October 2, 2013
Discrimination in the Workplace: How do you Judge?
The Torah teaches that G-d does not show favoritism (Deuteronomy 10:17). G-d does not discriminate, and we are asked to emulate that example. This command is made explicit (Deuteronomy 16:19): People are to be treated equally. When it comes to procedural justice, all (even the poor) are to be treated equally: “You shall not favor the poor and you shall not honor the great” (Leviticus 19:15). However, when it comes to social justice (dealing with legislative matters rather than judicial matters), the vulnerable must be given extra support.
The Torah makes it particularly clear that people are to be treated equally in the workplace as well. The foreign worker who worked in an Israelite community (ger toshav) was granted all of the same rights as the Israelite worker: “One law and one manner shall be for you and the stranger that lives with you” (Bamidbar 15:14-16). Today, unfortunately, this value has not been emphasized enough on the legislative, corporate, or grassroots levels. This is particularly distressing since access to equal employment opportunities is such an integral aspect of securing financial stability, opportunities for education, social mobility, crime, drug and alcohol abuse, and a litany of other opportunities and issues that affect quality of life and social justice.
Seeking redress for discrimination is a long, arduous process, and opposition may come from the government as well as from management. Title VII of the Civil Rights Act of 1964 was the first effort undertaken by Congress to address discrimination by employers on the basis of race, color, religion, sex, or national origin. The measure ensured that employers could not make discriminatory decisions about hiring, firing, advancement, demotion, or wages without facing possible prosecution. In 1971 the Supreme Court, in Griggs v. Duke Power Co., held that when an employment practice has a disparate impact on minorities, that is the practice is “fair in form, but discriminatory in operation,” the practice violates Title VII. However, in the late 1980s the Supreme Court issued a series of decisions (Wards Cove and Patterson) that undercut victims of employment discrimination and their rights for filing complaints and opportunity for redress. Congress quickly acted to counter the Court’s rulings and enacted the Civil Rights Act of 1991, which reestablished the broad scope of Title VII protections. It is this sort of broad congressional action that we must demand to further guarantee that the vulnerable are protected in the workplace today.
Lilly Ledbetter worked as a supervisor in a Goodyear plant in Alabama for nearly 20 years. When she found out that she had been paid far less than her male counterparts, she sued, and a jury awarded her in back pay and $3.3 million in damages. However, in 2007 the Supreme Court nullified the award on the grounds that Ms. Ledbetter had filed suit too late. The Supreme Court reasoned that Title VII of the Civil Rights Act of 1964 requires employees to file a complaint within 180 days (6 months) “after the alleged unlawful employment practice occurred.” The Court calculated the 180 days to have begun running from the day Ms. Ledbetter had received her last discriminatory paycheck or raise denial, not the date she discovered that she had been discriminated against. Incredibly, the ruling encouraged businesses to cover up discriminatory pay for 6 months, and then they would be beyond legal redress. Undeterred, Ms. Ledbetter lobbied Congress, and in 2009 Congress passed the Lilly Ledbetter Fair Pay Act, which President Barack Obama made the first bill he signed into law as President of the United States. Today, in large part due to this Act, women, and other victims of discrimination, have far more rights in challenging discriminatory pay, and employers no longer have immunity from prosecution.
In another crushing blow to employment equality safeguards the Supreme Court in University of Texas Southwestern Medical Center v. Nassar, undercut employment anti-discrimination efforts. In this case Dr. Naiel Nassar, an Egyptian-born Muslim, claimed he suffered racial and religious persecution and harassment from hospital superiors and after complaining of discrimination was retaliated against with promotion denials, threats of loss of salary support, and threats of job loss. A federal jury found for Dr. Nassar and ordered UT Southwestern Medical Center to pay him more than $3.6 million. However, the Supreme Court reasoned that the provision in Title VII of the Civil Rights Act of 1964, which protects employees from retaliation when they assert their rights, to require complaining employees to show that there was no other reason for which they could have been demoted, fired, etc., other than retaliation. The requirement to show “but-for causation” stands in direct contradiction to the purpose of the law. As Justice Ginsburg explained in her spirited dissent, “employees can be protected by civil rights laws only if they feel free to approach officials with their grievances.” This decision now allows employers to retaliate against employees and avoid liability if they can think of a single reason to justify the punishment. Justice Ginsburg concluded that Congress should pass a Civil Rights Restoration Act to overturn destructive and far-reaching rulings like this one.
Furthermore, the Supreme Court has continued to weaken the ability of women (or anyone else) to sue corporations. In two separate decisions in 2011, the Court virtually dismantled the ability of workers to file class-action suits against large corporations (in one case, Wal-Mart). In short, the Court resurrected the old (more than 100 years ago) and discredited legal doctrine of "freedom of contract," which presupposes that a worker with no financial resources is on an equal plane with a billion-dollar corporation in bargaining ability. Today, women must again look to Congress to bypass judicial obstruction. The Paycheck Fairness Act (S. 84/H.R. 377) would correct many of the deficiencies of the original Equal Pay Act of 1963 and expand the scope of the Fair Labor Standards Act. However, Congress too has yet to stand for equality in the workplace. The Paycheck Fairness Act has been introduced twice in Congress since 2009 and both times the legislation has failed to become law. This legislation is essential in ensuring that women no longer earn 77 cents for every dollar that their male counterpart receives, a median income disparity of over $11,000 a year, according to the US Census Bureau.
Immigrant workers also face serious discrimination, based on race and immigration status, in the workplace. A case that exemplifies some of these issues is the case of Terra Universal, Inc. Terra Universal employed both citizens and non-citizens at their factory and utilized a two-tier system which set rules regarding hours, wages, and working conditions for their employees. Non-citizen employees were paid less than half of what their citizen counterparts were paid, were required to work non-paid overtime hours to make up for sick days, were required to work up to 14 hours a day on weekends or holidays without overtime pay, and were subject to abuse and reduced hours if they complained about working conditions. Sadly these types of stories are all too common and many end with tragedy as many undocumented workers are deported and their families are torn apart. Last year alone ICE stated that they deported over 410,000 immigrants but would not provide details as to the number of workplace raids. However, if the infamous Postville Raid, where nearly 400 immigrant workers were arrested and deported, is any indication it is safe to assume a large number of the deported were workers trying to provide for their families. In fact during President Obama’s first term a record number of deportations took place. The United States Congress needs to address these issues with comprehensive immigration reform to ensure that immigrant workers are protected and treated with dignity and equality.
Another type of serious discrimination found in the workplace today is against LGBT people. Currently there is no federal law that protects LGBT individuals from employment discrimination. Today, 29 states allow people to be dismissed from their jobs because of sexual orientation and in 33 states no laws exist that prohibit employment discrimination based on gender identification. The Employment Non-Discrimination Act (ENDA; S.815/H.R.1755) is a proposed solution to prohibit this discrimination and “level the playing field.” A recent poll showed that 73 percent of Americans support ENDA. Further, 88 percent of Fortune 500 companies already have policies prohibiting any type of discrimination against gay and lesbian employees. 50 faith groups recently came out in favor of this legislation. It is time to ensure that all people have the right to work at a job where they are entitled to equal pay and treatment. This is the command of Torah and our obligation as adherents.
Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder & President of Uri L’Tzedek, the Founder and CEO of The Shamayim V’Aretz Institute and the author of “Jewish Ethics & Social Justice: A Guide for the 21st Century.” Newsweek named Rav Shmuly one of the top 50 rabbis in America.”