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Costs vs. Compensation: Legal and Policy Recommendations for Addressing Workplace Sexual Harassment
Get PDFThe recent #MeToo Movement has unequivocally shown that workplace sexual harassment is a widespread issue. Since December 2017, workers around the globe have shared personal stories of sexual harassment, as well as the tolls it caused on their health and careers. In this Article, we review extant interdisciplinary research on the negative consequences of sexual harassment for workers’ physical, psychological, and behavioral health; their career and earnings trajectories; and for broader organizational culture. Understanding these costs sheds light on how best to reduce and respond to workplace sexual harassment. We offer three suggestions for law and policy: (1) expand legal protection against sexual harassment to all workers, (2) increase award damages, and (3) update internal sexual harassment policies and procedures to reflect best practices. We conclude by arguing that sexual harassment is an urgent workplace issue that must be addressed in contemporary workplaces
Protecting the Rights of People with Disabilities
Get PDFOne in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of under-served racial and ethnic groups with disabilities experience greater disparities in health status and access to health care (Yee et al., 2016). These longstanding inequities are compounded by the COVID-19 pandemic and by governmental and private responses that discriminate on the basis of disability. Legal protections of people with disabilities are governed by two key federal laws: the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (“Section 504” or “Rehabilitation Act”). Together, these laws ensure that people with disabilities have equal opportunities in employment, in state and local services and programs, and to goods and services. The broad reach of these laws impacts a host of issues raised by the COVID-19 pandemic. Enforcing agencies have provided COVID-19-specific guidance on the application of the laws in health care and in employment. However, gaps in protections as well as widespread lack of knowledge of and noncompliance with the ADA and the Rehabilitation Act limit their impact. Recommendations include: continued enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.
This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association
The Due Process Protections Act: Is the Juice Worth the Squeeze?
Get PDFPresident Trump signed the Due Process Protections Act into law on October 21, 2020. Allyson Benko discusses how Federal judges must now remind prosecutors on the record of their obligation under Brady v. Maryland to disclose exculpatory evidence to the defense in every criminal case.https://scholarship.law.slu.edu/lawjournalonline/1051/thumbnail.jp
Facebookʼs Latest Attempt To Address Vaccine Misinformation — And Why Itʼs Not Enough
Get PDFOn October 13, 2020 Facebook announced the adoption of a series of measures to promote vaccine trust “while prohibiting ads with misinformation that could harm public health efforts.” In the post written by Kang-Xing Jin (head of health) and Rob Leathern (director of product management), the company explained that the new measures were designed with an emphasis on encouraging widespread use of this yearʼs flu vaccine, as well as in anticipation of potential COVID-19 vaccines becoming available in the near future.
The changes focus mainly on the establishment of a multiprong informational campaign about the seasonal flu vaccine, which includes directing users to vaccine-related content from public health organizations and providing sharable vaccination reminders. Moreover, Facebook announced that it was adopting a policy of rejecting ads explicitly “discouraging people from getting vaccinated.” Some vaccine-related ads, specifically those advocating “for or against legislation or government policies around vaccines—including a COVID-19 vaccine—are still allowed.” These types of ads have to be authorized by Facebook and display a label indicating who paid for the ad.
Facebookʼs newest set of vaccine-specific measures constitutes an improvement over the status quo, especially by providing an educational campaign tailored to an ongoing seasonal event. However, it leaves the problem of the circulation of vaccine misinformation—the dissemination of inaccurate content—largely untouched and does virtually nothing to remove the well-established sources of vaccine misinformation within the Facebook network. While Facebook is not the only social media platform where levels of vaccine misinformation have escalated dramatically in recent years, it constitutes the most popular social media venue for the sharing and consumption of anti-vaccine and anti-vaccination content. This post explores the vaccine misinformation landscape against which Facebook announced its new policy and explains why this policy is insufficient as a meaningful deterrent to the spread of vaccine misinformation
State and Local Workers’ Rights Innovations: New Players, New Laws, New Methods of Enforcement
Get PDFThis article describes and analyzes the considerable surge in state and local government activity protecting workers in recent years. It situates this growth in state and local action as a response to degradation of working conditions resulting from longstanding economic, political, and legal trends, and the resulting worker organizing to counter those trends. It also positions this burgeoning activity as a reaction to challenges at the federal level, including rollbacks and worker-hostile policies by the Trump administration, as well as gridlock in Congress.
The article frames the uptick in state and local worker protection activity within three specific categories: new players enforcing labor standards laws and basic workplace protections; new laws; and new methods of enforcement. New players include state attorneys general, many of whom have significantly increased their workers’ rights dockets of late, and several of whom have established new dedicated units; municipalities, a number of which have passed their own local worker protection laws and several of which have established local agencies dedicated to workers’ rights; and criminal prosecutors, who are increasingly bringing charges in relation to wage theft and other employer workplace crimes. New laws at the state and local level span a range of issues: minimum wage-setting, overtime coverage, collective bargaining, paid sick days, paid family leave, fair workweeks, employer retaliation, workplace safety, and more. New methods of enforcement include utilizing a strategic enforcement approach (instead of a more traditional reactive model); partnering with worker and community organizations; creating licensing consequences for violators; and publicizing violations, among others.
Finally, the article urges continued focus on worker protection at the state and local level even in light of the new, more worker-friendly federal administration for several reasons, including the longstanding “laboratory of experimentation” role of states (and now also localities); states’ and cities’ closeness to constituents and ability to respond to respond to local conditions; the scale of the crisis facing workers today and need for an “all hands on deck” approach; the number of workers who cannot file lawsuits because of forced arbitration, necessitating more government enforcement at all levels; potentially more promising state courts, in light of the increasingly conservative composition of the federal judiciary; and, given political fluctuations over time, the hedging value of ensuring that multiple levels of government focus on protecting working people
An Epic Fail
Get PDFAll at once, the U.S. found itself embattled with the threat of COVID-19, the new normal of social distancing, and the perennial scourge of racial injustice. While simultaneously battling those ills, the class of 2020 law graduates found themselves also contending with inflexible bar licensing policies that placed at risk their health, safety, and careers. During a global health pandemic, bar licensing authorities made the bar exam a moving target riddled with uncertainty and last-minute cancellations. This costly and unsettling uncertainty surrounding the bar exam administration was unnecessary because multiple alternatives were available to safely license new attorneys. A ball was dropped, and bar examiners at the state and national levels failed epically at an opportunity to be adaptive, decisive, and transparent, to the detriment of a class new lawyers and the public they will serve. The dogged insistence on status quo that led to the bar exam chaos of 2020, has placed the method and purpose of bar examination under national scrutiny. This Article offers a critical analysis of the systemic failure of bar licensure authorities to respond adaptively to crisis; explores alternative processes to measure minimal competency; and offers insight about the institutional mindset that has dominated our perception of the bar exam. An entire class of bar takers was held captive to conventional thinking at a time that called for compassion and innovation. Any failures on this bar exam are ours, not theirs
COVID-19 and the Conundrum of Mask Requirements
Get PDFAs states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This essay provides an overview of the legal and policy landscape and focuses on the potential for policing against African Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates
The Role of Law and Policy in Achieving Healthy People\u27s Disability and Health Goals Around Access to Health Care, Activities Promoting Health and Wellness, Independent Living and Participation, and Collecting Data in the United States
Get PDFEnsuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to inform and support efforts to reach these and other disability and health objectives. This report also features specific, real-world examples of legal community strategies or interventions, or Laws and Policies in Action, to illustrate how law and policy is used to make progress on each of these objectives