Monday, March 23, 2015
Feb. 24, 2015: Ellen Pao, center, with her attorney, Therese Lawless, left, leaves the Civic Center Courthouse during a lunch break in her trial. (AP)
SAN FRANCISCO – A California trial judge ruled Saturday that a woman suing a Silicon Valley venture capital firm in a high-profile gender bias case may seek punitive damages that could add tens of millions of dollars to the $16 million in lost wages and bonuses she is pursuing.
San Francisco Superior Court Judge Harold Kahn denied a request by lawyers for Kleiner Perkins Caufield & Byers to have Ellen Pao's demand for unspecified punitive damages thrown out. Pao, the interim CEO of the news and social networking site Reddit, claims she was passed over for a promotion at the firm because she is a woman and then fired in 2012 after she complained.
Kahn said there was enough evidence for the jury considering Pao's lawsuit to conclude that Kleiner Perkins acted with malice, oppression or fraud, which in California is the legal threshold for awarding damages that are designed to punish and deter particularly bad behavior.
Monday, March 16, 2015
A trio of economists have uploaded on SSRN a study about executive compensation and gender. The abstract:
We document three new facts about gender differences in executive compensation. First, female executives receive lower share of incentive pay in total compensation relative to males. This difference accounts for 93% of the gender gap in total pay. Second, the compensation of female executives displays lower pay-performance sensitivity. A $1 million dollar increase in firm value generates a $17,150 increase in firm specific wealth for male executives and a $1,670 increase for females. Third, female executives are more exposed to bad firm performance and less exposed to good firm performance relative to male executives. We find no link between firm performance and the gender of top executives. We discuss evidence on differences in preferences and the cost of managerial effort by gender and examine the resulting predictions for the structure of compensation. We consider two paradigms for the pay-setting process, the efficient contracting model and the “managerial power” or skimming view. The efficient contracting model can explain the first two facts. Only the skimming view is consistent with the third fact. This suggests that the gender differentials in executive compensation may be inefficient.
Wednesday, March 4, 2015
Irene Velkova, University College London, has uploaded "Quotas for Women on Corporate Boards: The Challenge for Europe." The abstract reads:
“Bringing more women on boards is not just the right thing to do. More women on boards is the bright thing to do!”, argues Viviane Reding, the Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship in 2009-2014 when promoting European Union quota law. And then she adds: “…I do not like them (quotas) either. But I like the results they bring.”
The debate for higher female representation on corporate boards has become particularly intensive during the recent financial crisis. Scholars advocate that women are more risk-averse, more engaged with longer-term issues and tend to draw more attention to governance and ethics. Thus, it is suggested that due to the behavioural differences between men and women, more gender – balanced boards would have prevented a number of financial collapses. This assertion has triggered more detailed analyses of current statistics for women on boards in the European Union. The numbers that are found follow the global pattern. Women are well underrepresented on boards and even less visible as CEOs or chairpersons of companies. In particular, at the end of 2013 women held 17.8% of the seats on boards in Europe, 16.6% in the US, 12.3% in Canada, 12.3% in Australia and 17.1% in South Africa. Women serve as chairpersons on 3.2% of the biggest companies in Europe , 3.1% in the US, 4.2% in Canada, 3% in Australia and 5.5% in South Africa. The country in the world that excels with the highest number of female directors on boards is Norway, which has achieved 42% women on boards by 2013. These strikingly low ratios and the general finding in the empirical literature that women bring positive change to firms’ performance have generated a phenomenal drive for promoting initiatives that strive to increase the number of women on boards.
Monday, March 2, 2015
Sara Bahayi is Afghanistan’s first female taxi driver in recent memory, and she is believed to be the only one actively working in the country. She’s 38, unmarried and outspoken. And in a highly patriarchal society, where women are considered second-class citizens and often abused, Ms Bahayi is brazenly upending gender roles.
Every day, she plies her trade in a business ruled by conservative men. She endures condescending looks, outright jeers, even threats to her life. Most men will not enter her taxi, believing that a woman should never drive for a man.
Yet she earns $10 (£6.50) to $20 a day, enough to provide for her 15 relatives, including her ailing mother. She relies on ferrying women shackled by traditions and fear, who vicariously live their dreams of freedom through her.
Wednesday, February 25, 2015
Black women have a long history of advocating for fair wages and access to decent employment opportunities for African-American communities. In her recent remarks at the Academy Awards championing the fight against wage inequality, Patricia Arquette seemed wholly unaware of these histories, elaborating backstage that it was now time for all other groups to fight for white women, because they had fought for everybody else.
In 1920 or thereabouts, famed Washington, D.C., educator Nannie Helen Burroughs helped to found the National Association of Wage Earners as both an advocacy group and a training resource for working class black women. Addressing employment inequality and wage inequality for newly freed black women entering the workforce after Emancipation, and later for black women from the South who had migrated North, was a hallmark of black women’s organizing in the late 19th century and the early 20th century. At the Chicago World’s Fair in 1893, Fannie Barrier Williams, a socialite, club woman and budding political theorist told the crowd, “in the item of employment, colored women bear a distressing burden of mean and unreasonable discrimination.” Still, she told them, “we believe this country is large enough and the opportunities for all kinds of success are great enough to afford our women a fair chance to earn a respectable living.” In 1925, Gertrude Elise McDougald, an organizer and teacher in New York City, helped to found the Trade Union Committee for Organizing Negro Workers, in order to encourage African-American solidarity with labor and discourage strike-breaking as the pathway to work.
Tuesday, February 24, 2015
Intimate, often painful allegations in lawsuits — intended for the scrutiny of judges and juries — are increasingly drawing in mass online audiences far from the courthouses where they are filed.
When a former saleswoman at Zillow sued the real estate website in December, describing X-rated messages from male colleagues, her court filing drew hundreds of thousands of readers, causing an instant public relations crisis for the company.
The papers in a sexual harassment suit filed last summer against Tinder, the dating app, circulated in a popular Buzzfeed post. And a lawyer for a fired University of Minnesota-Duluth women’s hockey coach who is planning a lawsuit knows what the initial complaint will need: a clear narrative and damning details.
More and more, the first court filings in gender-related suits, often allegations that inspire indignation, are winning wide readerships online before anyone steps foot in a courtroom.
As a result, plaintiffs are finding themselves with unexpected support — and greater-than-ever power to ruin reputations. Panicky defendants are left trying to clear their names from accusations that sometimes are unsubstantiated. Judges and law professors, watching the explosion of documents online, fear such broad exposure is throwing court proceedings off track and changing the nature of how civil suits are meant to unfold.
Monday, February 23, 2015
The woman said she was about to hang up after a telephone interview when she realized the hiring managers on the other end had forgotten to disconnect the call. So the woman, who asked not to be identified because it could hurt her employment prospects, kept listening — and what she heard shocked her.
Her most recent salary was lower than the interviewers expected, which they assumed signaled a problem with her work. They didn’t offer her the job.
A bill recently filed in the Massachusetts Legislature aims to address situations like this by prohibiting employers from seeking job candidates’ salary histories. The bill also would require companies to disclose an advertised position’s minimum pay and permit employees to discuss their salaries openly.
These practices would help reduce the gender wage gap by addressing the problem at the beginning, before a single job candidate is interviewed, the bill’s sponsors say. Because women’s earnings are historically lower than men’s, revealing their salaries puts them at a disadvantage.
It allows employers, when hiring, to offer lower salaries than they might otherwise or, as the example of the woman shows, draw unfair conclusions about women candidates.
Friday, February 13, 2015
This study suggests so. The abstract available on SSRN:
We formulate theory on the effect of board of director gender diversity on the broad spectrum of securities fraud and generate three main insights. First, based on ethicality, risk aversion, and diversity, we hypothesize that gender diversity on boards can operate as a significant moderator for the frequency of fraud. Second, we hypothesize that the stock market response to fraud from a more gender-diverse board is significantly less pronounced. Third, we hypothesize that women are more effective in male-dominated industries in reducing both the frequency and severity of fraud. Our first-ever empirical tests, based on data from a large sample of Chinese firms that committed securities fraud, are largely consistent with each of these hypotheses.
Thursday, February 12, 2015
Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?
There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.
In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***
"Just Go Home And Be With Your Babies"
The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."
It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.
In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."
Waiting Three Days to Pump – Not Intolerable?
The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."
Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection.
A few thoughts:
1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'" This is really the crux of the problem. The courts still just don't get it.
2. The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies." There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement. Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later.
Saturday, February 7, 2015
Lactation is not Related to Pregnancy and Other Interesting Findings of the Courts who Denied a Nursing Mom was Constructively Discharged
Lots of questions about the Ames v. Nationwide Insurance case I previously posted about.SCOTUS Denies Cert Upholding Firing of Woman for Breastfeeding because Men can Lactate Too
First, no clues as to what the Justices’ vote was here on the denial of cert. We are not generally privy to this information, and no Justice here wrote a dissent from the denial. My guess is that this is a messy case and that the most problematic reasoning was 1) in the trial court opinion rather than the Eighth Circuit opinion and 2) that it was viewed as an employment case about constructive discharge rather than the retro pregnancy discrimination that it is.
This is really a pretty outrageous case. Factually, and Gender-wise if not legally. Woman who is an insurance loss-mitigation specialist has baby #1 and takes 8 weeks maternity leave. Then oops, pregnant with baby #2 three months later. High risk pregnancy that requires bed rest, and the paper is born prematurely. Nationwide messes up her maternity leave return date, and calls her while on leave and says you have to come back to work a few weeks earlier, and says taking unpaid FMLA leave would “raise red flags” and is not advised. She returns on time, and on her first day back, she is denied access to the lactation room – which is an area requiring special security clearance and mandatory pre-approved paperwork with a three-day waiting period. (They lost me here). Turns out the temporary substitute did none of the work while she was gone and she has two weeks to work overtime to complete the two months worth of work, and her supervisor, a woman, in response to her repeated requests for a nursing room as she is in pain, says “You know, I think it's best that you go home to be with your babies” and dictates her resignation letter to sign.
The main holding is she didn’t try hard enough to keep her job. She was supposed to stick it out more, complain more, follow the channels of appeal. Neither the trial court nor the Eighth Circuit is in the least bit sympathetic.
The Eighth Circuit opinion seems to just ignore the evidence. “ Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit.” (Really? If you say so.) And superficially concludes “That Nationwide's policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.”
The trial court actually frames the problem as women’s problem in trying to have both a family and career. . “Returning to work promptly after childbirth, coupled with the desire to continue breastfeeding, exposes women to a unique and often challenging set of circumstances. To many, expressing breast milk in the workplace is incompatible with the desire to pursue a successful career. With respect to these challenges and the resulting social response, the Honorable Lewis A. Kaplan commented as follows:
‘The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial. Martinez v. MSNBC, 49 F. Supp. 2d 305, 306 (S.D.N.Y. 1999).
And here is the most ridiculous conclusion. Lactation is not related to pregnancy.
Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.
Therefore, nursing issues not pregnancy discrimination. The end.
And that is a pretty big issue, which is why the ACLU was likely involved. In the old pre-PDA Supreme Court cases like Gilbert, the Court said that pregnancy was not sex discrimination. Now the courts are saying nursing is not pregnancy.
The Eighth Circuit Opinion is here. [WESTLAW]
The trial court opinion is here.
Monday, February 2, 2015
Deep inside complex legislation to legalize phone-based car services such as Uber and Lyft sat language meant to prohibit drivers from discriminating against gay or transgender riders.
The wording, picked up from legislation proposed in states where gay rights are enshrined in state code, went unnoticed until the bill made it to the Senate floor. Once the passage was discovered, the bill was abruptly sent back to committee for what was described as a “technical” fix, stripped of that language and returned to the chamber, where it passed this week.
Neither side is happy:
The matter was handled so quietly that activists on both sides of the gay-rights issue were in the dark until after the wording had been nixed — a change that took place at a quickie meeting of the Transportation Committee on the Senate floor, with members huddled around the desk of the panel’s chairman, Stephen D. Newman (R-Lynchburg).
The episode disappointed gay-rights activists and alarmed conservatives in a state where court rulings legalized gay marriage last year but where the state constitution still bans it. The Republican-controlled legislature has continued this year to kill bills to recognize gay marriage and other gay rights in state code.
Saturday, January 31, 2015
Staci Zaretsky, Sexism in the Legal Profession: An Uncomfortable Truth
The truth, however, is that according to the latest report on Women in the Law from the ABA’s Commission on Women in the Profession, while almost half of all students who graduate from law school are women, they only make up about 34 percent of all practicing attorneys. The truth is that per the National Association of Women Lawyers’ (NAWL) most recent Survey on the Retention and Promotion of Women in Law Firms, the greatest percentage of women (64 percent) continue to occupy the lowest positions their firms have to offer, while the lowest percentage of women (17 percent) occupy the highest positions in those firms. The truth is that women do leave the profession in droves and thus won't be able to ascend to those leadership positions, but it's not just because they're off having families – according to Suzanne Goldberg of Columbia Law School's Center for Gender and Sexuality Law, it's because many law firms are hostile to women's work/life balance issues.
The truth is that per NAWL, the vast majority of the largest law firms in the U.S. refuse to report data about the differences between how their male and female lawyers are compensated. The truth is that, thanks to the Bureau of Labor Statistics, we know that the gender wage gap in the legal profession is an insulting constant, with women lawyers earning just 78.9 percent of their male colleagues’ weekly salaries.
The disheartening truth is that these depressing facts and figures are no exaggeration at all.
If you’re a woman in the legal profession, it’s highly likely that you’ve experienced some form of sexism during the course of your career. For example, women who zealously and aggressively advocate for their clients in court are “bitchy”; men who do the same are “excellent litigators.” It’s often considered a great inconvenience when women in the law take maternity leave; when male lawyers take paternity leave, they’re selflessly sacrificing for their family.
Women in the law aren’t respected as attorneys – their own colleagues disrespect them, ignore them, interrupt them, speak over them, and generally treat them like trash. The sooner women in the legal profession are willing to own the fact that they’re denigrated on a near daily basis and treated like interlopers in an old boys’ club, the sooner they’ll be able to do something about it.
Friday, January 23, 2015
The lawsuit arrives with institutional assumptions about who is likely to be a restaurant server.
EUGENE, Ore. - International restaurant chain Ruby Tuesday, Inc. discriminated against male employees for temporary assignments to a Utah resort, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
According to the EEOC's suit, in the spring of 2013 Ruby Tuesday posted an internal announcement within a 10-state region for temporary summer positions in Park City, Utah with company-provided housing for those selected. Andrew Herrera, a Ruby Tuesday employee since 2005 in Corvallis, Ore., wanted to apply because of the chance to earn more money in the busy summer resort town. However, the announcement stated that only females would be considered and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together. Ruby Tuesday's gender-specific internal posting excluded Herrera and at least one other male employee from consideration for the temporary assignment.
Friday, January 2, 2015
What is afoot in Britain might provide lessons for the States:
Labour has called for widespread pay transparency across Britain, proposing legislation that would make it compulsory for big companies to publish the average difference between the pay of their male and female employees.
Sarah Champion, Labour MP for Rotherham, tabled a 10-minute rule bill to enact section 78 of the Equality Act (2010), which was introduced by Labour but abandoned by the coalition when it entered government. The section requires companies that employ more than 250 people to publish their gender pay gap figures.
The bill was backed by 258 MPs, with eight voting against, but it is unlikely to progress further before the general election without government backing. It isLiberal Democrat policy to enact section 78 of the Equality Act and Lib Dem MPs were given a free vote on the issue.
Sunday, December 14, 2014
Since Kerry Devine, 32, and her friends began having children, she has noticed a stark difference between her female friends in Auburn, Wash., where she lives, and those in England and Cyprus, where she grew up. In the United States, they almost all stopped working outside the home, at least until their children were in school. Yet, she says, she can’t think of a friend in Europe who left work after her children were born.
Ms. Devine quit her job after she had her first child, a girl, four years ago, because she thought 12 weeks of maternity leave was too short. “I just didn’t want to leave her in day care or pay for the expenses of it,” she said. When she gave birth to twin boys this year, a return to work — she had been a property manager for apartment buildings — looked even less plausible.
Her story would have played out differently, she said, if she had been living in her native England. Like many European countries, Britain offers a year of maternity leave, much of it paid, and protections for part-time workers, among other policies aimed at keeping women employed.
A randy Brooklyn judge turned the hallowed halls of justice into a seedy sleaze pit — sexually harassing his Orthodox Jewish secretary with lurid tales about his erotic adventures with a mistress, proudly striding shirtless around his chambers, and forcing her to pick up his soiled underwear, a new lawsuit charges.
Brooklyn civil court Judge David Schmidt, 61, tormented veteran court secretary Sharon Sabbagh, 57, by stroking her face, forcing her to give him hugs before she went home, and regaling her with explicit tales of sex with his mistress, the lawsuit alleges.
“When I have sex with my wife, I think of her,” Schmidt said, adding that he buys his fling underwear from Victoria’s Secret and that they have daily phone sex, the Brooklyn Supreme Court suit claims.
Wednesday, December 3, 2014
Germany’s top listed companies will be required to have 30% of their board positions filled by women under a law agreed today by Angela Merkel’s coalition parties.
The law, due to come into effect in 2016, aims to create greater gender equality in the workplace of Europe’s biggest economy where, despite having a female leader and 40% of the federal cabinet being female, women are significantly under-represented.
According to the The German Institute for Economic Research (DIW Berlin), just 6% of management board positions and 22% of supervisory board seats are held by women among the 30 companies on Germany’s blue-chip DAX index trading on the Frankfurt Stock Exchange.
Monday, November 24, 2014
This summer, Google, Apple, Facebook, Twitter, and other Silicon Valley superpowers released demographic reports on their workforces. The reports confirmed what everyone already knew: tech is a man’s world. Men make up sixty to seventy per cent of employees at these companies, and, notwithstanding rock stars like Facebook’s Sheryl Sandberg and Yahoo’s Marissa Mayer, senior leadership is even more overwhelmingly male. A recent study by the law firm Fenwick & West found that forty-five per cent of tech companies there didn’t have a single female executive. (The picture is also bleak when it comes to ethnic diversity.) The Valley seems to take the problem seriously—Apple’s Tim Cook recently stated his commitment to “advancing diversity”—but there’s a long way to go.
A familiar explanation for tech’s gender disparity is the so-called pipeline problem: the percentage of female computer-science graduates has almost halved since the nineteen-eighties. But this doesn’t fully explain why there are so few women in senior management or on company boards (where skills other than programming matter). Nor can it explain the high rate of attrition among women in tech. A 2008 study found that more than half of women working in the industry ended up leaving the field. The pipeline isn’t just narrow; it’s tapering.
From the New Republic:
Conventional wisdom suggests that people with greater authority at work should be mentally and physically healthier than those without it. They can afford to take care of themselves and aren’t tied to the daily (unhealthy) grind. But a new study, to be published in the December issue of Journal of Health and Social Behavior, suggests that men and women react differently to the pressures of a high-powered career.
The study examined 1,300 middle-aged men and 1,500 middle-aged women from Wisconsin over a period of several decades, looking at responses to a survey gathered when the respondents were 54 and 65 years old. Women with higher levels of job authority (defined as control over one’s work, the ability to hire and fire others, and control their pay) showed more depressive symptoms than women without job authority. With men, the opposite was true: Lower levels of authority correlated with higher levels of depressive symptoms.
Thursday, November 20, 2014