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 November 5, 2010 under Family responsibility |
The Center for Work Life Law is a nonprofit research and advocacy group with a laser-like focus on life balance for everyone who works. Though it’s based out of the University of California, Hastings College of the Law (where I spent many many hours studying for the bar exam), there is a DC office which keeps good track of Maryland laws and cases.
I’m reminded by the DC resident lawyer and senior advisor, Cynthia Thomas Calvert, that I was a little too negative and incomplete on the post about family responsibility discrimination. Specifically, I said, “We do not have a law in this State outlawing family responsibility discrimination” That is true statewide, that we do not outlaw discriminatory practices based solely on parental or other caregiver status. But there are several counties (Frederick and Montgomery, explicitly, and Howard and Prince George’s, with vaguer language) and the City of Cumberland with local laws outlawing family responsibility discrimination. In addition, there can be a gender discrimination case where women (or a specific woman) is assumed to be of lesser value than a man because of her family responsibilities. Finally, there may be protection under the Family and Medical Leave Act governing larger employers.
So, depending on the facts of the situation and the location of the employer, there may be legal protection. See the latest blog post by the Center for WorkLife Law, on a company specifically weeding out people with childcare concerns, reminiscent of “Irish Need Not Apply,” “Whites Only,” and “Girl Friday Wanted.” As the work of the WorkLife Law Center makes clear, there is a lot of work to be done on our laws and on our view of whether work must be the extreme dictator of every adult’s life.
Posted by marykeating on October 19, 2010 under Sex-based discrimination |
Many people, including me, were brought up not to talk about money. Or at least not personal money, like how much you make, how much your bonus check amounted to. Many companies have a rule against discussing salaries among workers, but the reason is not rooted in good breeding. Instead, such a rule can be used to avoid paying more money to more educated employees, avoid morale issues that can arise from a sense of injustice, and avoid lawsuits in the case of true, illegal, injustice.
A new study discussed in Smart Money magazine showed that publicity on salary data made some people unhappy about their own pay, but did not contribute to a sense of superiority or happiness with the better paid employees.
As the article points out, rules outlawing employees discussing salary among themselves violates the National Labor Relations Act. That act governs the conduct of union elections and other aspects of the unionized workplace. But some provisions apply to all workplaces, since the law protects collective action. When employees combine together to object to workplace treatment, Section 7 of the NLRA protects their activity from retaliation even when the workplace has no union.
Talking about salaries benefits employees, since they get a better idea of the market value of their jobs. Almost more importantly, patterns of wage discrimination can be uncovered. Secrecy is what stopped Lily Ledbetter from winning her case against Goodyear Tire, where she had been paid 20% less than her male counterparts for 19 years. The Supreme Court held that she had to sue within a short time of the first decision to pay her less. Too late for Ms. Ledbetter, the Lily Ledbetter Fair Pay Act was enacted in 2009, but it does no good if the women do not know what the men earn.
Posted by marykeating on September 15, 2010 under Sex-based discrimination |
The Department of Labor filed an administrative complaint today against Tyson Fresh Meats, a subsidiary of Tyson Foods. The complaint alleges that Tyson has systematically refused to hire female applicants in a plant in Illinois. The Department seeks back wages and other relief, including hiring, for 750 women alleged to have been rejected only because of Tyson’s illegal practices.
To attract this kind of Labor Department charge is even more drastic than being a defendant to an EEOC complaint. While both seek wide-ranging relief and damages, the Department of Labor is also in charge of enforcing a long-standing executive order mandating that federal contractors abide by federal anti-discrimination laws. This executive order, 11246, dating from 1965, drove the requirement of affirmative action reporting by federal contractors in the 1970s and 1980s.
By running afoul of the Department of Labor’s investigation, Tysons faces debarment, or a period during which it will not be permitted to contract with the federal government. For many companies, losing the federal government’s business is a death knell. Tyson’s is reported by Labor to be the largest supplier of premium beef and pork, and can survive without the government. But any debarment will surely be a blow to profits, and the publicity surrounding the discrimination charge may attract others.
Posted by marykeating on June 4, 2010 under Sex-based discrimination |
The New York Times got ahold of what should have remained a confidential memorandum from attorney to client. WalMart’s attorneys at Akin Gump warned the giant retailer fifteen years ago that its demographic statistics and haphazard practices of posting open jobs posed a danger. The survey by the law firm revealed that men were five and a half times as likely as women to be moved into management positions. There, they earned more than women.
As reported here before, the danger signs came together with a massive class action by women claiming a systematic pattern of gender-based discrimination. A judge in the class action will have to decide whether the memorandum can come into evidence. It would be a fiery bit of evidence to be sure, but it does not appear that WalMart waived the protection of the attorney-client privilege. WalMart also claims, in its response to the revelation of the memo, that it has improved its practices and the 15-year old report is too stale to pay attention to. The class action will proceed unless the Supreme Court can be convinced to reverse the decision to let all the claims proceed together.
Posted by marykeating on January 15, 2010 under Gender orientation discrimination |
Many organizations, including employers, give lip service or even thoughtful consideration to “diversity.” Some conservative acquaintances (including one parent) find this word an opening for a diatribe on what is wrong with the modern world. Add “politically correct” to the mix and you may have ruined that nice dinner party.
But increasing the representation of women and minorities is important for a number of reasons, not the least of which is avoiding liability for discrimination. A better way to avoid liability for discrimination is to abandon discrimination. Can a truly color and gender blind organization exist? Maybe not, but some are more equal than others (with apologies to George Orwell). An organization can foster a culture where all newer workers are given mentors, are judged according to their merits and contributions, and not thought of first as “the Asian woman” or “that African-American guy.”
Where that does not happen, minorities and women have found it helpful to band together and find mentors of their own gender or race. The polite response from the majority leadership is to accept and promote these efforts at a distance, without trying to run them.
But sometimes the majority leadership can’t help themselves. An especially rich example of this comes from the New York State Bar Association. In order to give women lawyers some helpful pointers on their shortcomings, the bar association offered a panel discussion entitled “Their Point of View: Tips From the Other Side.” The program brochure describes the discussion as follows. “A distinguished panel of gentlemen from the legal field will discuss the strengths and weaknesses of women in the areas of communication, negotiation, mediation, arbitration, organization, and women’s overall management of their legal work.”
Brilliant. One blogger, Bridget Crawford, was incensed, and stated as follows:
I call for all members of the NYSBA to boycott this panel discussion. Yes, the speakers have a right to speak, but we don’t have to go and listen. Men have been telling us FOR YEARS how we don’t measure up. To have a panel of men, endorsed by the New York State Bar Association, discussing our “strengths and weaknesses,” is a regression and an insult to all women in the legal profession.
After this and other complaints, the program was changed, both to include women and to describe the “challenges” faced by women, rather than a discussion of their “strengths and weaknesses.”
The truth is that women have high enrollment numbers in law school, and have for years, yet proportionally speaking are not advancing in the field. Still, having men point out our weaknesses in the overall management of our legal work? Somebody needs diversity training.
