Outten & Golden: Empowering Employees in the Workplace

Archive for April, 2006

Happy Equal Pay Day -- Now Let's Move It to January

Tuesday, April 25th, 2006

Today, Tuesday, April 25, is Equal Pay Day, which means it’s the day that women have to work to in 2006 in order to make the same amount as their male colleagues did in 2005, since American women continue to make 77 cents for every dollar their male counterparts earn. The day has always been celebrated in April in recent memory, as the pay gap between women and men has not considerably narrowed in decades. While it should be possible to completely eliminate the pay gap between the genders, even if we can’t do that overnight, we’d all feel much better about the holiday if the gap were so small we could celebrate it in January, rather than almost four months after the new year starts.

Every year, the National Committee on Pay Equity coordinates the celebration for Equal Pay Day, selecting the time in April when women finally catch up to men’s earnings from the previous year, and also setting the day on Tuesday, the day when women’s wages catch up to men’s from the previous week. NCPE encourages grassroots organizations and individuals to engage in activities such as rallies, lobby days, speak-outs, letter-writing campaigns, workshops, and meetings with employers, policy-makers, and enforcement agencies in order to promote effective solutions for closing the wage gap.

This year’s celebration featured a special new activity: encouraging the formation of WAGE clubs. WAGE stands for “Women Are Getting Even,” and is the name of an organization formed to combat the wage gap. The WAGE Project is headed by Dr. Evelyn Murphy, author of Getting Even: Why Women Don’t Get Paid Like Men — And What To Do About It. To observe Equal Pay Day, the WAGE Project promoted the formation of WAGE clubs, which create a sort of localized community where women can comfortably talk about their wages with other women, educate one another and push one another to do something about their situation. (See Washington Post article.)

Murphy says the traditional explanations for the differences in pay between women and men just don’t add up. She says that the 23-cent differential is not because some women take time off to give birth or raise children, as the pay-gap figure measures only women and men who work full time, for a full year and does not include women who took time off during the year or worked part time. And although women who might more often take time off to give birth or raise a child, most women who can take time off and go back to work full-time earn more in the first place. Any drop in salary they might experience would not pull the average down, she argues. (See Washington Post article.)

One commentator reflecting on Murphy’s arguments and pay equity issues says:

In some instances, there may be legitimate, social reasons for pay differences. But you cannot explain away the entire pay gap with the old explanations that women are less educated than men, that they take time off to have kids or that they are in more menial jobs. Women earn less because decision-makers don’t place the same value on women and the jobs they hold as they do on men. There’s a name for that. It’s discrimination.

(See Orlando Sentinel column.)

If we cannot eliminate the pay gap entirely due to legitimate differences between the sexes and respect for each individual family’s choice about how best to balance work and family obligations, let’s work on getting it out of April. There would not be such a need for concern if the pay gap was 95% or the day was observed in January.

In fact, the pay gap between those just starting out in the workforce is 93 percent for workers under 25, which means that women start out at a disadvantage in what for many is their very first jobs. (See Women’s E-News article.) But the difference between that number and the overall average gap of 77 percent shows just how much ground a typical female worker is likely to lose over her lifetime. That’s about $700,000 for the average American full-time woman worker. Columnist Kathleen Costello asks, “What could this money have allowed women to do? Perhaps pay off debt, buy a house, pay for their children’s college education, save for their own retirement. The implications — for enhancing women’s quality of life — are staggering.” (See Star-Gazette column.)

Want to know how you can combat the problem? Here are some solutions, offered in one newspaper article appearing to commemorate the day:

  • First, we need to keep affirmative action programs in place to make sure education, jobs and promotion opportunities are open and offered to qualified women.
  • Employers must examine and correct their pay practices. Employers can get help examining their pay practices through equal pay self-audit guidelines from the U.S. Department of Labor.
  • Women must stand up for equal pay for themselves. If a prospective employer cannot show that women and men are paid equally for the job they are seeking, it makes sense to look elsewhere. Positive signs includes a hiring process that seeks diversity through affirmative action, written pay and benefit policies, job descriptions and evaluation procedures. A union for workers is another good sign. Women in unions earn 35 percent more than women in non-union workplaces. Women who are paid less than men must discuss the problem with their employer. If there’s a union, ask for their help. If discrimination exists, file a complaint with the local or state fair employment agencies, or with the U.S. Equal Employment Opportunity Commission.
  • Introduce and pass Federal legislation such as the Paycheck Fairness Act and the Fair Pay Act. That’s not a solution popular with employers, but it may be necessary. For employers who continue to pay women less, legal penalties or EEOC action may be the only remedies.

(See Jackson Sun article.) And as Dr. Murphy points out, it’s time to start talking: to each other, and to your employer. Only if you know what’s going on in your company can you begin to combat the problem.

More Information:

WAGE Project

National Committee on Pay Equity

Workplace Fairness: sex discrimination; work/family balance

There’s even a pay gap at Wimbledon:
Wimbledon under fire over prize money gap

Proving What Should Be Obvious

Monday, April 17th, 2006

When I hear all this talk about “frivolous lawsuits,” I’d be perfectly happy to concede that an occasional lawsuit can be brought with insufficient grounds or for the wrong reasons, if the people blathering on about such claims would in turn concede that there are meritorious cases that the courts throw out on completely asinine grounds. This past couple of weeks, there have been at least two federal lawsuits resulting in losses for the worker who brought them that meet that cringeworthy criterion. When a court dismisses a case for failing to “prove” what the average fifth-grader already knows, then it’s obviously dealing in the land of the frivolous. Let’s talk about that for a change, why don’t we?

You may have heard talk about “tort reform,” or as some folks in our camp like to call it, “tort deform,” which is an effort to reduce the number of lawsuits brought by individual citizens against large corporations. As much as they talk about “fairness” and “efficiency,” the movement is all about keeping money in the pockets of wrongdoers and out of the pockets of those who have been harmed by those who have violated health, safety, consumer and civil rights, and environmental laws. They constantly trot out the same tired examples: the McDonald’s coffee case, and in the workplace realm, overtime cases and disability cases.

But what about the cases where the judges seem to be going to the greatest of lengths to rule against workers with the most outrageous cases, often where the employer has admitted to the discriminatory policy or practice in question? They show up in the losses column, so they can be touted as yet another case that shouldn’t have been brought, but when you dig a little deeper, you see just how deliberately blind one would have to be to miss the discrimination happening in the case.

First, the case of Darlene Jesperson v. Harrah’s Operating Co., Inc. I’ve talked about Darlene Jesperson’s case before: Have They Ever Shared a Bathroom with a Woman? I was pretty incredulous back then that a court could rule in favor of a policy that requires women, and women only, to wear makeup every day to work, when all a male employee had to do is keep his hair cut at a manageable length (requiring a trip to the barber every six weeks at most). Well, a larger panel of judges in the 9th Circuit Court of Appeals, in what is known as an “en banc” opinion, has now ruled against Ms. Jesperson.

The majority opinion, which was written by a female judge, Chief Judge Mary M. Schroeder, and joined by two other female judges (Pamela Rymer and Consuelo Callahan), rules that Harrah’s casino didn’t discriminate against Darlene Jesperson when it fired her for violating its “Personal Best” policy requiring her, but not her male bartender colleagues, to wear makeup. The basis for the ruling is that Jesperson “failed to present [sufficient] evidence…that the policy imposes an unequal burden on women.”

There is a silver lining to the ruling: the court did rule that appearance standards that were unequal for women and men might constitute sex stereotyping, but said that Jesperson didn’t adequately prove her case. But that ruling is of no comfort to Ms. Jesperson, who still doesn’t have a job similar to the one she held for 20 years. As Jennifer Pizer of Lambda Legal, one of Jesperson’s attorneys, commented, “I’m heartbroken for Darlene and elated for working men and women across the U.S. Before this case, we didn’t know whether the sex stereotyping doctrine applied to dress codes.” (See Recorder article.)

At the heart of the matter, the majority of the court believed that Jesperson did not introduce enough proof that wearing face powder, blush and mascara and lip color on a daily basis, as required of female employees by the Harrah’s policy, took more time and effort than keeping hair trimmed above the collar, required of male employees. (Notably, the Harrah’s policy did not ban male facial hair, which given that most men need to shave at least once daily to remain clean-shaven, would most likely have been a comparable requirement in time expended, if not its expense.) The court said, “Jespersen did not submit any documentation or any evidence of the relative cost and time required to comply with the grooming requirements by men and women. As a result, we would have to speculate about those issues in order to then guess whether the policy creates unequal burdens for women.” (Majority opinion at page 13.) Given the obvious ability for Jesperson to do so, the court could have remanded the case back to the lower court to permit her to add this evidence (not introduced because she thought it was so obvious the court could recognize it without specific evidence), but didn’t do so.

Two dissents, written by male judges, appear to have the most persuasive side of the argument, but alas did not carry the day. In a dissent written by Judge Harry Pregerson, and joined by three other members of the panel (Judges Kozinski, Graber, and William Fletcher), Judge Pregerson calls the makeup requirement a “facial uniform” that women and not men are required to wear at work, and notes, “The inescapable message is that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption — and gender-based stereotype — that women’s faces are incomplete, unattractive, or unprofessional without full makeup.” (Dissent at page 23.) As such, Judge Pregerson and the colleagues that joined him didn’t need proof that makeup cost more.

The dissent I would recommend that everyone read was written by Judge Alex Kozinski, who is rarely known for his progressive opinions (although quite well-known for his well-written, insightful, clever and entertaining ones). He said,

It is true that Jespersen failed to present evidence about what it costs to buymakeup and how long it takes to apply it. But is there any doubt that putting on makeup costs money and takes time? Harrah’s policy requires women to apply face powder, blush, mascara and lipstick. You don’t need an expert witness to figure out that such items don’t grow on trees. Nor is there any rational doubt that application of makeup s an intricate and painstaking process that requires considerable time and care. Even hose of us who don’t wear makeup know how long it can take from the hundreds of ours we’ve spent over the years frantically tapping our toes and pointing to our wrists.

(Dissent at page 24-25.) Judge Kozinski takes seriously Ms. Jesperson’s assertion that wearing makeup makes her feel uncomfortable and at odds with her own self-image.

Whether to wear cosmetics—literally, the face one presents to the world—is an intensely personal choice. Makeup, moreover, touches delicate parts of the anatomy—the lips, the eyes, the cheeks—and can cause serious discomfort, sometimes even allergic reactions, for someone unaccustomed to wearing it. If you are used to wearing makeup—as most American women are—this may seem like no big deal. But those of us not used to wearing makeup would find a requirement that we do so highly intrusive. Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way. Everyone accepts this as a reasonable reaction from a man, but why should it be different for a woman?

(I guess Judge Kozinski is not angling to adopt the British custom of judges wearing wigs.) It’s clear that Judge Kozinski has shared a bathroom with a woman, as I discussed in my previous blog. (It is also perhaps noteworthy (or maybe not) that Judge Kozinski was named the No. 1 “Male Superhottie of the Federal Judiciary,” by Underneath Their Robes, a blog devoted to “News, gossip, and colorful commentary about the federal judiciary,” and back in the day was a former contestant on the Dating Game. See The Hot. Alex Kozinski.)

The most refreshing part of the whole dissent, however, was when Judge Kozinski noted the following:

I note with dismay the employer’s decision to let go a valued, experienced employee who had gained accolades from her customers, over what, in the end, is a trivial matter. Quality employees are difficult to find in any industry and I would think an employer would long hesitate before forcing a loyal, long-time employee to quit over an honest and heartfelt difference of opinion about a matter of personal significance to her. Having won the legal battle, I hope that Harrah’s will now do the generous and decent thing by offering Jespersen her job back, and letting her give it her personal best—without the makeup.

(Dissent at page 26.) How many judges personally admonish employers like that in their opinions? Not many. Will it work? Not likely. Not enough judges seem to care about employers doing what is generous and decent.

In a second recent opinion, this time the Eighth Circuit Court of Appeals takes what should be a no-brainer and works really hard to avoid the obvious conclusion, in Cottrill v. MFA, Inc, a decision hailing from the northern Missouri region where I grew up. The two female employees in Cottrill eventually found out that their supervisor had a peephole in the wall of the women’s restroom, right next to his personal break room. Conveniently, the supervisor would always take a break when Ms. Cottrill headed for the restroom, and eventually was forced to plead guilty to the Class C felony of invasion of privacy after being caught in the act of viewing her restroom activities through the peephole. They also found in the supervisor’s break room a bag with leaves (which appeared to be poison ivy) and a sticky substance, which probably explained the rashes from which Ms. Cottrill occasionally suffered while employed under that supervisor.

Ms. Cottrill and the other female employee who used the restroom sued MFA for sexual harassment. Their charge filed at the EEOC read as follows:

My supervisor, Scott Adkins, created a hostile work environment by peeping into the women’s restroom for years. Upon discovery of this I reported the peephole and in October 2002 Scott Adkins was caught and confessed. Adkins was convicted of a felony for invasion of privacy in Gentry County, Missouri.

(Opinion at page 8). Now it should be pretty obvious that Ms. Cottrill and her coworker faced conditions that the male employees at the MFA didn’t face, but the majority of the court said,

The EEOC charges of Cottrill and Combs allege no facts concerning treatment of male employees nor do they identify any adverse employment action. In fact, it was not until Cottrill and Combs filed their opposition to MFA’s motion [to dismiss the case] that they first construed their district court complaint to include claims for disparate treatment on the basis that the conditions of the women’s restroom were different from those of the men’s restroom.

(Opinion at page 8). Ultimately, the court ruled, it wasn’t sex discrimination because Ms. Cottrill and her coworker didn’t specifically say in their EEOC charges that their supervisor Adkins didn’t look at male employees in the restroom. This of course neglects to consider that the MFA management, including Ms. Cottrill’s brother-in-law, knew that only the women’s restroom was affected, since they worked with her to catch Adkins in the act of peeping from the room adjacent only to the women’s restroom. It wasn’t a hostile work environment because Cottrill didn’t know about the peeping as it was happening, so couldn’t have found the environment to have affected her employment. (Nevermind how she felt about it when she found out.)

This court, like the 9th Circuit in the Jesperson case, goes to great lengths to ignore the obvious and reject a claim where it was not disputed that the female employees had to put up with something that the males did not have to. I’d say it was as plain as the nose on their faces, but unless that nose is powdered to the employer’s specifications, that doesn’t seem to count either.

9th Circuit Makes Up Mind in Sex Bias Case

Who Puts These Guys in Charge?

Monday, April 3rd, 2006

From the “you can’t make this stuff up” category: following in the fine tradition (starting with the workplace bully John Bolton) of putting leading critics in charge of the very organization whose work they’ve devoted their life to eviscerating, the Administration has nominated two individuals to key positions at the EEOC and Department of Labor who have spent their careers fiercely opposing workers’ claims. It wouldn’t have anything to do with the declining number of claims and reduced amount of litigation coming out of those agencies, would it? Could it really be that the key qualification for playing a leadership role in an organization whose mandate is to protect the rights of workers is to first demonstrate a high level of proficiency in trying to demolish those rights?

Many critics questioned whether John Bolton was the right person to become our nation’s ambassador to the United Nations, given his expressed disdain for the U.N. (See Washington Post article.) (We questioned his fitness because of how he treated the people who work for him, and surprisingly enough, it was enough of an issue for him to have to face some embarrassing questions.) After his nomination was stalled in Congress, President Bush went ahead and issued a recess appointment that did not require Congressional approval. (See CNN article.) Now he’s opposing the establishment of a new U.N. Human Rights Council, a vote he lost 170 to 4. (See Forward article, written by Kathleen Peratis, author of one of our site’s sexual harassment pages.) There’s no word on how he’s treating his employees, however.

Knowing about Bolton’s nomination, it shouldn’t be too surprising that now we’re facing two more nominees of the same ilk. While the General Counsel of the Equal Employment Opportunity Commission and the head of the Department of Labor’s Wage and Hour Division aren’t nearly such high profile positions as that of U.N. Ambassador, many more American workers could face adverse treatment if the current nominees’ history is any indicator.

Last week, the President announced the nomination of Ronald S. Cooper to the position of EEOC General Counsel. Cooper has been a defense lawyer at the law firm of Steptoe and Johnson for over 30 years. His firm profile reads, in part, as follows:

Mr. Cooper has defended employers in federal courts throughout the country in employment discrimination actions brought under Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA)….Mr. Cooper also defends employers who are subject to administrative investigations and proceedings including Commissioner Charge investigations by the Equal Employment Opportunity Commission (EEOC), and Compliance Reviews by the Office of Federal Contract Compliance Programs (OFCCP)…..Mr. Cooper testified on behalf of employers in the US House of Representatives in opposition to the retroactivity features of the Civil Rights Act of 1990. The Civil Rights Act of 1991, as finally enacted, did not include these provisions.

Compare this to the stated mission of the General Counsel’s Office, which is “to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing.” (See 2005 Office of General Counsel report.) You’d think the guy in charge would need to have some specific experience doing the office’s work. But Mr. Cooper doesn’t appear to have an iota of experience “obtaining relief for victims of employment discrimination.”

All his efforts have been focused on representing employers, and if he wasn’t good at it, he probably wouldn’t be chair of the firm’s labor standards practice, or the Management Chair of the American Bar Association’s Section of Labor and Employment Law Committee on International Labor Law. In fact, his testimony before Congress, as described above, resulted in less relief for employment discrimination victims, and he has undoubtedly in his career been forced to oppose the EEOC’s efforts in cases against his clients.

Cooper’s nomination comes on the heel of the EEOC’s recent announcement of its litigation statistics for fiscal year 2005. After increases in the monetary damages awarded to employees in 2003 and 2004, this year’s total was over $60 million less than last year’s. (See EEOC Litigation Statistics.) The number of charges filed in 2005 was also down 5 percent, and that number has gone down every year since FY 2002. (See EEOC Charge Statistics.) EEOC Chair Cari M. Dominguez attributes the decrease to more aggressive efforts to promote voluntary compliance by providing training about the laws to employers. (See Washington Post article.)

For the head of the Department of Labor’s Wage and Hour Division (WHD), the President in January nominated Paul DeCamp. DeCamp, with the law firm of Gibson Dunn & Crutcher, has a background similar to Cooper’s (although unlike Cooper, who has been practicing for 30 years, DeCamp graduated from law school in 1995). His firm profile tells us:

Mr. DeCamp has represented employers in numerous class and collective actions involving the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and state wage and hour laws, as well as cases brought by individuals. Mr. DeCamp has defended employers against union organizing campaigns and unfair labor practice charges; provided advice regarding acquisition of unionized businesses, including successorship issues; and challenged union election-related misconduct. Mr. DeCamp advises employers regarding the full range of employment law issues, including wage and hour law compliance, internal investigations, equal employment opportunity concerns, employee discipline and terminations, and Service Contract Act issues.

The AFL-CIO, which is opposing his nomination, also wants you to know what his firm resume neglected to specifically mention:

  • DeCamp represented Wal-Mart in trying to prevent a class of 1.5 million women—the largest employment class action ever certified—from suing the company for discrimination in pay and promotions.
  • He has proposed taking overtime pay away from workers in ways that were even more extreme than what the administration actually has done—and suggested easy outs for bosses who misclassify workers as not eligible for overtime pay.
  • He’s represented businesses opposing union organizing campaigns and fighting unfair labor practice charges.
  • He’s represented an employer appealing a record $40 million dollar sexual harassment verdict.
  • And he’s fought on the bosses’ sides on collective and individual actions involving the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act and state wage and hour laws.

(See AFL-CIO blog post of March 30, 2006.)

Again, let’s compare what DeCamp’s been up to for the last decade to what the Wage and Hour Division is supposed to be doing, which is “administering and enforcing some of our nation’s most comprehensive labor laws, including: the minimum wage, overtime, and child labor provisions of the Fair Labor Standards Act (FLSA); the Family and Medical Leave Act (FMLA); the Migrant and Seasonal Agricultural Worker Protection Act (MSPA); worker protections provided in several temporary visa programs; and the prevailing wage requirements of the Davis-Bacon Act (DBA) and the Service Contract Act (SCA).” (See Wage and Hour Division home page.) Whatever DeCamp’s relatively limited experience has been, enforcing the labor laws which protect workers doesn’t seem high on his list.

But if you agree with the direction in which the WHD is headed, DeCamp’s nomination makes much more sense. This year’s enforcement statistics indicate that the WHD this year collected the lowest total of back wages in four years from employers accused of violating federal wage-and-hour laws, with $30 million less collected this year when compared to last year. (See 2005 Statistics Fact Sheet.) Just like at the EEOC, commentators claim that employers are doing a better job with complying with the law, but might it be that fewer employees are even bothering to pursue their claims through the administrative agencies at this point?

Having experience in enforcing our nation’s employment laws for the workers they were enacted to benefit is obviously an optional qualification for these two nominees. Or perhaps their lack of experience is a very good qualification, when you don’t intend for the agencies they will head to be doing nearly as much enforcement anyway.

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