Candidates Favor Equal Pay, But How Do They Vote?

Kay Steiger

Pay discrimination, paid family and medical leave, and flexible work hours get little attention from pundits. But the candidates running for president have very different positions on these critical economic issues.

While media covers the economic
bailout plan in great detail, few outlets have paid attention to
how working women and families are doing in the face of an economic
crisis. Economic issues like pay discrimination, paid family and medical
leave, and flexible work hours get little attention or lip service from
pundits. But the candidates running for president this year have very
different views on these issues. The debates have the opportunity to
highlight or hide their stances on issues important to women. In addition
to watching what they say on the debates, it’s important to see where
they stand on issues important to working women and families.

Last year the Supreme Court ruled that Lilly Ledbetter wasn’t entitled to a dime after nearly 20 years of pay discrimination because she didn’t
file her lawsuit within six-months of the first discriminatory paycheck, making it far more difficult for women
to sue for pay discrimination and signaling a huge
setback for women’s pay equality. This April, the Senate voted on the Lilly
Ledbetter Fair Pay Restoration Act, something that would essentially
reverse the Supreme Court’s decision by making each new paycheck subject
to a discrimination lawsuit. This is after decades of the pay gap remaining stagnant.
But Republican presidential candidate John McCain didn’t show up for
the vote. Instead, he said that women "need more education
and training" on the campaign trail. He also said that the legislation
would create "problems" with current lawsuits.

His running mate, Sarah Palin, said something similar in a recent interview with Katie Couric.
Even though Palin is "absolutely for equal pay for equal work,"
she also believes that the legislation, again, which simply would change
the law back to what it was for years before the Supreme Court’s decision,
"was gonna turn into a boon for trial lawyers who, I believe, could
have taken advantage of women who were many, many years ago who would
allege some kind of discrimination. Thankfully, there are laws on the
books, there have been since 1963, that no woman could be discriminated
against in the workplace in terms of anything, but especially in terms
of pay. So, thankfully we have the laws on the books and they better
be enforced."

But here seems to be the problem.
Pay discrimination is an incredibly difficult thing to prove, and gathering
evidence of discrimination often takes far longer than six months. Women
are often unaware that they are being discriminated against for years.
In Ledbetter’s case, she had no idea that she was making less than
her male co-workers until someone left an anonymous note in her locker.
Because other benefits figure into your salary, like Social Security
and retirement, Ledbetter is continuing to pay for a decision made years
ago. The only way to better enforce the laws, it seems, is to make sure
that discrimination can be challenged in court. By making it more difficult
to sue, as the Supreme Court ruled, they’re actually ensuring that
the laws are less likely to be enforced effectively.

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Democratic presidential nominee
Barack Obama outlined an economic plan especially
for women
(PDF),
and made passage of the Fair Pay Restoration Act part of the proposed
economic changes that would help women explicitly. He also co-sponsored
the bill. The plan also outlined raising the minimum wage, requiring
employers to provide seven days of paid sick leave, and expansion of the
Earned Income Tax Credit. Obama said at a speech geared toward working
women in New Mexico this June, "As the son of a single mother, I also
don’t accept an America that makes women choose between their kids and
their careers. It’s not acceptable that women are denied jobs or promotions
because they’ve got kids at home. It’s not acceptable that forty percent
of working women don’t have a single paid sick day." McCain voted
for the original Family and Medical Leave Act in 1993, but his campaign
has not proposed any initiatives to expand or support paid family leave
or sick days.

Minimum wage (PDF) is important simply because so many
women earn it. Nearly 60 percent of the people that benefited from the
minimum wage increase last year were women. McCain has voted against
increasing the minimum wage 19 times until he voted in favor of the
legislation that was passed last year. At the time, he voted in favor of
filibustering
the
legislation that sought to increase the minimum wage, but in the end
ended up voting in favor of increasing the minimum wage to $7.25 per
hour. In an interview this August, he said, "I’m for
the minimum wage increases when they are not attached to other big-spending
pork barrel." He has, however, voted in favor of increasing the minimum
wage when it is tied to war spending bills, like the legislation last
year. 

Each candidate has also proposed
a tax cut plan. An analysis by the Tax Policy Center shows that McCain’s
plan would cut taxes overall by nearly $4.2 trillion and Obama’s plan
would cut taxes overall by $2.9 trillion from 2009-2018. But the important
thing to look at is the distribution of those tax cuts. A graph produced in the report shows that
Obama’s plan would result in an increase of post-tax income based
on which income shows an increase among all but the top one percent of
taxpayers. McCain’s plan shows increases in post-tax income in all
brackets, but the increases in the lowest quintile is much small than
the increases for the top one percent. 

Income inequality
in America is on the rise; some say the inequality is the greatest the country
has experienced since the Gilded Age following World War I. Women still
earn, on average 77 cents to every dollar a man earns, and little has
been done to help working families with more flexible schedules (especially
among hourly wage earners) in the last decade. Amid the debate over
the bailout bill and the economic crisis, not enough has been said about
ensuring that working families can maintain a quality of life and that
women can earn greater income parity in the workplace. Economic issues
are important to break down in all respects, especially those that are
important to women and families.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

News Law and Policy

California Lawmakers Take Action Against Rampant Wage Theft

Nicole Knight

A survey of people who work for low wages found that wage theft robbed workers of $26.2 million each week in Los Angeles, making the locale the "wage theft capital of the country."

Los Angeles has earned the distinction as the country’s wage theft capital, but a new California law is tackling the rampant problem of wage theft with new enforcement tools.

The law, SB 1342, signed last month by Gov. Jerry Brown (D), gives city and county authorities subpoena powers when investigating wage violations. Until now, the state Division of Labor Standards Enforcement was the primary agency charged with investigating wage theft cases.

State Sen. Tony Mendoza (D-Artesia) authored the legislation to “ensure that our low-wage workers, who already face many challenges, receive the pay that they have earned,” Mendoza wrote in an Orange County Breeze op-ed.

Wage theft is the illegal practice of failing to pay overtime and minimum wages, denying lunch breaks, or forcing employees to work off the clock. A survey of people who work for low wages by the UCLA Institute for Research on Labor and Employment found that wage theft robbed workers of $26.2 million each week in Los Angeles, making the locale the “wage theft capital of the country.”

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Some 654,914 workers in L.A. County are subjected to at least one pay-based violation in any given week, researchers noted.

Most people who work low-wage jobs in L.A. were born outside the United States, and the majority are Latino (73.4 percent), Asian (17.9 percent), or Black (6.3 percent), researchers found.

Wage theft is not only illegal, it contributes to food insecurity and housing instability in low-income families, Mendoza noted.

“This bill protects hard-working Californians by clarifying the ability of cities and counties to investigate non-compliance with local wage laws,” Mendoza said.

A legislative analysis of SB 1342 cited research noting that minimum wage violations are rampant in industries such as garment manufacturing, domestic service, building services, and department stores, where wages are low.

The measure comes as states and cities are increasing minimum wages as lawmakers in Congress have refused to consider raising the federal minimum wage of $7.25.

Brown in April signed a law lifting the statewide minimum pay rate to $15 per hour by 2022. More than a dozen cities, including Los Angeles, San Francisco, and Seattle, have proposed or enacted $15 minimum wage rates, according to the National Employment Law Project.

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