The federal courts are struggling with what would seem to be a simple proposition. Taking adverse action against an employee because she needs to pump breast milk is discrimination based on pregnancy and sex.
This idea has not been so simple for a couple of trial courts. In a case brought by the EEOC for a woman fired because she could not lactate at work, the employer won on a motion. The EEOC appealed the case, and the appeals court disagreed. By telling the woman that she could not have space to express her milk, and should just stay home (and then firing her for job abandonment), the employer engaged in sex discrimination, and in discrimination based on her pregnancy. Lactation is a medical condition related to pregnancy, and discriminating against the employee violates her rights under the Pregnancy Discrimination Act. EEOC v. Houston Funding, from the Southern District of Texas.
A similar thing happened in the midwest. An employee returned from her maternity leave and asked for a room to use for expressing breast milk. The company told her she had to wait for three days for the lactation room, or she could use a “wellness” room if she didn’t mind the germs and lack of a lock on the door. The hostility toward her need for an occasional private place to pump led the employee to quit.
In denying her claim, the federal trial court rejected the idea that lactation was invariably associated with pregnancy. It stated “Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production.” So, since there was no allegation that men were allowed to pump breast milk, but not the women, the employee could not show sex discrimination. Even without that “scientific fact,” though, the court said that she left not because she was lactating but because she wanted to breastfeed. A real headscratcher? It’s on appeal. Ames v. Nationwide Mutual Insurance Company.
As reported here before, part of the Affordable Care Act requires larger employers to provide space and privacy for lactation. According to the Iowa decision, however, there is no remedy available to a woman denied these rights, since an employer has the right to make the break time unpaid, so she is not denied her minimum wage.
Federal law forbids an employer from paying men and women different rates of pay for the same job. That’s the Equal Pay Act. A different federal law, Title VII of the Civil Rights Act, outlaws sex-based discrimination in all employment decisions, from hiring to assignment of work to firing.
Most of the time, individual plaintiffs bring cases to enforce these rules. But the government also has enforcement power, which can be very helpful when individual damage claims are low, and when patterns of discrimination appear.
As we all remember from civics lessons, the executive branch enforces the law. Among the agencies in the executive branch is the Office of Federal Contract Compliance Program, which oversees federal contractors. Contractors all sign contracts agreeing, in exchange for federal money, to abide by non-discrimination laws. Under the Bush administration, however, the agency overseeing them found itself limited to enforcing a very narrow set of discriminatory practices. Those handcuffs have finally been removed. As the new regulations put it,
“The [Bush-era] Standards restrict OFCCP’s ability to enforce the Executive Order’s non-discrimination mandate.”
The “standards” gave almost unlimited discretion to federal contractors to use specified statistical models that evaded a systematic look at sex discrimination in pay.
The new emphasis on pay discrimination may open a new era of equality. People starting their first jobs in the 21st century seem very comfortable with the idea that people should be judged on their ability and effort, not their race, sex, sexual orientation, or disability status. Enforcement of these standards is overdue.
It’s International Women’s Day. (And let’s not forget that March is Women’s History Month.) The difference in wages between the sexes persists, however, and may in fact be growing.
Researchers have sliced through the data from all sorts of angles. Many male-dominated jobs pay more than female-dominated jobs even if, by analysis of the education and brainpower needed for the female-dominated job, the average wages for the different occupations should be identical or even reversed.
When comparing men and women in the same occupation, the statistics come in across the board. As this analysis reports, male physicians are much more highly paid than females; female counselors, however, earn slightly more than men do.
There are discussions about whether women do not negotiate for better salaries, or if they try, are rejected as overly aggressive.
No matter how statisticians try to equalize for the fact that more women take time out of the workplace to have children, or work part-time for a few years, or tend to take lower paid jobs, there remains an unexplained gap. The only reasonable conclusion is that pervasive discrimination still depresses women’s pay.
Maryland’s Senator Barbara Mikulski intends to prioritize the Paycheck Fairness Act this term of Congress. The number of women senators reached an all-time high after this past election, and women now comprise 19% of the Senate. The bills, H.R. 377 and S. 84, are in committee.
When last considered, the House but not the Senate passed the law. The purpose is to sweep away some of the defenses by employers to their failure to pay women equally for the same job. Women still earn quite a bit less than men, for the same job.
At the same time, though, Senator Mikulski, together with House Representative Rosa DeLauro of Connecticut, asked the President to require government contractors to refrain from retaliating against or prohibiting workers from discussing their pay. While many people do not discuss pay because of culturally-instilled privacy reasons, a person paid less than a peer for doing the same job cannot always find out that she is underpaid, unless she asks.
The National Labor Relations Board already considers prohibitions against discussion of pay and other work conditions to be unfair labor practices, regardless of whether the workplace has a union
A new case from Iowa rejected a sex discrimination case by a woman who was fired by her male boss. The reason she was fired? The boss found her too attractive and wanted to “save his marriage.” The Iowa Supreme Court (all males, by the way) decided that the motivation was not the fired worker’s gender, but her effect on her boss’s emotions. Got that? He had no responsibility to rein in his desires; she had to be fired. Although the employee did not allege sexual harassment, the allegations would have supported such a claim. Among other things, he told her that if she saw his pants bulge, she knew he considered her clothing too distracting.
The plaintiff had worked for the employer, a dentist, for ten years from the age of 22, and did not have any interest in a relationship with him.
The Equal Employment Opportunity Commission has issued a guide to employers on dealing with victims of domestic violence and similar related crimes. Dating and domestic violence can be committed by either gender, and the victims are not always women. The stereotypical target of stalking is female, however. And when employers make decisions based on sex-based stereotypes, Title VII of the Civil Rights Act is likely to come into play. Discriminatory attitudes may arise if an employer treats the victim of a random crime more leniently than a domestic violence victim, or if leave policies are administered in a discriminatory way. An employer may also view a female victim with sympathy, but a male victim with scorn, since men are not supposed to be subject to domestic abuse.
In addition, the Americans with Disabilities Act can be implicated. The EEOC’s guidelines remind employers that regarding someone as disabled is a form of discrimination. Further an employee who is disfigured or depressed as a result of a sexual assault, for example, is likely a disabled employee entitled to a reasonable accommodation, if needed, or protection from harassment in the workplace.
The examples cited by the EEOC are helpful reminders of how lingering attitudes minimizing sexual predation and shunning mental illness can create discriminatory job problems.
People can endlessly debate how much of the gender pay gap has to do with discrimination, and how much of it has to do with women’s primary responsibility for family life, or other factors put in the category of “choice.” A new study shows that the pay differential between men and women begins right out of college. The study looked at male and female earnings one year after graduating from college. Women working full time earned about 82% of what men earned.
Some of the lingering difference in income relates to the fact that male-dominated jobs pay better. For example, engineering, computer science, and finance pay more than teaching, nursing, and social sciences. More men graduate in the former fields, so even if gender discrimination led to those fields paying more money, the persistent patterns of women choosing not to major in those fields does account for some of the overall pay gap. Evidence also suggests that men work a few more hours per week than do women.
But the American Association of University Women study could not account for the pay disparity between men and women graduating and working in the same fields. Male and female teachers do not earn the same one year after graduation, nor do male and female engineers. This is true even though women’s grade point averages were higher.
The value of comparing new graduates is obvious. They are fresh out of school, with little or no experience, and as equal across the genders as they ever will be. Few have children yet, or other family obligations that need to be managed. They aren’t choosing to work less because of burnout, or moving because of a spouse’s job prospects. And even when motherhood is taken into account, it does not explain the pay gap. It is difficult to blame anything other than discrimination, even if it is largely below the surface.
Congress will consider a new bill called the Pregnancy Fairness Act, designed to improve the rights of pregnant workers against endemic discrimination. The bill was introduced on Wednesday in the House.
The ways in which courts have limited pregnancy discrimination laws are well described in this article.
The new law would require employers to make reasonable accommodations to their pregnant workers, similar to requirements under the Americans with Disabilities Act. Like the ADA, it would apply only to employers with at least 15 employees.
Pregnancy discrimination appears to be on the rise, based on the calls I have been receiving. The worker who loses her job because she is pregnant is in a triple bind: she loses income, she loses her health care benefits when she needs them most, and she is less likely to be considered for a job, since she will need a leave of absence in the coming months. Many pregnant women are capable of continuing their work through term, but may occasionally need to sit down, visit a restroom more often, or refrain from heavy lifting. If an employee’s job is “Heavy Lifter,” perhaps no accommodations can be considered reasonable. But for most employees some simple consideration can keep them working.
Today is special. Tax returns are due, two days later than usual. And it’s Equal Pay Day! That’s the day in 2012 on which women have earned the same as men did for 2011 work. “Each year, National Equal Pay Day reflects how far into the current year women must work to match what men earned in the previous year.”
The Department of Labor has a section on its website devoted to Equal Pay issues. But despite the law, which has been in effect since 1963, women continue to be paid less than men overall, and less than men for the same job. President Obama’s first signed law was the Lilly Ledbetter Fair Pay Act, to overturn a hostile Supreme Court decision.
Equal Pay act cases are still difficult to prove unless the workers have extremely similar jobs. While I doubt this was the intention of lawmakers, judges have approached equal pay act cases with a lot of skepticism. Two higher level positions are almost guaranteed not to be completely similar, but to pay two vice presidents with similar scope of responsibilities at dramatically different rates is commonplace.
Maryland’s record is better than most; according to Governor O’Malley, “Thankfully, in Maryland we’ve been able to reduce the wage gap between men and women to the fourth-lowest in the nation – and we were recently named the 3rd best State in the US to be a woman.”
But bring into the mix the State of Wisconsin, which has produced some extremely anti-labor sentiments of late.
After trying to rid the state government of unions, Wisconsin decided to attack protection for women (and racial minorities, among other protected categories). Republic state senator Glenn Grothman spearheaded the repeal of the state’s equal pay act law. Senator Grothman rejects studies showing that women are systematically discriminated against. Instead, according to him, “you could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious.”
Okay; even if that “argument” had any logic behind it, it still does not explain why a man should be paid more for the same job, just because it’s “more important” for him. Should a single mother of four earn more than a young single man living with his parents, because it’s more important for her? Hard to imagine Wisconsin getting behind that one.
No, this seems to be about gender. Men deserve more money, according to these attitudes that, unfortunately (though sometimes more subtly stated) prevail.
The Fourth Circuit just overturned a District Court decision dismissing an employee’s sex discrimination claim. Karla Gerner was notified that her job was going to be eliminated, and was offered three months’ pay to release her claims. She was then fired by her employer, a Virginia County, after turning down a severance offer. Gerner identified four males who had been given better treatment when the County decided their jobs should be eliminated. She was offered 3 months; the men got six months, more pension eligibility, replacement jobs, and the like. The County argued that she had no case because her severance offer was not a contractual employment benefit, and her effective date of firing was before she turned down the severance.
The Fourth Circuit employed a broader view of the “terms and conditions of employment” though. Though an employment benefit is voluntarily granted by an employer, it still must not discriminate in granting the benefits. In addition, prospective, current, and past employees are all protected from discrimination on the basis of sex.
Ms. Gerner now has a chance to go to trial on her claims of sex discrimination.