Tuesday, September 30, 2014
Yesterday, the EEOC initiated litigation against two separate employers: two lawsuits alleging sex discrimination "in violation of federal law by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes."
In one lawsuit, the EEOC claims that a funeral home fired an employee who had been with the company for several years, but two weeks after she wrote a letter to the company explaining that she was "undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman."
In the other lawsuit, the EEOC alleges that the employee was fired only after she began to present as a woman and informed her employer that she was transgender.
Sunday, September 14, 2014
A former New York Mets senior vice president, who was fired last month by the club, sued the organization on Wednesday alleging that she was discriminated against on the basis of her sex, and ultimately fired for becoming pregnant while unmarried. Leigh Castergine, who joined the Mets organization in 2010, was the head of ticket sales when, the suit says, she was fired by team COO Jeff Wilpon because he was “morally opposed” to Castergine having a child out of wedlock.
Tuesday, September 9, 2014
The two Raiderette cheerleaders who revolted against the team this year—suing the Oakland Raiders for paying them less than minimum wage, withholding paychecks until the end of the season, and never reimbursing them for business expenses—have declared victory. Lacy T. and Sarah G., who filed a class-action suit on behalf of their fellow Raiderettes this spring, have reached a settlement with the NFL franchise. The team will pay out a total of $1.25 million to 90 women who cheered between 2010 and 2013. That translates to an average $6,000 payout per cheerleader per season for the first three seasons covered by the suit, and an average of $2,500 each for the final season. (Right before Lacy’s lawsuit hit, the Raiders unexpectedly padded the 2013 cheerleaders’ checks with additional cash). According to Sharon Vinick, lawyer for the Raiderettes, future Raider cheerleaders will be paid minimum wage for all hours worked, receive checks every two weeks, and be reimbursed for business expenses they incur in the course of the job.
“We are excited that the Raiders have decided to pay their current cheerleaders in accordance with the law,” Sarah G. said in a statement through her attorney. “This was our goal and I am pleased to say I was a part of an organization whose management decided to make these changes. Now we can just go back to dancing, being respected and taking down the Niners when they try to step onto our field!”
Is the settlement fair? $1.25 million sure sounds like a big number, and for many current and former Raiderettes, the split ain’t bad: The women who cheered for all four seasons covered by the suit could stand to receive checks for more than $20,000. (As for the naysaying cheerleaders who complained that Lacy T. and Sarah G. were making them look bad by speaking up: If they fail to cash their checks, the money will be donated to Girls Inc., an Alameda County nonprofit that provides enrichment activities for local girls.)
Thursday, September 4, 2014
The Domino's Pizza chain isn't responsible for the alleged sexual harassment of a 16-year-old female employee of one of its stores because the franchise agreement left all personnel decisions up to the now-bankrupt store owner, says a closely divided California Supreme Court.
A lawyer for Domino's hailed Thursday's 4-3 ruling as "a great victory for the franchise industry" - which, according to a 2007 Census Bureau study quoted by the court, accounted for nearly $1.3 trillion in annual sales nationwide.
The ruling comes a month after the general counsel of the National Labor Relations Board reached a much different conclusion in another franchise case, saying McDonald's can be held jointly liable under federal law for wage violations at its restaurants.
The court case comes from Thousand Oaks (Ventura County), where the teenager, Taylor Patterson, said the assistant store manager groped her and made lewd comments soon after she started work in November 2008.
Tuesday, August 19, 2014
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.
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.
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.
“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.
Saturday, August 16, 2014
From WaPo, She the People, Brigid Schulte, Study: Uncivil Work Environment Pushing Women Out of the Engineering Field
[A] new National Science Foundation report released on Saturday about why so few women go into engineering, or stay in the field, highlights a key reason: a workplace culture of incivility toward women.
“I wouldn’t call it a hostile environment, but it’s definitely chilly,” said Nadya Fouad, a professor of educational psychology at the University of Wisconsin-Milwaukee, who presented the results to the American Psychological Association in a talk entitled “Leaning In, But Getting Pushed Back (and Out.)”
Fouad and her colleagues surveyed more than 5,000 women who had graduated from some of the top universities with engineering degrees over the past six decades and found that 40 percent had either quit the field or never entered the profession in the first place.
For more than two decades, women have accounted for about 20 percent of all engineering degrees. Yet fewer than 11 percent of all engineers are women. And this despite a massive funding effort to get more people into STEM fields – $3.4 billion in federal funds for STEM education since fiscal 2010, with $13 million targeted directly at women.And while caregiving responsibilities – the stereotypical view for why women leave demanding professions – played a role in some decisions, for the most part Fouad found that what really pushed women out were uncivil workplace climates, the expectation to put in long hours of face time in the office, and the perception that there was little opportunity to advance.
Thursday, August 14, 2014
When they can't even wait until you are actually pregnantly disabled to fire you.
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?
- 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.
- 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.
Tuesday, August 12, 2014
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."
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.
Saturday, August 9, 2014
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.
Saturday, July 12, 2014
(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.
Thursday, July 10, 2014
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.
Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives
Tuesday, July 8, 2014
SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications. The Seventh Circuit ruled that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."
The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."
EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."
One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:
On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations.
More on the case here.
Tuesday, July 1, 2014
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.
Saturday, June 14, 2014
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.
Saturday, June 7, 2014
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.
Wednesday, May 28, 2014
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.
Saturday, May 24, 2014
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.
Thursday, May 15, 2014
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.
Saturday, May 3, 2014
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.