Monday, July 17, 2017
Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.
A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.
The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.
Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".
But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.
The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.
I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.
When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.
- Google Told to Hand Over Salary Details in Gender Equality Court Battle
- Google Wins Court Battle with Labor Dept Over Wage Gap Data
Thursday, July 6, 2017
Ellen Bublick, How Much is Your Injury Worth? First Tell me Your Race and Gender, JOTWELL, reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.
When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs. As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)
Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)
The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010), and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”
Wednesday, July 5, 2017
Now, in a major stride towards trying to close the gap in pay once and for all, the Iceland government passed a new law that requires all of their public and private companies employing above 25 people, to pay employees equally “regardless of gender, ethnicity, sexuality, or nationality,” according to a report on The Associated Press (AP)
These companies will be certified by the government after they provide proof that they pay men and women, and people of all races, religions and nationalities equally, for work of equal value. There are a few other countries that have “equal-salary certificate policies,” but the AP report points out that Iceland is the first such country to mandate this for both private and public firms.In Iceland, the current gender pay gap is somewhere between 14 to 18% , according to the World Economic Forum. With this new legislation, Iceland hopes to close its gender pay gap by 2022. And if the legislation is cleared by their Parliament, its Equal Pay Standard will be in force by 2020.In fact, in protest of this injustice, thousands of women across Iceland staged peaceful resistance by shutting shop at work 2.38pm, because the stats about the gap suggest that their pay only technically covers their work up to that time, compared to the boys.
“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that,” said Equality and Social Affairs Minister Thorsteinn Viglundsson.
Iceland has made significant progress in trying to close their gender gap, through policies such as quotas on corporate boards and government committees, and 48 percent female representation in the Icelandic Parliament.
Thursday, June 22, 2017
Jon Hecht, The Surprising Sexism of Maternity Leave
Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.
“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.
"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.
"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle
The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.
The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.
"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."
However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."
However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time. It is only the time for caregiving and bonding that must be the same. Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.
Tuesday, June 20, 2017
Supervisor Mark Farrell introduced legislation that would prohibit private employers in San Francisco from asking for and considering past salary information when deciding what salary to offer applicants. The proposal also applies to city government and its contractors.“If women are always held back and down by their salary history, they are prevented from ever catching up with men,” Farrell said. “We have to stop it.”
The legislation was praised during Wednesday’s Board of Supervisors Government Audit and Oversight Committee. Some amendments were made during the hearing, such as postponing the initial implementation date from January 2018 to July 2018 to give time for businesses and The City’s enforcement wing, the Office of Labor Standards Enforcement, to prepare. It is also timed for when the minimum wage increase occurs.
The committee is expected to hold a hearing June 21 on the proposal with a full board vote on June 27.
For the first year, OLSE would only issue warnings if there are violations, but beginning in July 2019, fines could be assessed beginning at $100, and for egregious cases the City Attorney’s Office can sue the employer.
A job applicant would be able to voluntarily disclose their salary if they are seeking a better offer, but an employer couldn’t ask an applicant for salary history. An employer could ask for the applicant’s salary expectations.
Last year, Massachusetts became the first state to adopt a similar law. New York City and Philadelphia followed suit this year.
For additional background on why salary histories contribute to discrimination, see here.
Friday, June 16, 2017
The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.
Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.
“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”
Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.
“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”
Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.
Here are the EEOC Guidelines on Parental Leave:
For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
EXAMPLE 15: Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
JP Morgan has explained its policy as applying to primary caregivers, who are presumably women. And it has precluded consideration of equal caregiving between parents. That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work
Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”
The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.
Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.
However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.
1. JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.
2. The company could level down and provide no paid leave to anyone. That was also the result of the Supreme Court's Morales-Santana decision. See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.
The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.
Tuesday, May 23, 2017
EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination
The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.
Some of the highlights of the petition:
- The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
- A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
- The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
- Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
- We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).
For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less
For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017)
Two important points to keep in mind are:
- How salary histories can be gendered: Historically women have been paid less than men because they could be. "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power. Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family. It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay. And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries. These are all workings of structural or systemic gender discrimination beyond any individual animus.
- There are easy non-gendered workarounds: As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination. Consider the factors directly of work experience, number of years of experience, and education and degrees.
Tuesday, May 16, 2017
An unnamed partner in Proskauer’s Washington, D.C., office has sued the firm in federal court, alleging she is a victim of discrimination and claiming “substantial gender disparities” in the firm’s partnership. The suit claims at least $50 million in damages.
Proskauer called the claims “groundless” and suggested that the partner sought to force a payout after her practice faltered.
The complaint was filed Friday in D.C. by lawyers at Sanford Heisler Sharp—which is also leading a high-profile gender bias lawsuit in New York on behalf of current and former female Chadbourne & Parke partners. Proskauer represents Chadbourne in that case.
The plaintiff in Friday’s lawsuit accuses Proskauer of paying her millions of dollars less than her male counterparts, despite her “standout performance” at the firm.
“Among other things, Proskauer excluded plaintiff from client matters, declined to allow plaintiff to pitch or to participate in any employment litigation matter for firm clients, rebuffed her efforts to assume a greater leadership role at the firm, tolerated and facilitated an environment where she was targeted for harassment and humiliation by firm leadership, demeaned and belittled her to her peers and clients, and refused to rectify pay disparities,” the suit alleges.
Friday, May 5, 2017
Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.
"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.
More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.
Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.
A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]
Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.
The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]
NY state has proposed a similar bill:
2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017
Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.
In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed
Thursday, May 4, 2017
Deborah Brake, Reviving Paycheck Fairness: Why and How the Factor-Other-Than-Sex Defense Matters, 52 Idaho L.Rev. (2016)
Ever since the Supreme Court’s short-lived decision in Ledbetter v. Goodyear Tire Company, the equal pay movement has coalesced around the Paycheck Fairness Act as the legal reform strategy for addressing the gender wage gap. The centerpiece of the Act would tighten the Factor Other Than Sex defense (FOTS) to require the employer’s sex-neutral factor to be bona fide, job-related for the position in question, and consistent with business necessity. Even without the Paycheck Fairness Act, some recent lower court decisions have interpreted the existing Equal Pay Act to set limits on the nondiscriminatory factors that can satisfy the FOTS defense, effectively incorporating a business necessity standard to assess the strength of the employer’s justification for the pay disparity.
This move to heighten judicial scrutiny of the FOTS defense is not without controversy. Some critics of the Paycheck Fairness Act have charged that requiring an employer to use a bona fide, business-justified factor to defend a pay disparity would turn the equal pay claim into a disparate impact claim, leaving it unmoored from its doctrinal and normative foundations. Others question whether the strategy goes far enough to make a difference in plaintiffs’ poor success rates, since it does nothing to relieve the problem of courts requiring strict similarity between comparators, a problem that would remain as a roadblock to proving a prima facie equal pay case. This article surveys recent developments in the Equal Pay Act case law interpreting the FOTS defense and considers how these developments compare to the changes proposed in the Paycheck Fairness Act. It then argues that the Supreme Court’s recent pregnancy discrimination decision in Young v. UPS, which uses unjustified impact to infer discriminatory intent, can help respond to the criticism of the proposed changes to the FOTS. The Court in Young took a similar step in incorporating a business necessity test to smoke out employer intent in a disparate treatment framework. Finally, the article defends judicial scrutiny of the employer’s business justifications for unequal pay as a way to ensure that the equal pay laws move beyond a narrow understanding of pay discrimination as conscious animus to encompass implicit bias. In addition to making the equal pay claim more likely to succeed in litigation, the tightening of the FOTS defense brings to the forefront the core issue in the politics of pay equality: the legitimacy of market explanations for paying women less to do substantially equal work.
Monday, May 1, 2017
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Thursday that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy, the San Francisco Chronicle reports.
In the ruling in Rizo v. Yovino (PDF), the 9th Circuit cited and upheld its earlier ruling in a similar case in 1982. In that matter, Kouba v. Allstate Insurance Co., the appeals court said that an employee’s prior salary can be considered “a factor other than sex” under the federal Equal Pay Act if the employer can show that doing so “effectuate[s] some business policy” and is done “reasonably in light of [its] state purpose as well as its other practices.”
In that case and in the current one, the appeals court remanded the matter for the trial court to evaluate the business reasons put forth by the Fresno County school system in setting the salaries.
The case was brought by Aileen Rizo, who was hired by Fresno County schools in 2009 as a math consultant, a management position. She had previously worked as a schoolteacher in Arizona for 13 years and in Fresno County got a starting salary of $62,733, almost $10,000 more than at her last job, but at the bottom of the scale in her new one.
In 2012, Rizo learned in lunchtime conversation with colleagues that a man who had just been hired in the same position as hers was getting approximately $79,000 a year, and subsequently learned that others in the job, all men, made more than she did. She sued. ***
One prominent critic says the decision feeds rather than stems pay discrimination against women.
“This decision is a step in the wrong direction if we’re trying to really ensure that women have work opportunities of equal pay,” Deborah Rhode, who teaches gender equity at Stanford Law School, told the Associated Press. “You can’t allow prior discriminatory salary setting to justify future ones, or you perpetuate the discrimination.”
Daniel Siegel, Rizo’s lawyer, told the Associated Press that the case could reach the U.S. Supreme Court because other appeals courts have decided differently on the issue.
The decision is completely tone deaf as to understanding systemic and structural discrimination.
For the recent legislative trend to enact laws to specifically prohibit the use of salary histories, see:
Friday, April 28, 2017
Task Forces and Best Practices Rather than Litigation to Achieve Gender Equity for University Faculty
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.
Thursday, April 13, 2017
The Organization of American Historians has announced it book awards for 2016. Those that may be of interest on gender and law include:
Darlene Clark Hine Award for the best book in African American women’s and gender history.
LaShawn D. Harris, Michigan State University, Sex Workers, Psychics, and Number Runners: Black Women in New York City's Underground Economy (University of Illinois Press).
Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.
Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press).
David Montgomery Award for the best book on a topic in American labor and working-class history, with cosponsorship by the Labor and Working-Class History Association (LAWCHA).
Ryan Patrick Murphy, Earlham College, Deregulating Desire: Flight Attendant Activism, Family Politics, and Workplace Justice (Temple University Press).
Google has discriminated against its female employees, according to the US Department of Labor (DoL), which said it had evidence of “systemic compensation disparities.”
As part of an ongoing DoL investigation, the government has collected information that suggests the internet search giant is violating federal employment laws with its salaries for women, agency officials said.
“We found systemic compensation disparities against women pretty much across the entire workforce,” Janette Wipper, a DoL regional director, testified in court in San Francisco on Friday.
Reached for comment Friday afternoon, Janet Herold, regional solicitor for the DoL, said: “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”
Herold added: “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry.”
Google says it's "taken aback" by the Labor Department's claim it doesn't fairly compensate women.
The Internet giant says it conducts robust scientific analysis to ensure there is no gender pay gap.
"It’s very important to us that men and women who join Google in the same role are compensated on a level playing field, when they start and throughout their careers here," Eileen Naughton, Google's vice president of people operations said in a blog post.
An ongoing Department of Labor investigation found that Google systematically pays women less than men, according to department officials. The alleged pay gap was uncovered during a routine audit of Google which, as a federal contractor, is barred from discriminating against employees.
We have laws about paying people who do the same job different amounts because of their gender. Similarly we don't allow people doing the same job to be differentiated against (or in favour of) according to the melanin content of their skin, their national origin nor whichever expressed gender they prefer to chat up on date night. But all of that is about the same job.***
When we move the goalposts a bit and start talking about similar jobs then, well, then it's all different, isn't it? Is an HR manager doing the same job as a programming manager? No, obviously not--but are they doing a similar job?
Google is using a strict definition of "same job" to find no gender pay gap. The Department of Labor is using a looser definition of "similar job" to find that there is one. Who you think is right here is entirely up to you but that's where the disagreement is.
Monday, April 10, 2017
Terry O'Neill, President, National Organization for Women, What Does the Minimum Wage Have to Do with Reproductive Rights?, 49 Akron Law Review 314 (2016)
In January of this year, I had the honor of delivering remarks at the AALS Section on Socio-Economics annual luncheon. The subject of my talk, What does the minimum wage have to do with reproductive rights?, undoubtedly struck many in the audience as attempting the impossible— linking two issues that, while each important and timely, are entirely separate. Surely, the argument goes, a woman’s right to choose abortion simply does not occupy the same analytical or policy space as a worker’s right to fair wages and terms of employment.
In this Essay, however, I will sketch out my reasons for claiming that these issues are inextricably interwoven—that in fact, the minimum wage issue is a women’s issue, while reproductive justice is an economic issue, not only for women but for their families as well. ***
The most immediate reason I hold this view, of course, is that I lead the National Organization for Women (NOW), which has long taken up economic justice and reproductive rights as “core issues” that are both intertwined and equally salient. Indeed, the organization’s bylaws declare its purpose as leading societal change through “intersectional grassroots activism,” and it has long identified six core issues, the four in addition to the two named above being: to end racism; win lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights; end violence against women; and amend the U.S. Constitution to include equality for women. Not only are these core issues viewed as deeply linked, but under NOW’s internal policies, one may not be prioritized over the others. As a result, should you ask any longtime NOW leader what the minimum wage has to do with reproductive rights, your most likely answer would be, “Well . . . that’s obvious!”
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.
In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.
Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”
Thursday, March 30, 2017
Much ado in the news today about the Pence Rule of Working with Women. There are reports of Vice-President Mike Pence’s practice that he “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side.” It was mentioned in the context of discussing he and his wife Karen have preserved their marriage. Pence’s rule is actually a version of the "Billy Graham Rule" adopted by the famous evangelist. Rev. Graham refused to meet, travel, or dine with a woman alone. A similar story about a similar practice among conservative members of Congress appeared in 2015. The rule is also sometimes thrown around (by non-lawyers) in sexual harassment training as a “best practice” and way for men to protect themselves against false accusations by women.
Commentary has pointed out how the Pence/Graham practice penalizes women by denying them access to fully do their job, as well as advancement. See How Mike Pence's Refusing to Eat with Women Hurts Women And that it is illegal sex discrimination because it denies women equal opportunity in the workplace. The current discussion serves as a reminder of the more subtle ways in which sex discrimination exists in the workplace today, evolved from the days of segregated help-wanted ads into segregated access to full workplace responsibilities.
Missing so far from the discussion is something more fundamental to understanding the law against sexism. What is discriminatory about the Pence-Graham practice is that it reinforces sexist ideas of women. It depicts women as sexual objects, regardless of context. As primarily sexual objects, they are controlled and dominated by male-led society. Systemically this is a legal problem because all women are treated as inferior based on subordinate ideals of women’s true nature as sexual object. This is the core of legal theorist Catharine MacKinnon’s work showing the deeper social and systemic nature of sexism when law and business practices allow it to continue.
MacKinnon made her argument initially in the context of sexual harassment. The Pence Rule is an overcorrection of the same problem. While not encouraging the sexual behavior of women, it still conveys the same message that women exist only for sex and control by men.
Moving from the theoretical to the practical, the Pence Rule also clearly reinforces the notion that women at work are not equally relevant. Men in power have no real need to meet with women in a confidential setting. The judge does not need to deliberate in confidence with a law clerk, the dean does not need to discuss confidential matters with the associate dean, and the president does not need to dine with the prime minister.
Monday, March 27, 2017
Katharine Bartlett, When Less is More, JOTWELL, reviewing Kate Webber, Families are More Popular Than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws, 32 Colum. J. Gender & Law 145 (2016).
Why are employees who sue to obtain workplace leave under the Family Medical Leave Act of 1993 (FMLA) almost twice as likely to win their cases as those who bring discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII)? The title of Kate Webber’s intriguing article reflects an intuition many feminists and family law scholars already bring to the table: courts find women more sympathetic when they make claims that conform to their appropriate gender roles (as they do when they ask for family leaves) than when they challenge those norms in the workplace (as they do when they make a claim that the workplace is discriminatory). Webber unpacks this intuition, first by identifying differences in the statutory schemes that might help to explain the gap in success rates between the two statutes, and then by examining the ways in which the content of the legal protections each statute provides might understandably trigger different ideological and cognitive responses by judges. The analysis is both cautious and compelling. It is also surprisingly optimistic, concluding that family leave laws provide a legislative model that may actually be more effective than Title VII in reducing institutional workplace inequality.
Thursday, March 23, 2017
Nancy Levit, June Carbone, Naomi Cahn, Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, Texas L. Rev. (forthcoming)
Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises of antidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy.
Friday, March 17, 2017
Water Company Denied Position to Veteran Manager Because of Her Gender, Then Eliminated Her Job Due to 'Consolidation,' Federal Agency Charges
TAMPA, Fla. -- Nestlé Waters North America, a Stamford, Conn.-based division of Nestlé Waters, the world's largest bottled water company, will pay $300,000 and furnish significant relief to resolve a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the lawsuit, Nestlé violated federal anti-discrimination laws when it failed to select Dawn Bowers-Ferrara, a 20-year Nestlé veteran finance and budgeting manager, to the position of Florida Zone business manager because of her gender. Instead, the EEOC said, Nestlé selected a male employee for the newly created position, even though he failed to meet the minimum requirements for the role according to Nestlé's own job description. Nestlé then terminated Bowers-Ferrara's employment because of a "consolidation." Out of 14 Florida zone managers and zone manager supervisors, Bowers-Ferrara was the only female (and the only person) who lost her job as a result of the "consolidation."
Sex discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit against Nestlé in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. Nestle Waters North America, Case No. 8:15-cv-2197-RAL-TGW (M.D. Fla.)) after first attempting to reach a pre-litigation settlement though its conciliation process.
In addition to the $300,000 in monetary relief to Bowers-Ferrara, the three-year consent decree resolving the suit also requires Nestlé to provide her with 12 months of outplacement services. Nestlé is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its ReadyRefresh Florida managers and employees. The bottled water company must post notices throughout Florida regarding the settlement and report to EEOC bi-annually on its compliance with the consent decree, including its handling of complaints of sex discrimination.