Tuesday, August 19, 2014

Higher Tenure Rates for Men--Why?

Tracy had posted about three female professors at Northeastern who had been denied tenure recently.  On a related note, there is an article in Inside Higher Ed which takes note that more men than women have gained and are likely to gain tenure.  The question, of course, is why.

From IHE: 

In discussions about the gender gap among tenured professors at research universities, there is little dispute that there are far more men than women with tenure in most disciplines. But why? Many have speculated that men are outperforming women in research, which is particularly valued over teaching and service at research universities. With women (of those with children) shouldering a disproportionate share of child care, the theory goes, they may not be able to keep up with publishing and research to the same extent as their male counterparts.

And: 

Not only are men more likely than women to earn tenure, but in computer science and sociology, they are significantly more likely to earn tenure than are women who have the same research productivity. In English men are slightly (but not in a statistically significant way) more likely than women to earn tenure.

But: 

“It’s not that we need to make women more productive. It’s that we need to change the processes," said Kate Weisshaar, a graduate student at Stanford University who did the study.

Check out IHE article for Weisshaar's study.  

 

August 19, 2014 in Equal Employment, Work/life, Workplace | Permalink | Comments (0)

Saturday, August 16, 2014

Leaning In, But Getting Pushed Back (and Out)

From WaPo, She the People, Brigid Schulte, Study: Uncivil Work Environment Pushing Women Out of the Engineering Field

[A] new National Science Foundation report released on Saturday about why so few women go into engineering, or stay in the field, highlights a key reason: a workplace culture of incivility toward women.

“I wouldn’t call it a hostile environment, but it’s definitely chilly,” said Nadya Fouad, a professor of educational psychology at the University of Wisconsin-Milwaukee, who presented the results to the American Psychological Association in a talk entitled “Leaning In, But Getting Pushed Back (and Out.)

Fouad and her colleagues surveyed more than 5,000 women who had graduated from some of the top universities with engineering degrees over the past six decades and found that 40 percent had either quit the field or never entered the profession in the first place.

For more than two decades, women have accounted for about 20 percent of all engineering degrees. Yet fewer than 11 percent of all engineers are women. And this despite a massive funding effort to get more people into STEM fields – $3.4 billion in federal funds for STEM education since fiscal 2010, with $13 million targeted directly at women.

August 16, 2014 in Business, Equal Employment | Permalink | Comments (0)

Thursday, August 14, 2014

Anticipatory Pregnancy Discrimination

When they can't even wait until you are actually pregnantly disabled to fire you.  

From Ohio Employer's Law Blog, Beware the "Anticipatory Pregnancy" Claim and More on Anticipatory Pregnancy Discrimination.

In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

***

What can we learn from this case?

  1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
  2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

August 14, 2014 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Tuesday, August 12, 2014

Obama Prohibits Arbitration for Employee Sex Discrimination and Assault Claims

From Public Justice, Slate Story on Obama's Federal Worker Rules

In what Executive Director Paul Bland considers "one of the most important positive steps for civil rights in the last 20 years," President Obama has ordered that corporations who receive federal contracts worth more than $1 million may not require their workers to submit to forced arbitration clauses for claims under Title VII of the Civil Rights Act, or for claims involving sexual assault.   

    Quoting Emily Bazelon's story in Slate, the article explains:

The second part of the order is what Bland is so excited about. This provision says that companies with federal contracts worth more than $1 million can no longer force their employees out of court, and into arbitration, to settle accusations of workplace discrimination. “Here’s why this is so important,” Bland said when I asked him to explain. “For the last 20 years, the Supreme Court has been encouraging employers to force their workers into a system of arbitration that has been badly rigged against the workers. And so this order will result in millions of employees having their rights restored to them."

August 12, 2014 in Equal Employment | Permalink | Comments (0)

Female Law Prof Files Sex Discrimination Suit Against Florida A&M

From the ABA Journal, Pay Discrimination Alleged in Prof's Suit Against FAMU Law School

An associate law professor at Florida A&M’s law school claims in a lawsuit filed last week that the school pays male and female professors unequally.

According to allegations in the suit by Jennifer Smith, male associate law professors are “paid considerably more” than women in those positions, and the school “consistently hired men at considerably higher rates than women,” the Tampa Tribune reports at its Fresh Squeezed blog. Her suit claims equal pay violations, gender discrimination and retaliation.

Smith says she was granted tenure in 2010 but was denied a promotion to full professor, most recently last month. She claimed an administrator “sabotaged” her promotion by putting bad recommendations in her file in place of good ones, partly in retaliation for filing public records requests for pay information, the story reports. She also says she complained about the administrator after the person made some “threatening comments” about her.

A second female professor, Barbara Bernier, filed a similar complaint last year.

August 12, 2014 in Equal Employment, Law schools | Permalink | Comments (0)

Saturday, August 9, 2014

NBA and Equal Employment for Women

It's been a big week for the National Basketball League.

  • A team, the San Antonio Spurs, hired WNBA player Becky Hammon in what has been billed as the "first full-time female assistant" coach.  (Although she's really the second, as Lisa Boyer worked for the Cleveland Cavaliers as an assistant coach in 2001-02).  See Spurs Hire Becky Hammon, NBA's 2nd Female Assistant Coach
  • The NBA players' union hired Skaden attorney Michele Roberts as executive director.  Her impressive resume is here.

But the naysaying has already begun.  See Male Basketball Coach Says a Female Coach Could Never Mold Could Never "Mold Boys into Successful Men" saying that women could never coach college basketball.  Although men coach college women. 

August 9, 2014 in Equal Employment, Sports | Permalink | Comments (0)

Saturday, July 12, 2014

Pregnancy Discrimination May Include Adverse Action Seven Months after Birth

Pregnancy Case Against Luxury Retailer Can Proceed (Westlaw link only)

(Reuters) - A federal judge in New York has allowed a pregnancy discrimination case against a luxury retailer to go forward, in a decision that helps clarify the length of time that women who recently gave birth are still protected under pregnancy discrimination laws.
 
The case involves Katherine Albin, a former clerk at a Thomas Pink clothing store in Manhattan, who alleged that she was turned down for a promotion to store manager because she had recently returned from maternity leave.
 
In a lawsuit filed in June 2013, Albin alleged that she was rejected for the job, which went to an applicant with less experience and who was unlikely to become pregnant due to her age. Albin alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.
 
The two sides have sparred over whether Albin was still a member of a "protected class" -- or one protected by particular antidiscrimination laws -- when she was passed over for the promotion about seven months after her child was born. In its motion to dismiss the case, LVMH Moet Hennessy Louis Vuitton, which owns Thomas Pink, argued that Albin did not fall within the protected pregnancy class because she gave birth to her child seven months before she ultimately quit the job after being passed over for promotion.
 
U.S. District Judge Paul Oetken on Tuesday declined to grant LVMH's motion to dismiss, ruling that Albin had sufficiently shown she may have been protected by antidiscrimination laws because the event that she claimed triggered the discrimination -- her request to be considered for a promotion -- occurred less than four months after she gave birth. She was eventually turned down for the promotion three months later.
 
Case law in the 2nd U.S. Circuit Court of Appeals suggests that the circuit has developed a "loose line" of four months from a child's birth that women can still be considered a protected class for pregnancy discrimination, Oetken wrote.

 

July 12, 2014 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

Thursday, July 10, 2014

More Hobby Lobby Fallout

Yes, still more on Hobby Lobby.  For women, this is a game-changing decision with both significant legal and practical consequences.  It's not going to go away quietly.

Dahilia Lithwick, After Hobby Lobby, McCullen and Harris v. Quinn: The Men of the Supreme Court Leave Women Reeling

Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives

Protesters Swarm Hobby Lobby Grand Opening

July 10, 2014 in Abortion, Equal Employment, Healthcare, Workplace | Permalink | Comments (0)

Tuesday, July 8, 2014

SCOTUS Grants Cert on Duty to Conciliate in Sex Discrimination Case

SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications.  The Seventh Circuit ruled  that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC)  informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."  

The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."

EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."

One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:

 On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations. 

More on the case here.

 

July 8, 2014 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, July 1, 2014

SCOTUS Grants Cert in Pregnancy Accommodations Case

The US Supreme Court granted cert today in Young v. UPS, 707 F.3d 437 (4th Cir. 2013).  

The question presented is whether an employer must provide workplace accommodations to a pregnant employee similar to those it provides to temporarily disabled employees? 

In Brief: Peggy Young "is a driver for United Parcel Service, Inc. (UPS). She had asked UPS for a 'light duty' assignment after her doctor recommended that she not lift more than twenty pounds while pregnant. UPS denied her request, even though it had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. As a result of UPS’s denial, Young was forced to take unpaid leave and lost her medical coverage for the period during which she gave birth, until she was able to return to work at UPS two months later."

The Fourth Circuit CoA affirmed a grant of summary judgment to the employer holding that neither the Pregnancy Disrimination Act nor the Americans with Disabilities Act requires an employer to provide accomodations.

 

July 1, 2014 in Equal Employment, Family, Workplace | Permalink | Comments (0)

Saturday, June 14, 2014

Fees Upheld in Supermarket Cashier Gender Discrimination Case

Duling v. Gristede's Operating Corp, 2014 WL 567442 (S.D.N.Y. June 5, 2041). Upholding award of $500,000 in attorney's fees for successful $1.45m settlement of sex discrimination class action.

Former cashiers at a New York supermarket Gristede's alleged the compnay violated Title VII, the NYSHRL, and the NYCHRL by steering women who had applied for work in one of its approximately 40 New York supermarkets into part-time, dead-end cashier jobs—with little or no prospect for transfers or promotions into management-track positions. They also alleged that women were denied promotions in favor of men and paid less than them.  Plaintiff Sewer also brought an individual claim of discrimination based on her gender and pregnancy and a claim for interference with her rights under the Family & Medical Leave Act.

Technically, attorney's fees are not available for cases that settle without a "judicial imprimatur," said SCOTUS in Buckhannon v. West Virginia (2001). But the shadow of the law knows that without the fees, the case would proceed to trial where it would then include fees.  

June 14, 2014 in Equal Employment | Permalink | Comments (0)

Saturday, June 7, 2014

MN Governor Signs Women's Economic Security Act

Minnesota Governor Signs Women's Economic Security Act

The Women’s Economic Security Act includes 9 pieces of legislation that address a variety of issues women face in the workplace. The act will work to narrow the compensation gap between men and women in Minnesota by requiring larger-sized businesses  that contract with the state at a certain amount to undergo a pay equity analysis and earn an “equal pay certificate.” The act also bans salary secrecy, doubles unpaid maternity leave time from 6 weeks to 12 weeks, creates more employment protections for nursing and pregnant women, and creates “safety leave” for those who need time off due to sexual assault, domestic violence, or stalking, among several other changes.

June 7, 2014 in Equal Employment, Work/life | Permalink | Comments (0)

Wednesday, May 28, 2014

Gianmarco Monsellato Thinks "Lean In" and "Diversity Programs" are a Joke

Gianmarco Monsellato is a partner at the No. 5 law firm in France. His firm also has 50/50 gender balance at every level--including equity partnership.    

How did he do it? Dramatically differently than most law firms. Most of his competitors have spent years organizing women’s initiatives, networks, or mentoring programs that have done little to increase the percentage of women reaching the top. The National Association of Women Lawyers’ recent report is pretty clear: These “fix the women” approaches have not delivered.

Monsellato puts the burden squarely on the partner himself to be extremely proactive:  

Instead, Monsellato tackled the problem personally. He was involved in every promotion discussion. “For a long time,” he says, “I was the only one allocating cases.” He insisted on gender parity from the beginning. He personally ensured that the best assignments were evenly awarded between men and women. He tracked promotions and compensation to ensure parity. If there was a gap, he asked why. He put his best female lawyers on some of his toughest cases. When clients objected, he personally called them up and asked them to give the lawyer three months to prove herself. In every case, the client was quick to agree and managed to overcome the initial gender bias.

The idea is intriguing.  It is also an idea that probably requires the right combination of corporate culture, amenable clients, and, most importantly, a highly deft corporate leader who also possesses an unusal charisma and great foresight about business productivity.  Not easy to duplicate this model.  

May 28, 2014 in Equal Employment, Gender, Women lawyers | Permalink | Comments (1)

Saturday, May 24, 2014

Revenge for Rejected Sexual Advances Actionable Sex Discrimination under Title VII

Velazquez-Perez v. Developers Diversified Realty, (1st Cir.) (May 23, 2014): The First Circuit decided a case answering the novel question of whether an employer can be held liable for sex discrimination under Title VII of the Civil Rights Act of 1964 "when it terminates a worker whose job performance has been maligned by a jilted co-worker intent on revenge?"  The court answered yes.  If: 1) the coworker acted, for discriminatory reasons, with the intent to cause the plaintiff's firing; 2) the co-worker's actions were in fact the proximate cause of the termination; and 3) the employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.  Thus a male manager who was fired after he rejected a female co-worker, and married human resource manager's sexual advances, could pursue the claim beyond summary judgment.

May 24, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, May 15, 2014

Unequal Pay for Editor of NY Times

The story of unequal pay  is a familiar one and doesn't seem any better at the top, whether you're a plant manager or corporate CEO.  The latest example, NY Times Editor May Have Been Fired Due to Pay Complaints.  

Several weeks ago...Abramson discovered that her pay and her pension benefits as both executive editor and, before that, as managing editor, were considerably less than the pay and pension benefits of Bill Keller, the male editor whom she replaced in both jobs. “She confronted the top brass,” one close associate said, and this may have fed into the management’s narrative that she was “pushy,” a characterization that, for many, has an inescapably gendered aspect. 

Everyone, say it with me now.  L-i-l-l-y  L-e-d-b-e-t-t-e-r.  

May 15, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Saturday, May 3, 2014

Unequal Pay at the Top

More on the equal pay lawsuit by an Anheuser-Bush VP exec, St. Louis Trial Highlights Gender Bias in Pay

From male-only corporate jets to guys' golf outings and hunting trips, Francine Katz says her time in the Anheuser-Busch executive suite was rife with exclusion and outright discrimination. But it wasn't until the King of Beers' 2008 sale to Belgian brewer InBev that she says she realized the boy's club atmosphere was costing her millions.

 

In a 20-year career that saw her rise from a young corporate lawyer to a vice president, key strategist and the beer maker's top female executive, Katz became the face of her hometown employer, defending the maker of Budweiser and Bud Light from overzealous regulators and anti-alcohol crusaders.

 

Now she's accusing Anheuser-Busch of sex discrimination, arguing in a lawsuit that reached trial this week that top male executives — including former CEOs August Busch III and his son, August Busch IV — purposely paid her less because she's a woman.

 

Busch testified at trial to explain why Katz's male predecessor in the same position was paid four times her salary:

[H]e turned to the jury and said: "I hope you saw the letter Francine Katz wrote me in 2000.She thanked me for my 'generosity,'" Busch III said. Seated beside her attorney, Katz shook her head....

 

"We made damn sure she was compensated," he said. "John Jacob was a 60-something-year-old and had a background that was far superior to Francine Katz.How can you compared apples to oranges?"Busch III said.

 

May 3, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, May 1, 2014

Using Disability Law to Understand the Institutional Dimensions of the Pay Gap

Michelle Travis (San Francisco), Disabling the Gender Pay Gap: Lessons from the Social Model of Disability, Denver Law Journal (forthcoming 2014)

As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.

The disability civil rights movement faced a similar challenge, however, and their response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide. 

May 1, 2014 in Equal Employment | Permalink | Comments (0)

Tuesday, April 29, 2014

Anheuser-Bush Executive Sues for Sex Discrimination

Sex Discrimination Lawsuit Cites a "Frat Party"Atmosphere at A-B"

For two decades, [Francine] Katz was one of the brewer's staunchest defenders, and when she resigned in 2008 as its communications chief, she was among the company's highest ranking female executives. 

 

Now, Katz, who lives in Richmond Heights, is suing A-B and its parent company, A-B InBev, alleging the brewer discriminated against her based on her gender, in violation of the Missouri Human Rights Act.

 

In her lawsuit filed in Circuit Court in St. Louis in October 2009, Katz alleges that after was promoted in 2002 to vice president of communications and consumer affairs, her pay and bonus — $500,000 — was significantly less than that of John Jacob, a male colleague who previously held the position. Jacob is among those who may be called to testify.

 

By 2007, her pay and bonus was still 46 percent lower than Jacob's last full year of compensation before he retired, Katz alleges. She also alleges she received fewer stock options than every male employee on A-B's member strategy committee, which fluctuated between 15 to 20 members.

 

Katz also says that she and the only other female on the committee, Marlene Coulis, were the lowest paid committee members. Coulis, who was previously vice president of consumer strategy and innovation but no longer works at A-B, also is on the witness list and may be called to testify.

 

Katz complained about her compensation to her superiors in the years following her promotion, but only learned of the extent of the pay discrepancy in 2008 in a regulatory filing related to InBev's acquisition of A-B, she claims in her civil suit, which seeks back pay and punitive damages.

 

As part of her lawsuit, Katz also alleges the brewery encouraged a "frat party" and "locker room" atmosphere, excluded women from informal social networks and failed to give women assignments that would improve their career opportunities.

April 29, 2014 in Equal Employment | Permalink | Comments (0)

Saturday, April 26, 2014

Women Lawyers and Judges Earn 82% of What Men Earn

From the ABA Journal, How Much Less do Women Lawyers and Judges Earn than Men?

Women lawyers and judges earn about 82 percent of what their male counterparts make, reports The Upshot, a New York Times blog.

The data comes from Claudia Goldin, a Harvard University labor economist. She wrote a paper, "A Grand Gender Convergence: Its Last Chapter" (PDF), which was published this month in the American Economic Review.

****

Women doctors and surgeons earn 71 percent what their male counterparts earn, according to Goldin’s research, and female accountants earn 76 percent of what male accountants make. Goldin maintains that workplace flexibility could help solve the problem.

“The gender gap in pay would be considerably reduced and might vanish altogether if firms did not have an incentive to disproportionately reward individuals who labored long hours and worked particular hours,” she wrote in the paper.

Looking for a profession with no gender differences in pay? Female human resources pecialists earn 100 percent of what their male counterparts earn, according to Goldin’s research, as do advertising salespeople and dental hygienists.

April 26, 2014 in Equal Employment, Women lawyers | Permalink | Comments (1)

Reverse Equal Pay Suit

British Men Win Equal-Pay Against University

A group of British men have won a sex-discrimination case against a university that paid them less than some of their female coworkers.

At issue was how much money the 18 men – carpenters, plumbers and caretakers – employed by the University of Wales, Trinity Saint David, made compared with female colleagues on the same pay scale. The female workers included secretaries and office workers.

April 26, 2014 in Equal Employment | Permalink | Comments (0)