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)

Thursday, April 3, 2014

Former Wal-Mart Employee can Proceed with her Sex Discrimination Case--15 Years Later

The U.S. Court of Appeals for the Fifth Circuit allowed one woman's sex discrimination claims against Wal-Mart to (finally) move forward.  The decision is Odle v. Wal-Mart Stores (5th Cir. Mar. 31, 2014).  Odle was one of the original plaintiffs in the class action Dukes case against Wal-Mart, but then former employees like were excluded from the class of current employees, and then the Supreme Court decertified the national class.  Odle's claims arise from her termination in 1999-- 15 years ago!--but as she promised, "she will not go away."

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

Tuesday, April 1, 2014

Class Action v. Arbitration for Equal Pay-Sex Discrimination Case against National Jewelry Stores

From NYT, Women Charge Bias and Harassment in Suit Against Sterling Jewelers.  Twelve women filed 

suit against Sterling Jewelers, parent of 12 chains in the United States, including Jared the Galleria of Jewelry and Kay Jewelers. Sterling, the largest retail jewelry company in the United States by sales, is accused of gender discrimination in its pay and promotion practices since 2003.


And the accusations go further, portraying a workplace where sexual harassment and vulgar behavior left some plaintiffs feeling violated.


If the class is certified, about 44,000 current and former Sterling sales employees, from store managers to sales associates, would be offered the chance to join the plaintiffs’ case, seeking back pay and punitive damages.

While the group would not be as big as the 1997 gender case against Publix Supermarkets, which included more than 100,000 women and was settled for $81.5 million, it would eclipse the 2004 gender case against Boeing, which included 29,000 women.


Even if the women are certified as a class, they must pursue their case against Sterling privately. According to company policies, employees must deal with cases through arbitration, not the courts.

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

Saturday, March 29, 2014

Obama Urges Raise in Minimum Wage for Tipped Workers to help Low-Income Women

From Reuters, White House Urges Higher Pay for Tipped Workers

The White House said on Wednesday raising the minimum wage for workers who receive tips would disproportionately benefit low-income women and help close the gender pay gap in which men earn higher pay than women.

The federal minimum wage for workers who receive tips is $2.13 an hour - well below the minimum wage of $7.25 an hour. Even though employers are required to make up any shortfall between the tipped minimum and the standard minimum if gratuities fall short, one in 10 workers earn less than the minimum wage, the White House said.

"This provision is difficult to enforce," the White House Council of Economic Advisers said in a report. The president has asked Congress for an 18 percent, $41 million increase in funding for Department of Labor Wage and Hour division investigators to hold employers to the law.

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

Female Correctional Workers and the Challenge to Employment Law

Brenda Smith (American) and Melissa Loomis (American), have posted After Dothard: Female Correctional Workers and the Challenge to Employment Law, 8 Fla. In'tl U. L. Rev. 469 (2013).

This article examines a profession where women have made great strides - corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to hold these positions and be married. 

Women's entry into correctional spaces has had several unintended consequences. First, it has complicated the experiences of other marginalized groups in those institutions. In particular, women's progress in correctional institutions has increased female inmates' exposure to supervision by male staff, which places them at greater risk for sexual victimization. Second, it has diminished privacy of both male and female inmates in custodial settings. Third, it has resulted in female correctional employees' disproportionate involvement in prohibited intimate contact with male inmates and youth in custody. These sexual interactions have resulted variously in termination, resignation, prosecution, procreation, and litigation; complicating feminist theories of power, consent, and equality. Finally, it has complicated key employment law jurisprudence. 

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

Saturday, March 22, 2014

The Simple Truth on the Gender Pay Gap

Though nothing's simple, AAUW provides more detail in The Simple Truth About the Gender Pay Gap.

You’ve probably heard that men are paid more than women are paid over their lifetimes. But what does that mean? Are women paid less because they choose lower-paying jobs? Is it because more women work part time than men do? Or is it because women tend to be the primary caregivers for their children?

AAUW’s The Simple Truth about the Gender Pay Gap succinctly addresses these issues by going beyond the widely reported 77 percent statistic. The report explains the pay gap in the United States; how it affects women of all ages, races, and education levels; and what you can do to close it.

March 22, 2014 in Equal Employment, Work/life, Workplace | Permalink | Comments (0)

Wednesday, March 5, 2014

"Hetero-Bias" Lawsuit

Perhaps the story could have originated only from a preppy New York City day school.  

A highbrow Manhattan prep school is getting down and dirty to fight a former employee who claims he was fired for being straight.

The Trinity School on the Upper West Side called ousted coach Gregory Kenney a two-timing cad after he alleged in a lawsuit that he was fired by lesbian boss Pat Krieger in 2012 because he’s heterosexual.


School officials insist that Kenney wasn’t ostracized for his traditional lifestyle. But they don’t let things lie there.

In court papers filed last month in response to the teacher’s Manhattan civil suit, they say Kenney’s colleagues “overheard him lying to his wife about staying late for work events, only to attend bars with other women who were not his wife.”

March 5, 2014 in Equal Employment, LGBT, Work/life, Workplace | Permalink | Comments (0)

Saturday, February 22, 2014

The Irony of How Title VII Came to Include Sex Discrimination

From Slate, The Accidental Feminist:

Fifty years ago this week, on Feb. 8, 1964, Rep. Howard W. Smith, a segregationist Democrat from Virginia, stood on the floor of the House to propose an amendment to the Civil Rights Act. Title VII of the bill, which the chamber had been debating for a week, was written to ban employment discrimination because of race, color, religion, and national origin. To the list, Smith added one more category: sex.

The House, which counted just a handful of female members, erupted in laughter. “I am serious,” Smith drawled. “It is indisputable fact that all throughout industry women are discriminated against.”

In that moment Smith helped catalyze the modern feminist movement—even though, or perhaps because, his motives were hardly feminist.

February 22, 2014 in Equal Employment, Legal History | Permalink | Comments (0)