The Pregnancy Discrimination Act of 1978

How the Law Protects Pregnant Women at Work

Working pregnant woman

Source: The Balance Career

BY DAWN ROSENBERG MCKAY 

Updated June 11, 2020

The Pregnancy Discrimination Act prohibits employers from making hiring and other job-related decisions that discriminate against women who are pregnant.

Finding out you are pregnant is a very joyous thing for most women—news you will likely look forward to sharing with all your friends and family—but it might be somewhat stressful to tell your coworkers about it. Once they know, your boss will too, and while your colleagues may be wonderfully receptive of this news, not all in the workplace may be. Pregnancy discrimination is a real thing.

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces federal employment discrimination laws, reports that in fiscal year 2019, it received 2,753 complaints of pregnancy discrimination.2 Many women are fired or passed over for a promotion after they announce their pregnancy. Before sharing your good news in the workplace, know your rights under the law and what to do if a potential or current employer doesn’t abide by them.

How the Pregnancy Discrimination Act Protects Women

The Pregnancy Discrimination Act requires employers to treat pregnant women the same way they do all other workers or job applicants. It is an amendment to Title VII of the Civil Rights Act of 1964 and is covered under sex discrimination. Employers may not make decisions about hiring applicants or firing or promoting workers based on pregnancy, childbirth, or related medical conditions. All companies that employ 15 or more people are subject to this law.3 

Here is how the law protects pregnant job seekers and employees:

  • Employers cannot refuse to hire applicants because of their pregnancy or pregnancy-related conditions. An employer is not required, however, to hire an unqualified candidate or one who is less qualified than another.
  • Employers can’t require pregnant workers to submit to special procedures that determine their ability to perform job duties unless the employer holds all other employees and job applicants to the same requirement.
  • If a pregnancy-related medical condition keeps a worker from performing job duties, the employer must not treat that individual any differently than other temporarily disabled employees in making accommodations.
  • Employers may not prohibit pregnant employees from working and may not refuse to allow them to return to work after giving birth.
  • Employer-provided health insurance plans must not treat pregnancy-related conditions any differently than they do other medical issues.
  • Employers can’t require pregnant workers to pay larger health insurance deductibles than non-pregnant employees.4

What Should Victims of Pregnancy Discrimination Do?

If your employer or prospective employer has discriminated against you, file a claim with the EEOC. It is essential to be able to state what led to your conclusion. Have as much proof as possible to back up your claim including names of witnesses. Otherwise, it is only your word against your employer’s. 

Employees must file a claim within 180 days of the event. This time limit is extended to 300 days if there is a state or local law that also covers pregnancy discrimination. Job applicants must file a claim within 45 days.5

Step-by-Step Guide to Filing Charges:

  1. Go to the EEOC Public Portal to submit an inquiry. Answer the five general questions listed there. Your answers will determine if the EEOC can help you. Alternatively, you can submit an inquiry at one of EEOC’s 53 field offices located throughout the county or by phone at 1-800-669-4000.
  2. If you are using the EEOC Public Portal and are told the agency can help, go ahead and submit your inquiry. Remember that submitting an inquiry is only the first step and is not the same as submitting a charge of discrimination. It allows you to set up an intake interview with an EEOC staff member at one of 53 field offices located around the United States or by phone. Enter your contact information when requested.
  3. After filing your inquiry and scheduling an intake interview, the EEOC will ask supplemental questions to help begin the process of filing charges. This will occur before your interview.
  4. After your intake interview, decide whether to file a charge. Only after filing one, which can be in person or through the online portal, but not over the phone, will the EEOC notify your employer.

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Racial Discrimination is Pervasive in America’s Workplaces

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If you don’t think racism permeates American society, just ask an employment attorney.

Source: EHS Today

June 2020

By David Sparkman

It may be difficult to believe for people who haven’t experienced it, but active racism permeates all too many American workplaces. We’re not referring to “microaggressions” or subtle, unthinking bias reflected in hiring and promotion—we’re talking about routine abuse involving racial epithets and displays of symbols that threaten violence.

In every case that has reached America’s court system, another thing is usually made depressingly clear: The employer was informed of this unacceptable behavior and either chose to do nothing to end it, and in some cases actually led and participated in the abuse.

If you doubt this may be true, consider the experience over the years of Richard B. Cohen, an attorney with the law firm of FisherBroyles, who represents employers. He informed us recently: “I’ve written numerous articles and blog posts over the last 15 years about racial animus still rearing its ugly head in the workplace—and involved in virtually every such case where the victim is an African-American there is the presence of the N-word—or worse, a noose. Or both!”

And if you also are tempted to believe that this behavior is waning and that casual racism is little more than a fading relic of the past, you need to understand that this is a problem that persists and continues to manifest itself in almost every part of the country and in widely varying workplaces.

On June 2, the Equal Employment Opportunity Commission (EEOC) filed suit in federal court charging the CCC Group Inc. construction company for numerous instances of this kind of behavior that took place at a worksite in the state of New York. In its announcement, EEOC pointed out that “one white supervisor attempted to snare an employee with a noose” while another one “told an African-American employee that for Halloween, ‘You don’t even have to dress up. I will dress in white and put a noose around your neck and we’ll walk down the street together.’”

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office, noted that this was just one of the most recent of numerous examples of abhorrent racial discrimination and harassment that African-American employees have experienced over the years. “The use of a noose is especially vicious,” he said. “Such misconduct violates federal law and common decency.”

This terrible behavior directed at African-American employees hasn’t slowed down, according to Cohen. “The workplace is a microcosm of society; in other words, what happens in the workplace is simply a reflection of the dynamics of society’s tensions and conflicts, as can painfully be seen these days on the streets of hundreds of America’s cities and towns.” 

Johnny C. Taylor, Jr., president and CEO of the Society for Human Resource Management (SHRM), points out, “For many people, the workplace is often the first, and sometimes only, place they encounter people unlike themselves. That experience—what happens in the workplace—shapes our thinking about others, and we take that out into the community and home with us.”

Taylor adds, “Rooting out and exposing bias in our workplaces, especially unconscious bias, can have a transformative effect on the larger world we move through.”

Incidents Pile Up

Consider these incidents of workplace racism that have been reported over the last three years:

● A noose was found in an Ohio foundry, and the EEOC says one of the company’s top officials routinely subjected employees to derogatory racial comments.

● A life insurance company agreed to pay $20.5 million to employees who alleged race, national origin and sex discrimination, and retaliation. African-Americans were referred to as “lazy,” had stress balls thrown at them, and were subjected to racially demeaning cartoons, while a high-level manager called African-American female employees the company’s “resident street walkers.”

● At an Illinois fence installation company, a black employee was repeatedly subjected to racial slurs and comments and other offensive conduct, including the display of a noose. Although the company was aware that racial harassment was occurring, it took no action to stop it., EEOC reported.

● A Georgia grocery store owner allegedly subjected three African-American employees to daily use of the N-word and called them “monkey” and other racial epithets. EEOC said the owner also prominently displayed racially offensive posters in a non-public work area.

● At a Minnesota mattress manufacturer, it was found by EEOC that employees were subjected to racial harassment in the form of displays of KKK hoods, nooses and verbal expressions of racial slurs and jokes.

● A Minnesota construction company settled with the EEOC after being accused of subjecting two African-American employees to racial harassment by a white supervisor, which included making racially derogatory comments and use of the N-word, and making a noose out of electrical wires and threatening to hang them.

● At a Brooklyn-based construction company, black laborers were routinely referred to by the N-word, “gorilla” and similar epithets. An employee who complained was fired—another common experience in these cases.

Not surprisingly, most of these incidents are also accompanied by complaints alleging other kinds of discrimination, particularly when it came to work assignments, promotions and disciplinary actions.

The EEOC and employment lawyers like FisherBroyles’ Cohen are not the only ones losing patience with this sort of behavior by employers and their continuing unwillingness to stamp it out. Federal courts in the past had upheld the idea that the single use of the N-word in a workplace could not constitute legal discrimination unless it was part of a pattern of other discriminatory behavior, but in recent years some courts have begun to hold that it can be.

“The latest events show that racism—overt or implicit—is unfortunately embedded in the very fabric of our society, and therefore, in our workplaces,” Cohen doesn’t hesitate to inform us. “Until racism is eliminated from our society, it will, of course, pop up in our workplaces.”

He makes it clear that employers would be well-advised to take all steps necessary to stamp out acts or expressions of racism by going beyond simply making it clear that this is behavior that will not be tolerated. “I know that many companies have employee handbooks with anti-harassment and discrimination provisions—which all employers should have—but employers must do more.”

Human resources experts say that employers need to insist on including conducting professional training sessions for all employees, much the same as employers are expected to do when it comes to sexual harassment training, which is now required by law in several states.

“Make sure that senior managers are acutely aware of your anti-harassment policies and procedures and provide good role models for the workplace—top-down behavior is perhaps the most important preventive measure which you can take,” Cohen stresses. “Employees look to the executives as role models to see what is or is not acceptable behavior.”

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Here’s Why Retaliation Claims Are Easier To Prove In Court Than Discrimination Claims: The FedEx Case

Source: Forbes Magazine

By Eric Bachman

Decorative Scales of Justice in the Courtroom
GETTY

Most laws prohibiting discrimination based on race, sex, religion, etc. also make it unlawful to retaliate against someone who complains about or helps to support another person’s claim of discrimination.

While these complementary protections serve a common purpose of helping to stamp out discrimination, an important distinction exists in how courts analyze retaliation versus discrimination claims. That is, different definitions of what constitutes an “adverse employment action” apply depending on whether the lawsuit alleges retaliation or discrimination.

A federal appellate court, the U.S. Court of Appeals for the Sixth Circuit, analyzed this issue over the summer in a case involving an employee who claimed that her employer retaliated against her after she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Factual background

Sheryl Hubbell worked for FedEx SmartPost, Inc. (FedEx) for about eight years until Fed Ex fired her in 2014. While employed, Hubbell filed at least two EEOC charges alleging gender discrimination and retaliation for complaining about it.

Hubbell later sued FedEx in court for terminating her employment in retaliation for filing those EEOC charges.

Hubbell won her trial in district court, and a jury awarded $85,600 in front and back pay damages, $30,000 in non-economic damages, and $300,000 in punitive damages. FedEx appealed the decision, arguing Hubbell’s presented insufficient evidence to support her claim of retaliation.

Legal Analysis

Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee who has filed a charge with the EEOC. As part of their initial burden of making out a retaliation claim (called the prima facie case), a plaintiff must show that the employer’s conduct was “materially adverse,” which in this case means that “it might well have dissuaded a reasonable working from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

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Problem, Danger, Risk and Liability words on a speedometer 3d rendering GETTY

FedEx argued that Hubbell did not satisfy the definition of “adverse employment action” under Title VII, which the company cited as conduct that “affect[s] the terms and conditions of employment.” Notably, however, FedEx cited the definition of adverse employment action required of plaintiffs alleging discrimination, not retaliation, under Title VII.

A plaintiff suing under Title VII’s anti-retaliation provision must demonstrate that the adverse employment action “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” The definition of adverse employment action under a Title VII retaliation claim is less demanding (and thus easier to meet for employees) than a claim of discrimination.

The trial court had incorrectly held that the only materially adverse action in support of Hubbell’s retaliation claim had to do with her not being able to clock in and out at the same time as her fellow employees. The Sixth Circuit rejected this analysis and found that, under the correct “might well dissuade” standard for retaliation claims, evidence remained of other adverse employment actions taken in retaliation for filing the EEOC charge.

This included evidence showing FedEx subjected Hubbell to increased supervision, specifically that her bathroom breaks were timed and tracked. Hubbell’s supervisor also issued Hubbell written discipline, which she claimed was unjustified and violated company policy.

Accordingly, the appellate court affirmed Hubbell’s jury trial verdict on retaliation.

Key Takeaways

  • The definition of a “materially adverse action” differs between claims of retaliation and claims of discrimination.
  • Discrimination claim definition of “materially adverse action” = “substantially affects the terms and conditions of employment”
  • Retaliation claim definition of “materially adverse action” = an action that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination” (which can include things like being ostracized, subject to increased scrutiny, etc.)
  • The showing required for a Title VII retaliation claim is thus less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.

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Employers con harassment victims by means of a “see no evil, hear no evil” policy.

By Bryan A. Chapman, Esquire

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment (or some other type of workplace harassment) is occurring, but deliberately pretend that is is not occurring in order to avoid liability. Management may discourage a victim of sexual harassment from complaining. The victim’s complaint of harassment may be ignored or discarded by management. If the victim continues to complaint, management may seek to discredit the victim by papering their personnel file with allegations of poor job performance and misconduct, which may lead to termination.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.’” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment (or any other kind of workplace harassment) should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment.  Victims of workplace sexual harassment should seek corroboration from witnesses and other victims of sexual harassment; there is strength in numbers. A victim of sexual harassment should review their employer’s sexual harassment policy and follow the procedure. Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC). A victim should put their complaint in writing and keep a copy. Sending a copy of the harassment complaint to the employer, by email, can create an indelible record.

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An Employer Has A Duty To Investigate And Remedy

By Bryan A. Chapman, Esquire

Employers have a duty to investigate complaints of discrimination, harassment, and retaliation.  “When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 

In conclusion, “[a]n employer who fails to investigate and remedy reported sexually harassing [and other discriminatory] behavior risks being held vicariously liable for the conduct of the harassing employee.”  Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

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Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

By Bryan A. Chapman, Esquire

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct. 

If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should anticipate retaliation and not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced civil rights attorney as soon as possible.

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Heightened Scrutiny: Employers look for a legitimate reason to hide retaliation.

By Bryan A. Chapman, Esquire

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their employer.  Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)

In a case of heightened scrutiny, an employer acts like a spider patiently waiting for unsuspecting prey to become entangled in its web.

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ADA: Disability Harassment In The Workplace

By Bryan A. Chapman, Esquire

Employers have an affirmative duty to keep the workplace free of disability related harassment. Under the Americans with Disabilities Act (ADA), employers have an affirmative duty to keep the workplace free of disability related harassment. Fox v. General Motors Corporation, 247 F.3d 169 (4th Cir. 2001) (A fact finder could conclude from this evidence that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job. In other words, Fox presented evidence of a workplace environment that a reasonable person could easily find hostile.)

  • If a supervisor engages in disability related harassment that results in a hostile work environment, to escape liability, an employer must demonstrate that: 1) it took reasonable steps to prevent and to quickly stop harassing behavior, and 2) the employee unreasonably failed to take advantage of the employer’s efforts to prevent or stop the harassing conduct or to avoid harm.
  • If a supervisor engages in disability related harassment that results in an adverse employment action (demotion, denial of promotion, suspension, termination, etc.), the employer has no affirmative defense.
  • If a co-worker engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.
  • If a non-employee (e.g. customer) engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

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$500 Retainer

By Bryan A. Chapman, Esquire

Conventional wisdom says workplace discrimination cases are difficult to prove because the acts of discrimination are subtle. As a result, victims of workplace discrimination generally have to pay thousands of dollars to retain an attorney.

For people of color, workplace discrimination may not be subtle but blatant and even violent. Supervisors and co-workers assume that these victims will not complain or will not be believed.

Many people of color, with textbook cases, have a difficult time finding an attorney. Some of these cases are compelling and could lead to sizable settlements. Nonetheless, attorneys are either not interested or require thousands of dollar in retainer.

Unfortunately, when a victim files an EEOC complaint, without the advice of an experienced attorney, the chances of their complaint being dismissed by EEOC is overwhelming.

Experienced attorneys, particularly those of color, should commit to helping these victims file EEOC complaints. For an initial $500 retainer, an experienced attorney could advise victims over the telephone and via e-mail in a manner similar to the way LegalZoom.com operates.

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Racial Inequality, at College and in the Workplace

White Americans still disproportionately outnumber their African American and Latino counterparts when it comes to obtaining good jobs, regardless of education they have obtained.

By 

Elin Johnson 

October 18, 2019

ISTOCKPHOTO.COM/HYEJIN KANG

new study released by Georgetown University in part refutes the notion that African American and Latinx minorities can improve their socioeconomic standing just by going to college.

According to the study, between 1991 and 2016, black and Latino Americans increased their likelihood of obtaining and maintaining a good job, but their white peers still disproportionately hold better jobs compared to their overall employment.

“It’s a pretty damning story all together, and it says that there’s a huge challenge ahead of us,” said Anthony Carnevale, a research professor at Georgetown and director of the university’s Center on Education and the Workforce, who is also a co-author of the study.

A good job as defined by the study is one that provides “family-sustaining earnings,” which translates to minimums of $35,000 annually for workers 25 to 44 and $45,000 for workers 45 to 64.

Regardless of education levels obtained, these racial disparities continue to exist. Diversity in higher education has made improvements over the years but is still not accessible to all, primarily due to cost. The National Center for Education Statistics found that in 2017, 41 percent of white young adults were enrolled in college, compared to 36 percent of black and Hispanic young adults. Additionally, for Americans over 25, 33 percent of whites have a bachelor’s degree, compared to 19 percent of blacks and 16 percent of Hispanics.

The study found that in 2016 the median wage of a good job for workers with a bachelor’s degree for whites was $75,000 compared to $65,000 for blacks and Latinos.

White workers are also paid more than black or Latinx workers in good jobs at every level of education received. College-educated whites have benefited the most from the increased demand for college-educated workers, said the study.

The study also found that in 2016 white workers held 77 percent of the good jobs despite only representing 69 percent of available job holders. Black workers had 10 percent of the good jobs out of 13 percent of the jobs they held, and Latinx workers had 13 percent of good jobs while holding 18 percent of all jobs. Also in the study findings was that black Americans have almost twice the unemployment rate of white Americans, and Latinos have about 1.5 times the unemployment rate of whites.

“We are a culture that keeps secrets from ourselves,” said Carnevale regarding the bias that exists in hiring processes.

Additional explanations for the lack of minorities in good jobs despite education levels, beyond personal bias, includes feeder patterns through school systems and the ability to form connections with people already in good jobs. However, according to Carnevale, at the margins, bias and discrimination better describe the divide in who holds good jobs.

As workers increase their level of education, wage discrimination is reduced between whites and minorities, but it still remains.

“Our institutions are now working in such a way that it pretty much guarantees that the white kids win. And we know that this is deeply embedded in the system,” Carnevale said.

Carnevale cited a previous study he worked on which found that 70 percent of white students from the top income sector still ended up going to college and getting a good job, while only 30 percent of lower-income students with high test scores followed that path. When those lower-income and minority students did make it into good jobs, they ended up getting paid less than their white counterparts.

He said that the conclusions to the study were stronger than he thought they would be, noting that there was progress for African Americans despite their position in comparison to whites.

“We had slavery, Jim Crow, the failure to hand out 40 acres and a mule; we had housing policy, veterans’ policy, redlining. The new culprit is higher education,” said Carnevale. “It’s institutional just like the [Federal Housing Administration] policies that didn’t allow black people to buy houses in the suburbs. Colleges in America didn’t set out to do this, but in a passive sense they’ve become the capstone in a system that guarantees racial inequality.”

“In the end higher education is part of the problem, not part of the solution. The industrial organization of higher education is part of the problem,” said Carnevale.

Carnevale said that higher education needs to fundamentally change to help solve the problem, something he says most people recognize.

While African American and particularly Latino workers have gained traction in fields where a high school or middle-skills education is needed, whites still dominate jobs which need a bachelor’s level of education. Middle skills refer to jobs that require less than a B.A. but more than a high school degree.

Carnevale compared the situation to a race where minorities are “running faster but losing ground” to white Americans, particularly affluent ones, who are pulling ahead.

“I don’t think people — I didn’t, anyway — fully understood the extent to which, since the ’80s, the white and affluent population has basically locked down the future,” said Carnevale. “You can get rid of discrimination, but this is a structural problem.”

Carnevale said that whites are poised to continue to hold good jobs, especially in the B.A. sector, and minorities will have a hard time catching up.

The study recommended expanding educational opportunities and addressing discrimination, as well as implementing policies and incentives that encourage diversity and create more growth in underdeveloped areas.

One of the solutions Carnevale suggested was introducing work experience and training to students earlier. This included in middle and high school, because as it stands now, young people are not getting the relevant work experiences they need.

Carnevale said that some good news is that the number of good jobs is increasing while black and Latinx unemployment rates have decreased. However, those improvements do not mean that black or Latinx Americans have caught up to the good job opportunities accessible to white Americans.

“The pessimistic conclusion I come to — and not all my co-authors agree with me — is that the white population in America has set itself up for the next 30 to 40 years,” said Carnevale. “I don’t see what will change that except for policy on a scale that’s actually effective.”

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