Saturday, March 21, 2015
A female former manager and a current executive are suing a California subsidiary of Boston Scientific Corp. for $50 million, asserting that the medical device company discriminates against female sales representatives by assigning them to less profitable territories and giving them higher quotas and lower commissions than male counterparts.
Plaintiffs Denise Fretter, a regional sales manager in Ohio, and Maria Korsgaard, a former territory manager in Nevada, state in the suit that Boston Scientific Neuromodulation Corp., in Valencia, Calif., pays its female sales reps less than males, even when they outperform the men.
“BSNC maintains an unfair system of gender-stratified compensation,” Felicia Medina, a lawyer representing the plaintiffs in the class- and collective-action complaint, said in a statement. “In effect, BSNC bars female employees from better and higher-paying positions that have traditionally been held by male employees. Its employment practices are illegal, morally wrong, and they must come to an end."
Tuesday, March 17, 2015
A new $110 million lawsuit filed on Tuesday claims a U.S. division at Swiss drugmaker Novartis has routinely denied female employees equal pay and promotional opportunities, five years after the pharmaceutical giant was hit with a nine-figure jury verdict over similar claims.
The proposed class action suit filed in U.S. federal court in Manhattan says Texas-based Alcon Laboratories Inc, which was acquired by Novartis in 2010, maintains a "boy's club atmosphere" that is hostile to women and bars them from leadership positions.
An spokeswoman at Alcon, which specializes in eyecare products, deferred questions to Novartis Corp, which did not immediately return a request for comment.
A U.S. jury in 2010 ordered Novartis to pay more than $250 million in a separate class action that alleged widespread gender discrimination. At the time, it was the largest award in an employment discrimination case in U.S. history.
The company at the time said it would adopt reforms to prevent discrimination and retaliation against employees who complained.
Joan Williams, The Throwback Sexism of Kleiner Perkins, Harvard Business Review.
The high-profile gender discrimination lawsuit by Ellen Pao against the venture capital firm Kleiner Perkins is being discussed as if it’s emblematic of gender bias in tech. And in some ways, it is.
Pao’s attorney has argued that women were held to different standards from men. And that women were asked to do the “office housework”—such as being asked to take notes at a meeting, when taking notes precluded them from meaningful participation. The evidence presented so far also suggests that women at the firm do walk a tightrope between being seen as too passive and too harsh. Moreover, she claims, she was denied opportunities because she was pregnant. That’s three out of the four basic patterns of subtle bias I’ve identified in my research on professional women. Not bad for a day’s work.
But Pao v. Kleiner Perkins is not just about the kind of subtle stereotyping that’s common at many large tech companies. Much of what Pao describes is something quite different: an atmosphere straight from the blatant bias playbook
The Kleiner Perkins described by Pao fits this description. She reports being pressured into a sexual relationship with a male partner, Ajit Nazre. Another female partner whom Nazre pressured to have sex with him, Trae Vassallo, told an investigator hired by the firm that Nazre was “preying on female partners” and that she was constantly fending off his advances, in just the kind of sexualized atmosphere Ely’s 20-year-old study described. (Kleiner Perkins ultimately fired Nazre.) Another male partner told Vassallo she should be flattered by Nazre’s attention. A third gave her a sexually explicit book as a present for Valentine’s Day and invited her out to dinner, saying his wife was out of town. Other partners, on a business trip with Pao, discussed with a portfolio CEO and co-investor their delightful time with porn stars at the Playboy mansion, their sexual partner preferences, and more — “an adult cable show that involved sexual acts, they were discussing the Victoria’s Secret runway show, they were discussing older men they knew who were dating younger women, and they had a comment on Marissa Mayer being hot so Dan would let her on his board,” to quote Pao’s testimony. It all sounds more like the Anita Hill hearings or the Tailhook scandal than a modern-day lesson in subtle stereotyping.
Saturday, March 14, 2015
Riggins v. Polk County, 2015 WL 1037245 (11th Cir. Mar. 11, 2015)
David Riggins challenged, on equal protection grounds, a Polk County ordinance that grants women-owned and minority-owned business enterprises bidding for municipal contracts the opportunity to match the lowest qualifying bid if their original bid was within five percent of the lowest bid. ***
"Mr. Riggins, a white male, brought a pro se action under 42 U .S.C. § 1983 against Polk County, alleging race and gender discrimination in the bidding award of Polk County Quote 12–037. Mr. Riggins alleged in his amended complaint that he submitted the lowest qualified bid for Quote 12–037 on behalf of his company, D.C. Riggins, Inc. He attached to his initial complaint an “Invitation to Quote” sent from Polk County to D.C. Riggins, Inc., inviting the company to submit a bid for Quote 12–037 and instructing that the award would be made based on the overall low bid. Polk County Ordinance 10–005, however, provides a preference for women-owned and minority-owned business enterprises, which allows such businesses to match the lowest qualifying bid if their original bid was within five percent of the lowest bid. Mr. Riggins' complaint alleged that, by operation of Ordinance 10–005's price-matching preference, Quote 12–037 was awarded to the second-lowest bidder, a business that was given preference because it was owned by a woman. Mr. Riggins therefore asserted that Polk County discriminated against him based on his race and gender and that Ordinance 10–005 violated his equal protection rights."
The court held the case had to be brought by the company, and not the owner.
Saturday, January 10, 2015
Rebecca Tushnet, The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity, in DIVERSITY IN INTELLECTUAL PROPERTY, (Irene Calboli & Srividhya Ragavan eds., Cambridge Univ. Press, forthcoming 2015).
Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity.
Friday, December 5, 2014
Notwithstanding the reference to Black Friday, the story, from the CBC, is still relevant:
As Black Friday approaches, here’s something that might make you see red: If you’re a woman, you may be paying more for a range of products than men are.
The practice is called gender pricing, where men and women are charged different amounts for similar products and services.
While some jurisdictions such as New York City have outlawed pricing discrimination based on gender, no laws in Canada prohibit the practice.
CBC’s Marketplacetested gender pricing at three of Canada’s largest retailers — Wal-Mart, Hudson’s Bay and Target — and found that similar products for men and women weren’t always the same price.
Wednesday, December 3, 2014
Germany’s top listed companies will be required to have 30% of their board positions filled by women under a law agreed today by Angela Merkel’s coalition parties.
The law, due to come into effect in 2016, aims to create greater gender equality in the workplace of Europe’s biggest economy where, despite having a female leader and 40% of the federal cabinet being female, women are significantly under-represented.
According to the The German Institute for Economic Research (DIW Berlin), just 6% of management board positions and 22% of supervisory board seats are held by women among the 30 companies on Germany’s blue-chip DAX index trading on the Frankfurt Stock Exchange.
Tuesday, December 2, 2014
For the history and legal briefing, see Young v. UPS at SCOTUSblog.
For UPS's voluntary actions that effectively implement the desired accommodations, see our prior post, Pregnant Workers Win Without Winning
Saturday, November 22, 2014
John Goldberg (Harvard), Jotwell, When is Sexual Abuse Within the Scope of Employment?, reviewing Martha Chamallas (Ohio State), Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.
Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.
Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.
Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.
It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances?
Wednesday, October 29, 2014
The diverse and robust pool of female founders and tech execs at Fortune’s 40 under 40 party proves positive for Silicon Valley’s future. Editing Fortune’s 40 Under 40 list is, every year, an education in ambition, disruption and extraordinary achievement. The process takes months of reporting, lots of debate and discussion and a healthy amount of handwringing as our deadline looms.
And then comes the fun. Every year, we hold a giant party for the 40 Under 40 and a few hundred other movers and shakers in the San Francisco area. This is always my favorite part of the process. Because our listers? They show up. This year, we had a record number join us, traveling from as far as India (Rahul Sharma, CEO of Micromax) and as close as upstairs (Brian Chesky, CEO of Airbnb, which hosted us in the lobby of the company’s headquarters in San Francisco’s SoMa district).
There were lots of local, Bay Area-based names, including Lyndon Rive, cofounder of SolarCity SCTY 3.82% , Josh Tetrick of plant-based food engineer Hampton Creek, Tristan Walker of Walker & Co/Bevel, Kabam’s Kevin Chou, Mason Morfit, president of ValueAct Capital (and youngest person on Microsoft’s board MSFT 1.26% ). Many more traveled to be there: SBE Entertainment Group’s Sam Nazarian, from Las Vegas; Nate Morris of waste-management disruptor Rubicon Global, in from Kentucky; Anthony Watson, CIO of Nike NKE 0.88% , who flew in from Beaverton, Ore; and President Obama’s deputy national security adviser Ben Rhodes, who was able to break away from his boss for a quick trip west. There was, of course, a healthy crew from New York, including VaynerMedia CEO Gary Vaynerchuk, NYSE president Tom Farley, Highbridge Principal Strategies’ Mike Patterson and Blackstone’s Peter Wallace.
Tuesday, October 28, 2014
National Law J., Survey: Profession Still Struggling for Equal Opportunity
Legal careers have changed greatly since 2000 but the profession is still struggling to establish race and gender equality, according to a joint survey released by the American Bar Foundation and the National Association for Law Placement.
But “After the JD III: Third Results of a National Study of Legal Careers” also indicates that most lawyers remain moderately or extremely satisfied with their choice to pursue law. They represent 76 percent of respondents in surveys conducted in 2012, 2007 and 2003.
“You might think after the recession that people would dial back on that answer, but it’s pretty much the same,” American Bar Foundation director Robert Nelson said of the satisfaction number.
The so-called “Wave 3” survey, released Thursday, was based on 2012 interviews of 2,862 lawyers who passed the bar in 2000. That’s a 53 percent response rate for the 5,353 surveys sent to a pool of lawyers who had responded to either or both of the earlier surveys. The three surveys comprise a long-term study of a nationally representative group of lawyers at different stages in their careers.
The surveys collectively show striking gender differences in lawyers’ earning power. According to the latest survey, the income gap between men and women was 5 percent after two or three of practice, 15 percent after seven years and 20 percent after a dozen years of practice.
Most of that gap occurs in the private sector. Women in public sector jobs earned 96 percent to 98 percent of what men did in comparable jobs.
“It’s certainly nothing new [but] it’s profound that we have not made much progress on that front in the legal profession,” Nelson said.
Women, along with racial and ethnic minorities, are more likely to experience social isolation and firms can do more to integrate them into the fabric of the enterprise, he said. Women and minorities also are less likely to inherit a book of business from a senior partner than is the case for white males. “That seems to be the critical dynamic,” Nelson said.
Thursday, September 4, 2014
The Domino's Pizza chain isn't responsible for the alleged sexual harassment of a 16-year-old female employee of one of its stores because the franchise agreement left all personnel decisions up to the now-bankrupt store owner, says a closely divided California Supreme Court.
A lawyer for Domino's hailed Thursday's 4-3 ruling as "a great victory for the franchise industry" - which, according to a 2007 Census Bureau study quoted by the court, accounted for nearly $1.3 trillion in annual sales nationwide.
The ruling comes a month after the general counsel of the National Labor Relations Board reached a much different conclusion in another franchise case, saying McDonald's can be held jointly liable under federal law for wage violations at its restaurants.
The court case comes from Thousand Oaks (Ventura County), where the teenager, Taylor Patterson, said the assistant store manager groped her and made lewd comments soon after she started work in November 2008.
Saturday, August 16, 2014
From WaPo, She the People, Brigid Schulte, Study: Uncivil Work Environment Pushing Women Out of the Engineering Field
[A] new National Science Foundation report released on Saturday about why so few women go into engineering, or stay in the field, highlights a key reason: a workplace culture of incivility toward women.
“I wouldn’t call it a hostile environment, but it’s definitely chilly,” said Nadya Fouad, a professor of educational psychology at the University of Wisconsin-Milwaukee, who presented the results to the American Psychological Association in a talk entitled “Leaning In, But Getting Pushed Back (and Out.)”
Fouad and her colleagues surveyed more than 5,000 women who had graduated from some of the top universities with engineering degrees over the past six decades and found that 40 percent had either quit the field or never entered the profession in the first place.
For more than two decades, women have accounted for about 20 percent of all engineering degrees. Yet fewer than 11 percent of all engineers are women. And this despite a massive funding effort to get more people into STEM fields – $3.4 billion in federal funds for STEM education since fiscal 2010, with $13 million targeted directly at women.And while caregiving responsibilities – the stereotypical view for why women leave demanding professions – played a role in some decisions, for the most part Fouad found that what really pushed women out were uncivil workplace climates, the expectation to put in long hours of face time in the office, and the perception that there was little opportunity to advance.
Tuesday, August 12, 2014
The Call: Download BEQ-specialissue_Gender-BE-CSR
From the Overview:
Gender equality is an acknowledged universal human right in itself, and is also intertwined with other core corporate social responsibility (CSR) issues such as poverty, environmental degradation, and development. Yet, the literature on gender, business ethics and CSR remains relatively underdeveloped. Our special issue seeks to fill this important research gap.
Our special issue focuses on gender, organizations and society through the lens of business ethics and CSR. It aims to bring a variety of feminist theoretical perspectives to bear on business ethics and CSR research and practice. Its purpose is to explore whether, and if so how, CSR and business ethics might contribute to wider scholarship concerning how organizations, and particularly corporations, reflect, influence, structure and impact gender relations at the organizational, as well as the societal level.
Within the field of business ethics, feminist ethics has been discussed with particular reference to the ‘ethics of care’ as it relates to stakeholder relations and organizational responsibility (for example, Wicks et al., 1994; Liedtka, 1996; Burton and Dunn, 1996; Hamington and Sander-Staudt, 2011). Yet, beyond Larson and Freeman (1997), there appears to have been relatively little engagement with the feminist “ethics of justice,” which “explicitly attempts to solve the inequities of discrimination rather than finding in women’s skills a fortuitous tool to economic efficiency (Derry, 1996: 106).” Thus, the literature on feminist business ethics remains underdeveloped, particularly in the light of developments in CSR.
Tuesday, July 8, 2014
SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications. The Seventh Circuit ruled that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."
The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."
EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."
One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:
On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations.
More on the case here.
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.
Tuesday, July 1, 2014
Some highlights on yesterday's Hobby Lobby case:
- SCOTUS Gets Hobby Lobby Horribly Wrong
- Several posts on Reproductive Rights Blog
- What Nuva Rings and Peyote Have in Common Today
- Why Today's Hobby Lobby Ruling Actually Hurts People of Faith
Some of my own thoughts:
1. This is a gender issue. Period.
- As Justice Ginsburg said: It's about "women's autonomous choice."
- The Court's distinction between contraception v. immunizations or blood transfusions is starkly sex-based. So its ok to discriminate against women, but not kids or Jehovah's Witnesses? There should be a challenge in there somewhere. I know, state action? Hybrid classification with other contraception covered.
- See Not That Anyone Cares, But Hobby Lobby
2. Good faith belief in other legal contexts usually requires some credible support. How can HL simply assert it has a religious belief that IUDs and morning after pills are abortive, when they are not? Elsewhere in the law--labor negotiations, putative spouse doctrine, termination of injunctions--good faith requires some factual basis upon which the party relied to form the good faith. Since religion has been used historically to discriminate against women, it is a very dangerous legal holding to give men carte blanche to excuse their sexism under the guise of religion without question.
3. Here's an interesting idea. Congress can amend RFRA to remove corporations from its protection. Lose the battle, but win the war. Senate Democrats Mull Response to Hobby Lobby Decision
Monday, June 30, 2014
1. Stop shopping at Hobby Lobby.
2. Stop working at Hobby Lobby.
3. Protest on the public way around Hobby Lobby stores. SCOTUS says you can. See McCullen.
4. Refuse, if an employer, to provide healthcare coverage for men's contraceptive health, V&V (vasectomy and Viagra).
5. Engage in a sex strike. Until your partner secures contraceptive healthcare coverage for you.
7. Travel back in time a century. You won't even notice the difference.
Thursday, June 19, 2014
The most recent step in the women farmers' litigation, Love v. Vilsack (Westlaw) denying a motion of African-American farmers to intervene.
From the decision:
Between 1997 and 2000, African–American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA engaged in widespread discrimination on the basis of race, ethnicity, or gender in the administration of its farm loan and benefit programs, and that it routinely failed to investigate complaints of such discrimination. SeePigford v. Glickman, Nos. 97–1978, 98–1693 (D.D.C. filed Aug. 28, 1997, July 7, 1998) (“Pigford I ”) (African–American farmers); Keepseagle v. Vilsack, No. 99–03119 (D.D.C. filed Nov. 24, 1999) (Native American farmers); Garcia v. Vilsack, No. 00–2445 (D.D.C. filed Oct. 13, 2000) (Hispanic farmers); Love v. Vilsack, No. 00–2502 (D.D.C. filed Oct. 19, 2000) (female farmers). Judge James Robertson, a former member of this Court, denied the plaintiffs' motions for class certification in this action and in Garcia v. Vilsack .SeeLove v. Veneman, 224 F.R.D. 240 (D.D.C.2004), aff'd in part, remanded in part sub nom. Love v. Johanns, 439 F.3d 723 (D.C.Cir.2006); Garcia v. Veneman, 224 F.R.D. 8 (D.D.C.2004), aff'd and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C.Cir.2006). The defendant has, however, developed an administrative claims process for Hispanic and female farmers to resolve their claims of discrimination against the USDA. Participation in the administrative claims process is conditioned on dismissal of a farmer's legal claims against the USDA.
The Association seeks to intervene in this litigation.... [I]t seeks a declaration finding that “both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate that its members who are eligible ‘Pigford claimants' under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers.”
The motion to intervene was denied.
For more details of the history of the women's lawsuit, see Women Farmers Litigation.
Thursday, June 5, 2014
Women lawyers earn less because they are billed out at significantly lower rates. Female Lawyers Can Work Longer and Harder but Will Still Be Paid Less. Why? Firms don't equally value women's work? Firms don't think clients equally value women's work? Or so clients can get the same work product for less? (think teachers in the 19th century)
Another report traces a similar phenomenon back to high school: A Woman With Perfect Grades is Worth the Same as a Man with a 2.0 Average