Gender and the Law Prof Blog

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

Tuesday, May 23, 2017

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination

The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.

Some of the highlights of the petition:

  • The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
  • A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
  • The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
  • Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
  • We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).

For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less

For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017) 

Two important points to keep in mind are:

  1.  How salary histories can be gendered:  Historically women have been paid less than men because they could be.  "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power.  Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family.  It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay.  And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries.  These are all workings of structural or systemic gender discrimination beyond any individual animus.                                                                                                                            
  2.  There are easy non-gendered workarounds:  As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination.  Consider the factors directly of work experience, number of years of experience, and education and degrees.     

 

May 23, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, May 16, 2017

Proskauer Sued by Partner in Gender Bias Suit

Partner Hits Proskauer with 50 Million Gender Bias Suit  

An unnamed partner in Proskauer’s Washington, D.C., office has sued the firm in federal court, alleging she is a victim of discrimination and claiming “substantial gender disparities” in the firm’s partnership. The suit claims at least $50 million in damages.

 

Proskauer called the claims “groundless” and suggested that the partner sought to force a payout after her practice faltered.

 

The complaint was filed Friday in D.C. by lawyers at Sanford Heisler Sharp—which is also leading a high-profile gender bias lawsuit in New York on behalf of current and former female Chadbourne & Parke partners. Proskauer represents Chadbourne in that case.

 

The plaintiff in Friday’s lawsuit accuses Proskauer of paying her millions of dollars less than her male counterparts, despite her “standout performance” at the firm.

 

“Among other things, Proskauer excluded plaintiff from client matters, declined to allow plaintiff to pitch or to participate in any employment litigation matter for firm clients, rebuffed her efforts to assume a greater leadership role at the firm, tolerated and facilitated an environment where she was targeted for harassment and humiliation by firm leadership, demeaned and belittled her to her peers and clients, and refused to rectify pay disparities,” the suit alleges.

May 16, 2017 in Equal Employment, Women lawyers | Permalink | Comments (0)

Friday, May 5, 2017

NYC Passes Legislation Banning Employers' Use of Salary Histories

 Employers in New York City Won't Be Able to Ask for for Your Salary History Anymore

Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.

 

"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.

 

More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.

 

Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.

 

A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]

 

Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.

 

The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]

NY state has proposed a similar bill:

2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017  

Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.
 
The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.
 
The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.
 
The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.
 
The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.
 
This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.
 
Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.
Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.
 
Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.
 
The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.
 
The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.
 
More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.
 
Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.
 
During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.
 
Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.

In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.
 
Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed

May 5, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Thursday, May 4, 2017

Reviving Paycheck Fairness: The Factor-Other-Than-Sex Defense

Deborah Brake, Reviving Paycheck Fairness: Why and How the Factor-Other-Than-Sex Defense Matters, 52 Idaho L.Rev. (2016)

Ever since the Supreme Court’s short-lived decision in Ledbetter v. Goodyear Tire Company, the equal pay movement has coalesced around the Paycheck Fairness Act as the legal reform strategy for addressing the gender wage gap. The centerpiece of the Act would tighten the Factor Other Than Sex defense (FOTS) to require the employer’s sex-neutral factor to be bona fide, job-related for the position in question, and consistent with business necessity. Even without the Paycheck Fairness Act, some recent lower court decisions have interpreted the existing Equal Pay Act to set limits on the nondiscriminatory factors that can satisfy the FOTS defense, effectively incorporating a business necessity standard to assess the strength of the employer’s justification for the pay disparity.

This move to heighten judicial scrutiny of the FOTS defense is not without controversy. Some critics of the Paycheck Fairness Act have charged that requiring an employer to use a bona fide, business-justified factor to defend a pay disparity would turn the equal pay claim into a disparate impact claim, leaving it unmoored from its doctrinal and normative foundations. Others question whether the strategy goes far enough to make a difference in plaintiffs’ poor success rates, since it does nothing to relieve the problem of courts requiring strict similarity between comparators, a problem that would remain as a roadblock to proving a prima facie equal pay case. This article surveys recent developments in the Equal Pay Act case law interpreting the FOTS defense and considers how these developments compare to the changes proposed in the Paycheck Fairness Act. It then argues that the Supreme Court’s recent pregnancy discrimination decision in Young v. UPS, which uses unjustified impact to infer discriminatory intent, can help respond to the criticism of the proposed changes to the FOTS. The Court in Young took a similar step in incorporating a business necessity test to smoke out employer intent in a disparate treatment framework. Finally, the article defends judicial scrutiny of the employer’s business justifications for unequal pay as a way to ensure that the equal pay laws move beyond a narrow understanding of pay discrimination as conscious animus to encompass implicit bias. In addition to making the equal pay claim more likely to succeed in litigation, the tightening of the FOTS defense brings to the forefront the core issue in the politics of pay equality: the legitimacy of market explanations for paying women less to do substantially equal work.

May 4, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Monday, May 1, 2017

Court Holds Salary Histories are Non-Discriminatory Basis for Paying Women Less

Employers Can Pay Women Less Than Men Based on Salary History, 9th Circuit Holds

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Thursday that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy, the San Francisco Chronicle reports.

 

In the ruling in Rizo v. Yovino (PDF), the 9th Circuit cited and upheld its earlier ruling in a similar case in 1982. In that matter, Kouba v. Allstate Insurance Co., the appeals court said that an employee’s prior salary can be considered “a factor other than sex” under the federal Equal Pay Act if the employer can show that doing so “effectuate[s] some business policy” and is done “reasonably in light of [its] state purpose as well as its other practices.”

 

In that case and in the current one, the appeals court remanded the matter for the trial court to evaluate the business reasons put forth by the Fresno County school system in setting the salaries.

 

The case was brought by Aileen Rizo, who was hired by Fresno County schools in 2009 as a math consultant, a management position. She had previously worked as a schoolteacher in Arizona for 13 years and in Fresno County got a starting salary of $62,733, almost $10,000 more than at her last job, but at the bottom of the scale in her new one.

 

In 2012, Rizo learned in lunchtime conversation with colleagues that a man who had just been hired in the same position as hers was getting approximately $79,000 a year, and subsequently learned that others in the job, all men, made more than she did. She sued. ***

 

One prominent critic says the decision feeds rather than stems pay discrimination against women.

 

“This decision is a step in the wrong direction if we’re trying to really ensure that women have work opportunities of equal pay,” Deborah Rhode, who teaches gender equity at Stanford Law School, told the Associated Press. “You can’t allow prior discriminatory salary setting to justify future ones, or you perpetuate the discrimination.”

 

Daniel Siegel, Rizo’s lawyer, told the Associated Press that the case could reach the U.S. Supreme Court because other appeals courts have decided differently on the issue.

The decision is completely tone deaf as to understanding systemic and structural discrimination.   

For the recent legislative trend to enact laws to specifically prohibit the use of salary histories, see:

Philadelphia First City to Ban Salary Histories as Perpetuating Gender Discrimination

Equal Pay Legislation Banning Salary History Questions is Based in Data

May 1, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Friday, April 28, 2017

Task Forces and Best Practices Rather than Litigation to Achieve Gender Equity for University Faculty

Constance Z. Wagner, Change From Within: Using Task Forces and Best Practices to Achieve Gender Equity for University Faculty

This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.

This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective.

April 28, 2017 in Education, Equal Employment | Permalink | Comments (0)

Thursday, April 13, 2017

Books: History Book Award Winners on Subjects of Gender and Law

  The Organization of American Historians has announced it book awards for 2016. Those that may be of interest on gender and law include: 

 

Darlene Clark Hine Award for the best book in African American women’s and gender history.

LaShawn D. Harris, Michigan State University, Sex Workers, Psychics, and Number Runners: Black Women in New York City's Underground Economy (University of Illinois Press).

Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.

Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press).

Equality on Trial

 

David Montgomery Award for the best book on a topic in American labor and working-class history, with cosponsorship by the Labor and Working-Class History Association (LAWCHA).

Ryan Patrick Murphy, Earlham College, Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice (Temple University Press).

April 13, 2017 in Books, Equal Employment | Permalink | Comments (0)

The Google Pay Discrimination Case

Google Accused of "Extreme" Pay Discrimination by US Labor Department

Google has discriminated against its female employees, according to the US Department of Labor (DoL), which said it had evidence of “systemic compensation disparities.” 

 

As part of an ongoing DoL investigation, the government has collected information that suggests the internet search giant is violating federal employment laws with its salaries for women, agency officials said.

 

 “We found systemic compensation disparities against women pretty much across the entire workforce,” Janette Wipper, a DoL regional director, testified in court in San Francisco on Friday.

 

 Reached for comment Friday afternoon, Janet Herold, regional solicitor for the DoL, said: “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”

 

 Herold added: “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry.”

 

Google Says US Suit is Wrong--It Pays Women Fairly

Google says it's "taken aback" by the Labor Department's claim it doesn't fairly compensate women.

 

 The Internet giant says it conducts robust scientific analysis to ensure there is no gender pay gap.

 

 "It’s very important to us that men and women who join Google in the same role are compensated on a level playing field, when they start and throughout their careers here," Eileen Naughton, Google's vice president of people operations said in a blog post.

 

 An ongoing Department of Labor investigation found that Google systematically pays women less than men, according to department officials. The alleged pay gap was uncovered during a routine audit of Google which, as a federal contractor, is barred from discriminating against employees.

Department of Labor's Gender Pay Case Against Google is About Definition of Pay Discrimination

We have laws about paying people who do the same job different amounts because of their gender. Similarly we don't allow people doing the same job to be differentiated against (or in favour of) according to the melanin content of their skin, their national origin nor whichever expressed gender they prefer to chat up on date night. But all of that is about the same job.***

 

 When we move the goalposts a bit and start talking about similar jobs then, well, then it's all different, isn't it? Is an HR manager doing the same job as a programming manager? No, obviously not--but are they doing a similar job?

 

 Google is using a strict definition of "same job" to find no gender pay gap. The Department of Labor is using a looser definition of "similar job" to find that there is one. Who you think is right here is entirely up to you but that's where the disagreement is.

 

April 13, 2017 in Equal Employment | Permalink | Comments (0)

Monday, April 10, 2017

What Does the Minimum Wage Have to do with Reproductive Rights

Terry O'Neill, President, National Organization for Women, What Does the Minimum Wage Have to Do with Reproductive Rights?, 49 Akron Law Review 314 (2016)

In January of this year, I had the honor of delivering remarks at the AALS Section on Socio-Economics annual luncheon. The subject of my talk, What does the minimum wage have to do with reproductive rights?, undoubtedly struck many in the audience as attempting the impossible— linking two issues that, while each important and timely, are entirely separate. Surely, the argument goes, a woman’s right to choose abortion simply does not occupy the same analytical or policy space as a worker’s right to fair wages and terms of employment.

In this Essay, however, I will sketch out my reasons for claiming that these issues are inextricably interwoven—that in fact, the minimum wage issue is a women’s issue, while reproductive justice is an economic issue, not only for women but for their families as well. ***

The most immediate reason I hold this view, of course, is that I lead the National Organization for Women (NOW), which has long taken up economic justice and reproductive rights as “core issues” that are both intertwined and equally salient. Indeed, the organization’s bylaws declare its purpose as leading societal change through “intersectional grassroots activism,” and it has long identified six core issues, the four in addition to the two named above being: to end racism; win lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights; end violence against women; and amend the U.S. Constitution to include equality for women. Not only are these core issues viewed as deeply linked, but under NOW’s internal policies, one may not be prioritized over the others. As a result, should you ask any longtime NOW leader what the minimum wage has to do with reproductive rights, your most likely answer would be, “Well . . . that’s obvious!”

 

April 10, 2017 in Abortion, Equal Employment | Permalink | Comments (0)

Cloaking: Public Policy and Pregnancy

Julie Manning Magid, Cloaking: Public Policy and Pregnancy, 53 Amer. Bus.L.J. 439 (2016)
 
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.

In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.

Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”

April 10, 2017 in Equal Employment, Family, Poverty, Pregnancy | Permalink | Comments (0)

Thursday, March 30, 2017

Why the Pence Rule of Working with Women is Sexist

Much ado in the news today about the Pence Rule of Working with Women. There are reports of Vice-President Mike Pence’s practice that he “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side.” It was mentioned in the context of discussing he and his wife Karen have preserved their marriage.  Pence’s rule is actually a version of the "Billy Graham Rule" adopted by the famous evangelist.  Rev. Graham refused to meet, travel, or dine with a woman alone.  A similar story about a similar practice among conservative members of Congress appeared in 2015.  The rule is also sometimes thrown around (by non-lawyers) in sexual harassment training as a “best practice” and way for men to protect themselves against false accusations by women.

Commentary has pointed out how the Pence/Graham practice penalizes women by denying them access to fully do their job, as well as advancement.  See How Mike Pence's Refusing to Eat with Women Hurts Women And that it is illegal sex discrimination because it denies women equal opportunity in the workplace.  The current discussion serves as a reminder of the more subtle ways in which sex discrimination exists in the workplace today, evolved from the days of segregated help-wanted ads into segregated access to full workplace responsibilities.

Missing so far from the discussion is something more fundamental to understanding the law against sexism. What is discriminatory about the Pence-Graham practice is that it reinforces sexist ideas of women. It depicts women as sexual objects, regardless of context. As primarily sexual objects, they are controlled and dominated by male-led society. Systemically this is a legal problem because all women are treated as inferior based on subordinate ideals of women’s true nature as sexual object.  This is the core of legal theorist Catharine MacKinnon’s work showing the deeper social and systemic nature of sexism when law and business practices allow it to continue.

MacKinnon made her argument initially in the context of sexual harassment. The Pence Rule is an overcorrection of the same problem.  While not encouraging the sexual behavior of women, it still conveys the same message that women exist only for sex and control by men. 

Moving from the theoretical to the practical, the Pence Rule also clearly reinforces the notion that women at work are not equally relevant.  Men in power have no real need to meet with women in a confidential setting.  The judge does not need to deliberate in confidence with a law clerk, the dean does not need to discuss confidential matters with the associate dean, and the president does not need to dine with the prime minister.

 

March 30, 2017 in Equal Employment, Theory | Permalink | Comments (0)

Monday, March 27, 2017

Exploring Why Women are Twice as Likely to Win Family Leave Cases than Employment Discrimination

Katharine Bartlett, When Less is More, JOTWELL, reviewing Kate Webber, Families are More Popular Than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws, 32 Colum. J. Gender & Law 145 (2016).

Why are employees who sue to obtain workplace leave under the Family Medical Leave Act of 1993 (FMLA) almost twice as likely to win their cases as those who bring discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII)? The title of Kate Webber’s intriguing article reflects an intuition many feminists and family law scholars already bring to the table: courts find women more sympathetic when they make claims that conform to their appropriate gender roles (as they do when they ask for family leaves) than when they challenge those norms in the workplace (as they do when they make a claim that the workplace is discriminatory). Webber unpacks this intuition, first by identifying differences in the statutory schemes that might help to explain the gap in success rates between the two statutes, and then by examining the ways in which the content of the legal protections each statute provides might understandably trigger different ideological and cognitive responses by judges. The analysis is both cautious and compelling. It is also surprisingly optimistic, concluding that family leave laws provide a legislative model that may actually be more effective than Title VII in reducing institutional workplace inequality.

March 27, 2017 in Equal Employment | Permalink | Comments (0)

Thursday, March 23, 2017

Reinventing Antidiscrimination Law

Nancy Levit, June Carbone, Naomi Cahn, Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, Texas L. Rev. (forthcoming)

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises of antidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy.

March 23, 2017 in Equal Employment, Theory | Permalink | Comments (0)

Friday, March 17, 2017

EEOC Settles Sex Discrimination Suit with Damages and Prophylactic Remedies

Nestle Waters NA to Pay $300,000 to Settle Sex Discrimination Lawsuit

Water Company Denied Position to Veteran Manager Because of Her Gender, Then Eliminated Her Job Due to 'Consolidation,' Federal Agency Charges

 

TAMPA, Fla. -- Nestlé Waters North America, a Stamford, Conn.-based division of Nestlé Waters, the world's largest bottled water company, will pay $300,000 and furnish significant relief to resolve a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

 

According to the lawsuit, Nestlé violated federal anti-discrimination laws when it failed to select Dawn Bowers-Ferrara, a 20-year Nestlé veteran finance and budgeting manager, to the position of Florida Zone business manager because of her gender. Instead, the EEOC said, Nestlé selected a male employee for the newly created position, even though he failed to meet the minimum requirements for the role according to Nestlé's own job description. Nestlé then terminated Bowers-Ferrara's employment because of a "consolidation." Out of 14 Florida zone managers and zone manager supervisors, Bowers-Ferrara was the only female (and the only person) who lost her job as a result of the "consolidation."

 

Sex discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit against Nestlé in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. Nestle Waters North America, Case No. 8:15-cv-2197-RAL-TGW (M.D. Fla.)) after first attempting to reach a pre-litigation settlement though its conciliation process.

 

In addition to the $300,000 in monetary relief to Bowers-Ferrara, the three-year consent decree resolving the suit also requires Nestlé to provide her with 12 months of outplacement services. Nestlé is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its ReadyRefresh Florida managers and employees. The bottled water company must post notices throughout Florida regarding the settlement and report to EEOC bi-annually on its compliance with the consent decree, including its handling of complaints of sex discrimination.

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

Tuesday, March 14, 2017

Job Segregation as the Cause of Continued Unequal Pay and Some Employer Strategies to Redress

Tesla's Sexism Case Exposes a Major Reason for the Gender Gap

Despite progress, the U.S. labor market continues to be segregated by gender, one of the most significant factors contributing to the gender wage gap. The majority of women work in jobs primarily done by other women, such as nursing, and an even larger share of men work in jobs primarily done by other men, such as engineering. And, female-dominated jobs tend to pay much less, often despite similar skill requirements, than male-dominated ones. In fact, renowned economists Francine Blau and Lawrence Kahn estimate that about half of the overall gender wage gap in the economy is due to job segregation: Women make 80 cents for every dollar earned by a man, but of the 20 percentage points that stand between women and equal pay, about 10 percentage points are due to this segregation in the labor market (the rest of the gap is due to a combination of factors like education, time in the workforce, and yes, discrimination).*

 

Fortunately, some high-tech companies are taking the lead, voluntarily revealing the gender or racial composition of their workforce (like Facebook and Google), conducting internal pay audits (like Pinterest and Redfin), and spending money to bring women’s pay up (Salesforce and Intel).

Research from the Institute for Women’s Policy Research points to some lessons tech companies can learn before they ever reach the courtroom. Basic and relatively easy company practices that improve pay and promotion outcomes, such as posting all job openings, using panels (rather than a single supervisor) to determine pay increases and promotions, and making expectations for jobs clear and transparent to all are a great first step.

March 14, 2017 in Business, Equal Employment | Permalink | Comments (0)

Paying Female Coroner Half of What County Paid Male Coroner Not Discrimination but Honest Decision

Amos v. Vigo County Coroner, 2017 WL 914777 (S.D. Ind. Mar. 8, 2071) [Westlaw link only]

Because of the necessity of adding $50,000 to the budget . . . , implementation of the property tax cap, and the realization that the Vigo County coroner was being paid more than other counties' coroners, the Council adopted a budget in the fall of 2012 that reduced the coroner's base salary from $45,579 (Dr. Kohr's salary) to $21,270. Dr. Amos ran unopposed for Coroner in the 2012 election, and took office on January 1, 2013.***

 

In sum, because Defendants have presented legitimate, non-discriminatory reasons for lowering the Coroner salary, and since Dr. Amos has not presented any evidence that Defendants' stated reasons for decreasing the Coroner salary were pretextual, Defendants are entitled to summary judgment on Dr. Amos' claim. The Court will not second-guess Defendants' decision, absent any evidence whatsoever that Defendants did not believe those reasons were legitimate. See O-Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001) (“[W]e ‘do not sit as a kind of ‘super-personnel department’ weighing the prudence of employment decisions made by firms charged with employment discrimination' ... ‘On the issue of pretext, our only concern is the honesty of the employer's explanation.’ ... And there is no indication in the record that [the employer] did not honestly believe [its actions were correct]”) (citation omitted); see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999) (in order to show pretext, it is insufficient for employee “to show that his employer [acted] for incorrect or poorly considered reasons. He must establish that the employer did not honestly believe the reasons it gave for [its actions]”); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006) (finding insufficient evidence of pretext and stating “it is not our role to determine the competency of or interfere in employment decisions simply where we believe an employer has made a poor choice. Federal courts have authority to correct an adverse employment action only where the employer's decision is unlawful, and not merely when the adverse action is unwise or even unfair”). Additionally, glaringly absent is any evidence showing Defendants' actions were motivated by the fact that Dr. Amos is a female. [See alsoFiling No. 35-1 at 15-17 (Dr. Amos testifying that she is not aware of any documentation indicating that the Coroner salary decision was based on her gender, that she is not aware of any witnesses or individuals who would support her “core contention that the salary was fixed at a lower level because of [her] gender,” and that her only support for her gender discrimination claim is “third or fourth hand” rumors).]

March 14, 2017 in Equal Employment | Permalink | Comments (0)

Monday, March 13, 2017

3d Circuit Says Medical Resident's Title IX Sexual Harassment and Retaliation Claim Survives Motion to Dismiss

 
Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.
Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.
 
Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.
 
In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.
 
In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.
 
Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.
 
Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appea.
 

March 13, 2017 in Education, Equal Employment, Workplace | Permalink | Comments (0)

11th Circuit Decision Misunderstands Why Sex Discrimination is Discrimination

Slate, 11th Circuit Rules Title VII Does Not Prohibit Anti-Gay Discrimination

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11thCircuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

 

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII.*

 

That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of … sex.”

Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.

 

In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:

Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.”

March 13, 2017 in Equal Employment, LGBT | Permalink | Comments (0)

Wednesday, March 1, 2017

Female Employee Terminated after Refusing to Participate in Medicaid Fraud States Viable Claim for Sex Discrimination

US ex rel Michelle Morison v. Res-Care Inc (S.D. Ind. Feb. 3, 2017)

Relator/Plaintiff, Michele Morison, is a former employee of Defendant, Res-Care, Inc., which provides social, educational, and vocational services to individuals who are intellectually, physically, and developmentally disabled. After Res-Care terminated Relator's employment, she filed the present lawsuit.***.

 

Relator was hired by Res-Care as a Qualified Intellectual Disabilities Professional ("QIDP") on August 18, 2015. As a QIDP, she prepared developmental and behavioral plans. 

 

On February 25, 2015, Relator attended a staff meeting conducted by Jane Breedlove, the Executive Director. During this meeting, Breedlove informed the staff that there was a staffing crisis, and Res-Care did not have the necessary staff to perform direct care hours. This was a problem, Relator alleges, because Res-Care was paid a sum of money in advance to provide a certain amount of hours of direct care to residents.  Breedlove therefore advised the QIDPs to begin recording their time spent on preparing developmental and behavioral plans as direct care hours.  She also directed the QIDPs to backdate this time to reflect direct care in their progress notes for the month of February. The preparation of developmental and behavioral plans by QIDPs does not qualify as direct care that is reimbursed by Medicaid. 

 

Relator refused to report her time spent preparing developmental and behavioral plans as direct care hours.. James Newness, another QIDP, also refused, but other QIDPS at Res-Care agreed to do so.  Under this practice, and at least in February 2015, Res-Care falsely submitted claims for Medicaid reimbursement for the alleged performance of direct care hours by QIDPs preparing these plans.

 

In the weeks following the February 25, 2015 meeting, Clinical Manager Lindsay Johnson texted Relator asking her to "help with [direct care] hours." Relator responded that [*2] she was not going to do so, and that reporting non-direct care time as direct care time was Medicaid fraud. 

 

On March 6, 2015, Relator met with Program Manager Kelly Alexander and Human Resources Coordinator Regina Gibson. Alexander advised Relator that she either had to report her time spent preparing developmental and behavioral plans as time spent providing direct care to residents for Medicaid reimbursement or resign her position. Relator refused either option, and was terminated. Newness, who also refused, was not terminated. 

March 1, 2017 in Equal Employment | Permalink | Comments (0)

Tuesday, February 28, 2017

Third Circuit Holds Occassional and Sporadic Sexual Harassment over a Decade is not Actionable

Lorraine Kokinchak v. Postmaster General (3d Cir. Feb. 3, 2017)

Even if we were to consider the unexhausted allegations of sexual harassment, the behavior Kokinchak complains about falls short of the sort of conduct courts have said constitutes hostile work environment sexual harassment. See, e.g., Harris, 510 U.S. at 19-20; Meritor, 477 U.S. at 60-61. All of these allegations—those exhausted and unexhausted—consist merely of Brents's presence near Kokinchak. As the Postmaster General points out, Kokinchak “does not allege that Brents ever touched her sexually, was physically threatening, made lewd or inappropriate comments, or even that Brents spoke to her at all.” Appellee Br. at 24. Even considering Brents's status as someone Kokinchak formerly accused of harassment, no instance of Brents's occasional and sporadic presence near Kokinchak could rationally be considered severe, and together they occurred too infrequently—a few occasions spanning years—to be pervasive. While they may have been subjectively unwelcomed by Kokinchak, an objective person could not conclude they altered the terms and conditions of her workplace. Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, Title VII prohibits actual “discriminat[ion] because of sex.” Id.

 

Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167.

February 28, 2017 in Courts, Equal Employment | Permalink | Comments (0)