Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, June 19, 2018

CA Senate Passes Bill Requiring Gender Quotas for Corporate Boards

The CAL state senate passed a bill that would require public companies with "principal executive offices" in CAL to have a minimum of one woman on their corporate board.  That increases to two women in the second year of the bill, and three women in the third year for boards of more than 6 people.

The full text of the bill is here: SB-826: Corporations: Board of Directors

"[F]ive other states (MA, IL, PA, OH and CO) have already passed precatory resolutions encouraging corporations within their states to promote gender diversity in the boardroom." See California State Senate Passes Bill That Would Impose Gender Quotas on Public Company Boards 

 For my thoughts and legal analysis in support of gender quotas, see Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

 

June 19, 2018 in Business, Legislation | Permalink | Comments (0)

Friday, April 6, 2018

Holding Corporate Fiduciaries Liable to Shareholders for Sexual Misconduct

Daniel Jacob Hemel & Dorothy Lund, Sexual Harassment and Corporate Law, Columbia Law Rev. (forthcoming)

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead. 

In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.

April 6, 2018 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Friday, March 16, 2018

What Does Dressing Professionally Mean for Women of Color

Priya-Alika Elias, What Does Dressing "Professionally" Mean for Women of Color?

The schools did give us certain guidelines. . . . But generally, they avoided specific rules. “Be discreet,” they said. “Dress professionally, like the older lawyers do. Blend in.”

 

When you’re a woman of color, that’s almost impossible. You learn quickly that your body is hypervisible, because it is probably the only one of its kind in the courtroom. You are constantly among men, white men, who notice how different you look from the usual faces they see. And because you’re hypervisible, you are subject to the harshest, most unforgiving scrutiny. Does that girl belong here? What is she doing here? they wonder. And when they wonder, they seize upon the easiest thing to criticize, the first thing anybody would notice: the way you’re dressed..... 

 

The selective enforcement of rules continued all through law school. We didn’t get a handbook at my summer internship telling us what to wear: It was left to my supervisors to enforce the dress code. They did it in the most arbitrary fashion; my coworker wasn’t admonished for wearing a white suit to court, but I was sent home again and again to change.

 

Nobody tells you what too much means, in the context of the workplace. They don’t go into detail, because it’s an embarrassing conversation to have with another adult. That reluctance is normal, and it makes employers resort to coded language, like “unprofessional” and “excessive.” Unfortunately, it is this vagueness, this lack of specificity, that is exploited to the detriment of women of color. When you don’t have a clear set of rules to follow, you’re open to the judgment of a subjective authority — often a white male authority. In the eye of that authority, your very presence is a violation.

h/t Sahar Aziza

 

March 16, 2018 in Business, Law schools, Women lawyers | Permalink | Comments (0)

Thursday, March 15, 2018

The Corporate Governance Case for Board Gender Diversity

The Corporate Governance Case for Board Gender Diversity: Evidence from Delaware Cases

Gender diversity on company boards is becoming an increasingly important issue. The theoretical bases for the desirability of gender diversity regulations can be understood under three categories i.e. social benefits; business benefits; and corporate governance benefits. Since corporate governance is the main task of the board of directors, the corporate governance case for board gender diversity needs to be developed further. This article tests the corporate governance benefits of board gender diversity by conducting a qualitative content analysis of Delaware cases. The observations from this study are then analysed against the quantitative and qualitative literature on the about the corporate governance benefits of board gender diversity. The findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggests other complementary solutions to make boards more effective. The article thus, builds the corporate governance case for board gender diversity, but also sets out its limits.

March 15, 2018 in Business, Gender | Permalink | Comments (0)

Tuesday, March 6, 2018

Hollywood's Contractual Inclusion Rider Created by Communications Professor and Civil Rights Lawyer

Oscar-winner McDormand Wants an "Inclusion Rider"

 Few people watching Sunday night’s Oscar awards knew what Frances McDormand was talking about as she ended her Best Actress acceptance speech with an obscure bit of legalese: “inclusion rider.”

 

One exception was Kalpana Kotagal, a civil rights lawyer in Washington who has spent the last year or so crafting the concept with colleagues, but had no idea the novel method for increasing diversity in Hollywood would get such a high-profile shout-out.

 

The gist is this: powerful actors and film makers could use their star power to get a studio to hire more women, gay people, disabled people and people from racial minorities to the cast and crew by stipulating it as a rider in their contract.***

 

“I just found out about this last week,” McDormand, who won the Best Actress Oscar for her portrayal of a mother searching for her daughter’s killer in “Three Billboards Outside Ebbing, Missouri,” told reporters backstage during a ceremony notable for its activism.

 

Kotagal said she worked on creating model language for the rider with Stacy Smith, a communications professor at the University of Southern California who mentioned the “inclusion rider” idea in a 2016 talk on the lack of diversity in the film industry.

 

“The objective is to have the films that we see every day be a better reflection of the world that we live in,” Kotagal said, suggesting that casting directors look at a more diverse array of people when filling smaller speaking roles and background parts. “That means, for example, 50 percent women.

What's An Inclusion Rider? Here's the Story Behind Frances McDormand's Closing Words

"I have two words to leave with you tonight, ladies and gentlemen: inclusion rider."

 

Two simple words they may be, but when Frances McDormand closed her acceptance speech with them at the Academy Awards, not a whole lot of people had heard those terms paired that way. The big spike in Google searches for the phrase Sunday night reflects the frantic clatter of people across the world summoning those key words.

 

So, what is an inclusion rider, exactly?

 

Simply put: It's a stipulation that actors and actresses can ask (or demand) to have inserted into their contracts, which would require a certain level of diversity among a film's cast and crew.

 

For instance, an A-list actor negotiating to join a film could use the inclusion rider to insist that "tertiary speaking characters should match the gender distribution of the setting for the film, as long as it's sensible for the plot," Stacy L. Smith explained in a 2014 column that introduced the idea in The Hollywood Reporter.

 

Smith, who directs the Annenberg Inclusion Initiative at the University of Southern California, told NPR's Mary Louise Kelly she had "absolutely no idea" McDormand would bring up the concept at the Oscars. "But," Smith added, "talk about being elated and thrilled to hear those two words broadcast around the world."

 

Smith has pushed for years for more diverse representation in film — delivering a TED Talk on the topic while she was at it — and the inclusion rider has been a crucial arrow in her quiver.

 

"The goal really is to figure out: How do we move from all the lip service in Hollywood to actually see the numbers that we study every year move?" Smith said.

March 6, 2018 in Business, Equal Employment, Media, Pop Culture | Permalink | Comments (0)

Tuesday, February 27, 2018

Federal Legislation Introduced to Require Public Companies to Publicly Report Sexual Harassment

Elizabeth Warren Wants to Force Public Companies to Make Their Sexual Harassment Data Public

Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.

 

The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.

 

If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.

 

The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.

 

“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.” 

February 27, 2018 in Business, Legislation, Violence Against Women, Workplace | Permalink | Comments (0)

Tuesday, February 13, 2018

Older Women are the Future Economy

Alessandra Malito, Older Women will Soon Rule the World, MIT Professor Says

In his new book, “The Longevity Economy: Unlocking the World’s Fastest-Growing, Most Misunderstood Market,” (published by PublicAffairs) Joseph Coughlin, founder and director of the MIT Age Lab, a research program that studies the population 50 and older as well as the technology that impacts their lives, says the narrative on retirement needs a major update. Society puts so much emphasis on the years between birth and 65 years old, but life spans have lengthened over the last century to well into the 80s (and some say citizens of well developed countries can expect to live into the 100s) which means that Americans now may spend a third or more of their lives in retirement.

***

The catalyst won’t be the engineer or marketing person or someone doing advertisements on Madison Avenue, the future is distinctly female. She lives longer, she is the primary caregiver and the chief consumption officer of the home, so if she doesn’t buy it or envision it, she frankly won’t be living in it and the country and family is missing a big opportunity on what she knows and what she likes and what she will buy. We find the venture capital community ignoring women — we have a vision of innovation as a 27-year-old male wearing sneakers.

MarketWatch: Can you expand on “the future is female” comment? Women haven’t always been considered for such a role — why now?

Coughlin: They weren’t just marginalized — they were invisible. Female consumers today have more education in all fields except engineering, and that’s world wide. That makes her a dedicated researcher. Entrepreneurialism is a new women movement — women have startups employing Americans equal to large corporations. And while she is doing all that, she remains the caregiver, not just to her own children but to her parents. She’s influencing the majority of auto decisions, she understands what the needs and wants are in the population. Women are starting companies about downsizing services to clean up houses and services to provide care in homes — they see the problems and the opportunities.

 

MarketWatch: You had some tips for businesses looking to invest in the longevity economy — what are some?

Coughlin: With some irony, companies these days are very much liking to advertise that they are consumer-focused. But most companies ignore 51% of the population: the female population. To understand the aging marketplace, they need to look particularly at women 50 and older. The second thing is usable design does not have to be big, beige and boring — transcendent design is not just usable and functional, but genuinely delights the buyer. The third is to create new stories, new rituals, new myths — why don’t we have downsizing parties? Grandparent registries? If you think about it, business and society have all holidays and punctuation marks for 0-65 years old. After that you have a retirement party and everyone else’s parties. For one-third of your life, it’s not about you at all. And the last part is, if we are going to be living longer, we need to rewrite the way we think of retirement. Not just extending work span, but remaining engaged, productive. And frankly, most have a social network where we work, not where we live.

February 13, 2018 in Business, Family | Permalink | Comments (0)

Corporate Board Gender Diversity Measured by Power Rather than Numbers

Yaron Nili, Beyond the Numbers: Substantive Gender Diversity in Boardrooms

The push for gender diversity on public companies' boards has been gaining traction. Advocacy groups, institutional investors, regulators and companies themselves have all recognized the need for more diverse boards. However, gender parity is still absent from most public companies' boards, and a significant number of companies still have no women on their boards. 

Current public and academic discourse has focused on the number of women serving on the board and their percentage compared to men as the litmus test for gender diversity. However, academic studies and the public push for more diversity have mostly failed to account for another important measure of board gender diversity - the actual role and clout that female directors have within the boardroom. This is what the Article terms as substantive gender diversity. 

Substantive gender diversity matters. It is at the core of both the social cause and the business case for gender diversity on boards. This Article explores this substantive component of board gender diversity through empirical data relating to the role that men and women play on corporate boards. The Article finds statistically significant differences between the roles of female and male directors. Building on these findings, the Article asserts that regulators, investors and companies must focus not only on increasing the number of women on boards but also on ensuring that female directors enjoy similar parity once elected. The Article then proposes a shift towards a Substantive Gender Diversity Disclosure regime, which would measure and report the substantive aspect of gender diversity in boardrooms.

February 13, 2018 in Business, Gender | Permalink | Comments (0)

Tuesday, January 16, 2018

Women and the Law Conference 2018: Gender at the Bargaining Table

Thomas Jefferson School of Law, Women and the Law Conference 2018: Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making

Thomas Jefferson School of Law’s 18th Annual Women and the Law Conference, Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making, will be held on Friday, February 9, 2018 at Thomas Jefferson School of Law.

 

This conference brings together leading experts and practitioners to focus exclusively on issues related to gender and the law to address the issue of women at the bargaining table. How does gender affect the way we approach and manage negotiations in a variety of settings?

 

Explorations into the enduring wage gap between men and women prompt us to examine this important topic. Despite advances, women on average continue to earn roughly 80 cents for each male dollar earned. In 1960, women earned approximately 64 cents for each male dollar and experts estimate that the gap will likely not close for at least another 40 years...longer for Latina or African American women. What accounts for this gap? Is it explicit sexism, implicit bias, male and female divergent life choices? 

 

Negotiation experts maintain that women’s antipathy to negotiation and risk-taking provides a partial explanation. This year’s topic explores women and decision-making, with particular attention paid to the art and science of bargaining for advantage. 

 

Professor Linda C. Babcock will deliver the Ruth Bader Ginsburg Lecture. Babcock continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.

January 16, 2018 in Business, Conferences | Permalink | Comments (0)

Monday, November 27, 2017

Systemic Solutions for Sexual Harassment: Majority Women in the Board Room

A Bidder for the Weinstein Company Suggests a Rare Boardroom Set Up: A Majority Female Board

Maria Contreras-Sweet, who led the U.S. Small Business Administration under President Obama, has submitted a bid to acquire the Weinstein Co., the embattled film studio grappling with multiple allegations of sexual harassment or assault against its former co-chairman, Harvey Weinstein. It includes a group of investors with female leaders from private equity, venture capital and Hollywood, according to a source familiar with the deal. It proposes retaining the company's employees and has the blessing of lawyer Gloria Allred, who is representing some of Weinstein's accusers.

 

But one aspect of the bid is getting the most attention: Its proposal to install a majority-female board of directors, with Contreras-Sweet as chairman.

 

That's partly because, some researchers argue, having more women in leadership roles is a better answer to solving sexual harassment problems than installing more training programs or anti-harassment policies. Research has shown that having male-dominated management teams can lead to the tolerance of a sexualized environment, said Alexandra Kalev, a professor at Tel Aviv University and the co-author of a recent Harvard Business Review article on the topic. "Having more women in management increases the share of women who can work to promote women and create a working environment that allows women to flourish," she said.

 

Moreover, Kalev said, having more than just one or two token women on the board is important for female board members' contributions to be heard and for them to not be viewed as outsiders who represent a woman's point of view. She said research has shown that companies are actually more likely to adopt a diversity program when they have no women on the board than when 5 percent of the board is women. Having a single woman makes boards feel as though they've taken some action, and they "feel less of an urge to adopt programs that increase diversity."

 

It's not until they get to 15 or 20 percent of directors that they start to make a difference, Kalev said. "They're not seen as representing their gender anymore, but representing the board," she said. "It mainstreams women in positions of power."

 

Frequently cited research from 2006, based on interviews with female directors, also found that it seems to take at least three women for them to create "a critical mass where women are no longer seen as outsiders" and can influence decision-making.

 

I have written some about altering the gender balance on corporate boards, as well as balancing the power structures of other institutions such as legislative bodies, academia, and workplaces to reflect gender parity of 50/50 women.  Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law Online (Nov. 2016).

 key feminist insight on these systemic problems has focused on the importance of power. The lack of women’s power as decision makers in the workplace, politics, or science means the perpetuation of the patriarchy (yes, patriarchy) and male privilege from the top down.
Generations at the top may be outdated, but they continue to transmit the same outmoded assumptions of women’s inferiority and disqualification, reinvigorating a new generation with the same discriminatory norms and practices.

November 27, 2017 in Business, Gender | Permalink | Comments (0)

Monday, November 20, 2017

Proposed Tax Plan Would Deny Business Deductions on Sexual Harassment Settlements if No Disclosure

What the Tax Senate Bill Would Do for Sexual Harassment Victims

An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.

 

The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.

 

The amendment was proposed by New Jersey Democratic Senator Bob Menendez.

 

The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.

 

"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."

 

Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.

 

"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."

So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.  

The question is what impact what tax restrictions might have on settlements.  The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.  

November 20, 2017 in Business, Legislation, Violence Against Women | Permalink | Comments (0)

Why Sexual Harassment Training Doesn't Work

Why Sexual Harassment Training Doesn't Stop Harassment

Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.

 

[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.

 

Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).

 

The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.

 Congress is Making Harassment Trainings Mandatory. Science Shows They Don't Work.

That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”

 

There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.

 

The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.

 

“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”

 

Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.

Lauren Edelman, What's the Point of Sexual Harassment Training? Often, to Protect Employers

Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.

 

That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.

 

Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.

November 20, 2017 in Business, Violence Against Women | Permalink | Comments (0)

Wednesday, October 25, 2017

The Lessons of Fox News for Reforming Sexual Harassment Law

Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):

A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.

October 25, 2017 in Business, Violence Against Women, Workplace | Permalink | Comments (0)

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton

Abstract:

Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, October 16, 2017

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.

 

According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.

 

A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.

 

According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.

 

“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”

 

Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.

 

Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, September 15, 2017

New Lawsuit Against Google Alleges Sex Discrimination as Women Placed into Lower-Level Jobs

Google Hit by Gender Pay Gap Lawsuit Seeking Class Action Status

Google is being sued for gender pay discrimination, turning up the heat on the Internet giant already facing allegations it shortchanges women.

 

Three female former Google employees are seeking class-action status for the complaint filed Thursday in San Francisco Superior Court.

 

The lawsuit comes as the Labor Department investigates systemic pay discrimination at Google. Google says its own analysis found no pay gap.

 

In a statement to USA TODAY, Google said it would review the lawsuit but disagreed with "the central allegations."

 

The lawsuit is being brought by three women — Kelly Ellis, Holly Pease and Kelli Wisuri — who say they quit Google after being placed at lower job levels, resulting in lower pay and denying them promotions and moves to other teams that would advance their careers.

 

The plaintiffs allege women at all levels of Google are paid less than men and that women are assigned to lower job tiers with less opportunity for upward mobility. 

 

“Women should have the same opportunities as men, and receive equal pay for substantially similar work,” Wisuri said in a statement. ***

 

Google spokeswoman Gina Scigliano said job levels and promotions are determined "through rigorous hiring and promotion committees, and must pass multiple levels of review, including checks to make sure there is no gender bias in these decisions." 

September 15, 2017 in Business, Equal Employment | Permalink | Comments (0)

Thursday, September 7, 2017

Women on Corporate Boards: A Comparative Appraisal of Italian Law

Paola Monaco &  Angelo Venchiarutti,  Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).

Abstract

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.

September 7, 2017 in Business, International, Legislation | Permalink | Comments (0)

Wednesday, August 9, 2017

Google Fires Engineer Who Opposed Gender Diversity in Workplace

Following up on the blog post Google Engineer Says Gender Diversity Initiatives Bad Idea ...  Google has now fired the engineer.  Surprising, but encouraging to see a company put support behind what are often shallow commitments to equalized workplaces.  

The company said the engineer's memo -- opposing gender diversity initiatives because of women's "neuroticism" and because women biologically prefer jobs with people and emotion rather than tech jobs with "systemic" thinking -- was "harmful" to the workplace.  The engineer has threatened to sue.

Updated Aug. 29. 

August 9, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, August 7, 2017

Google Engineer Says Gender Diversity Initiatives Bad Idea

Diversity Programs at Google Discriminatory, Engineer Claims in Anti-Diversity Memo

A document written by an unnamed senior software engineer at Google suggesting the company encourage "ideological" rather than gender diversity, is generating anger within the company and in Silicon Valley.

Titled "Google's Ideological Echo Chamber," the male author wrote that women don't make up 50% of the company's tech and leadership positions not because of sexism but because of differences in their preferences and abilities. 

He also writes that the company's focus on diversity tends to alienate conservatives, which he believes is bad for business as conservatives tend to be more conscientious, a trait that is required for "much of the drudgery and maintenance work characteristic of a mature company."

The essay comes as Google is engaged in an ongoing effort to try to get more women and minorities into technical and leadership jobs, and as the Mountain View-based company is being investigated by the Labor Department over allegations that it does not pay men and women equally. ***

The 10-page manifesto against Google's diversity initiatives appears to have first been circulated internally at the company Friday. It was initially reported by Motherboard.

On Saturday Gizmodo published the full document, prompting a flood of angry tweets and some supporting the writer's right to free speech.

The overall tone of the essay is calm. The author acknowledges that there is bias that holds women back in tech and leadership. He doesn't suggest that women aren't capable of doing technical work but rather that the differences between men and women should be acknowledged. 

He states that women tend to be more interested in people rather than things, "empathizing vs. systemizing," whereas men have a higher driver for status and so tend to end up in leadership positions.

He also says that on average, women have more "neuroticism," as defined as "higher anxiety, lower stress tolerance."

The author doesn't believe that Google should engage in social engineering just to make its jobs equally appealing to men and women, calling "discriminatory" programs at the company available only to women and minorities.

August 7, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, July 17, 2017

Judge Narrows Scope of Government Data Request in Google Gender Pay Audit

Google Must Cough Up Contact Info for 8000 Employees in Gender Discrimination Case: But Judge Narrows Scope of US Labor Dept Request 

Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.

 

A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.

 

The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.

 

Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".

 

But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.

The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.

I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.

When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.

See also:

July 17, 2017 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)