Posted by marykeating on December 31, 2011 under Sex-based discrimination | 
The highest court in Maryland just reinstated a jury verdict in favor of an employee fired by Giant of Maryland after complaining of sex discrimination. A truck driver for the grocery chain, Ms. Taylor developed a condition in which she experienced unexpected heavy menstrual bleeding, which would make her absent or late to work without warning. Giant insisted that the employee take an independent medical examination and, according to Ms. Taylor, to comply with the doctor’s recommendations for treatment, up to and including a hysterectomy, or be fired. Ms. Taylor claimed (and the jury agreed) that Giant did not make male employees with health-related absences submit to a medical examination, rather than accept their doctor’s explanations.
The intermediate appellate court reversed the jury verdict, leading to an appeal to the highest court.
The Court of Appeals rejected the employer’s efforts to have the court disregard the comparisons with her male counterparts. Giant complained that the four men identified by the plaintiff were not sufficiently similar, and therefore their superior treatment could not support a sex discrimination claim. The Court disagreed. The plaintiff’s failure to identify a man with the same supervisor who had a gender-specific ailment that caused him to be late or absent, and that was not subject to a Department of Transportation physical examination, did not doom her case. There will always be differences between two employee’s situations. Instead, it is enough to identify a male comparator whose treatment is enough to cast suspicion on the employer’s stated reason for requiring the medical exam.
The opinion also rejected the employer’s appeal of the retaliation verdict. The decisionmakers at Giant denied knowing that Ms. Taylor had filed a discrimination claim, and therefore, they said, her firing could not have been in retaliation for her filing. The employee produced evidence that the discrimination claim was transmitted to Giant’s human resources department, and that an employee had knowledge and had taken action to try to mediate the claim. The court said that the jury could have disbelieved the denials by other Giant employees that they did not know of the filing.
Posted by marykeating on December 14, 2011 under Economic situation, Sex-based discrimination |
A new coalition has formed to help women adversely affected by the sluggish economy. The earlier reports that the recession hurt men more than women has been superseded by the new reality. More layoffs have occurred in the public sector, which employs a lot of women; for whatever reason, moreover, the rate of layoffs of women exceeds their representation in the public sector. Since the recession ended, the job gains have helped men more than women.
There is no reason for a gender war over the small economic gains, and that is not the coalition’s purpose. It is true that in a one-parent household the parent is more likely to be the mother, however, so the job loss affects multiple people. The coalition “HERvotes, seeks to emphasize the importance of extending unemployment benefits, and providing affordable health insurance.
Posted by marykeating on November 4, 2011 under Sex-based discrimination |
A recent study commissioned by a Wall Street law firm found convincing evidence that the firm assigned higher evaluation points to male associates for the same attributes and qualities as the females possessed. The firm must have had an inkling that men were getting an undeserved edge over the women, otherwise it would not have hired the consultant. It was right: women who performed just as well as men, according to the open-ended narratives accompanying the evaluations, somehow earned a lower ranking than their male peers.
Acknowledging that the differential was narrow, the authors point out the high-stakes consequence: “the firm’s reliance on this number for partnership consideration makes it nearly three times more likely that men than women will be promoted to partner.”
Despite the finding, the law firm chose not to revamp its system, institute training, or take any creative steps to erase the ingrained bias. The firm apparently gave lip service to the idea of improving its record of promoting women, but “we’d rather not change anything.”
Although the identity of the firm is a secret under the consultant’s agreement, I never underestimate the power of the grapevine; its identity may yet leak out, which could yield an interesting situation for the scores of women held back by the firm in spite of its realization that its evaluations were biased.
Posted by marykeating on October 31, 2011 under Sex-based discrimination, retaliation |
Most employers have policies against discrimination and harassment based on protected categories, such as race, sex, religion and national origin. To be effective, and to provide effective defenses against lawsuits, the policies often require supervisory personnel to report anything observed or reported to them that looks or smells like discrimination or harassment, regardless of whether an employee actively complains. The policies also require supervisors to pass along actual complaints. When they work well, these policies can minimize discriminatory cultures, and stop harassment before it ruins someone’s career. When reports of discrimination enrage the perpetrator or other managers, however, the fallout can be widespread and expensive.
In a recent Montgomery County case, for example, the employer retaliated against an employee for reporting sex discrimination. The harassment victim’s supervisor alerted the higher-ups of the retaliation. Soon thereafter the 30-year employee (the one reported her subordinate’s complaint and her observation of the retaliation) experienced retaliation herself. Her supervisor and upper management demoted her, and transferred her, increasing her daily commute from 4 to 84 miles. The jury responded to her allegations that she was fired for opposing a discriminatory practice, and awarded $650,000.
Posted by marykeating on August 23, 2011 under Sex-based discrimination |
This just in – a study of gender and agreeability shows that mean men make the most money. But being disagreeable does not help a woman’s earnings; nice women make just slightly less than mean women. Men make more than both groups.
The authors of the study confess that they are somewhat perplexed by the findings. With corporations and management studies touting the benefits of teamwork, why should nicer people not be valued more? They point out, though, that agreeable people are motivated by building good social relationships. Altriustic behavior does not help when it’s time to look out for number one. The disagreeable employees are better able to negotiate well for themselves, “possibly stemming from their high sense of psychological entitlement and lower level of willingness to compromise their self-interests.” (Study citations omitted) But the gap is not solely due to the efforts of the disagreeable to advance their own interests. They are also perceived differently; the psychological literature shows that people who are angry, or highly critical of others, are rated as more competent.
So, why does this work for men and not for women? The reason is sex stereotyping. As the authors explain, “Men are expected to be high in agency and low in communion, while the opposite is expected of women. Both men and women who act in ways that are contrary to expected behaviors in certain contexts may encounter backlash when they do not conform to stereotyped expectations. Backlash refers to social and economic sanctions for counterstereotypical behavior. Counterstereotypical behavior often results in less favorable personnel decisions such as decreased recognition, compromised opportunities for advancement and, at worst, sabotage directed against ‘deviants.’” (Again, study citations omitted)
The study’s authors conclude: “Given the positive contributions made by agreeable people, demonstrated in prior research, it seems that the income penalty for agreeableness is out of proportion with its performance effects. Rather, for men and for women, the effects may be due more to expectations for behavior appropriate to one’s gender. This research raises important questions about the standards according to which people are evaluated and sheds further light on the issue of wage inequalities. In particular, it serves as a caveat to popular sources of career advice that either exhort people to be nice—or not. Closing the gender gap seems to hinge less on changing women’s behavior than it does on changing the minds of decision makers.”
Posted by marykeating on August 16, 2011 under Sex-based discrimination, retaliation, sexual harassment |
The Fourth Circuit recently overturned a decision dismissing the sexual harassment claim of a former Baltimore City employee, Katrina Okoli. Contrary to the trial court, the Court of Appeals first decided that the behavior of the supervisor created a hostile work environment. The behavior ranged from touching, sharing his fantasies of sex in a Jacuzzi, to yelling.The Court also determined that Ms. Okoli showed that her rejection of the boss’s advances led directly to her firing. It deemed “deeply suspicious” the fact that the plaintiff’s boss fired her “only hours after she culminated her rejection of him by complaining to the Mayor.” It also permits the retaliation case to go to trial.
The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment. The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances. It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor. The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.
It is still difficult for plaintiffs to get to trial in employment discrimination cases. But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.
Posted by marykeating on July 17, 2011 under Collective rights, Sex-based discrimination, Wage and hour issues |
Many workplaces prohibit or discourage their employees from discussing salaries. A new study by the Institute for Women’s Policy Research, in fact, found that nearly half of the survey respondents were not supposed to talk to coworkers about how much they are paid.
While learning that a coworker makes more can lead to resentment, transparency in pay structure can also help root out and remedy discrimination. The study’s authors point out, for example, that gender-based pay discrimination stands at about 11% in government service, where salaries are often public records, while the 23% gender gap in the private sector continues despite state and federal equal pay laws. The authors quote another study’s conclusion: “It is estimated that discrimination (rather than differences in occupations, industry, experience or education) is responsible for about 40 percent of the wage gap.” (Blau, Francine D., and Lawrence M. Kahn. 2007. ‘The Gender Pay Gap: Have Women Gone as Far as They Can?’ Academy of Management Perspectives, 21,1: 7-23.)
The now famous case of Lilly Ledbetter demonstrates the danger of secrecy. Ms. Ledbetter learned that she had been underpaid for years at General Electric; the Supreme Court said she sued too late, since the first such pay decision, in which she was paid less than her male counterparts, was well out of the statute of limitations period. Congress fixed the problem in early 2009, but no one can claim discrimination without having some facts.
It stands to reason that similar wage gaps affecting minority workers are also perpetuated by such secrecy laws. The good news is that this kind of workplace rule is illegal under the National Labor Relations Act. (My discussion here explains this more). Employees are entitled to discuss work conditions, including, or course, pay, without retaliation. With the law on the side of employees, they just need to get past their childhood admonitions that talking about money is rude.
Posted by marykeating on July 5, 2011 under Employment benefit issues, FMLA, Family responsibility, Sex-based discrimination |
A Maryland state employee filed suit after his termination from the court system. He claimed that he was the victim of race discrimination, and also that his termination violated the Family and Medical Leave Act. The lower courts rejected both contentions, but the Supreme Court has agreed to hear the issue involving his FMLA claim. This blog discussed the case earlier.
That part of the decision related to the immunity of states from private lawsuits in federal courts. Under the 11th Amendment to the Constitution, states cannot be sued in federal courts unless the state has consented to the suit, or Congress has specifically, and legally, removed the immunity.
The Supreme Court earlier decided that Congress removed the immunity for FMLA suits against states when the employee was using FMLA protection to care for another person. The FMLA protected workers in that situation because of ingrained sex discrimination, “the pervasive sex-role stereotype that caring for family members is women’s work.”
The FMLA offers protection to workers taking time off for their own illness or disability also; but according to the Fourth Circuit, the motivation for the law did not implicate any constitutional protections. Instead, Congress found that the economic effect of job loss due to illness was profound, and sought a way to limit it when larger employers were involved. Because there was no constitutional imperative underlying the law, Congress could not validly permit the states to be sued.
The petition for certiorari pointed out cases in which the circuit courts believe that the law has to stand or fall as a unit, therefore all of its parts must be viewed together. Others specifically requested the high court’s guidance.
The Supreme Court does not announce why it agreed to hear a case; it becomes clearer (sometimes) after the decision comes out. The Rehnquist Court upheld states’ rights to be free of federal legislation, but this newer Court may go in a different direction.
Posted by marykeating on June 26, 2011 under Sex-based discrimination |
In the wake of the Supreme Court’s refusal to allow an enormous class action to proceed against Wal-Mart, representatives of employees and employers are evaluating its message. Justice Scalia’s pointed criticism of the plaintiff class’s approach intrigues some management representatives. The plaintiffs argued that by giving almost unfettered discretion to male managers to hire, pay and promote, Wal-Mart ensured an old boy’s club to flourish. The Supreme Court rejected this idea completely, saying that without a company-wide policy of discrimination, the class could not prove its case.
Now some advisers are contemplating whether to recommend more discretion and less top-down control, in the interest of avoiding class discrimination complaints. Others are not so sure.
A healthy corporate culture is imposed from, and rewarded from, the top. Nicely worded statements in the employee handbook are worth nothing if they have no backup. A manager who is permitted to discriminate, treat his employees like dirt, and look the other way when racial or sexual harassment pervades the workplace has no incentive to change his ways. If the behavior goes too far and the company is sued, however, the particular victims of this person’s discrimination do not have to mount a class action. One, two, or five people suing the company for discrimination costs less than a class action to defend, but is not something any employer courts. A maverick manager defying the company does more harm than simply inviting lawsuits. Morale suffers, some good employees leave the company, and sick leave usage rises as the miserable employees take time off for stress-related ailments. Fettered discretion is much smarter.
Posted by marykeating on June 24, 2011 under Sex-based discrimination |
By a 5-4 decision, the Supreme Court reversed the certification of a class action against Wal-Mart brought by women claiming to have been deprived of promotions and raises. The class of women affected numbered about a million and a half. The Supreme Court rejected the Plaintiff class’s theory that a culture of discrimination pervading Wal-Mart, and the discretion that individual managers were given over pay and promotions, worked together to keep women employees on the lower rungs of the ladder. The majority opinion denied that there was enough evidence to show that the company had a policy of discrimination; therefore, there was not enough commonality to allow the case to proceed as a single class of similar people. Justice Scalia held; “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”
While a decision in favor of Wal-Mart was expected, the majority opinion went out of its way to deride the statistical evidence that starkly showed the disparity between male and female advancement and pay. When a court hears an appeal, it is ordinarily supposed to decide the legal issue before it. Sometimes the legal issue is whether the judge below had enough evidence to rule in favor of one side. More often the legal issues focus on whether the jury was properly instructed on the law, or whether the wrong done to the plaintiff is something that a court can remedy.
Activist judges are often criticized for “legislating from the bench.” Instead of rendering a decision on the one issue before them, activist judges use a case as a stepping stone to announce new theories of law, when that announcement was unnecessary to the decision.
The current Supreme Court has certainly been engaging in activism as when, for example, it decided that corporations had free speech rights. In this Wal-Mart case, too, Justice Scalia attempts to undo long-standing discrimination proof standards. A well-known Supreme Court watcher noted the pro-corporate stance of the majority, indicating a possible constitutional right to a jury trial of each claim for damages. It is of course too early to know if the words will be adopted by courts when they are hearing cases not involving class action suits.
