John is on a 5 day motorcycle trip on his dual sport, so it’s just the boy and I this week. I’m trying to keep myself busy cleaning house, hanging with friends, baking, writing, and so forth. All the same, it’s an adjustment. Warning: Lovey-dovey gush ahead.

John is … amazing. I feel incredibly lucky to be married to my best friend. He’s incredibly intelligent, he’s got this subversively hilarious sense of humor, and he’s sexy to boot. We share the same values and enjoy (most) of the same activities, like riding motorcycle and trail walking and crabbing and outdoorsy stuff. It’s a rare activity we don’t enjoy doing together — for example, I hate fishing, but I like going fishing with John.

Why? Because while John is casting for fish, I’m wandering around photographing the river, flora, and fauna. I make tiny little leaf boats and race them in the current. I wade in the river and find the smoothest stones I can, then try to skip them in the river.

In other words, I amuse myself.

Likewise, John is not a fan of art museums — he likes natural history or science museums — but he’ll wander through art museums with me. He’s not someone who enjoys writing (or reading fiction), but he’ll still read my stuff and offer critiques and edits on it.

It’s like somehow, just being together makes activities we might otherwise find boring or irritating fun. I think it’s one of the reasons we pretty much always go grocery shopping together. It’s a stupid, boring chore … unless you’re going with your best friend.

We’ve been married 13 years, and I can count on one hand (literally) the times we’ve been apart for more than a night. There was our separation. There was the time I took a 3-day trip to Seaside, OR with Kidling. There was the time John and Kidling flew out to the midwest to go to his brother-in-law’s graduation. There was the time I took Kidling up to Monroe to stay with friends for a weekend while John quit smoking. And there’s this week.

Five times, and I feel kind of stupid for missing him, especially when we’re having fun and we’ll see each other in just a few days. On Sunday, Kidling and I rollerbladed/ bicycled through the neighborhood, visited some friends, and went on a motorcycle ride to B&N. We bought some books for Kidling, and I bought a hollow book that I plan on  stuffing with goodies and shipping to a friend of mine. On the way home, we stopped at Pho Hoa for dinner. Later that evening, I went to a film with a friend of mine.

Monday, Kidling woke up with swimmers ear. So I took him to the doctor, then to Fred Meyers for some legos I’d promised him, and then to Costco to fill his prescription. Back at home, we made hash browns and bacon-cheese omelettes together, played with the dogs, and watched some Red vs. Blue (this tv show dubbed over Halo characters … surprisingly funny). Then he went to a friend’s house to go swimming for a bit and I worked on some classwork for a bit, then started a book I’ve been meaning to read. After dinner, I cleaned up the house and started the laundry.

Tomorrow, we’re meeting with friends at a park in the morning, and I was thinking of maybe going to the library in the afternoon, if Kidling was interested. In the evening, a friend is coming over to hang with us, play with the dogs, and get into a Settlers of Catan marathon with us. Kidling and I also have movie tickets to use this week, and we’ve been tossing around the idea of finding a spot to take the dogs swimming. I’ve also been considering taking Kidling on a quick trip to Yelm, just for fun.

The days are just packed, and there’s lots of fun stories and news to tell John when he gets home … but it still feels a little melancholy without him, no matter how short term. I guess this is the downside of being married to your best friend. Every activity is improved by their presence … but on the flip side, their absence feels so strange. Like when you have a tooth pulled, and it feels so strange to have this sudden new space in your mouth, so you keep probing the spot with your tongue, wondering at the oddness of it. John being away is like a pulled tooth.

I’m sure there’s an analogy in there somewhere about John’s presence being like a toothache, but I assure you, that’s unintentional.

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Feminism and Immigration Law: A Silent Majority, Behind Closed Doors

The Intersectionality of Feminism and Justice at Work | Part III

The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens

This is part III of my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog. (Parts I & II).

Although the Equal Pay Act and Title VII changed the face of the workforce for many American women, there were two large segments of the workforce that did not benefit from these changes in U.S. law. Cesar Chavez helped bring attention to the plight of the immigrant farm workers, but the experiences of immigrant women and domestic workers has largely remained behind closed doors, silenced. Their voices are relegated to the forgotten edges of policy debates, and when domestic labor is addressed at all, the value of the work is discounted. How hard is it, after all, to clean a room? — or so the thinking goes. Domestic workers have faced a long and challenging battle trying to gain recognition and protection under U.S. Law.

indentured servant advertisement34The first domestic workers in America came as indentured servants to the Virginia colonies. In Between Women, Rollins says that, “from it’s (sic) beginnings, domestic servitude in this country has embodied a . . . contradiction between principles and behavior that did not exist in seventeenth- or eighteenth- century Europe, a contradiction between the value of egalitarianism and the actual class and caste stratification.” (Rollins 48)

DomesticSlavewithPlanterFamily330After the Revolutionary War, the experience of domestic servitude split along the Mason-Dixie. In the North, domestic servants were free persons engaging in voluntary paid labor. Often, they were of the same race and community as their employers. (Rollins 50). In the south, “domestic workers,” or house slaves were the most numerous of the slaves. The 1848 Charleston, South Carolina census shows that out of a population of 7,355 adult slaves, 5,272 were labeled as some form of domestic servant. (Dawson 30-48).

irish domestic helpIn the mid-nineteenth century, the rising fortunes and opportunities for middle-class white women led to an increase in demand for domestic servants. Despite the increase in labor demands, domestic work was still seen as a low-status occupation, and white women eschewed it if at all possible. During this time, domestic workers were primarily comprised of immigrants from Ireland, Scandinavia, and China. Following Emancipation, Black women joined the ranks of underpaid and under-appreciated domestic workers. (Raaphorst 33)

Domestic workers have long been drawn from the subclasses resulting from discriminatory laws. As such, these workers have been historically silenced and cut off from any avenue to protest employment abuses; a reality that persists even today. Early attempts to organize domestic workers were largely unfruitful. In 1881, Southern domestic workers attempted to organize, demanding better pay. They held strikes in Galveston, Texas and Jackson, Mississippi. A few years later in Chicago, a 1901 effort to organize domestic workers sputtered out due to lack of community support. (Caldwell)

In 1880, the number of immigrants entering domestic service began to drop. This trend continued into the 20th century, and as both native- and foreign-born white working women opted to move into manufacturing or the garment industry rather than join the ranks of domestic servants. The space left by their departure was filled by Black women migrating Northward to get away from the tenancy system, Jim Crow laws, the boll weevil infestation, and a series of heavy rainfalls and flooding in 1916. By 1920, 46 percent of employed Black women were domestic workers. (Allen, Harris, and Schuylder)

In 1934, the Domestic Workers Union was established, headed by Dora Lee Jones, a Black domestic worker. By then, well over 50 percent of employed Black women were domestic workers. The DWU was affiliated with the New York City Building Service Union, Local 149, but membership was low. In the end, the DWU fizzled out, as had previous attempts to organize domestic workers. Union Maids Not Wanted explains why it was so difficult for domestic workers to effectively organize:

“Ignored by labor unions, discriminated against, neglected, and at best patronized by their government, domestic workers once again attempted to form independent unions . . . like all other previous individual attempts at a collective action, [it] was at best locally effective and short-lived.” (Raaphorst 289)

In 1935, the National Labor Relations Board Act of 1935 was passed, protecting the right of workers to organize, participate in collective bargaining, and engage in strike actions. It was an unprecedented legal action on behalf of worker’s rights, yet it excluded large swathes of the working population. Among those excluded from the protections of the NLRA were domestic workers and farm laborers. When the Fair Labor Standards Act of 1938 was passed and established a minimum wage, reduced workweek, and increased compensation for overtime for American workers, it also excluded domestic and agricultural workers.

black servantYet despite both the government and union organizers discounting the value of domestic workers, demand from employers continued to rise. By 1940, a full 60 percent of Black working women were employed as domestic workers. It was only after the Civil Rights Act of 1964 was passed, the percentage of Black domestic workers began to drop.

In the wake of Brown v. Board of Education, the Equal Pay Act of 1963, and the Civil Rights Act of 1964, there were more employment options becoming available to Black women. Yet these same laws, intended to address discrimination based on race or gender, once again did not extend to protect the rights of domestic workers. Title VII of the Civil Rights Act applies only to employers with 15 or more employees, which virtually excluded every domestic worker in the United States.

In 1974, the Fair Labor Standards Act was amended to provide some minimal protections to domestic workers, such as requiring minimum wage and overtime pay, but the amendments specified that babysitters and companions to the elderly were still excluded. By 1979, only 32 percent of employed Black women were in the domestic service industry. Meanwhile, the percentages of Black women employed as clerks or “other service worker” were rising. (Rollins 56).

tumblr_m6lr1xB6n01rt1tqoo1_500As Black women left the domestic workforce, Latina women filled the void they left in a reprisal of the role played by Black women 60 years previous. Once again, the face of domestic labor in America was changing.

One of the unique challenges in domestic work is the intimate nature of it. Difficulties arise in any employment situation, but a domestic worker must learn to navigate a work environment headed by a boss who often does not realize they are heading a workplace. The normal work and social boundaries constraining the employer are subconsciously dropped in the familiarity of their home. Rights that are expected in “official” workplaces, such as regular breaks, working equipment, days off, or regular wages are treated as unreasonable, selfish, or thoughtless demands. In response, domestic workers tend to fall back on non-professional behavior and psychological manipulations, such as threatening to quit in order to get a raise. The success of this tactic is by no means guaranteed, while the risks are extremely high. (Romero 158)

Perhaps it is the influence of 20th century ideas, such as an “illegal person,” or the perceived necessity of a patrolled border, or the existence of a U.S. Immigrations and Customs Enforcement (ICE) department, but it is acceptable both socially and legally for an employer to use the threat of deportation to ensure obedience in the workplace. Undocumented Latina women, or documented Latina women who are supporting undocumented friends or family, learn all too quickly how willing an employer is to utilize that threat. When David Bacon, author of Illegal People, interviewed Luz Dominguez about her retaliatory firing, he described how she perceived her employer’s shift in attitude:

“When Dominguez describes what happened at the hotel, she is still so angry that her voice trembles. “She [Smith] told us we’d have to show her our Social Security Cards so they could check the numbers,” she recalled bitterly. “Before, they’d tell us sometimes they’d received a notice about our numbers not matching, but they never required us to take any action, or told us we couldn’t continue working.” (Bacon, ebook)

These women, who live and work in communities affected most by immigration policy, have not merely been left out of the conversation; they have actively been restricted it from participating. Policymakers have framed the immigration debate as one that must be resolved by American citizens and their duly elected representatives — even though undocumented immigrants contribute to the community through both taxes and labor. In restricting the conversation to “citizens only,” politicians are attempting to silence the voices and stories of thousands of undocumented U.S. workers. In response to this culture of suppression, the Latino community has organized and participated in May Day Demonstrations, protest marches, and even union organizing, despite the threat of deportation.

logoAt last, the perseverance seems to be paying off. In 2007, the National Domestic Workers Alliance was founded, and started a grassroots campaign to pass a domestic worker’s bill of rights in New York State. Six years later, the organization is the nation’s leading advocate for the rights and needs of domestic workers throughout the United States, and boasts 39 affiliates serving more than 10,000 people.

In 2010, the New York Domestic Workers Bill of Rights, championed by the NDWA was signed into law. It is the first bill of its kind in the country, and provides the domestic workers of New York state with the right to overtime pay, one guaranteed day off per week, three paid days off each year, protection under New York State Human Rights Law, as well as the creation of a special cause of action for domestic workers who suffer sexual or racial harassment. (“Domestic Workers’ Bill of Rights”).

In 2012, California voters approved a similar Domestic Workers Bill of Rights, but it was vetoed by Gov. Jerry Brown. In May 2013, Hawaii approved a Domestic Workers Bill of Rights which makes it illegal to discriminate against domestic workers on the basis of race, gender, or sexual orientation and brings domestic workers under the state’s wage and hour laws. As of the writing of this paper (2013), it still needs to be signed into law by Gov. Neil Abercrombie.

The time is ripe for major legislative change. In 1866, Congress passed a Civil Rights Act which extended citizenship to emancipated slaves. This was followed by four more Civil Rights Acts, which approached and addressed the question of racism in a scattershot and piecemeal manner. Within a decade, the pushback of business lobbyists had undermined the promise of Reconstruction, and the infamous institution of Jim Crow spread across the south in place of slavery. It would be nearly one hundred years before the question of racial equality in America was legislatively addressed once more.

The Civil Rights Act of 1964 was not so much unique in the intent, but in the scope, which is what needs to happen now. The United States needs major legislation that does not tweak or amend existing workers rights laws, but upends it and throws it angrily out the window.

The rights of the U.S. working class rests upon three pillars: The right to organize, wage parity, and anti-discrimination laws. Regarding organization and wage parity, the two pieces of legislation proposed to address how pro-business interests have systemically chipped away at worker rights, The Employee Free Choice Act and The Paycheck Fairness Act, have repeatedly been stalled or rejected. (HR 438, “Employee Free Choice Act Bill Summary”). These bills need only popular and Congressional support, and the addition of language that explicitly extends their protection to undocumented workers. It is time to make a serious positive change in the rights of the working class residing in the United States of America, both documented and undocumented. It is time to truly proclaim solidarity forever.

 

Feminism and Discrimination Law From Sex-Plus to Family Responsibilities Discrimination

The Intersectionality of Feminism and Justice at Work | Part II

The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens

This is part II of my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog. (Part I).

The Phillips v. Martin Marietta Corp. case of 1971 was the first sex-discrimination case under Title VII to reach the Supreme Court. In the same time frame, the legal theory of sex-plus discrimination arose as employers tried to defend their discriminatory activities as legal under Title VII of the Civil Rights Act of 1964 and the courts struggled to define how to determine what qualified as discrimination.

need-not-applyIn brief, the Martin Marietta Corporation had a policy preventing the hiring of mothers with pre-school aged children. Martin Marietta assumed such women would be more likely to take time off to care for sick children, which Martin Marietta felt meant they were unreliable employees. Ida Phillips applied for a job at the company and was denied because of her maternal status.

Phillips filed suit in the United States District Court for the Middle District of Florida, claiming Martin Marietta’s hiring policy was discriminatory and in violation of Title VII of the 1964 Civil Rights Act. In a move that is much more surprising to today’s eyes, the District Court agreed with the Martin Marietta Corporation and granted summary judgment in their favor.

The District Court — and later, the Fifth Circuit Court of Appeals — held that Martin had not discriminated against Phillips because they had been open and honest about not accepting job applications from women with pre-school aged children; because Martin employed men with pre-school aged children, thereby proving they were not discriminating against parents; and because approximately 75 to 80 percent of the applicants hired for the position in question were female, thereby proving that Martin was not discriminating against Phillips on the basis of her gender.

Phillips appealed, and in May 1969, the Fifth Circuit Court of Appeals affirmed the District Court opinion and denied a rehearing. At this point, the Equal Employment Opportunity Commission (E.E.O.C.) filed an amicus brief on behalf of Phillips, and the Supreme Court granted certiorari. Chief Judge John Brown of the Supreme Court found in favor of Phillips and overturned the previous decision. The final ruling of the Supreme Court was that employers may not refuse to hire women with pre-school aged children, unless the same standards are applied to men.

Although Judge Brown overturned the decision, the view of the court seemed, at best, slightly baffled by the question. Their decision was both remarkably short in wording and extremely brief in the time the court took to determine it. Furthermore, in addition to overturning the lower court’s findings, the Supreme Court sent the case back to the lower court for trial. This action suggested to some observers the possibility that sex-plus discrimination could be defended under the Bona fide Occupational Qualifications Exemption of Title VII, which reads:

“[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise…” The Civil Rights Act (1964)

Unique Clothes Sketch Models2Generally speaking, a Bona fide occupational qualification exemption will only apply in those situations where it is reasonably necessary to the normal operation of the particular business. For instance, a private Catholic school can reasonably require that the dean or teaching staff be Catholic, but they cannot require the cleaning staff or groundskeepers to be Catholic. (Guite, 2001). Additionally, an advertiser of female clothing can lawfully advertise for and hire only female models, while a business that sells sexual gratification to a specific demographic can lawfully hire employees who appeal to said demographic. For example, a strip club targeted at gay males can lawfully advertise for and hire only male strippers.

Austrian_Airlines_male_flight_attendantAlthough such an exemption may seem easy enough to claim, in practice it is difficult to defend, as Northwest Airlines discovered in 1967. In this case, it was determined that customer preference for female flight attendants did not fulfill the requirements of the Bona fide Occupational Exemption clause of Title VII, since gender has no effect on the actual performance of flight attendant duties. (Evenson v. Northwest Airlines Inc.)

In the case of Phillips v. Marietta, the company could not excuse their requirement that female employees could not have young children as a Bona fide Occupational Exemption, because such a qualifier was not applied to the male employees. Since the company clearly had no issue with female employees per se, given their high rate of employment, the question the court and observers were left to wrestle with was the definition of the discrimination Phillips experienced.

It was not sexual discrimination, as she was not subjected to sexual harassment or remarks. It was not necessarily gender discrimination, as 75 to 80 percent of the employees Marietta did hire were women. It was not that Phillips was a parent, as Marietta could prove they employed numerous men who had young children and families.

Instead, it was a curious combination of both her gender and her status as a parent — as a childless female or a male with a pre-school aged child, Phillips’ employment application would have been considered. It was only the combination of her sex plus parenthood that led to her being discriminated against.

This is the essence of the sex-plus legal theory of discrimination: When gender alone does not precipitate the discrimination, but the gender plus another factor. As Reva B. Seigel phrases it in A Short History of Sexual Harassment, the, “courts characterized the challenged practices as “sex plus” policies, policies that discriminated on the basis of “sex” “plus” some other putatively neutral criterion (hair length, type of dress, mannerisms, orientation, or “willingness to furnish sexual consideration.”

Siegel goes on to clarify that the purpose of the sex-plus legal theory was to, “protect the traditional ways of doing business from disruption by the antidiscrimination statute.” This seems to have backfired somewhat, and the statutes and legal theories that have arisen to combat sex-plus discrimination have continued to evolve and overcome new barriers.

prego-21In the 1960s and 1970s, however, the battle against sex-plus discrimination was still being framed. Cases such as Geduldig v. Aiello and General Electric Co. v. Gilbert, dealt with employers who chose to deny their female employees health coverage during pregnancy, arguing that pregnancy was more expensive than the sorts of health issues normally covered by disability healthcare. In both cases, the court upheld such exclusionary disability plans, claiming they did not violate Title VII. As a result of this sex-plus discrimination, the Pregnancy Discrimination Act was added in 1978 to Title VII. This Act specifically addresses employment discrimination against pregnant women, women who might be perceived as being likely to become pregnant, or recently pregnant women.

Working-DadOver time, the sex-plus legal theory of discrimination segued to Family Responsibilities Discrimination (FRD). Through the 1970’s and 1980’s several sociological shifts were occurring: Males were taking on a larger and more equitable share of family responsibilities; the healthcare needs of the baby boomer generation became a demand for working adults; and the expected hours an employee should work steadily increased.

Taken separately, these trends may seem unrelated, but taken together they spell an increased demand on the time of employees from both employers and family. If an employee opts to prioritize their family responsibilities, they may face repercussions ranging from lack of promotion opportunities to reduced hours (and wages) to being outright fired for a lack of commitment to their job. As the Employee Relations Law Journal puts it:

“Many legal scholars believe Phillips was the beginning of FRD litigation. After Phillips, the number of cases increased modestly throughout the 1970s and 1980s. The 1990s, however, brought a much more rapid rate of increase, rising particularly steeply between 1998 and 2004. There were 481 cases in the decade 1996-2005, compared to 97 cases in the previous decade, an increase of nearly 400 percent. This rate stands in contrast to more general employment and discrimination case rates, which decreased 23 percent between 2000 and 2005.” (VonBergen, 2008)

Consider the case of Knussman v. State of Maryland in 1996. Knussman was a Maryland State Trooper when his pregnant wife was put on bed rest. Shortly before their child’s birth, Knussman learned of a new Maryland statute that allowed paid sick leave for state employees to care for a newborn. Knussman inquired about taking the leave as a primary caregiver, which would allow him 30 days of paid leave rather than the 10 days allotted to a “secondary caregiver.” Knussman was told that because he could not breastfeed, he did not qualify as a primary caregiver, and he was denied the 30-day leave.

project-breastfeeding-dad-537x402Knussman took his allotted leave, but when the end of his 10 day paid leave approached, he again inquired after the extended leave. This time he was told that God had created women to have babies, and unless he could have a baby, there was no way he could be a primary caregiver. He was further informed that unless his wife was either dead or in a coma, he would never be a primary caregiver, and subsequently ordered to return to work. In response, Knussman filed suit, and the case went to trial, where the jury found in favor of Knussman to the tune of $375,000.

gr-discrimination-cases-300What is particularly interesting about lawsuits involving family responsibilities discrimination is their apparent appeal to jurors. Traditional employment discrimination cases involving gender, race, disability and religion have a success rate of about 20 percent. In contrast, FRD cases win more than 50 percent of the time, and the average award is about $100,000 (Pinkham, 2008).

It appears that jurors find it easier to relate to and sympathize with plaintiffs — regardless of the race or gender of the plaintiff — who were just trying to successfully navigate the common and shared experience of work/ family conflict. Female employees continue to battle gender discrimination expressed in a spectrum of behaviors, but discrimination against an employee for their familial responsibilities regardless of their gender is an area that nearly everyone seems to be able to relate to in some form.

discrimination1Looking to the future, it will be interesting to see how the sex-plus theory proposed during the first wake of gender discrimination lawsuits after the passage of Title VII continue to evolve as more Americans struggle to juggle the responsibilities of work and family.

The Intersectionality of Feminism and Justice at Work | Part I

The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens

This is my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog. 

Introduction

We have discussed the concept of our “lens” quite a bit this year, and how our personal lenses impact our understanding of the world around us. As we have moved through the readings, films, and discussions over the year, I have sometimes felt confronted or defensive because of the information presented. This is where the lens I utilize has enhanced my learning experience, as I rely on my personal experiences as well as my understanding of feminism in order to both process and relate to the information in question.

Clearly, feminism is not my sole lens, nor even the only lens I have relied on to process information. My LDS upbringing provided me with the lens of distrust for mainstream historical accounts, as such accounts neglected the Mormon influence on American history. When I left my childhood faith and began identifying as atheist, I began to view the world through the lens of understanding that just because I want something to be true does not actually make it a true thing. New information can be shocking and difficult to hear, but just because an idea confronts my understanding of the world does not negate its value. Being misdiagnosed with Bipolar depression as a teenager and my involvement in the mental health community equipped me with the lens to better understand the experience of discrimination and microaggressions.

These lenses, and many others I have either not identified or am not aware of, interact to influence my reactions to and understanding of the material presented throughout the year. I choose to concentrate on the intersection of feminism with Justice at Work because it is the lens I most actively and consciously relied on in order to connect with the material, language, theories, and issues that have been presented over the year.

Further, the lens of feminism allowed me to connect with the material on a more personal level, by focusing in on aspects of the material we were only able to briefly touch on in class. In fall quarter, I looked at the relationship of feminism and labor law, and how the promise of the Equal Pay Act has been implemented. In winter quarter, I examined the role of sex-plus discrimination and how it led to the burgeoning legal field of family responsibilities discrimination. For spring quarter, I will look at the history of immigration and worker rights as they apply to domestic work.

Fall 2012: Feminism and Labor Law
Equal Pay for Equal Work

Congress passed an unprecedented and landmark piece of legislation 50 years ago. Nothing like it existed in prior United States legislation. The Equal Pay Act of 1963 (EPA) made it illegal to pay men and women different wages for performing similar jobs under similar working conditions.

equal-work-deserves-equal-pay

One year later, Congress passed the Civil Rights Act of 1964, which made it unlawful to discriminate on the basis of race, religion, color, or sex. Title VII of the Civil Rights Act specifically addresses discrimination in employment. Title VII makes it unlawful for employers to discriminate because of race, religion, color, or sex in the terms, conditions, and privileges of employment. Congress incorporated the EPA’s affirmative defenses into Title VII, which states that an employee who claims they have experienced pay discrimination due to their sex must show evidence that different wages were actually paid to opposite sex employees; that the employees in question were performing similar duties under similar working conditions at the time; and that the positions in question required equivalent levels of skill, effort, and responsibility.

women's pay 1960 to 2009Taken together, the Equal Pay Act and Title VII should protect the covered categories of employee from discrimination in wages, promotions, transfers, or job assignments on the basis of sex. Instead, these anti-discrimination measures have faced such strong resistance from employers and business interests that parity in wages has not yet been achieved, more than 50 years after the passage of the EPA.

The EPA was preceded by the National War Labor Board (NWLB), which was re-instituted during World War II and ran from 1942 to 1946. During World War II, women were entering the work force in greater numbers while the men were away fighting.

Norman-Rockwell-Rosie-the-RiveterAlthough women made up a greater part of the workforce, they were still being paid less than their male counterparts. The NWLB supported the unprecedented policy of equal pay for equal work because of the many negative impacts unequal wages had not only on the worker, but also on their financial situation and the community at large. In 1942, the NWLB urged employers to make, “adjustments which equalize wage or salary rates paid to females with the rates paid to males for comparable quality and quantity of work on the same or similar operations.” (Jaffee)

Unfortunately, since the NWLB was an advisory committee, backed by neither legislation nor the enforcement of law, they had little long-term success in implementing their recommendations. In fact, few employers heeded the NWLB’s call during the war, and after the war ended, the majority of women were summarily dismissed in order to create employment opportunities for the returning veterans. The briefly shining light of equality in working conditions, personified by the iconic image of Rosie the Riveter, was also dimmed.

equalpay-finalUp until the 1960’s, want ads for men and women were categorized according to gender. Higher-paying jobs ran almost exclusively under the male category listings, while the lower paying and administrative “pink collar” jobs ran under the female category listings. In some cases, identical jobs would be advertised to both men and women, but with differing pay scales. From 1950-1960, full-time female workers earned an average of 59-64 cents for every dollar men earned in the same job. (The Wage Gap)

The EPA, though intended as a step toward income parity between men and women, was not comprehensive. It exempted women in administrative, professional, salesperson, or executive capacities from coverage, as well as domestic workers.

Nine years later, the Education Amendment of 1972 expanded the promise and protection of equal pay to women in white-collar professions by amending the Fair Labor Standards Act (FLSA) to exclude the EPA from the professional workers exemption of the FLSA. This action extended the coverage of the EPA to white collar working women, but continued to exclude domestic and agricultural labor.

Since the EPA was passed, many employers have cited apparent loopholes in the law in order to defend disparate wages. One such loophole was closed in the Schultz v. Wheaton Glass Co. case of 1970, when the court ruled that jobs need to be “substantially equal,” but not “identical” to fall under the protection of the EPA. This essentially means that if an employer hires two employees to do the same job, one male and one female, but gives the male a different job title than the female, they cannot pay based on the job title. They must pay based on the work itself.

In 1974, Corning Glass Works tried to defend paying their male employees more by arguing that men would not work for the low rates women would accept. This idea of a “going market rate” was deemed in violation of the EPA by the court’s decision in Corning Glass Works v. Brennan, and another loophole was closed.

Although the courts have frequently upheld the EPA, they have also ruled in direct contradiction to the intent and scope of the Act. A recent example is the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co.. The plaintiff, Lilly Ledbetter, was employed by Goodyear. After 19 years with the company, she was nearing retirement when she learned she was being paid significantly less than her male co-workers who held the same position. Ledbetter filed suit for pay discrimination under the EPA and Title VII.

The District Court found in favor of Goodyear on the EPA claim, stating that the EPA allows for pay differences based on merit. Ledbetter also said she had been evaluated unfairly due to her sex, and these unfair evaluations had contributed to the discriminatory pay. The District Court allowed this complaint under Title VII to proceed to trial.

Goodyear responded by stating their evaluations were non-discriminatory and focused only on worker competence, but the jury found in favor of Ledbetter after evaluating the evidence and testimonies. The District Court awarded her back pay and damages for the lost wages.

Goodyear appealed, arguing that because the 180-day statute of limitations had passed, Ledbetter’s case was void. The Eleventh Circuit U.S. Court of Appeals agreed with Goodyear, and reversed the District Court decision. Ledbetter then sought a writ of certiorari, which the Supreme Court granted. After hearing her appeal and Goodyear’s defense, the Supreme Court found in favor of Goodyear.

In his opinion, Justice Alito said Ledbetter could have and should have complained of the unequal pay within 180 days of receiving her first paycheck. He reasoned that because she had not complained and had continued to accept the lower-wage paychecks from Goodyear for the next 19 years, her complaint was invalid.

In an unusual move, Justice Ginsburg read her dissent from the bench. She felt the Court’s interpretation was “cramped,” and incompatible with the remedial purpose of the EPA. Ginsburg argued that pay discrimination tends to occur piecemeal over large periods of time, and the 180-day statute of limitations for discrimination complaints should not be applied as the Court was interpreting it. She also argued that pay discrimination differs from other forms of employment discrimination, as information about coworkers’ wages is usually unavailable for comparison. It is therefore extremely difficult to recognize pay discrepancies within the allotted 180-day time frame. Justice Ginsburg was supported by Justices Stevens, Souter, and Breyer in her dissent.

In 2007, the Lilly Ledbetter Fair Pay Act was proposed to address the loophole exploited by Goodyear and signed into law in 2009. This Act revised existing law to say that if a present act of discrimination pertains, prior acts outside of the 180-statute of limitations for pay discrimination can be incorporated into the claim — essentially, the 180-day statute of limitations restarts with each paycheck.

Employers will always exploit loopholes, and the EPA still boasts a rather substantial loophole: An employer can defend their discriminatory pay practices if they can prove the disparity exists for a “legitimate factor” other than gender, such as experience, training, or education. Despite the apparently neutral language, this leaves a rather wide gap in the EPA through which an unscrupulous employer can squeeze a significant amount of savings at the cost of their female employees.

This is, without a doubt, a major contributor to why women in America are paid less on average than men. In 1960, women were paid 60 cents for every dollar men earned. After the passage of EPA and Title VII, the gender wage gap began decreasing by about half a cent per year, but persists even today. The National Partnership for Women and Families (NPWF) recently released their 2013 reports on the gender wage gap. Full-time American working women are paid a national average of 77 cents for every dollar paid to men; a 23 percent income gap. This only skims the surface of the vast income disparities between men and women in America as the NPWF explained:

“The wage gap varies by state and metropolitan area. In Wyoming, for example, women are paid 67 cents for every dollar paid to men, while in Vermont, women are paid 87 cents for every dollar. The wage gap persists in the country’s largest cities. It is greatest in the Seattle area, where women are paid just 73 cents for every dollar paid to men.” (“Fact Sheet” April)

Another factor affecting the gender wage gap is, unsurprisingly, race. On average, Black women in America are paid 64 cents for every dollar paid to white, non-Latino men. American Latinas are paid just 55 cents for every dollar paid to white, non-Latino men. The Simple Truth, a publication released by The American Association of University Women (AAUW), further elaborates on the impact of race and gender on economic inequality:

“. . . within racial/ethnic groups, African American and Hispanic or Latina women experienced a smaller gender pay gap compared with men in the same group than did white and Asian American women. . . . Because white men are the largest demographic in the labor force, they are often used [as a benchmark]. . . .”(Corbett)

Corbett goes on to elaborate that in comparison with white men, Latina women experience the largest pay gap at 59 percent of white male wages, while the salaries of Asian women show the smallest gender pay gap at 88 percent. Corbett also explains that intra-racial gender pay gaps is entirely due to the fact that Black and Latino men are paid substantially less than white men.

In other words, we still have a long way to go before achieving the promise of the Equal Pay Act of 1964. Despite the initial incremental gender wage gap improvements post-EPA, it has become increasingly apparent that wage parity will not happen any time soon without legislation to address existing loopholes in the EPA. In 2009 and 2012, the Paycheck Fairness Act, which would uphold the EPA but add the requirement that it is the burden of the employer to maintain documentation supporting pay discrepancies, was proposed in Congress. Each time it was voted down. In January 2013, it was introduced once more to the Congressional Committee, and is currently under review. (H.R. 438)

Voting is a Right, Not a Privilege

For our week 3 assignment in Crime & Punishment, we listened to the Talking Justice episode, Liberty Lost: Felon Disenfranchisement on NPR. We were also supposed to read three articles regarding the pros and cons of suffrage for felons:
 
Credit: Orange is the New Black (Netflix)

Credit: Orange is the New Black (Netflix)

 

For whatever reason I couldn’t open, “The Case Against Felon Voting,” by Clegg, Conway, and Lee, so instead I read, “The Bullet and the Ballot? The Case for Felon Disenfranchisement Statutes,” by the same authors. I assume because it is the same topic, written by the same authors, arguing the same position, that they use many of the same arguments.

Okay. So after listening to the Talking Justice debate and reading both the pros and cons, I come down (perhaps not unsurprisingly) on the side of providing voting rights to felons. I am reminded of a quote I came across in my readings on undocumented immigrants, which paraphrased essentially said that in preventing undocumented immigrants from participating in the debate on immigration — a debate that directly affects them — we are preventing democracy.

I feel the same about this situation. The primary arguments of those who are proponents of felon disenfranchisement appear to come down to these beliefs:

  • It is constitutional to deny voting rights to felons
  • They did the crime, so they deserve to lose their ability to participate in a democratic society.

It was also constitutional to deny voting rights to people of color, women, and those who didn’t own land. Things change. Just because something was constitutional in 1787 does not mean it should remain constitutional some 230 years later. The United States Constitution is a living document, which has been and must continue to be reinterpreted in light of the changing demands of humanitarian understandings of what constitutes a democratic society.

In 1787, the working poor, women, people of color, and felons were considered so subhuman that they could not participate in a basic democratic process.  Today, the three of those four populations are nominally considered acceptable to participate in the democratic process — but disenfranchisement laws aimed at felon (and immigrant) communities continue to enforce a policy that protects the voting rights of the wealthy and white, while overwhelming silencing the voices of those who are considered by too many to be nonproductive members of society — the working poor, undocumented immigrants, and felons.

Voting is a right. In the Declaration of Independence, the founding fathers say that all men (which today is understood in the colloquial sense of all human beings) are endowed with certain unalienable (or incontrovertible) rights. We are all familiar with the bit where named as among these rights are listed the right to Life, Liberty, and the Pursuit of Happiness. Most people seem to forget the next bit, where the framers explicitly say, “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

I know the Declaration of Independence is not a legal document. It is essentially an angry break-up letter to England — but it is an historic document which outlines the core values of the founding of the United States of America. It is a document we continue to refer to as a nation when we assert our national character as a democratic country. And “the governed” in our country, like it or not, include thousands of disenfranchised voters who are excluded from providing consent to the “just” powers of the government that determines their rights and freedoms.

How can we say that the government and the laws which affect felons (and, for that matter, undocumented immigrants) are just and fair, when those very populations have not been given a voice in the creation and passage of those laws, even though their lives are shaped and silenced by them?

In the Talking Justice debate, an audience member said he thought such disenfranchisement laws are essentially classist, and a better solution would be to allow the sentencing judge discretion regarding adding or removing this right at the time of sentencing. He asked Ron Godbey’s thoughts on that solution.

Godbey completely ignored the suggestion of classism, and although he acknowledged that it might be preferable for a judge to have discretion in sentencing when it comes to voting disenfranchisement, he noted that judges do always inform the accused of the rights they will lose. Godbey did not seem aware that there’s a pretty key difference between a judge having the discretion to remove such rights, and having to inform someone their rights will be revoked. There is a difference. In the former circumstance, the judge is relied upon as a legal expert and the arbitrator of the law to determine the best course of action regarding the specific situation at hand. In the latter situation, the judge is compelled by law to enact a mandatory removal of a civil right on which the crime in question may have absolutely no relationship to.

Importantly, as I noted earlier, Godbey did not even address the classim portion of the comment — yet he repeatedly references his opinion that felons, by dint of committing a crime, recuse themselves from the democratic process. On page 4 of The Ballot and the Bullet, a similar argument is made, as the authors say,

“Finally, Section IV discusses the policy rationales for such laws: society deems felons to be less trustworthy than non-felon citizens, and those who cannot follow the law should not participate in the passing of laws that govern law-abiding citizens …” (emphasis mine)

Yet many people who cannot follow the law are allowed to participate in the passage of laws which govern law-abiding citizens. We see this every day. Corporations add clauses to their contracts that essentially protects them from consumer utilizing consumer protection laws by forcing arbitration instead of allowing individual or class-action lawsuits if the corporation endangers/ defrauds the consumer or otherwise breaks the law. Wealthy bankers, lobbyists, and Wall Street employees utilize loopholes in oversight requirements or tax code so they can follow the letter of the law while breaking the spirit of it. Others simply outright break the law, trusting in their wealth and privilege to protect them — and most do not end up like Bernie Madoff for their crimes, but instead continue to collect fat bonuses and influence the political process to their benefit.

Speaking of Bernie Madoff, Alexander noted in chapter 6 of The New Jim Crow that part of this new system of racialized control relies on the notion of black exceptionalism. Alexander argues long as people like President Obama and Oprah Winfrey exist, our society can continue to ignore the discomfiting evidence of racialized oppression inherent in the current criminal system. The success of President Obama and Oprah Winfrey supports the myth of meritocracy. Black exceptionalism, argues Alexander, undermines widespread recognition that social structures create racially biased and widespread disparate impact that perpetuates a systemic inhibition of the agency of people of color in poor communities to overcome the circumstances of their birth and education.

I would take that argument and repurpose it slightly to apply to systems of class control. So long as the occasional widely-publicized Bernie Madoff or Martha Stewart ends up in the news for financial crimes, the working class of America continues to toil on, assured that the wealthy are held responsible for their crimes just as the working class are.

In reality, the disparate responses to the criminal element of the American wealthy and the American poor is appalling, and I think that if felon disenfranchisement was applied as evenly to the wealthy movers and shakers of society who commit crimes as it is applied to criminal element drawn from the poor and working class, we would see a much different argument playing out.

In short, felony disenfranchisement is yet another system of racial and class control. Those who are unable to vote are overwhelmingly and disproportionately from poor communities and communities of color. Those who reserve the right to vote are overwhelmingly from white and affluent communities. A small, wealthy, white minority is dictating the rights and legislation which negatively impact the rights and movements of a much larger, poorer, and diverse majority.

Huh, I guess that is just like the original constitution.

The Impact of Unintentional Discrimination

In my Crime & Punishment online course, we’re listening to some episodes of this NPR show called Justice Talking this week. The first episode is called Race and the Justice System, and it’s really good. If you have the time, you should listen to it.

The thing that bothered me about the show (and I said this on the class forum) was the way that everyone who insisted racism isn’t that bad in the criminal justice system was talking about racism as though it has to be intentional to have an impact.

James Fox and Sandra Russell in particular seemed to really construe racism in the criminal justice system solely as an intentional action consciously chosen by individual actors. That is, they didn’t seem to think that a non-racist person could be, in the performance of their job requirements, forced to enact racist policies encoded within the system. They didn’t seem to think that unconscious bias about racial characteristics could influence prosecutors, arresting officers, judges, etc. Fox and Russell seemed to be laboring under the (fairly common) assumption that the only “valid” actions of racism are the premeditated and intentional ones.

People can have perfectly good intentions and still perpetuate racist, sexist, and discriminatory behavior. It’s scary and it’s upsetting, because it means that someone who is not a racist or a sexist can say or do something that’s incredibly racist or sexist without meaning to. I can. You can.  That’s the scary part. It takes the term “bigot” away from some obviously ignorant neo-nazi with a noose in one hand and a Confederate flag in the other, and hands it back to allies and well-intentioned people.

Normally when the question of the intent/ result comes up, we as a culture are taught to give a little leeway. To be forgiving, have a sense of humor, let it slide. It’s not that big a deal. And maybe on a micro scale of individual experience, it actually is not that big a deal for some people. Ignoring a thoughtless microaggression and sidestepping a potentially emotionally draining interaction is something people do every day to keep the peace with family, friends, classmates, and coworkers.

But when microaggressions and “soft” discrimination continues to slide, it turns into these subconscious attitudes that permeate our interactions and assumptions about people. And you can think someone is a human being worthy of respect, like the hypothetical police officer Russell described who will drive 90 mph to save the life of a black youth who’s been shot, but still hold these unconscious stereotypes about their personalities, preferences, and background.

The way that Russell and Fox dismiss systemic racism because they do not believe any discriminatory outcomes to be intentional is really disturbing to me, because it seems to completely sidestep the reality that many choices are shaped by social location and the unconscious biases that permeate our society.