Gender and the Law Prof Blog

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

Friday, September 15, 2017

New Lawsuit Against Google Alleges Sex Discrimination as Women Placed into Lower-Level Jobs

Google Hit by Gender Pay Gap Lawsuit Seeking Class Action Status

Google is being sued for gender pay discrimination, turning up the heat on the Internet giant already facing allegations it shortchanges women.

 

Three female former Google employees are seeking class-action status for the complaint filed Thursday in San Francisco Superior Court.

 

The lawsuit comes as the Labor Department investigates systemic pay discrimination at Google. Google says its own analysis found no pay gap.

 

In a statement to USA TODAY, Google said it would review the lawsuit but disagreed with "the central allegations."

 

The lawsuit is being brought by three women — Kelly Ellis, Holly Pease and Kelli Wisuri — who say they quit Google after being placed at lower job levels, resulting in lower pay and denying them promotions and moves to other teams that would advance their careers.

 

The plaintiffs allege women at all levels of Google are paid less than men and that women are assigned to lower job tiers with less opportunity for upward mobility. 

 

“Women should have the same opportunities as men, and receive equal pay for substantially similar work,” Wisuri said in a statement. ***

 

Google spokeswoman Gina Scigliano said job levels and promotions are determined "through rigorous hiring and promotion committees, and must pass multiple levels of review, including checks to make sure there is no gender bias in these decisions." 

September 15, 2017 in Business, Equal Employment | Permalink | Comments (0)

Tuesday, September 12, 2017

Can a Man Sue for Pregnancy Discrimination?

Can a Male Employee Sue for Pregnancy Discrimination?

Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.

 

However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.

 

At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?

 

Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment

 

In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.

 

His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).

 

Pregnancy Discrimination Must Be Based on Sex

 

The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.

 

What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.

 

Two-Step Associational Discrimination Claim

 

The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.

 

In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.

 

Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.

Isn't this a Family Medical Leave Act claim?  Of retaliation for caring for a sick/pregnant family member?  Unless the FMLA didn't apply because he worked for a small employer.

September 12, 2017 in Equal Employment, Pregnancy | Permalink | Comments (0)

Monday, September 11, 2017

Second Federal Court of Appeals Holds Breastfeeding is Covered under Title VII

Patrick Dorrian, Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias

An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.

 

Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.

 

The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.

 

Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.

 

The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.

September 11, 2017 in Courts, Equal Employment, Family | Permalink | Comments (0)

Friday, September 8, 2017

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History

ABA J, 9th Circuit to Reconsider Ruling Permitting Women to be Paid Less Than Men in Some Circumstances

The full 9th U.S. Circuit Court of Appeals will revisit a panel’s ruling that men may be paid more than women based on salary histories, Law.com reported Thursday.

In April, a three-judge panel of the San Francisco-based court ruled (PDF) that the Equal Pay Act does not forbid employers from paying a woman less than a man for the same work if the man had made more money in a prior job and the employer had used that as a factor in setting salaries.

But the U.S. Equal Employment Opportunity Commission appealed that ruling, saying it created a split from other federal appeals courts and would perpetuate the gender pay gap. (The American Association of University Women says women make, on average, 80 percent of what men make for the same work.) The 9th Circuit granted that request and has scheduled oral arguments for early December.

The case was brought by Aileen Rizo, a math consultant for a school district in Fresno County, California. Rizo came to the district from a teaching position in Arizona, where she had earned nearly $10,000 less than the $62,733 Fresno County agreed to pay her.

But then she spoke to her colleagues, who said a newly hired man in the same job was being paid $79,000 a year. She later learned that all of her male colleagues earned more than she did. Rizo complained to human resources, but the county took no action. In court, it argued that Rizo’s salary would have been the same for a man who came from the same job, because it was determined by a policy that adds 5 percent to the candidate’s prior salary to determine starting pay.

Under the Equal Pay Act, employers may pay employees unequally if the unequal treatment is based on a factor other than sex, including seniority. The panel’s ruling had cited a 1982 ruling, also from the 9th Circuit, saying prior salary can be a factor other than sex if the employer can show that its policy “effectuate[s] some business policy” and was implemented reasonably in light of its stated purpose.

The panel had remanded the case to trial court, so it could investigate the business purpose for Fresno County’s salary policies.

For prior posts on this case, see:

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

September 8, 2017 in Courts, Equal Employment | Permalink | Comments (0)

New Book: Unequal: How America's Courts Undermine Discrimination Law

Sandara Sperino & Suja Thomas, Unequal: How America's Courts Undermine Discrimination Law (Oxford Press)

It is no secret that since the 1980s, American workers have lost power vis-à-vis employers through the well-chronicled steep decline in private sector unionization. American workers have also lost power in other ways. Those alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer. 

Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. The employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal that our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination still happens in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.

September 8, 2017 in Books, Courts, Equal Employment | Permalink | Comments (0)

Tuesday, September 5, 2017

The Gender Gap in Expert Witnesses

Bruce Kaufman, Attorneys Faulted for Scarcity of Female Expert Witnesses

An astonishing 80 percent of expert witnesses chosen by attorneys are male, and those male experts get paid on average 60 percent more than their female counterparts, according to a leading provider of courtroom experts across the U.S. Judges, attorneys, service providers, and professors spoke to Bloomberg BNA about the wide gender gap and paint a troubling portrait of an industry that is wearing blinders when it comes to bias against female expert witnesses.

 

And though everyone agrees that the sparsity of female expert witnesses is worrisome, the likely explanations for the gender preference are equally troubling.

 

Chief among them: disparate treatment by the attorneys who make hiring decisions.

 

These predominantly male attorneys may be biased themselves.

 

Or they may believe that hiring female experts will put them at a competitive disadvantage when they appear before jurors with outdated views on gender roles, those who talked to Bloomberg BNA said.

 

Educating attorneys and jurors on their biases, both conscious and subconscious, and coaching experts on how to overcome those prejudices could lead to more female experts and reduce the stark pay gap for female experts, interviewees said.

 

Part 1 of this two-part series explores the scope of, and reasons behind, the gender gap for expert witnesses. Part 2 looks at possible solutions, all rife with uncertainty. 

Bruce Kaufman, Gender Gap for Female Experts Won't Be Easily Narrowed

September 5, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Friday, September 1, 2017

The Autonomy Hierarchy

Meghan Boone, The Autonomy Hierarchy, 22 Tex. J. Civ. Liberties & Civ. Rgts 1 (2016)

The Supreme Court decided two cases in Spring 2015 – Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc. – under Title VII. The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class – pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as an accommodation. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a “most favored” class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed “favored treatment.” This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question – that these decisions reflect the Court’s underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims.

September 1, 2017 in Constitutional, Equal Employment, Pregnancy, Religion | Permalink | Comments (0)

Thursday, August 24, 2017

Additional Law Profs Intervene in Gender Pay Discrimination Suit Agst Denver Law

Duvivier and Sterling (Associate Dean of Faculty Development) Join Lawsuit Alleging Gender Discrimination in Faculty Salaries at Denver Law School

A pay discrimination lawsuit filed on behalf of women law professors against the University of Denver by the Equal Employment Opportunity Commission continues to grow.

 

Two more tenured female law professors are seeking to intervene in the 2016 suit, which alleges that the law school systematically underpaid women on the faculty for years. So far, six women professors claim disparate pay against the law school

 

Professors Joyce Sterling and K.K. DuVivier last week asked a federal judge to join the suit. If allowed, there will be six plaintiffs named in the suit, which the EEOC filed on behalf of longtime professor Lucy Marsh and other female law professors they determined were underpaid after conducting a study of faculty compensation. The university is not opposing their motion to intervene.

 

Each of the named plaintiffs and proposed intervenors were identified by the EEOC as receiving lower compensation than similarly situated male colleagues, and all six still work at the law school. ...

 

The pay dispute began in 2013 when Marsh approached then-dean Martin Katz to discuss discrepancies in faculty compensation. A 2012 memo from Katz disclosed that the average salary for women professors was nearly $16,000 less than that of men. Marsh then learned that she was the lowest paid full law professor on the faculty, despite having taught at the law school since 1976. She earned $16,800 in her first year of teaching, according to court filings, and in 2016 earned a salary of nearly $116,000. ...

 

Marsh was the first to intervene in the suit, in January. Professors Nancy Ehrenreich , Kris McDaniel-Miccio and Catherine Smith joined the suit in June.

August 24, 2017 in Equal Employment, Law schools | Permalink | Comments (0)

Wednesday, August 23, 2017

Third Generation Gender Discrimination

Catherine Ross Dunham, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace

What is implicit bias? What does it look like? How can we define and address it in personal and legal contexts, working towards the end goal of making the workplace more amenable to successful career paths for all engaged? These questions constitute the modern taxonomy of questions in the area of gender discrimination. Thanks to plaintiffs of the past fifty years and their arduous battles under Title VII with quid pro quo sexual harassment, hostile environment sexual harassment, pregnancy discrimination, gender discrimination in benefits and work assignments, and many other indignities, we have passed through the era of blatant, un-actionable gender-based discrimination. Of course, certain work environments continue to pose threats to female workers. In those environments, employers and supervisors prey on women who are ill-positioned to access legal and other support services, thus continue to operate workplace environments that openly discriminate based on gender and openly threaten female employees. But the risks to female workers are not only present in those extreme environments. Women in safe, corporate jobs and women in professional jobs, those white collar bastions of Mad Men fame, still battle an evolved species of gender discrimination which flows from implicit bias against women generally and specifically against women attempting to compete in male-driven industries and professions.

Betty Dukes was a Wal-Mart employee who could not get promoted into an entry level management position despite her employer’s sophisticated employment policies which included the legally appropriate policies designed to protect women at Wal-Mart from gender-based discrimination. At Wal-Mart, the decision to elevate employees into entry-level management positions was delegated to department and store managers. ***

Ellen Pao worked in a very different professional context. Ellen Pao was an Ivy-League educated management analyst and lawyer who had enjoyed success in the field of banking and finance.  . . . After complaining of harassment by Nazre and other partners, Ellen Pao continued her work at Kleiner, working towards her goal of partnership. However, she was never considered for partner, being excluded from opportunities, meetings and events, which were essential to advancement in the firm. The firm relied on her personnel reviews in evaluating her for partnership, which included evaluative comments that ran the gamut from her having “sharp elbows” and complaining too much or being too sensitive.


Betty Dukes and Ellen Pao may appear to have little in common but they are both pioneers in developing a conversation about the role of implicit bias against women in the workplace. This article will discuss their cases in greater detail as a means to focus on a larger question regarding gender-based discrimination and implicit bias. Courts and scholars have recognized the existence of structural or Second Generation discrimination, which describes aspects of an organization’s structure that facilitate or enable implicit gender bias. Betty Dukes’s case was an unsuccessful attempt to litigate a claim for Second Generation discrimination under Title VII, ultimately failing at the United States Supreme Court. Ellen Pao was also unsuccessful in her effort to persuade a San Francisco jury that she was a victim of Second Generation discrimination. In both cases, men and women of various backgrounds determined the ultimate fate of the claims. This article asks if Title VII claims based on Second Generation discrimination are further inhibited by the implicit biases of judges and juries. How can a female plaintiff convince a fact-finder, or a reviewing judge, that she has been discriminated against through the use of stereotypes and bias if those hearing the case share the same implicit gender bias?

This article will begin by examining the Pao and Dukes cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the article will explore generally the evolution of Second Generation discrimination as a legal theory, connecting that analysis back to Dukes’s and Pao’s cases. The article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The article will argue that gender-based implicit bias against women litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that her employer allowed bias against her to curb her opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.

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

Wednesday, August 9, 2017

Google Fires Engineer Who Opposed Gender Diversity in Workplace

Following up on the blog post Google Engineer Says Gender Diversity Initiatives Bad Idea ...  Google has now fired the engineer.  Surprising, but encouraging to see a company put support behind what are often shallow commitments to equalized workplaces.  

The company said the engineer's memo -- opposing gender diversity initiatives because of women's "neuroticism" and because women biologically prefer jobs with people and emotion rather than tech jobs with "systemic" thinking -- was "harmful" to the workplace.  The engineer has threatened to sue.

Updated Aug. 29. 

August 9, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, August 7, 2017

Google Engineer Says Gender Diversity Initiatives Bad Idea

Diversity Programs at Google Discriminatory, Engineer Claims in Anti-Diversity Memo

A document written by an unnamed senior software engineer at Google suggesting the company encourage "ideological" rather than gender diversity, is generating anger within the company and in Silicon Valley.

Titled "Google's Ideological Echo Chamber," the male author wrote that women don't make up 50% of the company's tech and leadership positions not because of sexism but because of differences in their preferences and abilities. 

He also writes that the company's focus on diversity tends to alienate conservatives, which he believes is bad for business as conservatives tend to be more conscientious, a trait that is required for "much of the drudgery and maintenance work characteristic of a mature company."

The essay comes as Google is engaged in an ongoing effort to try to get more women and minorities into technical and leadership jobs, and as the Mountain View-based company is being investigated by the Labor Department over allegations that it does not pay men and women equally. ***

The 10-page manifesto against Google's diversity initiatives appears to have first been circulated internally at the company Friday. It was initially reported by Motherboard.

On Saturday Gizmodo published the full document, prompting a flood of angry tweets and some supporting the writer's right to free speech.

The overall tone of the essay is calm. The author acknowledges that there is bias that holds women back in tech and leadership. He doesn't suggest that women aren't capable of doing technical work but rather that the differences between men and women should be acknowledged. 

He states that women tend to be more interested in people rather than things, "empathizing vs. systemizing," whereas men have a higher driver for status and so tend to end up in leadership positions.

He also says that on average, women have more "neuroticism," as defined as "higher anxiety, lower stress tolerance."

The author doesn't believe that Google should engage in social engineering just to make its jobs equally appealing to men and women, calling "discriminatory" programs at the company available only to women and minorities.

August 7, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, July 17, 2017

Judge Narrows Scope of Government Data Request in Google Gender Pay Audit

Google Must Cough Up Contact Info for 8000 Employees in Gender Discrimination Case: But Judge Narrows Scope of US Labor Dept Request 

Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.

 

A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.

 

The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.

 

Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".

 

But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.

The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.

I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.

When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.

See also:

July 17, 2017 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)

Thursday, July 6, 2017

Abandoning Race and Gender Based Calculations for Compensatory Damages

Ellen Bublick, How Much is Your Injury Worth? First Tell me Your Race and Gender, JOTWELL, reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

 

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)

 

The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010),  and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”

July 6, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Wednesday, July 5, 2017

Iceland Passes Law Requiring Equal Pay for Women

Iceland Law Closes Gender Gap, Pays Women as Much as Men

Now, in a major stride towards trying to close the gap in pay once and for all, the Iceland government passed a new law that requires all of their public and private companies employing above 25 people, to pay employees equally “regardless of gender, ethnicity, sexuality, or nationality,” according to a report on The Associated Press (AP) 

 

These companies will be certified by the government after they provide proof that they pay men and women, and people of all races, religions and nationalities equally, for work of equal value. There are a few other countries that have “equal-salary certificate policies,” but the AP report points out that Iceland is the first such country to mandate this for both private and public firms.
 
In Iceland, the current gender pay gap is somewhere between 14 to 18% , according to the World Economic Forum. With this new legislation, Iceland hopes to close its gender pay gap by 2022. And if the legislation is cleared by their Parliament, its Equal Pay Standard will be in force by 2020.
 
In fact, in protest of this injustice, thousands of women across Iceland staged peaceful resistance by shutting shop at work 2.38pm, because the stats about the gap suggest that their pay only technically covers their work up to that time, compared to the boys.

“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that,” said Equality and Social Affairs Minister Thorsteinn Viglundsson.

Iceland has made significant progress in trying to close their gender gap, through policies such as quotas on corporate boards and government committees, and 48 percent female representation in the Icelandic Parliament.

July 5, 2017 in Equal Employment, International | Permalink | Comments (0)

Thursday, June 22, 2017

Can an Employer Provide Fathers with Less Paid Paternity Leave than Mothers

Jon Hecht, The Surprising Sexism of Maternity Leave

Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.

“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.

"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.

"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle

The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.

The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.

"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."

However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."

However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time.  It is only the time for caregiving and bonding that must be the same.  Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.

June 22, 2017 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 20, 2017

San Fran Latest City to Ban Salary Histories to Counter Gender Discrimination

SF to Prohibit Employers Asking Salary History To Close Gender Wage Gap

Supervisor Mark Farrell introduced legislation that would prohibit private employers in San Francisco from asking for and considering past salary information when deciding what salary to offer applicants. The proposal also applies to city government and its contractors.

 
“If women are always held back and down by their salary history, they are prevented from ever catching up with men,” Farrell said. “We have to stop it.”

 

The legislation was praised during Wednesday’s Board of Supervisors Government Audit and Oversight Committee. Some amendments were made during the hearing, such as postponing the initial implementation date from January 2018 to July 2018 to give time for businesses and The City’s enforcement wing, the Office of Labor Standards Enforcement, to prepare. It is also timed for when the minimum wage increase occurs.

 

The committee is expected to hold a hearing June 21 on the proposal with a full board vote on June 27.

 

For the first year, OLSE would only issue warnings if there are violations, but beginning in July 2019, fines could be assessed beginning at $100, and for egregious cases the City Attorney’s Office can sue the employer.

 

A job applicant would be able to voluntarily disclose their salary if they are seeking a better offer, but an employer couldn’t ask an applicant for salary history. An employer could ask for the applicant’s salary expectations.

 

Last year, Massachusetts became the first state to adopt a similar law. New York City and Philadelphia followed suit this year.

 

For additional background on why salary histories contribute to discrimination, see here.

 

 

June 20, 2017 in Equal Employment | Permalink | Comments (0)

Friday, June 16, 2017

Are Men Entitled to Equal Paid Paternity Leave?

Fathers Denied Paid Parental Leave by JP Morgan Chase File Sex Discrimination Complaint with EEOC

The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.

 

Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.

 

“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”

 

Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.

 

“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”

Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.

Here are the EEOC Guidelines on Parental Leave:

For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).

Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment

An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.

EXAMPLE 15: Discriminatory Parental Leave Policy

In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.

JP Morgan has explained its policy as applying to primary caregivers, who are presumably women.  And it has precluded consideration of equal caregiving between parents.  That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work

Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”

The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.

 Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.

 

Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. 

However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.  

    1.  JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.

    2.  The company could level down and provide no paid leave to anyone.  That was also the result of the Supreme Court's Morales-Santana decision.  See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.

The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.  

June 16, 2017 in Equal Employment, Family, Pregnancy | Permalink | Comments (0)

Tuesday, May 23, 2017

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

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

Some of the highlights of the petition:

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

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

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

Two important points to keep in mind are:

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

 

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

Tuesday, May 16, 2017

Proskauer Sued by Partner in Gender Bias Suit

Partner Hits Proskauer with 50 Million Gender Bias Suit  

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

 

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

 

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

 

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

 

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

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

Friday, May 5, 2017

NYC Passes Legislation Banning Employers' Use of Salary Histories

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

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

 

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

 

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

 

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

 

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

 

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

 

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

NY state has proposed a similar bill:

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

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

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

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