ESPN, Freedom of Speech, and Jeremy Lin

by Joseph Miller, Esq

When ESPN suspended Max Bretos and fired Anthony Federico for using the phrase “chink in the armor” in their coverage of Jeremy Lin and the New York Knicks’ loss to the New Orleans Hornets last Friday, righteous indignation about the dwindling First Amendment ensued.  That predictable response is a symptom of the low standard that is set for hosts and pundits.  But the First Amendment has nothing to do with this.  ESPN’s decision was more likely motivated by the fact that it wanted to avoid an employment discrimination charge by its Asian-American employees.

Kevin Ota, ESPN Digital’s Director of Communications said as much:

“We again apologize, especially to Mr. Lin. His accomplishments are a source of great pride to the Asian-American community, including the Asian-American employees at ESPN.” [emphasis added]

Incendiary talk show host Glenn Beck, who left Fox News after his primetime show lost 400 advertisers and suffered a nearly 40 percent ratings decline  following efforts to boycott the show, took to his internet tv station, Glenn Beck TV (GBTV), to defend Mr. Bretos and Mr. Federico.

“Freedom of speech … What they do is they slowly but surely take away … they make you afraid to say something,” Mr. Beck said about “the left.”

“Freedom of speech is in danger here more than anyplace in the world.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of “race, color, religion, sex, or national origin” with respect to their “terms, conditions, or privileges of employment.”  When Congress proscribed discrimination with respect to the “terms, conditions or privileges of employment,” it intended to prevent all forms of workplace discrimination, including discrimination creating a hostile or abusive working environment (Meritor Savings Bank v. Vinson).  A workplace “permeated with discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” creates a hostile or abusive working environment and thus violates Title VII.  However, there is no requirement that the discrimination lead to serious physical or psychological harm to the employee (Harris v. Forklift Systems, Inc.).  Whether a working environment is indeed hostile or abusive is determined from the perspective of a reasonable person (i.e. a jury).  The same standard applies in the context of race (National R.R. Passenger Corp. v. Morgan).

Eighteen eighty-four in Tennessee—during the Jim Crow era—that’s the earliest case I could find saying that employers, as long as they don’t break the law, can fire employees for any reason (Payne v. The Western & Atlantic Railroad Company).  That far predates the start of Mr. Beck’s vast, left-wing conspiracy, which he usually says came about around the time of Hitler.

ESPN was enforcing the law.  Employers are not subject to the free speech provisions of the First Amendment, which prohibits the government from abridging the freedom of speech.  ESPN was free to interpret the law in any way it thought prudent to prevent the creation of a hostile work environment that would lead to an Equal Employment Opportunity Commission (EEOC) charge.  For example, if ESPN had taken no action, it ran the risk that supervisors would have felt emboldened to harass their Asian-American employees. In that case, ESPN would have done nothing to prevent creating a hostile and abusive work environment and would therefore have exposed itself to vicarious liability for the subsequent acts of the supervisor.

ESPN was following the letter of the law and the EEOC’s guidelines for Title VII compliance.  After the Supreme Court’s decision in the now infamous Citizens United v. Federal Election Commission, in which it rejected corporate spending limits in political campaigns, its tolerance for hate speech (Snyder v. Phelps), and the fact that Mr. Beck lasted at Fox News as long as he did, it is doubtful that Mr. Beck is really concerned about the United States’ place in the world when it comes to free speech.  Perhaps it was Emancipation that Mr. Beck and others think was the catalyst of the vast plot they can’t seem to define.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Joseph Miller and his work can be found at the Joint Center website.

Men’s Health Affairs: Lost, Forgotten or Wasted?

by Jermane Bond, Ph.D.

In recent weeks, President Obama announced a new policy to ensure free preventive care services for women, including well women visits, domestic violence screening and contraception, as recommended by the Institute of Medicine of the National Academy of Science.  According to the new rule under Section 2713 of the Affordable Care Act, starting August 1, women can obtain contraception without a co-payment.

Where does this leave men?  Doesn’t the status of male health in the United States provide cause for concern about the health of the country and the social context of our society? Shouldn’t men also have access to free preventive health services?  Despite recent improvements in health and life expectancy during the 20th century, men over past decades have shown poorer health outcomes than women across all racial and ethnic groups as well as socioeconomic status.[i]  Poor health not only affects the men who suffer from it, but it can also have a devastating effect on women and families.

Despite the evidence that men are less likely than women to receive preventative health services, have a regular doctor or source of care, and have health insurance[ii] there has been no centralized national effort to coordinate fragmented men’s health services, awareness, prevention or promotion efforts at the local or national level.  Yet, teams and male players in professional sports continue to support breast cancer awareness.  Where is the support for prostate cancer prevention and awareness?  Is it lost?

The premature death and disability of men has a profound impact on wives, children, partners, and families across the nation.  Studies have shown that regular medical exams, preventive screenings, regular exercise, and healthy eating habits can save the lives of men. Appropriate use of tests, such as prostate exams, blood pressure, blood sugar, lipid panel, and colorectal screenings, in conjunction with clinical exams and/or self‐testing, results in the early detection of many health problems while increasing survival rates among men. Wouldn’t it be nice if we had national prevention support and a new preventive health policy? Let’s not forget the health of men.

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[i] Sandman D, Simantov E, An C.  Out of touch: American men and the healthcare system: Commonwealth Fund Men’s and Women’s Health Survey findings. 2000. Available at: http://www.usrf.org/breakingnews/Men_out_of_touch.pdf.

[ii]  Armstrong B, Kalmuss D, Franks M et al. Creating Teachable Moments: A Clinic-Based Intervention to Improve Young Men’s Sexual Health. Am J of Men’s Health. 2010; 4(2):135-144.

Jermane Bond, Ph.D. is Research Associate in the Health Policy Institute at the Joint Center for Political and Economic Studies. More information on Dr. Bond and his work can be found on the Joint Center website.

Reality Check 2012

by David Bositis, Ph.D.

When the 2012 Republican presidential candidates speak, there is a constant refrain about President Obama’s “failed presidency.”  Maybe that is the case by their standards.  On the other hand, by more objective standards, not so much.  The President took office when the worst economic downturn since the Great Depression was already well underway, and while the economy remains weak in many respects–especially in job creation–it is most certainly improving due to his efforts.  In the fourth quarter of 2011, the economy grew at an annual rate of 2.8 percent, and unemployment has fallen for four straight months.  Black unemployment in January declined sharply from December–from 15.8 percent to 13.6 percent.  Mr. Obama has been somewhat reluctant to boast about his accomplishments, but they are substantial, ranging from the stimulus bill in 2009 to Health Care Reform, a payroll tax cut for ordinary Americans, and the elimination of Osama Bin Laden.

While the Republican candidates haven’t recognized the President’s accomplishments, the public has.  President Obama’s job approval numbers are now in positive territory, and he leads all the GOP contenders in national surveys by a statistically significant amount.  Further, Mr Obama leads his would-be opponents in most of the important 2012 swing states including Ohio, Virginia, North Carolina, and Florida.  Mr. Obama’s average favorable ratings are 49.2 percent favorable and 45.5 percent unfavorable.  Mr. Romney’s average favorable ratings are 31.9 percent favorable and 46.9 percent unfavorable.  Time for a reality check?

David A. Bositis, Ph.D., who has been at the Joint Center for Political and Economic Studies since 1990, is a voting rights and redistricting expert.

From Lilly Ledbetter to Broadband Access: Reframing Women’s Equity

by Nicol Turner-Lee, Ph.D.
originally published at Politic365

Last month, the Lilly Ledbetter Fair Pay Act celebrated its third anniversary as the first piece of legislation signed into law by President Obama.  The Act was initiated by Lilly Ledbetter who realized that she was unfairly compensated for doing the same work of her male counterparts.  Expanding the statute of limitations on fair pay lawsuits for women, the Ledbetter Fair Pay Act marked a significant step in addressing ongoing wage disparities that exist between men and women.  According to the National Committee on Pay Equity, women made 77.4% of what men make in 2010, with women’s average earnings amounting to $36,931 compared to men’s average earnings of $47,715. In the same study, African American women made an average of $32,290. The unfortunate reality is that more is at stake for women when they earn less, particularly their ability to care for their children, parents, and possibly dislocated spouses.  Further, the lack of access to learning opportunities and career management tools make it harder for women to advance in our new economy, making advances in pay futile if women are unable to secure competitive jobs.

Pay issues are but one of several inequities that exist between men and women.  Recent research suggests that women, on average spend more on health care services.  An article in Modern Physician found that in 2004 women spent $6,000 per capita on health care services, while men only spent $4,540. According to the Sargent Shriver National Center on Poverty Law, “the number of working-age women who spent 10 percent or more of their income on premiums and out-of-pocket costs rose from 25 percent in 2005 to 33 percent in 2010.” Due in part to the crippling recession and rising health care costs, approximately 27 million women of working age also did not have health insurance as reported by the U.S. Census Bureau.  For African American women who are more susceptible to chronic diseases that include heart disease, cancer, and diabetes, the lack of access to health care can be fatal, and it’s unfortunate that unfair pay exacerbates these trends.

Child care costs can also be a substantial burden to women that earn less, and impact their ability to effectively maintain employment.  According to the 2010 U.S. Census Bureau, the average percentage of monthly income spent on child care expenditures for a female, single parent ranges from 11.7 percent to 12.6 percent.  In compensating for these significant costs, women are sometimes forced to put off long term educational goals due to child care issues or delay starting a family.  Missing work for even legitimate child care reasons can often prompt a pink slip for women, especially women of color without a backup plan.  In most cases, equitable pay makes it possible for women to engage more fully in the workforce, advance their skills, and alleviate the immediate and often urgent concerns of their households.

Further, women require the tools to be competitive and nimble in the nation’s emerging information economy.  More job prospects have migrated to the web, altering search strategies.  Access to preventative and diagnostic health care applications are increasingly present on the web.  Many times information that supports learning opportunities is available exclusively on the Internet.  Networks among women who have experienced the joys and challenges of caring for children and elderly parents are populating the web in record numbers. While many women struggle to make ends meet, the virtual world offers opportunities and access that can quite frankly advance their careers, and simplify their lives.

In a time where broadband Internet is rapidly changing how we live, learn and earn, the need to ensure that more women have adequately adopted broadband is immediate.  The good news is that women in general and more so women of color are increasing their use.  Recent research from the Joint Center for Political and Economic Studies found that 69 percent of African American women regularly go online to access health, education, and employment information, a promising trend of broadband use in the African American community.   And, more women are turning to mobile technology to assist in real time response and management of their work responsibilities and personal duties.  When income and educational attainment are added into the picture, the unfortunate reality is that low-income women often place broadband access as the lowest priority as they work to make sure their family’s basic needs are met.  Choosing food over a broadband connection is a pretty simple decision for low-income women.

The Lilly Ledbetter Fair Pay Act of 2009 is addressing one of the most critical inequalities experienced by women today – the inability to make comparable and livable wages as their male counterparts.  However, higher wages for women are not just about principle.  Having the money to effectuate every aspect of one’s life from health care to child care to broadband access helps level the playing for women, and removes the undue stress and possibly death associated with our lifestyles.  Understanding the intersection of fair pay with other inequalities, and identifying the tools required to compete in the nation’s new economy will be essential to women’s future livelihood.

Dr. Nicol Turner-Lee is Vice President and Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Dr. Turner-Lee and her work can be found at the Joint Center website.