Human Rights at Home Blog

Clearing the Fog: The Importance of Pay Transparency in Remedying Wage Discrimination

By Michael Nunn, 2L at Brooklyn Law School

Historic biases against women and people of color have repeatedly been shown to contribute to long-term economic instability. Despite laws such as the Equal Pay Act of 1963 and the Lily Ledbetter Fair Pay Act’s broad retroactive remedies, pay inequality persists in American society. Significantly, our federal framework fails to fully address employees’ limited access to pay information and their limited ability to negotiate. This is troublesome considering that, to prove discrimination, the laws also place the onus of information-gathering and negotiation on employees, who typically lack the means to avoid under-compensation resulting from historical discrimination.

Usually, those subject to pay discrimination are unaware they are being paid unfairly or fear backlash. As a result, salary negotiations are statistically unfavorable to women and, in particular, people of color: for example, Black and Hispanic women in the U.S. are estimated to achieve parity with white men’s salaries only by 2133 and 2220 (respectively). Recognizing the difficulty in accessing information that shows pay discrimination, pay secrecy among employers is a common denominator in the persistence of the wage gap. Since 2016, as many as a dozen states and localities have either established pay transparency laws, with recent legislation in New York, California, Washington, Colorado, and Connecticut that demand responsibility from employers.

California’s pay transparency law, effective January 1, 2023, now requires employers to include salary ranges in all job advertisements. Additionally, large employers must now submit annual pay data reports disclosing the median and mean hourly rates within each listing by race, ethnicity, and sex. It further provides a private right of action for individuals who file a complaint within a year of learning of employer violations. These provisions make California’s one of the most demanding and progressive pay transparency laws to date.

Similarly, since November 1, 2022, New York City’s pay transparency law requires employers to disclose salary minimums and maximums for all job advertisements based on a “good faith” belief of what they would pay a successful applicant. The New York State legislature recently passed similar legislation, signed in December, and taking effect later this year.

A common motivation among jurisdictions passing such legislation is to make discrimination more identifiable for employees and employers. If given upfront access to comparative salary data as a reference, employees may identify instances of pay discrimination earlier in the hiring process. Moreover, these laws push employers to actively evaluate the validity of their pay practices, as they stand to lose out on talent if their payscales are incongruous with market-rate salaries for similar positions.

Concurrently, the European Union reached a similar conclusion as it, too, struggles to enforce equal pay laws, with a persistent gender wage gap of about 13% (compared to about 17% in the U.S.). In a 2020 report, the European Commission found a significant issue hindering access to justice is “the establishment of a prima facie case of pay discrimination,” with lack of pay transparency as the main obstacle to addressing gender inequality. In response, the Commission issued an equal pay directive in 2021 focused on increasing access to justice and pay transparency for employees. On December 15, 2022, the European Parliament and the Council on the Directive reached agreement on implementing rules.

In practice, the benefits of transparency are readily observed. In unionized workplaces, where pay transparency practices are the most common, the wage gap is significantly smaller than in nonunionized workplaces. Studies have shown that union representation reduces women’s wage gap by “nearly 40% compared to the wage gap experienced by non-union women.” This benefit is attributable to the “transparency and equality provided in union contracts,” according to the U.S. Department of Labor Women’s Bureau. Such benefits had been observed in Europe, where EU member states that implemented pay transparency laws found that workforce participation and retention improved, and women’s career progression strengthened.

In a notable fashion, pay transparency laws have begun cropping up in states across the U.S. Although non-compliance concerns have invariably arisen since the pay transparency laws have gone into effect, many believe these laws will be the most effective in dispersing the fog of confidentiality that enshrouds wage discrimination.

Event 11/16: Work Law as Privatized Public Law Series: On Critical Wage Theory

On November 16, 2022, at 12:45pm ET, join Brooklyn Law in person or online for panel of organizers and schools exploring the crosscurrents in contemporary organizing and the future of public/private tensions in work law.

Panelists:

• Prof. Ruben Garcia (UNLV, author of Critical Wage Theory (forthcoming 2023))
• Bethany Khan (Culinary Workers Union)
• Prof. Shirley Lin (Brooklyn Law School, Moderator)*
• Yanin Peña (Ain't I A Woman?! Campaign)*
• Chris Smalls (Amazon Labor Union)*

*Appearing in-person

Location: Hybrid Event 

• Brooklyn Law School, Moot Court Room
• 250 Joralemon Street, Brooklyn, and Zoom

Co-Sponsors: 

• BLS Labor and Employment Law Association, LALSA, BLSA, APALSA, SALSA, DALSA, Law Association of Women, Brooklyn Law Students for the Public Interest, Women of Color Alliance, NLG.

For more information and to register, click here.

ILO Meets to Discuss Occupational Safety and Health for Workers Around the World

By Anezka Krobot, rising 2L at St. Louis University School of Law

This week and last week, the International Labour Organization (ILO) is holding the 110th International Labour Conference, where governments, employers’ organizations and trade unions from the 187 member States of the ILO meet to discuss, among other important questions, the issue of occupational safety and health as a Fundamental Principle and Right at Work. The issue of occupational safety and health for workers came to the forefront of the agency’s priorities with the onset of the COVID-19 pandemic, which resulted in workers around the world being forced to work in conditions which put them in danger of contracting the potentially deadly virus. If it is decided that the effective protection of safe and healthy working conditions is a fundamental right, a 5th category of rights will be added to the 1998 Declaration on Fundamental Principles and Rights at Work. 

So, what could this mean for the United States? The U.S. has been a member state of the ILO since 1934, Since then, the U.S. has become an integral member of the organization and ratified 14 conventions of the ILO, two of which fall under the “fundamental” category.  If the new category is added to the Declaration, the U.S. will be expected to “respect, promote, and realize in good faith” the right of all workers to be protected against illness, disease, and injury arising out of employment.  

For the ILO’s part, its stance appears clear. In an about the topic, its spokesman said, “The lack of safe and healthy working environments can no longer be tolerated. There is no right more important than the right to life.”

Much of this information was compiled from: https://ohrh.law.ox.ac.uk/occupational-health-and-safety-as-a-fundamental-principle-and-right/

Labor Trafficking: America’s New Slavery

By Emily Horsford, 3L and Student Attorney with the Human Rights at Home Litigation Clinic at St. Louis University School of Law

Labor trafficking is modern-day slavery. People, often immigrants, are forced to perform work through the use of force or fraud. Victims are kept enslaved through violence, threats and coercion. This is an ongoing issue in our world today.

Mario said goodbye to his wife and daughters and began the long, slow walk to freedom. Thirty-three days later, he crossed the border into the United States of America—the land of the free. He came here because economic opportunities in his native country of Guatemala are nonexistent. He came here because America is the land of opportunity; a place where anyone who works hard can succeed. He came here because America promises a refuge for those who yearn to breathe free, for the homeless, for the tempest-tossed. He came here because, to the world, America means freedom.

For Mario, America did not live up to her promises. After several years of transient living around the country, Mario came to St. Louis, Missouri, lured by the promise of a job in construction that included housing. He worked hard. He did good work. He didn’t complain. For three months, Mario worked despite never being paid for his efforts. When his co-workers pressed their boss, he threatened to call the police. Scared of that threat because of their illegal status, the men continued to work for free, once for 23 hours straight. Mario kept his head down and did what he knew how to do: he worked hard.

Then, just a week before Thanksgiving, the boss gathered the mostly Latin American workers together and told them they were fired and evicted from the job-sponsored housing. Mario had nowhere to go. He was still owed thousands of dollars for all of his hard work. Wasn’t this America, the place where you worked hard and were rewarded with success? In confusion, Mario put all his belongings into a storage locker and sought help from a church. The church directed him to an attorney who could help him file a lawsuit to attempt to recover some of his unpaid wages. The case is ongoing.

In the meantime, Mario lives in an apartment with another of the fired workers, Julian, and Julian’s wife and three children. Without a job bringing in any money, Mario lost all of his belongings when he couldn’t pay the storage unit fees. Work has been uncertain and sporadic. Mario hopes the lawsuit will resolve in his favor, giving him some of his wages from the many months of work he did. In the meantime, he waits.

Mario’s story is, unfortunately, not unique. There are thousands of immigrants trafficked each year in America. They are forced to work without pay or in dangerous conditions and when they complain, they are threatened. Fearful of their legal status being discovered, confused about their rights, hesitant to make trouble, they suffer in silence. This is modern-day slavery and it must be stopped. That leads us to the question: What can be done?

In the long term, America needs a comprehensive overhaul of its immigration laws. With partisan gridlock, that may not occur for quite some time but that doesn’t mean all is lost. More immediate solutions are available. President Joe Biden campaigned on reducing trafficking in the United States. We must hold him to those promises. More support should be given to victims’ rights groups including assistance in paths to citizenship.

In 2000, the Victims of Trafficking and Violence Protection Act was passed, creating the T Visa, a visa designed to protect victims of trafficking. Twenty-plus years later, this visa is under-utilized. An emphasis must be placed on helping trafficking victims apply for this visa so they can stay in America and help prosecute their abusers. By cracking down on those who utilize enforced labor, our government can help victims of trafficking move forward in their lives. Then, aid organizations can step in and provide assistance for these victims to become citizens and productive members of American society.

Those who exploit workers must be prosecuted to the full extent of the law and used as an example of the pain and punishment awaiting any who might be considering using trafficked labor. Americans must show the world that we have banished slavery to the history books and it is not tolerated by our citizens today.

For those inclined, there are numerous organizations dedicated to helping trafficking victims that can use your financial support: https://castla.nationbuilder.com/donate; https://donate.polarisproject.org/page/54176/donate/1

Five States and Counting: The Story Behind Washington Farmworkers’ Overtime Wage Victory

By Abigail Ramos, 2L at the City University of New York School of Law.

Little has changed for farmworkers since the original enactment of the Federal Labor Standards Act (“FLSA”) in 1938. Along with domestic workers, Congress carved out farmworkers from the legislation’s bedrock promise of overtime. As a result, people who cultivate, pick, and package our food do not get fairly compensated for their backbreaking work and about 30 percent live below the poverty line.

At the time of passage, Black people comprised the majority of farmworkers. The bill was unlikely to pass without the support of southern Democrats, who required the racially motivated exclusion for their vote on the bill to maintain white farmers’ exploitive labor practices. Presently, there are more than 3 million migrant and seasonal farmworkers in the United States, 68 percent of whom are from Mexico. Even now, their continued exclusion is rooted in the country’s reliance on unethical and racialized labor.

No federal court has moved the needle in reversing the statute’s harm. For this reason, states have played a crucial role in guaranteeing overtime pay. Currently, only six states have some form of overtime protections for farmworkers. In New York, overtime is considered after 60 hours worked whereas in California, phase-in legislation provided for overtime after 45 hours worked starting in 2021. Last November, the Washington state supreme court in Martinez-Cuevas v. DeRuyter Bros. Dairy, 475 P.3d 164 (2020), held that farmworkers were entitled to overtime after 40 hours worked under the state constitution.

The 5-4 decision interpreted Article II, Section 35 of the state’s constitution, which requires the legislature to pass “necessary laws for the protection of” workers in employment “dangerous to life or deleterious to health.” Dairy workers argued that they fell under this classification. The court firmly concluded that dairy workers were protected by the state constitution, citing 24-hour milking for 3,000 cows every day as an example of their grueling work conditions. Additionally, the defendant DeRuyter Brothers Dairy forced workers to stay until all cows were milked. The court relied on statistics regarding the injury rate for dairy workers, which in 2015 was “121 percent higher than all other state industries combined and 19 percent higher than the entire agricultural sector.”

The legal victory was the result a unique collaboration between Familias Unidas Por La Justicia (FUJ), Columbia Legal Services (CLS), and Frank Freed Subit & Thomas LLP. FUJ is an “independent farmworker union of indigenous families” formed in 2013 in the west side of Washington state. The union has been a catalyst in pushing for political and cultural shifts in farmworker issues. It has frequently partnered with CLS since its creation, also winning the right to paid rest breaks for farmworkers and requiring employers to provide reasonable access to bathrooms and toilet facilities for farmworkers.

There are more than 100,000 farmworkers in Washington state who benefit from the decision. “Our union has stepped up to it almost unintentionally, but the opportunities are there for us to do more than just a contract,” Edgar Franks, Political Director of FUJ, told HRAH Blog. “A contract [is] awesome because we helped 500 farmworkers here in Skagit [County]. But these lawsuits have the potential of helping hundreds of thousands.”

The celebratory win for this historic decision was cut short, after state Republicans responded with SB 5172, proposed legislation that would have overturned the decision. Originally, in reaction to the agricultural industry’s cry that it would be unable to pay overtime costs, the bill would have limited the court’s ability to grant overtime pay when it would “create a substantially inequitable result.” It was proposed by two state Senators with close ties to the pro-farmer group Washington Farm Bureau. But after FUJ intervened, the proposal was amended to include the compromise of a three-year phase-in period, similar to California’s, and is pending in the state house.

 “We didn’t want the phase-in. We wanted it straight out to get implemented,” Franks responded. “[F]or 60 years, workers were denied these benefits intentionally and that was to the benefit to the industry.”

As Washington joins the small list of states remedying nearly a century of injustice, Franks hopes more people will not only become aware of the challenges farmworkers face in their own communities but will partake in the workers’ movements. He said, “Everybody has a role to play in supporting farmworkers, whether it be just community people or churches or students and lawyers: all of us have a role.”

Justice Ginsberg’s Legacy Through the Eyes of an Employment Lawyer

By Guest Blogger Robin Runge, Adjunct Professor, George Washington University School of Law

It is difficult for me to articulate the significance of Justice Ginsburg’s life and her work as a woman, a lawyer, law professor and an advocate for gender rights in the workplace. Quite literally, my life and career were made possible in large part because of her advocacy.  Judge Ginsburg created the legal theories that have formed the basis of my advocacy for the employment rights of victims of gender-based violence and harassment in the world of work for the last 23 years.

I moved to Washington, DC in 1993 to work for the Women’s Legal Defense Fund (now the National Partnership on Women and Families) as a program assistant in the Work and Family Program. My work was to assist women who were experiencing sexual harassment at work and who called our office looking for legal advice. Not long after my arrival, in August 1993, Justice Ginsburg was appointed to the U.S. Supreme Court by President Clinton.  One of the first assignments I worked on was coordinating the mooting of the attorney representing Teresa Harris for oral argument in her sexual harassment case before the Supreme Court.  The case was heard on October 13, 1993 and was one of the first oral arguments that Justice Ginsburg participated in as a Supreme Court Justice.  The issue in the case was whether sexual harassment must seriously affect the survivor’s psychological well-being in order to establish an abusive work environment in violation of Title VII of the Civil Rights Act of 1964. The act prohibits, inter alia, discrimination based on sex in the workplace. If this was to be made a requirement to establish a claim of sexual harassment it would significantly limit the number of employees who would be able to obtain protection and redress from sexual harassment. The case arrived at the Court only two years after Anita Hill’s testimony during the Justice Thomas confirmation hearings and was the most important case before the Court regarding sexual harassment at the time.

I was privileged to attend the oral arguments and observe firsthand the critical role that Justice Ginsburg would continue to play on the Court over the next 27 years.  During oral argument, Justice Ginsburg asked a series of questions indicating her concern that requiring sexual harassment to seriously affect the survivor’s psychological well-being in order to establish a claim would punish strong women. I remember chills running down my back and tears forming in my eyes as I sat in the back of the room listening to her speak.

For much of my life, there had been no women on the Court and then there were two. And here was Justice Ginsburg explaining to men the experiences of women, as she had when she argued before this very Court. Justice Ginsburg questioning demonstrated her belief that just because some women did not experience psychological trauma nor allowed demeaning sexist conduct to detrimentally impact their work performance, it did not mean that it was not creating an abusive work environment in violation of the law. Justice Ginsburg successfully made the point that women experience sexual harassment in a variety of ways and that we should not have to prove injury in order for the court to find sexual harassment occurred. In a unanimous opinion issued in November 1993 written by Justice O’Connor, the Court held that the lower court should focus on whether the sexual harassment was hostile or abusive, not whether Ms. Harris had experienced “concrete psychological harm”.  Justice Ginsburg authored a concurring opinion in which she emphasized that a plaintiff does not have to prove that their productivity has been detrimentally impacted as a result of sexual harassment in order to establish a claim referring to a holding from a lower court involving racial harassment in the workplace. 

As a young woman considering applying to law school, this moment changed the direction of my life. I heard and saw how Justice Ginsburg was able to apply not just her brilliant mind but also her experience as a woman worker to ensure that the law be interpreted in a way that reflected those experiences.  I witnessed how critical it is that women be in all places where decisions are made.

I went to law school the following year and began a career representing low income women workers who experience sexual harassment.  I made sure that I and the women I serve were and are in the places where decisions are made about their lives. I went on to become a professor of law and last year, I was a technical advisor during negotiations where the International Labor Organization adopted the first ever global binding labor standard defining and addressing gender-based violence and harassment in the world of work. I am but one of many examples of how Justice Ginsburg inspired a generation of women and women lawyers to believe in and fight for equality in the workplace. And we are not done yet.  Thank you does not seem strong enough to express my appreciation.

Sexual Harassment At the United Nations

As reported by RT earlier this month, one in three employees of the United Nations reported being sexually harassed at work over the past two years.  The rate for over-career harassment is even higher.  In an anonymous on-line survey employees reported harassment in many forms from inappropriate "jokes" to attempts to engage the employee in sexual conversation.  Others reported unwanted touching and offensive gestures.  

Only one third of the reporters said that they took action.  Men constituted two-thirds of the harassers.  Only 17% of the workforce responded to the survey, which according to the UN Secretary General Antonio Guterres noted reflects an atmosphere of distrust.  The survey results were enough for Secretary-General Guterres to send a letter to staff endorsing the survey as pointing out what needs to change in the UN workplace. He acknowledged that the UN must lead the change. 

Last year at least two UN employees resigned following complaints of a hostile work environment due to sexual harassment.  

Sexual Harassment In The Legal Profession

In the wake of the third Women's March, Women Lawyers On Guard has announced that it will conduct a survey on sexual harassment in the profession.  The survey will include women lawyers in a wide range of legal fields, including academia.

WLG made the following announcement:

WLG, together with our research partner, Nextions, is about launch a nationwide experiential survey of sexual harassment and misconduct in the legal profession.  The survey will cover all employment settings: law firms, government, in house, law schools, associations, non-profits, etc. It aims to capture men's and women's experiences, lawyers and staff.  It will explore a spectrum of behaviors (not just the legal definition of sexual harassment) that negatively impact the careers and lives of the survivors.  The launch is scheduled for February 6th.

Women Lawyers On Guard is a national non-partisan organization harnessing the power of  the law and lawyers in coordination with other non-profit organizations to preserve, protect and defend the democratic values of equality, justice and opportunity for all.

 

 

 

 

 

 

Ben and Jerry's Steps Up

Earlier, Prof. JoAnn Kamuf Ward reported on efforts to convince Ben and Jerry's to sign onto a Workers Human Rights Program.

We are happy to report that an agreement was reached with Ben and Jerry's who became the first in the dairy industry to agree to pay a premium to struggling dairy farm owners, and also to ensure that workers are treated with respect.  The Milk with Dignity Agreement is legally binding.  The agreement establishes humane labor conditions and creates enforcement processes that  encourage workers to report violations.

The spokesperson for Migrant Justice said:

 “This is an historic moment for dairy workers.  We have worked tirelessly to get here, and now we move forward towards a new day for the industry.  We appreciate Ben & Jerry’s leadership role and look forward to working together to implement a program that ensures dignified housing and fair working conditions on dairy farms across the region. And though this is the first, it won’t be the last agreement of its kind.”

The Ongoing Rollback of Human Rights For Women

The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.

In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy. 

The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control.  Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds.  This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle.  This latest assault particularly affects poor women.  In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.  

The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself.  Women of the 1% are unlikely to experience adverse consequences of this rollback.  While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices.  Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have.  The economic impact is significant.

While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ”  I get it.  We thought we had won this battle in the 70’s.   Mad Men is back.

Labor Rights Are Human Rights: Contributions of Maina Kiai to US Human Rights Advocates

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Deputy Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

 

 

With his most recent report, The Rights To Freedom Of Peaceful Assembly And Of Association In The Workplace, UN Special Rapporteur Maina Kiai breaks new ground.  Kiai is not articulating new legal norms, but his effort to bridge two international legal frameworks with complementary standards is innovative nonetheless.  The report links the norms of the International Labor Organization and core human rights agreements to the struggle to improve the lives of workers who increasingly suffer in the face of economic globalization. It also underscores the need to address the reality that over 60% of the world’s workers are employed in the informal sector, where there is virtually no legal recourse for violations of basic rights.  

As Kiai observes: 

"Our world and its globalized economy are changing at a lightning pace, and it is critical that the tools we use to protect labour rights adapt just as quickly. A first step ... is to obliterate the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights."

Many US human rights advocates and organizations have made these connections in their advocacy.  As a result, during the 2010 UPR, the U.S. received a recommendation to recognize the right to association as established by the ILO for migrant, agricultural, and domestic workers.  (The US accepted this recommendation, noting support for ILO principles and noting “Although not a party to ILO conventions 87 and 98 on those topics, we have robust laws addressing their fundamental principles.”)  Reviews of the US human rights record in 2015 and 2014 also resulted in recommendations to the United States to ratify particular ILO conventions.   

In addition to making the case for integrated approach, Kiai seeks to bring his findings on the relevance of human rights norms to new audiences.  Departing from the traditional UN report format, the Rapporteur has prioritized developing accessible illustrations of the impact of lack of protections for workers and recommendations for change.  To this end, the report is accompanied by a poster-style fact sheet that distills some of his key findings.  This is one of a series of over a dozen fact sheets on freedom of association, and assembly developed by the Rapporteur. Some of the fact sheets focus on country visits, while others distill the obligations of states, multilateral organizations, and other stakeholders, to respect, protect, promote, and ensure the enjoyment of these fundamental rights.  Kiai’s website also serves as a clearinghouse for information related to his mandate. You can search by country, and by special projects.  This website is a great resource, and an entry point for engagement.  Notably, the site includes a request from the Rapporteur for information on pending cases where his intervention on freedom of peaceful assembly or association might be of assistance.  (One limitation to note:  many of the documents on the site are available only in English).

Maina Kiai’s name and mandate may already be familiar to U.S. human rights advocates because his recent U.S. visit garnered high profile media coverage (including stories in the LA Times and Washington Post).   His end of Mission statement, which you should read if you have not already, concluded with a range of powerful observations and recommendations.  Kiai also reflected on the national context in which his recommendations are situated:

"The United States is an impressive, complex and imposing nation in which to undertake a mission such as this. It is an economic powerhouse, a military superpower, a global engine of technological development, and one of the oldest democracies in the world.

It is also an extremely diverse nation, a nation of indigenous peoples, slaves and immigrants. It is a nation of diverse opinions and views, sometimes so strongly held that it once slid into Civil War. And it is a nation of struggle and resilience, home of one of the 20th Century’s most inspiring moments encapsulated by the Civil Rights Movement.

The experiences with various forms of diversity and complexity have not always been smooth. The country was founded on land stolen from its indigenous Native Americans; its early economic strength was built on race-based slavery against people of African descent; and successive waves of immigrants have faced discrimination, harassment or worse.

Today, unfortunately, America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined.

To be clear, the focus of my mission was not race or discrimination. My mandate concerns the enjoyment of the rights to freedom of peaceful assembly and of association. But it is impossible to discuss these rights without issues of racism pervading the discussions. Racism and the exclusion, persecution and marginalization that come with it, affect the enabling environment for the exercise of association and assembly rights."

…

"But racial inequality is not the only inequality inhibiting the enabling environment for association and assembly rights. Although the United States engineered an admirable recovery following the financial crisis of 2007-08, this rising tide did not lift all boats. Productivity and economic output has grown, but the benefits of these have gone primarily to the wealthiest, as the wages of average people have stagnated. This has exacerbated the problem of inequality across all demographic groups, created more resentment, and more tension; providing more reasons for people to become politically engaged – including by exercising their assembly and association rights."

The Rapporteur’s initial reflections on the visit highlight the role of police in both protecting and violating the right to peacefully assemble and the implications of concealed weapons laws on this right.  Kiai discusses the ability of U.S. workers to unionize and collectively bargain, as well as the particularly precarious position of migrant workers in exercising the freedom of association.  His preliminary statement concludes with the impact of U.S. counter-terrorism measures and curtailment of association and assembly.  These findings reflect Kiai’s broad engagement with a wide array of civil society organizations during his 17 day visit.  The full report on Kiai’s U.S. visit will be released in June 2017. 

Election day is fast approaching.  It’s a critical time to double down on the human rights values to which we aspire, take a step back.  It is clear that around the country, people are angry and frustrated, and as Kiai noted: 

"It is at times like these when robust promotion of assembly and association rights are needed most. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them. They are also a key vehicle for public participation for marginalized groups whose ability to participate in democracy may be otherwise limited by dint of being felons or migrants."

Our democracy depends on it.

Equal Pay Comes to Massachusetts

While struggles over equal pay continues in the federal forum, the Commonwealth of Massachusetts, in a bi-partisan action, passed legislation that vastly enhances the likelihood of women overcoming pay inequities within the Commonwealth.  Signed into law by Governor Baker, the legislation was neither speedy nor innovative.  Since 1998, some variation on the Equal Pay Act was filed in the Massachusetts legislature.  In Massachusetts, the pay gap for women is only marginally better than the national average- 82 cents for every dollar earned by a man.  And, that figure seems not to reveal the starkly lower pay earned by women of color. 

The law addressed concerns of both employers and female workers.  For example, some definition is given to employers of what comparable work means.  Additionally, the law provides that unequal pay cannot be remedied through a lowering of wages. Importantly, employers are prohibited from asking for an applicant's salary history during the interview process.

The Massachusetts Equal Pay law is a huge advancement for women.  The law was promoted by a collaborative of women's associations and a partnership of public and private entities.  As with most change, shifting local practices is essential.  Perhaps the legislative success will spread beyond Massachusetts borders.

The UN Guiding Principles on Business & Human Rights at 5: Marking and Measuring Progress

JoAnn Kamuf Ward, Lecturer in Law, Columbia Law School & Associate Director, Human Rights in the US Project at the Law School’s Human Rights Institute

In June of 2011, the UN Human Rights Council endorsed a set of global standards to articulate and operationalize the tripartite human right based "respect, protect, and remedy" framework to prevent and address human rights violations that result from business operations.   These UN Guiding Principles on Business and Human Rights (“The Ruggie Principles”) constitute the first comprehensive guidelines that define the state duty to protect against human rights abuses, the corporate responsibility to respect human rights, and the right to access effective remedies  when human rights abuses do occur.  

While the adoption of the Principles was surely a step in the right direction, they were criticized by some human rights advocates, including Human Rights Watch, early on as setting too low a bar for corporations.  This criticism raised concerns about three core aspects of the Principles.  First, that the standards themselves do not mirror what human rights require in terms of accountability and remedies.  Second, because the Principles are voluntary, they lack the requisite carrot and stick to ensure compliance.  Third, the rules do little to address the reality that there is often a massive power imbalance between multinational corporations that commit (or turn a blind eye towards) rights violations and the countries in which they operate. 

Last week saw the five year anniversary of the Guiding Principles, and happily, they have led to some positive action.  There has been an uptick in the number of companies developing publicly available human rights statements.  Volvo Group and  Caterpillar are among the hundreds of companies that have developed a statement of policy on human rights, in line with Guiding Principle 16.  Several companies, including Adidas and Barrick Gold have also set up remedy mechanisms, though their effectiveness is a subject of fierce disagreement between advocates and the companies themselves.   And, as we know, corporate human rights abuses continue to wreak havoc in communities around the world, with the tragedies of Rana Plaza in India and the deaths at Marikana mine in South Africa as just two examples.

Of course, no one said progress would be easy.  Yet what is laudable is that the Business & Human Rights Resource Centre used the 5 year anniversary to capture both the trends and challenges in implementing the Principles, and to highlight opportunities to make progress moving forward.  This effort includes accessible infographics for each pillar of the Guiding Principles:  the state duty to protect human rights; the corporate responsibility to respect human rights, and the individual’s right to a remedy.  Stakeholder reflections on key benefits and challenges are also available on the Centre’s website.  The 5^th anniversary of the Guiding Principles offers an important moment to reflect on what has been accomplished and what is left to be done.  While there is certainly more of the latter than the former, marking progress has served as an opportunity to breathe new life into the focus on improving compliance with human rights in the corporate context.  

Indeed, on the eve of the 5^th anniversary, a coalition of global businesses announced a new initiative to measure and report on corporate respect for human rights and increase transparency around how the top 500 globally listed companies measure up in terms of “human rights policy, process and performance” through the Corporate Human Rights Benchmark.  The ranking system is illustrated here:

 

The indicators, which are admittedly limited in scope, were rolled out over the past year and shared with an array of stakeholders around the world.   The Corporate Human Rights Benchmark as a whole, though, was developed in large part by private sector investment entities and funded by the UK and Dutch governments.  So while there was broader stakeholder engagement,  the primary drivers are businesses and governments,  who have vested interests  in the outcomes (to say the least).   Indeed, just a bit of cursory research uncovered concerns that the baseline indicators are inconsistent with the international human rights framework, and the focus on companies’ commitments, rather than outcomes fails to capture the true human rights impacts and costs of doing business.  Undoubtedly, as the first reviews are completed, further critiques will emerge.

Nevertheless, this new Corporate Human Rights Benchmark can be viewed as a positive step.  The metrics are meant to serve as the carrot to incentivize further progress in promoting and protecting human rights.  As the Chair of Ben & Jerry’s Board of Directors noted, the Benchmark “should drive a change in corporate behavior.   This performance ranking is built on what the companies do rather than their rhetoric.  Those who truly support and deliver on high labor, environmental and human rights standards will be recognized and those that do not will have their records exposed to investors, customers, civil society, and home governments.  The expectation is that this ranking system will drive a race to the top and a competition to benefit people, the planet, and the bottom line.”  

2016 will serve as a pilot year for the Benchmark, and 100 publicly listed companies have been selected for review, based on publicly available data.  A large subset of these companies are based in the United States, including extractives, as well as more familiar retail outfits, such as Costco, Target, Coach, the Gap and Under Armour.  The full list of companies is available here.   It remains to be seen what level of rigor will be applied to the benchmarking process but this is surely something to watch.

Even if it the progress made to implement the UN Guiding Principles since 2011 is imperfect, it is noteworthy.   The next five years will offer us a more nuanced understanding of how the commitments made on paper play out in corporate practice.  It will also offer new insights into how U.S. companies operationalize human rights and respond to evaluations framed in human rights terms.

(As a notable aside, Ben & Jerry’s has been a target of the Migrant Justice Milk with Dignity Campaign, which is fighting to secure rights for migrant dairy workers, and signed a commitment to work with Migrant Justice last year).

You Say Traditional - I Say Oppressive

Millennial men report  a much higher rate of  believing that both parents should share housekeeping and child care equally.  That, of course, is until they have children.  

 

There are multiple studies revealing that a vast majority of millennial men  believe that equality in domestic tasks should be the norm.  But those same studies reveal that the reality of millennial lives, particularly those who are parents, do not engage in equal child care or housekeeping.  Those who study this phenomenon say that millennial men revert to "traditional" roles once they become fathers.  Perhaps millennial mothers might view this as a reversion to oppression, not tradition.

Fathers who take time to care for, and bond with, their new children are more likely to understand their  shared parenting responsibilities in a way that other fathers can not.   Researchers conclude that a major barrier to active paternal parenting is the lack of sufficient leave policies with most businesses. 

The most serious barrier to co-parenting, however, is not the lack of workplace policies.  Even in companies that permit parental leave for both parents, fathers in heterosexual relationships more often refuse to take advantage of the leave.  Why? Because their managers are not taking parenting leave.  In order to engage millennial fathers in child care, they must be relieved of their fear of being adversely judged by other men in the workplace.   This can most effectively happen when male senior employees take advantage of parental leave policies or encourage other men to do so.  

Males in our culture are burdened with constant judging by other males on whether or not they are "real men".   A shift to a culture that permits males to be themselves is not difficult to attain.  Older, accomplished men can create change quickly simply by encouraging millennial men to make room for family.  

Why Do CERD and CEDAW Fail to Garner Business Support?

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.

Advancing the Rights of Women and Families in the U.S. Workplace

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

Women in the United States have strived for, and achieved, equality in many areas, and have rights and freedoms unparalleled in many countries around the world.  However, despite an array of legal protections, women continue to face barriers to equality.

The ways that human rights might level the playing field was the focus of the recent visit of the U.N. Working Group on discrimination against women in law and practice.  The Group spent two weeks in the U.S., meeting with government representatives, lawyers, and advocates in Washington, D.C., Alabama, Texas, and Oregon.  The Working Group’s conclusion:  the United States “lags behind” human rights standards in protecting women’s rights.  As the Working Group opined  “[t]here is a myth that women already enjoy all these rights and protections under U.S. law.  However, there are missing rights and protections.” 

One area where the Working Group was taken aback was the degree of U.S. workplace hostility to women workers, particularly when it comes to pregnant workers and workers with caregiving responsibilities.  And rightly so.  There are significant gaps in protections in the arenas of gender pay equity, workplace accommodations for pregnancy, and paid leave, among others.

What does the lack of legal protection mean for American women? The answer depends, in part, on where you live.  

Alabama, one of the states visited by the Working Group, demonstrates some of the harshest challenges facing women – it ranks 48th nationally with respect to support services for working parents, making it one of the worst states in which to be a caregiver of children.  In Alabama, women are paid 73 cents for every dollar paid to men, with a yearly wage gap of $12,109.  For women of color in Alabama, the disparity is even greater, as black women earn 57 cents for every dollar that white men make, while Latina women earn less than 41 cents.

Alabama has no state level protection requiring employers to provide accommodations for pregnant women in the workplace so that they can remain employed.  Employers do not have to allow pregnant workers to carry around a water bottle or sit down when needed, for example, and can push these workers out on leave rather than allow them to work through their pregnancies.  As a result of the lack of policies that ensure common sense pregnancy accommodations, pregnant women are exceptionally vulnerable to discriminatory treatment by their employers.  In many cases, women in Alabama and around the country are forced to choose between a paycheck and a healthy pregnancy.  With infant mortality rates above the national average in Alabama, and maternal mortality rates on the rise in the rural South, there is an urgent need for policies to ensure that pregnant workers can maintain their health.

Of course, these challenges do not end at the conclusion of pregnancy.  Women with children continue to face myriad challenges in balancing workplace responsibilities and caregiving.  

The U.S. is the only industrialized country that fails to ensure workers are provided paid parental leave.  This is not just a global embarrassment.  It is the reason that only 12 per cent of the private sector workforce is eligible for paid family leave, offered voluntarily by their employer.  Yes, that means the majority of working women do not have access to paid family leave when they have a baby.  This has real and tangible psychological, physical, emotional, and economic consequences. 

The U.S. also fails to provide paid leave to care for ill family members and there is no national guarantee of paid sick time.  Nationally, upwards of 40 million workers are not entitled to a single paid sick day, and 38 per cent of employees in the private sector have no paid sick time. In Alabama, which lacks any sick time protections, 44.6 per cent of private sector employees (more than 670,000 workers) have no ability to earn paid sick time.  There are also significant implications for the approximately 700,000 children who live in families in which both parents work, or in single-parent households.

In many states, like Alabama, existing protections are a far cry from human rights standards.  Yet there are cities and states that are working hard to make progress. 

Human rights call for equal pay for men and women; for maternity leave with pay; for policies that enable parents to balance family obligations with work responsibilities; as well as for special workplace protections for pregnant women.  These protections are laid out in CEDAW, the comprehensive treaty on women’s rights.  International human rights experts have also specifically called on the U.S. to introduce paid parental leave and to address the pay gap. 

There is cause for optimism that the U.S. is moving in the right direction.  In the absence of federal movement on paid family leave, paid sick time, and pregnancy accommodations, three U.S. states have enacted legislation requiring employers to provide paid family leave insurance to their workersNew York began to offer paid parental leave to non-union city employees, four states, the District of Columbia, and twenty localities now have paid sick time laws insuring a minimal amount of paid sick time to most workers, and sixteen states, the District of Columbia, and four localities have protections that offer at least some accommodations for pregnant workers.  Obama has used his executive authority to make incremental improvements, including by fostering transparency in wages.

These are positive steps, but further action is needed at the state and federal level. Federal legislation that has been introduced such as the Paycheck Fairness Act, the Pregnant Workers Fairness Act, the Schedules that Work Act, the FAMILY Act, and the Healthy Families Act would contribute to gender equality for working women and provide better support for families. If enacted, these laws would bring the U.S. much closer to human rights standards for fair treatment in the workplace.   Standards that offer stronger support for women, children, and families.      

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Editors' Note: This post is based on a piece that originally appeared on HuffingtonPost, co-authored by JoAnn Kamuf Ward and Hillary Scrivani, the Kennedy Fellow at A Better Balance.  A Better Balance and the Columbia Law School Human Rights Clinic drafted this submission to the U.N. Working Group.  

 

Sex Workers: Adding Their Voice to the Discussion

Editor's Note: This is the final post in a three part series by Margaret Drew on concerns of those living with HIV.

This series concludes with an appeal to consider the voices of the most vulnerable and politically powerless of those living with HIV:  sex workers.   Katherine Hanssens, Executive Director and Founder of the Center for HIV Law and Policy, has called for the inclusion of sex workers in the national discussion of HIV.   Sex workers are stigmatized in ways that are usually not encountered by others living with HIV.  The disdain and dismissiveness with which sex workers are treated in both U.S. law and culture compounds when HIV is added to the existing stigma experienced through the gender oppression of sex workers.  Sex workers also are often poor and experience abuse, both in their personal relationships as well as professionally. In some cases, sex workers are dealing with addictions, as well.

Effective advocacy efforts must include sex workers.  As the Center's website states: "Effective advocacy strategies seek to empower, rather than shame or punish, the sex worker community, and are often most successful when led by sex workers themselves."

One of the greatest health risks to sex workers is the policy of many police departments who arrest those in possession of an arbitrary number of condoms.  This policy caused sex workers to reduce the number of condoms they carry and engaging in unprotected sex.  The policy leaves sex workers as one of the populations left without significant choice in ways to protect themselves from HIV and other sexually transmitted health conditions.  The condom possession is then used to make a case of prostitution.

Missing from the discussion of this policy targeted at an unpopular segment of our society are those targeted.  But Human Rights Watch changed the discussion by conducting a 2012 study of the effect on condom restriction on sex workers.  Most reported that the policy resulted in their having more unprotected sex presenting a serious health risk for them as well as a public health concern.

 In 2014, influenced by the study, the New York City police department ended their condom carrying policy in response to pleas from public health advocates.  In large part, changes in police policy resulted from the work of Human Rights Watch.  Wer eit not for human rights advocates, criminalization of the marginalized expands, if only because those in the criminal justice system are not thinking holistically.  In this case, police policy designed to enhance prosecution neglected the public health needs of the general population.

Organizations such as Human Rights Watch provide a service to the marginalized in providing data in order to effect policy change.  The next step is,  as Hanssens says, is to bring sex workers into the conversation thereby igniting the cultural shift from dismissing the marginalized to respecting their voices.  

 

The Fair Food Program: A Human Rights Success Story

By: 

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School

Human rights are alive and well in the Florida tomato fields, according to a report released last week by the Fair Food Standards Council. The report is the third annual update on the Fair Food Program, a groundbreaking worker-driven social responsibility program based in human rights. An outgrowth of the Coalition of Immokalee Workers’
(CIW) Campaign for Fair Food, the Program is combating human trafficking, forced labor, sexual assault, and wage theft within the Florida tomato industry, and securing dramatic improvements in worker health and safety conditions. According to experts discussing the new report at a launch event last week, the Program is inspiring new efforts, as well.

The Fair Food Program has its origins in CIW’s Boot the Bell campaign, an almost four year boycott of Taco Bell that led to a 2005 Fair Food Agreement with Yum Brands (parent company of Taco Bell, Pizza Hut and KFC). Over the past ten years, the Program has grown remarkably, with retail and restaurant giants including Walmart, Whole Foods, McDonald’s, Burger King, Chipotle, Ahold USA, and Aramark signing on. These companies pledge to buy only from tomato growers who comply with the Fair Food Standards, a human rights-based Code of Conduct, and to pay the growers an extra penny-a-pound, which is passed on the workers. The new report notes that the 14 participating companies have paid $20 million in premiums through the penny-a-pound provision.

The new report confirms improvements to the Florida tomato industry recently reported by CBS News and the New York Times. The success of the Fair Food Program was recognized by the UN Working Group on Business and Human Rights during its 2013 visit to the U.S. and lauded by U.S. Secretary of State John Kerry during a White House Forum on combating human trafficking in supply chains. At the White House event, CIW was awarded a Presidential Medal for Extraordinary Efforts to Combat Trafficking in Persons.

What contributes to the success of the Fair Food Program in eradicating modern-day slavery in Florida’s tomato industry? At the report launch event last week, experts identified two core components of the Program: it is worker-driven, and it has an “obsessive” focus on enforcement. Workers generated the Code of Conduct underlying the program, and CIW engages in worker-to-worker education on company time and company property. Company compliance with the Code of Conduct is monitored by the Fair Foods Standards Council , which overseen by Judge Laura Safer Espinoza, a recently retired New York State Supreme Court Justice. And it is backed by market consequences. Growers who violate the code are suspended from the program. Workers can lodge complaints through a 24-hour hotline, where calls are answered by a live person.
According to the new report, there have been over 1100 complaints brought under the Code of Conduct, leading to swift resolution of labor abuses. The Fair Food Standards Council has issued approximately 120 reports and corrective action plans, based on worker interviews and audits. According to the experts at the launch event, this efficacy also drives prevention.

The Program’s success can be measured by its replication, as well. The Fair Food Campaign is inspiring workers in other industries. Transformation might come next to the dairy industry, as the Milk with Dignity Campaign gets underway. Through the farmworker organization Migrant Justice, dairy workers in Vermont, with support and collaboration from CIW and the National Economic and Social Rights Initiative, are adapting the Fair Food Campaign model. They recently secured an agreement of cooperation with Ben and Jerry’s ice cream.

And, the Fair Food Campaign is moving into new territory, including Georgia, North and South Carolina, Virginia, Maryland, and New Jersey, as well as new industries, including the strawberry and bell pepper industries.
Success should be celebrated. And it should be shared. For those looking for ways to communicate the “value added” of human rights in the domestic context and the importance of worker-led social responsibility, the 2015 annual report on the Fair Food Program offers concrete data and powerful illustration.

Does Bias Influence the Career Paths of Gays & Lesbians?

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

 

A 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.

 

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 Klein.  Judge 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!