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.
Posted by marykeating on May 9, 2011 under Economic situation, Sex-based discrimination, Uncategorized, Wage and hour issues |
Last week’s Department of Labor study on Women’s Employment During the Recovery provides a framework for understanding how the female workforce is recovering from the recession. The good news: the unemployment rate among women is lower than that of men. Part of that disparity results from the fact that women are more likely to be employed in the public sector. In addition, more women have college educations than do men, though more college educated men are working full time.
Women are underrepresented in some sectors, such as engineering, computer science, and architecture. Some of the areas expected to have the highest growth rates over the next few years, other than health care, still have a distinctly male focus.
The report collects and analyzes a large amount of data, including a dispiriting analysis of the cumulative effects of the wage gap. It then discusses the initiatives designed to give women more opportunities in male-oriented jobs, enforce equal pay laws, and increase workplace flexibility.
Almost two thirds of mothers are in the workforce.
The hurdles that face a truly equal workplace can look too tall to leap over. But we mothers can change the mindsets of the children who will join the companies and institutions, so that they do not expect pay or assignments to be based on gender, family responsibilities, or race.
Posted by marykeating on April 12, 2011 under Sex-based discrimination, Wage and hour issues |
Today is Equal Pay Act Day, celebrating fifty years of the Equal Pay Act.
The Secretary of Labor issued a statement describing the department’s efforts to identify and redress “persistent challenges” to the pay gap between men and women. It remains puzzling. There are more women than men in colleges, a large proportion of women have been working full-time for decades now, and most people seem to agree that paying the same wage for the same job is only fair. In studies correcting for child care leave, statistics still show that women who work just as hard as men are paid less.
A study published in The Atlantic gives examples of industries in which women are underrepresented, underpaid, and focuses on the lack of women at the highest levels. Women make from 64 to 79% of the males’ pay.
One problem in rooting out the problem has been the courts’ reluctance to tackle equal pay issues unless the jobs are completely equivalent. Proving equivalence is impossible in higher level jobs. While one vice-president may have the same organizational chart level, the same number of direct and indirect reports, and the same level of responsibility as another, courts easily embrace the differences, and hold that the jobs are not equal, so a $40,000 pay differential has some basis other than gender. Even in lower level jobs, small differences (including the fact that the woman does more tasks than the man can spell the end of an equal pay challenge.
Gender discrimination hangs on, sometimes below the conscious radar, and sometimes right out in the open. There will be a lot of work to do so that the next Equal Pay Day is a true celebration.
Posted by marykeating on March 19, 2011 under Sex-based discrimination, sexual harassment |
The Fourth Circuit just reinstated a case on behalf of worker who was routinely sexually harassed while on a customer’s premises. The trial court, together with the employer, told the employee that it was his fault. He did not provide enough details about the harassment, preventing the employer from taking corrective action.
Not so fast, according to the appeals court. Contrary to the summary disposition by the lower court, the appeals court saw plenty of evidence in the record. The employee demonstrated that he complained early and often, but he was told that the harassers were joking; that he should stop whining; and that because of his complaints his company “could lose everything.” After he complained to the EEOC, the company offered him a different shift with lower pay, which conflicted with the employee’s childcare responsibilities. He was fired for not taking the changed shift.
The Fourth Circuit held that an employer “is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.” The unanimous response from the management was to belittle his concerns and not ask questions. It went on to repeat its rule that “claims of harassment could not be avoided through the adoption of a ‘see no evil, hear no evil’ strategy.” It also refused to require adherence to the requirement that claims be reported only to the company president, given the size of the company.
Posted by marykeating on March 15, 2011 under Court news, Sex-based discrimination |
In a charming throwback to the Donna Reed days, the love life of prominent females is fair game for scrutiny. According to Justice Sotomayor, “during the nomination process she was asked for the names of everyone she ever dated.” She does not believe, nor do I, that men are subjected to similar memory tests. What could be the relevance of such a question? The justices already recuse themselves from cases in which they are close to the case, the parties, or the lawyers. Justice Kagan has had to recuse herself from a number of matters this year, since she just came from the Solicitor General’s Office.
Female candidates for any job may be subject to questions or judgments based upon their personal life. Sometimes it’s just an annoyance, but often such focus is illegal. If an employer decides, for example, that a female employee is more likely to be absent or less likely to be willing to travel because of her family obligations, that is gender discrimination. An assumption that she will quit when she gets married again reminds us of the 1950s. And the hope that hiring an attractive woman will provide amusement for a boss looking for some love – well, that’s just jumping into a sexual harassment claim.
Posted by marykeating on February 4, 2011 under Government contractors, Sex-based discrimination |
The Equal Employment Opportunity Commission has been taking on more cases of systematic discrimination, as compared to years when the executive branch was run by the Republican party. The Department of Labor is making waves, too. That Department enforces not just wage and hour laws, but also the affirmative action executive order put into place by President Lyndon Johnson. That order requires businesses doing a certain amount of business with the federal government to refrain from discrimination, to make efforts to improve diversity, and to report on their progress.
The DOL conducted a compliance review, and discovered a problem with the Green Bay Dressed Beef company, which supplies meat for school lunch programs and the military. The company was systematically rejecting women from general laborer positions. It will now pay $1.65 million to 970 women who applied for those jobs, and make job offers to 248 of them, as openings occur.
As the Secretary of the Department, Hilda L. Solis, stated, “There is no such thing as a ‘man’s job.’” The enforcement agencies are especially important in these kinds of case. It is not usually possible for an individual rejected for a job opening to establish that the reason was her gender. Unless the interviewer says something revealing, these cases require either a clearcut pattern, or a whistleblower.
Posted by marykeating on February 1, 2011 under Court news, Sex-based discrimination |
Don’t you just love it when social science corroborates one of your hunches? A new study theorized that male judges with daughters might have more progressive views on gender issues such as discrimination and harassment. It investigated outcomes of cases in which male federal appeals court judges voted. The study concluded that “judges with daughters consistently vote in a more liberal fashion on gender issues than judges without daughters. This effect is particularly strong among Republican appointed judges . . . .”
