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Sex Discrimination in the Workplace – An Ongoing Fight

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The Equal Pay Act of 1963 was enacted to prevent sex discrimination in employee wages. Signed into law on June 10, 1963, the Equal Pay Act was part of John F. Kennedy’s New Frontier. After signing the bill into law, President Kennedy remarked: “While much remains to be done to achieve full equality of economic opportunity – for the average woman worker earns only 60 percent of the average wage for men – this legislation is a significant step forward.”

As an amendment to the Fair Labor Standards Act (FLSA), the Equal Pay Act was part of the same legal framework that establishes federal wage and hour laws.

Equal Pay Act provisions

The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender, employees within the same establishment for equal work at jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions.

Significantly, the EPA does not contain an intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements of the prima facie case:

1. different wages are paid to employees of the opposite sex;
2. the employees perform substantially equal work on jobs requiring skill, effort, and responsibility; and
3. the jobs are performed under similar working conditions

If an employee can establish these elements, then the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.

1972 broadening of the Equal Pay Act

In 1972, the Education Amendments to the EPA broadened the Act to cover executives, outside salespeople and professionals. This short Bat Girl video from the Department of Labor illustrates the issue.

Current sex discrimination for equal pay status

Despite the progress of the last half-century since passage of the EPA, there hasn’t been much improvement in the last decade in closing the gap further between genders. The most recent research shows women in the United States still make only 80%, on average, of their male counterparts. A host of factors are attributed to the slowing of improvement on this issue.

National Asbestos Awareness Week Resolution

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For the fourteenth time, the U.S. Senate introduced the National Asbestos Awareness Week Resolution to be observed April 1-7, 2018. The Asbestos Disease Awareness Organization (ADAO) praised the senate and the bipartisan cosponsors, led by Senator Jon Tester (D-MT) for bringing awareness to these preventable asbestos-related diseases. Other cosponsors were Senators Stve Daines (R-MT), Ben Cardin (D-MD), Dick Durbin (D-IL), Dianne Feinstein (D-RI), Sheldon Whitehouse (D_RI), Kamala Harris (D_CA), Patrick Leahy (D_VT), Jeff Merkley (D-OR), Cory Booker (D-NJ), Edward Markey (D-MA), Johnny Isakson (R-GA), and Elizabeth Warren (D-MA). There is expectation that this Fourteenth Resolution, paired with the U.S. Surgeon General’s asbestos warning, will again bring the dangers of asbestos to the forefront and save lives.

Aren’t asbestos problems an issue of the past?

Though asbestos use has declined in the US, deaths caused by asbestos have risen according to a study by the Centers for Disease Control and Prevention (CDC). There are two primary reasons for this:

First, asbestos-related diseases are generally diagnosed decades after exposure. Exposures from the peak usage years of the 1970s are still showing up as deadly diseases for workers of that era.

Secondly, the import and use of asbestos continues to this day in the US. Even patients in the 25-44 age range are dying from malignant mesothelioma demonstrating the ongoing occupational, environmental, and secondary exposure risks. There is no safe type of asbestos or usage. Fibers of this mineral have been found in makeup marketed to young teens as well as in other consumer products. It is still used in brake pads. Other dangers exist when asbestos used in construction or in manufacturing is disturbed in any way – often in remodeling.

The EPA and asbestos

Currently the Environmental Protection Agency (EPA) is evaluating the risks of asbestos under the Toxic Substances Control Act (TSCA). The ADAO emphasizes again the necessity of banning asbestos in the US. The past 13 Senate Asbestos Awareness Resolutions combined with five warnings from the U.S. Surgeon General’s office, and President Obama’s recognition of asbestos as a deadly carcinogen, have all confirmed its undue risk to human health and the environment.

The World Health Organization (WHO) affirms, “Exposure to asbestos, including chrysotile, causes cancer of the lung, larynx, and ovaries, and also mesothelioma (a cancer of the pleural and peritoneal linings”. Asbestos exposure is also responsible for other diseases such as asbestosis (fibrosis of the lungs), and plaques, thickening and effusion in the pleura.”

The EPA and asbestos – how you can help

Since the agency is currently evaluating asbestos risks, it is vitally important for voices declaring the dangers be heard. The cooperation of the EPA is necessary for a total ban to be implemented.

If you understand the issues with asbestos and know a ban is necessary, you can contact your senators to support all efforts for the ban. You can also call an asbestos hotline of the EPA.

• Phone: 800-368-5888 or (in the DC area) 202-566-1970
• Hours: 8:30 a.m. and 4:30 p.m. EST
• Type of Coverage: A member of the ASBO staff will answer calls
• Description: The Asbestos and Small Business Ombudsman (ASBO) operates a toll-free hotline for the convenience of small businesses, trade associations, and the general public, seeking free, confidential help as it relates to asbestos and a variety of environmental regulatory topics.

Microsoft No Longer Forces Secrecy in Sexual Harassment Claims

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In December, Microsoft announced it will no longer force secrecy in sexual harassment claims through the contract clause called forced arbitration. Going forward, Microsoft’s contracts will have this section removed.

What is forced arbitration?

For too long women, and men, subjected to sexual harassment in the workplace have been unable to take the matter to trial due to this clause. This results in fewer public trials and smaller settlements for the victims as claims are mediated through a third party without the ability to go to court. Just as troubling, forced arbitration hides what may be a widespread or ongoing problem within an organization from public knowledge.

Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center, said, “By doing this, Microsoft is saying that it’s going to take concrete steps to make its workplace culture more conducive to addressing and preventing harassment. That message is important above and beyond the impact on individuals whose contracts are about to change.”

Martin further stated, “While Microsoft apparently didn’t use these provisions across its workforce, some companies use them more indiscriminately across their workforces to bind lower-wage workers as well as higher-wage workers. By standing up and saying that it believes that these provisions aren’t fair to employees, Microsoft helps change the conversation in a way that has the potential to help a lot of people by increasing the pressure on companies to do the same.”

Will this change sexual harassment claims?

This is a step in the right direction, however approximately 60 million American workers have these arbitration clauses in their contracts, and according to a study by the Employment Rights Advocacy Institute for Law & Policy, 80% of America’s 100 largest companies use them.

While changing the clauses and culture in the large companies would make a huge impact, working in a small company may still bind employees to forced arbitration in the event of sexual harassment. These companies could be fearful of lawsuits that would put them out of business and are not nearly as visible as a company such as Microsoft. Therefore, they will probably not face media disapproval in the same way and are not willing to take their chances in a court of law just to avoid negative publicity. For them, the forced arbitration clause is an insurance policy.

Legislators see need for reform

In December 2017, a bipartisan group of lawmakers called for legislation to end forced arbitration for sexual harassment claims in the workplace. Rep. Cheri Bustos, a Democrat from Illinois sponsored two pieces of legislation: H.R.4734 and H.R.4570. Sen. Kirsten Gillibrand, Democrat from New York, also backs the bill. Sen. Lindsey Graham, Republican from South Carolina, called on the U.S. Chamber of Commerce to support the bill. Both bills were referred to the subcommittee on Regulatory Reform, Commercial and Antitrust Law.

 

Other blog post from DuBose Law Firm

Arbitration Agreements Change for Nursing Homes and Long Term Care Facilities

Upcoming ADAO Congressional Briefing

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If you’re reading this, you know about asbestos and the devastating impact it can have on lives. Due to the recent passage into law of extensive reforms to the Toxic Substances Control Act (TSCA), a ban on asbestos in the US is promising. However, the need to capitalize on this momentum with senators is imperative. To that end, the Asbestos Disease Awareness Organization (ADAO) is hosting the 10th Congressional Staff Briefing on September 13, 2016, from noon to 1:00 PM, in Washington, DC.

How Can You Help?
The ADAO invited the health and environmental staffers of all senators to attend. To encourage this, it is important to contact senators, therefore the most important action from you is to call your two U.S. Senators – calls from constituents are extremely motivating. The ADAO made this easy by supplying the following information:
1 Find your senators’ DC phone number here.
2 Call their offices using the script below. If necessary, leave a voice message and/or email the staffer.
3 Post your message on my Facebook wall to let the community know you have called and what their office said.

Phone script:
“Hello, my name is (first name) and I am one of your constituents from (town where you live). I’m calling to confirm that your health and environmental staffers received the Asbestos Disease Awareness Organization’s invitation to their Staff Luncheon Briefing on September 13 at 12 PM. This invitation was sent to your office on Monday August 1. This briefing is important to me and I urge them to attend this educational briefing about implementing TSCA and why asbestos must be prioritized in the first ten high-risk chemicals. Please RSVP by Wednesday, September 7, 2016 via the link on the invitation flyer or call: (310) 251-7477. Thank you.”

If you want to do more, join the new 6-Word Quote || Raise Your Voice Campaign! Instructions on getting involved are on the ADAO blog.

Approximately 15,000 people lose their lives each year in the US due to asbestos exposure. The Environmental Protection Agency (EPA) will announce ten high-risk toxins for prioritization in the next months. It is imperative that asbestos be on that list.

What now for the Zadroga Act?

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DuBose Law Firm, PLLC, a Dallas, TX based law firm, is troubled by the resistance of some members of the U.S. Congress to pass the Zadroga Act. Currently there are 222 of the 435 members of the House and 58 of 100 Senators who are co-sponsoring the bill. This bill furnishes health care, both physical and mental, to first responders and others, including children, who were caught in the 9/11 cloud of toxic dust, leaving them with an assortment of injuries, cancers and other deadly diseases. Many of these men and women came from far away to help the people of New York. There are currently 33,000 9/11 responders and survivors throughout all 50 states who are now in limbo about their care going forward.

The current bill expired on September 30th this year after being established in 2010. Without action on a bill to indefinitely extend benefits to 9/11 responders, the cash reserves will run out in 2016, leaving the responders without the resources supplied the past five years by the World Trade Center (WTC) Health Program. This bill fought for attention with other bills facing Congress and now must hope there is still time to do what is right for these fellow citizens before the money runs out.

To see your representatives’ views, go to the Citizens for the Extension of the Zadroga Act website at www.renew911health.org. Contact your current representatives, as well as the presidential candidates with your support of the bill so the Zadroga Act extension will become law and these people can fight their diseases rather than the government bureaucracy. The tragedy of 9/11 still goes on.