Gender and the Law Prof Blog

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

Tuesday, September 20, 2016

New Book: Lifetime Disadvantage, Discrimination and the Gendered Workforce

Lifetime Disadvantage, Discrimination and the Gendered Workforce

New Book Examines Working Women's Lifetime Disadvantage highlights the forthcoming book by Susan Bisom-Rapp and Malcolm  Sargeant, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Press). 

From the publisher:

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.

  • Proposes a new model of lifetime discrimination suffered by women at work, leading to an holistic solution rather than the current incremental approach
  • Examining how the law approaches each stage of women's working life cycle allows readers to identify the disjointed incremental approach and see its disadvantages
  • Provides a new framework for discussing the issue of disadvantage that women suffer in employment

September 20, 2016 in Books, Equal Employment | Permalink | Comments (0)

Thursday, September 1, 2016

Rethinking Sex Discrimination Remedies from a Feminist Perspective

The book US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016), is now published.

My contribution was to rewrite the Supreme Court's decision in  City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978) regarding sex discrimination in retirement benefits for women.  The department had charged women extra for their retirement benefits because, on average, women live longer than men.  The Court invalidated that practice as violating Title IX.  By then the practice had stopped, due to intervening state law.  The Court however refused to award reimbursement of the discriminatory surcharges.  

Here's an excerpt on the remedies point:

Ubi Jus, Ibi Remedium

            The question remains as to the appropriate relief in this case. It is a standard proposition of law that ubi jus, ibi remedium: “where there’s a right, there must be a remedy.” As we held in the early days of this Court, the very foundations of justice and jurisprudence require that violations of rights are vindicated with meaningful remedies. Marbury v. Madison, 5 U.S. 137 (1803). “It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” Id. For in the absence of such tangible, meaningful relief, legal rights become empty, unenforceable aspirations that are not supported with concrete action forcing defendants to internalize the consequences of their wrongful behavior. Without specific consequences, defendants have no incentives to avoid such discriminatory misconduct.

            That is the case here. The Department seeks to avoid all consequences for its history of sex discrimination. While injunctive relief and an intervening California law have ended the use of this discriminatory plan, they do not redress the years of overcharges and lost monies to the plaintiff class. The Civil Rights Act provides that a court in a Title VII case may “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . with or without back pay . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5. Back pay is limited to two years prior to the filing of the case with the EEOC. Id. at 5(g). Courts also have discretion to award prevailing plaintiffs attorney’s fees. Id. at 5(k). In accordance with the statute, the District Court ordered the refund of all overcharges going back to April 5, 1972, the date of the EEOC regulations. Fair Emp. Prac. Case at 1625. This was a shorter period of time than permitted by the statute, which would have allowed retroactive relief to June 5, 1971. The court also awarded reasonable attorney’s fees.

        While the Department challenges this retroactive refund as inappropriate, the Court has previously established a “presumption in favor of retroactive liability” in Title VII cases which “can seldom be overcome.” Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The strong presumption is that “the injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Id. at 418. Retroactive relief should be denied only “for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”  Id. at 421.  Retroactive monetary relief makes plaintiffs whole and provides the consequences for discriminatory conduct and the incentives for required egalitarian treatment. Such retroactive relief is the usual default remedy in both Title VII and the law more generally. The only required showing is loss to the plaintiff. No heightened standard of bad faith or evil intent is required because the statutory purpose is compensatory, not punitive. “If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the ‘make whole’ purpose right out of Title VII for a worker’s injury is no less real simply because the employer did not inflict it in ‘bad faith.’” Id. at 422. Thus, it is immaterial whether the plan administrators were conscientious or recalcitrant in the face of intervening EEOC guidelines. What is relevant is the economic loss to the plaintiffs from the charges illegally withheld from their paychecks. We measure the amount of this loss by awarding the difference between contributions made by female employees and those made by male employees. While the inability to assess the discriminatory surcharge might have required the Department to adopt a different, undifferentiated actuarial table that would have reassessed contributions for both women and men, we cannot use this hypothetical past to calculate monetary relief nor can we rectify a precise accounting by deducting pay from the checks of the male employees who are not parties to this action. Instead, our goal is to ensure the “employee is placed in no worse a position than if” the conduct had not occurred, and the return of the improper contributions as actually paid is necessary required to provide that meaningful relief as envisioned by Title VII.  Mt. Healthy City School District Board of Ed. v. Doyle, 429 U.S. 274, 286 (1977).

            We recently approved such retroactive relief for a class of men in a Title VII case similarly challenging a retirement plan. Fitzpatrick v. Bitzer, 427 U.S. 455 (1976). In Fitzpatrick, the Court held that a state retirement plan that allowed women to retire five years earlier than men discriminated on the basis of sex and that the Eleventh Amendment did not bar retroactive payment of retirement benefits as an appropriate remedy. Denying this same retroactive relief in the case here when confronted with a similar discriminatory retirement plan would establish the perverse rule that allows damages for men, but not women. Such a result would clearly “frustrate the central statutory purposes of eradicating discrimination” under Title VII by re-inscribing sex inequality via the remedial mechanism. Albemarle Paper Co., 422 U.S. at 421.  

September 1, 2016 in Books, Equal Employment | Permalink | Comments (0)

Thursday, August 25, 2016

Feminist Legal History Website and Visual History

This website Click! The Ongoing Feminist Revolution  launched last fall tells the backstory of modern feminist and legal history from about 1940 to present.  It includes terrific videos, photos, book resources, and detailed news that fill in the backstory of the women's political and legal movement.  Great stuff to show in class or use for research.

For example, here is the entry and links for the 1963 Equal Pay Act

This amendment to the Fair Labor Standards Act prohibits pay discrimination on the basis of sex when workers perform substantially equal work and has been credited as one factor in the rise of women’s wages overall. The passage of the Lilly Ledbetter Fair Pay Act of 2009 demonstrates that work in this area is not complete.

Text of the Equal Pay Act.

Photos, John F. Kennedy Library

JFK Signs the Equal Pay Act.

 

 

August 25, 2016 in Equal Employment, Legal History | Permalink | Comments (0)

Wednesday, August 24, 2016

Study Shows Faculty Gender Diversity has Improved, but not on Tenure Track and not at the Top

Inside Higher Ed, Study Finds Gains in Faculty Diversity, But Not on Tenure Track

Diversifying the professoriate has long been a priority on many campuses, and such goals have only grown more urgent in light of recent national and local discussions about race. Yet college and university faculties have become just slightly more diverse in the last 20 years, according to a new study from the TIAA Institute. Most importantly, as faculty jobs have become more stratified with the growth of non-tenure-track positions over the same period, most gains for underrepresented minority groups have been in the most precarious positions. That is, not on the tenure track.***

 

Underrepresented minority groups held approximately 13 percent of faculty jobs in 2013, up from 9 percent in 1993. Yet they still only hold 10 percent of tenured jobs, according to the study. Women now hold 49 percent of total faculty positions but just 38 percent of tenured jobs.

 

Women’s Trajectory

 

Women’s faculty head count growth nearly doubled that of men between 1993 and 2013, at approximately 375,300 additional women and 196,900 men. Women’s growth in full-time appointments quintupled that of men, and a major change was observed in women’s appointment to tenured positions in particular: an increase of about 46,700 women compared to a decrease among men of about 14,900.

 

The magnitude of women’s growth in full-time and tenured or tenure-track appointments pales in comparison to their growth in part-time appointments, however, at about 144 percent, and full-time, non-tenure-track appointments, at about 122 percent.

 

Less optimistically, and to Finkelstein’s point about multiple metrics, the proportion of all women faculty who are tenured or on the tenure track has actually declined from 20 percent to 16 percent and 13 percent to 8 percent, respectively.

 

At the same time, the percentage of women who are in part-time appointments increased from 48 percent to 56 percent.

 

The proportion of all women in full-time, non-tenure-track positions held steady at about 18 percent.

 

Women continue to be less likely than men to hold full-time appointments, at 44 percent of women faculty members compared to 52 percent of men.

 

Regarding the “ultimate prize,” or a full professorship, fewer than one in 10 faculty women -- about 9 percent -- have achieved it. That's up only slightly from 6 percent of women in 1993. And the years since 1993 have seen women earn much larger shares of doctorates than they had in the past, and have seen disciplines and colleges pledge to do more so that these women Ph.D.s can thrive in academic careers.

 

Conley said slow growth reflects the hiring and promotion process, in which deans and provosts drawn most often from the full professor ranks themselves make decisions about who become full professors next. That process isn’t about to change any time soon, she said, since a “core value” of higher education remains that only those who have achieved top faculty ranks should hold such authority.

 

But it can be counteracted by focusing more on developing diverse potential faculty talent at the graduate and even undergraduate levels, she said.

August 24, 2016 in Education, Equal Employment | Permalink | Comments (0)

Monday, August 22, 2016

An Interview with Anita Hill: Sexual Harassment is "Now Part of the Public Conversation"

NPR, We've Come a Long Way Since Then

Nearly 25 years after Anita Hill accused her former boss Clarence Thomas — then a Supreme Court nominee — of making lewd advances, the fight against sexual harassment is again in the spotlight.

 

Women are pushing to change policies at colleges across the country. Bill Cosby — once a beloved figure of American culture — is now widely reviled because of accusations of rape and assault.

 

More recently, more than 20 women say media mogul Roger Ailes harassed them at work.

 

It's a familiar story now: accusations of powerful men using their positions of authority to take advantage of younger women.

 

Anita Hill was one of the first to capture that narrative in her testimony on Capitol Hill in 1991. She accused Thomas of sexual harassment. He denied all wrongdoing. She was ostracized.

"We've come a long way since then," Hill tells Morning Edition's Steve Inskeep. "It is now part of the public conversation."

 

Hill, now a professor at Brandeis University, says that while women have fought sexual harassment cases in court and won, "even among women who seem very powerful in their jobs and in the public eye, these problems exist and they don't come forward necessarily.

August 22, 2016 in Equal Employment | Permalink | Comments (0)

Friday, August 19, 2016

Justice Dept Files Suit Alleging Unequal Pay for Female Coach

Justice Department Files Lawsuit Against New Mexico State University Alleging Discrimination

The Justice Department announced today that it has filed a lawsuit alleging that New Mexico State University and its Board of Regents (NMSU) discriminated against a female former assistant track coach on the basis of sex by paying her less than similarly-situated men in violation of Title VII of the Civil Rights Act of 1964.

 

The Justice Department’s complaint was filed in the U.S. District Court for the District of New Mexico and alleges that, over the relevant periods of time, NMSU paid Meaghan Harkins thousands of dollars less per year than it paid to two male assistant track coaches with similar responsibilities, in violation of Title VII.  Title VII is a federal statute that prohibits employment discrimination – including discrimination in compensation – on the basis of sex, race, color, national origin and religion.

 

“Women deserve the same salary and the same respect as their male colleagues with similar job duties,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.  “Lawsuits like this one demonstrate the Justice Department’s steadfast commitment to enforcing federal law to close the wage gap.”

August 19, 2016 in Equal Employment, Sports | Permalink | Comments (0)

Thursday, August 18, 2016

Women Prosecutors File Discrimination Claims, But They are Hard to Win

ABA J, Female Former Prosecutor Files Pay Bias Suit

A former county prosecutor in Vermont has filed a federal lawsuit claiming she was paid about $14,000 less per year than a male prosecutor in the same position.

 

Lawyer Jane O’Neill sued the Rutland County State’s Attorneys office in a suit filed last month, the Burlington Free Press reports.

 

O’Neill says she was told her salary was not negotiable when she was hired, and she got no answers when she asked about the pay of the male colleague who was hired in 2011. She also claims her boss assigned her lesser tasks and tried to marginalize her in retaliation for her questions.

 

The suit also claims O’Neill regularly worked 50 to 60 hours a week, but did not get compensation for the extra hours.

 

O’Neill says she resigned in mid-2014 because working conditions had become intolerable.

See also US Jury Rejects Discrimination Complaint Against Suffolk District Attorney

A federal jury . . .  rejected a former state prosecutor’s claims that she was paid less than her male counterparts in the Suffolk district attorney’s office because she is a woman.

 

In a unanimous decision, the jury of six women and two men also disagreed with Christina Corda’s claims that her termination from the office was based on her complaints of discrimination. Corda, 34, had filed a lawsuit against the Suffolk district attorney’s office in March 2015. But in a sweeping verdict Thursday, the jury rejected her claims of discrimination, of retaliation, and of violations of state and federal equal pay laws.

See also Ex-Federal Prosecutor Files Sex Bias Suit Against DOJ

A former deputy criminal chief for theU.S. Attorney’s Office in Spokane, Washington, filed a scathing sex discrimination and equal pay lawsuit against the U.S. Justice Department, claiming she was treated differently by male colleagues and ultimately forced to resign.

Former Assistant U.S. Attorney Katherine Jill Bolton claims she was unfairly put on administrative leave by Michael C. Ormsby, U.S. Attorney for Eastern District of Washington, after he learned she obtained information showing a discrepancy in salaries between her and similarly situated male colleagues. Ormsby characterized Bolton’s actions as a “data breach” and made criminal allegations against her, but another U.S. attorney’s office declined to file charges, her complaint says.

August 18, 2016 in Equal Employment, Women lawyers | Permalink | Comments (1)

Friday, July 29, 2016

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

  •  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
  • not take adverse actions against employees who request or use a reasonable accommodation;
  • hire applicants despite the need to make a reasonable accommodation;
  • not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
  • not require leave if the employer can provide another reasonable accommodation.

July 29, 2016 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Wednesday, July 6, 2016

Court Holds EEOC Met Obligation to Conciliate Sex Bias Claim

BNA, EEOC Met Obligation to Conciliate Sex Bias Claim  

The Equal Employment Opportunity Commission met its obligation to try to settle, or conciliate, a sex discrimination claim before suing a health-care provider, a federal district court in Maryland decided (EEOC v. Dimensions Healthcare Sys., 2016 BL 169980, D. Md., No 15-2342, 5/27/16 ).

 

After the EEOC sued alleging Dimensions Healthcare System denied a promotion to a female employee because of her sex, the company contended the agency hadn't adequately tried to conciliate the claim before the lawsuit. The EEOC didn't meet its pre-lawsuit obligations under Title VII of the 1964 Civil Rights Act, Dimensions argued.

 

Applying Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (U.S. 2015) (82 DLR AA-1, 4/29/15), the district court said evidence that the EEOC invited Dimensions to “informally resolve” the sex bias claim, sent a conciliation proposal to the employer and informed Dimensions that conciliation had failed after two months had elapsed satisfied the agency's obligation.

 

“We are pleased that courts consistently apply” Mach Mining in a way “that recognizes the ‘expansive discretion' the [EEOC] has in the conciliation process, and that ensures the focus of commission litigation is on the merits of the case,” EEOC General Counsel P. David Lopez said in a June 1 e-mail to Bloomberg BNA.

July 6, 2016 in Equal Employment, SCOTUS | Permalink | Comments (0)

Wednesday, June 22, 2016

Is the Uber-Like Chariot for Women Illegal?

Andrew Gray, Comment, Club Chariot for Women: No Boys Allowed, Stanford Law & Policy Rev. (forthcoming)

On April 19th, an app named Chariot for Women (Chariot) launched around the United States. The app is strikingly similar to ridesharing apps like Uber and Lyft: download the app, provide your payment information, request a ride, and you’re good to go. Yet Chariot comes with one major difference—both drivers and passengers are exclusively women. The goal of the app is simple: providing safe travel for women, by women, who fear the risk of violent crimes in taxicabs or traditional ridesharing methods. 

 

The app’s creator, Michael Pelletz, may see himself as a real-life equivalent of the feminist-friendly Dev Shah from Aziz Ansari’s Master of None,5 but in reality, he may be breaking federal law. Chariot, by design, may violate Title VII of the Civil Rights Act of 1964. The law stops employers from hiring, or refusing to hire a person because of their “race, color, religion, sex, or national origin.” It is fairly obvious, given Chariot’s business model, that their hiring practices would qualify as a prima facie violation of Title VII.  However, Chariot will argue that the Bona Fide Occupational Qualification (BFOQ) exception applies here.

 

While the app’s purpose may be noble, noble intentions don’t excuse discrimination. This short essay gives a three-part overview of the legal issues Chariot will inevitably face, and argue that allowing Chariot to fall under the BFOQ exception would overextend a purposefully narrow rule. Part II argues that the plain text of the law does not support Chariot. Part III explains that Chariot will fail a multi-part test for establishing a BFOQ. Part IV will show examples of reasonable, nondiscriminatory alternatives available to chariot. The essay concludes by mentioning policy arguments for and against Chariot, and arguing that ultimately, Chariot does not have a place within the law.

June 22, 2016 in Equal Employment, Pop Culture | Permalink | Comments (0)

Wednesday, June 15, 2016

Book Review Symposium on "Nine to Five" and Workplace Sex Discrimination

Concurring Opinions hosted a symposium of several book reviews on Joanna Grossman's new book Nine to Five.  Reviews are provided by Sam Bagenstos, Naomi Cahn, Nancy Dowd, Kate Silbaugh, and Verna Williams.

grossman-book-nine-to-five-lawnews

 

 

 

 

 

 

 

 Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).

I previously posted about the book here.

 

June 15, 2016 in Books, Equal Employment | Permalink | Comments (0)

Monday, June 13, 2016

Gender Quotas as a Judicial Remedy

My latest paper:  Remedying Sex Discrimination with Gender Quotas: "Just Because," Harvard J. Law & Gender (forthcoming)

Abstract:     

 
When newly-elected Canadian Prime Minister Justin Trudeau was asked by surprised reporters why he appointed women as fifty percent of his new cabinet, he responded simply, “Because it’s 2015.” Just because. Because it’s time. In fact, he suggested, it is long past time for having to justify including women as one-half of the power structure when women constitute one-half of the population. And it’s time for meaningful change in shared governance by something as pragmatically simple as selecting fifteen women and fifteen men for appointments.

Similarly, it is long past time for justifying the need to reform American institutions that exclude women from the power structure. Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial band-aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding and resistant, systemic sex discrimination. And the way to get there might be quotas.

“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Trudeau's cabinet decision shows. This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representations to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.

 

June 13, 2016 in Constitutional, Equal Employment, SCOTUS | Permalink | Comments (0)

Friday, June 3, 2016

Book Review: Linda Greenhouse Reviews Gillian Thomas's "Because of Sex"

Linda Greenhouse, NYT, Bittersweet Victories of Women

In Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, Gillian Thomas focuses on the afterlife of the Smith amendment as part of the Civil Rights Act’s Title VII, which deals with employment. (Other titles concern voting, education, and access to public facilities and public “accommodations,” meaning hotels, restaurants, and other private businesses serving the public. Title IX, a law we hear much about these days, is not part of the Civil Rights Act but of a different law, the Education Amendments of 1972.) Thomas, a lawyer with the American Civil Liberties Union’s Women’s Rights Project who has litigated sex discrimination cases for many years, is interested not in how Title VII’s “because of sex” clause came to be, but in what has become of it since.

June 3, 2016 in Books, Equal Employment | Permalink | Comments (0)

Thursday, June 2, 2016

Not Sex Discrimination to Fire Employee Because She is too Attractive

Joanna Grossman, Say No to This: Courts Must Stop Holding that Firing Attractive Women is Not Sex Discrimination

In a recent case, Edwards v. Nicolai, a New York trial court held that a woman who was allegedly fired by a male boss because she was “too cute” and causing his wife to be jealous had not alleged facts amounting to unlawful sex discrimination. Dilek Edwards worked as a yoga and massage therapist at Wall Street Chiropractic and Wellness, located in the heart of the financial district and presumably serving a high-end clientele. Charles Nicolai co-owned the business with his wife, Stephanie Adams. Adams is the chief operating officer, but Nicolai oversees all the chiropractic and therapeutic services.***

 

The New York court in Edwards’s case reached the same conclusion—though without the benefit of any factfinding or much reasoning. The court simply said that she had no provided any evidence that she was treated differently from male employees. Of course, that isn’t the standard under local, state, or federal antidiscrimination laws. The standard is that she was subjected to an adverse action “because of sex.” There is no comparator requirement. The “because of sex” requirement can be satisfied by proof that she would not have been treated the same way if she was male. It seems pretty obvious here that that standard is met—or at least could be met after full airing of the facts—but certainly Edwards should have been the opportunity to prove it at trial.

 

The court continued, noting that “[t]here is no allegation . . . that the plaintiff was terminated because of her status as a woman.” Yet the essence of her complaint was that she was fired because she was too cute and that made her boss’s wife jealous. In what universe does that not relate to the fact that she is a woman?

June 2, 2016 in Equal Employment | Permalink | Comments (0)

Gender Bias Suit Against Law Firm Moves Forward

Gender Bias Suit Against Mintz Levin Moves Forward

The highest court in Massachusetts has revived a lawyer’s gender discrimination lawsuit against Mintz Levin Cohn Ferris & Popeo, which focuses on her employment at the firm as an associate between 2004 and 2008.

 

Kamee Verdrager, who now has an employment law practice in New Hampshire, sued Mintz Levin in 2009 claiming the firm demoted and then fired her in 2008 based on gender bias.

 

“The plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation,” wrote associate justice Barbara Lenk on behalf of a five-judge appellate panel in the Massachusetts Supreme Judicial Court.

 

The claims at the heart of the dispute center on the cause of her demotion and subsequent termination in 2008.

 

Verdrager claims that she was subject to discriminatory, negative performance evaluations following a six-month 2006 pregnancy leave, and that the firm had retaliated against her after she previously complained of gender discrimination against at least one of the firm’s members, Bret Cohen.

 

On Tuesday, the Massachusetts appellate court ruled that Verdrager has enough evidence to bring her case to trial.

 

The ruling said: “There is evidence… that the plaintiff was treated differently from similarly situated male colleagues, that her evaluators may have judged her through the lens of a stereotype, and that Cohen, her boss, tried to undermine her. From this evidence, a jury could, but need not, infer that a “pattern of retaliatory conduct [began] soon after” her 2004 complaint

.

Mintz Levin Suffers Setback in Discrimination Case

And, in a section of the decision that could influence other employment cases, the justices ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims.

June 2, 2016 in Equal Employment, Women lawyers | Permalink | Comments (0)

Thursday, May 26, 2016

Using Information Disclosure to Drive Change under Australia's Workplace Gender Equality Act

Belinda Smith & Monica Hayes, Using Data to Drive Gender Equality in Employment: More Power to the People?

The latest version of affirmative action legislation in Australia, the Workplace Gender Equality Act 2012 (Cth) (WGE Act), reflects a fundamental shift from its predecessor legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) and, before that, the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act). This shift has been correctly characterised as a change in focus from processes to outcomes because employers covered by the legislation are now required to report on selected indicators intended to provide an overall picture of the actual state of affairs of gender employment within their organisation, not merely their ‘workplace programs’ for addressing gender inequality. However, the enactment of the WGE Act reflects another shift in the regulatory framework, a shift toward using information disclosure and standards to drive change.

May 26, 2016 in Equal Employment, International | Permalink | Comments (0)

Wednesday, May 25, 2016

SCOTUS Constructive Discharge Case Helpful for Sex Discrimination Suits

NWLC, SCOTUS Green v. Brennan Decision a Victory for Working Women

It was clarity, common sense, and civil rights for the win yesterday when the Supreme Court announced its decision in Green v. Brennan (“Green”). And in this case—as is often the case— when the three Cs win, women who face discrimination in the workplace also win.

 

Green presented SCOTUS with the question of whether the time limit for bringing a constructive discharge claim begins to run when an employee resigns or at the time of an employer’s last discriminatory act prior to the resignation. And in an exciting decision from which only one Justice (Thomas) dissented, SCOTUS declared that it begins to run after an employee resigns!

 

So now that I write that out, that probably sounds pretty unexciting if you aren’t an employment law nerd. But the implications of this decision for working women—too many of whom still face sex discrimination and, specifically, sexual harassment at work—are incredibly important. That’s because the majority of constructive discharge claims are brought in sex discrimination cases, frequently in cases challenging hostile environment sexual harassment.

 

May 25, 2016 in Equal Employment, SCOTUS | Permalink | Comments (0)

Monday, May 23, 2016

MD Passes Equal Pay Law

Wash Post, The Thing Americans Don't Want to Talk About Might be Holding Women Back

On Thursday, Maryland became the latest state to protect a worker’s right to ask colleagues one of the most taboo questions in American society: How much money do you make?

 

With Gov. Larry Hogan's signature on the equal pay law, the state joined at least a dozen others that explicitly shield compensation-curious workers from employer retaliation. The move to boost pay transparency comes four months after President Obama laid out new rules that would require companies with more than 100 employees to report to the government salary data based on race, gender and ethnicity, drawing ire from some in the business community.

 

Advocates hope the simultaneous efforts pushing employers to scrutinize their own wage breakdowns — and guarding the employees who choose to discuss them — will help reduce pay disparities between white men, women and employees of color in similar jobs.

May 23, 2016 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, May 10, 2016

New in Books: Nine to Five

Joanna Grossman (Hofstra/SMU), Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press, May 2016)

At the heart of this collection is a basic question: What is sex discrimination? The answer may seem obvious, but, in truth, it is complicated. Are all classifications on the basis of gender discriminatory, or are there times or places when sex differentiation, or even sex segregation, are permissible or desirable? Should seemingly benign classifications be prohibited because they might perpetuate damaging stereotypes and gender subordination? If so, when?

Check out the terrific Table of Contents showing an engaging style and wide range of issues covered in this new book.

May 10, 2016 in Books, Equal Employment | Permalink | Comments (0)

Wednesday, May 4, 2016

Second Generation Forms of Implicit Bias in the Legal Profession

 Nicole Negowetti, Implicit Bias and the Legal Profession's "Diversity" Crisis: A Call for Self-Reflection, Nevada L.J. 431 (2015)

Fifty years after federal law prohibited discrimination based on gender and race and ten years after Roderick Palmore issued A Call to Action: Diversity in the Legal Profession, racial and gender disparities persist in the legal profession. A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. While the under representation of minorities is a pervasive problem in the workplace, the legal profession may be the palest profession. In May 2014, The American Lawyer magazine announced that the legal profession is suffering a “Diversity Crisis.” According to Professor Deborah Rhode,

One irony of this nation’s continuing struggle for diversity and gender equity in employment is that the profession leading the struggle has failed to set an example in its own workplaces. In principle, the bar is deeply committed to equal opportunity and social justice. In practice, it lags behind other occupations in leveling the playing field.

Many efforts have been undertaken in response to the Call to Action, such as recruitment at law schools of Historically Black Colleges and Universities and diversity scholarship programs, and many scholars have also proposed institutional reforms to address the law firm practices that disadvantage women and minorities. However, diversity has been elusive. As Brad Smith, General Counsel and Executive Vice President of Microsoft, stated in response to data from the diversity gap findings: “What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.” One reason the diversity efforts have been unsuccessful may be due to a lack of focus on a key reason for the persistent disparities — the “reforms are unlikely to stick until people understand how race actually operates in the brain.”

The goal of this article is to apply social science insights to understand and address the diversity “crisis.” Emerging studies from social science demonstrate that implicit biases play a pivotal role in those “continuing inequities.” Researchers assert that disparate outcomes for different demographic groups not explained by education, experience, qualifications, or work effort are “the most rigorous evidence that substantial bias remains in the American labor market.” Social science studies demonstrate that the continued under representation of women and minorities in the legal profession is unlikely due predominately to explicit or “first generation bias,” which involves “deliberate exclusion or subordination directed at identifiable members of disfavored groups.” Rather, this bias has been supplanted by “second generation” forms of bias, which are attributable to implicit bias.

 

May 4, 2016 in Equal Employment, Race, Women lawyers | Permalink | Comments (0)