Legal Analysts

Showing posts with label civil rights. Show all posts
Showing posts with label civil rights. Show all posts

Tuesday, January 30, 2024

New Rule Targets Salary History to Close Gender and Racial Pay Gaps

The Office of Personnel Management (OPM) has taken a significant step towards addressing gender and racial pay disparities within the Federal workforce with its latest regulation. Effective April 1, 2024, this rule prohibits the use of salary history in setting pay for new civilian employees, a practice that has historically contributed to ongoing pay inequities.

The private sector should take notice because the use of pay history is going to be a driving force in future claims under the Equal Pay Act based upon extrapolations from this regulation. 

Salary history has often been a determining factor in pay decisions, but this approach fails to account for the diverse experiences and qualifications individuals bring to their roles. More critically, it has perpetuated biases, inadvertently anchoring new salaries to previous ones that may have been influenced by discrimination. This cycle has been particularly detrimental to women and people of color, who statistically earn less than their white male counterparts. The gap is even more pronounced for women of color, underscoring the urgency of implementing measures that promote fair compensation.

By mandating that Federal agencies set pay based on merit, qualifications, and the requirements of the position rather than past compensation, the OPM aims to dismantle one of the barriers to achieving pay equity. This rule is a bold move towards creating a more equitable and inclusive Federal workforce, where pay disparities no longer shadow one's career.

For an in-depth understanding of the OPM's final rule and its impact on pay equity, visit the Federal Register: Advancing Pay Equity in Governmentwide Pay Systems.

Tuesday, November 14, 2023

Understanding NY's New Legislation: More Time to File Discrimination Claims

New York State Assembly Bill A00501 represents a pivotal change in the state's approach to handling discrimination cases. Historically, the timeframe for raising claims under the New York State Human Rights Law was restricted - only 90 days for court proceedings against the government and a maximum of one year for bringing issues to the Division of Human Rights, with the sole exception of sexual harassment cases. The introduction of this bill, however, marks a significant shift, extending the statute of limitations to three years across the board for filings with the Division of Human Rights for claims against both private and public entities. This is biggest for education discrimination lawsuits that often were capped at a one year lookback period. 

Increased Access to Justice: The extension from one year to three years dramatically broadens the opportunity for individuals who have experienced discrimination to seek legal redress against the government. This is particularly crucial in cases where the complexity of the situation or the victims' circumstances might delay the decision to pursue legal action.

Benefit to School Discrimination Cases: The most notable impacts of this bill will be in the context of school systems. Previously, students or parents alleging discrimination had a mere year to initiate legal action. The extension to three years provides a more reasonable timeframe to prepare and pursue these important cases.

Click here to read Bill A00501.

Monday, October 30, 2023

AI Discrimination Being Regulated by President Biden's New Executive Order

On October 30th, 2023, President Biden issued an Executive Order (EO) addressing discrimination caused by artificial intelligence (AI), amongst other topics. 

The White House announced this EO in seeking to prevent AI from leading to and deepening discrimination, bias, and other issues in justice, healthcare, and housing. 

Now, agencies will be empowered to combat algorithmic discrimination, while enforcing existing authorities to protect anti-discrimination rights and safety. 

In summary, the Executive Order: 

  • Calls for clear guidelines to keep AI algorithms from being used to exacerbate discrimination by landlords, Federal benefits programs, and Federal contractors.
  • Tackles algorithmic discrimination through training, technical assistance, and coordinates with the Department of Justice and Federal civil rights offices for best practices to investigate and prosecute AI civil rights violations.
  • Ensures fairness throughout the criminal justice system by developing best practices for the use of AI in sentencing, parole and probation, pretrial release and detention, risk assessments, surveillance, crime forecasting and predictive policing, and forensic analysis.

The Biden Administration Blueprint for an AI Bill of Rights sets out steps those using AI can take to ensure fairness and equality. The steps include regularly checking for and addressing any biases in the design and use of AI systems, using diverse and representative data to avoid discrimination or unfair impacts, ensuring accessibility for people with disabilities during the design and development of AI systems, conducting tests to identify and address any disparities before and after the AI system is in use, providing clear oversight from organizations to ensure fairness, and conducting independent evaluations and sharing easy-to-understand reports, including test results and how any issues are being addressed, to ensure these protective measures are in place.

If companies fail to comply and use AI incorrectly to deepen discrimination and bias, this Executive Order will become the basis for discrimination lawsuits as a result of the incorrect use.

To learn more about the Executive Order click here. To read the Biden Administration Blueprint for an AI Bill of Rights click here

Wednesday, September 15, 2021

Vaccine Requirement for NYC Teachers Temporarily Restrained

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

  • "[B]odily integrity and the right to refuse medical treatment;"
  • A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
  • It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.