Saturday, July 12, 2014

Pregnancy Discrimination May Include Adverse Action Seven Months after Birth

Pregnancy Case Against Luxury Retailer Can Proceed (Westlaw link only)

(Reuters) - A federal judge in New York has allowed a pregnancy discrimination case against a luxury retailer to go forward, in a decision that helps clarify the length of time that women who recently gave birth are still protected under pregnancy discrimination laws.
The case involves Katherine Albin, a former clerk at a Thomas Pink clothing store in Manhattan, who alleged that she was turned down for a promotion to store manager because she had recently returned from maternity leave.
In a lawsuit filed in June 2013, Albin alleged that she was rejected for the job, which went to an applicant with less experience and who was unlikely to become pregnant due to her age. Albin alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.
The two sides have sparred over whether Albin was still a member of a "protected class" -- or one protected by particular antidiscrimination laws -- when she was passed over for the promotion about seven months after her child was born. In its motion to dismiss the case, LVMH Moet Hennessy Louis Vuitton, which owns Thomas Pink, argued that Albin did not fall within the protected pregnancy class because she gave birth to her child seven months before she ultimately quit the job after being passed over for promotion.
U.S. District Judge Paul Oetken on Tuesday declined to grant LVMH's motion to dismiss, ruling that Albin had sufficiently shown she may have been protected by antidiscrimination laws because the event that she claimed triggered the discrimination -- her request to be considered for a promotion -- occurred less than four months after she gave birth. She was eventually turned down for the promotion three months later.
Case law in the 2nd U.S. Circuit Court of Appeals suggests that the circuit has developed a "loose line" of four months from a child's birth that women can still be considered a protected class for pregnancy discrimination, Oetken wrote.


July 12, 2014 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

Thursday, July 10, 2014

More Hobby Lobby Fallout

Yes, still more on Hobby Lobby.  For women, this is a game-changing decision with both significant legal and practical consequences.  It's not going to go away quietly.

Dahilia Lithwick, After Hobby Lobby, McCullen and Harris v. Quinn: The Men of the Supreme Court Leave Women Reeling

Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives

Protesters Swarm Hobby Lobby Grand Opening

July 10, 2014 in Abortion, Equal Employment, Healthcare, Workplace | Permalink | Comments (0)

Tuesday, July 8, 2014

SCOTUS Grants Cert on Duty to Conciliate in Sex Discrimination Case

SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications.  The Seventh Circuit ruled  that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC)  informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."  

The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."

EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."

One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:

 On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations. 

More on the case here.


July 8, 2014 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, July 1, 2014

SCOTUS Grants Cert in Pregnancy Accommodations Case

The US Supreme Court granted cert today in Young v. UPS, 707 F.3d 437 (4th Cir. 2013).  

The question presented is whether an employer must provide workplace accommodations to a pregnant employee similar to those it provides to temporarily disabled employees? 

In Brief: Peggy Young "is a driver for United Parcel Service, Inc. (UPS). She had asked UPS for a 'light duty' assignment after her doctor recommended that she not lift more than twenty pounds while pregnant. UPS denied her request, even though it had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. As a result of UPS’s denial, Young was forced to take unpaid leave and lost her medical coverage for the period during which she gave birth, until she was able to return to work at UPS two months later."

The Fourth Circuit CoA affirmed a grant of summary judgment to the employer holding that neither the Pregnancy Disrimination Act nor the Americans with Disabilities Act requires an employer to provide accomodations.


July 1, 2014 in Equal Employment, Family, Workplace | Permalink | Comments (0)

Saturday, June 14, 2014

Fees Upheld in Supermarket Cashier Gender Discrimination Case

Duling v. Gristede's Operating Corp, 2014 WL 567442 (S.D.N.Y. June 5, 2041). Upholding award of $500,000 in attorney's fees for successful $1.45m settlement of sex discrimination class action.

Former cashiers at a New York supermarket Gristede's alleged the compnay violated Title VII, the NYSHRL, and the NYCHRL by steering women who had applied for work in one of its approximately 40 New York supermarkets into part-time, dead-end cashier jobs—with little or no prospect for transfers or promotions into management-track positions. They also alleged that women were denied promotions in favor of men and paid less than them.  Plaintiff Sewer also brought an individual claim of discrimination based on her gender and pregnancy and a claim for interference with her rights under the Family & Medical Leave Act.

Technically, attorney's fees are not available for cases that settle without a "judicial imprimatur," said SCOTUS in Buckhannon v. West Virginia (2001). But the shadow of the law knows that without the fees, the case would proceed to trial where it would then include fees.  

June 14, 2014 in Equal Employment | Permalink | Comments (0)

Saturday, June 7, 2014

MN Governor Signs Women's Economic Security Act

Minnesota Governor Signs Women's Economic Security Act

The Women’s Economic Security Act includes 9 pieces of legislation that address a variety of issues women face in the workplace. The act will work to narrow the compensation gap between men and women in Minnesota by requiring larger-sized businesses  that contract with the state at a certain amount to undergo a pay equity analysis and earn an “equal pay certificate.” The act also bans salary secrecy, doubles unpaid maternity leave time from 6 weeks to 12 weeks, creates more employment protections for nursing and pregnant women, and creates “safety leave” for those who need time off due to sexual assault, domestic violence, or stalking, among several other changes.

June 7, 2014 in Equal Employment, Work/life | Permalink | Comments (0)

Wednesday, May 28, 2014

Gianmarco Monsellato Thinks "Lean In" and "Diversity Programs" are a Joke

Gianmarco Monsellato is a partner at the No. 5 law firm in France. His firm also has 50/50 gender balance at every level--including equity partnership.    

How did he do it? Dramatically differently than most law firms. Most of his competitors have spent years organizing women’s initiatives, networks, or mentoring programs that have done little to increase the percentage of women reaching the top. The National Association of Women Lawyers’ recent report is pretty clear: These “fix the women” approaches have not delivered.

Monsellato puts the burden squarely on the partner himself to be extremely proactive:  

Instead, Monsellato tackled the problem personally. He was involved in every promotion discussion. “For a long time,” he says, “I was the only one allocating cases.” He insisted on gender parity from the beginning. He personally ensured that the best assignments were evenly awarded between men and women. He tracked promotions and compensation to ensure parity. If there was a gap, he asked why. He put his best female lawyers on some of his toughest cases. When clients objected, he personally called them up and asked them to give the lawyer three months to prove herself. In every case, the client was quick to agree and managed to overcome the initial gender bias.

The idea is intriguing.  It is also an idea that probably requires the right combination of corporate culture, amenable clients, and, most importantly, a highly deft corporate leader who also possesses an unusal charisma and great foresight about business productivity.  Not easy to duplicate this model.  

May 28, 2014 in Equal Employment, Gender, Women lawyers | Permalink | Comments (1)

Saturday, May 24, 2014

Revenge for Rejected Sexual Advances Actionable Sex Discrimination under Title VII

Velazquez-Perez v. Developers Diversified Realty, (1st Cir.) (May 23, 2014): The First Circuit decided a case answering the novel question of whether an employer can be held liable for sex discrimination under Title VII of the Civil Rights Act of 1964 "when it terminates a worker whose job performance has been maligned by a jilted co-worker intent on revenge?"  The court answered yes.  If: 1) the coworker acted, for discriminatory reasons, with the intent to cause the plaintiff's firing; 2) the co-worker's actions were in fact the proximate cause of the termination; and 3) the employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.  Thus a male manager who was fired after he rejected a female co-worker, and married human resource manager's sexual advances, could pursue the claim beyond summary judgment.

May 24, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, May 15, 2014

Unequal Pay for Editor of NY Times

The story of unequal pay  is a familiar one and doesn't seem any better at the top, whether you're a plant manager or corporate CEO.  The latest example, NY Times Editor May Have Been Fired Due to Pay Complaints.  

Several weeks ago...Abramson discovered that her pay and her pension benefits as both executive editor and, before that, as managing editor, were considerably less than the pay and pension benefits of Bill Keller, the male editor whom she replaced in both jobs. “She confronted the top brass,” one close associate said, and this may have fed into the management’s narrative that she was “pushy,” a characterization that, for many, has an inescapably gendered aspect. 

Everyone, say it with me now.  L-i-l-l-y  L-e-d-b-e-t-t-e-r.  

May 15, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Saturday, May 3, 2014

Unequal Pay at the Top

More on the equal pay lawsuit by an Anheuser-Bush VP exec, St. Louis Trial Highlights Gender Bias in Pay

From male-only corporate jets to guys' golf outings and hunting trips, Francine Katz says her time in the Anheuser-Busch executive suite was rife with exclusion and outright discrimination. But it wasn't until the King of Beers' 2008 sale to Belgian brewer InBev that she says she realized the boy's club atmosphere was costing her millions.


In a 20-year career that saw her rise from a young corporate lawyer to a vice president, key strategist and the beer maker's top female executive, Katz became the face of her hometown employer, defending the maker of Budweiser and Bud Light from overzealous regulators and anti-alcohol crusaders.


Now she's accusing Anheuser-Busch of sex discrimination, arguing in a lawsuit that reached trial this week that top male executives — including former CEOs August Busch III and his son, August Busch IV — purposely paid her less because she's a woman.


Busch testified at trial to explain why Katz's male predecessor in the same position was paid four times her salary:

[H]e turned to the jury and said: "I hope you saw the letter Francine Katz wrote me in 2000.She thanked me for my 'generosity,'" Busch III said. Seated beside her attorney, Katz shook her head....


"We made damn sure she was compensated," he said. "John Jacob was a 60-something-year-old and had a background that was far superior to Francine Katz.How can you compared apples to oranges?"Busch III said.


May 3, 2014 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, May 1, 2014

Using Disability Law to Understand the Institutional Dimensions of the Pay Gap

Michelle Travis (San Francisco), Disabling the Gender Pay Gap: Lessons from the Social Model of Disability, Denver Law Journal (forthcoming 2014)

As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.

The disability civil rights movement faced a similar challenge, however, and their response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide. 

May 1, 2014 in Equal Employment | Permalink | Comments (0)

Tuesday, April 29, 2014

Anheuser-Bush Executive Sues for Sex Discrimination

Sex Discrimination Lawsuit Cites a "Frat Party"Atmosphere at A-B"

For two decades, [Francine] Katz was one of the brewer's staunchest defenders, and when she resigned in 2008 as its communications chief, she was among the company's highest ranking female executives. 


Now, Katz, who lives in Richmond Heights, is suing A-B and its parent company, A-B InBev, alleging the brewer discriminated against her based on her gender, in violation of the Missouri Human Rights Act.


In her lawsuit filed in Circuit Court in St. Louis in October 2009, Katz alleges that after was promoted in 2002 to vice president of communications and consumer affairs, her pay and bonus — $500,000 — was significantly less than that of John Jacob, a male colleague who previously held the position. Jacob is among those who may be called to testify.


By 2007, her pay and bonus was still 46 percent lower than Jacob's last full year of compensation before he retired, Katz alleges. She also alleges she received fewer stock options than every male employee on A-B's member strategy committee, which fluctuated between 15 to 20 members.


Katz also says that she and the only other female on the committee, Marlene Coulis, were the lowest paid committee members. Coulis, who was previously vice president of consumer strategy and innovation but no longer works at A-B, also is on the witness list and may be called to testify.


Katz complained about her compensation to her superiors in the years following her promotion, but only learned of the extent of the pay discrepancy in 2008 in a regulatory filing related to InBev's acquisition of A-B, she claims in her civil suit, which seeks back pay and punitive damages.


As part of her lawsuit, Katz also alleges the brewery encouraged a "frat party" and "locker room" atmosphere, excluded women from informal social networks and failed to give women assignments that would improve their career opportunities.

April 29, 2014 in Equal Employment | Permalink | Comments (0)

Saturday, April 26, 2014

Women Lawyers and Judges Earn 82% of What Men Earn

From the ABA Journal, How Much Less do Women Lawyers and Judges Earn than Men?

Women lawyers and judges earn about 82 percent of what their male counterparts make, reports The Upshot, a New York Times blog.

The data comes from Claudia Goldin, a Harvard University labor economist. She wrote a paper, "A Grand Gender Convergence: Its Last Chapter" (PDF), which was published this month in the American Economic Review.


Women doctors and surgeons earn 71 percent what their male counterparts earn, according to Goldin’s research, and female accountants earn 76 percent of what male accountants make. Goldin maintains that workplace flexibility could help solve the problem.

“The gender gap in pay would be considerably reduced and might vanish altogether if firms did not have an incentive to disproportionately reward individuals who labored long hours and worked particular hours,” she wrote in the paper.

Looking for a profession with no gender differences in pay? Female human resources pecialists earn 100 percent of what their male counterparts earn, according to Goldin’s research, as do advertising salespeople and dental hygienists.

April 26, 2014 in Equal Employment, Women lawyers | Permalink | Comments (1)

Reverse Equal Pay Suit

British Men Win Equal-Pay Against University

A group of British men have won a sex-discrimination case against a university that paid them less than some of their female coworkers.

At issue was how much money the 18 men – carpenters, plumbers and caretakers – employed by the University of Wales, Trinity Saint David, made compared with female colleagues on the same pay scale. The female workers included secretaries and office workers.

April 26, 2014 in Equal Employment | Permalink | Comments (0)

Florida Recognizes Pregnancy Discrimination is Sex Discrimination

Florida Supreme Court Recognizes Anti-Discrimination Protection for Pregnant Workers

The 6-1 decision allows Peguy Delva to proceed with her lawsuit against her employer, real estate developer Continental Group. Delva alleged that her employer, real estate developer Continental Group, denied her extra shifts after she became pregnant and failed to reschedule her to work after maternity leave. A lower court dismissed Delva’s case, finding that the Florida Civil Rights Act did not extend to discrimination in employment on the basis of pregnancy. The Florida Supreme Court rejected that ruling, noting that the Florida law does provide protection against discrimination based on sex and that this protection extends to pregnancy.  The court cited similar rulings in Massachusetts and Minnesota.

The Florida decision puts Florida state law in line with the federal 1978 Pregnancy Discrimination Act – whose passage was championed by the National Organization for Women (NOW) and Eleanor Smeal, then-president of NOW. 

April 26, 2014 in Equal Employment | Permalink | Comments (0)

Tuesday, April 15, 2014

The Gendered Impact of the Wage Gap on Student Debt

From NPR, Student Debt Weighs Down Women More. Blame the Wage Gap.

Women have made gains in the workplace but there's still a wage gap. Although attending college costs the same for both genders, women are more burdened by student loan debt after graduating. They spend a higher proportion of their salaries on paying off debt because, well, they have lower salaries to work with than men — from the very start.

April 15, 2014 in Education, Equal Employment | Permalink | Comments (0)

Thursday, April 10, 2014

Paycheck Fairness Act Blocked

From the NYT, Senate Republicans Block Equal Pay

Republican lawmakers have said that given existing anti-discrimination laws, the legislation is redundant and is a transparent attempt by Democrats to distract from President Obama’s much-criticized health care law.


Supporters of the bill, called the Paycheck Fairness Act, say it would bring transparency to worker pay by making it illegal for employers to penalize employees who discuss their salaries and by requiring the Equal Employment Opportunity Commission to collect pay information from employers.

April 10, 2014 in Equal Employment | Permalink | Comments (0)

Tuesday, April 8, 2014

Equal Pay Day

Today is Equal Pay Day 2014, "the symbolic day when women's earnings finally catch up to men's earnings from the previous year. It takes a few extra months because of the 23 percent gender wage gap that women typically face"

From Huffington Post, 7 Things to Know This Equal Pay Day

From LA Times, Obama Plans Executive Actions to Boost Equal Pay For Women

President Obama plans two new executive actions this week to promote equal pay for women — and to promote equal pay as a critical issue for Democrats this election year. One action, an executive order, will prohibit federal contractors from retaliating against employees who talk about how much money they make, according to an administration official familiar with the plans. The other, a presidential memorandum, will require contractors to report data to the government showing the compensation they provide their employees by sex and race.

US Dep't of Labor, Equal Pay:  

When the Equal Pay Act was signed into law by President Kennedy in 1963, women were earning an average of 59 cents on the dollar compared to men. While women hold nearly half of today's jobs, and their earnings account for a significant portion of the household income that sustains the financial well-being of their families, they are still experiencing a gap in pay compared to men's wages for similar work. Today, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.


April 8, 2014 in Equal Employment | Permalink | Comments (0)

Nebraska Bill Outlawing LGBT Employment Discrimination Likely Dead

Beth Burkstrand-Reid (Nebraska) joins us as guest blogger this month.  Her research focuses on reproductive rights and women's health, specifically abortion, birth control and pregnancy-related law. She is the recipient of the 2014 Award for Outstanding Contribution to the Status of Women, presented by the UNL Chancellor and the Chancellor's Commission on the Status of Women . Prior to her legal career, Professor Burkstrand-Reid was a journalist and her writing appeared in The New York TimesThe Washington Post and The Wall Street Journal. She's on Twitter @beth_burkstrand. 

A Nebraska bill prohibiting employment discrimination based on sexual orientation and gender identity is all but dead. Supporters did not have the votes to end a filibuster of the bill Monday, and the legislative session is rapidly drawing to a close.

“The bill would make it unlawful for an employer, employment agency or labor organization to discriminate against a person on the basis of sexual orientation or gender identity. It would apply to businesses with 15 or more employees, all employers with state contracts and state and local governments. Current state law prohibits discrimination based on race, color, religion, sex, disability, marital status and national origin. [The] bill would not apply to religious organizations.”

Nevertheless, opponents repeatedly invoked religious liberty as a reason why the bill should fail, also arguing that homosexuality is a “choice.” 

April 8, 2014 in Equal Employment, LGBT | Permalink | Comments (0)

Saturday, April 5, 2014

Paycheck Fairness Up for Vote

From Politco, Harry Reid Moves Up Paycheck Fairness Vote

The Paycheck Fairness Act would require the Department of Labor to work with employers to eliminate pay disparities between men and women, as well as create grant programs that provide negotiating skills training to women.

“The legislation I’ve introduced ensures that women will no longer be on their own fighting for equal pay for equal work. With paycheck fairness, we can put change in the law books, and change into checkbooks of working families across America,” said Sen. Barbara Mikulski (D-Md.) on Tuesday.

A similar bill failed in 2012 over worries that it would harm businesses — and most in the Capitol expect the 2014 version to meet a similar demise,


April 5, 2014 in Equal Employment, Workplace | Permalink | Comments (0)