This week the Senate HELP Committee will vote on the nomination of Thomas Perez to be the next Secretary of Labor. In the midst of the many unfair and unfounded attacks lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex discrimination has also come under attack: disparate impact. Under Mr. Perez’s leadership as the Assistant Attorney General for Civil Rights at the Department of Justice, the Department has employed the longstanding disparate impact analysis to combat employment discrimination. Its application is not only legally sound, but exceptionally important to eliminate discrimination and further justice.
The Supreme Court and Congress have long made clear that Title VII of the Civil Rights Act “prohibits employers from using employment practices that cause a disparate impact” based on sex and other protected classes. The doctrine of disparate impact allows for a remedy when an employment practice that may be neutral on its face has an unjustified adverse effect on members of a protected class.
Disparate impact has been crucial to addressing entrenched discriminatory employment practices. Indeed, women’s entry into high-wage, nontraditional occupations has been made possible in large part by challenges to unfortunate employment practices that disproportionately disadvantage women, which would have otherwise remained unchanged but for the Title VII’s disparate impact doctrine. Courts, for example, have struck down height, weight or strength requirements implemented by employers in police departments, fire departments, in construction and in correctional facilities because the requirements were not related to job performance, but instead reflected stereotypes about the skills required for a position. Moreover, there are often alternative practices that may both satisfy job performance demands and allow for a diverse workforce. Read more »
Monday morning I had the honor of observing the oral arguments for Vance v. Ball State at the United States Supreme Court. At issue in the case was how courts should define “supervisor” for the purposes of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination, including sexual harassment. This definition is important because it determines when an employer—in this case, Ball State University—will automatically be held liable for harassment perpetrated by an employee.
The plaintiff in the case is Ms. Vance, a catering assistant at Ball State University, who was the only African-American employee in her division. She alleged that she was threatened and called racially-motivated names by her immediate supervisors, and she suffered greatly because of it. However, Ms. Vance lost her case against the university when the Seventh Circuit Court of Appeals ruled that for the purposes of Title VII, supervisors only include those people who can hire and fire employees. The individuals who harassed her did not have this authority, though they did oversee her day-to-day work. This decision reflects a continuing split among Circuit Courts, as other courts have held that supervisors should also include day-to-day supervisors. Read more »
After living as a college student in DC for three years, I’d never been to the Capitol. I’ve toured the White House, visited the monuments, seen the Smithsonian museums, but never got a chance to go to Capitol Hill. Now I can say that I have finally crossed it off my list.
This week I had the opportunity to visit one of America’s greatest institutions. However, this great institution could soon be voting on a not-so-great amendment; an amendment that puts my health and the health of others at risk.
I attended a briefing on Capitol Hill presented by NWLC’s own Judy Waxman about the Blunt Amendment that may soon be voted on in the Senate. This amendment would give employers and insurers the option to refuse to cover a health care service that is against their religious or moral beliefs.
Last week, President Obama announced an accommodation to the contraceptive coverage provision of the Affordable Care Act that protects women’s access to this critical preventive health service while accommodating the opposition to the service by religiously-affiliated institutions. The Blunt Amendment is a new tactic to undo this advance for women’s health. However, this amendment goes far beyond overturning contraceptive coverage and would compromise the employees’ or beneficiaries’ health care services. Read more »