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Archive for the ‘Gender Discrimination’ Category

Facebook’s gender bias goes so deep it’s in the code

Wednesday, May 3rd, 2017

A hurricane has been brewing at Facebook.

After years of suspicion, a veteran female Facebook engineer decided to evaluate what if any gaps there were in how female and male engineers’ work was treated.

She did it “so that we can have an insight into how the review process impacts people in various groups,” the Wall Street Journal learned exclusively.

Her analysis, conducted in September, found that female engineers’ work was rejected 35 percent more than their male counterparts based on five years of open code-review data. Women also waited 3.9 percent longer to have their code accepted and got 8.2 percent more questions and comments about their work.

Only 13 percent of Facebook’s engineers are women, 17 percent across all tech roles.

The identity of the engineer is unknown, but her findings sparked a whirlwind discussion of gender bias inside the social network after it was released last year. A group of senior Facebook officials led by Facebook’s head of infrastructure, Jay Parikh, conducted their own review of the engineer’s analysis and concluded that the rejection gap was because of the engineer’s rank rather than gender.

Facebook confirmed Parikh’s findings, calling the engineer’s data incomplete, the Wall Street Journal reported. Parikh said in an internal report revealing his analysis that while the gender component wasn’t “statistically significant” it was “still observable and felt by many of you,” and urged employees to take the company’s voluntary implicit bias training.

The report is the latest incidence of the tech industry’s rampant diversity and inclusion problem. In recent years, tech companies such as Facebook, Google, and Yahoo have tried to tackle this by releasing annual diversity reports, which have shown marginal improvements in racial and gender disparities.

But Silicon Valley’s gender problem goes beyond the numbers. Facebook is the second major tech company this year to have potentially damning evidence of gender bias exposed by an employee. Earlier this year, former Uber engineer Susan Fowler detailed her experiences with sexual harassment and stalled career path at the company. Fowler’s story ballooned into a media firestorm, one that Uber still hasn’t recovered from.

Neither of Facebook’s analyses and methodologies have been independently verified, but the preliminary results and Facebook’s response fall in line with how companies have previously dealt with allegations of sexism. Past surveys and studies have found that men in tech often don’t think there’s a gender problem in the industry. And when women report incidents of sexual harassment as culturally pervasive, men have said they were unaware.

Hopefully, Facebook’s voluntary bias training, which stresses bias’ impact and how to get rid of it, will become mandatory.

This post appeared originally in Think Progress on May 2, 2017. Reprinted with permission.

Lauren C. Williams is the tech reporter for ThinkProgress. She writes about the intersection of technology, culture, civil liberties, and policy. In her past lives, Lauren wrote about health care, crime, and dabbled in politics. She is a native Washingtonian with a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.

John Kasich explains the gender pay gap: 'Do you not have the skills to be able to compete?'

Sunday, October 11th, 2015

Laura ClawsonRest easy, women, and especially women of color: If you’re being paid less than your male coworkers, it’s only because you’re worth less. Ohio governor and lower-second-tier Republican presidential candidate John Kasich got a question about his state’s gender pay gap during his appearance at the U.S. Hispanic Chamber of Commerce, and …

“Well, a lot of it is based on experience,” Kasich replied. “A lot of different factors go into it. It’s all tied up in skills. Do you not have the skills to be able to compete?”Seeming somewhat shocked at this response, Palomarez asked, “Are you saying women workers are less skilled than men?”

“No, no, of course not,” Kasich said. “I mean, a woman is now running my campaign, and she’s doing a fantastic job. The head of our welfare reform office is a woman. I understand that if you exclude women, you’re not as effective.”

No, no, of course I didn’t mean what I said. That kind of answer must be contagious, as much as we’re hearing it from Republicans lately. Alice Ollstein helpfully offers some context on just how much Kasich didn’t mean that women deserve lower pay:

In Kasich’s own governor’s office, women workers earn nearly $10 an hour less than male workers, according to an Associated Press investigation published in 2014. That gap was just $3.99 an hour under Kasich’s predecessor, Democrat Ted Strickland.

So apparently Kasich understands that if you exclude women, you’re not as effective—but he’s also happy to underpay them. Gee, there’s a giant step toward equality.

This blog was originally posted on Daily Kos on October 7, 2015. Reprinted with permission.

About the Author: The author’s name is Laura Clawson. Laura has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

Twitter Regrets Throwing Frat-Themed Employee Party

Tuesday, July 28th, 2015

Twitter threw a summer soiree to rival all soirees Tuesday. The microblogging site hosted a college-frat-party themed happy hour for its San Francisco employees complete with beer pong, a keg, those iconic red Solo cups synonymous with underage drinking, and a proud banner that read “TW?TT?R ?R?T H?VS?.”

News of the party spread like wildfire after a female employee posted a picture to a women in technology group on Facebook. Fraternities and greek culture have become synonymous with sexism in the tech industry, which often referred to as the brogrammer culture that caters to white males and often excludes — or is hostile toward — women and people of color.

View image on Twitter

Twitter has since apologized for the party as spokesman Jim Prosser told Fusion, “This social event organized by one team was in poor taste at best, and not reflective of the culture we are building here at Twitter. We’ve had discussions internally with the organizing team, and they recognize that this theme was ill-chosen.”

The “ill-chosen” party theme marks the latest in a series of missteps regarding the company’s handling of gender-based issues — most notably a gender discrimination lawsuit. Former software engineer Tina Huang claimed Twitter’s promotion process was biased toward advancing male employees over female employees up for the same job. Women make up less than a third of all Twitter employees — only 10 percent in tech jobs — and hold 21 percent of management positions, according to the company’s 2014 diversity report.

Twitter has been at the center of the industry’s perceived ineptitude when dealing with issues of diversity internally and when it comes to implementing policies for issues that predominantly affect marginalized communities. The company has made strides to improve its policies and image by making it easier for users to promote rape and death threats, and other instances of online harassment.

But the company continues to struggle with internal diversity efforts, namely its hunt for a new CEO. After Dick Costolo stepped down in June, Twitter co-founder Jack Dorsey took over as interim CEO while the company searches for a permanent, full-time replacement. (Dorsey is also the CEO for Square, an online payment system.)

So far, the preliminary candidate pool doesn’t reflect users call for more diversity. The early list of hopefuls don’t include any women or people of color. Twitter has only one female board executive, Marjorie Scardino, who was hired in 2013.

This blog was originally posted on Think Progress on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is Lauren C. Williams. Lauren C. Williams is the tech reporter for ThinkProgress with an affinity for consumer privacy, cybersecurity, tech culture and the intersection of civil liberties and tech policy. Before joining the ThinkProgress team, she wrote about health care policy and regulation for B2B publications, and had a brief stint at The Seattle Times. Lauren is a native Washingtonian and holds a master’s in journalism from the University of Maryland and a bachelor’s of science in dietetics from the University of Delaware.

It Takes More Than ‘Leaning In’ To Lift Wages for All Women

Tuesday, May 19th, 2015

Emily-Foster_avatarAccording to a fall 2014 poll by Pew Research center, 77 percent of women and 63 percent of men agree that “this country needs to continue making changes to give men and women equality in the workplace.” Although women hold 49.3 percent of jobs, they only earn 78 cents for every dollar a man earns. It’s even less for women of color – Hispanic women earn 54 cents for every dollar white men earn, and African-American women earn 64 cents for every dollar white men earn.

The gender wage gap exists because of policies that fail to benefit American workers, and instead benefit their bosses.

On Wednesday, May 13, 2015, the Economic Policy Institute in Washington, D.C. held a panel to explore the necessity of giving women meaningful equality in the workplace. Panelists discussed how structural differences in business regarding small employers and part-time workers keep the gender pay gap strong.

Panelist Caroline Fredrickson, author of “Under the Bus: How Working Women are Being Run Over” emphasized how certain views about how women should advance themselves in the workplace, such as those Silicon Valley executive Sheryl Sandberg wrote in “Lean In,” might work for professionals in full-time jobs, but do not address the majority of America’s working women. “There’s nothing wrong with ‘leaning in,’ but it doesn’t address the problems that many women face in the U.S,” she said.

In 2013, Sandberg rallied professional women across the country to “Lean In” and push for success in their personal and professional lives. Sandberg argued that women should speak up and have meaningful conversations with employers regarding paid leave, affordable child care, and other crucial benefits.

But “leaning in” cannot fix the structural problems that need to be addressed through policy changes. The gender wage gap does not exist because not enough women are “leaning in,” but because of a system that allows part-time workers to be denied benefits and to be discriminated against by small employers, and that does not pay living wages. Part-time workers, members of racial and ethnic minorities, and mothers are among the highest numbers of women being failed by our system.

“Farm-workers, temps, small business workers, part-time workers, etc.” are often left behind by policies that allow businesses to exploit workers with minimal pay and little to no benefits, Fredrickson noted. In her introduction to “Under the Bus,” Fredrickson wrote, “Few of us are aware of how the labor and employment laws leave out so many women.”

Part-time work is a job category dominated by women. In 2014, almost 33 percent of all employed women over the age of 16 in the United States were classified as part-time workers. According to Frederickson, “8 million of these workers are involuntary,” meaning, that no full-time positions are available to them.

Most workers in part-time jobs receive minimal to no benefits. It is also common for businesses to withhold hours from employees to exempt workers from benefit status. Paid sick leave, vacation days, and health insurance are typically unheard of.

The role of motherhood also affects the workplace. According to the Department of Labor, The labor force participation rate for single mothers with children under 18 years of age was 74.2 percent in 2013, and 67.8% for married mothers (spouse present) with children under 18.

Even with high numbers of mothers participating, mothers face some of the biggest hardships in the workforce. At Wednesday’s discussion, Kristin Rowe-Finkbeiner, CEO of MomsRising.org noted, “Being a mom is a greater predictor of job discrimination than being a woman.” Becoming a mom and having a baby is also the number one cause of “poverty spells,” where income dips below what is necessary for basic living expenses, she said.

It is impossible for women to “lean in” if policies do not keep businesses from unfair labor practices. The United States needs to implement checks on our employment policies to protect workers and close the wage gap.

During the panel, Brigid Schulte, journalist for The Washington Post, stated, “the more I learn about how our work policies are structured, the more I learn that they don’t work for anyone.”

The 1993 Family and Medical Leave Act allows eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. However, according to Fredrickson, “it only covers a very small number of employees – over 40 percent don’t qualify, and most of those who don’t are young women and women of color.”

The U.S. also lacks policies to protect working mothers. Today, the U.S. is the only developed country that doesn’t guarantee paid maternity and parental leave. Currently, 51 percent of new mothers receive no paid leave whatsoever.

Affordable childcare is also a huge problem; daycare can cost even more than college. Rowe-Finkbeiner explained the case for affordable childcare, stating, “For every dollar we spend on high quality childcare, we get $8 back – and for high-risk children, we get $20 back.”

Paid leave is also a crucial benefit that many cannot receive. Four in ten private-sector workers and 80 percent of low-wage workers cannot earn a single paid sick day. Paid sick days would ensure that women would not lose pay or their jobs because they or their child fell ill.

Even if more policies are put into place for paid leave, affordable childcare and paid sick days, one underlying force will continue to affect worker prosperity and the wage gap: the need for a living wage.

Valerie Wilson, director of the Economic Policy Institute’s Program on Race, Ethnicity, and the Economy stressed that “raising pay for all workers” would make a significant difference in the gender wage gap. Women currently make up two-thirds of workers in low-wage jobs. By implementing a living wage, 15 million working women would have a greater ability to support themselves and their families.

There is still a gender wage gap in 2015 because of a lack of policy measures to protect working women. Paid leave, affordable childcare, and paid sick days are all necessary benefits that would help to close the gap. Because women are disproportionately represented in part-time and minimum wage work, a living wage is also a necessity. Until fairer work policies are put into practice, the gender wage gap will remain persistent.

Rowe-Finkbeiner summed up America’s gender gap issue: “We’re living in a ‘Modern Family’ nation with ‘Leave it to Beaver’ policies.”

This blog was originally posted on Our Future on May 14, 2015. Reprinted with Permission.

About the Author: The author’s name is Emily Foster. Emily Foster is a regular contributor to Our Future.

Women Who Edit Magazines Make $15,000 Less Than Men

Thursday, September 27th, 2012

The latest numbers from Folio about who makes what in the world of magazine editing reaffirm what we already know: women make less money than men in comparable positions. Male editors-in-chief or editorial directors of magazines make $100,800 to women’s $85,100. For executive editors, men pull down $84,200 to women’s $65,700. And for senior editors, men make $63,600 to the $58,200 women take home in salary. What those numbers don’t tell us is how to start rectifying those pay gaps, which, as Folio editor Bill Mickey told The Atlantic Wire, start to seem inevitable: “We don’t have any further insight into that number, except that the gap has historically been about the same and I believe aligns with national trends across other industries.” We’ve collected data on gender and pay and gender and bylines for a long time. But if we want things to change, we need to start cross-referencing these numbers to see who’s doing worse, who’s doing better, and why.

Folio’s numbers, for example, break out pay not just by gender, but by whether the editors at business-to-business publications, consumer magazines, and trade publications, where they are geographically, by size of publication, and by years in the business. Looking at the numbers by gender alone are discouraging—they make it look like everyone is doing badly. But if we started cross-referencing those numbers, we might be able to see if some kinds of publications do better than others. Are women able to get a leg up in business-to-business magazines? Are the numbers skewed by bigger-than-normal pay gaps in New York, the center of the magazine industry? Are the numbers closer to parity in entry-level positions, indicating that time is doing the work to change a culture of pay inequality that magazines previously haven’t done?

These are the same kinds of questions that it would be useful to apply in film and television as well, where there is much less comprehensive salary data in any case. Knowing if women do better in dramas or comedies, in shows or films produced by different studios or airing on different networks or distributed by different companies would help us figure out who’s doing exceptionally poorly, and who’s made strides.

Until we figure out who’s doing better and who’s doing worse, we won’t be able to start asking questions about the specific cultures and practices that produce pay gaps and those that are proving successful at closing them. There are challenges, to that, of course, most significant that these surveys survive on some kind of anonymity. The organizations and individuals who are doing poorly would never want to be exposed as being so. And even organizations that do better may be hesitant to step forward to talk about their practices, for risk of exposing themselves to scrutiny for the work that still remains, and to questions from their own employees about whatever gaps persist. The fact that we lack information about salaries is intentional, and always to the benefit of companies that pay those salaries. Without accurate, cross-referenced data, it’s difficult for individuals to know if they’re being paid fairly and to negotiate if they’re not. And without those numbers, it’s impossible for us to identify industry-wide best practices, either. Numbers like these are an opening step in a road towards actual, useful transparency, rather than the end of it.

This blog originally appeared in Think Progress on September 27, 2012. Reprinted with permission.

About the Author: Alyssa Rosenberg is a culture reporter for ThinkProgress.org. She is a correspondent for TheAtlantic.com and The Loop 21. Alyssa grew up in Massachusetts and holds a B.A. in humanities from Yale University. Before joining ThinkProgress, she was editor of Washingtonian.com and a staff correspondent at Government Executive. Her work has appeared in Esquire.com, The Daily, The American Prospect, The New Republic, National Journal, and The Daily Beast.

Fair Pay Act Would Bring Equal Pay for Equal Work

Wednesday, April 13th, 2011

Image: Mike HallYesterday, equal rights advocates marked Equal Pay Day to remind the nation that women are paid  just 80 cents for every dollar men earn, Sen. Tom Harkin (D-Iowa) introduced the Fair Pay Act of 2011 that would ensure that employers provide equal pay for jobs that are equivalent in skill, effort, responsibility and working conditions.

Harkin says that discrimination accounts for much of the pay gap and there are too many loopholes and barriers to effective enforcement of existing laws. “We need to strengthen penalties and give women the tools they need to confront discrimination.”

At the same time, we must recognize that the problem of unequal pay goes beyond insidious discrimination. As a nation, we unjustly devalue jobs traditionally performed by women, even when they require comparable skills to jobs traditionally performed by men.

Millions of jobs dominated by women such as social workers, teachers, child care workers and nurses are equivalent in skills, effort, responsibility and working conditions to similar jobs dominated by men says Harkin:

But the female-dominated jobs pay significantly less. This is inexplicable. Why is a housekeeper worth less than a janitor? Why is a parking meter reader worth less than an electrical meter reader? Why is a social worker worth less than a probation officer?

Commentator Debbie Hines writes on OpEdNews.com today:

Women’s salaries are outpaced by men almost everywhere from the highest paying occupation to the lowest paying occupations. Everywhere from doctors and lawyers to cashiers and lesser positions, women earn less than their male counterparts.

The Fair Pay Act would also require employers to publicly disclose their job categories and their pay scales, without requiring specific information on individual workers. Under current law women who believe they are the victim of pay discrimination must file a lawsuit and endure a drawn-out legal discovery process to find out whether they make less than the man working beside them.

It took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job and was able to file suit. After the U.S. Supreme Court ruled against her in 2007, Congress passed the Lilly Ledbetter Fair Pay Act that helps level the playing field for victims of wage discrimination that President Obama signed in 2009. Says Harkin:

On this Equal Pay Day, let us make sure that what happened to Lilly never happens again by recommitting to eliminate discrimination in the workplace and make equal pay for equal work a reality

Click here for more information on the Fair Pay Act.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When his collar was still blue, he carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He has also worked as roadie for a small-time country-rock band, sold his blood plasma and played an occasional game of poker to help pay the rent.

This blog originally appeared in AFL-CIO on April 12, 2011. Reprinted with Permission.

Attacking Wisconsin’s Middle Class

Thursday, March 3rd, 2011

Image: Linda MericMedia coverage of Madison’s thousands of demonstrators has focused on Governor Scott Walker’s attempt to strip public employees of collective bargaining rights.  Members of 9to5, Association of Working Women have stood with those calling for fairness for working families.  But it’s clear that governor and conservative state legislators’ agenda is bigger than just union busting.  To benefit their corporate masters, they are determined to deny the American Dream to the vast majority of Wisconsinites.

Public workers don’t make big bucks but they are the backbone of the middle class.  They are teachers who tutor struggling students so they’re prepared for college, vocational school or a trade.  They are police and firefighters who protect us when the unthinkable happens.  They are nurses who vaccinate children so we no longer have polio and diphtheria epidemics.  They are $9.00/hour home health care workers helping individuals live in their homes with dignity.  They keep the economy humming by paying their mortgages, buying groceries and purchasing clothes items that keep our Main Street small businesses afloat.

Throughout the years, public employees and their unions have accepted lower paychecks to defer money to their pensions and health care.  Despite this, they’ve agreed to wage and benefit concessions to help do their share in balancing the state budget.

In sharp contrast to their “jobs, jobs, jobs” campaign promises, Wisconsin Republicans are pushing tax breaks to corporations and the rich that will decimate the state’s budget revenue.  To pay for their millionaire friends’ favors, they propose to cut already stretched-thin funding for education, police, firefighters and human services, all provided by public employees.

In a now-public recorded call to Gov. Walker in which a journalist pretended to be anti-union billionaire David Koch, the men discuss plans to threaten public workers with layoffs, attempts to divide public and private sector unions, and their hope that their anti-union efforts could spread nationwide.

Let’s be clear: This showdown is NOT about balancing the state budget.  It’s about union busting, pure and simple.  The upshot of these efforts is to take away power and family-supporting jobs from working families.

Meanwhile, Gov. Walker and allied legislators have launched other attacks on all working families in both the public and private sectors.  Their budget gives themselves the power to slash health care – a key middle class support – for the 1.1 million Wisconsinites relying on Medicaid.

They’ve proposed rolling back Wisconsin’s Family and Medical Leave Act.  Employees working less than 25 hours per week would no longer be eligible for family leave, and employers could deny the use of accrued sick time to cover lost pay.  Many would be forced to take unpaid leave for emergencies, putting their homes, families and even their jobs at risk.

In an end run around Milwaukee’s paid sick days policy, passed by 70% of that city’s voters in 2008, these legislators have introduced a bill to prevent municipalities from enacting paid sick days laws.

Proponents of these measures suggest they’re needed to boost industry and jobs but Wisconsin’s biggest companies are thriving, even through the recession.  Mercury Marine reported profits of $1.1 billion between 2000-2007 while paying nothing in state corporate income taxes.  Harley-Davidson’s profits have increased – profits The New York Times documented as “…mostly going to shareholders instead of the broader economy.”  Nevertheless, hearing the mantra of “you’re lucky to have jobs,” Harley workers were forced to take pay cuts.

The Governor and allied legislators are pulling the rug out from under middle class families because they want to bust unions and strip hard-won protections like health care, family leave and paid sick days from workers to enrich their corporate campaign contributors.

It’s time for people across Wisconsin and the nation to stand up for working families against policies that would degrade their pay and security.

About the Author: Linda Meric is the Executive Director of 9to5, National Association of Working Women, a national membership-based organization of low-income women working to improve policies on issues that directly affect them.

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Friday, October 1st, 2010

ellen simonHere are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday — where witnesses  talked about the  “shockingly slow rate of progress” for women in corporate management positions and the “motherhood wage penalty.”

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here. For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA. Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation — including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail — in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,000 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone — while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

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.

Truck Driver Wins Gender Discrimination Case In Fourth Circuit

Thursday, April 29th, 2010

Court Elaborates On Types Of  Evidence For Proof Of  Discrimination

The recent case of Merritt v. Old Dominion Freight is hands down one of the best decisions I have come across in a long time.

It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.

What Happened In The Case

Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend  nights and weekends at home.

To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.

When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.

The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.

When Merritt asked why she was not hired, Howard told her that :

  • it was decided and they could not let a woman have that position.
  • the company did not really have women drivers in the city (as pick up and deliver drivers)

On another occasion he told her:

  • the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
  • the VP didn’t think a girl should have that position

Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.

For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.

When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.

Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.

After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.

The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.

The 4th Circuit Court of Appeals Reverses

Title VII makes it unlawful to discriminate against an individual on the basis of sex. The most prevalent  method of establishing discrimination is under the burden-shifting framework set forth in the Supreme Court case of McDonnell Douglas Corp v. Green which goes like this:

  • The plaintiff makes out a prima facie case of discrimination
  • The burden shifts to the employer to articulate a legitimate, non-discriminatory justification for its allegedly discriminatory action
  • If the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reason offered by the employer was not a true reason but a pretext for discrimination.

Ultimately, the plaintiff has the burden of proving that he or she was a victim of intentional discrimination.

In this case, Old Dominion put forth its legitimate non discriminatory justification for discharging Merritt – her failure to pass the PAT.  That proved, according to Old Dominion, that Merritt did not have the “requisite physical strength to safely perform the job duties.” Merritt insisted that this rationale was a pretext for discrimination.

The Court of Appeals agreed with Merritt and found that the “record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”

According to the Court, Merritt produced plenty of  evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver. As the Court pointed out:

Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.

In addition, the Court found that Merritt produced evidence of discriminatory intent. For one:

  • Injured male employees did not have to take the PAT test
  • Merritt produced evidence that the policy requiring all injured employees to take the PAT test did not exist

As the Court stated:

While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.

In addition, the district court ignored evidence of the corporate culture of discrimination produced by Merritt. The Court stated:

It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. …..

While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard’s own selective use of the PAT in Merritt’s case in a less neutral context.

In Lattieri v. Equant, ….[w]e deemed the plaintiff’s ‘powerful evidence showing a discriminatory attitude at her company of employment toward female managers’ sufficient to ‘allow a trier of fact to conclude that these discriminatory attitudes led to plaintiff’s ultimate termination.’ Likewise here.

The sum, the Court said:

Old Dominion fired an employee who was, according to the district court, able to do her job without assistance and in a satisfactory manner’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotype work environment.

In this case, it not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial….

Based on all of the foregoing reasons, we reverse the district court’s grant of summary judgment to Old Dominion and remand for trial on Merritt’s Title VII claim.

Take Away

This case helps women in circumstances similar to Merritt’s – firefighters, police officers, constructions workers, etc. — those in male dominated physical professions who still face widespread discrimination because they are simply not wanted.

Just this past fall, I counseled a female firefighter who was repeatedly seeking a promotion, and forced to take numerous tests that were not required of her male counterparts. It’s not an unusual scenario though this type of discrimination is precisely what Title VII is aimed to prevent. The Merritt case, no doubt, should help women fight for equality in the workplace.

In a broad sense, this case hits so many of the issues that come up in discrimination cases all of the time – “stray remarks,” “post- hoc justifications,” “shifting explanations,” the parsing of evidence by district court judges — to name a few, and frames them in a way that will be extremely helpful to employees and their lawyers in discrimination litigation in the future.

images: rlv.zcache.com

This post originally appeared in Employee Rights Post on April 28, 2010. Reprinted with permission.

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.

Court Upholds $1.9 Million Dollar Verdict In Gender Discrimination Case Against Wal-Mart

Friday, December 4th, 2009

Female Pharmacist Wins Appeal Including Punitive Damages and Huge Front Pay Award

It’s one thing to prove discrimination. It’s an altogether different thing to prove damages which occurred as a result of it.

In the recently published gender discrimination case of Haddad v Wal-Mart Stores Inc,*, the Supreme Court Judicial Court (“SJC”) of Massachusetts affirmed a jury verdict which included $733,000 for 19 years of front pay (future economic loss) and $1 million dollars in punitive damages – and that’s big news.

What Happened In The Case

Cynthia Haddad worked as a pharmacist at Wal-Mart for ten years (seven of those in the Pittsfield, Massachusetts store) mostly as a staff pharmacist. Throughout her time at Wal-Mart, she received excellent evaluations.  

Towards the end of her employment, Haddad accepted the position of pharmacy manager.

During that time, she received less pay than any male pharmacy manager which she consistently complained about.

On April 14th, 2004, Haddad was questioned by three Wal-Mart managers about abut two fraudulent prescriptions.

One of the prescriptions was written in 2002 while Haddad was on duty, and another was written in 2004 while a male pharmacist was on duty.

Haddad told the managers that she did not know anything about the fraudulent prescriptions.

She did admit that the 2002 fraudulent prescription could have been written when she briefly left the pharmacy area to buy a soda at a nearby counter, or when she was in the restroom, eating lunch, or talking to customers.

Haddad’s employment was terminated that same day.

She was told that the reason for her termination was based on her statement during the interview that she failed to secure the pharmacy and left Baran (the technician) unattended in the pharmacy area. Baran, who admitted that she falsified the prescription,was also terminated.

The other pharmacist involved — Richard Blackbird — was on duty the day the fraudulent 2004 prescription was written. That prescription contained his initials.

In a clear case of unequal treatment, neither Blackbird, nor any other pharmacist was questioned about or disciplined for the 2004 fraudulent prescription.

In stark contract to the treatment Haddad received,  Blackbird was appointed to be pharmacy manager at the time of Haddad’s departure.

In addition, Blackbird testified that he commonly left the pharmacy area unsecured to talk to a customer, go the restroom, or get a snack – and that he was unaware of any policy prohibiting this practice.

Haddad filed a lawsuit alleging unequal compensation and termination of employment in violation of Massachusetts laws against discrimination. (M.G.L. c. 151B, s.4) The complaint also stated a claim for defamation.

The jury found in Haddad’s favor and awarded $922,774 in compensatory damages which included:

  • $17,700 in special damages
  • $125,000 for emotional distress
  • $95,000 in back pay
  • $733,000 in front pay

The jury also awarded $1 million dollars in punitive damages.

The Appeal

Wal-Mart appealed claiming a number of errors.

Sufficiency of the Evidence

Wal-Mart claimed that Haddad did not introduce enough evidence to prove discrimination. The Supreme Judicial Court of Massachusetts disagreed. It held that there was sufficient proof to support the verdict including evidence that:

  • Wal-Mart’s proffered reasons for terminating Haddad were false
  • Similarly situated male employees were treated differently than Haddad for similar infractions of the same policy
  • Other incidents occurred  in which male pharmacists were not disciplined for far more serious infractions, ie. one pharmacist was caught writing prescriptions and taking drugs for himself and was not fired
  • Wal-Mart failed to follow its progressive discipline policy

Front Pay

The jury awarded the plaintiff nineteen years of future economic loss which consisted of the difference in pay and benefits that Haddad would have earned at Wal-Mart compared to the pay and benefits she earned at the job she held at the time of trial.

Nineteen years of compensation represented Haddad’s loss of earning through age 65.

Wal-Mart contended that the front pay award was excessive and speculative. The Court disagreed:

While the award of $733,307 represents a significant dollar figure for front pay, the evidence supported such an award ….

The plaintiff testified to her difficulty in obtaining a new job. There was evidence that Wal-Mart’s allegations concerning her alleged responsibility for drug losses became generally known….

[T]he award of lost income of nineteen years is consistent with the plaintiff’s anticipated retirement age of sixty-five.

Based on the plaintiff’s ten-year tenure at Wal-Mart, her testimony that she had planned to continue working at Wal-Mart for the remainder of her career, and the limited number of pharmacies in the area around Pittsfield, the jury permissibly could have concluded that an award of nineteen years was appropriate.

The Court discussed other cases (both state and federal) in which employees were awarded economic loss for long periods of time into the future – particularly where the circumstances indicated that plaintiffs would have difficulty obtaining comparable employment.”

It’s a very helpful opinion for plaintiffs and their lawyers on the issue of damages for future economic loss in wrongful discharge cases

Punitive Damages

It’s not often that we see cases in which an award of punitive damages is affirmed on appeal.

To sustain the award of punitive damages in this case, Haddad had to prove that the defendant’s act “was outrageous, egregious, evil in motive, or undertaken with reckless indifference to the rights of others.”

Some of the evidence which the SJC of Massachusetts relied upon to support the award included proof that:

  • Wal-Mart was aware that gender discrimination was not illegal
  • Wal-Mart refused to pay Haddad the hourly rate it paid male pharmacy managers
  • Wal-Mart fired a ten-year employee for a single infraction after a sham investigation
  • Male pharmacists were not disciplined for similar or far more serious infractions

It wrote:

The jury was warranted in concluding that Wal-Mart’s pattern of unequal treatment of male and female pharmacists was outrageous and reprehensible.

Lessons To Be Learned

There is no doubt that in today’s economic climate the chances of finding comparable employment after a discharge are slim. What this means is that when employees unlawfully lose their jobs, and prove it, it’s likely that we will see larger and larger verdicts just like this one. It’s an important case both for its content and as a harbinger of what’s to come.

* Reprinted from Westlaw with permission of Thomson Reuters

** This post originally appeared in Employee Rights Post on December 1, 2009. Reprinted with permission from the author.

Images:

63.135.122.65/bergdahlphoto/Wal-Mart

www.a-fib.com/images

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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