Women's Rights Employment Law Blog

For those who live in “post-race” America, its time to acknowledge the rose-colored spectacles. Racism must be well and alive in the country where even a mayor at his position of responsibility uses supremacist slurs while addressing racial minorities.
Coopertown in Tennessee has a mayor Danny Crosby who while swearing in a new police officer on Martin Luther King Day said, “Happy James Earl Ray Day” as a reference to King’s assassin. Crosby has displayed highest form of despicable behavior if the 17-page complaint against him filed by the attorney general of the district after one-sixth of the entire town brought a petition is to be believed. While making the town a “traffic trap” to earn ticket revenues, his targets are easily Hispanic drivers, who he thinks are “mostly illegal anyway”.
He has three weeks to respond to the charges.

A recent focus groups poll commissioned by National Gay and Lesbian Task Force (NGLTF) has found out where the public stands on the issue of trans-inclusive non-discrimination laws. A vast majority of those surveyed support trans-inclusive laws, despite being asked transphobic language in their questions by the pollsters.

“We used a trans-unfriendly language to describe what we were talking about, and we said a law that would protect people from discrimination on the basis of gender identity would specifically protect transgender people. Transgender people are men who identify or present themselves as women and women who identify or present themselves as men and includes transsexuals, cross dressers, and people who have had or are considering sex change operations… And now I’m going to ask you again, I’m not going to ask you about your values, I’m going to ask you do you favor a law that protects people on the basis of both sexual orientation, gender identity, one or the other or neither? And we got 59 percent said both, nine percent one or the other, 23 percent said nobody. It’s good news,” said Candy Cox, NGLTF’s communications senior strategist.

What is the official position?

The LGBT community’s access to civil rights has remained traditionally absent. Every time a proposal is made to include people with alternate sexual orientations and identities, the power structure has reacted in the negative. As a result, the United States has a comprehensive hate crimes bill finally. And yet, the truth is this law is not trans-inclusive.

Amidst applauds during last September, the House of Representatives passed a hate crimes bill that provided protections for transgender individuals. The lead co-sponsors of the House version were Rep. Barney Frank (D-Mass.), who is gay, Rep. Tammy Baldwin (D-Wisc.), who is a lesbian, and Reps. John Conyers (D-Mich), Christopher Shays (R-Conn.), Illeana Ros-Lehtinen (R-Fla.), and gay Rep. Jim Kolbe (R-Ariz.).

However, the bill went through rough weather in the Senate. US senators Ted Kennedy (D-Mass) and Gorden Smith (R-Ore) refused to make the Senate version of the bill trans-inclusive. They apprehended the bill with a change of language could not have even seen light of the day. Their concerns were genuine, considering past overall hostilities towards similar gay civil rights bills.

In essence, both the House and Senate versions of the legislation had called for amending an existing federal anti-hate crimes statute that authorizes federal prosecution for hate crimes based on someone’s race, religion and ethnicity. The Kennedy-Smith bill in the Senate then went ahead and added sexual orientation, gender, and disability to the categories covered under the existing law. The House version also had added the categories of sexual orientation, gender, disability and gender identity.

Not all is well:
Although the House version had added gender identity, it pertains only to the hate crimes bill, not to the employment sector. The leading co-sponsor in the House Rep. Barney Frank opposes adding transgender language to the Employment Non-Discrimination Act, or ENDA. ENDA calls for banning employment discrimination in the private sector based on sexual orientation. Relevant to note here is the fact that ENDA itself is lying dormant in Congress since the 1970s. This has lent more apprehensions for Frank who says adding a transgender clause to ENDA would result in fewer co-sponsors.

The mainstream applied logic is that transgender clause helps prevent physical attack, and hence it should be suited for hate crimes bill. And considering that ENDA’s destiny is doomed in the Republican-controlled Congress as such, even without a transgender clause, any further alteration would harm the prospects ever greater.

What’s the real issue?
Well, few things have emerged. First off, categorizing people as LGBT would help only when they are provided with equal in-group access. In other words, the LGB people and the transgender individuals do not share the same concern, much less do they enjoy similar privileges.

As is becoming of a system of governance which has historically oppressed few groups and privileged certain others (in some unsophisticated terms, Malcolm X had alluded to this as ‘divide and rule’ policy), the current administration more so has been actively vocal about creating the distinctions more apparent. That the LGBT people do not enjoy similar rights as heterosexual people is no new knowledge. But to mar the united opposition to this systematic discrimination, the LGBT peoples themselves have been divided since some time now, in terms of the degree of their access to resources and rights.

Latest in the lowest ladder of oppression are the transgendered people, who have found absolutely no support from either the House or the Senate. If the House supports their inclusion in Hate Crimes bill, it refuses them access to ENDA. As for Senate versions, not even the Hate Crimes bill has time for the transgender.

The layers of difficulties that have been systematically in place to seclude the transgender people from the minimum safety and comfort that most heterosexual people take simply for granted poses few serious questions.

The ones that currently surface, even as the recent poll shows solidarity to causes of the transgender individuals include but are not limited to, the awareness of transgender, the privilege of the heterosexuality, and the redundant administrative hurdles.

Awareness of the transgender: It’s not just a few history textbooks filled with systematic lies for consumption of school children, its also the composite lot of media, military and industrial nexus that have refused to deal with the whole truths. As a result, heterosexuality has been taken for granted to such an extent as a religiously accurate norm, that any alternative is considered to be one non-normal group called LGBT. At this point, the dismissal of the minorities are done at the alter of celebration of the norm. Therefore, most are kept oblivious of distinguishing the nuances of gender and sexuality.

Without education of an understanding of what constitutes “gender identity” or “gender identity and expression”, we are finding resistance to their inclusion as forming the explicit language that’s needed to be there in proposed legislations. The transgendered people are absolutely accurate in their fear that the proposed laws will continue to discriminate against them, since judges may interpret the victims from a lens that’s indifferent or silent about covering them.

In the process, the politicians are acting on priority to ensure passage of the bill, and looking at the technicalities that will facilitate the process. They are in no way interested to get educated on the crucial differences between the LGB and the T communities and how non-inclusion of some languages might actually work in detriment to the transgender peoples’ right in the civil society and employment sector.

Privilege of heterosexuality: The ruling elites have always advocated the inevitability of hierarchy of oppression. And so, it is considered that sustainable reforms, not radical changes need to take place while all along posing one oppressed group against another. So different systems of oppressions such as race, sex, gender, etc are poised in a prioritized hierarchy, and not as constituents of a multi-layered complex that is exploited all at once.

To quote Audre Lorde from a chapter in “Oppression and social justice: Critical frameworks.” (5th ed., p. 51, Edited by J Andrzejewski, 1996), “Within the lesbian community, I am Black, and within the Black community I am a lesbian. Any attack against Black people is a lesbian and gay issue, because I and thousands of other Black women are part of the lesbian community. Any attack against lesbians and gays is a Black issue, because thousands of lesbians and gay men are Black.” The privilege of heterosexuality ignores the fact that heterosexuality itself is not a privilege by default any longer once one considers the oppressions of other race, class and gender variants.

Administrative hurdles: Administration poses deliberate problems because it gains from the divisive tendencies. The monopolist politicians who have thus far believed in standardized notions of the male supremacy have not stopped either at ensuring draconic laws that recognize marriage only between a man and a woman and grant them the best of civil rights, they have also countless number of times prevented progressive proposals from becoming legislations.

I am tempted to quote Lorde again, “It is not accidental that the Family Protection Act, which is virtually anti-woman and anti-Black, is also anti-gay. As a Black person, I know who my enemies are, and when the Ku Klux Klan goes to court in Detroit to try and force the Board of Education to remove books that the Klan believes “hint at homosexuality”, then I know I cannot afford the luxury of fighting one form of oppression only. I cannot afford to believe that freedom from intolerance is the right of only one particular group. And I cannot afford to choose between the fronts upon which I must battle these forces of discrimination, wherever they appear to destroy me. And when they appear to destroy me, it will not be long before they appear to destroy you.”

That’s a serious lesson for our well-meaning politicians if they are genuinely contemplating to benefit the people thus far discriminated against. Not merely for the representatives to see their names hit the halls of fame, for passing of yet another ineffectual bill.

The city animal services department of Los Angeles had to wait till today when massive protests by activists over the last week finally changed its stance towards participating in a planned bikini contest called “Hooters for Neuters” for spaying pets.

It speaks volumes about the department’s reactionary compositions that have lent administrative helps to an organization systematically aimed at degrading women. Although, from one angle, it does appear to be natural to collaborate with the Hooters, since the department itself espouses spay and neuter as the methodical solution to welfare of animals!

However, the department has technically not backed out of the event. It has merely assured that it will not receive any money from the event. So the “Hooters for Neuters”, a conservative, anti-animal rights, sexist organization of disrepute will still continue to use the city department as its partner on all its publicity campaigns and gain legitimacy.

Under pressure, the Hooters website has undergone several changes since last week. In the beginning the official poster had a bikini clad woman supporting animal sterilization.

After severe protests from many feminist organizations, the city Controller Laura Chick responded in support of the activists. “Are we going backward here? We are a city with all kinds of progressive programs that empower women and end discrimination in the workplace, and now we're being connected with a Hooters bikini contest. It isn't right.”

Animal Services General Manager Ed Boks finally got convinced that the poster was at least degrading to women, and the poster accordingly changed on Hooters restaurant chain website, replacing the woman with a dog wearing a T-shirt that says “Hooters for Neuters”!

And now after more forced introspections, Boks has released a press note saying that the department will bow out of the July 13 fundraiser at the Hollywood nightclub hosted by the Hooters restaurant chain.

However, the Hooters on their part still mention the LA Animal Services department on their new amended poster.

In the meantime, according to reports, Councilwoman Jan Perry said the department's attempt to be creative in telling pet owners to sterilize their animals “crosses the line.” And animal activist Judy Cairns of San Pedro said she could live with the bikini contest on the condition that city officials — namely the men — also show some skin. “I want to see Mayor Villaraigosa's legs,” Cairns said.

In the classic American class society, the people down the hierarchy who physically serve the unwell are the ones least looked after. Nurses could be some of the biggest victims of this mentality, as their profession is mired with lack of respect, heavy workloads and low wages.

According to Institute for Women's Policy Research, wages for nurses stagnated in 2003 and then fell 6.4 percent in 2004, leading to a decline in nurses working at hospitals. Some of the key findings of this report include the following blatant indifference to workers’ deserved needs:

* Of 49 recent analyses of the nurse workforce, only 11 proposed increasing wages in order to attract more nurses.
*A report from the US Government Accountability Office cited "inadequate staffing, heavy workloads, the increased use of overtime, a lack of sufficient support staff, and the adequacy of wages" as key factors of nurse shortage.
*The link between wages and the number of workers seeking jobs--which most economists view as the key driver in labor markets--is too often overlooked when it comes to nurses.
*The quality of patient care suffers when cost-cutting staffing practices reduce nurse/patient ratios.
*Over the late 1990s and into 2000, nurses pay did not increase at all, although some hospitals had already begun worrying a nurse shortage in 1997.
*Instead of competing for nurses by increasing pay, hospitals often turn to a combination of overworking (through mandatory overtime), contingent workers, understaffing, and one time hiring bonuses to meet staffing needs.

Last week itself, four class action lawsuits have been filed against 20 of the biggest US hospitals, including no.1 HCA Inc and US Catholic Hospital System.

Nurses backed by Service Employees International Union, the country’s biggest health care union claimed that the hospitals had conspired to depress wages for nurses amid a national shortage. The claim says that hospitals discuss nurses’ wages over meetings via telephone and through written surveys, in order to coordinate and suppress pay.

The suits, filed in federal courts in Chicago; Memphis, Tennessee; Albany, New York; and San Antonio, Texas, seek back compensation and legal costs totaling "hundreds of millions of dollars" under federal antitrust laws.

As for the HCA, it has behaved predictably. Jeff Prescott, a spokesperson for HCA said, “This is one of four frivolous money-wasting lawsuits apparently generated by a union and a law firm designed to create publicity in markets where unions are trying to get membership,” said.

A Maryland Department of Health and Mental Hygiene investigation has found the state public health officer for Washington County William Christoffel as a violator of the state sexual harassment policy.

The allegations first published by The (Hagerstown) Herald-Mail Sunday said that health officer Christoffel who has been on administrative leave since June 9, had made sexually explicit comments, played with condoms and hugged a worker.

Today the officer has denied that he made any offensive comments to his staff and said he would contest any action taken against him as a result of the findings.

According to a separate Associate Press report, the complaints of sexual harassment were originally made by Sandra C. Hoffman, assistant director of Johns Hopkins University's George W. Comstock Center for Public Health Research and Prevention in Hagerstown.

In the report prepared by investigator Hilda J. Davis based on interviewes of 13 witnesses from the Comstock Center and the health department, Christoffel had already admitted to seven offenses, including making sexually explicit statements, using condoms as a joke, hugging an employee publicly and referring to a school teacher who attended a school board meeting as "good eye candy."

Trade unions in the country during recent times have been operating on templates. At least half of all labor unions in New York city have decided to challenge this practice, where the city negotiates a deal with one union and then uses that contract as a sort of template for other negotiations.

Mayor Bloomberg thinks “one size fits all” will not fit any one since the coalition is formed by 20 labor unions that have different work rules and hence it might not be served by working together.

Refuting the Mayor’s apprehensions and calling the move a “milestone” for city municipal unions, in a statement, United Federation of Teachers President Randi Weingarten said, “With working people losing their pensions and health care, and the erosion of the middle class, many of us realize that the issues that bind us are far greater than the ones that divide us.”

Currently 20 labor unions coalition will bargain on behalf of about 175,000 city workers. The association, yet unnamed, includes civilian and uniformed unions and brings together members of both the AFL-CIO and the neophyte Change to Win coalition.

The ones who have not agreed to take part include the police, firefighters unions, American Federation of State, County and Municipal Employees Union District Council 37, the city’s largest public-employee union.

Let’s do a reality check. No woman has ever led the presidential ticket of a major political party in the United States. Only one—Democrat Geraldine Ferraro in 1984—has been nominated for vice president by either the Republicans or the Democrats.

Earlier, Shirley Chisholm as the first black woman ever to run for President of the United States made an unsuccessful bid even for the 1972 Democratic nomination.

Today an AP report focuses on how US lags behind in female political representation. Yet, the report would not mention how the country could learn from others that have implemented radical quota systems to ensure women participation in the legislation. In fact the report attributes some unnamed experts as saying that factors helping female politicians outside the U.S. include financial support, women-focused reforms within individual political parties, and an organized effort by the media and the general public to champion political parity.

Whereas all these factors might be valid, the fact that countries like Sri Lanka, India, Bangladesh, Pakistan, Chile, Liberia, apart from Israel and UK have had absolute success in electing women politicians to the highest office does not much support the thesis of financial support and media reforms. In addition, a concerted effort to prevent women from joining the highest political battlefield can only be overcome through an equally passionate effort at ensuring participation, not by merely opening the platform to unfair competition.

The Michigan Civil Rights Initiative (MCRI) is a misnomer. It is deliberately misleading so as to hijack the spirit of civil rights movement by naming itself similarly. At its best, it’s a right wing effort (funded by businessmen like Ward Connerly) to sabotage the ongoing demands to implement affirmative action more proactively. At its worst, it’s a highly reactionary movement aimed at systematically promote discrimination at workplaces.

This fall, Michigan voters are going to decide on the fate of use of affirmative action policies in the state. It’s especially alarming because the MCRI is proposing to outlaw race, gender and other personal demographic data as criteria for public institutions including Michigan's public universities to use in furtherance of civil rights initiative. Only in 1997, University of Michigan spearheaded the movement of affirmative action to be applicable in colleges, but over the last many years, continues to be the prime target.

The irony is that MCRI is not a new initiative by the right-wingers. Indeed, President Bush has echoed similar sentiments before. On January 15, 2003, the President said,

"..the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race. So, tomorrow my administration will file a brief with the court arguing that the University of Michigan's admissions policies, which award students a significant number of extra points based solely on their race, and establishes numerical targets for incoming minority students, are unconstitutional."

However, after a week, the President’s pleas also did not bear fruits for the reactionaries. In its first ruling on affirmative action in higher education admissions in 25 years, the Supreme Court justices voted 5-4 to uphold the University of Michigan's law school affirmative action policy by ruling that race can indeed be used in university admission decisions.

Detroit Free Press today runs two columns to provide voice to both schools of thoughts. Whereas Roger Clegg finds Affirmative Action an ambiguous term to deal with, Paul Hillegonds says we will roll back to the 60’s again if reactionaries had their way.

Black historian and author Lawrence Otis Graham says US Senate displays some of the same racist attitudes it displayed a century ago. His new book, “The Senator and The Socialite” (HarperCollins), surveys the internal racial hiring practices of the US Senate offices, which he thinks is pathetically below mark.

Graham says, “It is outrageous enough that this nation will only elect one black person to the U.S. Senate, but it is a true disgrace that the Senators, themselves, are unwilling to hire blacks and other minorities to run or assist in their offices.” He cites a study which shows that 94% of the Senate employees are white and not a single one of the 100 Senators has a black person in a chief of staff leadership post.

In a press release today, Graham says, “Nothing has changed on the Senate side of the Capitol building since 1874 when Senator Blanche Bruce became the first black elected to a full Senate term. There was 1 black in the Senate then, and there's still only 1 black there today. And none of the Senators seem to really care about that level of racial exclusion.”

Photograph taken in front of Pennsylvania Station, New York

The first female building inspector in Hayward City Hall Margaret Dufresne had to leave the job in 2001 because male inspectors discriminated against her, and her superiors, most of whom were female, retaliated against her for raising discrimination complaints.

The trial resumed last week after the U.S. Supreme Court issued a ruling that makes it easier for employees to lodge discrimination complaints against employers.

The irony is that even after five years, the woman employee who should have received justice by now is trying to still defend her case. This time, also against allegations that she was a “whiner” at workplace! The reality is that the city is much less diverse in its workforce, with overwhelming majority being white males. This could be the case due to the city choosing to drop diversity training workshops in the early 1990s. City Manager Jesus Armas said that this needed to be done keeping in mind the economic recession and budgetary consideration. And amidst chuckles from the courtroom, he could not answer to Dufresne’s lawyer’s question: “why city leaders built a costly new City Hall in the mid-1990s when they were abandoning diversity training?”

As the trial goes on, one thing is certain: it’s a hearty respite that workers can now get their cases moving against the former or present bosses without a fear of any retaliation.

One of New York State’s largest gay and lesbian advocacy groups, Empire State Pride Agenda, has endorsed Attorney General Eliot Spitzer in the race for governor. Spitzer has said he supports same-sex marriage and he would work to implement a bill legalizing such unions to the Legislature if he's elected governor.

Spitzer has won an early endorsement of the Working Families Party, community group ACORN and labor unions, including those that broke from the AFL-CIO to form the Change To Win Federation.

"Not all movements are progress"
Frederick Douglas

In an excellent overview on women CEOs in corporate America, Donecia Pea writes today that women represent less than 2% of the Fortune 1,000 CEOs and just 1.4% of the Fortune 500 CEOs!

According to a study, on the Fortune 500 corporate boards, in last decade, the average rate of increase in women’s representation was one half of one percentage point per year! And if women held only 14.7% of board seats, only 3.4% were women of color. At this rate, it would take another 70 years for women to hold approximately 50% of board seats (Catalyst. Right-click to save in PDF)!

The problem persists on the front of statistics, no doubt. But what’s also needed within discourse of the number studies is a critical emphasis on the genealogy of disparity and ways to work on it.

Such a trenchant corporate disparity can not be merely incidental. And the rate of increase in women's participation is not indicative of any progress. It’s perpetuation of a system of oppression in terms of both gender and race producing a class division. Current forms of implementations of civil rights laws are proving ineffectual to handle the inequity, and fresh radical steps need be taken to undo the centuries of exploitation. It’s not the ladder of fair competition that women are not stepping up on; it’s the unfair monopolists who are not ready to inch away from the seats of power that’s creating hostile prospects.

East Lansing teachers’ union President Edwina Marshall has raised objection to possible discriminatory stance by the school district in hiring of the principal of MacDonald Middle School. The finalist principal in question who was dropped was a black internal candidate.

In face of obvious defense from the district officials, what substantiates the claim by Marshall is the discrimination she was subjected to herself during the interview process. During the event, Marshall, who is black, was incidentally seated next to the only minority candidate, Andy Wells. At that point, the human resource director of the district passed a comment to her that she should move so as to “balance the color in the room”.

Although Wells has since accepted an offer of becoming principal in another high school, Marshall has rightly brought this matter to light. Firstly, out of a total of 240 teacher body, the school has only 14 who are black (6%), whereas 17% of the student body is black. In other words, proportionately speaking, minority teachers are three times less than the minority students. Secondly, in an effort to “work together”, the school might end up overlooking the serious nature of allegation.

In defense of the human resource director, an attorney has said, “It has been Ms. Peatross' practice to strategically place members of an interview team throughout the interview room to 'balance' the room by position, gender and race, thus creating a welcoming environment for interviewees.”

But the reality is maintaining ‘balance’ often times germinates from deliberate assumptions too. Considering that Wells was the only minority candidate, there was no way a balance could have been anyway established. But what was established in the process was a suspicion that two people of color sitting by each other can influence fairness. Now that is ridiculous.

Technorati Profile
A forthcoming California Special Education Alert (July 1, 2006) says that a grandparent of an 11-year-old student with an articulation disorder who was allegedly repeatedly harassed and assaulted by other students, has got another chance to amend discrimination complaint. The complaints in this case (Walden v. Moffett, 45 IDELR 219) are of the nature of race and disability discrimination

The student’s grandparent has claimed the district's failure to protect him constituted a violation of his rights under the IDEA and Title IV of the Civil Rights Act. Apparently, the court has found very ambiguous the action or inaction on part of the district that’s being alleged. Hence the grandparent has been asked to first, a) exhaust IDEA’s administrative remedies, and to b) specify what precise roles of the district were being questioned.

So what happens if someone takes part in a non-political march/rally? One would say, she/he gets to sport a new t-shirt and have a scoop of vanilla. After all, people take part in public spheres at all sorts of marches, including for breast cancer, and AIDS awareness, pro-choice, or even pro-life rallies.

Think again. Yesterday, a longtime columnist and features writer for Allentown-based Morning Call Frank Whelan was suspended from work without pay for having walked on a gay-pride parade.

Whelan, obviously disturbed and enraged, said, “I would be emotionally ill; I would be wretching; I would be incapable of working with these people. I cannot go back into that building. I was naive enough to believe the Morning Call would be happy [for me] because they are always talking about how they believe in diversity.”

And he is considering filing a lawsuit. Now that’s what you should do too, if you take part in a rally and you are suspended, because the rally you took part in does not suit the whims and fancies (or deep-seated prejudices) of the company bosses.