Tuesday, May 12, 2015

EEOC Conciliation Ruling - Good or Bad for Businesses?

We posted posted about the new decision Mach Mining v. EEOC upholding limited judicial review for the EEOC's conciliation process.

Here's more commentary about the case: WSJ, Legal Experts Weigh in on Supreme Court's EEOC Ruling

Business litigants in recent years have notched a number of victories in cases before Supreme Court. But Wednesday’s high court ruling in a dispute over the government’s handling of discrimination complaints gives employers little to cheer, according to legal experts.

 

While the Supreme Court handed business a narrow and technical victory – ruling that courts do have limited power to review how the Equal Employment Opportunity Commission handles discrimination complaints before it decides to sue an employer – some lawyers familiar with the issues say that the long-term gain is for employees.

 

“I think it’s unambiguously a win for the EEOC and complainants,” University of Colorado law professor Melissa Hart, who specializes in civil procedure and employment discrimination, told Law Blog on Wednesday.

May 12, 2015 in Business, Equal Employment | Permalink | Comments (0)

Thursday, May 7, 2015

Get the Facts: Statistics on Women in the Law

ABA Commission on Women, A Current Glance at Women in the Law (July 2014).

Women are:

  • 34% of the legal profession
  • 44.8% of associates 
  • 17% of equity partners
  • 20% of all partners
  • 4% of managing partners at BigLaw
  • 16% of general counsels
  • 47% of law students
  • 46% of law review leaders
  • 20% of law deans
  • 45.7% of associate deans
  • 66% of assistant deans
  • 24% of the federal judiciary
  • 27% of the state judiciary
  • and women lawyers make 78.9% of what men make

May 7, 2015 in Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Thursday, April 30, 2015

SCOTUS Holds Title VII ADR Requires More Judicial Scrutiny than Business ADR

That's my takeaway. 

Yesterday, the Supreme Court unanimously decided Mach Mining v. EEOC finding a meaningful role of judicial review in Title VII conciliation procedures. 

It just strikes me as 180 degrees apart from the long line of arbitration cases in which the Court repeatedly upholds the inability for judicial inquiry into business, employment, civil rights, consumer and all other arbitration cases. 

The Court's answer is likely that the federal statutes are different.

And that one is administrative action which is usually reviewable, and one is business action which is not.

And that it is recognizing only a very limited review. But its not. It is requiring notice and an opportunity for the business to prove voluntary compliance.  That's due process, right? So the Court is imposing on sex discrimination cases an obligation of fair adjudication that is completely absent in ADR business cases. And seemingly tipping the balance in favor of businesses. 

 

 

April 30, 2015 in Equal Employment | Permalink | Comments (0)

Tuesday, April 28, 2015

Sixth Circuit Holds Employees Cannot be Fired as Retaliation for Complaining to Sexually Harassing Boss

ABA J, Workers Who Complain to Sexually Harassing Boss are Protected from Retaliation, Appeals Court Says

Employees who tell their bosses to stop sexually harassing them are engaging in protected activity and are protected from retaliation, a federal appeals court has ruled.

The decision on Wednesday by the Cincinnati-based 6th U.S. Circuit Court of Appeals creates a circuit split, according to Law360 (sub. req.) and Law.com(sub. req.).

The decision upheld a $1.5 million award to four employees at New Breed Logistics in Memphis who say they were fired after complaining to the harassing warehouse supervisor. Three of the employees were women who say they were harassed and a fourth was a man who complained on their behalf.

The company had argued it shouldn’t be liable because there was no evidence that company higher-ups were aware of the supervisor’s conduct.

April 28, 2015 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, April 14, 2015

Lawyer Loses Sex Discrimination Suit

NLJ, Former Booz Allen Lawyer Loses Discrimination Suit

A former lawyer at Booz Allen Hamilton Inc. who claimed that women older than 40 faced a “glass ceiling” within the company has lost her discrimination case.

 

Carla Calobrisi joined Booz Allen’s law department in 2000 at age 44, according to court records. In 2011, she said she was demoted from “principal” to “senior associate” as part of internal restructuring. She resigned shortly after and filed a lawsuit against Booz Allen in 2013.

 

U.S. District Judge Anthony Trenga in Alexandria, Virginia, sided with Booz Allen last week and dismissed the case. Trenga found that Calobrisi failed to show that Booz Allen’s decision to restructure the law department was a pretext for discrimination.

April 14, 2015 in Equal Employment, Women lawyers | Permalink | Comments (0)

Tuesday, April 7, 2015

LA DAs File Sexual Harassment Claim Against Supervisor

ABA J, Sexual Harassment Suit Filed by 2 Deputy DAs Against Their Former Supervisor

Two deputy district attorneys for Los Angeles County are suing their former supervisor, saying he sexually harassed them and gave out “stale” cases when they rejected him.

 

According to the Los Angeles Times, Tannaz Mokayef and Beth Silverman’s lawsuit says profanity and sexual favors are commonplace in the major crimes division of the DA’s office, which handles some of the highest-profile crimes in the county.

 

The accusations are against Gary Hearnsberger, then head deputy of the major crimes division. The lawsuit says he repeatedly subjected the two women to unwanted touching, graphic sexual comments and sexual gestures. Silverman alleged Hearnsberger touched her buttocks at least twice, and followed it up once by saying “You know you like it.” Mokayef says Hearnsberger compared her vibrating phone to a sex toy and repeatedly told her she “smells good.”

 

The women say that when they rejected his advances, they were penalized—not only with “stale cases” given to Mokayef, but also with profanity and screaming directed at her and humiliating public criticism of Silverman. By contrast, they said female attorneys who cooperated were given opportunities for career advancement.

 

They also accuse Hearnsberger of other crude behavior at work, including jokes about a transgender attorney’s genitals and showing up to a 2012 costume party for those working in the hardcore gangs division wearing a stuffed sheep stapled to the crotch of his overalls. Photos of this costume were Exhibit 3 to the complaint.

April 7, 2015 in Equal Employment, Women lawyers | Permalink | Comments (0)

Tuesday, March 31, 2015

More on the Pao Verdict

Commentary on the Ellen Pao verdict finding no gender discrimination continues

NYT, What Silicon Valley Learned from the Kleiner Perkins Case

Daily Princetonian, Pao '91 Loses Discrimination Lawsuit (quoting John and I)

Reuters, Juror in Gender Lawsuit Sympathized with Pao, Sided with Kleiner

Reuters, In Losing Gender Bias Trial, Pao's Lawyers Denied Millions in Fees

 Some of the gendered facts continue to leap off the page at me.  

  • A female associate told in performance reviews to soften, be collaborative, develop consensus-- play nice.  While the male associate is told to get more operating experience. One is objective, the other subjective and dependent upon the reactions of the male colleagues.  It is the old trope of the good girl. 
  • The male supervisor documented to the file women's marital status and whether they had children, but made no such notes for men.
  • The sexualized environment of men relaying stories of pornography, strip clubs, and viewing female co-workers as sexual prey.
  • Jurors reportedly dismissed the sexism as a "generational thing." So the law has an "old white men exemption"?  But the sexist behaviors are not dying out, they are being perpetuated through business culture to the next generation. 
  • Jurors also reportedly didn't like Pao because she didn't remain nice and friendly on the stand. It was hard to like her. The nice girl thing again. 

March 31, 2015 in Equal Employment | Permalink | Comments (0)

Analyzing the Supreme Court's Recent Decision on Pregnancy Accommodations

The U.S. Supreme Court recently decided Young v. UPS.  By a vote of 6-3, the Court ruled on procedural grounds that summary judgment was inappropriate and Young should have been allowed to try the facts of the case.

Joanna Grossman (Hofstra) & Deborah Brake (Pitt), Forceps Delivery:The Supreme Court Narrowly Saves the Pregnancy Discrimination Act in Young v. UPS, Justia.com

The majority opinion, written by Justice Breyer, split the baby. It rejected the interpretations offered by both parties. With respect to Young’s interpretation, Breyer wrote that pregnant women were not entitled to “most favored nation” status, under which they could demand an accommodation that was offered to any other worker. This, the majority wrote, was too broad a reading of the second clause. (At least Justice Alito, who otherwise took a more narrow approach to clause two, avoided the oddly abstract and impersonal “most favored nation” terminology and instead referred to “most favored employees.”) With respect to UPS’s interpretation, the majority reasoned that such an interpretation would collapse the second clause into the first, in violation of an important principle of statutory construction. And even more damningly, this reading would have allowed the employer’s policy in Gilbert—which covered all sicknesses and accidents—to be upheld despite the incontrovertible fact that the PDA was enacted expressly to overrule that opinion.

 

The majority, instead, crafted a new approach to applying the Second Clause of the PDA, which, it claims, “minimizes the problems [of the parties’ interpretations], responds directly to Gilbert, and is consistent with longstanding interpretations of Title VII.” The Court’s approach makes use of the so-called McDonnell-Douglas test, which is used to smoke out discriminatory intent by employers accused of unlawful disparate treatment. Under that test, a plaintiff must first make out a prima facie case, demonstrating that she was treated differently from someone similarly situated but outside the protected class.

Liz Morris, & Joan Williams, What Young v. UPS Means for Pregnant Workers and Their Bosses, Harvard Business Review.

The U.S. Supreme Court case decided this week makes it significantly more likely that pregnant women denied workplace accommodations will succeed in their legal claims against the employers who denied them.

 

The Court’s decision in Young v. UPS holds that there may be some situations in which employers can accommodate some groups of employees, without also accommodating pregnant employees, but then creates a test so strict that it in effect eliminates employers’ ability to do just that

March 31, 2015 in Equal Employment, Family | Permalink | Comments (0)

Thursday, March 26, 2015

Missouri Proposes Legislation for Equal Pay

Webber Presents Legislation Aiming to Address the "Pay Gap" Between Men and Women Workers

 A Missouri House committee on Monday heard legislation that aims to reduce the pay gap that exists between men and women in Missouri.

 

The bill, sponsored by Rep. Stephen Webber, D-Columbia, would require the Missouri Department of Labor and Industrial Relations to create guidelines detailing best practices for achieving pay equality for both public and private employees.

 

“A number of studies here in Missouri and nationally have documented over time, consistently, that women make less than men do,” Webber said. He pointed directly to a study released last month by the Women’s Foundation which showed that a woman in Missouri makes 71 percent of what a man in an equal position, in the same location and with an equal education would make.

March 26, 2015 in Equal Employment | Permalink | Comments (0)

Saturday, March 21, 2015

Boston Scientific Gender Discrimination Suit Alleges Two-Track System

Boston Globe, Boston Scientific Firm Hit with $50M Gender Discrimination Suit

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.

 

March 21, 2015 in Business, Equal Employment | Permalink | Comments (0)

Thursday, March 19, 2015

Girls Do More Chores than Boys and Paid Less.

Children, Chores, and the Gender Pay Gap at Home

Girls do more chores than boys and are less likely to get an allowance in exchange for their work. When they do, they are paid less.

 

Research projects on children’s time use find that boys do 43 to 46 minutes of housework for every hour that girls do. When asked to list the chores they do, girls list 42 percent more chores than boys. Girls are as likely as boys to participate in outside chores and more likely to clean their own rooms, help prepare meals, and care for sibling and pets; the only thing boys report doing more often than girls is basic housecleaning.***

 

Not only are girls more likely to be asked to help out around the house, they are less likely to get paid. The Michigan study found that boys are 15 percent more likely than girls to get an allowance for the chores they do. And when they do get paid, they get a lower wage than their brothers. Male babysitters get paid $0.50 more an hour than females. Girls do 35 percent more work than boys, but bring home only $0.73 cents on boys’ dollar.

 

The gender pay gap starts early.

Side note: studying for both genders is at the bottom of the list.

 

 

March 19, 2015 in Equal Employment | Permalink | Comments (0)

Tuesday, March 17, 2015

Novartis Hit with Multi-Million-Dollar Gender Discrimination Suit...Again

Reuters, Novartis Unit Hit With $110M Gender Discrimination Suit

 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.

March 17, 2015 in Business, Equal Employment | Permalink | Comments (0)

Throwback Sexism

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.

March 17, 2015 in Business, Equal Employment | Permalink | Comments (0)

Saturday, March 14, 2015

The Jury's Questions in a Sex Discrimination Suit

Reuters, Woman in Silicon Valley Bias Suit Faces Tough Jury Questions

A former Kleiner Perkins Caufield & Byers partner who has sued the venture firm for gender discrimination faced tough questions on Friday from jurors about her communication skills, a decision to have an affair with a fellow partner, and other issues. ***

At least 37 states, including California, permit jurors to pose their own questions in civil cases once the lawyers are done, according to the American Judicature Society. Many states leave it up to the trial judge to decide whether to do so

  • "Do you think your manner of communicating was professional?" asked one juror.
  • One juror asked if it was "professional to enter into affair with married partner?"
  • Another juror asked why Pao remained at Kleiner for several months in 2012 after she filed her lawsuit.

March 14, 2015 in Equal Employment | Permalink | Comments (0)

Thursday, February 26, 2015

Silicon Valley Gender Discrimination Trial

USA Today, Ellen Pao Lawyer: Kleiner Perkins "Not a Level Playing Field"

A much-anticipated Silicon Valley gender discrimination trial began Tuesday with both sides going into opening arguments swinging.

 

The case involves Ellen Pao, a former partner at Silicon Valley's premier venture capital firm Kleiner Perkins Caufield & Byers.

 

Pao is seeking $16 million in back pay and future wage losses after, she says, she was dismissed from her position in October 2012. Kleiner Perkins says she was advised to leave based on her performance.

Pao became the CEO of Reddit, a popular microblogging site, in November. The trial comes during a time of raised public discourse around Silicon Valley's insular culture, which is overwhelmingly made up of white and Asian men. Women, African Americans and Hispanics are underrepresented.

February 26, 2015 in Equal Employment | Permalink | Comments (0)

Tuesday, February 24, 2015

At Oscars, Patricia Arquette Calls for Gender Equality

What She Said: Patricia Arquette Calls for Wage, Gender Equality in Show-Stealing Oscar Speech (including a reference to Justice Scalia's view that the Constitution does not protect against sex discrimination).

The Criticism: 

    What Patricia Arquette Got Right (and Wrong) About Equal Pay

    Patricia Arquette's Feminism: Only for White Women

February 24, 2015 in Equal Employment | Permalink | Comments (0)

Supreme Court's Decision Defining "Supervisor" has Detrimental Impact on Sexual Harassment Plaintiffs

43 Sexual Harassment Cases That Were Thrown Out Because of One Supreme Court Decision

Before June of 2013, a court may have very well found that Lopez was her supervisor. But that’s not how her case went. Thanks to a Supreme Court decision in the Vance v. Ball State University case, the judge presiding over Mary McCormack, et al v. Safeway Stores Incorporated decided that Lopez wasn’t her supervisor. TheVance decision significantly narrowed the definition of supervisor when it comes to harassment cases, limiting it to someone who has the power to hire, fire, promote, or otherwise tangibly impact a report’s employment.

 

Advocates for the victims of sexual harassment feared that the Vance decision would make it more difficult to get justice. Their fears have played out. According to an analysis from the National Women’s Law Center conducted for ThinkProgress, 43 sexual harassment cases have been dismissed because a supervisor didn’t meet Vance’s restricted definitions, and the victim couldn’t prove that the employer was negligent in coworker harassment. (Vance also applies to harassment on other grounds, but the analysis is limited to sexual harassment cases in federal courts.)

February 24, 2015 in Equal Employment | Permalink | Comments (0)

Thursday, February 12, 2015

More on the Ames Case and How the Courts Ignored Blatant Sex Discrimination

Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?

There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.

 

In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***

 

"Just Go Home And Be With Your Babies"

The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."

 

It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.

 

In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."

 

Waiting Three Days to Pump – Not Intolerable?

 

The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."

 

Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection. 

 A few thoughts:

1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'"  This is really the crux of the problem.  The courts still just don't get it. 

 

2.  The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies."  There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement.  Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later. 

February 12, 2015 in Equal Employment, Family, Reproductive Rights, Workplace | Permalink | Comments (0)

Tuesday, February 10, 2015

Officekeeping, Double Standards, and the Beauty Myth of Work

Several articles about men and women being treated and perceived differently despite similar performances.  Men have the golden halo effect of brilliance and higher appreciation and return on work, while women run twice as fast to get to the same place.  If they can. 

NYT, Madam CEO, Get Me a Coffee

This is the sad reality in workplaces around the world: Women help more but benefit less from it. In keeping with deeply held gender stereotypes, we expect men to be ambitious and results-oriented, and women to be nurturing and communal. When a man offers to help, we shower him with praise and rewards. But when a woman helps, we feel less indebted. She’s communal, right? She wants to be a team player. The reverse is also true. When a woman declines to help a colleague, people like her less and her career suffers. But when a man says no, he faces no backlash. A man who doesn’t help is “busy”; a woman is “selfish.”

 

In a study led by the New York University psychologist Madeline Heilman, participants evaluated the performance of a male or female employee who did or did not stay late to help colleagues prepare for an important meeting. For staying late and helping, a man was rated 14 percent more favorably than a woman. When both declined, a woman was rated 12 percent lower than a man. Over and over, after giving identical help, a man was significantly more likely to be recommended for promotions, important projects, raises and bonuses. A woman had to help just to get the same rating as a man who didn’t help.

Is the Professor Bossy or Brilliant? Much Depends on Gender

Male professors are brilliant, awesome and knowledgeable. Women are bossy and annoying, and beautiful or ugly.

 

These are a few of the results from a new interactive chart that was gaining notice on social media Friday. Benjamin Schmidt, a Northeastern University history professor, says he built the chart using data from 14 million student reviews on theRate My Professors site. It allows you to search for any word to see how often it appeared in reviews and how it broke down by gender and department.

 

The chart makes vivid unconscious biases. The implications go well beyond professors and college students, to anyone who gives or receives feedback or performance reviews.

 

It suggests that people tend to think more highly of men than women in professional settings, praise men for the same things they criticize women for, and are more likely to focus on a woman’s appearance or personality and on a man’s skills and intelligence.

 

February 10, 2015 in Equal Employment, Work/life | Permalink | Comments (0)

Saturday, February 7, 2015

Lactation is not Related to Pregnancy and Other Interesting Findings of the Courts who Denied a Nursing Mom was Constructively Discharged

Lots of questions about the Ames v. Nationwide Insurance case I previously posted about.SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men can Lactate Too

 First, no clues as to what the Justices’ vote was here on the denial of cert.  We are not generally privy to this information, and no Justice here wrote a dissent from the denial.  My guess is that this is a messy case and that the most problematic reasoning was 1) in the trial court opinion rather than the Eighth Circuit opinion and 2) that it was viewed as an employment case about constructive discharge rather than the retro pregnancy discrimination that it is. 

 This is really a pretty outrageous case.  Factually, and Gender-wise if not legally.  Woman who is an insurance loss-mitigation specialist has baby #1 and takes 8 weeks maternity leave.  Then oops, pregnant with baby #2 three months later.  High risk pregnancy that requires bed rest, and the paper is born prematurely.  Nationwide messes up her maternity leave return date, and calls her while on leave and says you have to come back to work a few weeks earlier, and says taking unpaid FMLA leave would “raise red flags” and is not advised.  She returns on time, and on her first day back, she is denied access to the lactation room – which is an area requiring special security clearance and mandatory pre-approved paperwork with a three-day waiting period. (They lost me here).  Turns out the temporary substitute did none of the work while she was gone and she has two weeks to work overtime to complete the two months worth of work, and her supervisor, a woman, in response to her repeated requests for a nursing room as she is in pain, says “You know, I think it's best that you go home to be with your babies” and dictates her resignation letter to sign.   

 The main holding is she didn’t try hard enough to keep her job.  She was supposed to stick it out more, complain more, follow the channels of appeal.  Neither the trial court nor the Eighth Circuit is in the least bit sympathetic. 

 The Eighth Circuit opinion seems to just ignore the evidence. “ Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit.”  (Really? If you say so.)  And superficially concludes “That Nationwide's policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.”

 The trial court actually frames the problem as women’s problem in trying to have both a family and career. . “Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many, expressing breast milk in the workplace is incompatible with the desire to pursue a successful career. With respect to these challenges and the resulting social response, the Honorable Lewis A. Kaplan commented as follows:

                ‘The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial. Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999).

 And here is the most ridiculous conclusion.  Lactation is not related to pregnancy.

 Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

  Therefore, nursing issues not pregnancy discrimination. The end.  

And that is a pretty big issue, which is why the ACLU was likely involved.  In the old pre-PDA Supreme Court cases like Gilbert, the Court said that pregnancy was not sex discrimination.  Now the courts are saying nursing is not pregnancy.  

The Eighth Circuit Opinion is here. [WESTLAW]

The trial court opinion is here.

 

 

February 7, 2015 in Equal Employment, Reproductive Rights, Workplace | Permalink | Comments (0)