Outten & Golden: Empowering Employees in the Workplace

Archive for September, 2010

Why Are Millions of Workers Excluded From Minimum Wages?

Thursday, September 30th, 2010

Image: Richard NegriThe United States is a country where hard work is supposed to be rewarded. If you agree with that, would you be shocked to learn that there are more than 1.6 million homecare workers who are being denied federal minimum wage and overtime protections under current labor laws? And it is almost 2011!

Chew on this for a minute: More than 1 million hardworking Americans are legally denied basic labor rights most of us take for granted at this point. How did that happen, what can we do to change that?

It all goes back to The Fair Labor Standards Act (FLSA), which was enacted in 1938 to ensure a minimum standard of living for workers through the provision of minimum wage, overtime pay, and other protections – yet, domestic workers were excluded.

In 1974 the FLSA was amended to include domestic workers, such as housekeepers, full-time nannies, chauffeurs, and cleaners. However, people who were described as “companions to the elderly or infirm” were for some reason excluded from the law. They were compared to babysitters…

I love asking the question: If your elderly family member needed homecare to change herself, use the bathroom, get lifted from the chair to the sofa, and then have her meds dispensed at specific times; would you call the babysitter you call for date night with your spouse? Of course you wouldn’t, so why does the government consider these hardworking homecare providers babysitters? Yeah, I don’t know either.

In 2001 the Clinton Department of Labor finds that “significant changes in the home care industry” have occurred and issued a “notice of proposed rulemaking” that would have made important changes to this bizarre exemption. So, that was good news, right?

It was good news until W came to town. The Bush Administration terminated the revision process shortly after taking office. Thanks, W!

Then comes 2007: the US Supreme Court, in a case brought by New York home care attendant Evelyn Coke, upheld the DOL’s authority to define this exception to the FLSA. In short, that means that this crazy archaic law can be reversed beginning with the DOL, today.

Before we get you to take action on this situation, please keep in mind that these million-plus workers are currently living at near poverty level earning a median income of $17,000 a year. Most of these workers, who both love their work and are good at their work, must have two and three jobs to just make ends meet. With this scenario in play, these workers are quick to burn out or leave their trade entirely. This ultimately comes back to the consumer who often finds it difficult to hire and retain high quality home care services.

This article was originally posted on SEIU”s Blog.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

Outsourced: No Laughing Matter

Wednesday, September 29th, 2010

Sarita GuptaLast week, NBC launched a new show that tries to find comedy in the all-too-real conditions of outsourcing. While the first episode was witty—making light of age-old cultural clashes and stereotypes, there is nothing funny about the reality of outsourcing and the impact it has both on the American worker and their counterparts around the world.

For decades, big companies like the one portrayed in “Outsourced” have been engaged in a global race to the bottom, constantly seeking to maximize their profits by cutting wages, benefits and working conditions.  Corporations have learned to avoid local worker bargaining power by organizing themselves globally and exerting a downward pressure on wages along the supply chain that brings goods from manufacturing to consumers.

Meanwhile, there are currently 15 million unemployed workers in the United States. And the situation is not much better overseas, where many scrape by on substandard conditions and wages that have been outlawed for centuries in the United States.

Going back to the first episode, the angry, American workers who have just been laid off are portrayed only by a stack of bricks thrown through the boss’s window. This is then juxtaposed against the hapless, comedic and cheaper Indian workers who have taken over the call center.

But the bosses are all smiles because by pitting laid-off U.S. workers against workers overseas (and immigrant workers forced to look for work in the United States), companies like the novelty business portrayed in the show get rich while workers around the world, our nation included, struggle to feed their families, access health care and stay in their homes.

Still laughing?

It is hard to find humor in the need for good jobs, fair wages and humane living and working conditions.

So, as not to leave NBC hanging (we at Jobs with Justice are solution oriented, after all), how about another idea for a new NBC sitcom called “Good Jobs, Fair Pay.”  In this innovative new show, U.S. workers would have full and fair employment—all paid for courtesy of a small sales tax on Wall Street, otherwise known as a financial speculation tax.

Workers in other parts of the globe would join U.S. workers in having a standard minimum wage with equal purchasing power.  Multinational corporations would have no incentive of moving from country to country, forcing workers into increasingly lower wages and conditions. And for comedic relief, CEOs would actually pay taxes like the rest of us and share their annual bonus with the workers in the plant.

And the Emmy goes to?

This article was originally posted on AFL-CIO Now Blog.

About The Author: Sarita Gupta is executive director of Jobs With Justice, a national network of more than 40 local coalitions of labor, community, student, and faith organizations, working together to built a broader global movement for economic and social justice.

Mad Men, Madder Women: Have Roles Really Changed in the Workplace?

Tuesday, September 28th, 2010

Vivian DillerLike many baby boomers who regularly watch AMC’s “Mad Men,” I marvel at how accurately they get it: the smoky ambiance, the retro style and the subtleties of how people lived, worked and played in those good/bad ole days. Each Sunday we watch history unfold through the characters who work at the Sterling, Draper, Cooper and Pryce Ad Agency. A recent episode (aired on 9/12/10) particularly intrigued me, as a psychologist and author who writes about women’s issues in contemporary society. The episode brilliantly illustrated a cultural phenomenon that I have called “the beauty paradox.” (see my recent Huffington Post piece by that name), highlighting its origins and continued influence in today’s world.

The beauty paradox is the ambivalence women feel about the role beauty plays in their personal and professional lives. Should or shouldn’t looks matter? Are smart women taken less seriously if they place importance on their appearance? Are sensuality and femininity at odds with ambition and success at work? In “Mad Men” — where women are growing increasingly madder about this burgeoning issue — we get to watch a dramatization of this cultural phenomenon.

This particular episode revolved largely around the two females leads: Joan, the voluptuous secretary and Peggy, the brainy creative director. They engage in a series of interchanges with their male office mates, who range from the crude and chauvinistic to the slowly emotionally evolving partner in charge, Don Draper. The boys view Joan both as an object of desire and derision, openly poking fun at the role she plays in the office. “Joan’s on the desk with boobs on the blotter,” they laugh, underestimating her innate, instinctive intelligence, even if we viewers know better. Peggy is portrayed as smarter and more ambitious, the worker-bee who can hardly relate to Joan. The men devalue her too, as the gal trying to be one of the boys, although they hardly view her, or any woman, as a serious professional threat. When Peggy asks advice of Draper — the only male who seems unfazed by either of these women — he encourages her to take the matter into her own hands. A cultural revolution is beginning.

Here is where it gets complicated. As we see roles start to change and power begin to shift, we also witness an internal battle growing within women themselves. And it is there that “Mad Men” gets it right again. Peggy is shown trying to deal with these bad boys in the professional manner suggested by her boss. Being new to this role, she tries first to give them fair warning about Joan’s true influence in the office, but she gets nowhere. They continue the banter, mocking Joan, “What do you do around here besides walking around like you’re trying to get raped?” Peggy is then faced with an internal debate, one that I believe continues in the minds of many women today: does she side with her own sex against the men’s demeaning attitude toward a fellow female worker? Or does she look the other way in order to side with the men, who clearly dominate the coveted roles at the agency? Mustering up courage, she decides to fire Joey, Joan’s most flagrant abuser and as he leaves, he tells Peggy, “Well, I was wrong about you.” To his fellow ad men, Joey warns “Watch out fellas, the fun is over.” These may be the episode’s most revealing and interesting moments. Clearly, Peggy is hurt by the men’s disappointment in her, but she also feels triumphant as she exercises, for the first time, the authority granted by her boss. She feels, in fact, more like one of the boys than she ever has, excited by the power she senses will grow.

That is, until she shares her courageous act with Joan, who is not at all pleased by Peggy’s defense of her womanhood. From Joan’s perspective, she has only been further devalued, this time by her female cohort whose actions have painfully highlighted Joan’s position — the beautiful secretary who needs to be saved by someone with more male-like power. We, as viewers, also shift from applauding Peggy’s new found consciousness to lamenting any diminution of Joan, a woman we know is capable of defending herself. The beauty paradox is played out between these two women for us all to see. It is a drama surprisingly similar to the one played all too often (albeit, behind closed doors) in women’s lives today.

While the reality of sexual harassment has changed somewhat since the “Mad Men” days, women continue to struggle with how to mesh beauty and sensuality with their professional lives. They struggle with one another — like Joan and Peggy did — and within themselves. They worry if their looks will interfere with their climb up the ladder. They are not sure if overt femininity displays power or weakness. The dilemma still remains; which side to take? Should the Joans of today minimize their beauty in the service of establishing themselves as smart, clever women? Should today’s Peggys let themselves enjoy being a girl and embellish their femininity or will that put them at risk of losing out in their race to the top?

Joan was on to something in that elevator when she told Peggy she would not be seen as a heroine so much as just “another humorless bitch.” The Women’s Movement was supposed to resolve this dilemma as the glass ceilings were being broken at Sterling, Draper, Cooper, Pryce and elsewhere. But the truth is, women continue to struggle with this issue in spite of all the crashing and breaking they’ve done over the past 50 years. We may have a female Secretary of State. Women sit as judges on the Supreme Court. There are Peggy Olsens all over the media world. Yet still, being female, attractive and powerful at the same time remains a complicated equation. The title of AMC’s hit series may be “Mad Men,” but in many ways the show is about its women and the evolution of their revolution.

Oh, and let’s not forget Betty Draper, suffering out there in stagnant suburbia. Her unhappy, stay-at-home mother role is about to undergo its own revolution. Fast forward (which means an episode sure to be coming soon) to another Betty, with the last name Friedan. She will give an identity to the “no name illness,” being increasingly experienced by the women of “Mad Men’s” era. And from what women tell me today, I’m not sure we have yet found a full cure for this cultural malady. Your thoughts?

This article was originally posted on The Huffington Post

About The Author: Vivian Diller, Ph.D., is a psychologist in private practice in New York City. After completing her Ph.D. in clinical psychology, she went on to do postdoctoral training in psychoanalysis at NYU. She has written articles on beauty, aging, eating disorders, models, and dancers, and served as a consultant to a major cosmetic company interested in promoting age-related beauty products. Her book, “FACE IT: What Women Really Feel As Their Looks Change” (2010), written with Jill Muir-Sukenick, Ph.D. and edited by Michele Willens, is a psychological guide to help women deal with the emotions brought on by their changing appearances. “Today” co-host Hoda Kotb called it “a smart book for smart women.” For more information, please visit www.VivianDiller.com.

Efficient At Your Job, Inefficient With Your People

Monday, September 27th, 2010

Image: Bob RosnerEfficiency. If today’s workplace has a holy grail, chances are that it is summed up by the “E” word. Okay, I know what some of you are thinking, what about profitability?

The days of being “inefficiently” profitable are over. If there is a “location, location, location” like mantra for being successful today, efficiency is undoubtedly part of the equation.

Unfortunately there is one place where efficiency must take the back seat, with our people. Why?

Because people are inherently inefficient. We have to take time to earn their trust, to get to know them to appreciation their subtle contributions.

I’m born again when it comes to appreciating that people are a powerful tool, but like all powerful tools, it takes time to learn how to use them properly. Loads and loads of time: coffee breaks, drives to offsite meetings, email exchanges, furtive glances during meetings, all that and much more.

With my new job I’ve been working the halls. Getting to know people and learning from them what works and what doesn’t. It’s been insanely helpful. Heck it’s even been fun.

Back to the “E” word, so many of us are in such a rush that we increase the time, odds and difficulty factor for our projects by taking the people we must work with for granted. And then we get sabotaged or just plain struggle.

The key is to see your time bonding with people as an investment, an investment for you, for your company and for your desire to accomplish something at work.

If you’re a leader, here is a simple tactic to use. Next time someone comes to you with a problem don’t seek to be efficient, don’t just tell them what to do. Ask, “What have you tried?” “What worked?” “What didn’t work?” And the one we all overlook, “What can I do to help?”

You’ll learn something. So will they.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Reducing Unemployment with Work-Sharing

Friday, September 24th, 2010

CEPR LogoWith news that jobless claims are up, Dean Baker points out that “employers are already hiring more than 4 million workers a month. The problem is that roughly 4 million workers a month are also leaving their jobs, half voluntarily and half involuntarily.”

So while it’s important to reduce jobless claims, the unemployment rate would also be lowered by working on the other side of the jobs equation — by preventing some of the 2 million layoffs that happening every month.

This is where the idea of work-sharing comes in.  As the NY Times noted in a recent article on Germany’s quick rebound from the recession,”A vast expansion of a program paying to keep workers employed, rather than dealing with them once they lost their jobs, was the most direct step taken in the heat of the crisis,”

Ezra Klein picked up the article earlier this week, saying that “saving jobs makes a lot of sense, and that’s why it’s so crazy that we’re going to allows states to fire hundreds of thousands of public-sector workers.”  He noted that Tyler Cowen also approves of Germany’s successful strategy: “In a highly specialized modern economy, it is much easier to prevent jobs from being destroyed than to create them again.”

As it turns out, the bipartisan duo of Dean Baker of CEPR and Kevin Hassett of AEI have been promoting similar work-sharing concepts here the U.S.  In this joint op-ed in the LA Times, they explain the good reasons to use work-sharing to create jobs and avoid layoffs.

In a nutshell, Dean’s work-sharing tax credit proposal would pay employers to keep workers’ pay constant while reducing hours, which would reduce layoffs as well as incentivize new hiring.  So, for example, rather than laying off 10% of her employees, an employer would reduce all of her workers’ hours by 10% and get a tax credit to keep their pay whole.  Dean ‘s rough estimate is that this tax credit would create a net total of 1.3 and 2.7 million jobs.

It would also help state and local governments, since the credit is available to any employer, whether it operates in the private, public, or non-profit spheres.  In this way, the widespread adoption of the credit could go a long way towards helping cash-strapped states and localities limit their public sector employee layoffs and furloughs.

And if Baker, Hassett, Klein and Cowan aren’t enough to convince you, last fall in the NY Times both Paul Krugman and Mark Zandi wrote that work-sharing is deserving of consideration.

There are work-sharing bills in Congress now, with Rep. Conyers sponsoring Dean’s employer tax credit idea, and Sen. Reed and Rep. DeLauro proposing an expansion of current state-level work-sharing unemployment programs nationwide (currently only 17 states have such programs).

This article was originally posted on CEPR Blog.

About The Author: Nicole Woo has worked on domestic hunger policy as the Associate Director of the New York City Coalition Against Hunger and as a Senior Policy Analyst at the Food Research and Action Center. She also has worked as a fundraiser and director of administration for several non-profit organizations in New York City and Washington, DC. She received her B.A. from Harvard University, where she concentrated in Government.

“Pajama Workforce”: Insult or Badge of Honor?

Thursday, September 23rd, 2010

Wayne TurmelRemote workers get called a lot of things, from “telecommuters” to “lucky so and so’s.” Recently, an article in Talent Management magazine gave them the label of “Pajama Workforce” — because the perception of many is that people can do that work without even getting dressed, or can pretty much disregard the rules of work place decorum (not to mention hygiene) that those who schlep into the office must adhere to.

This perception cuts two ways: either those who work remotely are not shackled by the normal conventions of the traditional office or workplace (this is the ” death to the necktie and all who wear them!” school of thought) or they are undisciplined and slothful (”they’re at home in their bunny slippers while we do the real work”). As with most such polarities, neither is entirely true — or inaccurate.

In defense of the pajamas

Different workers have different work styles, and much of what’s appropriate depends on the work being done. If the only thing you’re measuring is the output, it shouldn’t matter if the person doing the work is in their pajamas, a three-piece suit or a smoking jacket and ascot, as long as the work gets done on time and at a high level of quality.

Another reason managers need to worry less about what their people are wearing is that remote workers tend to spend more time actually working. This includes attending conference calls at all hours of the day or night to accommodate timezones and teammates scattered hither and yon. If you’re going to drag me out of bed at 5 a.m. to be on a call with the plant in Dusseldorf, don’t expect me to be showered. In fact, you’ll be lucky if I’ve had enough coffee at that point to even be functional.

Studies suggest that remote workers put in more actual productive hours than people who commute into an office or central location, so get off our backs and worry about more important things, like fixing the VPN so I can actually get some work done.

In defense of shirts with buttons

Of course, perception is often the better part of reality, and if you’re wearing a Motley Crue T-shirt on a video conference with your VP of Sales, odds are there’s some perception there that won’t work to your advantage. Your communication style and the messages you send still matter, and in some ways they matter even more because your colleagues can’t see first hand how hard you work, so your opportunities to create strong positive impressions are limited.

Moreover, everyone discovers what works for them, and habits help dictate behavior. For example, whether they can see me or not, on days when I’m spending time consulting with customers or  delivering training, I dress in what I refer to as my “big-boy clothes.”  The routine of showering, grooming and dressing like a professional helps put me in the right frame of mind to act like one. Sure, it’s a mental trick I pull on myself, but it works for me. (Be honest — without some level of denial and self-delusion, most of us would never get out of bed in the morning.)

It often takes a while for remote workers — especially those who are new to it– to find what works for them. As managers, we need to check in with our people to see how they’re coping. Are they finding a work style that works for them? What are the best practices that will help them strike the balance between the freedom and comfort of working remotely and the routine and professionalism that you expect in their work? There are plenty of slackers in Armani suits — and a lot of hard workers in bunny slippers.

This article was originally published on Bnet.com’s Connected Manager.

About The Author: Wayne Turmel is obsessed with helping organizations and their managers communicate better, even across cyberspace. He’s a writer, a speaker, the president of Greatwebmeetings.com, and the host of one of the world’s most successful business podcasts, The Cranky Middle Manager Show, where he helps listeners worldwide deal with the million little challenges and indignities of being a modern manager. His book 6 Weeks to a Great Webinar: Generate Leads and Tell Your Story to the World is the leading web presentation book on Amazon.com. Follow him on Twitter @greatwebmeeting

Tenth Circuit Decides Important Age Discrimination Case

Wednesday, September 22nd, 2010

ellen simonA Boot To Pretext Plus, A Favorable Interpretation Of Gross, And More Age Discrimination Gems From The Tenth Circuit

For anyone interested in representing employees in age discrimination cases, the recent case of Jones v. Oklahoma City Public Schools from the Tenth Circuit Court of Appeals is a must read.

The case is loaded with great stuff including a helpful reading of the Gross case, an affirmation of the use of the McDonnell Douglas burden shifting framework in ADEA cases, a pro-employee interpretation of adverse action and a much needed kick in the pants to pretext plus which was resurrected from the dead by the district court.

What Happened In The Case

Judy Jones began working as a teacher for the Oklahoma City Public Schools (“OKC”) in 1969. She then served as an elementary school teacher for approximately fifteen years. In 2002, Jones was promoted to the position of Executive Director of Curriculum and Instruction.

In 2007, a new superintendant decided to reorganize OKC’s executive team. In particular he decided that Jones’ position could be eliminated and that her duties would be absorbed by other directors.

Jones was reassigned as an elementary school principal. At first she retained her previous salary level though her vacation benefits were affected immediately.

After Jones completed her first year as principal, her salary was decreased by approximately $17,000. The pay cut  reduced her retirement benefits and her daily pay rate was also reduced.

One month after Jones’ reassignment, the superintendant decided to create a new Executive Director of Teaching and Learning position. The job description and responsibilities for this new position were virtually identical to those of Jones’ former position of Executive Director of Curriculum and Instruction.  The new position was filled with an individual who was forty seven years old. Jones was nearly 60 at the time.

The evidence showed that funding for Jones’ position stayed on the books for the 2007-2008 fiscal year, and that her former staff continued to work in the department both before and after the position of Executive Director of Teaching and Learning was created.

In addition, several of her fellow OKC directors, including the interim superintendant, made age-related remarks to Jones regarding her retirement plans.

Jones filed suit in the District Court for the Western District of Oklahoma alleging that that OKC violated the Age Discrimination in Employment Act (ADEA) when it demoted her to the position of elementary school principal.

Quoting Reeves v. Sanderson Plumbing Products, Inc. the district court held that this was a case where the plaintiff established a prima facie case of age discrimination and set forth evidence to reject the defendant’s explanation for its decision, but “no rational factfinder could conclude that the action was discriminatory.”

Although the district court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence to show that age played a role in the reassignment decision.” Summary judgment was granted against Jones. She appealed.

The Tenth Circuit Court Of Appeals Reverses

Interpreting “But For” Causation Under Gross v. FBL Financial Services, Inc.

The first issue addressed by the Court involved an interpretation of the Supreme Court’s Gross v. FBL Financial Services, Inc. 2009 decision and it’s an important holding for anyone litigating a case under the ADEA.

The ADEA prohibits an employer from discriminating against an individual in employment “because of such individual’s age.” The statute, which does not define “because of”, was interpreted in the Gross decision to require “but for” causation.

OKC contended this required a plaintiff to prove that her employer was motivated solely by age discrimination when making an adverse decision. In other words, “but for” causation under the ADEA means that age must have been the only factor in the employer’s decision making process.

The Tenth Circuit rejected the argument. It stated:

The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA (citations omitted). Moreover, we have concluded that his causal standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted)

Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’ (citations omitted)

Gross does not hold otherwise … and does not place a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.

McDonnell Douglas Applies To the ADEA

Under the McDonnell Douglas framework of proving discrimination claims, a plaintiff may survive summary judgment by proving circumstantial rather than direct evidence of discrimination. To do that:

  • the plaintiff must first demonstrate a prima facie case of unlawful discrimination
  • if she succeeds at this first stage, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason the adverse employment action
  • once the employer advances its reason, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual

Most circuits have long held that plaintiffs can use the McDonnell Douglas three step analysis to prove age discrimination. The problem is that Gross left open the question of whether the McDonnell Douglas framework was applicable to the ADEA.  The Court addressed the issue. It stated:

Although we recognize that Gross created some uncertainty regarding burden-shifting in the ADEA context, we conclude that it does not preclude our continued application of McDonnell Douglas to ADEA claims. .. While Phillips (citation omitted) is not precedential, we agree with its reasoning and join all of our sibling circuits that have addressed this issue. (citations omitted)

In sum, the Tenth Circuit joined the majority of other circuits, in holding that McDonnell Douglas applies to ADEA cases which permits proof of discrimination through a framework of inference and circumstantial evidence.

Jones Suffered An Adverse Action

In applying McDonnell Douglas to the case, Jones was required to prove that:

1) she was a member of the protected class

2) she suffered an adverse employment action

3) she was qualified for the position at issue and

4) she was treated less favorably than others not in the protected class

OKC did not dispute that Jones was protected by the ADEA, qualified for her former position, and that she was treated less favorably than others not in the protected class.

It contended that she did not suffer an adverse employment action because she remained in a job with similar responsibilities and a daily rate that was almost exactly the same as her per diem rate as a director. Therefore, according to the defense, she had no case.

The Court rejected this argument pointing to evidence of:

  • a $17,000 decrease in salary the following year after her reassignment
  • an immediate reduction of vacation benefits
  • a reduction of retirement benefits

The Court also noted:

Although OKC argues that Jones did not experience a demotion, she certainly lost professional prestige and fell to a lower position in the district’s hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay is not sufficient to constitute an adverse employment action is simply incorrect. All told, the record in this case conclusively shows that Jones suffered and adverse employment action and proved a prima facie case of age discrimination.

The District Court Erroneously Applied A “Pretext Plus” Standard

In discrimination cases which use the McDonell Douglas framework, once the employer advances its reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s proffered reason was pretextual – in other words, not believable or false.

As explained by the Court:

A plaintiff produces sufficient evidence of pretext when she shows such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that her employer did not act for the asserted non-discriminatory reasons.

There was a period of time in which some courts required plaintiffs using the McDonnell Douglas framework to show pretext plus produce additional evidence of discrimination in order to avoid summary judgment. In 2000, the Supreme Court squarely rejected the so called “pretext plus” standard in Reeves.

As the Court noted:

Reeves expressly held that ‘a plaintiff’s prima facie case [of discrimination] combined with sufficient evidence to the find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’

No additional evidence is necessary because proof that the defendant’s explanation is unworthy of belief is simply one form of circumstantial evidence that is probative of intentional discrimination.

In this case, OKC proffered two reasons for Jones reassignment:

  • the superintendant’s reorganization of IKC’s executive team was done in a revenue ne-neutral fashion
  • the superintendant’s believed that Jones former position contained only narrow duties that could be absorbed by other directors

Jones produced evidence of pretext:

  • her former position stayed on the books for the 2007-2008 fiscal year
  • staff in her department stayed employed in the same positions after her transfer
  • a new position, with duties just like her former position, was created shortly after her transfer

She also produced evidence of discrimination which included age-related comments by three executive directors all involved in the reassignment decision.

The district court concluded that Jones had created only a weak issue of fact as to whether the employer’s reason for its decision was untrue and that there was abundant evidence that no discrimination had occurred.

The Court of Appeals reversed. It held that Jones’ evidence was sufficient to satisfy McDonnell Douglas’s third step and that the district court’s grant of summary judgment was improper.

According to the Court, the district court:

  • “improperly favored OKC’s version of the facts” when it was “required to view the facts in the light most favorable to Jones.”
  • refused to consider Jones evidence of discrimination which included age-related comments by three executive directors all involved the reassignment decision
  • erroneously applied “pretext plus.”

As the Court stated:

Rather than properly applying Reeves, the district court erroneously held Jones to the discredited pretext plus standard. The court faulted Jones for not presenting ‘additional evidence that age was a determining factor in her reassignment. But after showing that OKC’ s reasons for her transfer were pretextual, Jones was under no obligation to provide additional evidence of age discrimination. (citations omitted)  Accordingly, . . . we reverse the district court’s grant of summary judgment and REMAND for further proceedings.

Take Away

This case covers so much territory on the ever changing battlefield of age discrimination law. It should be very helpful to those facing arguments under Gross which suggest that plaintiffs in age discrimination cases should be held to a higher or different standard of proof than employees in other kinds of discrimination cases.

It gives a much needed reminder that an application of “pretext plus,” even when disguised in a different form, is reversible error.

The case also serves as an admonition to courts to refrain from the all too common practice of crediting an employer’s version of facts over an employee’s instead of  viewing the facts in the light most favorable to the employee opposing summary judgment.

Even though Reeves has been around for ten years, it seems that some just don’t get it, so thanks to the Tenth Circuit for this very cogent reminder.

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

China’s Currency Manipulation: Flipping Off America

Tuesday, September 21st, 2010

Leo GerardChina is disrespecting America.

The Asian giant is an international trade outlaw, and U.S. manufacturers and workers are its crime victims.

China illegally subsidizes its export industries and unlawfully manipulates its currency. That kills U.S. industry and destroys U.S. jobs. Earlier this year, the Obama administration asked China nicely to allow its currency value to float up naturally on international markets. On June 19, China said it would.

And then it didn’t.

That’s flipping the bird at America.

Before China’s June 19 promise, bipartisan groups of lawmakers in the U.S. House and Senate proposed legislation that would force the U.S. Treasury Department to even the score and to call China out for what it is: a currency manipulator. Hearings on the bills are being conducted this week.

Pass the legislation. It’s time for America to flip the bird back.

Negotiation and threats have failed to produce a sustained, substantial currency float by China. Now, the Chinese currency, the renminbi, is undervalued by as much as 40 percent, a figure accepted by conservatives like C. Fred Bergsten of the Peterson Institute for International Economics. Even the International Monetary Fund managing director said the currency is undervalued.

China simply denied it. In March, the Chinese premier, Wen Jiabao, said he did not believe the renminbi was undervalued. That’s flipping off the world.

It works like this: China prints renminbi to buy billions of U.S. dollars, which makes them appear more desired and valuable, and the renminbi, by contrast, less valuable. That undervaluation of the renminbi acts as a subsidy for Chinese exports, artificially making them as much as 40 percent cheaper when sold in the U.S. Conversely, it acts as a tax of as much as 40 percent on American-made goods sold in China.

This dynamic contributed significantly to the rise of manufacturing in China. Earlier this year, China surged past Japan to become the world’s second-largest economy. And it contributes significantly to America’s massive trade deficit. The gap in July was $42.8 billion, more than half of which — $25.9 billion — was a result of trade with one country – China.

China’s rapid economic growth has ended poverty for millions of its workers.  Here in the United States, however, China’s flouting of international trade law is destroying the lives of millions of workers. The Economic Policy Institute estimates that 2.4 million American jobs have been lost or displaced since 2001 as a result of the trade deficit with China. American workers celebrate their Chinese counterparts’ improved quality of life, but they condemn the government of China for accomplishing that with beggar-thy-neighbor trade practices.

Earlier this year, it briefly looked like threats would prompt China to act. In March, a bipartisan coalition of U.S. Senators introduced legislation specifying the factors necessary to label a country as a currency manipulator and detailing American reprisals. And in April, the Treasury Department delayed its report identifying countries that manipulate currency rates, suggesting that it was ready to take on China.

China appeared to respond to that pressure in June. It announced it would allow the renminbi to float toward its real value on the open market. The Treasury Department backed off, omitting China from its list of currency manipulators in July.

China then permitted the value of the renminbi to rise less than one percent. One percent. When it’s as much as 40 percent undervalued. That’s flipping the bird at America. Big time.

Still, America didn’t react.

On Aug. 25, the Commerce Department announced 14 new measures to crack down on trade violations, such as ending certain exemptions from duties.

It did not, however, mention currency manipulation.

Dan DiMicco, CEO at Nucor Corp., the largest U.S. steelmaker, said the 14 measures are important, but the problem with China won’t be resolved until the United States takes on currency undervaluation. Here’s what he said:

“As long as we continue to let them get away with it, they’ll keep doing it.”

Six days later, in a trade case filed by the U.S. Aluminum Extrusions Fair Trade Committee, a coalition of domestic manufacturers of aluminum extrusions and the USW, the Commerce Department again squirmed out of dealing with currency manipulation.

Commerce imposed import duties on Chinese aluminum companies because China unfairly subsidized $514 million in aluminum exports to the U.S. in 2009. But Commerce refused to investigate the Fair Trade Committee’s evidence that China’s currency manipulation functions as an additional illegal export subsidy.

Sen. Chuck Schumer of New York, a sponsor of currency manipulation legislation, said afterward:

“The Commerce Department made its finding while still managing to ignore the elephant in the room, which is China’s currency manipulation.”

Commerce and Treasury have decided the proper response to China flipping off America is averting their eyes.  See no evil.

Yesterday Japan followed China’s lead. It bought dollars and sold yen, decreasing the value of yen and increasing the value of dollars. This, the New York Times explained, was “a bid to protect its export-led economy.” That’s exactly what China is doing.

It’s a very public show of contempt for international regulations and for American citizens.

Normally, Americans don’t respond passively to contempt. Be normal, America.

About The Author: Leo Gerard is the United Steelworkers International President. Under his leadership, the USW joined with Unite -the biggest union in the UK and Republic of Ireland – to create Workers Uniting, the first global union. He has also helped pass legislation, including the landmark Canadian Westray Bill, making corporations criminally liable when they kill or seriously injure their employees or members of the public.

Crash, My Life This Week

Monday, September 20th, 2010

Image: Bob RosnerThis week I was in two accidents in 48 hours. My car got hit in the rear and in the front and probably won’t emerge from the shop for days. And it didn’t ruin my week. Let me tell you why and what this has to do with the workplace.

On Monday I was driving to pick up my daughter at school. Stopped at a traffic light suddenly a woman rammed into the back of my car. I collected my thoughts for a moment and then got out of my car. Greeting me was the woman who hit me saying, “I’m so sorry. It was all my fault.”

All I needed was one more bit of information to hit the accident trifecta, to find out that she was insured.

Yes, yes and yes.

My hope for humanity was revived when the woman who hit my car did something that hardly anyone does anymore, accept responsibility.

A scant 48 hours later I was driving to pick up my kid at school. Suddenly out of nowhere a car flashed across the intersection and I t-boned it. Badly damaged both the front and back passenger side doors. And my bumper was only hanging on by a thread.

I sat in my car in total disbelief for a minute. Then I was greeted by a woman saying, “I’m sorry. It was all my fault.”

But this time it was a bit more complicated. She gave me her phone number and insurance information at the scene but it wasn’t the correct phone number. I sweated for an hour and then decided to call her insurance company. They told me that the policy number she did give me was correct and that I could file the report.

A friend told me that he saw a study that said that 90% of people change their story after an accident. But thankfully I ran into the 10% of people who tell the truth and accept responsibility.

The trouble is that I think far more people are like these women than we realize. People mostly can be trusted to do the right thing, but that doesn’t make for great TV or radio or rap songs or novels. But that doesn’t make it any less true.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Crossing the Line: The Ninth Circuit’s Guidelines for Flirting at Work

Friday, September 17th, 2010

Patrick KitchinAfter months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion.  Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.”  Everyone at work thought the situation was hilarious:  a widower turning down the explicit sexual advances of an attractive woman.  But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked.  And, does Title VII impose different standards on men and women in sexual harassment cases?  Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII.  (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability:  (1) economic quid pro quo; or (2) hostile environment.

In a typical case of quid pro quo sexual harassment, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee 682 F.2d 897 (11th Cir. 1982). “Have sex with me,” says the supervisor, “and you’ll get that promotion.”

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against:  discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories.  To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him.  She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual.  “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2:  Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome?  The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker.  Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, what did the Ninth Circuit think about this digression into cultural stereotypes?  Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything.  “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.”  Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary.  Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments.  Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well.  To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations.  “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3:  Severe or Pervasive

Title VII is not a “general civility code” either.  It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination.  In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however.  But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker?  What if this conduct was part of an attitude that permeated the workplace with gender bias?  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.  So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa.  The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings.   The female employee’s conduct obviously was sexual.  And Lamas made it clear that he wanted the conduct to stop.  The conduct was pervasive and had a serious negative impact on conditions at work.  Lamas’s job performance suffered.  When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.  “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

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