Thursday, October 8, 2015
Sandra Sperino (Cincinnati), Title VII is Not a Tort
In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame....
In upcoming posts, I will explain why Title VII is not a tort in any way that conveys specific, textual meaning. The claim that Title VII is a tort ignores the history of the statute and its text. It also unnecessarily muddies an already confusing jurisprudence and leads to odd results in what would otherwise be fairly easy cases.
When I say Title VII is not a tort, what I mean is that it does not fit precisely into the mold of any traditional tort. Calling Title VII a tort in some general sense does not help to answer the vast majority of questions that arise in discrimination cases. The tort label is dangerous because it allows courts to claim that tort law demands particular results in discrimination cases. This is simply not true.
Tuesday, September 15, 2015
The U.S. Court of Appeals for the Second Circuit has reinstated an Equal Employment Opportunity Commission sex discrimination case against the nation’s largest jewelry retailer, ruling for the first time that courts should not scrutinize the sufficiency of the agency’s pre-suit investigation.
The case, brought in 2008 under Title VII of the Civil Rights Act of 1964, alleged that Akron, Ohio-based Sterling Jewelers Inc., which operates several jewelry store chains including Kay Jewelers and Jared -The Galleria of Jewelry, had a nationwide practice of discriminating against its female sales employees in both pay and promotion.
U.S. District Judge Richard Arcara of the Western District of New York had granted summary judgment to Sterling in 2014 based on the report of a magistrate judge who concluded that the EEOC’s pre-suit investigation hadn’t been nationwide.
Wednesday’s ruling by the Second Circuit expanded on the U.S. Supreme Court’s April 29 decision inMach Mining v. EEOC, which held that judges could review on a limited basis the agency’s efforts at conciliating claims prior to filing suit.
In a case of first impression, the Second Circuit found that the EEOC, in demonstrating it conducted a pre-suit investigation, did not need to “describe in detail every step it took or the evidence it uncovered.”
Writing for the appellate panel, Judge John Walker said, “Under Title VII, courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.” He added, “Extensive judicial review of this sort would expend scarce resources and would delay and divert EEOC enforcement actions from furthering the purpose behind Title VII – eliminating discrimination in the workplace.”
EEOC Associate General Counsel Jennifer Goldstein praised the ruling. “The court of appeals recognized that Title VII gives the EEOC ‘expansive discretion’ in investigating claims of discrimination,” she wrote in an email. “Such discretion is critical for EEOC as it makes decisions about how to expend scarce resources.”
Tuesday, September 8, 2015
On Monday, the California Senate unanimously passed an equal pay bill with the strongest measures aimed at closing the gender wage gap in the country. Gov. Jerry Brown (D) has said that he’ll sign it into law.
The bill has a number of provisions, but the piece that stands out the most is one that requires employers to pay men and women the same for “substantially similar work,” not just the exact same job, unless differences are based on productivity, merit, and/or seniority.
This provision is what used to be called pay equity: not just requiring the same pay for the same job, but for different jobs that are similar in terms of effort, responsibility, and skill. While it isn’t mentioned much anymore, in the 1980s there was a strong movement toward laws that would require pay equality based on this concept. By 1989, 20 states had made adjustments among their own workforces based on “comparable worth,” or the idea of paying the same for substantially similar work in different jobs. More than 335,000 women got a raise and 20 percent of their gender wage gap was eliminated. That reduced the overall wage gap, and in five states it closed by 25 to 33 percent.
Monday, September 7, 2015
Legal History Blog, Woloch's "Class By Herself"
A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s
Tuesday, September 1, 2015
The Equal Employment Opportunity Commission has determined that the University of Denver’s Sturm College of Law is violating the Equal Pay Act by paying its female professors less than males.
The EEOC threatened suit over the gender pay gap in a letter sent to the university on Friday, report the Denver Post and KUSA. The agency said pay disparities at the law school appear to be a “continuing pattern” dating back to 1973. To comply with federal law, the university has to boost the wages of female law professors and give them back pay, the letter says.
The EEOC acted in response to a complaint filed by University of Denver law professor Lucy Marsh, whose $109,000 annual salary in 2012 made her the school’s lowest paid full professor. Marsh learned about the salary differences in a 2012 memo from the school dean that discussed merit raises and made salary comparisons.
The memo by law dean Martin Katz indicated that female full professors made $16,000 less on average than male full professors. Katz noted the pay disparity but said salary differences may be due to several factors, including differing merit raises and starting pay.
The law school defended its system of evaluation and merit pay for law professors in a statement by Chancellor Rebecca Chopp. The school cites a consultant’s findings that pay differences are due to a professor’s rank, duties, age and performance scores. The statement said Marsh’s salary was lower because of her “substandard performance in scholarship, teaching and service.”
Marsh counters that she has won several teaching awards and her Tribal Wills Project was recently recognized by the state supreme court.
Saturday, August 22, 2015
L. Camille Hebert (Ohio State), Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement
From the Abstract:
There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees.
The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.
Thursday, August 20, 2015
Police Officer Akema Thompson felt the energy in the air the moment she walked into the Manhattan precinct station. And as soon as she stepped into the women’s locker room, she knew why.
A sign on the wall announced a preparatory course for officers interested in taking the sergeant’s exam. The Civil Service test, an initial step to climbing the career ladder in the New York Police Department, was being offered for the first time in two years, and her station was buzzing.
Officer Thompson, who dreamed of becoming a lieutenant or a captain, knew right away that this was her shot. She signed up for the $769 prep course. “I wanted that opportunity,” she said.
A month later, she discovered she was pregnant. Her due date? Oct. 19, 2013, the date of the sergeant’s exam. Officer Thompson, who was 31 at the time, was not worried. She had heard that the city offered makeup tests. “I’ll make some phone calls and everything will be fine,” she remembered telling herself.Police Officer Akema Thompson sent an email to the Department of Citywide Administrative Services requesting other options for taking the test because Oct. 19, 2013 was the same day as her due date.
She could not have been more wrong.
Wednesday, July 22, 2015
Hillary Clinton was asked during an interview to respond to Mitch McConnell's charge that she plays the "gender card." Her response was apt, it seemed to me:
Clinton’s response — a riposte that the gender card is being played “every time Republicans vote against giving women equal pay, deny families access to affordable child care or family leave, refuse to let women make decisions about their health or have access to free contraception” — was a forthright appeal for women’s votes — and the latest signal that, yes, Clinton’s gender will be front and center in her campaign this time around.
Eight years ago, her first presidential campaign downplayed any focus on running as a woman. But Democrats say gender is not only a plus this time, but also crucial to Clinton’s strategy for winning a general election where she will need to boost the turnout of female voters, who are more likely to vote Democratic.
The campaign followed up on on the Facebook chat Tuesday, releasing a slick video replaying McConnell’s remark and then featuring the records of some of the GOP candidates when it comes to issues that affect women: Sens. Marco Rubio, Rand Paul and Ted Cruz voted against paid sick leave; Gov. Scott Walker repealed an equal pay law in his state; and Jeb Bush made a comment offensive to poor women back in 1994, saying, “women on welfare should get their life together and find a husband.”
“There she goes again with the women’s issues,” Clinton says in a clip featured in the video, pulled from an appearance in Iowa last week. “Well, I’m not going to stop, so get ready for a long campaign.”
Saturday, July 18, 2015
On Thursday, the Equal Employment Opportunity Commission dropped a bombshell: Sexual orientation discrimination in the workplace, the EEOC ruled, is already illegal under Title VII of the Civil Rights Act of 1964. This ruling—which is binding on EEOC conciliations between employers and employees, and is an extremely persuasive authority for courts—has been a long time in the making. In fact, it can be traced back to a unanimous 1997 Supreme Court opinion written by none other than Justice Antonin Scalia.
That case, Oncale v. Sundownerdealt with Title VII’s prohibition of discrimination “because of sex.” Joseph Oncale worked on an oil rig with seven other men, who sexually harassed him physically and verbally. Oncale sued his employer, arguing that he faced discrimination because of his sex. But the court ruled against him, holding that Title VII did not protect men against sex discrimination by male co-workers.
In a terse opinion, Scalia emphatically rejected this reasoning. Male-on-male sexual harassment, Scalia acknowledged, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” (The principal evil, of course, was male-on-female workplace discrimination.) Still, Scalia explained: "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."
This passage has formed the bedrock of the EEOC’s expansion of Title VII’s protections to sexual and gender minorities. In a 2012 decision holding that Title VII bars discrimination based on gender identity and transgender status, the EEOC placed Scalia’s “comparable evils” declaration at the center of its analysis. On Thursday, the commission pulled the same maneuver, faithfully quoting Scalia and noting that the text of Title VII does not exclude sexual minorities from the law’s protections. And now, thanks in part to Scalia, LGBT employees in every state are protected from workplace discrimination by federal law.
Thursday, July 16, 2015
Vicki Schultz (Yale), Taking Sex Discrimination Seriously, 91 Denver L. Rev. (2015).
Abstract:The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that the primary limit on legal reform has been attitudinal. Since Title VII’s enactment, both private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles, and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.
How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.
During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII’s first decade only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.
Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the activist void and resulting lack of accountability permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division that sent mixed signals about the existence and sources of women’s allegedly different work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as uniquely female reproductive experience unlike other medical conditions or as a temporary disability comparable to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.
Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires committed, cohesive efforts to contest difference as a rationale for inequality and galvanize public support for change. This Article suggests that, going forward, civil rights reformers can make further headway by challenging not only the existence and relevance of such alleged differences, but also their nature and sources. New evidence highlights that many sex, race, and other-group differences typically thought to explain and justify workplace inequalities are actually created and fostered there through employment policies and practices. The hope is that, by coming together to contest and change those practices, reformers can erode both enduring patterns of employment discrimination and the essentialist ideas about difference that have undermined the law’s promise.
Wednesday, July 15, 2015
The Government has today launched a consultation on its commitment to introduce regulations to require private and voluntary sector businesses with at least 250 employees in Great Britain to publish gender pay gap information. A gender pay gap shows the difference between the average earnings of men and women as a percentage of men’s earnings. According to the Office for National Statistics, the current overall UK gender pay gap of 19.1% shows that a woman, on average, earns around 80p for every £1 earned by a man.
The thinking behind the proposal is to achieve greater pay parity through (a) requiring employers to think about the topic and (b) sheer embarrassment. Publishing data showing a whopping gender pay gap will still constitute compliance with the new regulations, the “sting” being in the use which may be made of those statistics in individual and collective equal pay claims and on social media. However, the existence of a reported gender discrepancy in pay across an employer does not of itself mean that there is any pay discrimination – it may instead be a function of who holds the more senior roles, who works part-time, etc. The issue will be where there are material gaps within specific roles or grades, hence the enquiry in the consultation as to whether reporting at that level of detail would be feasible for most employers. That would be a material administrative burden for larger employers but a far more useful measure of progress than the very blunt instrument of flat figures across the whole business.
And the government consultation document is here.
Thursday, June 25, 2015
The U.S. Park Police, in agreeing this week to pay $300,000 to a former detective who sued after she got pregnant and was assigned to clerical work, also threw out a longstanding policy that critics derided as out of touch with the times.
Pregnant officers were required to notify their supervisors as soon as they knew they were pregnant — and provide a doctor’s note authorizing them to keep working. “When the officer’s medical physician determines that she can no longer work, the officer shall be placed on maternity leave,” Sec. F of General Order 33.00 said.
The Park Police tweaked the policy after Renee Abt sued to say that women could notify their bosses in their first trimester of pregnancy. But the department had to throw that one out too.
Saturday, June 6, 2015
This week a bipartisan group of four senators introduced a bill, dubbed the Pregnant Workers Fairness Act. It borrows language from the Americans With Disabilities Act and seeks to strengthen and clarify the “reasonable accommodations” that employers must make for pregnant employees.
The bill in and of itself it significant. But it's also significant in another sense -- in that it marks a clear and public turn away from decades of feminist thinking about the absolute interchangeability of male and female workers.
Advocates say the bill is built around a series of modern and pragmatic ideas that will directly aid the estimated 250,000 women each year who ask their employers for reasonable pregnancy-related work accommodations connected to their pregnancies -- we’re talking bathroom breaks, time for doctor’s appointments, restrictions on lifting and/or a nearby water bottle to remain hydrated – and see those requests denied. (That quarter-million women each year figure, by the way, comes from a 2014 survey conducted by the National Partnership for Women and Families.) What’s worse, at least some of these women instead wind up losing their jobs and the health insurance benefits that come with them.
Tuesday, June 2, 2015
Rejecting Kleiner's threat to seek $1 million in legal costs from an unsuccessful plaintiff if she appealed.
Here are our past blogs on the case:
Thursday, May 28, 2015
The Professor Brief in the "Most Important Pregnancy Discrimination Case in Nearly a Quarter Century"
Deborah Brake (Pitt) & Joanna Grossman (Hofstra), Introduction to Amici Curiae Brief in Young v. UPS
Abstract:On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was filed on Sept. 10, 2014, on behalf of women’s and civil rights organizations and twenty-nine law professors with expertise in pregnancy discrimination. It weaves together insights from recent legal scholarship on pregnancy and maternity to construct a coherent theory of pregnancy discrimination and its centrality to women’s inequality. We hope that the brief will help illuminate the scope of the victory in Young, contributing to a better understanding of the theory behind the PDA.
Tuesday, May 26, 2015
Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)
From the abstract:
This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.
It's what the early 20th century equality feminists feared from social feminism and protective labor laws.
In Chile, a law requires employers to provide working mothers with child care. One result? Women are paid less.
In Spain, a policy to give parents of young children the right to work part-time has led to a decline in full-time, stable jobs available to all women — even those who are not mothers.
Elsewhere in Europe, generous maternity leaves have meant that women are much less likely than men to become managers or achieve other high-powered positions at work.
Family-friendly policies can help parents balance jobs and responsibilities at home, and go a long way toward making it possible for women with children to remain in the work force. But these policies often have unintended consequences.
Tuesday, May 12, 2015
We posted posted about the new decision Mach Mining v. EEOC upholding limited judicial review for the EEOC's conciliation process.
Here's more commentary about the case: WSJ, Legal Experts Weigh in on Supreme Court's EEOC Ruling
Business litigants in recent years have notched a number of victories in cases before Supreme Court. But Wednesday’s high court ruling in a dispute over the government’s handling of discrimination complaints gives employers little to cheer, according to legal experts.
While the Supreme Court handed business a narrow and technical victory – ruling that courts do have limited power to review how the Equal Employment Opportunity Commission handles discrimination complaints before it decides to sue an employer – some lawyers familiar with the issues say that the long-term gain is for employees.
“I think it’s unambiguously a win for the EEOC and complainants,” University of Colorado law professor Melissa Hart, who specializes in civil procedure and employment discrimination, told Law Blog on Wednesday.
Thursday, May 7, 2015
ABA Commission on Women, A Current Glance at Women in the Law (July 2014).
- 34% of the legal profession
- 44.8% of associates
- 17% of equity partners
- 20% of all partners
- 4% of managing partners at BigLaw
- 16% of general counsels
- 47% of law students
- 46% of law review leaders
- 20% of law deans
- 45.7% of associate deans
- 66% of assistant deans
- 24% of the federal judiciary
- 27% of the state judiciary
- and women lawyers make 78.9% of what men make
Thursday, April 30, 2015
That's my takeaway.
Yesterday, the Supreme Court unanimously decided Mach Mining v. EEOC finding a meaningful role of judicial review in Title VII conciliation procedures.
It just strikes me as 180 degrees apart from the long line of arbitration cases in which the Court repeatedly upholds the inability for judicial inquiry into business, employment, civil rights, consumer and all other arbitration cases.
The Court's answer is likely that the federal statutes are different.
And that one is administrative action which is usually reviewable, and one is business action which is not.
And that it is recognizing only a very limited review. But its not. It is requiring notice and an opportunity for the business to prove voluntary compliance. That's due process, right? So the Court is imposing on sex discrimination cases an obligation of fair adjudication that is completely absent in ADR business cases. And seemingly tipping the balance in favor of businesses.