Anti-discrimination Rules Research Articles

Impact of Anti-Discrimination Legislation on Access to Gender-affirming Care: A Commercial Claims Analysis

ObjectivesTo examine the temporal relationship between the anti-discrimination rules of the Affordable Care Act, which took full effect in 2017, and the incidence of commercial claims for gender-affirming care, as well as cost sharing for these services. MethodsWe used a previously described algorithm to define a cohort of gender diverse adults in the MarketScan® Commercial Claims and Encounters Database. Claims for gender-affirming medical and surgical care were identified using International Classification of Diseases and Current Procedural Terminology codes plus pharmacy data; the annual incidence of surgical claims was calculated. Interrupted time series analyses were used to evaluate the temporal relationship between claims and anti-discrimination legislation. Claims data was also used to evaluate the patient contribution towards services. ResultsThere were 70,733 gender diverse adults included in the study and 36,702 (51.9%) of them filed claims for gender-affirming care. The incidence of persons with claims for gender-affirming surgery increased from 0.002% in 2009 to 0.012% in 2021. Interrupted time series analyses demonstrated a greater year-to-year increase for claims after anti-discrimination policy influences took effect. This change was greatest for transmasculine chest procedures. The median lifetime net payment for gender-affirming surgery was $12,429.10 and cost sharing was $1,019.20 (8.6%). ConclusionsCommercial claims for gender-affirming surgery increased temporally with respect to implementation of anti-discrimination legislation and cost-sharing was reasonably low. However, many gender diverse persons did not have claims for gender-affirming care, which may indicate continued out-of-pocket payment for these services.

How Social Discrimination and Housing (Un) Affordability Causes Gender-Expansive Homelessness and Policy Recommendations to Ensure that Everyone is Housed

Transgender, gender non-binary and gender-questioning people (gender-expansive) in the United States are more likely than their cisgender counterparts to experience housing precarity and homelessness. While this results from discrimination that limits our access to economic, social and political capital, it also results from a massive gap in the amount of affordable and adequate permanent housing available to all low-income members of our society.
 When people are inevitably unable to exceed these barriers to rent or own permanent housing, they rely on the emergency shelter system. Despite a diligent and attentive emergency shelter workforce as well as abundant evidence demonstrating that emergency housing can help stabilize mental health, physical health and financial challenges, there is a systemic lack of funding to keep up with the need for emergency shelter beds. Compounded with incomplete antidiscrimination rules, the emergency shelter system does not serve the needs of low-income, gender-expansive people.

Fair share of network costs and regulatory myopia: learning from net neutrality mistakes

ABSTRACT To boost the roll-out of the next generation telecommunications infrastructure, EU policy makers have advanced a proposal mandating some large online platforms to compensate network operators with a usage fee. Framed as a matter of large market players paying their fair share of contribution to telecommunications networks, the proposal would represent another unnecessary and harmful regulatory intervention. Indeed, the paper aims to demonstrate that the fair share debate is the poison fruit of a previous intrusive government initiative, that is, the net neutrality regulation. Furthermore, like net neutrality anti-discrimination rules, a fair share Big Tech tax would be a solution that wouldn’t work for a problem that doesn’t exist. Instead of continuing to interfere in market dynamics and private negotiations without any solid evidence of market failures, the EU should learn from past mistakes and acknowledge the limited scope for regulation in these dynamic markets.

Examining the effects of antidiscrimination laws on children in the foster care and adoption systems

AbstractHow are children affected when states prohibit child welfare agencies from discriminating against same‐sex couples who wish to foster or adopt? This question stands at the heart of a debate between governments that seek to impose such antidiscrimination requirements and child welfare agencies that challenge them on religious freedom grounds. Yet until now there has been no reliable evidence on whether and how antidiscrimination rules for these agencies impact children. We have conducted the first nationwide study of how child outcomes vary when states adopt such antidiscrimination rules for child welfare agencies. Analyzing 20 years of child welfare data (2000–2019), we estimate that state antidiscrimination rules both (1) modestly increase children's success at finding foster and permanent homes, and (2) greatly reduce the average time to place children in such homes. These effects vary among subgroups, such that children who are most likely to find a home are generally not affected by state antidiscrimination requirements, whereas children who are least likely to find a home (primarily older children and children with various disabilities) benefit substantially from antidiscrimination measures. We estimate that the effect of antidiscrimination rules is equivalent to 15,525 additional children finding permanent homes and 360,000 additional children finding foster homes, nationwide, over a period of 20 years. Overall, the project offers two key contributions: First, it provides empirical grounding for some of the most heated constitutional and political battles of the culture wars. Second, it advances empirical legal studies by bringing machine learning causal inference to law.

Disability Rights and Cross-National Disparities in Europe

Europeans with disabilities continue to face lack of opportunity in areas including education and employment. The extent of such disparities, and policies to address them, vary across the member states of the European Union. In 2000, an EU directive on employment equality set antidiscrimination rules, including requirements for employers to offer reasonable accommodations to disabled workers, that were subsequently adopted by member states. But a comparison of disability policy in France and Sweden shows that divergent approaches to labor rights remain in place, with France relying on quotas while Sweden offers job training programs.

Personalized Pricing Using Payment Data: Legality and Limits under European Union and Luxembourg Law

With the transposition of Directive (EU) 2015/2366 (PSD2) into Luxembourg law, payment service providers may have access to consumer payment data and share these data with third parties for the purposes of personalized pricing. In this article, the author analyses the legality and the limits of personalized pricing using payment data under European Union and Luxembourg law, focusing on consumer e-commerce markets. To this end, the author reviews economic studies on personalized pricing and consumer behavior and analyses the application of consumer protection, data protection, anti-discrimination and competition rules to the practice. Subsequently, the author investigates the limits imposed on personalized pricing in certain circumstances and proposes to adopt a data-driven approach to the regulation of the practice. Pricing, payment services, data protection, personal data, discrimination, algorithms, consumer protection, personalization, profiling, economics

Personalized Pricing Using Payment Data: Legality and Limits Under European Union and Luxembourg Law

With the transposition of Directive (EU) 2015/2366 (PSD2) into Luxembourg law, payment service providers may have access to consumer payment data and share these data with third parties for the purposes of personalized pricing. In this article, the author analyses the legality and the limits of personalized pricing using payment data under European Union and Luxembourg law, focusing on consumer e-commerce markets. To this end, the author reviews economic studies on personalized pricing and consumer behavior and analyses the application of consumer protection, data protection, anti-discrimination and competition rules to the practice. Subsequently, the author investigates the limits imposed on personalized pricing in certain circumstances and proposes to adopt a data-driven approach to the regulation of the practice.

Reckless Abandon: The Shadow of Model Rule 8.4(g) and a Path Forward

The ABA’s 2016 promulgation of Model Rule of Professional Conduct 8.4(g) has stoked an unnecessary culture war between the First Amendment and anti-discrimination. Thus far, the overarching trend of states has been to reject the rule in light of its potential infringement of lawyer First Amendment rights. Nevertheless the promulgation of the rule has led to the proliferation of legal scholarship that discards lawyer First Amendment rights in the shadow of defending Model Rule 8.4(g). This body of scholarship has dire potential consequences in diverse disciplinary and regulatory contexts and can be relied upon by state bars and judiciaries to punish lawyers without recourse to the First Amendment. By protecting lawyer speech, association, and petitioning, the First Amendment works to protect the lawyer’s role in the system of justice and cannot be discarded without undermining justice itself. Importantly, neither the ABA nor the states needs to cut down the First Amendment to appropriately curb lawyer discrimination and harassment. The recent redrafting and adoption of anti-discrimination rules by Maine and New Hampshire demonstrate that drafting such a rule can be done without jettisoning the First Amendment rights of lawyers. Rather than continuing to inflame the culture war by forcing people to take sides in a false dichotomy between the First Amendment and anti-discrimination, the ABA and defenders of Model Rule 8.4(g) should own the constitutional deficiencies of the rule and work to redraft a constitutionally sound rule. Taking such a course would work to actually curb harassment and discrimination because an appropriately narrowed rule would be far more likely to be adopted by states and to remain law after enactment without constitutional challenge.

Healthy Data Protection

Healthy Data Protection

Healthy Data Protection

Healthy Data Protection

Recruitment discrimination: how organizations use social power to circumvent laws and regulations

This study focuses on the relationships between social power and recruitment discrimination in organizations. We examine how individuals in different hierarchical positions in organizations in France intentionally discriminate in their recruitment practices through various means of circumventing internal and external anti-discrimination policies. Social power theory is used as a theoretical framework. Twenty-eight semi-structured in-depth interviews with individuals involved in recruitment in France were conducted, transcribed and analyzed. The findings reveal two distinct strategies used to intentionally discriminate in recruitment. One strategy concentrates on outsourcing recruitment actions. In doing so, organizations can effectively divert the responsibility of upholding anti-discrimination rules and regulations to an outside party. In this strategy, the use of unwritten codes and external pressure (or the threat thereof) are employed so that the outside recruitment agency understands that it is to follow the client’s wishes over the law, which relates to coercive power. The second strategy focuses on conducting covertly controlled in-house recruitment through the use of differential and legitimate power to overrule decisions, make use of vague and complex laws, or use costs and administrative difficulties as potential business reasons which may permit discrimination. We add to a growing body of research on recruitment discrimination and power.

The Regulation of Personalised Pricing in the Digital Era

The paper reviews the different legal tools to regulate the personalised pricing and provide some policy recommendations in that regard. Section 1 provides a definition of the personalsied prices and analyses to which extend firms are currently personalising their practices. Section 2 deals with the impacts of personalised pricing on firms’ profits and economic welfare. Section 3 reviews and compares the different legal tools which regulate at the EU level the personalised pricing: consumer protection, data protection, competition policy and anti-discrimination rules. Finally section 4 concludes with policy recommendations to improve the relevance and the effectiveness of those legal tools.

Paper Tigers: Or How Much Will Courts Protect Rights in a Financial Crisis?

Constitutions often contain rules that are meant to constrain the behavior of future governments during crises. Anti-discrimination rules and protections against expropriation of private property are classic examples. But when crisis hits, politicians are typically tempted by their short-run interests to try to bypass these rules. Enforcement of such constitutional constraints is therefore often placed in the hands of courts. But can courts serve as effective enforcement mechanisms in crisis times? We argue that courts, deciding in the middle of a crisis, will often be tempted to convert what are supposed to be hard rules into softer standards, effectively negating the constraining effect of these provisions on policymakers. While existing literature has argued that weak courts are particularly likely to engage in such behavior when confronted by strong executives, we argue that similar dynamics can also develop between strong courts and weak executives. Using examples from the recent sovereign debt crisis in the Euro area, we illustrate both logics.

Legal Wage Constraints and Capital Accumulation

This paper studies the ability of a fully competitive economy to recover from shocks in the long run in the presence of constraints involved by anti-discrimination rules by age, such as the requirement of ?equal pay for equal work? and the restriction against decreasing salaries as workers age. After an external shock in the presence of the second type of constraint, the economy recovers in the long run, while in the presence of the first type of constraint the economy never recovers. Unfortunately when both constraints are enforced the economy is totally unable to recover from an external shock. It stagnates. Therefore the convergence of the economy to a first-best steady state, irrespective of initial conditions or shocks, is compromised.

Race, Class, and Religion: Creaming and Cropping in Religious, Ethnic, and Cultural Charter Schools

This Article is devoted to one of the most fascinating contemporary developments in American public education—the phenomenal rise of religious, ethnic, and cultural charter schools. Religious, ethnic, and cultural charter schools are established by a religious or ethnic community with the aim of providing an education saturated with the respective values and culture of that community. Despite their growing prevalence and the significant legal challenges they pose, they have, thus far, not been given sufficient attention by legal scholars. What little discussion there is focuses solely on religious charter schools’ incompatibility with the First Amendment’s Establishment Clause. While the Establishment Clause challenge constitutes one central challenge to religious charter schools, another crucial aspect of their operation should be highlighted: their negative impact on the educational opportunities of children from racial minorities and lower socioeconomic classes. The Article argues that because of their unique characteristics, religious, ethnic, and cultural charter schools are especially likely to have negative effects on educational equality, and makes the case for legislative intervention in order to prevent this outcome. First, the Article exposes and explores the central detrimental effects of religious, ethnic, and cultural charter schools: racial and socioeconomic segregation, and the twin-processes of “creaming” and “cropping.” Then, based on a comprehensive critical survey of all charter legislation in the United States aimed at preventing segregation in the different states, the Article argues that charters’ antidiscrimination rules have the surprising effect of worsening inequality instead of alleviating it, and that the legislative measures aimed at ensuring integration cannot fully promote equality. Therefore, the Article supports a different strategy, adopted recently in Delaware, according to which religious and ethnic charter schools should be authorized only if they do not compromise the education of students in traditional public schools.

Racial Disparities in Welfare Dependence and Financial Independence: Links to Human Capital, Local Economy, and State Temporary Assistance for Needy Families Policies

ABSTRACTThis secondary data analysis examined racial disparities in associations betwen welfare dependence/financial independence and human capital, local economy, and state TANF policies. A sample of 6,737 parents was extracted from the public-use data set titled “National Longitudinal Survey of Youth.” Results showed that restrictive TANF policies reduced African Americans’ likelihood of welfare use and increased likelihood of their financial independence. Multinomial logistic results also showed that, among Hispanics, employment growth in neighboring counties promoted welfare use; whereas among Caucasians such growth promoted financial independence. County poverty increased (a) Caucasians’ likelihood of welfare use and (b) Hispanics’ likelihood of being working poor; it decreased Caucasians’ and African Americans’ likelihood of financial independence. Across ethnic groups, education reduced likelihood of welfare use and working poor status; across minority groups, education increased likelihood of financial independence, but among Caucasians it decreased such likelihood. Across ethnic groups, occupational skills hindered dependence and improved odds of employment (regardless of welfare or poverty status). This study concluded the studied TANF policies and job markets were not color-blind. Interventions this study implies include less-restrictive TANF policies, generous support services, TANF staff cultural-competence training, and antidiscrimination rules. Research investigating particular TANF policies’ and services’ effects by ethnicity might prove useful.

Net Bias and the Treatment of 'Mission-Critical' Bits

This paper assesses whether and how ISPs can offer service enhancements for particular types of traffic and customers without harming competition among content creators and distributors. The paper will use the recent paid peering agreement between Netflix and Comcast as a case study. The paper concludes that the Federal Communications Commission (“FCC”) largely lacks jurisdiction to establish anti-discrimination rules so that ISPs will be able to discriminate on price and quality of service with only questionable options for consumer protection. The paper also concludes that network bias does not always serve anticompetitive goals, nor does it always result in an unlevel competitive playing field. Because attempts at network bias may result in beneficial or harmful impacts on consumers, the paper suggests that a regulatory referee remains necessary to offer timely resolution of disputes about what constitutes fair network bias particularly for the carriage of bandwidth intensive video content.The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. While many consumers have become technology agnostic about which wireline or wireless medium provides service, they expect their video service providers to offer access anytime, anywhere, via any device and in any distribution format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a particular channel and in a single presentation format. Already some video content consumers have “cut the cord” and abandoned traditional video media, such as broadcast, satellite and cable television. A new generation of “cord nevers” will avoid monthly payments, instead opting for on-demand options. New distribution media have the ability to deliver “mission critical” bits requiring highly reliable conduits for the immediate (“real time”) transmission of video content and their instantaneous display. Internet Protocol Television (“IPTV”) and Over-the-Tope Television (“OTT”) can offer new options for consumers to view “must see” television, such as live sporting events, along with the downloading of files containing less time sensitive and less valuable content.This paper will examine any publicly available information about the Netflix-Comcast peering agreement with an eye toward assessing the balance of power between content providers and distributors on one hand and last mile, retail ISPs on the other hand. Because Netflix has agreed to pay Comcast a surcharge, the paper suggests that last mile connectivity now provides retail ISP with great negotiating leverage particularly when upstream ventures balk at paying surcharges for “better than best efforts” routing.

Contract Adaptation under Legal Constraints

This paper shows theoretically that automobile distribution contracts can be seen as efficient responses to the manufacturers’ obligation to offer non-discriminatory terms to dealers. This legal rule may prevent the parties from adapting contracts to new contingencies even when performance is ex post verifiable, as manufacturers may be unable to reach advantageous bargains with heterogeneous dealers using one-size-fits-all instruments. To circumvent the law and improve adaptation, manufacturers amend contracts informally, efficiently tailoring them to dealers’ characteristics. Moreover, to make future informal amendments self-enforcing, contracts assign authority to manufacturers ex ante when the dealers are strongly averse to change, so manufacturers may be tempted to renege, ex post, on the large bonuses necessary to make them accept the amendments voluntarily. The model can be extended to employment, franchising and, more generally, to all contracts linking a central party to a set of parties with inferior bargaining power, where anti-discrimination rules may apply.

Using GATT Flexibilities to Produce a WTO-Consistent Shift Toward More Climate-Friendly Consumption Patterns: An Analysis of GATT Article III from the Perspective of Greenhouse Gas Consumption Taxes

Taxes on goods according to the quantity of greenhouse gases or energy they contain are capable of addressing some of the most significant failings of the multilateral effort to mitigate global climate change. By focussing on consumption and including the greenhouse gases effectively embedded in imports, such measures tackle the mounting problem of so-called carbon leakage and afford developed countries committed to combating climate change an opportunity to influence a far greater portion of global greenhouse gas emissions than those that their action under the production-based developed country focussed UNFCCC regime address. However, by altering the consumption patterns of domestic and imported goods according to their embedded greenhouse gas content, such measures are subject to the constraints of international trade law. The present article undertakes an in-depth analysis of the GATT’s anti-discrimination rules in an effort to identify the policy space afforded to greenhouse gas consumption taxes, undoubtedly one of the most effective consumption-based climate change policies. The complex situation that would be created by a comprehensive greenhouse gas consumption tax programme reveals several important and heretofore under-analysed issues of WTO law including questions as to which products must be compared to establish de facto discrimination and the precise meaning of the “so as to afford protection” requirement for the rule in GATT article III: 2 second sentence. A balanced reading of the relevant WTO jurisprudence and how the GATT’s anti-discrimination rules would apply to greenhouse gas consumption taxes reveals several flexibilities for certain types of nonetheless effective environmental tax measures. It is accordingly submitted that, by crafting any unilateral climate change consumption-based policy around such flexibilities in the fundamental GATT anti-discrimination rules, WTO Members may comply with WTO law even without what would be somewhat dangerous reliance on the general exceptions of GATT article XX. If greenhouse gas consumption-based regulation indeed constitutes a potential way forward for the stalled international effort to mitigate climate change, this article shows that WTO law will not stand in the way of implementations of even some of the more potent forms of such regulation.

Phased Retirement and Workplace Flexibility for Older Adults

Phased retirement programs that allow older workers to reduce their hours and responsibilities and pursue more flexible work schedules could satisfy both the employee’s desire for flexibility and the employer’s need to maintain an experienced workforce. However, few employers have established formal programs, because they often complicate the provision of other benefits and might violate antidiscrimination rules. For example, federal laws limit retirement plan distributions to employees who are still working for the plan sponsor, which discourages phased retirement because few older workers can afford to reduce their work hours unless they can receive at least some retirement benefits. Many employers do not provide fringe benefits to part-time employees, and making exceptions for older workers could violate antidiscrimination rules. Federal laws requiring that benefits provided through tax-qualified plans be evenly distributed between highly compensated and lower-paid employees also complicate formal phased retirement programs. Reforming these policies could promote phased retirement.