Posted by marykeating on May 11, 2012 under Economic situation, Family responsibility, Pending legislation, Sex-based discrimination | 
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.
Posted by marykeating on April 17, 2012 under Pending legislation, Sex-based discrimination, Wage and hour issues |
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.
Posted by marykeating on March 24, 2012 under Employment benefit issues, Sex-based discrimination |
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.
Posted by marykeating on March 13, 2012 under Sex-based discrimination, sexual harassment |
The Fourth CIrcuit yesterday reinstated an employee’s sexual harassment case after it had been dismissed by the trial court. Carla Dulaney sued her former employer after her termination, complaining of sexual harassment. Dulaney’s shift supervisor demanded sex from her. From time to time, she did have sex with him in the workplace, though it could hardly be called consensual. When she refused to accommodate the supervisor, he screamed at her, sent her home without pay, and eventually spread vicious rumors about her around the company. Her complaints were laughed off. When she escalated the complaints (after having been warned not to go over the senior supervisor’s head), she was offered a severance agreement complete with release of claims.
The District Court held that a letter from the company offering her job back meant that she was not fired for complaining or for refusing to sign the severance agreement. The Fourth Circuit determined that there were numerous factual disputes about whether the employee had suffered a “tangible employment action,” which is necessary before a court can impose liability on an employer that denies knowing about the harassment. It did not reach other issues, such as whether Carla Dulaney adequately complained, and whether the employer failed to take action on her complaints.
District Courts continue to weigh facts, often giving scant weight to the employee’s assertions, in order to award summary judgment to employers. This case shows the importance of proof that an employee made complaints about sexual harassment, and that the complaints went unheeded.
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.
