Tuesday, January 17, 2017
Blurring the Boundaries of Unjustified Impact and Disparate Treatment in Employment Sex Discrimination Cases
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, Georgetown L.J. (forthcoming)
Abstract:In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and relaxing the strictness of the similarity required between comparators in order to establish discriminatory intent.This article situates the newly-minted pregnancy discrimination claim in Young against the backdrop of employment discrimination law generally and argues that the Court’s hybrid treatment-by-impact claim is in good company with other outlier cases in which courts blur the boundaries of the impact/treatment line. The article defends the use of unjustified impact to prove pregnancy discrimination as well-designed to reach the kind of implicit bias against pregnant workers that often underlies employer refusals to extend accommodations to pregnant workers.While Young is not likely to prompt an earthquake in employment discrimination doctrine, this article identifies and defends a parallel development in the law governing pay discrimination that similarly incorporates unjustified impact into a disparate treatment framework. This move has already begun in some lower courts and is a central feature of the primary focal point of legislative reform, the proposed Paycheck Fairness Act. As is the case with pregnancy discrimination, pay discrimination largely stems from implicit judgments devaluing women as workers rather than conscious decisions to disfavor women because of their sex. Importing the Young theory of unjustified impact into the pay claim is necessary to make it a more viable tool for reaching the kind of bias that manifests as pay discrimination in the modern workforce. The insights developed in this article from exploring the theory and doctrine in Young provide support for the parallel development that is on the cusp of taking hold in the equal pay claim.The article concludes with some thoughts about why, given the malleability in fact, if not in judicial rhetoric, of the treatment and impact categories, disparate treatment provides the preferable grounding for these developments. Doctrinal advantages aside, the disparate treatment framing of pregnancy and pay discrimination claims best resonates with the social movement work of contesting the gender ideologies at the heart of these injustices.
Wednesday, January 11, 2017
FOR IMMEDIATE RELEASE
JAN 10, 2017
EEOC SEEKS PUBLIC INPUT ON PROPOSED ENFORCEMENT GUIDANCE ON HARASSMENT
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until February 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.
This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.
Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.
“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Chair Jenny R. Yang. “The Commission looks forward to hearing public input on the proposed enforcement guidance.”
Preventing systemic harassment has been one of EEOC’s national enforcement priorities since 2013. The Commission reaffirmed this priority in its Strategic Enforcement Plan for 2017-2021. At a public meeting in January 2015, the Commission established a Select Task Force on the Study of Harassment in the Workplace to analyze workplace harassment and identify innovative and creative prevention strategies. Chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic and comprised of academic experts, legal practitioners from the plaintiff and defense sides, employers, employee advocacy groups, and organized labor, the Select Task Force met 10 times between April 2015 and June 2016 to hear and consider testimony and public comments. At a June 2016 public meeting, Commissioners Feldblum and Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace (“Harassment Prevention Report”) with findings and recommendations about harassment prevention strategies.
“I am pleased that we are able to follow up on the recommendations in our Harassment Prevention Report with this release of the draft enforcement guidance on unlawful harassment,” said Feldblum. “This guidance clearly sets forth the Commission’s positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report. I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public.”
“As we learned from the Harassment Prevention Report this past year, 30 years after the U.S. Supreme Court laid down the law in this area, harassment charges and cases remain a far too dominant part of the work of the Commission,” said Lipnic. “I am pleased the Commission is offering an updated version of its positions on the important legal issues on this topic and look forward to the public input.”
The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number. The deadline for submission of public input is February 9, 2017.
After reviewing the public input, the Commission will consider appropriate revisions to the proposed guidance before finalizing it.
EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.
Monday, January 9, 2017
The Supreme Court today denied cert in The Geo Group v. EEOC allowing the Ninth Circuit's decision to stand allowing the class action to go forward.
According to EEOC's suit, Alice Hancock and a class of 20 female employees were sexually harassed at the Arizona State Prison-Florence West Facility and the Central Arizona Correctional Facility in Florence, Ariz.; both entities were managed by GEO under contract with the Arizona Department of Corrections. The physical sexual harassment allegedly included an incident where a male GEO manager grabbed and pinched the breasts and crotch of a female correctional officer. Also, EEOC claimed that at least one female employee was forced onto a desk, where a male GEO employee shoved apart her legs and kissed her. EEOC charged that the sexual harassment also included sexual comments and gestures, including a male officer calling a female officer "bitch" and "f---ing bitch" on a daily basis and making other lewd remarks and suggestions.
The complaint further charged that the female employees were subjected to retaliation when they reported or otherwise sought help from GEO management.
EEOC filed its lawsuit in U.S. District Court for the District of Arizona, CIV2:10-cv-02088 MHM, in September 2010, after first attempting to reach a pre-litigation settlement through its conciliation process. A similar suit was filed by the Arizona attorney general's office (ACRD), the agency that conducted the administrative investigation in this case, and the Ninth Circuit also reinstated that suit.
The trial court dismissed the claims of the women who were not identified until after EEOC filed suit. The court also dismissed the claims of two women which the court said were untimely, and another claim of one woman whose harassment was not actionable, according to the court. EEOC and ACRD appealed.
Tuesday, November 22, 2016
Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L.Rev. 919 (2016)
This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law.
Friday, November 11, 2016
Paula Monopoli, The Market Myth and Pay Disparity in Legal Academia, 52 Idaha L.Rev. (2016)
Abstract:The wage gap in academia — even when controlling for rank — has been clearly documented. This article focuses on the affirmative defenses to the Equal Pay Act that play a central role in perpetuating this pay gap in legal academia. These include exceptions for prior salary, competing offers, and negotiation. These affirmative defenses fall under the rubric of “market excuses” and their existence eviscerates the very law that was meant to make the practice of paying men and women differently illegal. The article describes case law that interprets these affirmative defenses and applies the analysis in those cases to two recent, high-profile cases in the legal academic workplace. It will describe the current state of play in legal academia in terms of compensation decisions, the disparate impact that these practices have on women faculty and possible solutions, including the Paycheck Fairness Act.
Friday, November 4, 2016
The Justice Department filed a proposed consent decree with the city of Florence, Kentucky, to resolve a pregnancy and disability discrimination lawsuit brought by the department under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act (ADA).
According to the department's complaint, Florence discriminated against two pregnant police officers by denying both officers' requests for light duty. The department alleges that Florence previously assigned light duty positions to employees who were temporarily unable to perform their regular job duties, regardless of why the employee needed light duty. In April 2013, within months of a police officer's pregnancy-related light duty request, Florence limited light duty to employees with on-the-job injuries. Florence also required that employees with non-work-related illnesses, injuries or conditions demonstrate that they had "no restrictions" before they could return to work.
In 2014, according to the department's complaint, Police Officers Lyndi Trischler and Samantha Riley requested light duty when they were unable to perform their duties as patrol officers due to their pregnancies. Officer Trischler, who was diagnosed with a high-risk pregnancy and suffered complications, also requested light duty as a reasonable accommodation for her pregnancy-related disability. Florence denied the requests and required each to take leave. After placing Officers Trischler and Riley on leave, Florence continued to grant light duty to other employees who were similar in their ability or inability to work.
This is the department's first lawsuit challenging a discriminatory light duty policy since the U.S. Supreme Court's ruling regarding light duty policies and pregnant employees in Young v. United Parcel Service. It is also the department's first lawsuit challenging disability-related "no restrictions" policies in the workplace.
"No woman should ever have to choose between having a family and earning a salary," said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division. "Equally important, individuals with disabilities who need reasonable accommodations deserve an opportunity to keep their jobs. The Justice Department will continue working tirelessly to protect pregnant women against unlawful discrimination in the workplace."
Under the consent decree, which still must be approved by the U.S. District Court for the Eastern District of Kentucky, Florence will adopt new policies that allow accommodations, including light duty, for pregnant employees and employees with disabilities; establish an effective process for receiving and responding to employees' accommodation requests and discrimination complaints; and ensure the proper maintenance of employee medical records. In addition, Florence will train all supervisors, administrators, officers and employees who participate in making personnel decisions related to light duty and other accommodation requests made pursuant to Title VII and the ADA. Florence has also agreed to pay $135,000 in compensatory damages and attorney's fees as well as restore the paid leave that Officers Trischler and Riley were forced to use.
Thursday, October 27, 2016
[W]hite and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
The debate over this use of demographic averages pits two tenets of the American justice system – fairness and accuracy – against each other.
Martha Chamallas, a law professor at Ohio State, called the practice reminiscent of “something Ruth Bader Ginsburg and civil rights advocates [fought] in the 1960s.” Jennifer Wriggins, a law professor at the University of Maine, said it “reinforces past discrimination and pushes it out into the future and endorses it.”
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston.
Tuesday, October 25, 2016
At last week's tremendous Feminist Judgments Conference, I had the pleasure of listening to many new works and feminist thinking in a wide variety of areas. Here is one to share today:
Wendy Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 NYU Rev. L & Social Change 581 (2016)
“Slut-shaming” is the act of criticizing a woman for her real or perceived sexual promiscuity. Until now, much scholarship and journalism has focused on the slut-shaming of school-aged girls and young women. This article broadens the discussion about this harassing behavior by illuminating an overlooked area: slut-shaming in the American workplace. This article focuses on how courts have dealt with hostile work environment cases based in whole or in part on rumors about adult women’s alleged sexual promiscuity. In particular, courts have struggled with how to interpret Title VII’s seemingly simple requirement that conduct occur “because of” sex. Courts have often failed to recognize the gendered aspect of sexual rumors about women. Due to the continued existence of the sexual double standard, rumors about women who engage in sex acts with men penalize women for violating gender norms.
Tuesday, October 11, 2016
A much-cited 2012 study found scientists were more enthusiastic about identical applications for a lab manager position when a generic male name was at the top, versus a female one. The implications of such findings are troubling, but one possible, relatively easy solution is hiding candidates’ names during the screening process. Harder to solve are the problems posed in a new study suggesting that letters of recommendation disadvantage women scientists on the job hunt by virtue of how they discuss candidates they’re trying to help.
“Gender Differences in Recommendation Letters for Postdoctoral Fellowships in Geoscience,” published this week in Nature Geoscience, says women are only about half as likely as men to receive letters containing language that describes them as excellent, rather than just good. The study involved letters from about 500 U.S. and international institutions regarding candidates for a postdoctoral research fellowship in the geosciences at a top American university.
Interestingly, the gendered use of language was consistent across letter writers. So women, for example, weren't any more likely to describe female candidates with the kind of dynamic language that might push them into the “excellent” category than were men.
Monday, October 3, 2016
Charges that the University of Denver’s Sturm College of Law violated federal law by paying women full professors less than their male counterparts, which first surfaced in 2013, now have become a federal lawsuit filed on Friday by the Equal Employment Opportunity Commission.
DU law professor Lucy Marsh originally filed the charges with the EEOC. The agency engaged in talks with the university to remedy the situation, but those efforts failed in May, according to the filing.
The suit says that Marsh had worked for the university for 37 years at the time of the 2013 charge, but that her annual salary, $111,977, was less than every male full-time law professor, including many who were hired after she started. Among nine full-time female full professors, the average annual salary was nearly $20,000 less than the full-time male professors — a finding the suit claims is statistically significant.
Tuesday, September 20, 2016
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
Thursday, September 1, 2016
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.
Thursday, August 25, 2016
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.
Wednesday, August 24, 2016
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 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.
Monday, August 22, 2016
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.
Friday, August 19, 2016
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.”
Thursday, August 18, 2016
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.
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.
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.
Friday, July 29, 2016
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.
Wednesday, July 6, 2016
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.
Wednesday, June 22, 2016
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.