Author: su4waction

I. Introduction 

The filibuster has been described as an obstructionary tactic used to defeat bills and motions, traditionally employed by speaking indefinitely to delay voting on an issue. The term itself comes from Dutch, Spanish, and French words used to describe pirates, plunderers, and more literally, “freebooters.” Once characterized by marathon speeches, reading recipes aloud, singing Sinatra’s “South of The Border” or reading Green Eggs and Ham, the filibuster has now changed course. Instead of hours-long speeches requiring catheter bags and sleeping in the chamber, modern Senate rules in place since the early 1970s allow the so-called “silent filibuster” which merely requires a member to announce an intent to filibuster to, in effect, create a minority veto. The net result is a virtual end to the simple majority rule since any piece of legislation that does not involve budget reconciliation now requires a 60-vote supermajority in the Senate before the Senate can vote on the legislation itself.

Once upon a time, a filibuster on a single bill would bring the entire government to a halt since the Senate considered one bill, or one nomination, at a time. This was both good and bad as though it stopped everything, it also put pressure on all sides to resolve the issue so that the Senate could move forward. That all changed in 1975, when Senator Robert Byrd, the then majority whip, announced dual tracking. This rule change, designed for efficiency, allowed the majority leader to set aside a slow-moving bill to consider other matters and has thus made filibusters largely “pain free.” Going further, some might say that dual tracking, combined with the silent filibuster, has allowed democracy to die in the darkness.

The evolution of the filibuster must be viewed in the context of the current 50/50 split Senate with a tie-breaking vote by the Vice President, combined with Mitch McConnell’s announcement that “100 percent” of his focus as minority leader is “on stopping this administration.” Thus, without some change in circumstance, the country can expect little progress on important matters such as climate change or voting rights. The most prominent bill currently being blocked, the For the People Act, is intended to expand voting rights, change campaign finance laws, limit partisan gerrymandering, and create new ethics rules for federal office holders. The House passed the bill in 2019, but it was later blocked under then Senate Majority Leader, Mitch McConnell. House Democrats reintroduced the bill in 2021 and the bill passed in the House of Representatives on a near party-line vote before advancing to the Senate. Senate Republicans have since blocked the bill from proceeding to a vote with a silent filibuster. This has brought the filibuster into everyday conversation, raising questions about what it is, how it is used, and what it means for a President, like Joe Biden, who received a popular vote majority—by more than 7 million people in the 2020 Presidential election—but whose agenda is stalled by a minority veto.

This article will address a few important points, including an overview of the history of the filibuster, the most notable historical examples of its use, its prominence in blocking civil rights legislation, its modern use today, and what we should do now. It is only when examined through a historical perspective that we can decide as a nation if the filibuster should be a permanent feature of our government.

II. History of the Filibuster 

While not a part of the Constitution of the United States, the filibuster dates back to ancient Rome and some form of filibustering has existed since the inception of our Constitutional democracy. Senate historian Betty Koed, who has written and spoken extensively on the subject, points to a passage from the very first U.S. Senate session, in 1789, when Pennsylvania Senator William Maclay wrote in his diary, the “design of the Virginians . . . was to talk away the time, so that we could not get the bill passed.”

Initially, both the Senate and the House had unlimited debate. During the 51^st Congress, the House ended what was called the “disappearing quorum,” where members could kill a bill by absenting themselves and denying the House a quorum. The elimination of the disappearing quorum effectively killed the filibuster in the House more than 130 years ago. While many predicted dire consequences for the House, the 51^st Congress, which had been expected to accomplish little or nothing, became one of the most productive in history with Republicans in full control. Action taken by the 51^st Congress included the Sherman Antitrust Act designed to rein in big business; the establishment of land grants for colleges serving Black students in the South; the expansion of pensions for Civil War veterans; the creation of the foundation for the National Park Service; and the granting of statehood to the Dakotas, Montana, Washington, and Idaho. The House now has limited how much individual members can speak, and effectively eliminated the filibuster. Instead of taking the example from the House, the Senate has gone in the opposite direction, making the filibuster more routine and easier to use.

According to the Public Broadcasting Service (PBS), the record for the longest individual filibuster in U.S. history remains with Senator Strom Thurmond who spoke for more than 24 hours in August of 1957 opposing Civil Rights legislation. It was one of many filibusters by white, Southern Democrats, including one by Senator Robert Byrd, which Byrd later said he regretted.

In 1992, New York Senator Alphonse D’Amato staged a 15-hour filibuster over a tax issue, that famously included reading from the phone book and singing. Senator Huey Long of Louisiana spoke for 15 hours in 1935, during which he read from the Bible and read food recipes aloud, regarding a controversy over government jobs. In more recent years, Senator Rand Paul of Kentucky spoke for 13 hours in 2013 in opposition to an Obama nominee for the Director of the Central Intelligence Agency. Senator Ted Cruz gave a 21-hour speech against the Affordable Care Act in 2013, including the now infamous readings from Dr. Seuss’s Green Eggs and Ham.          

Some of the most infamous uses of the filibuster were against the Civil Rights Act of 1964.  Opponents of the Act filibustered for a record-breaking 60 working days while CBS and other major news agencies reported from the steps of the Capitol. Years earlier, the filibuster was used to defeat the Dyer Anti-Lynching Bill. Lynch mobs had murdered more than 4,000 Black people between the end of Reconstruction and the middle of the 20^th Century. Activists and organizations such as the NAACP worked to expose the savagery of lynching and to debunk the myth that lynch mobs existed to avenge the rape of white women as the anti-Black violence rose to grim levels. Notable examples of this violence included a massacre in Elaine, Arkansas where 500 heavily armed soldiers, law enforcement and white vigilantes killed hundreds of Black sharecroppers, and the Tulsa Race Massacre in the area famously known as Black Wall Street.  

Despite what was substantial backing for the Dyer Anti-Lynching Bill, the bill ultimately died a procedural death at the hands of a filibuster led by Southern Democrats. This filibuster turned highly theatrical as Senators schemed strategies to delay debate, stretching parliamentary procedures into lengthy ordeals, reading from stacks of books, pamphlets, and newspapers, sometimes for hours at a time.  

Ultimately, on December 2, 1922, the Republicans surrendered. A leading Republican, Senator William Borah of Idaho, had refused to invoke cloture, citing objections to the bill’s constitutionality. Some later suggested that the Republicans, such as Borah, who refused to invoke cloture, were secretly angling for the Bill’s defeat. Years later, a cynical Borah would brag to W.E.B. Du Bois that the handling of Dyer Bill had been “one of the finest illustrations of how we play politics with the negro that I know of.”  

Civil Rights leaders later said that the bill “was not killed by majority vote but was lynched by a filibuster.” Eight days following the Bill’s collapse, vigilantes lynched another four Black Americans. Later in the 1930s, southern white Senators filibustered the Costigan-Wagner Anti-Lynching Act, even though the bill’s sponsors were members of the Southerners’ own party.  

These early filibusters proved to be precursors of what would come later. While Strom Thurmond’s 24-hour one-man filibuster of the Civil Rights Act of 1957 still holds the record for this obstructionary tactic, as recently as last year, Senator Rand Paul of Kentucky conducted a one-man blockage against a 21^st Century attempt to enact a new version of the federal anti-lynching law that the House first passed more than a hundred years ago.

The dual tracking rule change that occurred in the 1970s has changed the filibuster substantially. While the rule was intended to allow the Senate to run more smoothly, it made the filibuster an even more effective obstacle to legislation. Though it is not used in all cases, any Senator can launch a filibuster simply by announcing that they object when other Senators try to move forward on legislation. While the objector can specify their reasons for the objection, doing so is not necessary.

To end the filibuster, the full Senate must trigger a different superweapon – cloture – which closes the debate. Under current rules, this requires a 60 percent, or three-fifths, vote of the Senate. If cloture passes, it mandates a maximum of 30 hours of debate and no more. Only at the conclusion of the debate will there a be a vote on the actual measure that the filibuster was intended to block. If cloture does not pass, the bill remains in filibuster as the Senate moves on to other business. The practical effect is that all legislation requiring Senate action must now face an initial 60-vote hurdle. The only exceptions are so-called budget reconciliation bills, which allow for a simple majority vote in the Senate for bills that impact the Federal budget. However, only up to three budget reconciliation bills may be considered each year.

III. Conclusion: What to do About the Filibuster

In 1917, with filibuster frustrations mounting and at the urging of President Woodrow Wilson, the Senate adopted Senate Rule 22 which allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. However, filibusters remained an effective means to block legislation, since a two-thirds majority vote was difficult to obtain. After cloture was first used to end the filibuster against the Treaty of Versailles, the Senate managed to invoke cloture only five times over the next four decades.

In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the 100 senators. Frustrated with the Republicans’ continued efforts of to stall the nominations of President Barack Obama, Democrats eliminated the filibuster for non-SCOTUS judicial nominees in 2013. In turn, the Republicans eliminated the filibuster requirement for United States Supreme Court nominations in 2017 when they had the majority, leading to the current 6-3 conservative majority.       

The “nuclear option” is the term used for “blowing up” or eliminating the filibuster. While this could be done with a simple majority vote for a rule change, many, reportedly including President Biden, are reluctant to change the rules of the Senate. Some consider eliminating the filibuster a precarious move, especially in circumstances with a closely divided Senate, as the majority party could lose their main tool in the Senate not very far down the road if they find themselves in the minority again. Like any “nuclear” option, eliminating the filibuster carries consequences for all concerned.         

According to legend, while Robert Byrd was on his deathbed, the Senate was considering the Affordable Care Act. Senator McConnell insisted that all 60 Democrats had to be present to overcome the filibuster and move the Act forward. McConnell declined to allow Robert Byrd “a pass” by finding a Republican to vote for cloture so that Byrd’s actual appearance could be avoided. Instead, Byrd was forced to physically come into the Senate in a wheelchair, and in a very feeble state, to cast his vote for cloture. Though every Senator, presumably including Mitch McConnell, applauded Byrd and gave him a standing ovation, the only thing that Byrd would say was “shame, shame.”One of the dire warnings of the Founding Fathers was factionalism, which had led to bloody civil wars in England during the 17^th Century. Political parties were seen as a necessary evil, but Alexander Hamilton called them “the most fatal disease” of popular governments. In Federalist PaperNo. 10, James Madison wrote that one of the main functions of a well-constructed union should be its ability “to break and control the violence of faction.” With the modern-day filibuster, the minority “faction” has a death grip on progress. To escape the tyranny of the minority in the Senate, the nuclear option may be the only way forward.

^{[1] See e.g., Conservative Partnership Institute, Shutdown State of Play: What’s Really Going On, CPI Blog (Jan. 19, 2018), https://www.cpi.org/post/shutdown-state-of-play-whats-really-going-on (“Though the filibuster is considered an obstructionary tactic, it is a critical feature of minority rights in the Senate, and one that’s historically been used by both parties to protect their interests.”).
[2] Merriam-Webster, The Piratical History of ‘Filibuster’, https://perma.cc/4S8X-SK62 (last visited Aug. 4, 2021).
[3] See Jada Yuan, No standing, no marathon speeches, no catheter bags: How filibustering got way too easy,  Wash. Post (July 5, 2021), https://perma.cc/P2CK-ANU7 (“Where silent filibusters now land with a thud, talking filibusters once had their own entertaining, even transcendent, way of making history.”).
[4] Luke Savage, If Democracy Is Dying, Why Are Democrats So Complacent?, The Atlantic (May 24, 2021), https://perma.cc/KCW8-JBKE (“Due to the [Senate’s] filibuster rules, most legislation requires 60 votes to pass—an impediment that effectively empowers lawmakers representing only a tiny sliver of the electorate to block policies they dislike at will, including those designed to make American democracy fairer and more inclusive.”); see also Tim Lau, The Filibuster Explained, Brennan Ctr. for J. (Apr. 26, 2021), https://www.brennancenter.org/our-work/research-reports/filibuster-explained (“Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.”).
[5] Yuan, supra note 3.
[6] “Democrocy Dies in Darkness” is the official slogan of the Washington Post.
[7] Donald Judd and Caroline Kelly, Biden dismisses McConnell’s pledge to focus ‘on stopping this new administration’, CNN (May 5, 2021), https://www.cnn.com/2021/05/05/politics/biden-mcconnell-100-stopping-new-administration/index.html.
[8] See H.R. 1/S. 1.
[9] Ballotpedia, HR1, “For the People Act of 2021”, https://ballotpedia.org/HR1,_%22For_the_People_Act_of_2021%22 (last visited Aug. 4, 2021) (“The United States House of Representatives approved HR1 on March 3, 2021, by a vote of 220-210, with all but one present Democrat voting in favor and all present Republicans voting against it. The Senate companion bill, S1, was introduced in that chamber on March 17. On June 22, the Senate voted 50-50 to allow debate on the bill, shy of the 60 votes needed to proceed.”).
[10] See Barbara Sprunt, Senate Republicans Block Democrats’ Sweeping Voting Rights Legislation, NPR (June 22, 2021) https://www.npr.org/2021/06/22/1008737806/democrats-sweeping-voting-rights-legislation-is-headed-for-failure-in-the-senate.
[11] Federal Election Commission, Official 2020 Presidential General Election Results (Feb. 1, 2021) (showing 81,268,924 votes for Biden and 74,216,154 votes for Trump).
[12] Lisa Desjardins, How does the filibuster work?, PBS News Hour (Jan. 27, 2021) https://www.pbs.org/newshour/politics/how-does-the-filibuster-work.
[13] Id.
[14] David Litt, We Already Got Rid of the Filibuster Once Before,  The Atlantic (Mar. 8, 2021) https://www.theatlantic.com/ideas/archive/2021/03/we-already-got-rid-filibuster-once-before/618201/.
[15] Id.
[16] Id.
[17] Id. (stating that Republican lawmakers got rid of the filibuster in the House of Representatives 130 years ago).
[18] Desjardins, supra note 12.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Magdalene Zier and John Fabian Witt, For 100 years, the filibuster has been used to deny Black rights, Wash. Post (Mar. 18, 2021), https://www.washingtonpost.com/outlook/2021/03/18/100-years-filibuster-has-been-used-deny-black-rights/.
[25] Id.
[26] Id.
[27] Id.; see also Tulsa Historical Society and Museum, 1921 Tulsa Race Massacre, https://www.tulsahistory.org/exhibit/1921-tulsa-race-massacre/ (last visited August 4, 2021).
[28] Zier and Witt, supra note 24.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Desjardins, supra note 12.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Cong. Research Serv., R44058, The Budget Reconciliation Process: Stages of Consideration 3 (2021), https://fas.org/sgp/crs/misc/R44058.pdf (discussing the number of reconciliation bills allowed under the Senate’s interpretation of the Congressional Budget Act); see also Richard Kogan and David Reich, Introduction to Budget “Reconciliation”, Ctr. on Budget and Pol. Priorities (Jan. 21, 2021), https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation (“Under Senate interpretations of the Congressional Budget Act, the Senate can consider the three basic subjects of reconciliation — spending, revenues, and the debt limit — in a single bill or multiple bills, but a budget resolution can generate no more than one bill addressing each of those subjects. In practice, however, a tax bill is likely to affect not only revenues but also outlays to some extent (for example, via refundable tax credits). Thus as a practical matter a single budget resolution can probably generate only two reconciliation bills: a tax-and-spending bill or a spending-only bill and, if desired, a separate debt limit bill.”).
[46] United States Senate, About Filibusters and Cloture | Historical Overview, https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm (last visited Aug. 4, 2021).
[47] Id.
[48] Id.
[49] Id.
[50] See Camille Caldera, Fact Check: Republicans, not Democrats, eliminated the Senate Filibuster on Supreme Court Nominees, USA Today (Oct. 1, 2020), https://www.usatoday.com/story/news/factcheck/2020/10/01/fact-check-gop-ended-senate-filibuster-supreme-court-nominees/3573369001/ (“Senate Majority Leader Harry Reid, D-Nev., was not responsible for lowering the vote threshold to confirm Supreme Court nominees to 51. Rather, he orchestrated that change for judicial nominees and presidential appointments, excluding the Supreme Court. When control of the Senate changed parties, it was Republican Majority Leader Mitch McConnell, R-Ky., who extended the rule change to apply to nominees to the Supreme Court in 2017.”).
[51] See e.g., Laura Barron-Lopez, Biden won’t embrace filibuster reforms even as the rest of his party does, Politico (Mar. 8, 2021), https://www.politico.com/news/2021/03/08/biden-filibuster-reform-474503 (“President Joe Biden isn’t budging from his desire to keep the filibuster in place; at least not yet. And activists demanding reforms are growing increasingly befuddled by the administration’s hesitance.”); but see Grace Segers, Biden signals he’s open to eliminating Senate filibuster over GOP “abuse”, CBS News (Mar. 26, 2021) https://www.cbsnews.com/news/filibuster-reform-senate-biden-republican-abuse/ (explaining that President Biden has expressed some support for eliminating the silent filibuster, and has indicated that he may be open to further reforms “if there’s complete lockdown and chaos as a consequence of the filibuster”).
[52] See Brent Baker, CBS Leads with Byrd’s ‘Shame, Shame’ in Story on GOP ‘Delaying Tactics’, Media Research Ctr. (Dec. 19, 2009), http://archive2.mrc.org/bias-alerts/cbs-leads-byrds-shame-shame-story-gop-delaying-tactics.
[53] Sarah Pruitt, The Founding Fathers Feared Political Factions Would Tear the Nation Apart, History (Mar. 7, 2019), https://www.history.com/news/founding-fathers-political-parties-opinion.
[54] Id.
[55] Id.}

As more employees return to in-person work and hiring ramps up, it’s important for workers to know their rights as well as what constitutes a hostile or intimidating work setting. After months of isolated remote work or staggered schedules where communication was often virtual and employees were separated, returning to workplace decorum may be challenging for some individuals, whether they’re managers or coworkers.

But what’s the difference between unwanted or annoying behavior and actions that create an illegal, hostile work environment? A hostile environment begins with harassment. The Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome conduct that is based on race, color, religion, sex, national origin, older age (40 or older), disability, or genetic information.

When Does Harassment Lead to a Hostile Environment? 

Harassment is considered unlawful when it is carried out against someone from a protected class, and it additionally satisfies one of two conditions:

• Enduring it becomes a condition of employment, or
• It becomes so severe or pervasive that a reasonable person would consider it to have created an intimidating, offensive, or hostile work environment

In a hostile work environment, a reasonable person is so abused or intimidated that they are not able to perform their job. Isolated incidents, annoyances, or petty slights, such as a boss playing favorites, are generally not considered illegal behavior under Title VII of the Civil Rights Act. Instead, offensive conduct that can lead to a hostile work environment might include: 

• Using slurs or epithets, making offensive jokes, or name-calling
• Making threats or physical assaults
• Engaging in intimidation, ridicule, or mockery
• Making insults or put-downs
• Sending or displaying offensive pictures or objects
• Interfering with work performance

The harasser can be a supervisor, coworker, or even a non-employee, such as a customer or vendor. Since the person being harassed may not be the only one affected by the offensive behavior, coworkers and others who are impacted may also be eligible for filing a hostile-work-environment claim.

Recent EEOC Settlements on Hostile Work Environments

Identifying the conduct that qualifies for a hostile work environment, particularly in a post-pandemic world where workers may just be getting used to being near one another again, can be difficult. Here are some recent EEOC settlements related to hostile work environments that might help clarify the issues:

• Continued racial slurs — In a case against Ryder Integrated Logistics and Kimco Staffing, the EEOC argued the two companies created a hostile working environment by allowing employees to continuously use racial slurs and epithets toward African American coworkers. The EEOC contended that after a Black employee complained, the companies fired the employee rather than correcting the situation. Each company was required to pay $1 million and implement policies, procedures, and systems to prevent future instances.
• Sexual harassment against an entire group of females — MVM, a security services provider, was ordered to pay $100,000 to a female security guard who was subjected to sexual harassment by a manager. The harassment included unwanted touching and lewd comments, and the guard was fired shortly after complaining. The same manager made inappropriate sexual comments, asked for explicit pictures, and made sexual advances toward an entire class of female employees. Although supervisors and other managers were aware of the harassment, they allowed it to continue. Along with requiring the company to provide monetary relief and take other measures, the EEOC ordered MVM to refrain from allowing a hostile work environment based on sexual harassment.
• Sexually hostile work environment on client site — In 2020, the EEOC charged HM Solutions, a commercial and industrial janitorial services company, with subjecting four female employees to a sexually hostile work environment. Over a period of three years while working at a client site, the women were subjected to sexual harassment by both a male HM Solutions manager and a male shift supervisor. The women complained, and other supervisors observed some of the harassing behavior, but the abuse continued. HM Solutions was ordered to pay $315,000 to the women, as well as provide employee training on sexual harassment, update its anti-harassment policies, and report complaints to the EEOC.

At Barrett & Farahany, we are happy to answer any questions about harassment and hostile work environments. We seek justice at work for all employees. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

Any kind of discrimination based on national origin is against the law, whether it is being carried out by a US company against someone of non-American descent or involves a foreign company’s US operations preferring someone from its own country over an American citizen. Employment and hiring practices that favor employees or applicants of a particular nationality can also be considered discrimination based on national origin and are against the law.

Protections Against National Origin Discrimination

Title VII of the Civil Rights Act prohibits discrimination in hiring, promotion, termination, pay, and other aspects of employment based on national origin, just as it does for race, sex, religion, and color. According to the Equal Employment Opportunity Commission (EEOC), national origin discrimination is defined as treating an applicant or employee unfavorably because they are from a particular part of the world, of a specific ethnicity, have a certain accent, or appear to be of a particular ethnic background. It also encompasses unfavorable treatment of employees or applicants who are married to a person of a specific national origin.

All employees who work in the US, whether employed by an American or foreign company, are protected by these laws. So, if an American is working for a foreign company on US soil and is discriminated against because of their origin, the same protections apply. This is sometimes referred to as reverse discrimination against a US worker. The only exception is when a foreign company is covered by a treaty or international agreement that allows them to give preference to their own nationals for certain positions.

Recent Cases

In 2020, the EEOC received almost 6,400 new charges of discrimination based on national origin and resolved over 6,900 (including cases filed in previous years). Of those resolved, 6.2% were settled. When the settlement included monetary compensation, companies accused of discriminating based on national origin paid out a total of $26.3 million in 2020.

Here are some examples of recent EEOC settlements involving claims of discrimination based on national origin:

• In June 2020, Albertson’s agreed to pay $210,000 to settle a national origin discrimination lawsuit alleging the grocer allowed a manager in one of its La Mesa, California, stores to harass Hispanic employees by forbidding them to speak Spanish and requiring English only. In addition to the compensation, Albertson’s agreed to review and revise its discrimination policies, and provide employee and manager training with an emphasis on language discrimination.
• City Sports, a chain of sports fashion stores in Chicago and surrounding areas, settled a race and national origin discrimination case in which it was accused of favoring Koreans over African Americans and Hispanics for management positions. In the November 2020 settlement, the retailer agreed to pay 19 current and former employees a total of $420,000, and hire a consultant to help implement anti-discrimination policies, procedures, and training.
• In April, Helados La Tapatia in Fresno, California, agreed to pay $200,000 as part of a national origin discrimination lawsuit. The ice cream company was accused of favoring Hispanic job applicants over black, white, and Asian applicants for entry-level, warehouse, and driver positions, as well as discouraging non-Hispanic applicants from applying. The company agreed to implement an open hiring and recruiting policy, among other settlement requirements.
• Last month, Wild Fork Foods in Miami, part of JBS USA, agreed to pay $130,000 to settle a claim of national origin and racial discrimination. Wild Forks was accused of violating federal law when a Hispanic female employee in the Miami corporate office was subjected to a hostile work environment based on both her race and national origin, subjected to retaliation for complaining, and ultimately forced out of her job. The decree also includes specialized training on national origin discrimination, among other requirements.

Justice Department Efforts

In addition to EEOC efforts to protect US workers against reverse discrimination by foreign corporations, the Justice Department Civil Rights Division’s Immigration and Employee Rights Section has been pursuing cases against companies that discriminate against US workers in favor of temporary visa holders. In 2017, the department launched the Protecting US Workers initiative and has been pursuing employers it views as denying opportunities to US workers.

In December 2020, the department settled a case against Ikon Systems, a staffing and recruiting company based in Texas. The settlement resolved claims that Ikon was discriminating against US workers by posting job advertisements specifying a preference for applicants with temporary work visas. The claim included allegations that Ikon failed to consider a single US citizen for the openings.

At Barrett & Farahany, we are happy to answer any questions about discrimination based on national origin. We seek justice at work for all employees. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

As the economy has opened up, more employees have returned to some form of in-person employment, with one exception. Working mothers, who took on the bulk of caregiving responsibilities during the pandemic and scaled back or totally left the workforce in droves, are still plagued by a lack of childcare and in many cases unable to return to the workplace. The immediate impact is troublesome, but the long-term effect on women’s advancement and gender diversity in the workplace could be irreparable.

In a recent Fulton County Daily Report article, Amanda Farahany, managing partner of Barrett & Farahany, and Elizabeth Sigler of Stanton Law discuss the potential for future sexual discrimination claims if employers start penalizing women based on stereotyped assumptions related to caregiving obligations. They also pose a challenge to businesses and the government to come up with a better solution in order to keep gender parity from becoming a COVID-19 casualty.

Familial Status is Not a Protected Class

Most pandemic-related terminations have had nothing explicitly to do with gender but instead have been a result of an employee not being able to perform their job, write Farahany and Sigler. Even if the reason for poor attendance or performance is related to lack of childcare, employers are not required to retain employees who cannot make it to work or do their job, the authors note. Being a parent is not a protected class in Georgia and employers are not required to find accommodations.

Potential Basis for Title VII Sex Discrimination Claims

With no legal protections for caregivers, Farahany and Sigler contend that sex discrimination under Title VII is theoretically the likeliest basis for future claims. They give the example of an employer that exhibits gender bias against women under the assumption that female employees are caregivers and less committed to their jobs. If the employer subjects the women to negative performance reviews and adverse consequences under those assumptions, a female worker might have a Title VII sex discrimination claim.

Likewise, if an employer hires a man over a woman who they assume has potential caregiver obligations, the employer may have unwittingly offered up evidence for the woman to argue stereotyped assumptions, note Farahany and Sigler. Stereotypes hurt all women, not just mothers with caregiver responsibilities, note the authors.

Solution Requires Public and Private Commitment

The solution to the childcare problem is not an easy one. Continued flexible work situations and help paying for childcare are two options that could help, but these alone do not solve the problem, note Farahany and Sigler. They challenge businesses and the government to come together to create a solution, be it statewide childcare legislation, making familial status a protected class, or something else.

To read the full article, click here. (Note, summary only available unless you are a Fulton County Daily Report subscriber.)

If you suspect your employer is applying gender stereotypes in performance reviews, promotions, or hiring decisions, and thus negatively impacting you and other women, please contact us. The experienced team at Barrett & Farahany can help evaluate your situation and make sure you receive justice at work.

The COVID-19 pandemic may have changed the way we work, but it didn’t keep sexual harassment at bay. Even with fewer people in offices, a dispersed workforce, and many interactions virtual for the past year, the problem has persisted and, in some cases, worsened. As women moved home to work, the harassment moved online to Zoom calls, emails, and texts. In in-person settings, perpetrators took advantage of emptier workspaces or were emboldened by a mask.

Remote Harassment Is Still Harassment

According to the EEOC, sexual harassment includes unwelcome sexual advancements, requests for sexual favors, or verbal harassment of a sexual nature, all of which can occur online. Sexual harassment becomes illegal when it creates a hostile or offensive work environment.

The agency has yet to release statistics related to sexual harassment charges during the pandemic. The issue was, however, discussed at a recent EEOC hearing on the impact of the pandemic on civil rights in the workplace. As one speaker noted, the pandemic has created opportunities for increased sexual harassment and retaliation against those who report it.

Zoom Exposure

In probably the most public case of online sexual harassment in the past year, Jeffrey Toobin, a writer for The New Yorker and legal analyst for CNN, was fired by the magazine for what he termed as an accidental exposure of his genitals during a work Zoom call. Toobin, who was reportedly masturbating, has stated that he thought audio was muted and video turned off. On the call with Toobin were staff from both the New Yorker and WNYC, a New York public radio station.

While the Toobin incident might be the most publicized, it is certainly not the only incident. A Pew Research study found that sexual harassment of American women online in all settings, not just at work, had doubled since the last survey in 2017. In 2020, 16% of all female respondents reported being sexually harassed online. Younger women were more likely to have experienced an incident of virtual sexual harassment, with 33% of women under the age of 35 reporting an incident.

Studies in other countries that were specific to the workplace also pointed to an increase in harassment. A survey of women working from home in the UK found that the pandemic had resulted in an upsurge of online sexual harassment, with harassers most often using online work platforms and social media. Almost half of the women experiencing sexual harassment said it was happening remotely, and 23% reported an escalation in incidences since working from home. One state employment commission in Australia reported an 8% increase in sexual harassment complaints since the pandemic began.

Pandemic Exacerbated Risk Factors

In addition to distance and a screen between individuals, online environments are often less formal than in-person work settings and set the stage for workers to feel more comfortable stretching the conversation or text to include a sexually suggestive joke or inappropriate photo. Add to that the fact that many employees working from home are doing so at odd hours, and sending texts, Slack messages, and emails sometimes into the wee hours of the morning. Less supervision and more access could be a dangerous combination. These virtual work settings mimic risk factors identified by the EEOC as common for sexual harassment – workers alone, in isolated workplaces, working late at night.

During the pandemic, these same risk factors were often present when workers ventured into the office or workplace. With flexible hours and shifts, few employees were actually physically present at one time, setting the stage again for a harasser to potentially stage an inappropriate encounter.

Servers Report More Sexual Harassment from Customers

Female restaurant workers were already among the highest in terms of sexual harassment complaints prior to the pandemic, but recent reports point to a worsening during COVID-19 even with fewer customers and employees present. In a December 2020 survey of food-service workers, 40% of tipped workers noted a change in unsolicited sexual comments from customers. Hundreds of female respondents spoke of instances involving a male customer asking a female worker to take off her mask so the customer could calibrate the server’s tip to her looks.

At Barrett & Farahany, we are happy to answer any questions about sexual harassment. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.

by B&F Contributor

We’ve come a long way, baby, from first starting to work outside the home in the 19th century to present-day, when women are running boardrooms and holding some of the highest offices in our country. Along with this progression have come laws to support female advancement in the workforce and provide women with equal pay, protection from harassment and discrimination, and more.

Let’s take a look at seven laws that have had the greatest impact on working women.

• Equal Pay Act (EPA) of 1963 – under the EPA, men and women doing substantially the same job in the same workplace must be equally paid. The law doesn’t just apply to salary or hourly wage, but also includes overtime, bonuses, stock options, benefits, vacation and holiday pay, and profit-sharing plans. When alleging a violation, one may file a complaint with the Equal Employment Opportunity Commission or go straight to court. Efforts to close the ages-old gender pay gap ramped up during World War II, but it wasn’t until President Kennedy signed the EPA that pay equity became law.
• Title VII of the Civil Rights Act of 1964 – Title VII, which applies to employers with 15 or more employees, prohibits discrimination based on sex. It also protects women from sexual harassment in the workplace. The original law, passed in 1964, did not include women. Sex didn’t become a protected class under Title VII until 1967. Sexual discrimination is now afforded all the same remedies as other protected classes, including compensatory and punitive damages for intentional discrimination. 
• Pregnancy Discrimination Act (PDA) of 1978 – the PDA prohibits sex discrimination in employment and hiring on the basis of pregnancy, childbirth, or a medical condition related to either. It applies to promotions, job assignments, layoffs, training, and other aspects of employment. The Act also requires companies that offer disability leave to temporarily disabled employees to extend the same policy to women who are temporarily disabled by pregnancy.
• Family & Medical Leave Act (FMLA) of 1993 – whereas the PDA prohibited discrimination against pregnant women, it wasn’t until 1993 and the passage of the FMLA that certain female employees of qualifying employers were legally assured up to 12 weeks of job-protected unpaid leave for childbirth as well as caring for a newborn or adopted child.
• Lilly Ledbetter Fair Pay Act of 2009 – as the first piece of legislation signed into law by President Obama, this act resets the two-year statute of limitations for an equal pay complaint with each new paycheck. Prior to the Act, the statute of limitations began with the first paycheck when unequal pay took place. If a woman had been unequally paid for three years but only found out about it with her most recent paycheck, she couldn’t file a claim under the old rules because the two-year statute had expired.
• The Patient Protection and Affordable Care Act of 2010 – the Affordable Care Act requires employers to provide reasonable break time for an employee to express breast milk for up to one year following the birth of her child. The Act also requires employers to provide a shielded space, other than a bathroom, for women to express milk. The law applies to employers with 50 or more employees.
• Tax Cuts and Jobs Act (TCJA) of 2017 – in this legislation, Congress took the issue of sexual harassment and discrimination to the corporate tax return. For years, payments to settle sexual harassment claims have been considered a deductible business expense, even if they contained a nondisclosure agreement and remained a secret to the public and shareholders. In an effort toward more disclosure and clarity of sexual harassment and discrimination charges, the TCJA made settlements with nondisclosure agreements nondeductible.

At Barrett & Farahany, we are happy to answer any questions about equal pay, Title VII and sexual discrimination, policies toward pregnancy and childbirth, and other laws and gender-related issues primarily affecting women. If you or anyone you know is looking for answers, please contact us to speak to one of our attorneys.