Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations. It was published by Administrative Science Quarterly, but has been featured separately on the London School of Economics and Political Science’s Business Review Blog and Paul Caron’s TaxProfBlog in the last few weeks.

So why are gay and lesbians overrepresented in certain fields such as psychology, social work, law, and higher ed teaching? Are there truthful correlations in age-old stereotypes regarding the type of careers that gays and lesbians take on in the workplace (e.g., gay hairdressers and lesbian truck drivers)?   

In assessing, what the title of the report calls, “concealable stigma” and its link to occupational segregation of sexual minorities into certain jobs, the authors of the report, András Tilcsik (University of Toronto), Michael Anteby (Boston University), and Carly R. Knight (Harvard), have observed that sexual minorities tend to hold occupations that allow them to rely on their experiences of discrimination and social stigma. Gay men and lesbians tend to be drawn to occupations that require task independence—the ability to perform tasks without large dependence on coworkers—because it allows concealment of sexual orientation and reduces negative consequences of being “out.” They also tend to hold occupations that require high social perceptiveness—of being able to accurately read, anticipate and gauge others’ reactions. A table of empirical data regarding the types of occupations with high numbers of gay and lesbian workers from the report with observations regarding whether such occupations require task independence and/or social perceptiveness is reproduced here:

Occupations with the Highest Joint Proportion of Gay and Lesbian Workers
1. Psychologists (S*, T**)
2. Training and development specialists and managers (S)
3. Social and community service managers (S, T)
4. Technical writers (T)
5. Occupational therapists (S, T)
6. Massage therapists (S, T)
7. Urban and regional planners (S, T)
8. Producers and directors (S, T)
9. Postsecondary teachers (S, T)
10. Probation officers and correctional treatment specialists (S, T)
11. Morticians, undertakers, and funeral directors (S)
12. Physical therapists and exercise physiologists (S, T)
13. Computer and information systems managers (S, T)
14. Lawyers, and judges, magistrates, and other judicial workers (S, T)
15. Web developers (T)

*S = Occupation requires above-average social perceptiveness
**T = Above-average task independence is associated with the occupation

The authors theorize that eventually such occupational trends might change as sexual minorities become more visible and accepted due to the visibility of same-sex relationships. Gay and lesbians might lose their social perceptiveness. But for now, the authors believe that there will continue to be strong correlation between social stigma and discrimination and the career paths that gays and lesbians pick.

What’s interesting for this writer of the HRAH blog is how social stigma of sexual minorities is characterized by this report as a strong but invisible influence for career choices and how it contributes to segregation and hierarchy in the workplace. Occupational choices are complicated for the livelihoods of gays and lesbian just as they are for everyone else. But as the report seems to suggest, the choice of career paths for gays and lesbians consists of influences and skills obtained from their history of societal marginalization and segregation. Whether the truth is as emphatic as the authors present here, their ideas are fascinating considering the substantial amount of time that we all spend in our lifetimes at work.

 

February 1, 2016 in Discrimination, Gender, Gender Oppression, Jeremiah Ho, Workplace | Permalink | Comments (0)

Sunday, December 20, 2015

Coming Soon to a Supreme Court Near You

Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male.  The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality.  The candidate, Matthew Barrett, accepted an offer as food service director.  But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer. 

Mr. Barrett is represented by GLAD attorney, Ben KleinJudge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law.  The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings.  Judge Wilkins based his decision on several findings.  Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.  In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.

This decision is ripe to wend its way to the U.S. Supreme Court.  Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly.  The group's website headline says that it "condemns" the decision.  I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert.  The facts are favorable for consideration of the protected class argument that was avoided in Obergefell.  On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds. 

Stay tuned! 

December 20, 2015 in Advocacy, Discrimination, Equality, LGBT, Margaret Drew, Marriage Equality, Workplace | Permalink | Comments (1)