Tuesday, May 23, 2017
EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination
The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.
Some of the highlights of the petition:
- The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
- A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
- The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
- Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
- We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).
For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less
For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017)
Two important points to keep in mind are:
- How salary histories can be gendered: Historically women have been paid less than men because they could be. "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power. Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family. It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay. And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries. These are all workings of structural or systemic gender discrimination beyond any individual animus.
- There are easy non-gendered workarounds: As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination. Consider the factors directly of work experience, number of years of experience, and education and degrees.
Tuesday, March 28, 2017
New data shows that women are underrepresented in the highest levels of leadership because they are being forced out by dated workplace structures. These structures, which do not represent the modern needs of a two-income household labor force, are causing millions of talented employees to fail, especially working mothers—and the result is massive attrition at every point in the leadership pipeline.
Contrary to popular belief, the majority of women who leave the corporate workforce actually want to stay. A recent Bain study showed that women value flexibility over and above any other factor in their career search, including compensation, title, and location. Of the 30 percent of credentialed women who drop out of the workforce, 70percent say they would have stayed if they had access to flexibility. This amounts to 6.6 million women—enough to dramatically increase the number of women in leadership and rapidly accelerate the advancement of corporate gender equality.
Strategic workplace flexibility is the easiest and most cost effective way to retain women in the workplace and advance them to positions of leadership over time.
While many companies have demonstrated a commitment to helping women advance to positions of leadership, they remain largely unsuccessful because strategic flexibility is not a key component of their programming. When companies do provide flexibility programs, they are often underutilized or fail entirely because flexibility is misunderstood. Women tend to not take advantage of existing flexibility policies due to a fear that their requests will make them appear less committed and a concern that flexibility policies will not be faithfully implemented.
Flexibility isn’t simply working from home via video conference or a lifestyle perk like free cereal; it’s a fundamental shift in the way we think about and expect our employees to work. Flexibility does not alter a job’s scope of responsibilities or expected results—it simply modifies the existing agreement between the employer and employee to increase compatibility. And when it’s negotiated in a standardized context, it normalizes the conversation around flexibility and eliminates the bias or discomfort women tend to feel during the interview and hiring process.
Monday, March 13, 2017
3d Circuit Says Medical Resident's Title IX Sexual Harassment and Retaliation Claim Survives Motion to Dismiss
Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.
Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appea.
Tuesday, February 7, 2017
Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)
Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.
Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.
Wednesday, January 25, 2017
Joyce Sterling & Nancy Reichman, Overlooked and Undervalued: Women in Private Law Practice, 12 Annual Rev. Law & Soc. Science 373 (2016)
This article examines the durability of gender inequality in private law practice since Kay & Gorman published their comprehensive review in the Annual Review of Law and Social Science in 2008. We begin with some of the changes in legal practice that intensified during the Great Recession and help to contextualize women's lack of progress. We turn next to a contemporary profile of women in private practice that demonstrates empirically where women stand. We look at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women's lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. We assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women's contributions. We consider the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes aimed at remedying the problems discussed here.
Monday, January 9, 2017
The Supreme Court today denied cert in The Geo Group v. EEOC allowing the Ninth Circuit's decision to stand allowing the class action to go forward.
According to EEOC's suit, Alice Hancock and a class of 20 female employees were sexually harassed at the Arizona State Prison-Florence West Facility and the Central Arizona Correctional Facility in Florence, Ariz.; both entities were managed by GEO under contract with the Arizona Department of Corrections. The physical sexual harassment allegedly included an incident where a male GEO manager grabbed and pinched the breasts and crotch of a female correctional officer. Also, EEOC claimed that at least one female employee was forced onto a desk, where a male GEO employee shoved apart her legs and kissed her. EEOC charged that the sexual harassment also included sexual comments and gestures, including a male officer calling a female officer "bitch" and "f---ing bitch" on a daily basis and making other lewd remarks and suggestions.
The complaint further charged that the female employees were subjected to retaliation when they reported or otherwise sought help from GEO management.
EEOC filed its lawsuit in U.S. District Court for the District of Arizona, CIV2:10-cv-02088 MHM, in September 2010, after first attempting to reach a pre-litigation settlement through its conciliation process. A similar suit was filed by the Arizona attorney general's office (ACRD), the agency that conducted the administrative investigation in this case, and the Ninth Circuit also reinstated that suit.
The trial court dismissed the claims of the women who were not identified until after EEOC filed suit. The court also dismissed the claims of two women which the court said were untimely, and another claim of one woman whose harassment was not actionable, according to the court. EEOC and ACRD appealed.
Thursday, December 8, 2016
The new podcasts on Women in the Law have been released.
From their summary:
Over six weeks, this podcast mini-series will advance the conversation on the many challenges, both professional and personal, that women continue to face as members of the legal profession. Through first-person narratives, thoughtful conversations, and synthesis of economic and social science research, this show will add to the myriad of work fighting against decades of systemic problems.
We hope to empower both women and men to recognize and constructively address a wide range of workplace issues that negatively impact women, the organizations and firms they work for, the clients they represent, and the society we all live in.
The New York Times had a recent article on the leaky pipeline research highlighted in the podcasts: More Law Degrees for Women, but Fewer Good Jobs
Thursday, March 10, 2016
Michelle Travis (San Francisco), Gendering Disability to Enable Disability Rights Law, Cal. L. Rev. (forthcoming)
Abstract:This Article expands the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the product of the environment with which an impairment interacts. The social model is reflected in the accommodation mandate of the Americans with Disabilities Act of 1990 ("ADA"), which holds employers responsible for the limiting aspects of their workplace design. This Article shows that the limitations imposed upon impairments result not only from physical aspects of a workplace but also from other identity-based stereotypes, biases, and oppressions, which affect how disability is both experienced and perceived.
This Article advances the social model's aspirations by specifically challenging the existing gender-neutral view of the causes and consequences of disability. This analysis reveals how ignoring gender has enabled masculine norms to become embedded into the ADA's substantive and procedural approaches to defining and remedying disability discrimination in the workplace. This inattention to gender has not only imposed serious social and economic consequences on women with disabilities, but it has also rendered legally invisible many non-prototypic members of the disabled community. This analysis illustrates how attending to other social identities may advance the social model, deepen our understanding of disability discrimination, and empower disability rights law to serve a broader group of individuals within the disabled community.
Wednesday, October 28, 2015
Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.
Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.
“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.
While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.
It's back to the future — and not in a good way for women seeking equity partnership in the nation’s 200 largest law firms.
Women have not made “appreciable progress” since 2006 in either attaining equity partnership or increasing their pay to be on par with their male colleagues once they grasp the brass ring, according to a study by the National Association of Women Lawyers released on Tuesday.
The results: Women represent 18 percent of equity partners, an increase of two percent since 2006, according to NAWL’s findings. Even after they’ve made it into the equity ranks, they make about 80 percent of what their male colleagues bring home. In 2006, women had made 84 percent.
Friday, October 9, 2015
California took a major step Tuesday toward closing the lingering wage gap between men and women, as Gov. Jerry Brown signed one of the toughest pay equity laws in the nation.
Women in California who work full time are paid substantially less — a median 84 cents for every dollar — than men, according to a U.S Census Bureau report this year.
“The inequities that have plagued our state and have burdened women forever are slowly being resolved with this kind of bill,” Brown said at a ceremony at Rosie the Riveter National Historical Park in the Bay Area city of Richmond.
Monday, October 5, 2015
Firstly, to hire women at junior levels and invest in them only to lose them before they can take on the senior roles is a poor outcome business-wise, returns-wise and image-wise.
Secondly, women are increasingly becoming the decision-making consumer. Not having a proper representation of women at senior levels would mean firms are losing out on an opportunity to have leaders who have a better understanding of the needs and psyche of their target consumers. That is a bad business decision.
Thirdly, women will increasingly be the decision-maker and enterprise-buyer on the corporate side as well. Not having top leaders who can easily relate to the situation of senior female executives across the table can have adverse consequences.
Wednesday, September 30, 2015
If companies are looking for gender bias in their workplace, here’s one place they may want to start: feedback.
Research suggests that men and women are assessed very differently at work. Specifically, managers are significantly more likely to critique female employees for coming on too strong, and their accomplishments are more likely than men’s to be seen as the result of team, rather than individual efforts, finds new research from Stanford University’s Clayman Institute for Gender Research. Those trends appear to hold up whether the boss making the assessments is male or female.
Friday, September 25, 2015
For decades, work-life balance at law firms has been a women’s issue—something for working moms to sort out. But there are a growing number of new firms built on flexible schedules that are now attracting men, and slowly shifting the definition of a successful legal career. Though the partner office is still the prototypical legal-career status symbol, the prerequisites of long hours and 24-7 availability are inconsistent with the emphasis many men put on time away from the office.
“Young men today have different values, different aspirations than their fathers,” says Stewart Friedman, a Wharton Practice professor of management and director of the Wharton Work/Life Integration Project. “They want to be available both psychologically and physically for children.” At some of the most competitive white-collar workplaces, such as Netflix and Microsoft, these shifts have led to expanded parental-leave policies.
Wednesday, September 23, 2015
A view from Britain from the Evening Standard (UK):
One of the country’s most senior judges today warned that rushing to achieve equal representation for women at the top of the legal profession could inflict “appalling consequences” on the quality of British justice.
Lord Sumption, a Supreme Court judge, said he believed that the judiciary was a “terrific public asset” which could be “destroyed very easily” if the selection of candidates was skewed in favour of women.
He added that to avoid inflicting damage, campaigners for equality would have to be “patient” and suggested that it would need up to 50 years before the number of women on the Bench matched the total of men.
The American Bar Foundation has released new data about gender balance in the profession, or more accurately, the lack thereof.
Clearly, more women are entering the law as shown in the chart below.
But even though the number of women entering the law has been steadily increasing in recent years, the percentage of women equity partners at the top 200 law firms has been flat for close to a decade, as the chart below shows:
Gabe Friedman/Source: National Association of Women Lawyers, ABA’s National Lawyer Population Survey
Monday, September 21, 2015
SAN FRANCISCO – Female employees in California are poised to get new tools to challenge gender-based wage gaps and receive protection from discrimination and retaliation if they ask questions about how much other people earn.
A bill recently passed by the Legislature and that Gov. Jerry Brown has indicated he will sign won’t suddenly put all women’s salaries on par with men’s or prod employers to freely disclose what every employee makes, which could make it easier for workers to mount pay discrimination claims.
But the legislation expands what supporters call an outdated state equal pay law and goes further than federal law, placing the burden on the employer to prove a man’s higher pay is based on factors other than gender and allowing workers to sue if they are paid less than someone with a different job title who does “substantially similar” work.
Friday, September 18, 2015
MICROSOFT FACES A class action lawsuit from former employee and noted computer security researcher Katie Moussouris. The suit claims that during Moussouris’s seven years at Microsoft, she and other women were unfairly discriminated against on the basis of their gender, passed over for raises and promotions, and ranked below their male counterparts during bi-annual performance reviews.
Moussouris was instrumental in prompting Microsoft to launch its first bug bounty program in 2013, something the company resisted for years. The program pays researchers who find security vulnerabilities in its software. After resigning from Microsoft in May, Moussouris took a job as chief policy officer at HackerOne, which helps companies manage bug bounty programs and communicate with security researchers.
Tuesday, September 15, 2015
The barrister at the centre of a sexism furore over a complimentary LinkedIn message from a solicitor 30 years her senior has said she is facing a professional backlash over her decision to speak out.
Writing for the Independent, the human rights lawyer Charlotte Proudman said she did not regret her decision to make public a message from Alexander Carter-Silk that commented on her “stunning” photograph, because it had led to an outpouring of similar experiences from other women.
Proudman said she had named Carter-Silk because she believed the public interest in exposing the “eroticisation of women’s physical appearance” by an influential and senior lawyer was greater than his right to privacy.
Wednesday, September 9, 2015
Videoed interviews with Big Law partners are available from Bloomberg News. An excerpt:
“The fact of the matter is, that in the legal profession, racial and gender balance is just behind,” said Jami McKeon, Chair of Morgan, Lewis & Bockius. McKeon and Michele Coleman Mayes, the New York Public Library’s General Counsel, spoke to us at the Big Law Business Summit in July about racial and gender imbalance in big law.