Tuesday, February 10, 2015

Officekeeping, Double Standards, and the Beauty Myth of Work

Several articles about men and women being treated and perceived differently despite similar performances.  Men have the golden halo effect of brilliance and higher appreciation and return on work, while women run twice as fast to get to the same place.  If they can. 

NYT, Madam CEO, Get Me a Coffee

This is the sad reality in workplaces around the world: Women help more but benefit less from it. In keeping with deeply held gender stereotypes, we expect men to be ambitious and results-oriented, and women to be nurturing and communal. When a man offers to help, we shower him with praise and rewards. But when a woman helps, we feel less indebted. She’s communal, right? She wants to be a team player. The reverse is also true. When a woman declines to help a colleague, people like her less and her career suffers. But when a man says no, he faces no backlash. A man who doesn’t help is “busy”; a woman is “selfish.”

 

In a study led by the New York University psychologist Madeline Heilman, participants evaluated the performance of a male or female employee who did or did not stay late to help colleagues prepare for an important meeting. For staying late and helping, a man was rated 14 percent more favorably than a woman. When both declined, a woman was rated 12 percent lower than a man. Over and over, after giving identical help, a man was significantly more likely to be recommended for promotions, important projects, raises and bonuses. A woman had to help just to get the same rating as a man who didn’t help.

Is the Professor Bossy or Brilliant? Much Depends on Gender

Male professors are brilliant, awesome and knowledgeable. Women are bossy and annoying, and beautiful or ugly.

 

These are a few of the results from a new interactive chart that was gaining notice on social media Friday. Benjamin Schmidt, a Northeastern University history professor, says he built the chart using data from 14 million student reviews on theRate My Professors site. It allows you to search for any word to see how often it appeared in reviews and how it broke down by gender and department.

 

The chart makes vivid unconscious biases. The implications go well beyond professors and college students, to anyone who gives or receives feedback or performance reviews.

 

It suggests that people tend to think more highly of men than women in professional settings, praise men for the same things they criticize women for, and are more likely to focus on a woman’s appearance or personality and on a man’s skills and intelligence.

 

February 10, 2015 in Equal Employment, Work/life | Permalink | Comments (0)

Saturday, February 7, 2015

Lactation is not Related to Pregnancy and Other Interesting Findings of the Courts who Denied a Nursing Mom was Constructively Discharged

Lots of questions about the Ames v. Nationwide Insurance case I previously posted about.SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men can Lactate Too

 First, no clues as to what the Justices’ vote was here on the denial of cert.  We are not generally privy to this information, and no Justice here wrote a dissent from the denial.  My guess is that this is a messy case and that the most problematic reasoning was 1) in the trial court opinion rather than the Eighth Circuit opinion and 2) that it was viewed as an employment case about constructive discharge rather than the retro pregnancy discrimination that it is. 

 This is really a pretty outrageous case.  Factually, and Gender-wise if not legally.  Woman who is an insurance loss-mitigation specialist has baby #1 and takes 8 weeks maternity leave.  Then oops, pregnant with baby #2 three months later.  High risk pregnancy that requires bed rest, and the paper is born prematurely.  Nationwide messes up her maternity leave return date, and calls her while on leave and says you have to come back to work a few weeks earlier, and says taking unpaid FMLA leave would “raise red flags” and is not advised.  She returns on time, and on her first day back, she is denied access to the lactation room – which is an area requiring special security clearance and mandatory pre-approved paperwork with a three-day waiting period. (They lost me here).  Turns out the temporary substitute did none of the work while she was gone and she has two weeks to work overtime to complete the two months worth of work, and her supervisor, a woman, in response to her repeated requests for a nursing room as she is in pain, says “You know, I think it's best that you go home to be with your babies” and dictates her resignation letter to sign.   

 The main holding is she didn’t try hard enough to keep her job.  She was supposed to stick it out more, complain more, follow the channels of appeal.  Neither the trial court nor the Eighth Circuit is in the least bit sympathetic. 

 The Eighth Circuit opinion seems to just ignore the evidence. “ Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit.”  (Really? If you say so.)  And superficially concludes “That Nationwide's policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.”

 The trial court actually frames the problem as women’s problem in trying to have both a family and career. . “Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many, expressing breast milk in the workplace is incompatible with the desire to pursue a successful career. With respect to these challenges and the resulting social response, the Honorable Lewis A. Kaplan commented as follows:

                ‘The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial. Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999).

 And here is the most ridiculous conclusion.  Lactation is not related to pregnancy.

 Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

  Therefore, nursing issues not pregnancy discrimination. The end.  

And that is a pretty big issue, which is why the ACLU was likely involved.  In the old pre-PDA Supreme Court cases like Gilbert, the Court said that pregnancy was not sex discrimination.  Now the courts are saying nursing is not pregnancy.  

The Eighth Circuit Opinion is here. [WESTLAW]

The trial court opinion is here.

 

 

February 7, 2015 in Equal Employment, Reproductive Rights, Workplace | Permalink | Comments (0)

Thursday, February 5, 2015

SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men Can Lactate Too

Slate, Breastfeeding Mom Loses Because Men Can Lactate Too

In a recent piece for the New Republic, Rebecca Traister argues that “pregnancy and immediate postpartum life itself plays a serious role in slowing professional momentum for women for whom the simple—and celebrated—act of having a baby turns out to be a stunningly precarious economic and professional choice.” Just last week, the Supreme Court took a major step in keeping it that way, upholding a federal appeals court ruling against a breast-feeding mother, Angela Ames, who felt bullied out of her job with Nationwide Insurance. Part of the court's reasoning was,according to Galen Sherwin of the American Civil Liberties Union, “that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.”

 

Ames' story reads as every woman's worst nightmare of what coming back from maternity leave could be like. 

Woman Out of Appeals After Trial Court Says Her Firing for Breastfeeding Not Sexist Since Men Can Lactate

Last month, the U.S. Supreme Court denied Ames’ petition for a review of her case’s dismissal. The district court’s decision — which the Eight Circuit Court did not overturn — said that Nationwide’s treatment of Ames could not have been sexist because under certain circumstances, some men can lactate, too.

 

“The court’s reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn’t sex discrimination because both men and women can be non-pregnant,” Sherwin wrote. “Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It’s disheartening to see it resurface again.”

 

The court also found that the dismissive statement that Ames should “go home and be with (her) babies” was in fact gender neutral and not directed at Ames because she was a new mother.

 

“As the ACLU and 11 other organizations argued in a brief supporting Angela’s appeal, that comment reflects exactly the type of sex stereotype — that women will be less committed to their work after having children, or that they belong at home taking care of the children — that the federal law prohibiting sex discrimination in employment was aimed at eradicating,” Sherwin wrote.

February 5, 2015 in Equal Employment, Reproductive Rights | Permalink | Comments (1)

Tuesday, February 3, 2015

Cal Bill Would Treat Pro Team Cheerleaders as Employees

WaPo California Might Soon Require Pro Teams to Treat Cheerleaders as Employees

A California bill filed last week would require professional sports teams in the state to treat their cheerleaders as employees.

 

“NFL teams and their billionaire owners have used professional cheerleaders as part of the game day experience for decades,” Assemblywoman Lorena Gonzalez (D), the bill’s sponsor and a former collegiate cheerleader, said in a statement. “They have capitalized on their talents without providing even the most basic workplace protections like minimum wage.”

 

The bill, AB 202, would also cover overtime compensation and standards for working conditions. It comes after a class-action lawsuit was filed last year by two former cheerleaders for the Oakland Raiders who accused the team of violating labor laws, including withholding pay until the end of the season and paying less than $5 an hour. California’s minimum wage is currently $9 an hour.

February 3, 2015 in Equal Employment, Sports | Permalink | Comments (1)

Saturday, January 31, 2015

Sexism in the Legal Profession: An Uncomfortable Truth

Staci Zaretsky, Sexism in the Legal Profession: An Uncomfortable Truth

The truth, however, is that according to the latest report on Women in the Law from the ABA’s Commission on Women in the Profession, while almost half of all students who graduate from law school are women, they only make up about 34 percent of all practicing attorneys. The truth is that per the National Association of Women Lawyers’ (NAWL) most recent Survey on the Retention and Promotion of Women in Law Firms, the greatest percentage of women (64 percent) continue to occupy the lowest positions their firms have to offer, while the lowest percentage of women (17 percent) occupy the highest positions in those firms. The truth is that women do leave the profession in droves and thus won't be able to ascend to those leadership positions, but it's not just because they're off having families – according to Suzanne Goldberg of Columbia Law School's Center for Gender and Sexuality Law, it's because many law firms are hostile to women's work/life balance issues.

 

The truth is that per NAWL, the vast majority of the largest law firms in the U.S. refuse to report data about the differences between how their male and female lawyers are compensated. The truth is that, thanks to the Bureau of Labor Statistics, we know that the gender wage gap in the legal profession is an insulting constant, with women lawyers earning just 78.9 percent of their male colleagues’ weekly salaries.

 

The disheartening truth is that these depressing facts and figures are no exaggeration at all.

 

If you’re a woman in the legal profession, it’s highly likely that you’ve experienced some form of sexism during the course of your career. For example, women who zealously and aggressively advocate for their clients in court are “bitchy”; men who do the same are “excellent litigators.” It’s often considered a great inconvenience when women in the law take maternity leave; when male lawyers take paternity leave, they’re selflessly sacrificing for their family.

 

Women in the law aren’t respected as attorneys – their own colleagues disrespect them, ignore them, interrupt them, speak over them, and generally treat them like trash. The sooner women in the legal profession are willing to own the fact that they’re denigrated on a near daily basis and treated like interlopers in an old boys’ club, the sooner they’ll be able to do something about it.

 

January 31, 2015 in Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Saturday, January 24, 2015

Law Firms Still Men's Clubs at the Top

Law Firms Failing to Meet Client Demands for Gender-Diverse Teams

Men's club mentality keeping women out of partnerships, Managing Partner roundtable finds 

 

Large law firms need to radically change their cultures and working practices if they are to succeed in creating gender-diverse partnerships.

 

That's the view that emerged at a Managing Partner roundtable, which considered why many firms are still failing to develop gender-balanced partnerships and senior management teams.

 

"I don't know that we'll ever be able to get to 50 per cent diversity until the business of law as practiced by large law firms today changes," said Gina N Shishima, US head of IP transactions and patent prosecutions, and US chief diversity officer at Norton Rose Fulbright.

 

Women typically constitute more than half of the trainees and associates, but make up less than 20 per cent of the partners at international firms and about a quarter of the partners at London, regional and national firms, on average.

 

At equity partner level, female representation is even lower, ranging from 15 to 17 per centamong the UK's top 25 firms, fractionally up from the 14 to 15 per cent recorded in 2008, according to PwC data.

 

"Based on data alone, women should have achieved nearly 50 per cent parity as partners at the turn of the century," commented Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership and executive-in-residence at the Boston College Center for Work & Family.

 

Law firm culture and unconscious bias play important parts in keeping women out of partnerships and senior management teams, according to panelists.

January 24, 2015 in Equal Employment, Work/life | Permalink | Comments (0)

Thursday, January 15, 2015

Breastaurants Exacerbate Sexual Harassment Problem

Surprised? And yes, there is something people (or some people) actually call "breastaurants."

HuffPo, Breastaurants Booming as the Restaurant Industry Struggles

The so-called "breastaurants" take inspiration from Hooters, the 30-year-old chain known for big-breasted waitresses wearing short shorts and oddly orange pantyhose. But today's cleavage chains have updated the concept with fresher-looking spaces and menus better suited to today's young people who are increasingly interested in artisanal food and craft beer.***

 

“Men are simple creatures and so you don’t have to get too crazy to get them in the door,” said Kristen Colby, the chain’s senior director of marketing, adding that all it takes is an ice cold beer, sports on TV and beautiful girls.

 

“We know we're not for everybody and that’s okay,” she said, noting that other casual dining chains have struggled in part because they’re trying to be all things to all people.***

 

The restaurants create an environment that exacerbates an already prevalent problem, said Liz Watson, the director of workplace justice for women at the National Women’s Law Center. The restaurant industry is notoriously rife with sexual harassment -- nearly 80 percent of female servers say they’ve been harassed on the job, according to a report released last year by Restaurant Opportunities United, a restaurant worker advocacy group.

 

January 15, 2015 in Equal Employment | Permalink | Comments (1)

The Value of the Paycheck Fairness Act

Nicole Porter (Toledo), "Choices, Bias, and the Value of the Paycheck Fairness Act: A Response Essay"  29 ABA Journal of Labor & Employment Law 429 (2014)

This essay is in response to an article written by three practitioners, who argue that the pay gap is not primarily caused by employer discrimination, but rather can be attributed to many factors, including the choices made by women regarding occupation, caregiving, and commitment to the workforce. Thus, they argue that we should not place the blame on employers and focus on the reach of anti-discrimination laws, and should instead acknowledge that there is a broader problem caused by entrenched social norms that the law cannot change. I have a slightly different perspective. Although I agree with the authors’ assertion that much of the pay gap is caused by the choices men and women make, I disagree with them in several respects. First, I disagree that employers are primarily blamed for the pay gap. In fact, as I have argued elsewhere, the pay gap is often blamed on the choices women make. Second, and more importantly, I believe that most workplace choices made by women (and men) are constrained by social norms and workplace structures that are not compatible with balancing work and family. And, finally, although I agree with the authors that the proposed Paycheck Fairness Act cannot solve all of the problems with the Equal Pay Act, I believe it can make a dent in the pay gap, especially with a few minor tweaks. 

January 15, 2015 in Equal Employment | Permalink | Comments (0)

Obama to Give Federal Employees Paid Maternity Leave

USA Today, Obama to Propose Paid Sick Leave for American Workers

WASHINGTON -- President Obama will call on Congress to require companies to give workers up to seven days of paid sick leave a year, a senior adviser said Wednesday.

 

 Obama will also take executive action to give at least six weeks of paid leave to federal employees after the birth or adoption of a child, Senior White House Adviser Valerie Jarrett said.

 

 And Obama wants Congress to spend $2.2 billion to help states and cities develop paid family leave programs.

 

 Jarrett announced the new initiatives in a post on the job networking site LinkedIn -- a venue chosen, she said, because its audience was best positioned to drive change in their own workplaces.

From Jarrett's announcement:

So on Thursday, President Obama will call on Congress to pass the Healthy Families Act, which would allow millions of working Americans to earn up to seven days a year of paid sick time — and call on states and cities to pass similar laws. The President will outline a new plan to help states create paid leave programs, and provide new funding through the Department of Labor for feasibility studies that will help other states and municipalities figure out the best way to implement programs of their own. And the President will sign a Presidential Memorandum that will ensure federal employees have access to at least 6 weeks of paid sick leave when a new child arrives and propose that Congress offer 6 weeks of paid administrative leave as well.

January 15, 2015 in Equal Employment, Reproductive Rights, Work/life | Permalink | Comments (0)

Tuesday, January 13, 2015

Pregnancy Discrimination Cases Surprisingly on the Increase

NC Woman Battles for Right to Work While Pregnant

What is happening to Jamie Cole is happening to women all over the country, said Ariela Migdal, an attorney and senior staff member for the ACLU's Women's Rights Project in New York City.

 

Charges filed with the EEOC and Fair Employment Practices Agencies alleging pregnancy discrimination in the workplace increased by nearly 47% from 1997 through 2011, the last year in which states and the federal government reported numbers together.

 

"We are surprised that we're still seeing so much pregnancy discrimination in our nation's workplaces, 37 years after the Pregnancy Discrimination Act," said Christine Saah Nazer, spokeswoman for the EEOC.

January 13, 2015 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

Saturday, January 3, 2015

Yale Female Prof Denied Preliminary Injunction to Stop Discriminatory Firing

A federal district court ruled that a female professor threatened with dismissal on what she alleges are discriminatory grounds is not entitled to a preliminary injunction maintaining the status quo of her employment.  In Bagley v. Yale University (Dec. 29, 2014), the Connecticut district court ruled that the professor could not show "irreparable harm" necessary to qualify for the injunction because the possibility of reinstatement and/or damages after a full trial on the merits negated any claim to irreparable harm.  She alleged irreparable harm from loss of academic reputation and loss of ability to care for her 16-year old son for whom she is the sole parent,  This decision seems to fly in the face of standard Remedies-law doctrine that considers irreparable harm a rather innocous standard, and which Professor Doug Laycock asserts is a dead rule.  And the decision seems to reach broadly, eliminating PIs in virtually any employment case under this reasoning. 

The complaint detailing Professor Bagley's allegations is here.  As a "professor of practice" in a business school, she is in a situation so similar to many women in academia working in legal writing and clinics and other fields under long-term contracts. 

January 3, 2015 in Education, Equal Employment | Permalink | Comments (0)

Catholic School Teacher Fired for IVF Wins $2m Sex Discrimination Suit

Former Catholic School Teacher Fired for Violating Catholic Teaching Awarded $1.95m, Mostly For Hurt Feelings

Last Friday, a federal jury awarded a former teacher in the Diocese of Fort Wayne-South Bend almost $2 million for what she claims was sex discrimination, the bulk of which was not for medical bills or lost wages, but for $1.75 million in “emotional and physical damages” she allegedly suffered.

 

And while the case looks narrow—was this female teacher fired when immoral male teachers were allowed to retain their jobs?—it involves a much bigger question: when can federal courts scrutinize the religious decisions of churches?

 

In 2008, Emily Herx, a junior high school language arts teacher at St. Vincent de Paul School in Fort Wayne, began IVF treatment. She notified her school principal about additional IVF treatment in 2010, and in April 2011 the church pastor met with Herx to inform her that IVF was morally wrong.

 

IVF is a multi-step procedure that usually involves stimulating a woman’s ovaries to cause multiple ovulation, collecting the eggs and fertilizing them with donor sperm in a petri dish (in vitro meaning “in glass”), developing embryos, selecting a few and implanting them back in the woman. Leftover embryos are usually frozen or destroyed. According to Catholic moral teaching, this process is objectionable in many different ways.

 

Because of her IVF treatment, Herx’s contract as a teacher was not renewed, and she sued the Diocese citing alleged violation of various federal laws. Some of her claims were dismissed by the court, but her sex discrimination claim went to a jury, which rendered a verdict last Friday finding the Diocese of Fort Wayne-South Bend liable under Title VII of the 1964 Civil Rights Act, a federal law prohibiting discrimination in employment on the basis of sex. Herx had argued that, although she was terminated for undergoing IVF treatments, the Diocese allegedly continues to employ male teachers who had received vasectomies and other treatments that interfere with natural reproduction.

January 3, 2015 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

Friday, January 2, 2015

The Call for Gender Pay Gap Transparency

Equal pay photocall

What is afoot in Britain might provide lessons for the States: 

Labour has called for widespread pay transparency across Britain, proposing legislation that would make it compulsory for big companies to publish the average difference between the pay of their male and female employees.

Sarah Champion, Labour MP for Rotherham, tabled a 10-minute rule bill to enact section 78 of the Equality Act (2010), which was introduced by Labour but abandoned by the coalition when it entered government. The section requires companies that employ more than 250 people to publish their gender pay gap figures.

The bill was backed by 258 MPs, with eight voting against, but it is unlikely to progress further before the general election without government backing. It isLiberal Democrat policy to enact section 78 of the Equality Act and Lib Dem MPs were given a free vote on the issue.

January 2, 2015 in Equal Employment, Work/life, Workplace | Permalink | Comments (0)

Tuesday, December 23, 2014

Appellate Court Allows Law Prof's Gender and Race Discrimination Claim to Proceed

DC Circuit Revives Law Prof's Discrimination Claim Over Tenure Denial

A former professor at the University of the District of Columbia David A. Clarke School of Law can proceed with a lawsuit accusing school officials of denying her tenure because of her race and gender, a federal appeals court in Washington ruled on Friday.

The U.S. Court of Appeals for the D.C. Circuit partially revived claims filed by Stephanie Brown, who was fired from the law school in May 2012 after she was denied tenure. Reversing the federal district judge who dismissed Brown’s case, a three-judge D.C. Circuit panel found Brown, who is black, presented enough of a nexus between her race and gender and her nonpromotion to survive at this stage of the litigation. [Brown v. Sessoms, No. 13-7027 (D.C. Cir. Dec. 19, 2014)]

Brown worked for more than two decades at the law school, according to court filings. In 2009, when she was an associate professor of law, she applied for tenure. Broderick expressed concerns that Brown hadn't produced enough legal scholarship, but ultimately approved the application after learning a law journal was about to publish one of Brown’s article. ...

Brown accused the school of discriminating against her based on her race and gender. She argued that the school granted tenure around the time she applied to a white male professor, William McClain, who had a similar scholarship record as she did. ...

“Drawing all inferences in her favor, we believe that Brown’s complaint sufficiently makes out that she and McLain had similar records with regard to teaching and service. Because both also failed to meet the publication requirement, their tenure applications appear, from the complaint, to be on comparable footing. The fact that McLain won tenure and Brown did not allows us ‘to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

December 23, 2014 in Equal Employment, Law schools | Permalink | Comments (0)

Affirming Punitive Damages for Sexual Harassment, even with only Nominal Damages

Con LawProf, Ninth Circuit Affirms $300K in Punitives in Title VII Case with only Nominal Damages

The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.

 

The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.

 

The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.

December 23, 2014 in Equal Employment | Permalink | Comments (0)

Saturday, December 6, 2014

Feminist Study of Irish Discrimination Reform Shows Law Reinforces Gendered Assumptions about Work and Family

From Robert Lekey, at Jotwell, The Careless Ideal Worker, reviewing Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014).

It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.

 

Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life.

December 6, 2014 in Equal Employment, International, Work/life | Permalink | Comments (0)

Saturday, November 29, 2014

Illinois Law to Require Pregnancy Accommodations

Nat'l Law Rev, Illinois Targest Mid-December for Issuing Required Employer Posting under Pregnancy Accommodations Law

Different and arguably greater obligations on businesses are imposed under the Illinois law than under federal laws, such as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).

 

The new law requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations. 

 

If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.” 

November 29, 2014 in Equal Employment, Reproductive Rights | Permalink | Comments (0)

Friday, November 28, 2014

The Second Shift on Thanksgiving

Slate, Thanksgiving is Becoming Impossible for Low-wage Working Women

This is a deeply gendered issue, and not just because low-wage retail workers are disproportionately female. Holidays are a time when the domestic demands put on women escalate. While some families are more progressive, the fact remains that, in most families, women are expected to do almost all the cooking, cleaning, present-wrapping, decorating, and planning. ***

 

State Rep. Mike Foley is trying to attack this problem by pushing a bill in Ohio that would triple the minimum wage on Thanksgiving Day. It's a brilliant idea, and not just because it increases the compensation for people who are dragged into work that day. Since there's no increased profitability for being open on Thanksgiving, if employers have to pay more to make no more money, they might reconsider this ridiculous trend of forcing retail workers to work on what is supposed to be a national holiday.

November 28, 2014 in Equal Employment, Poverty, Work/life | Permalink | Comments (0)

Saturday, November 1, 2014

Litigating Class Sex Discrimination using a Fraud-on-the-Market Theory

Roger W. Reinsch (Minnesota-Duluth) and Sonia Goltz (Michigan Tech), You Can't Get There From Here: Implications of the Wal-mart Dukes Case for Addressing Second Generation Discrimination, 9 Northwestern J. Law & Social Policy 264 (2014).  From the abstract:

In Wal-Mart v. Dukes, the Supreme Court determined the plaintiffs had not shown, based on the evidence, that there were questions of law or fact common to the class. The allegedly discriminatory decisions had been made by individual supervisors at different stores who had been given discretion by Wal-Mart to make pay and promotion decisions. The Court stated the problem was that there was no specific evidence that all the discretionary decisions were made in a manner that reflected gender bias. This case not only reversed decades of court acceptance of social framework evidence in employment litigation but also insulates businesses from class action suits by imposing a huge barrier to class certification.

 

This Article first reviews the Wal-Mart v. Dukes decision with respect to how it adversely affects the viability of class action suits that have historically provided recourse for individuals who are less able to pursue individual claims of discrimination. This Article then examines implications of Dukes and other decisions for the court’s ability to address the problem of second-generation discrimination. In particular, we focus on the difficulties created by requiring the application of a clearly defined policy and practice to all cases involved. Finally, this Article suggests that given that policy and practice continue to be a requirement for class certification, one could meet this requirement by reframing classes using a theory analogous to the “fraud on the market” doctrine employed in securities cases. In other words, organizations that have a policy of nondiscrimination but allow individual managers to make employment decisions any way the managers please could be viewed as perpetuating a type of “fraud-on-the-employment market” in which plaintiffs have relied on a material misstatement of fact when accepting their positions.

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

Thursday, October 30, 2014

Pregnant UPS Workers Win Without Winning

She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers

This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.

 

“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.

 

Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?

 

Indeed it is.

 

UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.

 

The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.

 

In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”

 

The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.

 

“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”

 

The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”

 

October 30, 2014 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)