Thursday, June 25, 2015
The U.S. Park Police, in agreeing this week to pay $300,000 to a former detective who sued after she got pregnant and was assigned to clerical work, also threw out a longstanding policy that critics derided as out of touch with the times.
Pregnant officers were required to notify their supervisors as soon as they knew they were pregnant — and provide a doctor’s note authorizing them to keep working. “When the officer’s medical physician determines that she can no longer work, the officer shall be placed on maternity leave,” Sec. F of General Order 33.00 said.
The Park Police tweaked the policy after Renee Abt sued to say that women could notify their bosses in their first trimester of pregnancy. But the department had to throw that one out too.
Saturday, June 20, 2015
Legal History Blog, Woloch's "Class By Herself"
A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s
Saturday, June 6, 2015
This week a bipartisan group of four senators introduced a bill, dubbed the Pregnant Workers Fairness Act. It borrows language from the Americans With Disabilities Act and seeks to strengthen and clarify the “reasonable accommodations” that employers must make for pregnant employees.
The bill in and of itself it significant. But it's also significant in another sense -- in that it marks a clear and public turn away from decades of feminist thinking about the absolute interchangeability of male and female workers.
Advocates say the bill is built around a series of modern and pragmatic ideas that will directly aid the estimated 250,000 women each year who ask their employers for reasonable pregnancy-related work accommodations connected to their pregnancies -- we’re talking bathroom breaks, time for doctor’s appointments, restrictions on lifting and/or a nearby water bottle to remain hydrated – and see those requests denied. (That quarter-million women each year figure, by the way, comes from a 2014 survey conducted by the National Partnership for Women and Families.) What’s worse, at least some of these women instead wind up losing their jobs and the health insurance benefits that come with them.
Tuesday, June 2, 2015
Rejecting Kleiner's threat to seek $1 million in legal costs from an unsuccessful plaintiff if she appealed.
Here are our past blogs on the case:
Thursday, May 28, 2015
The Professor Brief in the "Most Important Pregnancy Discrimination Case in Nearly a Quarter Century"
Deborah Brake (Pitt) & Joanna Grossman (Hofstra), Introduction to Amici Curiae Brief in Young v. UPS
Abstract:On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was filed on Sept. 10, 2014, on behalf of women’s and civil rights organizations and twenty-nine law professors with expertise in pregnancy discrimination. It weaves together insights from recent legal scholarship on pregnancy and maternity to construct a coherent theory of pregnancy discrimination and its centrality to women’s inequality. We hope that the brief will help illuminate the scope of the victory in Young, contributing to a better understanding of the theory behind the PDA.
Tuesday, May 26, 2015
Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)
From the abstract:
This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.
It's what the early 20th century equality feminists feared from social feminism and protective labor laws.
In Chile, a law requires employers to provide working mothers with child care. One result? Women are paid less.
In Spain, a policy to give parents of young children the right to work part-time has led to a decline in full-time, stable jobs available to all women — even those who are not mothers.
Elsewhere in Europe, generous maternity leaves have meant that women are much less likely than men to become managers or achieve other high-powered positions at work.
Family-friendly policies can help parents balance jobs and responsibilities at home, and go a long way toward making it possible for women with children to remain in the work force. But these policies often have unintended consequences.
Tuesday, May 12, 2015
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.
Thursday, May 7, 2015
ABA Commission on Women, A Current Glance at Women in the Law (July 2014).
- 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
Thursday, April 30, 2015
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.
Tuesday, April 28, 2015
Sixth Circuit Holds Employees Cannot be Fired as Retaliation for Complaining to Sexually Harassing Boss
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 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.
Tuesday, April 14, 2015
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.
Tuesday, April 7, 2015
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.
Tuesday, March 31, 2015
Commentary on the Ellen Pao verdict finding no gender discrimination continues
Daily Princetonian, Pao '91 Loses Discrimination Lawsuit (quoting John and I)
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.
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
Thursday, March 26, 2015
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.
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."
Thursday, March 19, 2015
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.
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.