Phoenix Arizona Discrimination Law Blog

Even senators can face workplace discrimination

While many women in Arizona may expect that U.S. senators enjoy top-of-the-line protections against discrimination based on pregnancy and parenting, in far too many circumstances, this is not the case. Attention has been drawn to the issue after Sen. Tammy Duckworth became the first sitting senator to give birth. This means that she may be unable to take part in votes and debates while she is on parental leave because senators must be present in person in order to vote. Children are also not allowed on the Senate floor.

There is no formal parental leave policy for senators, a common phenomenon that can hinder parents' advancement on the job. Many working parents face workplace discrimination linked to their role as a parent or their pregnancy. Despite legislation like the Family and Medical Leave Act and the Pregnancy Discrimination Act, working parents continue to face penalties, up to and including job loss.

Employment discrimination and the Civil Rights Act of 1964

It's hard to believe that there was once a time in the United States when employers could discriminate amongst potential employees on the basis of race, religion, sex and creed. However, before the Civil Rights Act of 1964, this kind of discrimination was accepted as normal.

In the past, it was not uncommon for an employer to reject an applicant or turn down a promotion or raise just because he or she was white, black, Jewish, Christian, Muslim, male, female, Peruvian or Mexican. These days, however, such discrimination is unlawful.

Discrimination against older workers still a threat

Many older workers in Arizona may be concerned about the potential of facing age discrimination in the workplace, even when they are employed by well-established corporations. For example, a recent report from ProPublica and Mother Jones magazine revealed extensive allegations of age discrimination at IBM, long a company ostensibly known for long-term careers that honored seniority. In the past five years, however, the corporation may have laid off approximately 20,000 workers aged 40 and up in the United States, although that number is almost certainly an underestimate.

These layoffs came as part of an attempt to systematically replace older workers with younger workers, allege former workers, a violation of civil rights law. In some cases, employees were laid off after decades with the company and their jobs were outsourced to overseas workers or to lower-paid, younger domestic workers. The reports note that the change in approach at IBM coincided with a decision to move their business model toward one centered on cloud services.

Overcoming the trauma of sexual harassment

The trauma experienced by victims of workplace sexual harassment can range in severity based on the case. Some individuals will be hurt and angry and nothing more. Others will suffer from lasting psychological harm that requires long-term treatment to overcome.

In this regard, sexual harassment doesn't only relate to the loss of income experienced by someone who loses his or her job because of sexual harassment. It relates to the psychological consequences of post-traumatic stress disorder, trauma and other lasting mental and emotional effects that can result from the workplace abuse.

Correcting economic harm caused by gender pay gap

Women throughout Arizona often unknowingly work for lower pay than men in the same or similar positions. This form of gender-based pay discrimination is known as the gender wage gap. Comparisons between female and male pay calculated by the Institute of Women's Policy Research show that women only make an average of 80.5 cents for every dollar that men earn. This means that women work 15 months to produce the same amount of income that men receive in 12 months.

The economic toll paid by society for this discrimination produces an enormous cost. According to the institute, equal pay for equal work would add over $512 billion annually to the U.S. economy. That would translate into women having a greater ability to pay bills, support families, buy homes, and retire comfortably.

Contactors face a lack of workplace protections

Those who live or work in Arizona or anywhere in the United States as a freelancer have fewer rights than employees do. For example, those who work on a freelance or contract basis don't have the protections derived from Title VII of the Civil Rights Act. They also don't have the ability to sue if an employer violates the Americans with Disabilities Act. Workplace health and safety regulations don't generally apply to those working on a freelance basis.

Workers may face a scenario in which they are labeled as contractors when they should be labeled as employees. This is important because workers who are deemed to be contractors tend to cost less for employers. A member of the House from Washington, D.C., has proposed legislation that would provide all workers with protections against discrimination from those they work for.

Discrimination against job applicants continues

Apparently, American companies still discriminate on the basis of race while vetting and hiring new candidates. A study released by Harvard, the Institute for Social Research in Norway and Northwestern University looked at hiring practices in the United States from 1989 to 2015.

The results were unsettling. According to the study, anti-black racism has stayed the same in the United States since 1989.

Unpaid interns vulnerable to harassment

Most Arizona employees are under the protection of federal laws designed to prevent workplace discrimination and sexual harassment. Surprisingly, those protections may not apply to some of the youngest and hardest working people in the actual buildings where state laws are crafted. Because of employment classifications, legislative interns are especially vulnerable to harassment and discriminatory workplace behaviors.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against employees on the basis of race, color, religion, gender, or national origin. The law is applicable to sexual harassment cases and outlaws tolerance of behavior that creates a hostile work environment as well as direct harassment of employees. The Equal Employment Opportunity Commission is in charge of enforcing federal laws against discrimination against most employers. Unpaid interns are often not considered employees under the law, and therefore cannot rely on traditional labor law protections like most workers. With high profile cases against some state lawmakers, legislative interns may be in the news, but the distinction applies to most unpaid interns. Some legislatures have enacted sexual harassment policies and procedures to protect employees, but most make no mention of interns. Of those that do address interns, they do not specifically convey standing to sue as an employee.

Former NFL cheerleader files EEOC complaint

Arizona NFL fans may be aware that several teams have faced lawsuits from cheerleaders for violation of wage laws. The Tampa Bay Buccaneers and the Oakland Raiders settled while the Buffalo Bills got rid of their cheer team altogether after they were accused of violating minimum wage laws. In March 2018, the New York Times published an investigation into how the New Orleans Saints treats cheerleaders compared to players after a former cheerleader filed a complaint with the Equal Employment Opportunity Commission.

The woman was fired because of an Instagram post and because she allegedly went to the same party as a player although the latter accusation was never proved. According to the Times, some of the behaviors forbidden to cheerleaders but not players are keeping a social media account that was not private, posting photos online wearing Saints gear and going to the same nonapproved event as a player even if it is simply a meal in a restaurant.

Workplace discrimination and the LGBT community

It was not long ago that members of the LGBT community needed to keep their identities secret at work. Workers often lived a dual life, not making reference to their spouses or partners at work for fear that they would experience retaliation, harassment, loss of opportunity and the loss of their jobs.

Times have changed. Many LGBT employees now understand that several Arizona cities have laws that protect workers from discrimination based on their sexual orientation or gender identity. Having these protections does mean that LGBT employees will be free of abuse and harassment on the job. Sometimes, employees have to stand up for their rights in court.

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Elizabeth D. Tate, Attorney at Law
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