Wednesday, June 15, 2016
Concurring Opinions hosted a symposium of several book reviews on Joanna Grossman's new book Nine to Five. Reviews are provided by Sam Bagenstos, Naomi Cahn, Nancy Dowd, Kate Silbaugh, and Verna Williams.
Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).
I previously posted about the book here.
Monday, June 13, 2016
My latest paper: Remedying Sex Discrimination with Gender Quotas: "Just Because," Harvard J. Law & Gender (forthcoming)
Abstract:When newly-elected Canadian Prime Minister Justin Trudeau was asked by surprised reporters why he appointed women as fifty percent of his new cabinet, he responded simply, “Because it’s 2015.” Just because. Because it’s time. In fact, he suggested, it is long past time for having to justify including women as one-half of the power structure when women constitute one-half of the population. And it’s time for meaningful change in shared governance by something as pragmatically simple as selecting fifteen women and fifteen men for appointments.
Similarly, it is long past time for justifying the need to reform American institutions that exclude women from the power structure. Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial band-aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding and resistant, systemic sex discrimination. And the way to get there might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Trudeau's cabinet decision shows. This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representations to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Friday, June 3, 2016
Linda Greenhouse, NYT, Bittersweet Victories of Women
In Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, Gillian Thomas focuses on the afterlife of the Smith amendment as part of the Civil Rights Act’s Title VII, which deals with employment. (Other titles concern voting, education, and access to public facilities and public “accommodations,” meaning hotels, restaurants, and other private businesses serving the public. Title IX, a law we hear much about these days, is not part of the Civil Rights Act but of a different law, the Education Amendments of 1972.) Thomas, a lawyer with the American Civil Liberties Union’s Women’s Rights Project who has litigated sex discrimination cases for many years, is interested not in how Title VII’s “because of sex” clause came to be, but in what has become of it since.
Thursday, June 2, 2016
In a recent case, Edwards v. Nicolai, a New York trial court held that a woman who was allegedly fired by a male boss because she was “too cute” and causing his wife to be jealous had not alleged facts amounting to unlawful sex discrimination. Dilek Edwards worked as a yoga and massage therapist at Wall Street Chiropractic and Wellness, located in the heart of the financial district and presumably serving a high-end clientele. Charles Nicolai co-owned the business with his wife, Stephanie Adams. Adams is the chief operating officer, but Nicolai oversees all the chiropractic and therapeutic services.***
The New York court in Edwards’s case reached the same conclusion—though without the benefit of any factfinding or much reasoning. The court simply said that she had no provided any evidence that she was treated differently from male employees. Of course, that isn’t the standard under local, state, or federal antidiscrimination laws. The standard is that she was subjected to an adverse action “because of sex.” There is no comparator requirement. The “because of sex” requirement can be satisfied by proof that she would not have been treated the same way if she was male. It seems pretty obvious here that that standard is met—or at least could be met after full airing of the facts—but certainly Edwards should have been the opportunity to prove it at trial.
The court continued, noting that “[t]here is no allegation . . . that the plaintiff was terminated because of her status as a woman.” Yet the essence of her complaint was that she was fired because she was too cute and that made her boss’s wife jealous. In what universe does that not relate to the fact that she is a woman?
The highest court in Massachusetts has revived a lawyer’s gender discrimination lawsuit against Mintz Levin Cohn Ferris & Popeo, which focuses on her employment at the firm as an associate between 2004 and 2008.
Kamee Verdrager, who now has an employment law practice in New Hampshire, sued Mintz Levin in 2009 claiming the firm demoted and then fired her in 2008 based on gender bias.
“The plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation,” wrote associate justice Barbara Lenk on behalf of a five-judge appellate panel in the Massachusetts Supreme Judicial Court.
The claims at the heart of the dispute center on the cause of her demotion and subsequent termination in 2008.
Verdrager claims that she was subject to discriminatory, negative performance evaluations following a six-month 2006 pregnancy leave, and that the firm had retaliated against her after she previously complained of gender discrimination against at least one of the firm’s members, Bret Cohen.
On Tuesday, the Massachusetts appellate court ruled that Verdrager has enough evidence to bring her case to trial.
The ruling said: “There is evidence… that the plaintiff was treated differently from similarly situated male colleagues, that her evaluators may have judged her through the lens of a stereotype, and that Cohen, her boss, tried to undermine her. From this evidence, a jury could, but need not, infer that a “pattern of retaliatory conduct [began] soon after” her 2004 complaint
And, in a section of the decision that could influence other employment cases, the justices ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims.
Thursday, May 26, 2016
Belinda Smith & Monica Hayes, Using Data to Drive Gender Equality in Employment: More Power to the People?
The latest version of affirmative action legislation in Australia, the Workplace Gender Equality Act 2012 (Cth) (WGE Act), reflects a fundamental shift from its predecessor legislation, the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) and, before that, the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act). This shift has been correctly characterised as a change in focus from processes to outcomes because employers covered by the legislation are now required to report on selected indicators intended to provide an overall picture of the actual state of affairs of gender employment within their organisation, not merely their ‘workplace programs’ for addressing gender inequality. However, the enactment of the WGE Act reflects another shift in the regulatory framework, a shift toward using information disclosure and standards to drive change.
Wednesday, May 25, 2016
It was clarity, common sense, and civil rights for the win yesterday when the Supreme Court announced its decision in Green v. Brennan (“Green”). And in this case—as is often the case— when the three Cs win, women who face discrimination in the workplace also win.
Green presented SCOTUS with the question of whether the time limit for bringing a constructive discharge claim begins to run when an employee resigns or at the time of an employer’s last discriminatory act prior to the resignation. And in an exciting decision from which only one Justice (Thomas) dissented, SCOTUS declared that it begins to run after an employee resigns!
So now that I write that out, that probably sounds pretty unexciting if you aren’t an employment law nerd. But the implications of this decision for working women—too many of whom still face sex discrimination and, specifically, sexual harassment at work—are incredibly important. That’s because the majority of constructive discharge claims are brought in sex discrimination cases, frequently in cases challenging hostile environment sexual harassment.
Monday, May 23, 2016
On Thursday, Maryland became the latest state to protect a worker’s right to ask colleagues one of the most taboo questions in American society: How much money do you make?
With Gov. Larry Hogan's signature on the equal pay law, the state joined at least a dozen others that explicitly shield compensation-curious workers from employer retaliation. The move to boost pay transparency comes four months after President Obama laid out new rules that would require companies with more than 100 employees to report to the government salary data based on race, gender and ethnicity, drawing ire from some in the business community.
Advocates hope the simultaneous efforts pushing employers to scrutinize their own wage breakdowns — and guarding the employees who choose to discuss them — will help reduce pay disparities between white men, women and employees of color in similar jobs.
Tuesday, May 10, 2016
Joanna Grossman (Hofstra/SMU), Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press, May 2016)
At the heart of this collection is a basic question: What is sex discrimination? The answer may seem obvious, but, in truth, it is complicated. Are all classifications on the basis of gender discriminatory, or are there times or places when sex differentiation, or even sex segregation, are permissible or desirable? Should seemingly benign classifications be prohibited because they might perpetuate damaging stereotypes and gender subordination? If so, when?
Check out the terrific Table of Contents showing an engaging style and wide range of issues covered in this new book.
Wednesday, May 4, 2016
Nicole Negowetti, Implicit Bias and the Legal Profession's "Diversity" Crisis: A Call for Self-Reflection, Nevada L.J. 431 (2015)
Fifty years after federal law prohibited discrimination based on gender and race and ten years after Roderick Palmore issued A Call to Action: Diversity in the Legal Profession, racial and gender disparities persist in the legal profession. A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. While the under representation of minorities is a pervasive problem in the workplace, the legal profession may be the palest profession. In May 2014, The American Lawyer magazine announced that the legal profession is suffering a “Diversity Crisis.” According to Professor Deborah Rhode,
One irony of this nation’s continuing struggle for diversity and gender equity in employment is that the profession leading the struggle has failed to set an example in its own workplaces. In principle, the bar is deeply committed to equal opportunity and social justice. In practice, it lags behind other occupations in leveling the playing field.
Many efforts have been undertaken in response to the Call to Action, such as recruitment at law schools of Historically Black Colleges and Universities and diversity scholarship programs, and many scholars have also proposed institutional reforms to address the law firm practices that disadvantage women and minorities. However, diversity has been elusive. As Brad Smith, General Counsel and Executive Vice President of Microsoft, stated in response to data from the diversity gap findings: “What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.” One reason the diversity efforts have been unsuccessful may be due to a lack of focus on a key reason for the persistent disparities — the “reforms are unlikely to stick until people understand how race actually operates in the brain.”
The goal of this article is to apply social science insights to understand and address the diversity “crisis.” Emerging studies from social science demonstrate that implicit biases play a pivotal role in those “continuing inequities.” Researchers assert that disparate outcomes for different demographic groups not explained by education, experience, qualifications, or work effort are “the most rigorous evidence that substantial bias remains in the American labor market.” Social science studies demonstrate that the continued under representation of women and minorities in the legal profession is unlikely due predominately to explicit or “first generation bias,” which involves “deliberate exclusion or subordination directed at identifiable members of disfavored groups.” Rather, this bias has been supplanted by “second generation” forms of bias, which are attributable to implicit bias.
Thursday, April 28, 2016
A federal judge has granted preliminary approval for a lawsuit accusing Merck & Co In. of underpaying female sales representatives to go forward as a collective action.
The lawsuit is seeking at least $250 million in damages.
U.S. District Judge Michael Shipp in Trenton, New Jersey, on Wednesday granted conditional certification to a proposed class of current and former representatives under the federal Equal Pay Act, which requires women and men to be paid equally for the same work.
The complaint alleges that Merck systematically paid female sales representatives less than their male peers, denied them promotions and subjected them to sexual harassment and an otherwise hostile work environment.
Employees who become pregnant or have children were often pressured to leave the company, the complaint says.
A collective action under the Equal Pay Act requires potential class members to opt in, unlike a traditional class action in which class members must opt out. Shipp's order allows notices to be sent to potential members so they can opt in.
Tuesday, April 26, 2016
ICYMI, Reuters, Gender Bias Lawsuit Against Wal-Mart Can Proceed After High Court Denies Review (Feb. 2016)
The Supreme Court ... rejected Wal-Mart's bid to overturn a federal appeals court decision allowing female workers to sue the retail giant for paying women less and giving them fewer promotions than men.
The court's decision not to take the case leaves intact a 6th U.S. Circuit Court of Appeals ruling that found former members of the landmark Dukes v. Wal-Mart class action did not miss the deadline to bring their gender discrimination claims on a regional basis after the Supreme Court rejected the nationwide class in 2011.
See also, Michael Selmi & Sylvia Tsakos, Employment Discrimination Cases After Wal-Mart, 48 Akron Law Rev. 803 (2015)
The view of Wal-Mart as a game changer has proved inaccurate, though the decision seems to have significantly affected the number of case filings. The reduction in filings is an important development, but when one reviews the cases interpreting Wal-Mart, it appears that courts are proceeding much as they did prior to the Supreme Court decision. Employment discrimination class actions have never been easy to certify, nor have they been plentiful, and that remains true today. At the same time, courts that were receptive to class action claims prior to the Wal-Mart decision appear to remain receptive after the decision. As a result of Wal-Mart, the analysis by the lower courts varies somewhat, but the results are largely the same; to the extent a court would have certified the claim before the Supreme Court decision it will likely still be certified. Moreover, various efforts by defense attorneys to stretch the Wal-Mart decision to have claims dismissed even before a certification hearing have largely failed, although those efforts have undeniably escalated in the last several years.
Wednesday, April 20, 2016
Leora F. Eisenstadt (Temple, B School) & Jeffrey R. Boles (Temple, Dept Legal Studies in Bus), Intent and Liability in Employment Discrimination, American Business L.J. (forthcoming)
Abstract:The Silicon Valley Ellen Pao trial brought to the forefront once again the changing nature of discrimination in the workplace with its focus on a culture of bias and the prevalence of unconscious discriminatory behavior. This case is only the most recent high-profile example. There is an emerging consensus among scholars that the concept of “intent” in disparate treatment employment discrimination should be broadened to encapsulate more flexible notions including implicit bias, negligent discrimination, and structural discrimination. These scholars argue convincingly that psychological research demonstrates that implicit bias and reliance on ingrained stereotypes is, to some extent, natural to human decision-making processes. As a result, bias in the workplace operates at both an overt, knowing level but also beneath the surface and, at times, without the conscious knowledge of the decision-makers themselves.
However, despite extensive discussion of implicit bias in the legal literature, few, if any, scholars have considered alterations to liability and compensation schemes as a result of the broader meanings of intent. This article proposes looking to criminal law as a practical and theoretical model for an amendment to Title VII that would include gradations of intent with concomitant gradations in liability. The Model Penal Code presents an orderly and well-thought-out approach to intent, or mens rea, and the gradations of intent that support a finding of guilt. In addition, theory and policy supporting criminal law’s linkage of intent and liability are remarkably analogous to Title VII’s goal of elimination of discrimination. As a result, this article contends that a careful and measured consideration of criminal law’s approach to liability is instructive.
Drawing on the extensive literature on flexible intent and criminal law theories of retributivism and consequentialism, this article proposes a statutory expansion of the definition of disparate treatment discrimination under Title VII with an adjustment in the liability regime based on the level of employer intent. We contend that a clear link between intent level and damages constitutes an attractive balancing of employer and employee needs that should spur this crucial statutory change. A statutory amendment to Title VII that both broadens the meaning of “intent” for disparate treatment claims but also limits liability based on the level of intent offers a compromise position that expands the application of discrimination law to meet changing workplace norms and a theoretically and emotionally satisfying means of accomplishing that change.
Tuesday, April 19, 2016
Jennifer Bennett Shinall (Vanderbilt), The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, Minnesota L. Rev. (forthcoming).
Abstract:The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether the Act has been uniformly efficacious — that is, whether the Act has served all subpopulations of disabled workers equally well. This scholarly neglect is surprising, given that prior economics research indicates that the ADA has been less effective for disabled women than for disabled men. This Article steps back and asks why the Act might have resulted in differential effects for men and women. The ADA provides precisely the same remedies for qualified disabled workers, without taking workers’ sex into account. The Act’s approach assumes that disability discrimination is the same (or highly similar) both in nature and in strength for men and women, but this Article questions that assumption. An empirical examination of all ADA charges filed with the Equal Employment Opportunity Commission reveals a negative interaction between disability discrimination and sex: Disabled workers who are in the minority sex within their workplaces are more likely to encounter discrimination than are disabled workers who are in the majority sex. Because many more industries are majority-male than majority-female, the result of this sex-disability interaction is higher overall rates of disability discrimination against women. Using this empirical evidence, the Article concludes that if disabled women are ever to achieve an equivalent legal remedy for disability discrimination to disabled men, courts must no longer ignore the exacerbating effects of sex discrimination on disability discrimination. Indeed, the case of disabled women highlights the need for courts to reform judicially created proof structures in employment discrimination cases, which — although already the object of much scholarly scrutiny — are particularly unworkable for disabled women.
Monday, April 18, 2016
This past weekend HBO aired "Confirmation" dramatizing Anita Hill's testimony in Justice Clarence Thomas's confirmation hearings. For those of us who watched it, it seems like recent history, except that most of my students have no idea about any of it.
Here's a collection of news stories on the show and the confirmation itself:
Slate, Dahlia Lithwick & Gillian Thomas, National Group Therapy: How the Clarence Thomas Confirmation Hearings Changed How America Talks About Sexual Harassment
Tuesday, April 12, 2016
Nicole Porter (Toledo), The Blame Game: How the Rhetoric of Choice Blames the Achievement Gap on Women, 8 FIU L. Rev. 447, 2013
Abstract:In 2013, fifty years after the Equal Pay Act guaranteed women equal pay for equal work, almost fifty years since Title VII made discrimination based on sex unlawful, thirty-five years since the Pregnancy Discrimination Act made it unlawful to discriminate against women because of pregnancy, and nineteen years after the Family and Medical Leave Act provided twelve weeks of unpaid leave for some caregiving reasons, there is still a significant achievement gap between men and women in the workplace. Women still make less money, and rise more slowly and not as high in workplace hierarchies. Why? The common narrative states that because these laws have given women access to formal equality for many years, the fact that women have not achieved equality in the workplace must be blamed on something else. Specifically, the “something else” relied upon by society, the media, employers, and courts, is that women’s own choices are to blame for the achievement gap. The blame game asserts that women’s relative lack of success in the workplace is caused by three interrelated choices: (1) women’s decision to not pursue high-pressure, high-status professions, or jobs that are seen as “men’s work”; (2) women’s unwillingness to negotiate on their own behalf; and (3) women’s decision to devote more time and effort to caregiving and homemaking tasks.
Deborah Thompson Eisenberg, Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Act Cases, 57 N.Y.L. Sch. L. Rev. 815 (2013)
[T]his article provides an empirical analysis of summary judgment practice in Equal Pay Act (EPA or the “Act”) cases on the front lines of the trial courts. As every first-year law student should know, a court may grant summary judgment under Federal Rule of Civil Procedure 56 only if there is “no genuine dispute as to any material fact.”1 Courts have recognized that because of the “fact intensive nature” of the equal pay inquiry, “summary judgment will often be inappropriate” for equal pay claims.2 Although—in theory—most equal pay claims should survive summary judgment, an analysis of 500 recent EPA cases shows that— in practice—federal district courts summarily dismiss most equal pay claims.
Deborah Thompson Eisenberg (Maryland), Shattering the Equal Pay Act's Glass Ceiling, 63 SMU L. Rev. 17 (2010).
Abstract:This Article provides the first empirical and rhetorical analysis of all reported Equal Pay Act (EPA) federal appellate cases since the Act’s passage. This analysis shows that as women climb the occupational ladder, the manner in which many federal courts interpret the EPA imposes a wage glass ceiling, shutting out women in non-standardized jobs from its protection. This barrier is particularly troubling in light of data that shows that the gender wage gap increases for women as they achieve higher levels of professional status.
The Article begins by examining data regarding the greater pay gap for women in upper-level jobs. To evaluate the EPA’s effectiveness to address pay discrimination for these workers, the Article provides an overview of empirical trends in EPA appellate case law. The analysis shows that courts increasingly dismiss EPA cases at the summary judgment stage, despite the fact-intensive nature of the claims, and that women in non-standardized professional and managerial jobs are less likely to prevail. The Article examines the two competing notions of “equal work” present in EPA case law and proposes a more effective prima facie standard that better accommodates women in non-traditional jobs. The Article then identifies narratives underlying EPA cases that may allow pay discrimination to flourish for women in upper-level jobs, including the expansion of certain defenses into exceptions that swallow the equal payrule, the presumption of incompetence and lower value for women (even at the executive level), and secret pay processes that facilitate pay disparities. The Article analyzes these narratives in light of other psychological and business research and proposes new remedial models to shatter the EPA’s glass ceiling and ensure the promise of equal pay.
What is Equal Pay Day?
From National Committee on Pay Equity: Equal Pay Day is Tuesday, April 12, 2016. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.
Susan Apel, Guest Blogger, "Equal Pay" Start Talking (2013)
Some prior posts on equal pay:
Friday, March 11, 2016
Because of Sex takes readers through ten landmark sex discrimination cases that helped dismantle a “Mad Men” world where women could only hope to play supporting roles, where bosses’ leers and propositions were as much a part of the air women breathed as cigarette smoke, and where pregnancy meant getting a pink slip. Readers will meet Ida Phillips, denied an assembly line job because she had a preschool-age child; Kim Rawlinson, who fought to become a prison guard—a “man’s job”; Mechelle Vinson, who endured sexual abuse by her boss before “sexual harassment” even had a name; Ann Hopkins, denied partnership at a Big Eight accounting firm because the men in charge thought she needed "a course at charm school”; and most recently, Peggy Young, forced off her UPS delivery route while pregnant because she asked for a temporary reprieve from heavy lifting.
Gillian is a Senior Staff Attorney with the American Civil Liberties Union’s Women’s Rights Project. She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund).
NYT, Book Review "Because of Sex," by Gillian Thomas
Thomas’s “Because of Sex” has many such stories — important reminders that laws have an impact that often exceeds lawmakers’ initial intentions. One strength of the book is her acute awareness of how people have responded to chance accidents, improbable circumstances and unimagined consequences. In fact, it was an 11th-hour amendment to Title VII, brought by Howard Smith, a segregationist congressman, that would ban discrimination in employment “because of sex.” As Thomas puts it, “Today most American working women would probably be surprised to know that they have an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job.”
Like Fred Strebeigh’s “Equal” (2009), “Because of Sex” is both meticulously researched and rewarding to read. The cases Thomas discusses put the muscle on the new law’s bones. Smith’s last-minute amendment created a blank slate: Congress had not given any clues to what sex equality might look like. Women’s refusal to accept the status quo would determine the law’s meaning.
Thomas is a gifted storyteller, and the changing circumstances of these women’s lives as their cases drag on, along with the unpredictability of the courts, give her plenty to work with. She provides lots of head-shaking moments. Surely, you say to yourself, that couldn’t have been legal — such as when a city utility required women to contribute 15 percent more to their pension fund because they lived longer than men. [See Department of Water & Power v. Manhart, 435 U.S. 702 (1978)]