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The coming depression blog | December 17, 2018

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Job Discrimination Complaints Hit All-Time High

While America has always stood for being a country with diverse ethnic cultures that make us great, the fear is that those who have the least may suffer the most in this economic downturn as unemployment rises and jobs, even those that were previously unwanted, now become a precious commodity.

The federal agency responsible for investigating employment discrimination charges reported this week that the number of complaints coming from workers and job seekers has hit an all-time high. The Employment Non-Discrimination Act (ENDA) is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.

Section 1981 of the U.S. Code provides additional federal remedies to deter harassment and intentional discrimination in the workplace. Amended in 1991, § 1981 provides the requisite elements for proving a disparate impact claim and permits a jury to award compensatory and punitive damages in situations of intentional discrimination. Further, the U.S. Supreme Court has recently interpreted § 1981 to imply a private cause of action for race-based retaliation claims. A race-based retaliation claim is one in which an employer has retaliated against an employee for having previously filed a complaint of racial-discrimination.

Wisconsin was the first state to ban employment discrimination based on sexual orientation, in 1982, while Minnesota was the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993. Currently, 15 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey (see Law against Discrimination), New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional six states — Delaware, Maryland, Massachusetts, New Hampshire, New York, and Wisconsin — have state laws that protect against discrimination based on sexual orientation only.

The Equal Employment Opportunity Commission received just shy of 100,000 charges from citizens during the 2011 fiscal year, the most logged in a single year in the agency’s 46-year history, according to a new report. The agency also managed to obtain a historic amount of monetary relief for alleged victims of job discrimination — $365 million, the most on record.

Even though there are federal laws which prohibit discrimination on the basis of race, sex, age, religion, national origin, disability and other characteristics, bias and pay inequities in the workplace remain a persistent problem. In fact, last year, the U.S. Equal Employment Opportunity Commission (EEOC) received 75,768 discrimination charges against private sector employers. The most frequent charges were race (27,238), followed by sex (23,247) and retaliation against reporting discrimination (22,555). Other frequently cited charge bases were age (16,548), disability (15,575), national origin (8,327) and religion (2,541).

Opponents of ENDA sometimes argue that gay people should not be considered a “protected class of employees” by law.  However, ENDA would not protect “homosexuals” as a class; rather, the law would ban discrimination in employment based on any sexual orientation (including heterosexual orientation). Consumer surveys show that self-identified gay individuals likely have higher incomes than the average US household, and ENDA opponents argue that many gay people hold positions of cultural influence as well. The conservative Christian organization American Family Association’s (AFA) Journal concluded in 2007 that there was “no real problem of discrimination against homosexuals.” Additionally, AFA is concerned about how non-discrimination laws impact religious organizations. The organization cites a lack of clarity around whether the narrow exemption would apply to support staff and lay employees in addition to churches and clergy.

The deep issue, then, is whether a firm can be held legally liable for a pattern that emerges not from their explicit anti-discrimination policy or even from the intentions of their managers, but from the discretion of managers with unconscious biases typical in the general population. It seems to me exceedingly difficult to show that a pattern of discrimination is the result of too much discretion, at least if “too much” is supposed to be somewhere between “some” and “none”. Who has a principled definition of “too much”?

There are currently 5.9 million Americans who’ve been out of work for 27 weeks or longer. Speaking specifically about age discrimination, McCann (A senior attorney with the AARP) says the number of complaints probably won’t drop until the job market turns around.

“We don’t expect that to change until we really start to make inroads with the long-term unemployed,” she said.

Where to Get Help

If you feel like you have been the victim of discrimination, the first place you should go to is your human resources department. Working with your internal representatives to address your issues is extremely important. Employers have a vested interest to ensure all employees feel valued. In many cases, line managers or supervisors engaging in improper behavior continue the behavior because the proper channels within the organization are not tapped until the situation is irreparable.

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