Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, March 27, 2020

Confronting and Debunking the Common Reasons Given for Slow Progress for Gender Equity in Corporate Leadership

Kellye Testy, From Governess to Governance: Advancing Gender Equity in Corporate Leadership, 87 G.W. Law Rev. 1095 (2019)

Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists — often at even higher levels — in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decision-making and overall corporate welfare have been established empirically, putting into question whether those boards that fall short on gender equity are meeting their fiduciary duties of good governance. The Essay confronts and debunks the common reasons given for slow progress and outlines specific steps that corporate boards and others seeking to improve gender equity in corporate governance can deploy to make faster and more consistent progress.

This Essay is part of the George Washington Law Review's 2018 symposium, Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations.

March 27, 2020 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, March 18, 2020

The Use of Sex as a Proxy for Interest in Predictive Algorithms

Deborah Hellman, Sex, Causation, and Algorithms: Equal Protection in the Age of Machine Learning,  98 Wash.U. L. Rev. (forthcoming 2020)

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification?

This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is likely the reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.

March 18, 2020 in Books, Business, Constitutional, Gender, Theory | Permalink | Comments (0)

Monday, March 9, 2020

CA Gender Quota for Corporate Boards is Working, as Mandates Increase and More States Consider Similar Legislation

A Push to Get More Women On Corporate Boards Gains Momentum

Among the largest 3,000 largest U.S. publicly traded companies, only about one in five board members are women, according to Equilar, which tracks corporate governance data. And it says nearly one in 10 boards have no women.

 

In 2018, California became the first state to mandate gender diversity in boardrooms with the passage of a bill called SB 826. The measure, requires publicly traded companies based there to have at least one female board director — or face a $100,000 fine.

 

At the time, the bill's sponsor, State Sen. Hannah-Beth Jackson, called it a "giant step forward for women." Multiple studies show that corporations with female directors are more profitable, Jackson noted.

 

If supercharging the push toward gender parity on boards was the goal, it appears to be working.

 

The nonprofit advocacy group 2020 Women on Boards has been tracking changes at more than 400 major California companies. Before the law, 75 firms lacked a female board member, the group found. By the middle of 2019, two-thirds of those companies had added at least one woman to their boards. The law gave companies until Dec. 31, 2019, to comply.

 

A report this month by the California secretary of state found that 282 publicly held corporations in the state reported compliance with the law, up from 173 in July 2019.***

 

TheBoardlist, a database that companies can search to find female directors, has experienced a 20% increase in inquiries — and not just in California.

 

"I think there was this halo effect simply because the topic has been discussed so much more in the last year or two," said Shannon Gordon, CEO of theBoardlist. "Companies are kind of coming around to the value of diversity on boards."

 

In January, Goldman Sachs CEO David Solomon turned heads when he announced that this summer, the bank will stop taking companies public in the U.S. and Europe unless they have at least one diverse board member.***

 

But in the year since its passage, critics have lodged a handful of lawsuits challenging California's law on grounds that it's discriminatory.

 

The Pacific Legal Foundation sued California in November on behalf of electronics manufacturer OSI Systems shareholder Creighton Meland, a retired corporate lawyer. The suit argues that California's gender mandate for boards is unconstitutional.

 

"The law violates the 14th Amendment's promise of equal treatment before the law. And it actually forces people to make decisions on the basis of sex," said Anastasia Boden, a senior attorney at the Pacific Legal Foundation.

 

Plus, Boden says, mandating gender diversity ultimately hurts women "by relegating them to quota hires and making them seem like space fillers."

 

As the data trickles in on the first full year of California's law, companies are now looking ahead to complying with the second leg of the law. By the end of next year, it calls for California-based companies to have at least two female directors on five-member boards, and at least three female directors on boards with six or more members.

 

The law cites studies showing that having a critical mass creates an environment where women are no longer viewed as outsiders.

 

"There's a 30% rule. When you have a minimum of 30%, that's when you see a transformation of culture and a true transformation of how business operates," says Shelley Zalis, CEO of The Female Quotient, a company aimed at advancing gender equality. "But we have to start somewhere."

March 9, 2020 in Business, Constitutional, Gender, Workplace | Permalink | Comments (0)

Wednesday, February 19, 2020

New Research Shows Bringing Up Past Injustices Against Women Alienates Men, Making Reform More Difficult

Ivona Hideg & Anne Wilson, Research: Bringing up Past Injustices Make Majority Groups Defensive, Harvard Bus. Rev. 

Many organizations and institutions reference past injustices with the intention of making people more sensitive to how historic systems of oppression contribute to present-day inequalities. By drawing on social identity theory, however, we speculated that excessive focus on historical injustices can actually backfire by causing key groups to deny current discrimination and withdraw support for ongoing remediation programs.

 

Social identity theory posits that people derive some of their sense of identity and self-worth from their group memberships (including gender, race, religion, politics, or even sports teams), and are highly motivated to maintain and protect a positive image of their social groups. Just as an individual’s self-image can be shaken by reflecting on their own misdeeds, threats to social identity may arise when contemplating past misconduct by their group. This threat can lead to defensive behavior that diminishes or deflects perceived criticisms. As the historically-advantaged group, social identity theory predicts men will react defensively when presented with evidence of past injustices suffered by women, the disadvantaged group.

 

We tested these ideas through our recent research.***

 

These converging results suggest invoking past discrimination can threaten men’s social identity and undermine their perceptions of current levels of discrimination, consequently lowering their support for policies meant to ameliorate this situation.

 

What might be done to mitigate these negative effects? Must we sidestep these discussions of current groups’ shameful history, sacrificing its capacity to enrich our understanding for fear of triggering defensive backlash? Rather than simply avoiding discussions of the past, we reason that historically-advantaged groups (men, in these studies) might be more open to information about past injustices if there was a way to lessen the threat to their social identity.***

 

This work has important implications for policy-makers and organizations seeking to implement diversity and equity policies. Despite the intuitive appeal of using past injustices to bolster the case for such initiatives, this approach can undermine progress by threatening the social identity of key participants. As the efficacy of diversity and equity programs depends on establishing broad-based support, getting both men and women to view these policies positively should be considered an important pre-condition for success.

February 19, 2020 in Business, Gender, Pop Culture, Theory | Permalink | Comments (0)

Thursday, February 6, 2020

Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge

Appeals Court Sides with Philly on Salary History Ban

In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.

 

The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***

 

The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***

 

Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.

 

February 6, 2020 in Business, Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Monday, February 3, 2020

Payday Lending Regulations and the Disproportionate Impact on Women of Color

Lara Sofia Romero, Rafael Romero, & Sim Jonathan Covington, Payday Lending Regulations and the Impact on Women of Color, Accounting & Taxation, v. 11 (1) p. 83-92

Payday loans, or small short-term loans that carry high fees, may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence suggests consistent overrepresentation of women of color, including many single mothers, among payday loan borrowers. Based on international human rights law, the U.S. has an obligation to remedy predatory economic practices such as a payday lending that have a disproportionately negative economic effect on women of color. Posing the issue of payday lending as a human rights issue can make an important contribution to public action on how to address the aftermath of the financial crisis and its impact on women of color.

February 3, 2020 in Business, Poverty, Race | Permalink | Comments (0)

Wednesday, January 29, 2020

Studying Women's Beliefs as to Whether STEM Leaders Think Women are Bad at Doing Science

Andrew Dustan, Kristine Koutout & Greg Leo, Beliefs About Beliefs About Gender

Do women believe that leaders in science, technology, engineering, and math (STEM) fields believe that women are bad at doing science? Such beliefs about beliefs—second order beliefs—could drive women to sort out of STEM fields, leading to the observed gender gap in employment (Beede et al., 2011). Importantly, this belief-driven sorting could occur regardless of leaders’ true beliefs about women’s scientific abilities. When historically persistent beliefs about the differences between men and women—first-order beliefs—cause disparities, they may generate second-order beliefs that perpetuate those disparities even once first-order beliefs change. To facilitate investigating questions of this nature, we develop an incentive-compatible
experimental framework for measuring first- and second-order beliefs about the difference in any quantifiable characteristic between any two populations. We implement this procedure in a lab experiment to elicit beliefs about men’s and women’s performance on a timed math task and choices in an abstract bargaining task.

We find an interesting contrast between first- and second-order beliefs. There is no evidence that men’s and women’s first-order beliefs differ; however, both men and women believe that such differences exist. While a large majority of people believe that most men believe men outscore women on the math task, the majority also believe that most women do not share this belief. In the bargaining task, we again find that people believe that men and women hold different first-order beliefs even though we observe no such differences in the data. In summary, even when men and women have similar first-order
beliefs, second-order beliefs about men and women can vary substantially.

January 29, 2020 in Business, Gender, Science | Permalink | Comments (0)

Friday, January 17, 2020

Challenging the Idea that Non-Compete Agreements Exacerbate the Innovation Gender Gap

Amy Madi & Lisa Ouellette, "Policy Experiments to Address Gender Inequality Among Innovators" 
Houston Law Review, Forthcoming

In her Frankel Lecture, Professor Orly Lobel has set forth an intriguing hypothesis: that non-compete agreements, non-disclosure agreements, and other legal restrictions on employee exit and voice exacerbate the innovation gender gap. The unequal participation of women in science, technology, and innovation is an issue of increasing concern for many public- and private-sector stakeholders, and those interested in increasing innovation by women would be well advised to consider Lobel’s ideas. But as we emphasize in this Commentary, the underlying causal mechanisms for inequalities among innovators remain highly contested, and policymakers should not overstate the existing evidence for potential interventions out of a desire for rapid progress. Nor should they use this lack of evidence as an excuse for inaction. Rather, we argue that institutions interested in this issue should look for opportunities to rigorously and transparently test the most promising interventions.

January 17, 2020 in Business, Equal Employment | Permalink | Comments (0)

Monday, January 13, 2020

The Use of Agency Law for Married Women's Business Rights in Historic Nantucket

Mary L. Heen, Agency: Married Women Traders of Nantucket, 1765-1865, 21 Georgetown J. Gender & Law (2019)  


Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to coverture applied only to certain wives abandoned by their husbands.

The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women’s rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.

January 13, 2020 in Business, Family, Legal History | Permalink | Comments (0)

Friday, December 13, 2019

Improving Gender Diversity in Corporate Boards with Term Limits

Board Diversity by Term Limits?

Gender diversity in the U.S. corporate world is shockingly low. As The New York Times reported, fewer women run large corporations than CEOs named John. Boardrooms also lack diversity. While 86% of directors participating in PwC’s annual director survey stated they felt that women should comprise between 21% and 50% of the board, only 28% of Russell 3000 boards have more than one-fifth of their board comprised of women. Some U.S. boards do not even try to include women: 76 of the largest 1,500 Russell 3000 companies have not had any female directors in the past decade.

The investor community has made board diversity a recent point of emphasis. State Street, Vanguard, and Blackrock have all voiced their commitment to gender diversity, followed by recent support from proxy advisors. California has ventured even further, passing legislation that mandates specific quotas for women on Californian corporations. New Jersey and Illinois may soon follow suit. Diversity mandates, however, confront substantial legal, economic and societal challenges.

What if companies could advance gender diversity without explicitly regulating diversity at all? Our recent article, Board Diversity by Term Limits? forthcoming in the Alabama Law Review, explores how the use of director term limits can promote gender diversity in boardrooms, avoiding quota controversies altogether. While term limits have often been invoked as a tool to improve director independence and board oversight, they may be also effective in improving diversity. We demonstrate the negative correlation between incumbency and diversity to support our findings. Director turnover in the U.S. remains very low. Firms hesitate to force out incumbents, who typically believe they contribute to the firm in unique and essential ways. Furthermore, although perhaps not averse to the idea of hiring a woman, these leaders will eventually search among potential replacements for people whose skills mirror their own. The cycle self-perpetuates, locking women out of opportunities.

Our article explores this aforementioned connection between term limits and board diversity. Drawing upon quantitative data on director turnover in the S&P 1500 and qualitative data on S&P 500 firms with term limits, our research shows that firms experiencing higher board turnover have more gender diversity. A regression analysis of the S&P 1500 companies over the 2010-2016 period shown in Table 1 below depicts how a decrease in average board tenure correlates significantly with an increase in gender diversity. Conversely, a one-year increase in average board tenure results in a 0.24 percentage point decrease in female board percentage.

December 13, 2019 in Business, Gender | Permalink | Comments (0)

Wednesday, November 27, 2019

How a Credit Card Can be Sexist

Can a Credit Card be Sexist?

The Apple Card controversy illustrates how a history of bias in credit lending, coupled with discriminatory AI algorithms, hurt women

{T]he New York Department of Financial Services, prompted by Hansson’s tweets, announced it would open an investigation into whether Goldman Sachs discriminates on the basis of sex in the way it sets its credit limits. “Any algorithm that intentionally or not results in discriminatory treatment of women or any other protected class violates New York law,” a spokeswoman for the agency said in a statement Saturday.

 

Apple has deferred to Goldman Sachs for requests for comment. Andrew Williams, a spokesperson for the bank, said in a statement that Apple Card applications are “evaluated independently.” The company evaluates an individual’s income and an individual’s creditworthiness, which “includes factors like personal credit scores, how much personal debt you have, and how that debt is managed.”

 

“We have not and will not make decisions based on factors like gender,” Williams said. He added that the company is looking to enable joint family accounts in the future.***

 

The story illustrates how potential biases in credit lending manifest: On the one hand, women have long lacked credit parity with men — women only received legal protection from credit discrimination in the 1970s. But today, with the rise of AI algorithms determining everything from credit lending to hiring to advertising, women face another potential source of discrimination.

 

“These algorithms are trained on data that are a reflection of the world we live in or the world we lived in in the past,” says Meredith Whittaker, a research scientist at New York University and co-founder of the university’s AI Now Institute. “This data irreducibly imprints these histories of discrimination, these patterns of bias.”

 

That discrimination is “intersectional,” Whittaker says, and disproportionately hurts women of color.

***

 

Well into the 20th century, women struggled to get approved for credit cards. As the Smithsonian reports, any woman looking to open a card was subject to discriminatory questions — whether she was married, if she planned to have children. Many banks required single, divorced or widowed women to bring a man along with them to cosign for a card.

 

It wasn’t until 1974 that the Equal Credit Opportunity Act made it illegal for any creditor to take gender, race, religion or national origin into account. But discrepancies still exist today. An analysis from the Federal Reserve found that single women under 40 had lower credit scores than comparable single men, which reflected that single women had “more intensive use of credit” — an outcome, the study author notes, that may reflect economic circumstances, employment and “men and women being potentially treated differently by the credit market and institutions.” As many note, women’s lower credit is also tied to the gender pay gap.

November 27, 2019 in Business, Gender, Pop Culture | Permalink | Comments (0)

Friday, November 1, 2019

Study Finds Corporate Boards with All-Male Directors Suffer More Negative Stock Price Reactions from MeToo Claims than Those with Three or More Women Directors

Mary Brooke Billings, April Klein & Crystal Shi, Investors’ Response to the #MeToo Movement: Does Corporate Culture Matter? 

This paper provides evidence that the #MeToo movement revised investors’ beliefs about the cost of fostering a culture that excludes women, as reflected by the absence of women directors in the board room. In particular, we document an overall negative market reaction tracking the timeline of events associated with the #MeToo movement, beginning with the Harvey Weinstein exposé in October of 2017 in the New York Times. This negative response concentrates in firms that have traditionally excluded women from their boards. In contrast, for companies that embrace the inclusion of women on their boards, this negative effect is moderated. Overall, investors appear to have revised their beliefs about the risks associated with future revelations of misconduct, and also about the value of having women in the board room shaping the culture of the firm.

Excerpt:

Consistent with the view that the potential revelation of sexual misconduct in the workplace injects risk into publicly listed firms, we report an overall average cumulative abnormal return of -4.57%. We also note that 24 of the 37 days recorded significantly negative abnormal returns across all firms and, in fact, we detect significantly negative abnormal returns for each of the final 11 events on the #MeToo event timeline. This supports the notion that as the movement gained momentum, investors revised their beliefs about the potential impact of the movement.


This overall negative reaction to the #MeToo movement is borne out by subsequent responses by firms and Wall Street in general. Over 200 male executives were dismissed or demoted following allegations of sexual misconduct, with many of these men being replaced by women executives (Bach 2018, Carlsen et al. 2018). Attorneys have added “Weinstein Clauses”
and “#MeToo representations” into merger documents, which require target firms to be held financially responsible via “clawback” provisions for revelations of sexual misconduct after the deal is closed (Ahmed 2018, Reints 2018).


Cross-sectionally, we expect variations in market reactions to unfolding #MeToo events to be directly related to the market’s assessment of (1) how likely a firm is to have a past or future allegation of sexual misconduct revealed and (2) how well a firm is equipped to deal with these revelations. We predict and find evidence that variations in abnormal market returns are related to the gender composition of a corporation’s board of directors. Specifically, firms with boards made up exclusively of male directors suffer more negative stock price reactions, while firms with boards that include three or more women experience moderated stock price reactions.

November 1, 2019 in Business, Equal Employment | Permalink | Comments (0)

Friday, September 13, 2019

New IL Law Bars Employers from Asking Job Applicants about Pay History

New Law Will Bar Illinois Employers From Asking Job Applicants for Pay History (July 31, 2019)

Illinois companies will no longer be allowed to ask job applicants or their previous employers about salary history under a measure Democratic Gov. J.B. Pritzker signed into law Wednesday.

 

Advocates say asking applicants about their salaries at previous jobs helps perpetuate a wage gap between men and women doing the same jobs. Illinois lawmakers passed two previous versions of the legislation, but Pritzker’s predecessor, Republican Gov. Bruce Rauner, vetoed both. ***

 

The measure Pritzker signed, which takes effect in 60 days, passed with bipartisan support this spring in the House and Senate. Workers will be able to seek up to $10,000 in damages if employers violate the law, and it also protects the right of employees to discuss their salaries and benefits with co-workers.

September 13, 2019 in Business, Equal Employment | Permalink | Comments (0)

Monday, September 9, 2019

Excluding Gender from Credit Application Automated Calculus Increases Credit Rejection for Women

Stephanie Kelley & Anton Ovchinnikov, "(Anti-Discrimination) Laws, AI and Gender Bias" 

We use state-of-the-art machine learning models trained on publicly available data to show that the data governance practices imposed by the existing anti-discrimination laws, when applied to automated algorithmic (“AI”) decision-making systems, can lead to significantly less favourable outcomes for the minority classes they are supposed to protect. Our study is set in the domain of non-mortgage credit provision, where the US and the EU laws prohibit the use of Gender variables in training credit scoring models; the US law further prohibits the collection of Gender data. We show that excluding Gender as a predictor has little impact on the model accuracy and on outcomes for males (the majority) but leads to a 30-50% increase in credit rejection rates for females (the minority). We further show that rebalancing the data with respect to Gender, prior to training models can significantly reduce the negative impact on females, without harming males, even when Gender is excluded from the credit scoring models. Taken together, our findings provide insight on the value of transparency and accountability, as opposed to prohibition for ethically managing data and AI systems, as societies and legal systems adapt to the fast advances in automated, AI-driven, decision making. Additionally, we hope that performing the analyses in a verifiable, open-access way, as we did, will facilitate future inquiries from other researchers and interested public into this critically-important societal issue.

September 9, 2019 in Business, Gender | Permalink | Comments (0)

Overhauling Employment Practices in the Wake of MeToo

Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL

Reviewing Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018).
 

One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.

Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.

This piece is both important and timely

 

September 9, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, September 5, 2019

Lawsuit Challenges California's Board Gender Diversity Law as Presumptively Invalid under Equal Protection

Cydney Posner, A First Challenge to California's Board Gender Diversity Law

It was only a matter of time. As reported here on Bloomberg, a conservative activist group has filed a lawsuit,Crest v. Alex Padilla, in California state court on behalf of three California taxpayers seeking to prevent implementation and enforcement of SB 826, California’s Board gender diversity legislation. This appears to be the first litigation filed to challenge the new law. Framed as a “taxpayer suit,” the litigation seeks to enjoin Alex Padilla, the California Secretary of State, from expending taxpayer funds and taxpayer-financed resources to enforce or implement the law, alleging that the law’s mandate is an unconstitutional gender-based quota and violates the California constitution. Even proponents of the law recognized the possibility of legal challenges. ***

 

In the complaint, the plaintiffs contend that the law’s requirement for female representation on corporate boards “employs express gender classifications. As a result, SB 826 is immediately suspect and presumptively invalid” under the equal protection provisions of the California Constitution and subject to “strict scrutiny” in the California courts. The complaint requests entry of a judgment declaring any expenditures of taxpayer funds to implement or enforce SB 826 to be illegal and issuance of an injunction permanently prohibiting the Secretary from expending taxpayer funds to enforce or implement the provisions of the legislation.

 

h/t Stefan Padfield

Lawsuit Challenges Constitutionality of California Law Mandating Women on Public Company Boards

Judicial Watch, a conservative activist group, has filed the first lawsuit challenging the constitutionality of Senate Bill 826 (SB 826), California’s mandatory board diversity law requiring women on public company boards of directors. The lawsuit was filed against the California Secretary of State on behalf of three California taxpayers on August 6, 2019, in the Los Angeles Superior Court and seeks a judgment that any expenditure of taxpayer funds and taxpayer-financed resources to enforce or carry out the provisions of SB 826 is illegal.

 

Plaintiffs argue that the gender classifications used in SB 826 can only be justified by a compelling government interest, which the Secretary of State has failed to establish. The lawsuit cites then-Governor Jerry Brown’s words in his signing message acknowledging that SB 826 has “potential flaws that indeed may prove fatal to its ultimate implementation” and that “serious legal concerns have been raised” to the legislation. The complaint is available here.

For my thoughts and analysis on the permissibility of gender quotas, including corporate boards, see Tracy Thomas, Making the Case for Gender Quotas, discussing my article, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

September 5, 2019 in Business, Constitutional, Gender | Permalink | Comments (0)

Tuesday, September 3, 2019

New Study Shows Men have Responded to MeToo by Avoiding Women in the Workplace

Workplace Study Finds Men Have Responded to MeToo by Being Even Shittier

Instead of using MeToo as a learning opportunity to become more aware of the harassment most women generally face in the world at large and in the workplace specifically, a new study has found that many men have decided to go the opposite route and simply avoid women in the workplace full-stop.

 

The study out of the University of Houston was conducted across a range of industries and surveyed both men and women in 2018 at the height of MeToo and then again in early 2019 after the conversation had died down a bit.

 

The 2019 survey found that 27 percent of men surveyed have gone the Mike Pence route and now avoid one-on-one meetings with woman co-workers, 21 percent said they would now be more reluctant to hire women for roles that require close interaction, and 19 percent are reluctant to hire an “attractive” woman. Those numbers are up from 2018 when only 15 percent of men admitted to discriminating against women they wanted to bone.

 

And while many men said they were more likely to be sexist following reports of sexism because they can no longer tell which behaviors are making co-workers uncomfortable, the study also found that men and women pretty much agree on what constitutes harassment.

September 3, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, July 17, 2019

Study Shows Women and Men are Treated Differently at Work

Harvard Business Review, A Study Used Sensors to Show that Men and Women are Treated Differently at Work

Gender equality remains frustratingly elusive. Women are underrepresented in the C-suitereceive lower salaries, and are less likely to receive a critical first promotion to manager than men. Numerous causes have been suggested, but one argument that persists points to differences in men and women’s behavior.

 

Which raises the question: Do women and men act all that differently? We realized that there’s little to no concrete data on women’s behavior in the office. Previous work has relied on surveys and self-reported assessments — methods of data collecting that are prone to bias. Fortunately, the proliferation of digital communication data and the advancement of sensor technology have enabled us to more precisely measure workplace behavior.

 

We decided to investigate whether gender differences in behavior drive gender differences in outcomes at one of our client organizations, a large multinational firm, where women were underrepresented in upper management. In this company, women made up roughly 35%–40% of the entry-level workforce but a smaller percentage at each subsequent level. Women made up only 20% of people at the two highest seniority levels at this organization.***

 

But as we analyzed our data, we found almost no perceptible differences in the behavior of men and women. Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.

 

The hypothesis that women lacked access to seniority, in particular, had little support. In email, meeting, and face-to-face data, we found that both men and women were roughly two steps, or social connections, away from senior management (so if John knows Kate and Kate knows a manager, John is two steps from a manager).

 

Some have argued that women lack access to important, informal networks because they don’t reach out to or spend time with “the boys club.” But this didn’t hold up in our data. We found that the amount of direct interaction with management was identical between genders and that women were just as central as men in the workplace’s social network.

 

Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treatedThis indicates that arguments about changing women’s behavior — to “lean-in,” for example — might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.

July 17, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, June 20, 2019

In Favor of the New Corporate Gender Quotas in California

Darren Rosenblum, California Dreaming? 99 B.U.L.Rev 1435 (2019)

Over the past few years, California became the setting for shocking tales of sex inequality and abuse in Hollywood and Silicon Valley. Decades after women achieved educational parity, men still run the corporate world. In response to these stories exposed by the #MeToo movement, California joined the transnational corporate board quota movement by converting its voluntary quota into a hard one. Will California’s first-mover status overcome constitutional objections and inspire other jurisdictions to act. Or is just utopian dreaming, California-style? This Essay argues that despite its many flaws, the quota may succeed in curbing male over-representation on corporate boards. After contextualizes the quota within the transnational corporate board quota movement, it rejects the U.S. reaction that emphasizes the private sector’s dominion over equality remedies. Despite the U.S. resistance to quotas, comparative experience reveals both that the private sector manages how quota implementation occurs. The Essay concludes that some public intervention — in concert with private efforts — remains necessary.

June 20, 2019 in Business, Gender | Permalink | Comments (0)

Tuesday, April 2, 2019

Understanding Equal Pay Day and the Related Laws

Today is Equal Pay Day, the symbolic day when women's earnings finally catch up to men's earnings from the previous year. It takes a few extra months because of the 23 percent gender wage gap that women typically face. However, this is not the day for every woman, as the wage gap varies by race and ethnicity.

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.

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” 

The Lilly Ledbetter Fair Pay Act provides "that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability 'accrue' whenever an employee receives a discriminatory paycheck, as well as when a discriminatory pay decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is otherwise affected by the decision or practice."

Most states also have equal pay acts.

US Dep't of Labor, Equal Pay:  

When the Equal Pay Act was signed into law by President Kennedy in 1963, women were earning an average of 59 cents on the dollar compared to men. While women hold nearly half of today's jobs, and their earnings account for a significant portion of the household income that sustains the financial well-being of their families, they are still experiencing a gap in pay compared to men's wages for similar work. Today, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.

Women's demand for equal pay goes back to the beginning of the women's rights movements.  Part of the Declaration of Sentiments of women's rights proclaimed at Seneca Falls in 1848 criticized the "scant remuneration" women were paid and demanded equality.  "Equal pay for equal work" was a mantra of the 1894 women's rights convention, continuing the longstanding demand for equal opportunity and equal pay.

Last year, the Ninth Circuit Court of Appeals (en banc) held in Rizo v. Yovino that the use of salary histories violates the equal pay act.

A dated, but still important article: Sara Zeigler, Litigating Equality: The Limits of the Equal Pay Act

This article assesses the effectiveness of legal remedies available under the Equal Pay Act (EPA) in closing the gender gap in pay. Although employers frequently attribute women’s lesser pay to lags in seniority and the life choices made by women, the evidence suggests that the narrow language of the EPA, its omission of the more subtle forms of sex discrimination, and the powerful disincentives for most women to pursue claims under the act have rendered it largely ineffective in curtailing sex discrimination in compensation. Through an examination of recent developments in the area of pay equality, the article demonstrates that the act, as enforced, has produced neither equality nor equity. Arguing that the reality of sex discrimination in pay shapes life choices (rather than the reverse), the article identifies the obstacles to closing the pay gap and strategies for more effective enforcement.

The proposed Paycheck Fairness Act seeks to address some of these limitations.

See Battle to Improve Equal Pay Act Enters its 22nd Year

Rep. Rosa DeLauro (D–Conn.) has introduced the bill in every Congress since 1997. But that’s not to say the bill is without momentum; the House voted on the Paycheck Fairness Act for the first time in eight years last week—and passed it by its highest vote total ever.

When DeLauro first proposed the legislation, its stated purpose was to “revise and increase remedies and enforcement on behalf of victims of discrimination in the payment of wages on the basis of sex.” In essence, giving sharper teeth to the Equal Pay Act of 1963 that was supposed to enshrine the concept of ‘equal pay for equal work’ in the law.

In the intervening two decades, the bill’s language hasn’t changed dramatically because the problem it targets—the reality of women’s unequal pay for equal work—remains. The gender pay gap was 26% in 1997; it now hovers in the 20% range, according to Census data.

April 2, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)