News Law and Policy

Labor Department Takes Important Step On Pay Discrimination Claims

Jessica Mason Pieklo

The Department of Labor announced it was lifting rules put in place by the Bush administration that made investigating pay discrimination claims nearly impossible.

On Tuesday the Labor Department rescinded two guidance documents, originally issued during the George W. Bush administration, that the agency says have impeded investigations of pay discrimination claims.

Investigators in the department’s Office of Federal Contract Compliance Programs (OFCCP) will now be better able to find and examine evidence in discrimination claims, and evaluate contractor compliance with Executive Order 11246, which requires federal contractors to comply with anti-discrimination obligations, including prohibitions against pay discrimination.

The Bush-era guidelines made it harder for the OFCCP to exercise its full legal authority because they required use of the same narrow formula to review all contractor pay practices, regardless of the industry, types of jobs, issues presented or available data. Now, OFCCP will be using its legal authority to hold contractors to the same legal standard that courts and other federal agencies already apply to these businesses to prohibit job discrimination.

The change is designed to give the agency more flexibility in uncovering discriminatory pay practices and is seen as a necessary step in getting to the more invidious practices that often lack direct evidence of a discriminatory intent. “A strong American middle class hinges on ensuring equal pay,” said acting Secretary of Labor Seth D. Harris in a statement announcing the change. “As President Obama has made clear, everyone… must be paid fairly and without discrimination. These new standards will strengthen our ability to ensure that women and men are fully protected under our nation’s laws.”

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The news was welcomed by equal pay advocates like Congresswoman Rosa DeLauro (D-Conn.). “The Department’s announcement is welcome news for the millions of women who are victims of pay discrimination,” said DeLauro to The Hill. “These Bush-era ‘guidelines’ have hamstrung DOL and they never should have been implemented in the first place.”

Could the move signal more aggressive action to come from the administration on equal pay issues? Perhaps. Absent action from Congress on equal pay legislation like the Paycheck Fairness Act, forcing the issue through its federal contracts is one way to start eradicating the practice and build the case for Congressional action. At the very least it is certainly a step in that direction.

News Law and Policy

GOP Pushes LGBTQ Discrimination on Pulse Shooting Anniversary

Christine Grimaldi

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government.

On the one-month anniversary of the massacre at the Pulse nightclub in Orlando, Florida, congressional Republicans pushed legislation that would shield individuals and groups that receive federal funds from penalties for discriminating against LGBTQ people.

A U.S. House of Representatives committee Tuesday debated the First Amendment Defense Act (FADA). Republicans have proposed multiple official and unofficial versions of FADA. All of them share a common purpose: Protect recipients of federal dollars that act on their “religious belief or moral conviction” against same-sex marriage or sex outside of marriage. Conservative groups such as the Heritage Foundation have praised FADA for building on broader Religious Freedom Restoration Act (RFRA) and other so-called religious liberty bills. (The legal website Justia breaks down the similarities and differences between RFRA and FADA.)

A business or other organization drawing on taxpayer money and acting on those views, for instance, could deny child care, health care, and retirement benefits to an employee with a same-sex spouse without penalty from the federal government, Democratic lawmakers opposing the bill said at the House Oversight and Government Reform Committee hearing. Employers could even refuse to provide time off under the Family and Medical Leave Act to care for an ill same-sex spouse.

That possibility troubled Jim Obergefell, the plaintiff in the landmark U.S. Supreme Court ruling on marriage equality. “This is not the kind of dignity and respect that the Supreme Court spoke so eloquently of in the decision granting the freedom to marry nationwide last June,” Obergefell told lawmakers.

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If enacted into law, FADA would also empower those with religious objections to be able to turn away LGBTQ people seeking services such as housing or medical care, experts testified before the committee.

Rep. Elijah Cummings (D-MD), the committee’s ranking member, fellow Democrats, and 80 civil rights and other groups petitioned Republicans to reschedule the FADA hearing, to no avail. More than 3,000 faith and clergy last year leaders voiced their opposition to FADA, he said.

“To say that this hearing is ill-timed is the understatement of the year,” Cummings said as he opened the hearing. That evening, House Democrats and the Congressional LGBT Equality Caucus gathered on the capitol steps for a vigil honoring the 49 victims of the Pulse shooting.

Rep. Raúl Labrador (R-IN) introduced the House’s bill (H.R. 2802), and Sen. Mike Lee (R-UT), the identical Senate counterpart (S. 1598). FADA has little to no chance of becoming law this year given President Barack Obama’s increasingly outspoken support for the LGBTQ community, indicating that he would veto any such legislation that somehow managed to advance in the House and Senate. A Mississippi judge recently blocked a similar state law from taking effect.

House Democratic aides provided Rewire with a revised FADA draft that they said Labrador has been circulating since last Friday that goes even further.

Lawmakers and witnesses at the hearing discussed the revised draft, which they said would apply to all businesses—both for-profit and nonprofit. This draft permits discrimination against same-sex and opposite-sex couples except by federal employees acting in the scope of their employment and for-profit federal contractors acting in the scope of a government contract, they added.

David Stacy, the government affairs director for the Human Rights Campaign, the prominent LGBTQ civil rights group, described these exemptions, and others for hospital visitations and medical decisions, as concessions that don’t mask FADA’s underlying discrimination.

“That all being said, the bill has really significant problems that remain,” he said in an interview.

Columbia School of Law professor Katherine Franke underscored that FADA would go beyond permitting discrimination against LGBTQ individuals and include unmarried parents and heterosexual couples.

“A broad reading of this bill would create a safe harbor from penalties associated with an enormous range of behavior that is otherwise illegal or prohibited by federal law and regulation,” Franke said in her testimony before the committee.

Under FADA, she said, the federal government could not deny Title X funding to a health-care clinic that provides family planning services only to patients that can furnish a marriage license. Nor could the government deny a Violence Against Women Act grant to a domestic violence shelter that required residents to pledge their opposition to marriage equality or extramarital relations, she added.

Schools that accept federal funds could fire teachers suspected of having premarital sex, the Huffington Post reported. NARAL Pro-Choice America highlighted the “legislation that lets your boss fire you for having premarital sex (yes, really)” in a scathing memo sent to reporters.

“Are you a single mother whose landlord doesn’t believe in sex outside of marriage? Under this law, your landlord could refuse to house you,” the memo said. “Do you work at a company where your boss doesn’t believe in premarital sex? Under this law, if your boss found out about your private life, they could fire you.”

News Law and Policy

Virginia School Board Asks Supreme Court to Step In on Trans Rights

Jessica Mason Pieklo

Attorneys representing a Virginia school board want the Supreme Court to block the Obama administration's efforts at protecting transgender students.

Lawyers for a Virginia school district, according to a Tuesday filing, will ask the Supreme Court to intervene in the case of a transgender student who has sued for the right to use school bathrooms consistent with his gender identity.

The case involves Gavin Grimm, a transgender student who sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender.” Grimm’s attorneys argue that the rule, which effectively expels transgender students from communal restrooms and requires them to use “alternative” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy, but the lower court refused, ruling the school board’s policy did not violate the ban on sex discrimination in Title IX. The lower court also ruled the privacy interests of other students outweighed potential harm to Grimm in using a different bathroom. Grimm’s attorneys appealed.

In the interim, the Obama administration stepped in filing an appellate brief on Grimm’s behalf and arguing the Department of Education’s official position was that Title IX protected Grimm’s rights to use a restroom consistent with his gender identity. And in April, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Grimm, holding “the [Education] Department’s interpretation of its own regulation … as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case.”

The full panel of judges for the Fourth Circuit refused in May to rehear the case, leaving in place the original order.

The petition to be filed with the Roberts Court asks the justices to re-examine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent states federal agencies like the Department of Education have substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX.

Earlier this term the Court turned away a similar challenge to the Department of Education’s interpretation of its regulations with regards to student loan financing.

According to attorneys for the school board, the Roberts Court must take up the Grimm case because the fight over transgender student bathroom access “raises fundamental issues of bodily privacy rights” in addition to serious questions about agency authority and constitutional separation of powers.

The petition will also ask the Roberts Court to issue a stay of the Fourth Circuit decision.

Attorneys representing Grimm will have an opportunity to respond to the filing. Given the Roberts’ Court current calendar, should the Court agree to take the case, the earliest it would hear arguments is next year.