In a recent campaign event held by the AFL-CIO, Joe Biden declared he would be the “strongest labor president you’ve ever had.” Fortunately, the former Vice President’s lengthy political career provides a robust framework to assess his record on employee rights.
Since his election to the Senate in 1973, Biden has consistently voiced support for major employment and civil rights legislation. He has faced hefty criticism for certain political fumbles, most notably his role in Anita Hill’s testimony to the Senate Judiciary Committee in 1991 and his wavering stance on marriage equality, not to mention multiple allegations of inappropriate behavior toward women against him. It is noteworthy, however, that Biden co-sponsored every major piece of employment and civil rights legislation that was passed during his time in the Senate.
He co-sponsored a law that currently enables women to fight an alarming trend of workplace discrimination against pregnant women. Biden also co-sponsored key disability rights legislation and has a steady history of advocating for laws that would reduce the gender wage gap.
His presidential campaign proposes a variety of worker-centric policies that coincide with his voting recording in the Senate, such as passing the LGBTQ-friendly Equality Act within his first 100 days and supporting the passage of the Paycheck Fairness Act.
With just 42 days until the election on November 3, a close look at Biden’s record on key workplace discrimination issues may provide a preview of the employment legal landscape under a Biden administration.
In 1977, Biden co-sponsored a bill to overturn the Supreme Court’s ruling in General Electric Company v. Gilbert, which found that Title VII’s ban on sex discrimination in the workplace did not include discrimination based on pregnancy. Known as the Pregnancy Discrimination Act (PDA), the bill became law in 1978 and amended Title VII to explicitly include protections for pregnant workers who experienced discrimination at work.
Today, the PDA provides critical workplace protections for vulnerable workers. Amid a devastating pandemic in which companies are increasingly targeting pregnant women and employees who recently gave birth for recessionary discrimination, Title VII allows women to hold their employers accountable for unlawful pregnancy bias in the civil court system.
Biden’s campaign promises to advocate further for protections for working mothers by supporting the Pregnant Workers Fairness Act, which would make it a requirement for employers with 15 or more employees to provide reasonable accommodations to workers based on pregnancy, childbirth or related medical conditions, unless such an accommodation places an undue hardship on the employer. The bill was recently passed by the House with overwhelming bipartisan support.
The Pregnant Workers Fairness Act also requires companies to engage in an interactive process with employees seeking pregnancy accommodations and prohibits them from retaliating or otherwise interfering with a pregnant worker’s right to seek a reasonable accommodation.
Biden has a nuanced record when it comes to his support of civil rights legislation.
He was an original cosponsor of the Civil Rights Restoration Act of 1987, which clarified that Title IX’s ban on sex discrimination in education covered schools that received any federal funding whatsoever, including grants to students. This law is frequently invoked today to protect employees and students of federally funded educational institutions from sexual harassment.
Biden was also a co-sponsor of the Civil Rights Act of 1990, which was drafted in response to a series of prominent Supreme Court rulings during its 1988-1989 term that made it exceedingly difficult for employees to win discrimination suits.
Passed in both the House and Senate, but ultimately vetoed by President George H. W. Bush, the bill sought to strengthen existing civil rights law by providing additional remedies for intentional harassment or discrimination in the workplace, allowing discrimination lawsuits to be tried before a jury, shifting the burden of proof from the employee to the employer when arguing disparate impact cases, and adding caps on the amount of damages the suing party could receive.
Although Bush endorsed many provisions of the bill, he vetoed it based on the belief that it would lead to employers adopting “hiring and promotion quotas” to avoid being sued for discrimination.
The following year, Biden was chairman of the Senate Judiciary Committee during the highly contentious confirmation hearings of Supreme Court Justice Clarence Thomas. Biden has been widely criticized for his handling of the public hearings, which featured a panel of all-white, all-male Senators aggressively grilling Black law professor Anita Hill about her allegations of sexual harassment by Justice Thomas.
In a 2019 interview with the New York Times, Hill said that the mismanaged confirmation hearings in 1991 “set the stage” for what would become the hyperpartisan political battle that defined the confirmation hearings of Justice Brett Kavanaugh. Hill has since given Biden a tepid endorsement for President.
On the Senate floor, just weeks after Hill provided testimony to the Judiciary Committee, Sen. Chuck Grassley (R-IA) proposed an amendment to the civil rights law that would create the Senate Office of Fair Employment Practices to handle internal complaints of sexual harassment and discrimination. Biden voted for a point of order that would have thwarted its creation. The point of order did not pass, and it is unclear why Biden voted against the office’s creation.
Biden did ultimately vote in favor of the broader legislative package, the Civil Rights Act of 1991, which largely mirrored the previous version of the bill but did not retroactively apply the law to lawsuits that were filed before its enactment.
In 2001, Biden was an original co-sponsor of a bill to ban employment discrimination based on genetic information. The Genetic Information Nondiscrimination Act became law in 2008, with unanimous passage in the Senate and nearly unanimous passage in the House (only then-congressman Ronald Paul (R-TX) voted no, citing privacy concerns).
If elected President, Biden said he would reissue an Obama-era executive order aimed at improving diversity and inclusion with the federal government, and that he would deploy additional funding to the EEOC as well as the U.S. Justice Department’s Civil Rights Division. Biden has also pledged to appoint the first Black woman to the Supreme Court.
In 1989, Biden co-sponsored the Americans with Disabilities Act (ADA). The ADA provides the most comprehensive set of legal protections for employees with disabilities, including by providing legal remedies for instances of workplace discrimination and outlining employer requirements with respect to disability accommodations. Bush championed the legislation; he later recalled signing it into law as one of his proudest presidential achievements.
ADA lawsuits can also allow victims to seek injunctive relief, which creates more disability-friendly workplaces by requiring employers to change their discriminatory practices.
Biden has made a breadth of campaign promises to people with disabilities. He vows to “continue to advocate for stronger ADA enforcement,” including by requiring employers to disclose whether they successfully engaged in an “interactive process” with employees seeking disability accommodations as prescribed by the ADA.
Notably, Biden’s campaign acknowledges that people with a disability are much less likely to be employed than those with no disability and vows to encourage collaboration between the Labor Department, the EEOC and the Justice Department to improve job access and eradicate disability discrimination in the workplace.
In addition Biden’s campaign promises to pass the Transformation to Competitive Employment Act, which would authorize the Department of Labor to award grants to states and employers to support the integration of individuals with disabilities into the American workforce. Importantly, the Act prohibits the payment of subminimum wages to disabled individuals and aims to gradually phase out existing agreements which allow for the payment of subminimum wages.
LGBTQ+ Workers’ Rights
Like his record on civil rights, Biden has a complex history when it comes to LGBTQ+ rights.
He voted in favor of the Defense of Marriage Act (DOMA) in 1996, which prevented the federal government from recognizing same-sex marriage and is widely considered one of the largest legal hurdles in the history of the gay rights movement.
However, Biden was an original co-sponsor of the Employment Non-Discrimination Act in 2002 and again in 2003, which sought to ban workplace discrimination on the basis of sexual orientation. The bill never made it to the Senate floor for a vote.
Additionally, Biden was an original co-sponsor of Equal Rights and Equal Dignity for Americans Act of 2003, a sweeping legislative package that included the provisions of the Employment Non-Discrimination Act—but that bill also failed to receive a vote in the Senate.
It was not until 2012 that Biden publicly endorsed same-sex marriage. At the time, six states had already recognized same-sex marriage as legal. On June 26, 2013, the Supreme Court ruled that DOMA was unconstitutional in United States v. Windsor. Exactly two years later, the Supreme Court established same-sex couples’ fundamental right to marry throughout the U.S. in its landmark ruling in Obergefell v. Hodges.
In a joint statement on the anniversary of their Supreme Court wins, the plaintiffs in the Windsor and Obergefell cases endorsed Biden for President, calling him the LGBTQ+ community’s “greatest ally.”
Biden’s platform promises to enact the Equality Act within his first 100 days as President. This would ban discrimination in key areas such as employment, housing, education and public accommodations. The Equality Act has already passed in the House.
Passage of the Equality Act would provide an additional tool for employees to combat workplace discrimination in light of the Supreme Court’s high-profile ruling in Bostock v. Clayton County, Georgia. In a 6-3 decision handed down on June 15, 2020, the Supreme Court ruled that Title VII prohibits employers from discriminating against employees based on their sexual orientation or gender identity.
Biden has been consistent in his stance on eliminating the gender pay gap. He co-sponsored the Paycheck Fairness Act when it was initially introduced in 2007, a bill that seeks to close to gender pay gap by strengthening existing federal pay discrimination laws, instructing federal agencies to collect and distribute wage gap data, banning salary history questions during job interviews, and creating a negotiation skills training program for women and girls.
That same year, Biden co-sponsored the Senate version of the Lilly Ledbetter Fair Pay Act. The bill sought to overturn the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., which found that under the Equal Pay Act, a victim of wage discrimination had 180 days to file a charge with the EEOC from the time she received her first discriminatory paycheck—regardless of how long the discrimination lasted or when the victim learned that she was being paid unfairly.
Because the Ledbetter ruling effectively prevented most women from being able to bring timely Equal Pay Act claims, the Lilly Ledbetter Fair Pay Act reversed course by extending the statute of limitations for women with unequal pay claims to 180 days after their most recent discriminatory paycheck. That time limit extends to 300 days if a state or local agency enforces similar unequal pay laws. The law also allows victims to receive up to two years of backpay as damages for compensation discrimination.
On January 29, 2009, just nine days into Biden’s vice presidency, the Lilly Ledbetter Fair Pay Act became law. Lilly Ledbetter, the plaintiff in the case and an activist fighting for women’s equality, has endorsed Joe Biden for President.
Biden’s campaign promises to continue fighting for equal pay for women by supporting the passage of the Paycheck Fairness Act, improving the collection and distribution of employer compensation data and advocating for legislation that makes it easier for women to organize unions and engage in collective bargaining efforts.
With the promise of enhanced legal protections for employees come the question of their enforcement. Biden’s campaign supports strengthening the EEOC and bolstering the enforcement efforts of the National Labor Relations Board.
Biden’s campaign also vaguely promises to spearhead legislation aimed at eliminating mandatory arbitration in the employment context. Mandatory arbitration has been widely criticized for allowing companies to sweep workplace sexual harassment and discrimination under the rug by forcing employment disputes out of the public court system and into arbitration, a private, confidential judicial forum where an employee’s chance of winning is significantly lower.
The House has already passed a bill to ban mandatory arbitration in employment, the Forced Arbitration Injustice Repeal Act (FAIR Act). If Democrats gain control of the White House and the Senate in 2021, the passage of the FAIR Act could very well be imminent.
Overall, Biden’s campaign paints a picture of advancing numerous employee-friendly policies that align with his record of support for employee rights. If Biden wins, employers may find themselves busy navigating a new wave of antidiscrimination legislation in the years to come.