August Diversity, Equity, And Inclusion Update
August Diversity, Equity, And Inclusion Update
August 2nd, 2021
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
4 Ways To Tap Into The Transformational Power Of Empathy To Find Common Humanity
“Nothing is more important than empathy for another human being’s suffering. Nothing. Not a career, not wealth, not intelligence, certainly not status. We have to feel for one another if we’re going to survive with dignity.” ~Audrey Hepburn
Empathy is the one way a person can step into another person’s shoes and see from their perspective. It gives us hope and meaning. It helps us solve problems. It makes our world happier and healthier. It is what moves people to act. And it is what is most needed now.
Know What Empathy Means
Did you know newborns experience the precursor of empathy? When they hear other newborns cry, they become distressed. According to Positive Psychology, infants feel concern for others but still have difficulty regulating their own emotions. Toddlers develop empathy in sharing, apologizing and helping others. In early childhood, kids start to imagine how others feel. As we grow up, empathy develops more. To develop it, examine your biases, become curious about others’ experiences and ask for feedback on how you impact others.
Dr. Richard Davidson believes we are prosocial at birth and have innate basic goodness. In infants, we have the “seeds of empathy” and continue to become empathetic throughout our lives. He did a study where he had scans and metrics of biology to reflect participant’s behavior. His experiment was having a randomized controlled trial. For two weeks, participants would engage in 30 minutes of compassion practices each day. They scanned the participants before and after. There were “objective changes in the brain” shown by the MRI and more prosocial behavior. He notes that we feel better doing good.
According to Dr. Dan Siegel, there’s “me” and “we,” but put together it becomes MWE. That’s because there’s no true separation between ourselves and others when looked through an empathetic lens. Empathy is about emotional resonance. You take on the feelings, perspective and understanding of another’s experience. Empathy leads to compassion. Compassion is when you not only feel for another person’s experience, but you feel the desire to help them. The third stage is action, or when you act to alleviate suffering in another. Ultimately, the actions you take come back to you making you feel better as well. You heal yourself by healing others. That’s why MWE is so important. Dr. Siegel says, “It’s the integrated self from which empathy blossoms.” Empathy is also not sympathy. Sympathy is pity or feeling sorry for someone. Empathy is much deeper.
There are three types of empathy:
How do we empathize? There are two theories. The first is the Simulation Theory. When we witness another person experience an emotion, we “simulate” the same emotion and feel it ourselves. Mirror neurons fire, and the medial prefrontal cortex is activated. The other theory is the Theory of the Mind. Psychology Today defines it as “the ability to understand what another person is thinking and feeling based on rules for how one should think and feel.”
- Cognitive Empathy: Figuring out why someone is feeling a certain way.
- Emotional Empathy: Taking on someone’s feelings.
- Empathic Concern or Compassion: Wanting them to feel better.
Empathy is most needed in situations of suffering. Whether you or another is suffering, empathy drives you to make changes. Instead of asking “Why?” about such suffering, you start to ask how you can move through it. It often occurs when you see something unfair. According to Lori Deschene, founder of Tiny Buddha, “Studies have shown that the reward centers of our brains activate when we recognize fairness, even when it pertains to someone else. When we witness unfairness, it triggers our amygdala, the primitive part of the brain that controls fear and anger.” That means it serves self-interest to respond to unfairness.
The goal is to have a more empathic world. A good deed must be authentic and resonate with your values. Empathy isn’t always easy though. Sometimes, it can lead to burnout and codependency. That’s why empathy without expectations is crucial. Know you can’t save everyone but that you can hold space for them. Holding space is listening without judgment. It’s showing up for another. It’s finding common humanity so we can all heal.
- Listen without distraction.
- Don’t interrupt.
- Repeat their experiences back to them.
- Ask more questions about their experiences to gain better understanding.
- Hold space with them and be a safe zone.
- Don’t assume anything. Listen instead.
- Imagine what it’s like to be them.
- Use empathetic statements.
Some empathy statements can be as follows:
- You did your best.
- I understand this was difficult for you.
- It feels hard because it is hard.
- Everyone makes mistakes.
- I can’t imagine how you feel but I would like to listen.
- Your pain is valid.
- What do you need?
Discrimination Against Mothers in Hiring
Put simply: Working mothers are often expected to work like they don’t have children and raise children as if they don’t work.
The research papers, published separately (first, second) in Demography, demonstrate how inflexible schedules and biased hiring practices, combined with gendered cultural norms around breadwinning and caregiving, lead to discrimination against mothers and perpetuate existing gender inequalities in the workplace.
The research also forewarns why mothers may face increased workplace discrimination post-pandemic, according to Patrick Ishizuka, assistant professor of sociology at Washington University in St. Louis.
“The pandemic has further opened our eyes to the struggles that working parents face—particularly mothers,” Ishizuka says.
“Mothers have disproportionately shouldered the burden of caregiving during the pandemic. As a result, they also have been more likely to drop out of the labor force, reduce their work hours, or utilize family leave provisions made possible through the Families First Coronavirus Response Act. And for parents who have been able to work remotely, their parental status has been more salient than ever before with kids showing up on Zoom or being heard in the background.
“My concern is that instead of creating policies to support families, employers will be more likely to discriminate against mothers because they will view them as less committed to their jobs,” he says.
Previous research into employer discrimination against mothers in the hiring process has focused exclusively on college-educated women in professional and managerial occupations. Little was known about whether less educated mothers navigating the low-wage labor market experience similar disadvantages.
To study discrimination across the labor market, Ishizuka conducted a field experiment in which he submitted 2,210 fictitious applications to low-wage and professional/managerial jobs in six US cities. For each position, he submitted two similarly qualified applications. The only difference was that one application included signals of motherhood, such as Parent Teacher Association volunteer work, while the other application—also for a female candidate—listed volunteer work in an organization that was unrelated to parenthood.
Across occupations, callback rates were significantly lower for mothers than for childless women. In low-wage service jobs, 26.7% of the childless women received a callback compared to mothers’ 21.5%. Similarly, 22.6% of the childless female applicants received callbacks for professional and managerial positions, compared to 18.4% for mothers.
“The findings demonstrate that discrimination is not limited to women with college degrees in time-intensive professional occupations,” Ishizuka says. “Across labor market segments, mothers appear to be similarly disadvantaged at the hiring stage.”
And the estimates of discrimination against mothers are likely conservative because childless female applicants do not signal that they are not parents, Ishizuka says. Some employers are likely to assume that these applicants also have children.
According to Ishizuka, discrimination against mothers likely results from conflict between the perceived time commitments necessary to be a “good mother” and an ideal worker. Whereas many professional and managerial workers are expected to work all the time, low-wage service workers are increasingly expected to work at any time, he says.
“Cultural norms that mothers will assume primary responsibility for children are in direct conflict with the norms that workers should be free of family obligations,” Ishizuka says. “Employers often question mothers’ commitment and ability to work long or variable hours and travel. Not surprisingly, fathers do not face the same questions.”
Ishizuka also found evidence that employers discriminate more strongly against mothers when certain demands are listed in job ads. In the study, mothers’ probability of receiving a callback were 5.7, 6.6, and 13.6 percentage points lower when time pressure, collaboration, and travel requirements, respectively, were listed in professional/managerial job ads.
“Along with time pressure, collaboration requirements limit flexibility over when and where work is performed, requiring workers to be around more workers and clients at specific times,” Ishizuka says.
“If employers assume that mothers will be less able to meet inflexible time demands, they may discriminate more strongly against mothers when jobs require collaboration. These types of job demands are especially common in professional and managerial occupations.”
In low-wage service jobs, employers appear to discriminate similarly against mothers regardless of whether nonstandard hours—such as nights or weekends—are required. However, when job ads indicated scheduling instability, mothers were 10.1 percentage points less likely to receive a callback than childless women.
In a separate paper, Ishizuka and coauthor Kelly Musick of Cornell University, studied how the structure and compensation of work hours shapes gender inequality in the labor market. Using individual data from recent, nationally representative panels of the Survey of Income and Program Participation, along with occupational characteristics data from the American Community Survey, Ishizuka and Musick examined the effect of occupational inflexibility on employment for new mothers, fathers, and childless women.
They found that women who worked in occupations with higher shares working 40-or-more hours per week and occupations that paid higher wage premiums for longer hours prior to a first birth were significantly less likely to be employed post-birth. They found no similar relationship between inflexible work hours and employment for fathers or childless women.
Mothers’ probability of working post-birth depended strongly on their pre-birth occupation. Among women in flexible occupations—defined as those that were 1 standard deviation below average in occupational work hour inflexibility—an estimated 79.2% of women continued working post-birth. In contrast, only 67.6% of women in inflexible occupations—those that were 1 standard deviation below average in occupational work hour inflexibility—continued working post-birth.
“[The] results illustrate how individual employment decisions are jointly constrained by the structure of the labor market and persistent gendered cultural norms about breadwinning and caregiving,” the authors write.
“Inflexibility in work hours generates work-family conflict that ultimately pushes mothers out of the labor force.”
Why Part-Time Doesn’t Work in the US
The findings are important because even short work interruptions can result in substantial long-term wage and career costs and make it difficult for mothers to find future employment. Policies and workplace structures that enable more mothers to maintain employment post-birth could move the needle on closing the gender-wage gap.
According to Ishizuka, part-time work is not a viable option in most careers because company-provided health insurance is contingent upon working full time and hourly rates are often cut substantially for part-time employees.
In contrast, many European countries have reduced their standard full-time workweek to a more family-friendly range below 40 hours. Additionally, employees in these countries have the right to reduce work hours without fear of losing their job or facing discrimination. Not coincidentally, women’s employment is higher in countries with policies that support flexible work time.
“Our research shows that gendered patterns of work in the home and labor market continue to be shaped by cultural norms that tie fatherhood primarily to full-time employment and motherhood to time-intensive, child-centered caregiving.”
What Is ‘Associational Discrimination’ And How Do These Claims Help Protect Employees?
Most people know that the law protects them from being discriminated against by their employer on the basis of race, gender, disability, and a variety of other protected characteristics. Some employees, however, may not be aware that anti-discrimination laws do not stop there. Under a doctrine known as associational discrimination, employers may also be prohibited from discriminating against an employee based on their relationship with a member of a protected class.
What is associational discrimination?
Associational discrimination occurs when someone is discriminated against because of their relationship with another person. Generally, this type of discrimination occurs in one of two situations:
These protections help safeguard employees against discrimination or retaliation which the law may not otherwise prohibit.
- Associational Discrimination: an employer discriminates based on the employee’s relationship with someone in a protected class (for example, race, gender, religion, disability status); or
- Associational Retaliation: an employer discriminates or retaliates against an employee because of their relationship with someone who engaged in legally-protected conduct.
What laws protect employees against associational discrimination?
Associational discrimination cases can be brought under various laws. Cases are frequently litigated by family members of individuals with disabilities, since the Americans with Disabilities Act (ADA) explicitly prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. §12112(b)(4).
And associational discrimination claims can be brought under laws other than the ADA. For example, courts have held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of their associates’ race, gender, religion, and/or national origin. Even though Title VII does not explicitly prohibit discrimination by association like the ADA does, courts have found that Title VII does bar this type of discrimination.
Some laws that prohibit retaliation for protected activities also recognize and protect against associational retaliation. Where the statute doesn’t directly prohibit associational retaliation, courts have also given broad interpretations that favor protection for the associates of whistleblowers.
This means that employees cannot suffer adverse actions simply because someone they associate with engaged in legally-protected activity, such as blowing the whistle. Employees who do suffer such actions may have a legal cause of action.
What types of relationships constitute an “association”?
An “association” can encompass a wide variety of relationships. Courts interpreting the ADA’s “relationship or association” language have construed it broadly, finding that it may include “a family, business, social or other relationship.” Larimer v. International Business Machines Corp., 370 F.3d 698, 702 (7th Cir. 2004).
“Association,” however, is not a limitless term. In Oliveras-Sifre v. Puerto Rico Dept. of Health, the Court found that plaintiffs who were fired for public policy advocacy on behalf of individuals with AIDS were not protected under the ADA because they failed to allege a connection with any specific disabled individual. 214 F.3d 23, 26 (1st Cir. 2000).
What legal standards govern associational discrimination claims?
Associational discrimination claims are generally analyzed like claims of direct discrimination. Usually, a plaintiff must establish a prima facie case of discrimination, including showing that they suffered an adverse employment action and that they can link it to a protected class or activity under the law.
The exact legal standard varies depending on the law under which the claim is being raised. Generally, courts impose a similar burden on associational discrimination cases as they do under other discrimination cases. For example, to establish a prima facie case of associational discrimination under the ADA, a plaintiff must show that:
- they were qualified for the job at the time of the adverse action;
- they were subjected to an adverse action;
- they were known by their employer to have a relative or associate with a disability; and
- the circumstances around the adverse action give way to a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision.
Employment discrimination is not limited to acts taken against employees based on their personal membership in a protected class. Employers can also violate the law by discriminating against an employee because of their association or personal relationship with someone who enjoys legally protected status. This may be true even when a statute does not explicitly mention associational discrimination.
The law also recognizes associational retaliation. This means that employees who suffer adverse actions because of their associates’ legally-protected activity may have a cause of action.
Long-Haul Covid Discrimination Emerges as Workplace Legal Risk
Employers face the threat of litigation if their policies discriminate against or fail to reasonably accommodate Covid-19 long-haulers, after the Biden administration said workers with lingering coronavirus symptoms may be protected by federal disability law.
People with long Covid may qualify as having a disability under the Americans with Disability Act because the pandemic-related condition can substantially limit one or more major life activities, the Justice and Health and Human Services departments said last week. More than 34 million Americans have been diagnosed with the coronavirus, and some studies estimate that about 10% of those who contract the virus could become long-haulers.
“The guidance is fairly basic and straightforward, but the fact that the agencies needed to say the civil rights laws aren’t suspended during the pandemic tells you that there was a lot of confusion about that, and uncertainty,” said Jennifer Mathis, the director of legal policy and advocacy at the Bazelon Center for Mental Health Law.
The ADA allows workers to sue their employers over disability discrimination in employment decisions, as well as failures to provide reasonable accommodations that could include telework, leave, or flexible schedules.
Attorneys and disability rights proponents said most ADA workplace litigation risk involving Covid long-haulers will arise when workers and employers engage in an interactive process to determine whether a job modification is reasonable and should be granted. Already during the pandemic, ADA accommodation requests generally have spiked and workers have gone to court when they’ve been denied, lawyers previously told Bloomberg Law.
“Rarely has our government taken such a public, affirmative measure to educate the country about a related set of disabilities to foster a culture of understanding and compliance,” said Shirley Lin, a law professor at Pace University, where she teaches courses on employment discrimination.
“Because millions of COVID long-haulers are in or will join the workforce, the legal challenge for employers is to train front-line managers to comply with the full scope of disabilities law,” Lin said in an email. “Ultimately, President Biden’s initiative is focused on expanding accommodations.”
The U.S. Equal Employment Opportunity Commission, which enforces the ADA in private workplaces, hasn’t weighed in on legal considerations for workers experiencing long Covid.
The DOJ and HHS guidance tees up questions around whether an individual case of long Covid rises to the ADA’s definition of a disability, which would trigger an employer’s duties to ensure a workplace free from discrimination, harassment, and retaliation, and to reasonably accommodate that worker.
Disability discrimination suits already have been filed by workers who say they have long Covid, according to a Bloomberg Law review of federal court dockets.
“There are a lot of things that become disabilities, depending on their effect on your life,” said Matan Koch, vice president of workforce, leadership, and faith programs for RespectAbility, an advocacy group focused on people with disabilities. “If there were to be litigation on the topic, then the litigation would probably be focused on that substantial impairment question.”
Kara Ariail, a management-side partner with Holland & Knight LLP, said that based on what she’s been hearing on the impacts of the condition, it “pretty clearly fits within the ADA definition of a disability.”
The next issue that likely will catalyze litigation is whether an accommodation is reasonable, or if it will pose an undue hardship on a business, according to Ballard Spahr LLP partner Jay Zweig, who represents employers.
The EEOC says an employer can use several factors to determine whether an accommodation is an undue hardship, including the cost of the accommodation and its impact on the business’s operation, among other considerations.
Long Covid can be characterized by tiredness, dizziness, difficulty thinking or concentrating, among other symptoms, according to the guidance.
Ariail said cognitive issues can “generally be very difficult to accommodate” from the employer’s perspective, but “you have to strike the right balance between whether an employee can still perform their job duties.”
Ariail said she welcomed the new guidance, which she viewed as settling some of the ambiguity and uncertainty around navigating long Covid-related requests for accommodation.
Asking for medical documentation to support a workers’ request for an accommodation is a best practice for employers, said Ariail. “In many ways, the process piece isn’t new—I think it’s just another challenging situation in terms of evaluating ADA accommodations,” she said.
“Employers really need to have not a policy, but a procedure, in place,” to field the employee requests, said Ballard Spahr’s Zweig.
Avoiding and Defending Against Pregnancy Discrimination Claims
In early July, Bloomberg found the number of pregnancy discrimination lawsuits being filed in federal courts has steadily increased each year since 2016. Last year saw a record-breaking number of pregnancy discrimination filings despite the financial and social impacts of the pandemic causing a “baby bust,” and 2021 is on pace to break this record yet again.
This is all occurring while the Pregnant Workers Fairness Act (PWFA), legislation seeking to expand federal pregnancy-related protections, pends Senate approval. The PWFA would require employers to make reasonable accommodations for employees limited by pregnancy. Additionally, it would protect pregnant employees from retaliation after making accommodation requests and being forced to take unpaid leave.
The frequency of pregnancy discrimination filings is unlikely to decrease as employers prepare to bring employees back to in-person work environments. Employers should therefore take steps to ensure they are well-positioned to avoid employees bringing pregnancy discrimination claims against them and to defend against any claims that are brought.
Avoiding Pregnancy Discrimination Claims
To avoid pregnancy discrimination claims, employers should consider thoroughly reviewing company policies that often lead to employee challenges. These include policies regarding leave, workplace accommodations, and absences (especially medical-related absences).
It is important for employers to ensure that each of these respective policies complies with federal law as well as any more restrictive state or local laws. This requires frequent monitoring to stay informed of any changes made to these laws.
Compliant policies may emphasize that pregnant employees should be treated the same as employees who have temporary disabilities or medical conditions. Additionally, compliant policies should not require—explicitly or constructively—pregnant employees to take leave, light duty, or other work accommodations they do not want or do not request. Employers should not automatically consider pregnant employees as “disabled” or needing an accommodation.
Employers should also make sure all managers and other employees receive adequate training with respect to these policies. Employers should ensure their managers and employees understand the types of actions that constitute pregnancy discrimination and adequately communicate their stances against those types of actions.
Additionally, employers should effectively train managers on how best to respond to requests for assistance and accommodations as well as complaints, as missteps at these stages may prove grave for employers in litigation. To this end, employers may find it useful to keep written notes of interactions with pregnant employees regarding their requests for assistance and accommodations concerning their pregnancy.
Further, pregnancy discrimination may arise even after a pregnant employee has given birth and returned to work. The Affordable Care Act amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private location, shielded from view, for new mothers to express breast milk for up to a year after the child’s birth. Employers failing to make these accommodations could open themselves up to pregnancy discrimination liability.
Defending Against Pregnancy Discrimination Claims
Whether or not adequate precautionary measures have been taken to avoid pregnancy discrimination claims, an employer may still face the prospect of litigation and ought to know what that entails.
Put simply, the employee must provide either direct or circumstantial evidence indicating the employer took action against her on account of her pregnancy or pregnancy-related conditions. Employers rarely admit directly that adverse employment action taken against pregnant employees was on the basis of their pregnancy, so the majority of employees must prove their cases using circumstantial evidence.
Examples of circumstantial evidence an employee may present to illustrate an inference that the adverse employment action taken against her constituted unlawful pregnancy discrimination include the employer defecting from its usual disciplinary practices and procedures, suspicious timing, shifting reasons for the adverse action, and disparate treatment of other similarly situated employees.
Many pregnancy discrimination claims turn on evidence of disparate treatment, and plaintiffs must overcome a significant burden to show another employee is similarly situated. This includes the plaintiff demonstrating the other employee has similar qualifications, experience, tenure with the company, and responds to the same supervisor(s). As such, employers facing pregnancy discrimination claims should consider these factors and prepare to distinguish between the plaintiff and any other allegedly similarly-situated employees.
Beyond distinguishing between the plaintiff and other employees, employers often defend against circumstantial evidence of pregnancy discrimination with non-discriminatory reasons for the adverse employment action. The most commonly offered defenses include poor performance by the employee, changes in business needs independent of the employee’s pregnancy, and violations of documented company conduct or attendance policies.
Employer Defense Pitfalls
Because these defenses are so commonly used, employers facing pregnancy discrimination must be prepared to avoid the pitfalls associated with each defense. For example, if an employer plans to claim a pregnant employee was terminated for sub-optimal performance, the employer should be able to present documentation supporting evidence of poor performance dated prior to the employee disclosing her pregnancy.
Similarly, an employer arguing a termination was based on a change in business needs should plan to show no other employees were hired and had sufficient amounts of work, or that other non-pregnant employees were terminated for the same non-discriminatory reason.
Employers taking these considerations into account and obtaining the services of skilled legal counsel will mitigate the potential risks of discriminating against pregnant employees in the workplace and put them in the best position to defend against any pregnancy discrimination claims that may still be brought.
How to Spot Discrimination and Bullying in the Workplace
While not always clear, here are ways you can spot discrimination and bullying.
According to the Centers for Disease Control and Prevention (CDC), bullying includes three core elements:
The federal government’s definition of bullying is intended to help determine whether an incident is bullying or other type of aggressive behavior, such as one-time physical fights, online arguments, or incidents between adults. Some bullying actions can fall into criminal categories, such as harassment, hazing, or assault. There is no federal anti-bullying law. Although all states have anti-bullying legislation, bullying is not illegal. But, when bullying is also harassment, it does break federal law.
- Unwanted aggressive behavior
- Observed or perceived power imbalance
- Repetition or high likelihood of repetition of bullying behaviors
A 2021 national survey by the Workplace Bullying Institute (WBI), an organization dedicated to the eradication of workplace bullying, shows more than 79 million people have been affected by workplace bullying in the U.S. Researchers surveyed 1,215 U.S. adults from Jan. 23, 2021, to Jan. 25, 2021, about workplace bullying. They found 30% of workers suffer abusive conduct on the job, another 19% witness it, 49% are affected by it, and 66% are aware that workplace bullying happens. Researchers also found that workplace bullying affects 53% Hispanic, 47% white, 45% Black and 32% of Asian employees.
When it comes to discrimination, a recent Gallup survey of U.S. workers found discrimination on the job can affect employees' perceptions of an organization's culture, opportunities, and co-workers' intentions. Workplace discrimination can also affect an employee's feelings of psychological safety and belonging, and their ability to do their best work.
Workplace discrimination does not affect everyone equally. Based on results from the Gallup poll, 24% of Black and Hispanic employees reported experiencing discrimination at work in the last year, 16% of Asian and 15% of white employees did the same. The data went on to note 75% of Black employees say that discrimination was related to their race or ethnicity, compared with 61% of Hispanic and 42% of white workers. The study also finds that discrimination undermines employee wellbeing, more so for Black and Hispanic workers than white ones.
There are various types of discrimination prohibited by the laws enforced by the U.S. Equal Employment Opportunity Commission (EEOC). They include:
The EEOC defines race discrimination as treating someone, an applicant or employee, unfavorably because he or she is of a certain race or because of personal characteristics associated with race, such as hair texture, skin color, or certain facial features.
- Equal Pay/Compensation
- Genetic Information
- National Origin
- Sexual Harassment
- Sexual Orientation and Gender Identity
Color discrimination involves treating someone unfavorably because of skin color complexion. The EEOC also explains that discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.
It is unlawful to harass a person because of that person's race or color. Harassment can include, for example, racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially-offensive symbols.
Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision, such as the victim being fired or demoted. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Paying Disabled People Less Than The Minimum Wage: The Next Frontier For Disability Activism
In the disability community, we recently celebrated Disability Pride and the anniversary of the ADA (the Americans with Disabilities Act of 1990). The ADA is a civil rights law that prohibits discrimination against disabled individuals in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law was to make disability a protected category under discrimination rules bringing it in line with sex, race, age and religion.
It should be noted that this law did not just appear because politicians felt compelled to do the right thing, it was the result of a long and hard fight on the part of disabled activists and their allies, as was documented so powerfully in the Netflix film Crip Camp, which I can highly recommend watching.
As with any type of systemic oppression where a marginalized group has been disenfranchised, it was necessary to make the privileged majority uncomfortable in order to get their attention. When political leaders start to look bad in front of the voting public and the mainstream narrative starts to turn against them, only then it seems do we get a sudden moral awakening and new laws are created.
With all of that momentous history now acknowledged, today I would actually like to look forward instead of backward at the current struggle against one law in particular that continues to discriminate against and devalue the contribution of disabled people.
Stealing Self Worth
Currently in 2021, we know that despite the gains of the ADA forty years ago, hundreds of thousands of disabled Americans are earning a subminimum wage, averaging a shocking $3.34 an hour versus the federal standard of $7.25, which many would also argue is far from a livable wage.
I spoke with founder of Deaf/disabled talent management company C Talent, Keely Cat-Wells, and Disability Rights Activist and C.E.O, Sara Hart Weir, who are partnering with organizations like Creative Spirit to call for the end of this discriminatory practice.
I wanted to find out more about their work and experiences so I started by asking them about the sorts of workplaces that are taking advantage of this wage loophole and how the law came about. They told me:
“The outdated business model for sheltered workshops was an outgrowth of the Fair Labor Standards Act of 1938 which is a Depression-Era standard that people with disabilities could get compensated pennies an hour to work in a segregated work environment. This 1938 statute, called Section 14(c), has not been amended in over eighty years.
Today, there are approximately 321,1314 Americans with disabilities who, even while living in the community, still earn subminimum wages in segregated sheltered workshops. In these workshops, individuals with intellectual and developmental disabilities perform mostly rote and repetitive manual tasks, and according to the Government Accountability Office less than approximately 5% of individuals in a sheltered workshop ever leave these settings for competitive integrated employment.”
What we are seeing here is a completely segregated work environment where businesses are building their profits on the backs of a workforce that has little choice but to accept an inadequate wage. These were the arguments used to justify cutting UK government spending on workshops for disabled people a few years ago. Any disabled person who finds themselves in a job like this it will undoubtedly have their confidence and mental health affected, but not because of the supportive environment but because of the poor pay.
A Stepping Stone or A Trap?
The historic pushback for those who try to raise concerns about this discriminatory practice is that these employers are providing an opportunity for people who may otherwise never be able to work and that maybe they can use their experience in a sheltered workshop to establish themselves in a career or find a validating occupation for their time. As we have already heard the amount of people who move on to better positions is only 5% and for the remaining 95%, we need to reconsider the way we are looking at working as the only definition of success in our society. Amongst that 95% may be people who actually do not desire to work and should be better supported by the government rather than coerced into a position where their labor has been devalued. For all the others true inclusion in communities and the workplace should be the aim. Speaking again with Cat-Wells and Weir they agreed, saying that:
“individuals with disabilities are some of the most caring, compassionate, and capable people out there, and to say that the best they can do is sit and complete repetitive tasks for the rest of their lives is severely underestimating their full potential. Inclusion in the classroom coupled with an educational foundation and access to skill development, people with disabilities can be successfully and beneficially integrated into countless jobs in our country.”
I agree with this sentiment wholeheartedly and in fact it has been the basis of my career both academic and professional.
A Movement for Progress Is Forming
As with the ADA, without disabled activists and their allies continuing to shout loudly and stand up for what is right nothing is likely to change. But this work is hard and not without personal risk so I asked the two women to tell me what had compelled them to start this movement. Cat-Wells told me that she had become disabled at age 17 and had a perspective shift, she said:
“I very quickly realized that the world around me was no longer made with me in mind, When I moved from the UK to Los Angeles I lost a job due to the ableism in the entertainment industry, quickly noticing this was not an isolated issue, I founded C Talent, a talent management company that represents high profile Deaf & Disabled talent. I found out about 14(c) in August 2020, as someone who has been in the community and industry for a while I was shocked, this is an 80+ year old law that still to this day paints disabled people as second-class citizens. April this year, my company released an open letter asking all major motion picture companies to hire a Disability Officer. Sara saw our movement and got in touch. I do not have a political background but will do whatever it takes to get rid of discriminatory laws. I look forward to a world where we can have true equity, and disabled people are valued and respected both in society and the eyes of the law.”
For Weir who has worked for 20 years in the disability community, she was motivated to get more involved by her friendship with a woman named Kasey for whom she provided disability support. She says:
“I quickly learned through my friendship with Kasey the inequities and discrimination that people with disabilities face day in and day out. I eventually went to work for the National Down Syndrome Society (served as the President & CEO) and led the bipartisan effort to pass the ABLE Act, which finally allowed people with disabilities to save money for their future. Through my work, I worked with almost every state, including my home state of Kansas, to help set up these life-changing programs through State Treasurer’s Offices. I know we can’t stop at savings for people with disabilities - the next frontier is true inclusion in employment. As long as we have an outdated law like paying people with disabilities subminimum wage on the books, we won’t be able to fully realize the contributions people with disabilities can make in the workplace.
I am so glad that the disability rights movement has these bold, ambitious women at its helm, it gives me enormous hope that change can and will come. We need to reconsider the infantilizing narrative that a disabled person is “lucky” simply to have a job and remember that celebrating disability pride is about stepping into our power and realizing our worth. If a job is of benefit to an employer then it is deserving of a fair wage.
Facing Down Job Discrimination Against Vets
Surprisingly to some, one of the most glaring and rising types of employment discrimination is the discrimination against our nation’s veterans. This is a particularly troubling development considering that post-9/11 veterans have suffered from higher unemployment than other veterans and civilians.
Significantly, the terrorist attacks on Sept. 11, 2001, and the prolonged wars in Afghanistan and Iraq have put many veterans in a difficult employment situation. In many cases, employers can be insensitive or even hostile to their veteran employees’ training schedules and wartime experiences.
Perhaps the hardest-hit military populations in recent years are the U.S. Reserve and National Guard members who have had to balance civilian employment with their military obligations, including combat deployments. Historically, Reserve and Guard troops were not regularly deployed to combat; but that changed significantly after 9/11.
Most recently, COVID-19 has resulted in even longer periods of activation and deployment for the Guard and Reservists, as they have been called up to test for coronavirus, administer vaccines, and distribute food at food banks across the country. In addition, these forces have been called up to quell civil unrest — all while continuing to respond to natural disasters including floods and wildfires.
Consequently, many employers are reluctant to hire or promote veteran employees who serve in the Guard or Reserves because of these significant obligations. Equally worse, many veterans have been fired because of these obligations. Disabled veterans also face employment discrimination when employers deliberately avoid hiring a veteran because of a real or perceived disability.
In a similar vein, there is also a growing perception that many veterans, especially combat veterans, are disabled for the very reason that they answered their nation’s call to duty. In many cases, veterans are perceived as psychologically “damaged” by their wartime experiences.
Oftentimes, this stereotyping is reflected and reinforced in popular culture whereby veterans in movies and television shows are regularly portrayed as unstable and broken. While some of these representations have helped make it easier to speak about the harsh realities of PTSD, they have also had the unintended effect of making it more difficult for veterans to get hired or promoted.
Fortunately, there are laws that protect veterans from such inexcusable discrimination. The Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) apply to veteran employees and those who employ them.
Under the USERRA, it is unlawful for employers to discriminate against servicemembers based on their military service. USERRA is enforced by the U.S. Department of Labor and the U.S. Department of Justice. The ADA, a law enforced by the U.S. Equal Employment Opportunity Commission (EEOC), prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment because he or she has a disability, a history of having a disability, or because the employer regards him or her as having a disability.
Against the backdrop of rising veteran discrimination, in November of 2020, the EEOC provided new guidance related to the employment discrimination challenges that our nation’s veterans face. The EEOC’s guidance tackled tough issues such as what veterans can do if they feel that an employer has violated the ADA by not hiring them or providing a reasonable accommodation. But we must ensure that these laws and related guidance are vigorously enforced. Likewise, it is imperative that federal and state agencies engage in targeted outreach to ensure that veterans and employers know about these particular laws and how they apply.
Many important questions have gone unanswered for far too long. What can we do to root out this odious and growing discrimination? Should federal employment discrimination laws relating to veterans be consolidated at one federal agency to ensure uniformity and to provide veterans with a “one-stop shop” in the event they face discrimination? Should the USERRA, passed in 1994, well before the post-9/11 employment challenges, be revisited and amended by Congress because of the new obstacles that veteran employees face? Should veterans be categorized as a protected class under Title VII of the Civil Rights Act of 1964?
How We Start Erasing the Stigma Around HIV
What are the stigmas around HIV?
A stigma is a negative attitude or prejudice toward people with a distinguishing characteristic, such as a physical or mental health condition. Stigmas can be self-imposed, individual, or institutional and often lead to discrimination against people with that specific characteristic.
Stigmas against people living with HIV began in the 1980s, when the virus initially led to the HIV and AIDS epidemic in the United States. Misinformation about HIV led to common beliefs about people living with the condition — many of which have no scientific basis, but were used to fuel stigma and discrimination.
In 2008, the People Living with HIV (PLHIV) Stigma Index was created to collect evidence on the impact of stigmas and discrimination against people living with HIV. Over 100,000 people in 100 countries who are living with HIV have contributed data to the PLHIV Stigma Index.
Although we’ve come a long way in our knowledge about HIV and AIDS since the 1980s, misguided beliefs still contribute to the stigmas surrounding HIV. Below, we explain some of the most common misconceptions that fuel discrimination against the millions of people around the world living with HIV.
HIV is not as big of a concern as it once was
HIV diagnosis and treatment has greatly improved since the 1980s. However, HIV still affects millions of people around the world. In fact, according to the Centers for Disease Control and Prevention (CDC)Trusted Source, even outside of the United States, HIV transmission is a huge public health concern for people living in the Global South and Global North.
HIV only affects certain groups of people
While certain groups of people have a greater chance of contracting HIV, the virus can be transmitted to anyone, regardless of their gender, ethnicity, or sexuality. HIV can also be transmitted outside of sexual contact, such as through sharing needles or drug equipment, or from mother to baby.
HIV is easily transmitted through touch
HIV can only be transmitted via the following means:
The CDC Trusted Source confirms that HIV cannot be transmitted by shaking hands, touching, or being in the same room as someone living with HIV.
- pre-seminal fluid
- rectal fluids
- vaginal fluids
- breast milk
HIV is a “death sentence”
HIV treatment options have continued to improve since the introduction of the first FDA-approved HIV drug, azidothymidine, in 1987. Since that time, the development of new antiretroviral drugs has dramatically increased the life expectancy of people living with HIV.
Stigmas can come in many different forms. People living with HIV can be subjected to stigmas that are not only experienced but also internalized or even anticipated. HIV stigmas and discrimination can also be self-imposed, individual, structural, or institutional.
HIV stigmas can negatively affect the physical health, healthcare behaviors, and interpersonal relationships of people living with HIV and can impact many aspects of life, such as:
Individual and institutional stigmas can also have a huge negative impact on the mental health of people living with HIV. Stigmas can impact many aspects of mental health including:
- Employment. Increased healthcare needs for people living with HIV, such as needing to take time off for medical appointments, can jeopardize employment. In some cases, prejudice and discrimination may also exist in the workplace.
- Housing. Lack of employment due to discrimination can make it difficult to find adequate housing, as can discrimination from landlords. People living with HIV may also experience prejudice or discrimination from the people they live with or their neighbors.
- Healthcare. Feelings of shame from HIV stigma can prevent people living with HIV from seeking the lifesaving treatment they need. In addition, when healthcare professionals are not fully educated on the facts about HIV, it can create more stigma.
- Relationships. Social stigma against people living with HIV can lead to gossip, rejection, bullying, and in some cases, even violence. Harmful HIV myths can also make intimacy a difficult subject for people living with HIV.
Educating yourself and others on the facts and statistics about HIV is one of the most important steps to combat HIV stigma, so here’s what you need to know about HIV.
- depression and anxiety levels
- avoidance and blame coping behaviors
- medication adherence
- social support
- physician trust
According to 2018 data from the CDC Trusted Source, it is estimated that 37.9 million people worldwide are living with HIV, with 1.2 million of those people living in the United States. Roughly 24.5 million people worldwide received antiretroviral therapy (ART) in 2018 to treat HIV.
Although HIV affects people all around the world, sub-Saharan Africa accounts for roughly 61 percent of all new HIV cases. In addition, people in the following regions are also significantly affected by HIV and AIDS:
In the United States specifically, a high number of HIV cases are found in metropolitan areas with larger populations, with the South having the highest number of people living with HIV.
- Asia and the Pacific
- Latin America and the Caribbean
- Eastern Europe
- Central Asia
Although HIV can affect anyone, regardless of gender or sexuality, it disproportionately affects two specific groups of people in the United States:
There are several factors that may explain the higher prevalence of HIV among historically marginalized communities. These may include:
- people who engage in male-to-male sexual contact
- people who are Black and Latino
The CDC Trusted Source also says that in 2018, about 66 percent of new HIV cases in the United States were contracted from male-to-male sexual contact, versus 23.8 percent from heterosexual contact and 6.6 percent from injected drug misuse.
- Socioeconomic factors. Certain socioeconomic factors can increase barriers to prevention and medical care, which can greatly increase HIV prevalence. These factors include:
- racial discrimination
- lack of access to healthcare
- higher rates of incarceration
- Fear of stigma. A fear of being honest with friends, loved ones, and medical professionals about drug-related or sexual behaviors due to the stigmas they carry can hinder education, prevention, and medical treatment.
- Higher STI prevalence. The rates of overall STI prevalence are higher among People of Color, and having an STI increases the chance of contracting HIV.
People who are Black accounted for 42.2 percent of 2018 HIV cases in the United States, followed by people who are Latinos at 27 percent and who are whites at 25.2 percent. People who are Asians, American Indians, Alaska Natives, Native Hawaiians, Pacific Islanders, and of other ethnic groups made up the remaining 5.6 percent of new cases.
We can all take part in standing up to the stigmas and discrimination that people living with HIV experience by changing the way we and others view HIV. If you’re looking for ways to reduce HIV stigma for yourself or the people around you, here are some suggestions to get you started.
Educate yourself and others
Take some time to read up on the facts and statistics about HIV, rather than relying on outdated information about what HIV is and who is affected by it. Seek out experiences from people living with HIV to learn more about how they can be supported, both individually and within their communities.
Consider using more mindful language
When speaking about HIV, be mindful of your language and choose words that can help reduce the stigmas surrounding people with HIV. Instead of using words like, “HIV-infected”, “unsafe”, and “high-risk”, which can carry negative associations, aim to use neutral or inclusive language instead, such as “people living with HIV.”
Stand up against discrimination
Stigmas and discrimination can have a significant impact on the life experiences of people living with HIV, so it’s important that we all speak out against it when we see it. Standing up can look like actively speaking up when someone says something harmful or reporting discrimination to the appropriate people.
Get involved with HIV organizations
National and community-based HIV organizations play an important role in breaking down stigmas by providing education about the facts and statistics of HIV. Volunteering, donating, and bringing awareness to these organizations contributes to the continued advocacy of people all around the world living with HIV.
HIV stigmas, especially those based on harmful myths, can have a profoundly negative impact on people living with HIV. Often, HIV stigma can lead to prejudice and discrimination in many areas of life, including healthcare, employment, housing, relationships, and more.
All of us have a responsibility to dispel the harmful myths surrounding HIV and advocate for people who may be impacted by them. Educating yourself and people around you about the facts surrounding HIV is a great place to start.