Wednesday, October 19, 2016
"The right to social security is the right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly for children and adult dependents." – Committee on the Economic, Social and Cultural Rights, General Comment 19
The human right to social security is overlooked in US debate. The topic was absent from the presidential discussion this election season until the final debate. Issues were largely ignored because personality and character flaws have dominated election discussion. More recently funding mechanisms, raising the age of eligibility and privatization have been points of discussion. Continuation of benefits is never assured by either party.
None of the proposals raised by politicians secure human rights for those most in need. A good example is the suggestion of raising the age of eligibility. For those at or near retirement age now, eligibility for full benefits begins at age 66. Some advocate raising that age to 68. The proposed age may be possible for those of us privileged to work in academia and other non-physical positions. But for the mechanic on his feet all day, 66 is a hardship. For those whose ailments develop earlier because of sustained physical work, placing social security benefits further out of reach is a denial of dignity.
Any measure that removes responsibility for government supported financial security risks the financial survival of millions.
There is no shortage of funding sources for Social Security. If the funds collected through payroll were invested for the sole use of payment of benefits, each recipient could collect thousands more a month than is paid now. But the collected funds are used toward the general budget, which presently includes substantial funding of the forever war. That was not the intention when the payroll tax was designed.
The solution to providing for those who are disabled or elderly is simple. The next time a politician or others talk about the "drain" that social security is taking on our domestic budget, we might suggest segregating the social security payroll tax with the dedicated use being supporting those in financial need. Dignity of those in need of financial security is not optional, particularly since those citizens have paid into the system through out their working lives with the expectation of receiving a pension. We have the method of collection and we have the funding. The government needs to make reparations to the depleted fund and prioritize the survival and dignity of those most in need.
Sunday, April 17, 2016
While supporting transgender advocates working to repeal North Carolina laws discriminating against sexually diverse individuals, I reflect on the public support that corporations have experienced since refusing to do business in the offending (and offensive) state. Similar support was given by major corporations in Georgia. This leads to a chronic and unanswered question: why do the same entities deny support to women and racial minorities in their discrimination issues?
Might it be that discrimination against women and racial minorities is so pervasive that to object might disqualify the businesses from operating in all U.S. jurisdictions? I don't think that the answer is that simple. Most of the corporations supporting the transgender community have, and continue to, discriminate against women and racial minorities.
In 2013, Bank of America agreed to pay $39 million dollars to women who experienced discrimination in its related corporation, Merrill Lynch. Immediately before that settlement, the Bank paid $160 million to black brokers. In 2012, 16 racially diverse workers brought a discrimination claim against Coca Cola claiming aggressive and untempered discrimination in two of the company's New York firms. These claims came well after Coke agreed to settle a race discrimination suit in 2000 for $192.5 million dollars. Similar lawsuits are settled every year, often against major corporations.
An easy answer might be that corporations that have paid millions to settle discrimination suits are trying to stay ahead of similar claims based on sexual identity. A more cynical explanation could be that the transgender corporate workforce is perceived as being incredibly small and claims more easily managed. If corporations were to acknowledge widespread wage inequities, settlements would be incredibly large. And with equality would come at least a modest power shift.
Corporate support of CERD and CEDAW would be a good start in ending workplace discrimination. When corporations decide to stop tolerating hateful and discriminatory language, and decide to pay equal wages and provide respectful working environments, corporations might discover that having a satisfied workforce is indeed good for profits.
Thursday, April 14, 2016
Apparently Bruce Springstein's decision to cancel his North Carolina conference was the tipping point for Governor McCrory in compromising his position regarding safeguards for the LGBT community. And in breaking news, Ringo Starr has done the same.
As reported earlier, North Carolina passed a bill that would protect those who discriminate against those whose sexual identity differs from the purported North Carolina norm. The Boss' decision came on the heals of Pay Pal and Duetsche Bank's decisions not to expand in North Carolina because of the new law. Facing millions in lost revenue, Governor McCrory signed an executive order in an attempt to remove the economic backlash.
The Governor restored protections for LGBT state employees and he said that he would ask the legislature to restore the right to sue for discrimination. But the Governor fell short. He did not stop implementation of the law's harsh provision that demands people use only the public bathroom that corresponds to the sex assigned at birth.
Sarah Preston of ACLU (NC) said Governor McCrory's actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed into law the harmful House Bill 2, which stigmatizes and mandates discrimination against gay and transgender people.
We will see if businesses are pacified by half-measures.
Monday, September 7, 2015
On Monday, August 31, the California Senate passed the California Fair Pay Act, a law that will take a significant and unprecedented (in the US) step towards workplace equality. While a number of states and municipalities have adopted "comparable worth" as the standard for measuring wage fairness in public sector jobs, California's new law will extend that standard to the private sector as well.
Notably, California's Fair Pay Act has the effect of further implementing, on the subnational level, the provisions of CEDAW, the Women's Rights Convention adopted by San Francisco and endorsed by many other California municipalities. CEDAW specifically accords women"[t]he right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value," a principle reflected in the California Fair Pay Act language.
Unfortunately, the U.S. government continues to register its opposition to this approach. Indeed, one of the U.S. draft reservations intended to restrict CEDAW’s domestic impact if and when it is ratified by the U.S. is to CEDAW's provision on "equal pay for the work of equal value." California's bold move should encourage the federal government to re-evaluate this position and join with its peer nations in ratifying CEDAW.
Friday, September 4, 2015
Boston columnist Joan Vennochi has given us insight into some of the cases that are being dismissed when women bring claims of a hostile work environment. In 2012, a TSA employee in Boston filed suit against Homeland Security. Her boss wielded a baseball bat. The boss routinely engaged a swinging stance, raising the bat when he spoke to the Plaintiff. The same boss changed the female employee's work assignments, citing concerns about the employee's family- friendly work hours. Witnesses testified that the switch was related to the boss' attitude toward women. The judge hearing the case dismissed it finding that while the atmosphere was likely uncomfortable, it did not rise to the level of severe or pervasive discrimination. The judge wrote, that the supervisor did not threaten the employee with the bat. The statement reflects nothing less than a misunderstanding by the court on how threats happen and the psychological damage that threats can have.
In another case reported by Vennochi, a supervisor called the Plaintiff a "whore, stupid bitch and hooker." That case was dismissed because the conduct, according to the court, was "general vulgarity" not speech regulated by law.
Former federal District Judge Nancy Gertner said that plaintiffs alleging a racially hostile environment do not have better results than the women who claim a hostile work environment based on sex.. "Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people” the judge found that none of the incidents went beyond the “ordinary tribulations of the work place.” If that is the case then we as a nation tolerate a high level of abusive behavior as customary.
When President Obama announced that empathy would be an important quality in a Supreme Court Justice, some found empathy to be inapplicable to the position. Apparently not.
The influence of the human rights principle of maintaining individual dignity has not made its way to employment law cases. We cannot expect human behavior to be perfect. Most of us will have days when our behavior could have been better. But some instances of racist and sexist behavior are so disturbing that a logical conclusion is that the speaker has acted out of a place of deep prejudice. In other cases, a pattern of disrespectful behavior is engaged. Neither a serious incident or a pattern of discriminatory action or speech should be tolerated. If being called a "stupid bitch" is insufficient to trigger a hostile work environment finding, we need to change the standard of proof to match human rights principles.
Wednesday, August 26, 2015
In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.
Thursday, April 2, 2015
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.
Tuesday, March 17, 2015
On November 1, 2006, Leopoldo Zumaya and Francisco Berumen Lizalde filed a petition before the Inter-American Commission on Human Rights arguing that the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB and its progeny directly and indirectly resulted in denial of equal access to the courts and equal remedies for their on-the-job injuries, in violation of international law. More than eight years later, Mr. Zumaya and Mr. Lizalde finally had their day in court – a hearing on the merits, held Monday, March 16th, before the Inter-American Commission. Submissions in the case are available here.
Mr. Zumaya and Mr. Lizalde were among the approximately 8 million or more undocumented workers in the US. Laboring in notoriously dangerous jobs, they both had the grave misfortune of being injured on the job. While the applicable workers’ compensation laws in the states where they were injured do not facially discriminate on the basis of immigration status, a chasm exists between the rights on paper and reality. Following the Supreme Court decision in Hoffman Plastic, 535 U.S. 137 (2002), the US legal system allows immigration enforcement to trump a workers’ rights to a full, equal and effective remedy, and condones and in some cases facilitates discrimination against workers, solely on the basis of immigration status.
Shortly after Mr. Zumaya fell, and when it became apparent he would not be able to return to his original job, he was fired and kicked out of his employer-provided housing. He stayed with a friend while his lawyer helped him pursue his claims for workers compensation. Unfortunately, due to a Pennsylvania Supreme Court decision, Reinforced Earth Co. v. WCAB, 810 A.2d 99 (Pa. 2002), that effectively denied wage loss benefits to undocumented workers with permanent partial disability, he was forced to settle his claim for nearly one-third of what a US citizen worker could have obtained.
Mr. Lizalde was not just denied access to a full remedy under the law; he was criminally prosecuted, seemingly in retaliation for his on-the-job injury. Shortly after an operation on his injured hand, Mr. Lizalde received a call from the insurance company inquiring into his immigration status. After that call – and just before his scheduled appointment for his workers’ compensation impairment rating evaluation -- he was arrested at his home by immigration authorities and put in jail, leaving his wife and US citizen daughter without their family’s sole provider. He was criminally prosecuted for document fraud by an Assistant US Attorney who had publically stated that undocumented workers filing for workers compensation could find themselves prosecuted and facing up to a year or more in jail. Knowing that he could not support his family from jail, he pled guilty and was deported. Shortly after his deportation, Mr. Lizalde’s workers’ compensation attorney filed for workers compensation and subsequently received a call from the US attorney who had prosecuted Mr. Lizalde, asking whether Mr. Lizalde had “illegally” reentered, effectively serving as a warning against continuing to pursue relief.
The petitioners’ experience is not unique. In many jurisdictions, unauthorized workers are denied full access to compensation for work-related injuries. In others, they may not be accorded full remedies for discrimination on the job. And everywhere in the US, unauthorized workers fired for exercising their fundamental freedom of association at work receive no compensation whatsoever.
The denial of certain remedies for unauthorized workers has had other effects. When workers have the temerity to file a complaint for abuses suffered on the job, many employers will aggressively try to force them to reveal their status in legal proceedings, and some judges have so ordered. Incidents of actual retaliation, and workers’ legitimate fear of retaliation, have resulted in a climate where the rights of undocumented workers to unionize, to be compensated for an injury, and to be free from abuse and discrimination in the workplace are routinely abused.
There have been some governmental efforts to protect unauthorized workers, at least from retaliation. Some workers are able to receive visas or prosecutorial discretion as victims of workplace crimes, and have been able to ward off deportation by virtue of their involvement in labor disputes. But these remedies are not widely available, and workers continue to face both legal and practical limitations on the exercise of their labor rights.
In the IACHR case, Petitioners seek recognition that their rights were violated, remedial measures and reentry into the US to pursue their compensation claims. In addition, they ask that national laws, policies and practices be amended to ensure that all workplace protections are applied in a nondiscriminatory manner, and that comprehensive legislation be enacted to correct the US Supreme Court’s decision in Hoffman Plastic.
In addition to these measures, there are immediate administrative reforms that would move the US closer to the rule that " the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment." For example, the US can: 1) take steps to ensure that all undocumented workers in the midst of legitimate labor disputes can claim the right to remain in the US and work; 2) strengthen existing policies that prevent employers from using a workers’ immigration status as a weapon in labor disputes; and 3) educate and instruct courts and other officials on the limits and applicability of the Hoffman decision, prohibit judicial and agency inquiries into immigration status, and work with state officials to ensure that state laws are in compliance with human rights norms.
While Mr. Lizalde and Mr. Zumaya were not able to attend the DC hearing in person, they eagerly await the outcome, and a recognition from the Commission that their rights were violated. They are optimistic that changes to US law and policy will follow to ensure that full rights and remedies are available to the approximately 8 million unauthorized workers who make enormous daily contributions to our economy and society.
Monday, March 9, 2015
International Women's Day (March 8) receives little attention in the U.S. when compared with other nations. Sometimes we neglect to recognize those close to home who contribute so much to advancing human rights. I encourage you to honor the woman in front of you. In that spirit, I would like to recognize my co-editor, Martha Davis, with whom I am honored to work on this blog. Martha recently answered a series of questions on the status of women, reprinted below.
Martha F. Davis
Issues of equal pay and workplace discrimination affect a huge number of women, and make it more difficult for women to leave poverty. Violence against women also cuts across racial and class lines.
What factors, financial or otherwise, should women consider when choosing a city to live in?
I would look for women in civic leadership positions, percentages of women in the police force and other indicators that show a commitment to women's economic and civic equality.
There are also many factors that, because of gender inequality, men probably never think about, like safety (e.g., street lighting), and (for parents) access to affordable child care and after school care.
How can local health authorities better meet the needs of women?
Violence against women has huge impacts on women's health -- both directly, through the violence itself, and indirectly as it increases women's stress and may make it more difficult for them to care for themselves in other ways.
Many organizations have developed interventions for both men and women, and approaches to curtailing the violence. Violence against women includes stranger violence as well. Media images certainly play a role in opening the door to gender-based violence. Local health authorities can help through public education campaigns, partnerships with public schools and other institutions, and interventions with youth, hopefully before the violence begins.
How can local authorities encourage more women entrepreneurs and support women-owned businesses?
Equal pay initiatives would, of course, indirectly assist with this, since entrepreneurial women would have more access to the seed funds necessary to start a business.
Role models, mentoring programs and support groups, prioritizing these initiatives at the local level, can have a tremendous impact. Similar programs have been very effective in, for example, encouraging women to run for office.
A number of studies have indicated that many women are not great negotiators, that women in general are more ready than are men in general to accept an initial offer even if a better deal is available. Negotiating is a teachable skill. Local authorities could help by mediating negotiations and by offering training to women to equip them to negotiate in a wide range of settings.
What programs should local authorities develop in order to make their cities more women friendly?
San Francisco is the only city in the country that has adopted the international Convention on the Elimination of Discrimination Against Women as its local law and it has made an important difference there.
City agencies have conducted gender audits and found a lot of low-cost reforms that they can implement that make a big difference for women. For example, they expanded the hours when people could apply for various permits so that they did not always conflict with school drop-off and pick-up times; they added street lighting to enhance women's safety and job options; they created new programs to support young girls, and so on. Now, the SF Women's Commission has spearheaded the development of guidelines for city contractors to ensure that they meet international standards for women's equality. Adoption of CEDAW has been a vehicle for SF leaders to discuss, prioritize and integrate women's equality into local policies.
How can local authorities encourage more civic engagement among women, including running for political office?
Again, role models, mentors and support groups are critical. The Women in Public Policy Program at Harvard is a good model for this approach. In today's election climate, however, it's money that ends up being more important. Women can learn how to ask for money and connect with supporters, but workplace equality will also make a difference here, as women have more leadership positions and receive equal pay at a level that will enable them to consider a run for office.
Wednesday, February 25, 2015
As students start selecting topics for spring semester papers or Notes, many will want to explore the burgeoning issues around land grabbing. Don't let them re-invent the wheel! Jootaek Lee, of Northeastern Law School, has written a useful and timely research guide on land grabbing. The paper, titled "Contemporary Land Grabbing, Research and Bibliography," will appear in the forthcoming Law Library Journal, v. 107 (Spring 2015). Meanwhile, the complete paper can be downloaded from SSRN. Here is the abstract: