Federal Anti-discrimination Laws Research Articles

Challenging Disability Discrimination in the Clinical Use of PDMP Algorithms.

State prescription drug monitoring programs (PDMPs) use proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder (SUD). Clinical overreliance on PDMP algorithm-generated information and risk scores motivates clinicians to refuse to treat-or to inappropriately treat-vulnerable people based on actual, perceived, or past SUDs, chronic pain conditions, or other disabilities. This essay provides a framework for challenging PDMP algorithmic discrimination as disability discrimination under federal antidiscrimination laws, including a new proposed rule interpreting section 1557 of the Affordable Care Act.

Pulse Oximeters and Violation of Federal Antidiscrimination Law

This Viewpoint discusses how some pulse oximeters can provide incorrect oxygen saturation data for dark-skinned patients compared with light-skinned patients, describes the reasons that biased oximeters remained in use, and highlights why a rule recently proposed by the US Department of Health and Human Services may bring about needed change in the use of pulse oximetry for patients with dark skin.

Equity-Advancing Practices at Public Transit Agencies in the United States

Consistent with federal anti-discrimination and environmental justice law and guidance, public transportation agencies must evaluate the extent to which their decisions benefit and burden different people and groups and they must also conduct public engagement during decision-making. Assessing benefits and burdens and facilitating engagement are critically important for achieving transportation equity. In practice, quantitative analyses of plan impacts can be used to highlight and mitigate disparate benefits and burdens, but analyses are often conducted after major decisions have already been made and agencies have substantial flexibility in data collection and analysis. Public engagement can also affect equity-related outcomes, but agencies still rely heavily on public meetings and one-way information dissemination approaches that alienate potential participants. Considering the shortcomings associated with quantitative analysis and traditional public engagement as well as the open-ended nature of existing regulatory guidance, there is a need to understand the broad range of approaches that public transit agencies use to pursue equity-related goals. In this review of practice, we summarize six measures that agencies are using to advance transportation equity. Each measure is described using information gleaned from semi-structured interviews and primary source materials. We also identify challenges and shortcomings inherent in each approach using perspectives from the academic literature. The results will be useful for practitioners seeking equitable public transit systems and desiring to go beyond the standard approaches suggested by federal law and guidance.

Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection

The Supreme Court’s landmark decision in Bostock v. Clayton County is undoubtedly an influential ruling affecting future LGBTQ rights projects. However, the Court’s ability to produce social and political change through legally formalistic decisions relating to highly contentious social issues is routinely undercut by public backlash. In the context of LGBTQ legal advocacy, social and political backlash against the Court’s ruling is perpetuated further when the Court negligently ignores the lived experiences of LGBTQ litigants arguing before the bench. Despite the recent history of pro-LGBTQ Supreme Court decisions, sexual minorities are still constrained to the margins of society and viewed as less than—or sometimes not even considered at all. As such, this Article provides strong evidence that courts eliminating symbolic manifestations of oppression through antidiscrimination law cannot be seen as a permanent pronouncement of society’s commitment to ending subordination of sexual minorities. This is especially true, as was the case in Bostock, when the Court fails to clarify the intersection of religious liberty and federal antidiscrimination law. As a result of the Bostock Court neglecting the lived experiences of LGBTQ employees, this Article suggests that Bostock served as a catalyst to a period of religious retrenchment of LGBTQ rights. In forming a countervailing force to religious retrenchment for future LGBTQ rights projects, this Article sets forth and applies a three-prong theoretical framework to nullify the threats of religious retrenchment on substantive equality.

Bostock was Bogus: Textualism, Pluralism, and Title VII

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

The Role for States in Addressing Health Plans’ Use of 'Cosmetic' and 'Medically Unnecessary' Care Exclusions to Deny Gender-Affirming Care

In recent years, exclusion of gender-affirming care from employer-sponsored health plans — an issue of significant concern for the transgender community — has been in retreat nationwide, but only to a point. The Supreme Court’s 2020 decision in Bostock v. Clayton County, which recognized that discrimination against transgender people is a form of sex discrimination barred by Title VII of the Civil Rights Act of 1964, was no doubt a landmark precedent on a number of fronts, including healthcare discrimination. But the reality is that one of the greatest challenges facing transgender people in the healthcare domain — insurers’ persistence in deeming gender-affirming care to be “cosmetic” and/or “medically unnecessary” — is not the kind of discrimination that current federal law is equipped to address. When couched in terms of “cosmetic”-ness or “medical necessity,” these denials of healthcare coverage appear far less likely to face scrutiny under Bostock’s interpretation of federal antidiscrimination law — especially in light of the current composition of the federal bench. For that reason, state-level protections are likely to emerge as a necessary component of efforts to make gender-affirming healthcare fully available to transgender people. This Essay reports on the current status of transgender healthcare nationally and, with reference to efforts underway in various states, posits a role — albeit an imperfect one, owing to federal preemption concerns — for state legislators and regulators in ensuring that notions of what is “cosmetic” or “medically unnecessary” do not exclude transgender people from the care that the medically community overwhelmingly believes they should receive.

Using Public Interest Litigation to Achieve Systemic Change for People with a Disability

For over 40 years the suite of federal, state and territory anti-discrimination laws have served as Australia’s primary human rights documents. These laws prohibit employers, educational institutio...

NAFTA 2.0 and LGBTQ Employment Discrimination

Because federal law does not expressly prohibit employment discrimination on the basis of sexual orientation or gender identity, LGBTQ Americans were thrilled to learn that a preliminary draft of the United States–Mexico–Canada Agreement (USMCA) included a provision (the Provision) requiring each nation to enact LGBTQ‐inclusive nondiscrimination laws. That excitement promptly turned to despair, however, after the Trump administration insisted on the addition of a footnote (the Footnote) designed to exempt the United States from the Provision. To date, the Footnote has been derided by scholars and trade experts alike as a transparent attempt to evade the Provision's LGBTQ‐inclusive mandate. Yet, by focusing only on what the USMCA does not do, these analyses overlook what the agreement does do, even if unintended, to benefit LGBTQ Americans. This article provides the first comprehensive analysis of the USMCA's implications for federal antidiscrimination law and demonstrates that—regardless of how the Supreme Court rules in a trio of LGBTQ employment cases—the Footnote actually stands to help, not hinder, the cause of LGBTQ equality.

Enabling the Best Interests Factors

In February 2020, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities. The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.

Family violence and the workplace: Recent developments in Australian law

This article examines the workplace rights and anti-discrimination protections available for Australian workers who experience family violence. Despite the significance of family violence as a workplace issue, federal anti-discrimination law and, until recently, the Fair Work Act 2009 (Cth) have failed to provide adequate protection to such employees. The author considers two recent developments in Australian law which may provide more comprehensive rights and protections for family violence victims. Namely, the introduction of domestic violence leave by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth) and the family violence attribute under the ACT Discrimination Act 1991.

Discrimination as a Business Policy: The Misuse and Abuse of Corporate Social Responsibility Programs

This article examines legal issues associated with so-called “Corporate Responsibility Programs” (CSR), which promote the interests of third parties over those of a public company's shareholders. In many ways, the rise of CSR programs can be seen as a logical interim development to help boards of directors balance the need to respond to aggrieved constituencies, on the one hand, with the relative paucity of tools meant to deal with such issues available under corporation statutes, on the other hand. Those who promote CSR programs, however, have myriad agendas, some as benign as ensuring that companies are responsible for pollution emitted into local communities and others acting as a facade for political campaigns that punish targeted groups or entities. In the worst of cases, activists have used CSR programs as cover to promulgate discriminatory campaigns of racial and national origin discrimination. Beginning in 2010, in response to the rise of CSR programs, a number of American states formally addressed the need for a new corporate form that tempered shareholder primacy and elevated corporate stakeholder interests by creating a new statutory corporate form that allows shareholders to adopt non-financial objectives for the corporation (these entities are known as “Benefit Corporations”). A majority of American states now have some form of Benefit Corporation statute. The question of how an American corporation can adopt and abide by a CSR program containing guidelines that conflict with local and federal American laws is one that has received minimal scholarly attention to this point. This article will provide an overview of the shareholder primacy norm and competing theories of the corporation followed by a brief history of CSR programs in Europe and the United States. This article with then examine whether CSR programs are viable under state corporation law generally and specifically under Delaware corporation law, where many publicly traded corporations are incorporated and where a strong Benefit Corporation statute exists. Next, this article will examine how CSR programs have been used to compel corporations into adopting discriminatory policies and how those policies constitute violations of state and federal anti-discrimination laws, putting companies that adopt such CSR programs at risk of legal sanction. Finally, this article will examine the legal risks faced by a corporation that adopts a CSR program that incorporates unlawful discrimination.

Networked Employment Discrimination

Employers often struggle to assess qualified applicants, particularly in contexts where they receive hundreds of applications for job openings. In an effort to increase efficiency and improve the process, many have begun employing new tools to sift through these applications, looking for signals that a candidate is “the best fit.” Some companies use tools that offer algorithmic assessments of workforce data to identify the variables that lead to stronger employee performance, or to high employee attrition rates, while others turn to third party ranking services to identify the top applicants in a labor pool. Still others eschew automated systems, but rely heavily on publicly available data to assess candidates beyond their applications. For example, some HR managers turn to LinkedIn to determine if a candidate knows other employees or to identify additional information about them or their networks. Although most companies do not intentionally engage in discriminatory hiring practices (particularly on the basis of protected classes), their reliance on automated systems, algorithms, and existing networks systematically benefits some at the expense of others, often without employers even recognizing the biases of such mechanisms. The intersection of hiring practices and the Big Data phenomenon has not produced inherently new challenges. While this paper addresses issues of privacy, fairness, transparency, accuracy, and inequality under the rubric of discrimination, it does not pivot solely around the legal definitions of discrimination under current federal anti-discrimination law. Rather, it describes a number of areas where issues of inherent bias intersect with, or come into conflict with, socio-cultural notions of fairness.

The collective dimension of federal anti-discrimination proceedings in Australia

The burden of pursuing federal anti-discrimination proceedings in Australia is essentially an individual one, with little regard to the collective dimension of such claims. This is reflected in the narrow approach to standing for organizations with established interests in areas affected by such claims, the scarcity of representative proceedings for breaches of federal anti-discrimination law legislation, and the lack of capacity on the part of the national human rights agency to pursue test case litigation or provide advice or support to individual complainants. In exploring these three key areas, this article highlights the shortcomings of the Australian regulatory approach and its failure to provide adequate mechanisms for redress that recognize the broader community concern in ensuring that discriminatory practices are identified and addressed.

Don’t be so hateful: The insufficiency of anti-discrimination and hate crime laws in improving trans well-being

The question of judicial protection of trans people has come to the fore in recent years, culminating in Bill C-16 which added gender identity and gender expression to the federal anti-discrimination and hate crime laws. In this article, the author contests the notion that anti-discrimination and hate crime laws are effective in mitigating anti-trans harassment, discrimination, and violence. Suggesting that the model of anti-trans acts which underlies anti-discrimination and hate crime laws is erroneous, the author argues that the law’s impact on trans well-being will be modest and that a careful analysis of anti-trans attitudes enables us to identify a number of more effective governmental avenues toward trans emancipation.

When Courts Run Amuck: A Book Review of Unequal

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason for the courts’ frequent dismissal of these claims. Instead, the book seeks to expose how these seemingly erroneous dismissals occur and suggest avenues for reforming these legal standards. This Review begins by describing the book’s main arguments. Throughout this description, the Review supports and at times challenges some of the authors’ positions. In particular, this Review examines arguments regarding the role politics play in the courts’ decisionmaking in employment discrimination cases. It also explores the ironic result that the courts’ approaches to these cases actually may lead to more discrimination in the workplace and therefore more cases. Finally, this Review describes the authors’ suggestions for reform and proposes that changes in this area of the law are best accomplished by the entities that created the problems—the courts.

The Equal Employment Opportunity Omission

On June 2, 1965, under a mandate established by Title VII of the Civil Rights Act of 1964, the U.S. Congress created the Equal Employment Opportunity Commission (EEOC) to enforce federal anti-discrimination laws related to employment. The expectation was that African Americans would be prime beneficiaries of the EEOC. There was no assumption that the EEOC, on its own, could reverse deep-rooted employment discrimination against blacks. But in the late 1960s there was optimism that, in combination with equal educational opportunity and the strong demand for unionized workers in the well-paid manufacturing jobs that marked the post-World War II decades, the EEOC could help to ensure that an ever-increasing number of blacks would ascend to the American middle class. African Americans as a group are better educated than they were in the 1960s, and, as discriminatory norms and practices have lessened, large numbers of college-educated blacks have experienced upward employment mobility into professional, technical, and administrative occupations. But the promise of a large-scale ascendancy of blacks to middle-class status, characterized by secure and well-paid employment, has not been fulfilled. Our basic thesis is that, in combination with the institutions of racism which remain widespread in American society, the erosion of secure and well-paid employment opportunities is a major reason for the persistence since the 1980s of African Americans as disproportionately disadvantaged. Our contribution to the larger debate on the economics of race is to focus on the role of corporate resource allocation as the prime determinant of the quantity and quality of employment opportunities in the economy. The decline of middle-class employment opportunities has adversely affected the majority of the U.S. labor force of all races, ethnicities, and genders. African Americans, however, have been more vulnerable than other demographic groups to this decline. U.S. institutions of corporate governance vest power over major resource-allocation decisions in the hands of senior executives, supported by their hand-picked corporate boards. Given the enormous size of the major business corporations and their centrality to economic activity, the resource-allocation decisions made by senior executives of major U.S. corporations profoundly influence the operation and performance of the economy as a whole—including the availability, or not, of secure and well-paid employment opportunities. The failure to include an analysis of corporate resource allocation and how it has changed over the past half century in the policy debate on income inequality is what we call the “equal employment opportunity omission.”

Running from the Gender Police: Reconceptualizing Gender to Ensure Protection for Non-Binary People

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how friendly the Court is to queer rights issues. I argue that a fundamental right to selfidentification would require courts to give the same wide degree of deference to a plaintiff’s self-identification of their gender as they do to a plaintiff’s self-identification of their religious beliefs. This legal framework would prohibit courts from policing the gender of the parties before them and allow them only to assess whether the plaintiff’s gender-related beliefs are sincerely held. Such a legal framework would allow non-binary plaintiffs to bring claims under federal anti-discrimination law without worrying that the Court will refuse to recognize their gender as valid.

Barking and Biting: The Equal Opportunity Commission as an Enforcement Agency

Federal anti-discrimination law centres upon the individual who has experienced unlawful discrimination. To address this discrimination, the individual is required to lodge a complaint at the Australian Human Rights Commission (‘AHRC’), which will attempt to resolve the complaint using Alternative Dispute Resolution (‘ADR’). While institutions in other areas, like competition law and occupational health and safety, have a broad range of powers to enforce compliance, successive governments have chosen not to invest the AHRC with equivalent powers. Quite a different model has operated in Britain for four decades. This article analyses the role of the AHRC by comparing it to its British equivalents and examining these institutions according to the ‘enforcement pyramid’ for regulating equal opportunity, which British academics Bob Hepple, Mary Coussey and Tufyal Choudhury have developed. According to these regulatory theorists, to tackle discrimination effectively, equality commissions need to be able to follow up their loud ‘bark’ with a punitive ‘bite’ if necessary. The article concludes by identifying what the experience in both countries reveals about the enforcement of antidiscrimination laws by statutory institutions.

Families are More Popular than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws

Workers do not exist in a vacuum; they have families and medical needs. Many employees struggle with caring for themselves and loved ones within the rigid confines of the work week. Congress passed the Family and Medical Leave Act of 1993 (FMLA) in order to ameliorate this problem, but the statute has proven to be an incomplete solution. Recently, federal legislators have proposed laws to enhance the existing leave rights under the FMLA. Similarly, a number of states and municipalities have passed laws to expand employees' ability to take leave from work in order to care for family or medical issues. Given the momentum and interest in legal reform, it is appropriate to ask whether expanded leave laws will be effective in changing the lives of actual workers. More specifically, will the new leave laws survive the inevitable encounter with a judiciary that has a markedly poor history of enforcement in other employment law contexts. In the clearest example of this judicial resistance, claims brought under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 (Title VII) have a distinctly low success rate in comparison to other civil actions. In contrast, claims brought under the FMLA fare significantly better, with nearly double the Title VII rate of successful outcomes for plaintiffs. This Article uses three theoretical frameworks, political, psychological, and institutional to evaluate and understand the greater success of leave laws. Political science theories suggest that the FMLA is more successful because the statute is less controversial and inspires a weaker ideological response in judges than anti-discrimination laws. The theory of cultural cognition suggests that the FMLA is more successful because it does not trigger the strong unconscious resistance associated with discrimination claims. Finally, theories of institutional inequality indicate that the FMLA is more successful because it can undermine the traditional norms of the ideal worker in ways that the anti-discrimination laws cannot. Overall, all three theories point to a consistent explanation for why FMLA claims have better outcomes. Namely, leave laws such as the FMLA have many of the characteristics of a neutral benefit statute, in contrast to anti-discrimination laws' focus on protected classes such as race or gender. Ultimately, understanding what differentiates the outcomes between these related statutes will shed light on judicial decision-making in employment law and will suggest avenues for advocates seeking to change women's work life for the better.

Getting to Deuce: Professional Tennis and the Need for Expanding Coverage of Federal Antidiscrimination Laws

In 2007, Wimbledon became the last Grand Slam tournament to equalize prize money payouts for male and female players. But research shows the persistence of a gender pay gap in tennis where women earn less than men. If this is the case, why haven’t women filed suit against their employers for unlawful sex discrimination? The answer is simple: because federal statutes prohibiting discrimination on the basis of sex — such as Title VII and the Equal Pay Act — only apply to employees. Tennis players are independent contractors. The distinction between employees and independent contractors is perhaps the most litigated issue in employment law. Federal statutes define the term “employee” circularly and courts have applied the common law agency test, which is useful for adjudicating tort liability but not employment discrimination. The underinclusiveness of current antidiscrimination laws is especially problematic for high-paid independent contractors, like professional tennis players, because unequal treatment can mean the difference between hundreds of thousands of dollars in earnings. To effectuate the broad remedial purposes of the antidiscrimination laws, Congress and the courts should expand the laws' coverage. This Note takes a novel approach by using a socio-legal framework, with tennis as a case study, to argue that some independent contractors should be protected under federal law. The most practical and effective approach for expanding coverage is returning to the economic realities test. Courts have had no trouble applying the test in employment discrimination cases in the past, and it would enable the federal statutes to protect independent contractors who do not have employees, have unequal bargaining power, and exercise relatively little control over the manner in which they perform their work.