Guarantee Fair Employment

“I remember on breaks just going into work closets and crying because I was so stressed out [from the harassment]. I took the stress home with me every day. I didn’t sleep well. And I dreaded going to work.”

—JAMEKA EVANS, FORMER SECURITY GUARD AT GEORGIA REGIONAL HOSPITAL, LAMBDA LEGAL CLIENT 62

THE PROBLEM

We all deserve an equal opportunity to be hired based on our abilities and to carry out our work free from discrimination and harassment. Yet harassment and discriminatory hiring, firing, promotions, and pay continue to shape the U.S. labor market in ways that systematically disadvantage people of color, women, LGBTQ workers, people with disabilities, and other targeted groups. As our jobs largely determine our incomes, economic opportunities, and the livelihood of our families, unfair employment practices worsen cycles of inequality. 

Inequality in American labor markets was maintained by law for much of U.S. history. Before the Civil Rights Act of 1964, employers in many states were legally allowed to discriminate on the basis of race, color, religion, sex, and national origin. Today federal law forbids these types of discrimination, as well as employment discrimination based on disability, pregnancy, age (age 40 or older), or genetic information. Yet evidence of persistent discrimination remains widespread. African Americans consistently face much higher unemployment rates than white workers, regardless of education.63 White job applicants still receive 36 percent more callbacks for a job interview than equally qualified black applicants, and 24 percent more than Latino applicants.64 Meanwhile, different types of discrimination overlap and deepen inequality: For example, in 2016, Latina women working full-time, year-round were still paid only 54 cents for every dollar paid to white, non-Hispanic men.65 Race and gender contribute to dramatic pay gaps across the spectrum, and gaps persist for workers at all levels of education and in the vast majority of occupations.66

By offering remedies targeted to specific vulnerable groups, state and federal civil rights laws have the potential to dramatically reduce discrimination—but too often fall short due to a lack of resources for effective enforcement. States can complement the federal government’s role in enforcing anti-discrimination law by providing additional resources for investigation, enforcement, and public education about the law. States can also cover smaller employers that are exempted from federal law.

Further, states can address gaps in federal laws that allow other types of discrimination to flourish. On a daily basis, employers fire, harass, and tolerate others’ harassment of working Americans because of their sexual orientation and gender identity or expression. Employers refuse minor accommodations that would enable pregnant workers to continue working, effectively pushing them out of their jobs. Employers deny jobs to qualified applicants because of flawed personal credit history—a factor which predicts little or nothing about future job performance, but can function as undercover racial discrimination.67 Workers with caregiving responsibilities face discrimination based on stereotypes about how caregiving will impact their work performance. The nearly 1 in 3 American adults with an arrest or conviction record face particularly high barriers to employment. Although rates of criminal recidivism are significantly lower among former offenders who are able to obtain steady employment, the stigma of a record decreases a job seeker’s chances of a job callback or offer of employment by almost 50 percent.68 As a result of mass incarceration and racial bias throughout the criminal justice system, communities of color are disproportionately affected when employers refuse to consider job applicants with an arrest or conviction record. States across the country have successfully acted to reduce each of these types of employment discrimination.

 

POLLING DATA

61% of Americans believe the government should take a more active role to ensure equal pay for men and women who are doing the same job.69

76% of Americans say it should be illegal for an employer to fire someone for being gay or lesbian.70

 

POLICY SOLUTIONS

Provide additional resources to strengthen the enforcement of existing fair employment laws, and clarify that discrimination and harassment based on sexual orientation, gender identity or expression, personal credit history, pregnancy status, or caregiving responsibilities are illegal. Ensure people with arrest or conviction records have a fair chance to work. States have enacted the following policies:

  • Adequately fund and empower state agencies responsible for enforcing laws against workplace discrimination. Ensure that the state equal opportunity commission, human rights division or similar agency has sufficient authority and resources to implement and enforce state anti-discrimination laws, educate the public about the law, investigate claims that civil rights have been violated, and offer remedies to people who experience discrimination.

  • Ensure fairness for pregnant workers. Require employers to make reasonable accommodations for pregnancy, recovery from childbirth, and related medical conditions, such as allowing workers to take additional bathroom breaks, to sit down, or to request a position with less strenuous duties if one is available. The need for accommodations should no longer be a pretext to push pregnant employees out of their jobs. States enacting these protections include Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Jersey, New York, North Dakota, Rhode Island, Texas, Utah, Vermont, Washington and West Virginia.

  • Stop credit discrimination in employment. Prohibit employers from using personal credit history to make decisions about hiring, firing, pay, or promotions. Protect job seekers whose credit may be damaged by medical debt, student loans, a layoff, divorce, predatory lending, or simple error. Ending credit discrimination is particularly important for people of color, who are more likely to have poor credit as a result of the enduring impact of racial discrimination in employment, lending, education, and housing. States that have enacted restrictions on employment credit checks include California, Connecticut, Colorado, Delaware, Illinois, Hawaii, Maryland, Nevada, Oregon, Vermont, and Washington; however, all of these laws have exemptions that undermine their effectiveness and none should be considered a model. 

  • Prohibit employment discrimination based on sexual orientation, gender identity, and gender expression. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington explicitly ban employment discrimination based on sexual orientation and gender identity, while New Hampshire and Wisconsin ban discrimination based on sexual orientation alone.

  • Guarantee equal pay. Strengthen enforcement of equal pay laws by requiring employers to demonstrate that any pay disparities are based on legitimate job-related factors, allowing workers to ask about their employers’ wage practices or disclose their own pay without retaliation, prohibiting employers from requiring salary history during the hiring process, and ensuring that penalties for equal pay violations are high enough to deter discrimination. States have a wide range of laws on pay equity.

  • Provide a fair chance to job applicants with a criminal record. Require employers to remove questions about arrest and conviction from initial job applications (known as “ban the box”). Mandate that employers wait until after they make a conditional offer of employment to request a job applicant’s arrest or conviction record. Follow guidelines from the U.S. Equal Employment Opportunity Commission, which direct employers to take into account the time passed since the offense, whether the offense is related to the job, and evidence of rehabilitation. Thirty states, as well as numerous local jurisdictions, have adopted some form of fair chance hiring or ban-the-box policy. 71

  • Strengthen employment protections for workers with family care responsibilities. Explicitly ban discrimination of the basis of caregiving status. Alaska, Connecticut, Minnesota, and New York provide some protection against discrimination based on family responsibilities or status as a parent.

  • Protect workers in the “on-demand” or gig economy from discrimination and harassment. Mandate that workers otherwise designated as independent contractors be treated as statutory employees for purposes of state civil rights laws, ensuring that people working “on-demand” for companies like Uber, Taskrabbit or Care.com are covered by the same protections against discrimination and harassment as traditional employees.

 

HOW TO TALK ABOUT IT

  • All Americans deserve a fair opportunity to earn a living and sustain their families—employment discrimination cannot be tolerated. Equality of opportunity is a fundamental American value. Yet every day, employers pass over qualified job seekers for employment, and workers are harassed, fired, paid less, and denied promotions because of factors that have nothing to do with their ability to perform a job well. Our society and economy suffer when working people of any background or identity are prevented from contributing to the best of their abilities. 

  • Laws against discrimination work when they are vigorously enforced. Federal law only began to protect American workers from discrimination based on race, sex, national origin, and color 52 years ago. It has taken decades of additional legislation and litigation to dismantle officially segregated workplaces and remove other obstacles to opportunity. For example, the once-prevalent employment ads calling for “male help wanted” or “no Negroes” are now largely a thing of the past. Today, fair hiring practices have proven effective at reducing the impact of the unconscious biases we all share. Strong laws allow workers who continue to face discrimination to pursue legal recourse. With sufficient resources and tools to root out discriminatory practices, all Americans can enjoy equal opportunity at work.  

  • Job seekers with an arrest or conviction record deserve a chance to start fresh. Long after a sentence has been served, the stigma of an arrest or conviction record persists on employment background checks, dramatically reducing a job seeker’s chances of employment. As a result of mass incarceration and racial bias throughout the criminal justice system, communities of color are disproportionately impacted. Each year nearly 700,000 people return to our communities from incarceration; we all have a stake in ensuring that they are able to integrate back into society and to support themselves and their families. 

 

HOW IT WORKS

  • Although significant work remains to guarantee fair employment, the Equal Employment Opportunity Commission’s current enforcement of discrimination laws shows how these laws can provide a tangible benefit to working Americans. In fiscal year 2017, the EEOC obtained nearly $484 million for workers confronting discrimination on the job, and received more than 84,254 new charges of unfair treatment, propelling investigations, settlements, and lawsuits. 72
  • State and local laws clarifying that discrimination against LGBTQ workers and job applicants is illegal have been successful both at protecting people from unfair employment practices and at reducing more subtle interpersonal bias. Research suggests that one reason these and other types of anti-discrimination laws work is because they help to establish new norms and expectations about what type of treatment and behavior is acceptable on the job. 73
  • “Ban the Box” and other state and local laws that aim to provide a fair chance at employment to people with arrest and conviction records have effectively increased the number and proportion of people hired who have records.74 While employers may have initially refused to consider applicants with a conviction record, personal contact and context help to put a record into perspective, removing a significant barrier to opportunity for tens of millions of Americans.

More Resources:

 

ENDNOTES


  1. “Meet Jameka Evans,” Out at Work (Lambda Legal, 2017), https://outat.work/meet-jameka. 
  2. Tomaz Cajner, et. al. “Racial Gaps in Labor Market Outcomes in the Last Four Decades and over the Business Cycle,” Finance and Economics Discussion Series, Board of Governors of the Federal Reserve System, (2017). https://doi.org/10.17016/FEDS.2017.071. 
  3. Lincoln Quillian et. al., “Meta-analysis of Field Experiments Shows No Change in Racial Discrimination in Hiring Over Time,” Proceedings of the National Academy of Sciences, vol. 114 no. 41 (2017). doi: 10.1073/pnas.1706255114, http://www.pnas.org/content/114/41/10870.full.  
  4. FAQ About the Wage Gap, National Women’s Law Center, 2017. https://nwlc.org/resources/faq-about-the-wage-gap/. 
  5. FAQ About the Wage Gap.
  6. Amy Traub, Discredited: How Employment Credit Checks Keep Qualified Workers Out of a Job, Dēmos, 2013. http://www.demos.org/sites/default/files/publications/Discredited-Demos....
  7. Amy L. Solomon, “In Search of a Job: Criminal Records as Barriers to Employment,” National Institute of Justice Journal, No. 270, https://www.nij.gov/journals/270/pages/criminal-records.aspx#note5. 
  8. Feminism Survey, Washington Post and Kaiser Family Foundation, January 2016. http://files.kff.org/attachment/topline-methodology-washington-post-kais...
  9. YouGov poll, June 16 - 18, 2014. http://cdn.yougov.com/cumulus_uploads/document/y2091h9r24/tabs_HP_discri...
  10. Beth Avery and Phil Hernandez, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project, 2017. http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and...
  11. “EEOC Dramatically Reduces Charge Inventory,” https://www.eeoc.gov/eeoc/newsroom/release/11-9-17.cfm. 
  12. Laura G. Barron and Michelle Hebl, “The Force of Law: The Effects of Sexual Orientation Anti-discrimination Legislation on Interpersonal Discrimination in Employment,” Psychology, Public Policy, and Law, 19(2), (2013).  doi: 10.1037/a0028350   
  13. Research Supports Fair-Chance Policies, National Employment Law Project, 2016. http://www.nelp.org/content/uploads/Fair-Chance-Ban-the-Box-Research.pdf.