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.
Tuesday, March 14, 2017
Despite progress, the U.S. labor market continues to be segregated by gender, one of the most significant factors contributing to the gender wage gap. The majority of women work in jobs primarily done by other women, such as nursing, and an even larger share of men work in jobs primarily done by other men, such as engineering. And, female-dominated jobs tend to pay much less, often despite similar skill requirements, than male-dominated ones. In fact, renowned economists Francine Blau and Lawrence Kahn estimate that about half of the overall gender wage gap in the economy is due to job segregation: Women make 80 cents for every dollar earned by a man, but of the 20 percentage points that stand between women and equal pay, about 10 percentage points are due to this segregation in the labor market (the rest of the gap is due to a combination of factors like education, time in the workforce, and yes, discrimination).*
Fortunately, some high-tech companies are taking the lead, voluntarily revealing the gender or racial composition of their workforce (like Facebook and Google), conducting internal pay audits (like Pinterest and Redfin), and spending money to bring women’s pay up (Salesforce and Intel).
Research from the Institute for Women’s Policy Research points to some lessons tech companies can learn before they ever reach the courtroom. Basic and relatively easy company practices that improve pay and promotion outcomes, such as posting all job openings, using panels (rather than a single supervisor) to determine pay increases and promotions, and making expectations for jobs clear and transparent to all are a great first step.
Because of the necessity of adding $50,000 to the budget . . . , implementation of the property tax cap, and the realization that the Vigo County coroner was being paid more than other counties' coroners, the Council adopted a budget in the fall of 2012 that reduced the coroner's base salary from $45,579 (Dr. Kohr's salary) to $21,270. Dr. Amos ran unopposed for Coroner in the 2012 election, and took office on January 1, 2013.***
In sum, because Defendants have presented legitimate, non-discriminatory reasons for lowering the Coroner salary, and since Dr. Amos has not presented any evidence that Defendants' stated reasons for decreasing the Coroner salary were pretextual, Defendants are entitled to summary judgment on Dr. Amos' claim. The Court will not second-guess Defendants' decision, absent any evidence whatsoever that Defendants did not believe those reasons were legitimate. See O-Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001) (“[W]e ‘do not sit as a kind of ‘super-personnel department’ weighing the prudence of employment decisions made by firms charged with employment discrimination' ... ‘On the issue of pretext, our only concern is the honesty of the employer's explanation.’ ... And there is no indication in the record that [the employer] did not honestly believe [its actions were correct]”) (citation omitted); see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999) (in order to show pretext, it is insufficient for employee “to show that his employer [acted] for incorrect or poorly considered reasons. He must establish that the employer did not honestly believe the reasons it gave for [its actions]”); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006) (finding insufficient evidence of pretext and stating “it is not our role to determine the competency of or interfere in employment decisions simply where we believe an employer has made a poor choice. Federal courts have authority to correct an adverse employment action only where the employer's decision is unlawful, and not merely when the adverse action is unwise or even unfair”). Additionally, glaringly absent is any evidence showing Defendants' actions were motivated by the fact that Dr. Amos is a female. [See alsoFiling No. 35-1 at 15-17 (Dr. Amos testifying that she is not aware of any documentation indicating that the Coroner salary decision was based on her gender, that she is not aware of any witnesses or individuals who would support her “core contention that the salary was fixed at a lower level because of [her] gender,” and that her only support for her gender discrimination claim is “third or fourth hand” rumors).]
Monday, March 13, 2017
3d Circuit Says Medical Resident's Title IX Sexual Harassment and Retaliation Claim Survives Motion to Dismiss
Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.
Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appea.
On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11thCircuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.
Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII.*
That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of … sex.”
Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.
In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.”
Wednesday, March 1, 2017
Female Employee Terminated after Refusing to Participate in Medicaid Fraud States Viable Claim for Sex Discrimination
US ex rel Michelle Morison v. Res-Care Inc (S.D. Ind. Feb. 3, 2017)
Relator/Plaintiff, Michele Morison, is a former employee of Defendant, Res-Care, Inc., which provides social, educational, and vocational services to individuals who are intellectually, physically, and developmentally disabled. After Res-Care terminated Relator's employment, she filed the present lawsuit.***.
Relator was hired by Res-Care as a Qualified Intellectual Disabilities Professional ("QIDP") on August 18, 2015. As a QIDP, she prepared developmental and behavioral plans.
On February 25, 2015, Relator attended a staff meeting conducted by Jane Breedlove, the Executive Director. During this meeting, Breedlove informed the staff that there was a staffing crisis, and Res-Care did not have the necessary staff to perform direct care hours. This was a problem, Relator alleges, because Res-Care was paid a sum of money in advance to provide a certain amount of hours of direct care to residents. Breedlove therefore advised the QIDPs to begin recording their time spent on preparing developmental and behavioral plans as direct care hours. She also directed the QIDPs to backdate this time to reflect direct care in their progress notes for the month of February. The preparation of developmental and behavioral plans by QIDPs does not qualify as direct care that is reimbursed by Medicaid.
Relator refused to report her time spent preparing developmental and behavioral plans as direct care hours.. James Newness, another QIDP, also refused, but other QIDPS at Res-Care agreed to do so. Under this practice, and at least in February 2015, Res-Care falsely submitted claims for Medicaid reimbursement for the alleged performance of direct care hours by QIDPs preparing these plans.
In the weeks following the February 25, 2015 meeting, Clinical Manager Lindsay Johnson texted Relator asking her to "help with [direct care] hours." Relator responded that [*2] she was not going to do so, and that reporting non-direct care time as direct care time was Medicaid fraud.
On March 6, 2015, Relator met with Program Manager Kelly Alexander and Human Resources Coordinator Regina Gibson. Alexander advised Relator that she either had to report her time spent preparing developmental and behavioral plans as time spent providing direct care to residents for Medicaid reimbursement or resign her position. Relator refused either option, and was terminated. Newness, who also refused, was not terminated.
Tuesday, February 28, 2017
Lorraine Kokinchak v. Postmaster General (3d Cir. Feb. 3, 2017)
Even if we were to consider the unexhausted allegations of sexual harassment, the behavior Kokinchak complains about falls short of the sort of conduct courts have said constitutes hostile work environment sexual harassment. See, e.g., Harris, 510 U.S. at 19-20; Meritor, 477 U.S. at 60-61. All of these allegations—those exhausted and unexhausted—consist merely of Brents's presence near Kokinchak. As the Postmaster General points out, Kokinchak “does not allege that Brents ever touched her sexually, was physically threatening, made lewd or inappropriate comments, or even that Brents spoke to her at all.” Appellee Br. at 24. Even considering Brents's status as someone Kokinchak formerly accused of harassment, no instance of Brents's occasional and sporadic presence near Kokinchak could rationally be considered severe, and together they occurred too infrequently—a few occasions spanning years—to be pervasive. While they may have been subjectively unwelcomed by Kokinchak, an objective person could not conclude they altered the terms and conditions of her workplace. Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, Title VII prohibits actual “discriminat[ion] because of sex.” Id.
Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167.
Monday, February 20, 2017
Abstract: Sweden is widely considered to have one of the most equal and gender-equal societies in the world. But the Swedish society is also one in which the Labour Court can find discrimination when a 60-year-old ‘Swedish’ ‘white’ woman fails to get a job interview – yet not when workers call a colleague of Gambian background ‘blackie’, ‘big black bastard’, ‘the African’, and ‘svartskalle’, or a man of Nigerian background ‘Tony Mogadishu’ and ‘Koko stupid’. In this article, I will try to explain the logic behind these positions. I will also suggest an extended jurisprudential methodology that might help to prevent laws and the legal system from reinforcing societal processes of racialization. In this article I will argue that it is necessary to develop the legal methods to make it possible to forestall and prevent racism. To prevent everyday racism in the way intended by the law in books, the courts must take into account the living law and the law in action. If the courts are allowed to continue applying the law according to their whim, without even considering their position as representatives for the power of dominant ‘white’ groups over subordinated people of colour, then it is obvious that the living law that is the dominant discourse of ‘white’ normalcy will never change.
Tuesday, February 7, 2017
Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)
Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.
Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.
Thursday, January 26, 2017
Abstract:The fiftieth anniversary of Title VII provides an appropriate occasion to look back to an era when women suffered sexual abuse in the workplace (and many other places) with no possible recourse. Once feminist writers and litigators connected the dots, judges came to understand that a broad mandate to end sex discrimination had to include a mandate to eliminate sexual harassment at work. The decades that followed saw the step-by-step construction of a doctrine that ostensibly protects employees from unwanted sexual behavior at work. In this symposium issue the author examines the impact of sexual harassment law citing several court cases as examples.
Wednesday, January 25, 2017
Joyce Sterling & Nancy Reichman, Overlooked and Undervalued: Women in Private Law Practice, 12 Annual Rev. Law & Soc. Science 373 (2016)
This article examines the durability of gender inequality in private law practice since Kay & Gorman published their comprehensive review in the Annual Review of Law and Social Science in 2008. We begin with some of the changes in legal practice that intensified during the Great Recession and help to contextualize women's lack of progress. We turn next to a contemporary profile of women in private practice that demonstrates empirically where women stand. We look at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women's lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. We assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women's contributions. We consider the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes aimed at remedying the problems discussed here.
Tuesday, January 24, 2017
Study Concludes Law Fails to Grasp the Reality of Workplace Discrimination and Condones Gender Inequality
Laura Edelman, Aaron Smyth, Asad Rahim, Legal Discrimination:Empirical Sociolegal and Critical Race Perspectives on AntiDiscrimination Law, 12 Annual Rev. Law & Social Science 395 (2016)
Abstract:The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions.In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.
Monday, January 23, 2017
Massachusetts became the first state to prohibit salary histories in August. Now Philadelphia will become the first American city to do the same.
In late December, the Philadelphia city council unanimously passed a measure that will ban employers from asking about a job applicant’s salary history or relying on such information at any point in the hiring process. On Thursday, Mayor Jim Kenney (D) said he would sign it into law as early as Monday.
“Since women are paid on average lower wages than men, basing wages upon a worker’s wage at a previous job only serves to perpetuate gender wage inequalities,” the text of the bill states. “Salary offers should be based upon the job responsibilities of the position sought and not based upon the prior wages earned by the applicant.”
The law also protects anyone from retaliation for refusing to divulge her salary history, although it does allow a prospective employee to voluntarily share the information.
The bill had sparked a high-profile backlash from businesses, including a threat from Comcast to sue the city if it passed.
Wednesday, January 18, 2017
Natasha Sarin, The Impact of Paid Leave on Female Employment Outcomes
Abstract:This paper provides evidence on the impact of paid leave legislation on female employment outcomes. Using a difference-in-differences and difference-in-difference-in-differences strategy, I study the impact of two state-level programs in California and New Jersey. This paper is first to exploit the fact that the cost of paid leave in these states is larger for firms with 50 or more employees (who are forced to offer job protection under the federal FMLA) than for firms with 49 or fewer employees. Comparing firms above and below this cutoff, I estimate that paid leave with job protection reduces female hiring by around 1.15 percent in large firms compared to small firms where leaves are unprotected. Women of child-bearing age are most negatively impacted (hiring falls by around 2 percent), as are female employees in industries that are relatively less human capital intensive, like utilities and accommodation and food services.
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.