Gender and the Law Prof Blog

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

Monday, November 13, 2017

Implicit Bias and Lack of Support as Factors in Women's Inequality in Employment

Tackling the "Thin File" That Can Prevent a Promotion

Recently, I have worked with a number of professional services firms committed to equality, diversity and inclusion. Many offer diversity training and leadership development programs, and many support affinity groups for traditionally underrepresented groups.

 

However, none has been able to crack what sometimes feels like a code set in stone: significantly increased diversity at the entry level, but very little change at the top.

 

This divide is particularly salient in law firms. At many law schools, more women than men graduate, leading to an increase in the proportion of female lawyers in the United States from about 3 percent in 1970 to almost 40 percent today. Similarly, about one-third of law school graduates are minorities, but fewer than 10 percent of equity partners are nonwhite and fewer than 20 percent are female. These numbers have been fairly stable for a while and have even backtracked in some instances.

 

However, there is reason for optimism. As a behavioral economist, I look for data, as it typically tells the tale. Instead of throwing money at the problem, we need to understand what is broken before we try to fix anything. For example, when looking at promotion data, the picture is clear: There is a promotion gap between white men and traditionally disadvantaged groups.

 

This may be the result of flawed promotion procedures at some firms where committees spend time guessing a candidate’s potential. These appraisals are fertile ground for biases, since people tend to predict the future by extrapolating from the past — and the past looks rather white and rather male.

 

What are the ways in which we can combat these biases in performance appraisals and narrow the promotion gap? One study we have underway at Harvard looks at whether potential bias will go away when we use data analytics to offer more concrete and more objectively measurable criteria for such traits as analytical skills, emotional intelligence, people skills or client interaction. Generally, the arsenal of evidence-based insights that help address flaws in the promotion process is steadily increasing. Still, fixing the process alone won’t be enough.

 

We will also need to tackle something called the “thin file,” a term I came across only recently. When explaining to me why a person was not promoted to partner, promotion committee members repeatedly said that a candidate simply didn’t have what it takes, based on a file summarizing his or her work over the past eight years.

 

The candidate had not been on enough, if any, important deals, and, making matters worse, had received little feedback over the years. Associates with these “thin files” tended to be minorities and women.

 

Although the promotion process might have some flaws, the flaws of the system had affected these candidates from the time they joined the firm as first-year associates. They were victims of what has become known as performance-support bias, in which some employees receive less support from the start.

November 13, 2017 in Equal Employment | Permalink | Comments (0)

Friday, November 3, 2017

Ford Shows How to Kill a Sexual Harassment Class Action

Reuters, Want to Kill a Sex Discrimination Class Action? Ford Case is Blueprint

Last week, U.S. District Judge Sharon Johnson Coleman of Chicago denied an emergency motion by lawyers representing 31 women who claim they were sexually harassed at two Ford Motors plants in the Chicago area. The women’s lawyers wanted to stop the Equal Employment Opportunity Commission from sending out notices to Ford workers who may be eligible for compensation under Ford’s $10 million agreement this summer with the agency. Judge Coleman concluded the women hadn’t met the extremely tough standard to justify court meddling with administrative decisions.

 

The judge’s three-page order seems perfectly straightforward – until you understand the implications of her decision. Coleman’s ruling will probably spell the end of the long-running sex discrimination class action, in which the two sides are deep in discovery on the women’s request for class certification.

 

As I’ll explain, both the women and Ford contend the EEOC claims process can’t be reconciled with the class action, the women in their emergency motion to block the EEOC notices and Ford in a motion to deny class certification. Judge Coleman hinted at sympathy for the women’s argument that Ford made a deal with the government to circumvent the class action, writing that the company “seems to be engaging in what might be considered gamesmanship.” But her ruling means Ford’s strategy worked, gamesmanship or not.

 

November 3, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Tuesday, October 31, 2017

Relationship Status Discrimination Against Women in Academic Hiring

Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)

Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.

October 31, 2017 in Education, Equal Employment, Family, Workplace | Permalink | Comments (0)

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton

Abstract:

Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, October 16, 2017

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.

 

According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.

 

A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.

 

According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.

 

“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”

 

Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.

 

Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, October 13, 2017

As Law School Hiring Season Begins, a Look at Gender Bias in the Academy

As hiring season in U.S. law schools is upon us, a few posts today on gender bias in the academy.

Virginia Valia, Beyond Gender Schemas: Improving the Advancement of Women in Academia, 20 Hypatia 198 (2005):

The statistics on women in academia are well documented and summarized in a number of places.


The generality and ubiquity of the problem shows the necessity for a general explanation. Since the phenomena are not confined to a single profession, we need to understand what underlies them. The explanation I focus on is social cognitive; it examines the moment-by-moment perceptions and judgments that disadvantage women. The social-cognitive account relies on two key concepts: gender schemas and the accumulation of advantage. Very briefly: the gender schemas that we all share result in our overrating men and underrating women in professional settings, only in small, barely visible ways: those small disparities accumulate over time to provide men with more advantages than women.

Constance Wagner, Change from Within: Using Task Forces and Best Practices to Achieve Gender Equity, 47 Journal of Legal Education (forthcoming).

This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.

This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective. It fills a gap in the literature by exploring the topic of gender inequity among university faculty from a strategic perspective by drawing on the work of successful task forces and emerging best practices that show promise to improve the status of university women faculty.

Gender Bias in Academe: An Annotated Bibliography:

Studies of the hard data of gender bias—in an era of hard data—should be required reading of all administrators and all faculty who are called upon to make decisions about hiring, tenure, and promotion based on purely quantitative measures such as “productivity” or “citation counts.”  An adage of data scientists is “garbage in, garbage out.” That means if the sample or the data is corrupt or biased when it is first entered, then any conclusions based on mining or crunching that data must be regarded with keen skepticism. You cannot simply count the end product (such as number of articles accepted, reviewed, awarded prizes, or cited) without understanding the implicit bias that pervades the original selection process and all the subsequent choices on the way to such rewards.

 

Book Review, Deborah Rhode, Women and Leadership, 8 ConLawNOW 1 (2017).

October 13, 2017 in Education, Equal Employment, Gender | Permalink | Comments (0)

Gender Bias in Academe: An Annotated Bibliography

London School of Economics, LSE Impact Blog, Gender Bias in Academe: An Annotated Bibliography

Academic research plays an important role in uncovering bias and helping to shape a more equal society. But academia also struggles to adequately confront persistent and entrenched gender bias in its own corridors. Here Danica Savonick and Cathy N. Davidson have aggregated and summarised over twenty research articles on gender bias in academe. 

 

The often unconscious and unintentional biases against women, including in academe, have been well documented in the autobiographical writings of authors such as Audre Lorde, Adrienne Rich, Patricia Williams, and bell hooks. But is the experience they document merely “subjective”?  Several recent social science research studies, using strictly controlled methodologies, suggest that these first-person accounts of discrimination are representative, not simply anecdotal. While some studies suggest that some fields are making a concerted effort to reverse gender imbalance in hiring and other practices, the majority of these studies reveal a consistent and continuing range of biases at each stage of the hiring, tenuring, and promotion process as well as in peer review and teaching evaluation.

 

The studies aggregated and summarized below offer important policy implications for the traditional ways that we quantify the processes leading to hiring, promotion, and tenure. You cannot simply count “outputs” in making an evaluation of someone’s worth and reputation if there is a “biased filter” at the first stage of evaluation, prejudicing judgment at the outset.

October 13, 2017 in Education, Equal Employment | Permalink | Comments (0)

Thursday, September 28, 2017

It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination

In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice.  The government bizarrely found itself on opposite sides of the issue.

Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias

The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.

After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.

 

The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.

Department of Wackadoodle: The DOJ's New Anti-Gay Legal Position Just Got Shut Down in Federal Court

The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.


The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.

 

It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.

 

Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.

September 28, 2017 in Courts, Equal Employment, LGBT | Permalink | Comments (0)

Monday, September 25, 2017

Rethinking the Legislative History of Title VII and Sex Discrimination

Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)

It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed. 

This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized. 

The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce. 

Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.

September 25, 2017 in Equal Employment, Legal History, Legislation, Theory | Permalink | Comments (0)

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)