Garden Centers and Gun Stores

Governor Wolf and Mayor Kenney have designated certain businesses essential. I agree with most of their choices, like for grocery stores, laundromats, and pharmacies. I agreed when Governor Wolf deemed gun stores non-essential. But of course the NRA (the front for the gun manufacturers) had to put their considerable money muscle on it post-haste and get those stores back open! Why do people need guns right now? “To protect all the toilet paper they’re hoarding.” Boom! Wish I’d come up with that gem, but I didn’t it. I’ll credit it “anonymous” since it disparages people with violent tendencies. Not giving you guys a target.

Garden centers have been deemed non-essential, but big box stores like Lowe’s and Home Depot can continue to sell ample GMO bio-cide laden plants and materials with no constraints. Meanwhile, industry-leading small businesses like Primex have been forced to shut down. And in an industry where at least 50% of revenue comes in April, May, and June, I worry that the small businesses will not recover.

If garden centers are non-essential, allow no stores to sell garden products.

Garden centers sell food-bearing plants! Apparently, food is only essential if someone else grows it, picks it, ships it, and puts it on a shelf for you.

If our primary intention is to prevent greater spread of COVID-19 by preventing non-essential activities, we should be doing a much better job of defining said activities. And not cave to rich companies who have too much power and money already.

“Must lift 50 pounds” is some straight up BS

{This is Part 1. Stay tuned for Part 2.}

Many ads for landscaping jobs include the requirement that applicants be able to lift 50 pounds. It seems an appropriate prima facie requirement for this sort of physical labor: shoveling dirt and mulch, carrying buckets of debris, and swinging leaf blowers around, for instance. But any time you see a job requirement that appears verbatim in ads from other companies in the same industry, it’s a good bet that you’ve discovered some legalese intended to cover the employer’s ass. 

50pounds1
Screenshot 16 Dec 2018

 Any guesses on the problem here? On average, men are stronger than women, right? So if a landscaper doesn’t hire a woman, and wants to prevent accusations of bias, they claim that employees must be strong and that she wasn’t strong enough because she couldn’t lift 50 pounds. “Must lift 50 pounds” is an example of an attempted “business necessity” defense for a potential sex (or disability) discrimination suit. That sort of defense worked well in the 70s, but it’s often rejected in more recent cases.

Establishing business necessity

A nurse for Saint Clare’s Health System became injured on the job and before returning to work, a functional capacity evaluation recommended that she should frequently lift no more than 16 pounds. She was fired because she couldn’t frequently lift 50 pounds and the employer claimed that was an essential function of the job. The nurse sued for wrongful termination. The crux of the case was whether her job truly required frequently lifting 50 pounds. The New Jersey Supreme Court ruled that it did not. The business necessity standard originated with a 1971 Supreme Court case involving Duke Power Company. The Court found that Duke’s employment requirements (e.g., including a high school diploma) discriminated against black employees and candidates andthat the hiring requirements were not directly related to the jobs. For instance, plenty of white workers didn’t have diplomas, but nonetheless held jobs that black workers couldn’t get. Cases like these begin with a plaintiff alleging discriminatory treatment against a protected class. They must prove disparate treatment (e.g., won’t hire a person in a wheel chair) and/or disparate impact (e.g., won’t employ people taller than 5’6” so fewer men are hired). Then the firm must prove that there is a bona fide occupational qualification (BFOQ) or business necessity. BFOQ applies in disparate treatment cases; a casting call for a toddler would have a BFOQ against hiring a 40-year old woman. Business necessity applies in disparate impact cases; an ESL class requires a teacher who can speak English (ipso facto), though this has a disparate impact on applicants whose country of origin is not English-speaking. 

50pounds2
Screenshot 16 Dec 2018

Another example of a disparate impact on women is from Eastern Airlines (remember them?) back in the late 1970s. They required flight attendants to take maternity leave when pregnancy began, and the pregnant women lost income and seniority as a result. Eastern’s defense cited the job duties to lift “up to 25 pounds regularly, 50 pounds occasionally” and to “lift out emergency window exits-weight 30 pounds each exit.” Eastern had to prove that this lifting requirement was necessary to the “safe and efficient operation of the business,” and there was no acceptable alternative to the policy that could accomplish the operation just as well (without causing the disparate impact). They were only partly successful. The ruling tied leave requirements to pregnancy stage and doctor’s permission, allowing women full employment through the 13th week and prohibiting flight duty after the 28th.

In 2016 Gordon Food Service saw the writing on the wall. Rather than take their feeble business necessity defense to court, they agreed to pay $1.85 million to 926 qualified female candidates and hire 37 of those candidates. See, GFS regularly eliminated women applicants through the use of a strength test measuring “upper and lower body resistance” but that test was found to be more stringent than the actual job requirements.

Coming in part 2:

What about business necessity in landscaping?
How much force is required to push a lawnmower up a ramp?
and
Can you jump off the ground? Congratulations, you can lift 50 pounds. 

Bibliography

Burwell v. Eastern Air Lines
Important Reminders for Accommodation
GFS ordered to stop strength test

Crafting responses to “That wasn’t sexist.”

I had a nice meeting with a nice man who volunteers his time as a management consultant. At one point he asked about my accountant, referring to my accountant as “he.” I responded “she….” and he had to interrupt me to state “that wasn’t sexist.”

As we ladies so often do, I just blinked and skated on by. Dis shit happen all the time.

How to respond?

  1. Isn’t it great how simply saying “that wasn’t sexist” makes it not sexist? It’s like magic.
  2. You omitted 2 syllables but had to interrupt me with 5. Which is more efficient, Mr Management Consultant?
  3. Yes it was.
  4. Does saying that actually work?
  5. Let’s take a poll and find out.
  6. You appear pretty old, you’ll probably die soon. We don’t need to convince you, we just need to wait.

I am not an Associate Professor.

You asked, “I see you are an Associate Professor, were you promoted with tenure?” The answer is yes, of course. But I am not an Associate Professor.

What are the important parts of this story? That some of my students waited after class to walk me to my car to make sure I’d be safe from some other students? That one of my faculty stormed into my office, threw things across my desk, towered over me, yelling and swearing? And when I told my in-department mentor he said, “that’s not threatening”? That when I inadvertently passed someone with an ASSA badge I ran home and stayed there for the next week?

With unanimous support from my department, I was promoted to Associate with tenure in 2008. (Fun fact: I was the first woman they had tenured in many years.) I spent my sabbatical at Cornell and upon my return became Interim Chair. Much went smoothly, but I experienced a series of abusive and harassing events from a handful of administrators, faculty, and students. In all cases, administrative responses were feeble. A university lawyer told me he believed I was the victim of sex discrimination, but nothing came of that finding. A dean advised me not to file a grievance because he would “take care of it.” A departmental committee pledged to write a letter of reprimand, but later “changed their minds.” The workplace became unsafe for me. But I was the breadwinner and my identity was my career—I was a labor economist, after all. The situation was untenable.

Two colleagues working in the office

I was diagnosed with acute stress disorder, then post-traumatic stress disorder with severe suicidal depression. I began getting my affairs in order. My husband lived in another state (two-body problem), but when he realized that I was preparing to kill myself, he begged me to leave the university. He encouraged me to look into a formal leave of absence, and the diversity office directed me to a medical leave. The university lawyer told me that if my doctors dictated I was unable to return, I would be eligible for disability benefits.

I went on medical leave and applied for disability. Despite the unanimous diagnoses of four doctors and documentation of inpatient treatment, I was denied. The ruling admonished me for not addressing personnel problems through formal university HR procedures. They determined that I simply left my position so I could live with my husband, and that I wasn’t really suicidal because I had “no documented attempts.”

I have since been in consistent treatment for PTSD and severe depression. Five years after leaving the university I am not yet cleared to return to academic work. I was [in-]“voluntarily resigned” in 2016.

Why I don’t do Uber

I know a lot of people love the convenience of ride-sharing ride-sourcing services (RSs). I just can’t go there. I keep using taxis when I need them. And I’ve got my reasons.

It’s clear that these RSs have cut into the taxi market. Who drives taxis? Lots of immigrant (often nonwhite) men. And the municipal revenue that is generated from taxi licenses is also cut as fewer licenses are sought.

RS drivers obviously provide a substitute for taxi trips, but they are not subject to the same regulations and insurance requirements. If someone pays you to drive them somewhere, that’s a commercial use. That’s not ‘ride-sharing.’ And it definitely isn’t sharing if you wouldn’t have even been on the road otherwise.

If RS users have substituted away from taxis because they want a cheaper alternative, that has labor consequences. Lower prices almost always come with lower wages. So that means lower wages for immigrant (often nonwhite) men due to declining taxi demand. What about RS drivers? The overwhelming majority do this as a part-time side job. I certainly don’t begrudge anyone seeking more income. But is this the best way?

“Female cabbies are rare in Philly, but ride-sharing [sic] apps have opened new avenues for women drivers.” (source) Of course! Another low-paid job has sprung up; it’s perfect for the ladies. And they get to do more work, by providing emotional labor too. “When I get female customers now, especially late at night, they’re so thankful,” says Lyft driver Rasheedah Ahmad. (ibid) I bet they are.

And then there are the environmental impacts. I can’t tell you how often I am walking or biking around center city and a car pulls over to the curb in front of me, either to pick up or drop off a passenger. It’s obviously an RS because there’s one driver in the front and one passenger in the back. And they’re doodling away on their phones, presumably in the RS app.

What is the ‘next best alternative’? What would be happening if the RS didn’t exist?

The car companies, unsurprisingly, are bullish on their environmental impact. “By using Lyft to share rides, passengers are helping to reduce the carbon footprint left by our country’s dominant mode of transportation – driving alone,” said Tommy Hayes, the transportation policy manager at Lyft, in an emailed statement. (source)

Um, really? Sure, there are two people in the car during the paid trip, but the driver had to get to the passenger. And if the passenger gets another RS to go home, the driver again has to get to the passenger. That is more driving, not less.

And what would the passengers do if they couldn’t use a RS?

ridesourcingpiechart
Source: Shaheen and Chan (2015)

Eight percent of people would have stayed home. And a full 33% would have taken transit. 33%!!! And 39% would have taken a taxi. So while it is true that RSs are biting into the taxi market, that is not the majority of the effect.

And I love this quote:

Uber emphasizes that it is helping to reduce the need for personal car ownership. “Uber helps use today’s existing infrastructure more efficiently at no extra cost by getting more butts into the backseats of fewer cars,” a company spokesperson says. (ibid)

Huh? Where is the evidence to support that claim? You see more butts, eh?

What about all the RS drivers who are out driving SOLELY to take passengers to and fro? They are not ride-SHARING. They are ride-SELLING. I would rather they stay home and find another way to make money.

I don’t want to give myself an excuse to eschew public transit or not ride my bike. I don’t want to support a(nother) market that underpays women for more work. I don’t want to take work away from immigrant men. And I don’t want to support more people driving when they don’t need to. So you’ll see me on my Fuji or the 11 trolley. Maybe you’ll even see me in a yellow cab, but only if absolutely necessary.