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Archive for the ‘Gender Discrimination’ Category

The Grooming Gap: What “Looking the Part” Costs Women

Friday, January 3rd, 2020

Image result for mindy isserMadison, who works a customer service job at an airport spa, has an employee handbook that says “makeup should be well maintained” and “hands and nails must be well manicured.” She says the few men she works with just ignore these guidelines “because they’re meant for women but [it] doesn’t explicitly say that.” Her wages ($13.25 per hour + 15% retail commission) do not include additional pay to purchase manicures or makeup. During her interview, her now-boss commented on how nice her makeup looked and how well her shoes matched her purse—comments that make her feel like she needs to keep up that kind of appearance even though she already has the job.

It’s well known that a persistent wage gap exists for women workers in the United States, a gap that becomes even wider when race, industry, age and geography are taken into account. But less frequently discussed is the often silent expectation around appearance imposed on women workers, which has its own financial costs—known as the “grooming gap.” The grooming gap refers to the set of social norms regarding grooming and appearance for women, including the time women workers must spend to conform to these norms and the material consequences it has on their lives.

We’ve all heard the common advice to “look the part” at work. For men, that can often just mean business casual clothing and a short haircut. For women, it can mean hours spent each week on makeup, hair styling and curating an outfit that’s both attractive and professional.

The rules are usually unspoken; even when employers do not explicitly require workers to wear makeup, for example, women workers often feel required to wear it anyway.

They’re not wrong: Sociologists Jaclyn Wong and Andrew Penner found that physically attractive workers have higher incomes than average-looking workers, but that this relationship is eliminated when controlling for grooming in women. In other words, if you purchase the right clothes, makeup and haircut, higher wages are more within reach. It’s true that men need to abide by certain grooming rules, too, but they are less complex, less expensive and less time consuming. Men’s haircuts, for example, often cost much less than women’s haircuts—regardless of hair length. The grooming gap essentially constitutes a pay cut catch-22: If women don’t conform, they are paid less; if they do conform, they’re expected to use those higher wages on beauty products and grooming regimens.

Grooming costs for women can be extremely expensive; the global beauty industry, valued at $532 billion worldwide, directs aggressive advertising toward women to convince them they need to purchase a whole host of products to have a chance at being beautiful, well-liked or successful. The industry relies on maintaining impossible expectations around women’s looks so it can continue to rake in enormous profits. One 2017 study found the average woman puts $8 worth of product on her face each day; another found the average woman spends up to $225,000 on skincare and makeup during her lifetime. And then there’s the “pink tax”: Studies confirm that, 42% of the time, products marketed to women are more expensive than comparable products targeted to men.

The grooming gap also results in a loss of free time: 55 minutes each day for the average woman, the equivalent of two full weeks each year. Sara Nelson, president of the Association of Flight Attendants-CWA (AFACWA), says that, in her industry—a workforce that is 79.3% women—the expectation around appearance literally “interrupts your sleep”: Flight attendants get minimal rest between flights, and that rest time is further shrunk because they are expected to appear “perfectly coifed” before their next flight. Nelson says that all of her grooming tasks took 30–40 minutes each day (more than two hours in a five-day work week). Madison agrees: it takes her 45 minutes to do her makeup and style her hair before her 7 a.m. shift—and she wakes up at 5 a.m. to get it all done. Prior to this job, Madison says she worked at the beauty department at Target, where she spent $200 on products every other week.

Restaurant and hospitality workers are perhaps hardest hit by the grooming gap, as they rely on tips to survive. When I was a barista in 2010–2011, the only official dress code rule was to wear closed-toed shoes, for safety. Still, I knew I had to show up looking pretty to pay the rent; I made less than $10 an hour and I needed the tips.

Katie, 36, a veteran bartender and server in Fort Smith, Ark., says at her current job, it’s “understood” she should wear makeup. At a previous restaurant, a manager even told her and her coworkers they would “make better tips if [they] wore makeup.”

“Based on my own appearance—weight fluctuations, makeup versus no makeup, jewelry versus no jewelry—there’s a definite difference,” Katie says. She adds that she was passed over for the most lucrative bartending shifts at her previous job after overhearing her managers say they wanted “cuter girls” to bartend instead.

Multi-billion dollar industries also market fad diets and anti-aging products to women. Both Katie and Jeeva, 24, a bartender and member of UNITE HERE, the union representing hospitality, hotel and airport workers, worry about aging. “As you get older, as a female bartender, your tips can go down,” Jeeva says. Katie says she “hope[s] to leave [the service industry] in the next 10 years, before I get too ugly.”

The grooming gap’s effects are compounded for women of color. According to Restaurant Opportunity Center, restaurant owners look for workers who are “clean-cut, [have] good hygiene or a professional appearance, all potential code words for race.” For instance, Black women spent $473 million on relaxers, weaves and other hair care in 2017, in part because of racist ideas that natural Black hair is not professional or attractive. Black workers annually spend nine times more on hair and beauty products than other workers.

For transgender women, too, there can be an added layer of work, stress and self-consciousness. Autumn, who transitioned while at her current publishing job in Washington, D.C., says she quickly realized how much time and energy it takes to perform femininity for work. She used to spend 20 minutes to get ready in the morning, but now takes at least 45 minutes. Autumn adds, “I have to do things that cis women don’t have to… [but] it’s gotten easier with time and practice,” like tucking and dealing with facial hair. Because she presents extremely femme, Autumn says she hasn’t dealt with enforcement around her appearance, but other women workers around the country have been disciplined and even fired for appearing insufficiently feminine. Women workers have sued—and won—over gender discrimination that manifests as attractiveness discrimination.

Nat, a trans woman who works at a union in the Washington, D.C., area, says, “I didn’t feel like I was allowed to be a woman if I liked masculine things. It delayed any kind of self-reflection” about gender and identity “for such a long time.”

At work and in the world, all women—cis and trans—feel the pressure to conform to normative standards of femininity and attractiveness. But the solution to this problem isn’t to throw away all the eyeshadow or take out a new line of credit for weekly manicures. The solution is to organize together.

“Building your union in the workplace is also about tackling the social issues that are directly applicable to your economic experience,” says Nelson. Because they were organized and had a voice in management’s ear, AFA-CWA flight attendants were able to relax and modernize aspects of their dress code. Prior to 2006, newly hired female flight attendants were required to attend a one-day training with a makeup artist (while men had the day off). Women were also encouraged to buy makeup if they didn’t have any, since female flight attendants were required to wear makeup. There are still appearance standards “that put a greater burden on women than men,” says Nelson, but there’s no longer a makeup training day, and no requirement to buy or wear makeup.

Because the vast majority of union contracts include language around wages, promotions, discipline and firing, the ways in which unionized women workers move up (or down) in a company are clear. They don’t have to wonder if they’re being pushed out because their boss doesn’t like the way they look—every infraction must be documented and explained. And because union workers receive raises based on seniority, gendered gaps around wages and promotions are far less likely, which gives women workers more freedom to ignore unspoken pressures around grooming, and a vehicle to further expand their rights at work.

Regardless of whether a workplace is unionized, workers can still organize to challenge gender inequity on the job. There’s a nascent movement around organizing for workers to be paid wages for time spent commuting to work, since commuting is a necessity. The same could be said of the grooming that women do before leaving for work. Working women, in unions and outside of them, could organize around extra compensation for women’s grooming products, as well as the time spent applying them; Madison suggests a “stipend.” Women workers also could fight against the tipped minimum wage, which invites pay discrimination based on appearance and which predominantly affects women.

Ultimately, social understandings of beauty and the many ways they impact women’s working conditions are just a piece of a bigger, systemic problem: the larger impacts of a patriarchal society’s effects on women. Women are constantly bombarded with advertisements and images of the ideal woman: thin, white, cis and beautiful—ideals that, of course, carry over into the workplace. The vast majority of women do not fit into these narrow, normative archetypes of beauty, and they can lose out financially because of them. But there are clear ways to organize at work around these issues: by forming unions or by standing together and fighting for legislation that ends the gender pay gap and the tipped minimum wage.

Closing the grooming gap and engaging in the struggles that will be needed to fundamentally challenge these exploitative systems—in and out of the workplace—will not be easy. But when has the fight to create the world we deserve ever been easy?

This article was originally published at InTheseTimes on January 2, 2020. Reprinted with permission.

About the Author: Mindy Isser works in the labor movement and lives in Philadelphia.

Gender Inequality, Work Hours, and the Future of Work

Friday, November 15th, 2019

Executive Summary

Gender differences in paid and unpaid time at work are an important aspect of gender inequality. Women tend to spend more time on unpaid household and family care work, and men spend more time in paid work. This unequal distribution of time creates barriers to women’s advancement at work and reduces women’s economic security.

Technological innovation through machine learning, robotics, and artificial intelligence is likely to automate many tasks and jobs, thus improving productivity, freeing time, and allowing fewer workers to do more. Technological innovation presents an opportunity to rethink the distribution of time spent on paid and unpaid work, tackle the inequality in the division of domestic and care work between women and men, and provide time for upskilling and lifelong learning needed to benefit from future opportunities.

This first section of this report presents analysis on why work hours matter to gender equality, and what role time-related policies may play in reducing gender inequality, and more generally, social and economic inequality. The findings show women’s growing contribution to paid work and highlight that, as women’s average hours at work have increased, men’s have not declined. Inequality in paid and unpaid time has remained particularly stark between mothers and fathers. The report then highlights the growing inequality between those who work a lot and those who work intermittently, part-time, or part-year. In addition, the analysis shows that this polarization in paid time at work is increasingly exacerbating racial inequalities.

The second section of the report focuses on changes in the quality of time at work and workforce policies around scheduling, location, and paid time off. The report notes how a growing lack of schedule control and the absence of paid leave rights reinforce economic and racial/ethnic inequalities and are particularly harmful to parents.  The report ends with recommendations to achieve a healthier and more equal distribution of hours worked.

Based on analysis of the U.S. Current Population Survey, the report presents trends in hours worked during the last forty years for workers ages 25 to 64, with the following findings:

Women’s Hours Rose During the Last 40 Years, While Men’s Declined Marginally

  • During the last 40 years, women’s average annual number of hours in paid work increased substantially, while average hours worked by men during the same period declined only marginally. In 2017, women’s average annual hours were slightly below 40 per week (1,863 hours per year), while men’s were above (2,110 hours per year).
  • The increase in annual hours was particularly strong for women who work full-time (at least 35 hours per week). On average, women full-time workers now work five more weeks per year than they did in 1977, and men one more week. As a sign of growing polarization of paid time at work, average weeks in paid work for women who work less than full-time did not increase in the last two decades, and decreased for men who work less than full-time.

Fathers Work More Hours than Other Men, Mothers Work Less Hours than Other Women

  • Since 1977, mothers increased the time spent in paid employment by more than 300 hours per year (an increase of 29 percent). Over the same period, the average annual hours of fathers fell by just 8 hours (or 1 percent).
  • Fathers work more hours on average than other men, and mothers work fewer paid hours than other women, in each major racial and ethnic group. White fathers spend the highest number of hours at work, and the gap in annual hours between White mothers and fathers is the largest among all groups at 21 percent.
  • Black mothers spend more time than other mothers in paid work, and have done so throughout the last four decades, and before. In 1977, Black women worked over 200 hours, around five weeks, more per year than White or Hispanic mothers. By 2017, Black mothers were still on average working over 104 hours more than Hispanic mothers, 89 hours more than White mothers, and 52 hours more than Asian mothers.
  • Forty years ago, married mothers’ average working time per year was approximately 20 percent lower than that of single mothers; by 2017, the difference was no more than 3 percent. The same convergence in hours has not happened among married and single fathers.
  • The impact of marriage on the work hours of mothers varies starkly by race and ethnicity. Among White and Asian women, average annual hours are lower for married than for single mothers; the reverse is true for Black mothers, and for Hispanic women there is no appreciable difference.

Women Outnumber Men among Part-Time Workers and are Almost as Likely as Men to Work Part-Time Involuntarily

  • The rate of part-time work varies over the life cycle, and is highest at the beginning and at the end of the working life for both women and men. Women part-time workers outnumber men at each stage of the life cycle, but the differences are particularly high during early- and mid-career.
  • Almost nine in 10 of those who work part-time because of child care and other family-related reasons are women. Part-time work is significantly more common in low-wage occupations, such as cashiers, customer service representatives, and nursing and personal care workers, where women are the majority of the workforce and it is less common to have stable hours.
  • Part-time work is often of lower quality than full-time work, with lower pay and few benefits. Providing part-time workers with lower benefits or pay than comparable full-time workers is illegal in most other high-income economies.
  • Women are close to half of all involuntary part-time workers. The share of Black and Hispanic women part-time workers (ages 25 years and older) who report that they worked part-time involuntarily (22 and 21 percent, respectively) is more than twice as high as for White women (10 percent), and nearly twice as high as it is for Asian women (12 percent).

Increasing Overwork Creates Barriers to Women’s Advancement at Work and Exacerbates Gender Inequality at Home

  • Nearly one in five women (18.2 percent) and nearly one in three men (31.8 percent) usually work more than 40 hours per week. For the majority of workers in this category, this means working more than 50 hours per week.
  • The practice of overwork in many professional and managerial positions reduces women’s access to the highest paid jobs because of the imbalance in family care responsibilities; likewise, overwork also makes it more difficult for men to contribute equally to care and domestic work.
  • Research shows that working long hour days or weeks on a regular basis has adverse health consequences, reduces productivity, increases workplace injuries, and leads to lower job satisfaction.
  • Unlike many other countries, where hours of work are more regulated as part of a concern with health and safety, the U.S Labor code offers few protections from overwork (with the potential exception for workers with disabilities under the ADA).

Work Schedules Have Become Less Regular Regardless of the Number of Hours Worked

  • During the last decade, the line between work and non-work time has become increasingly blurred for full-time and part-time workers in both lower and higher-paid occupations. A substantial number of women in low-wage jobs have little control over the timing of their work.
  • While some parents may proactively seek employment during non-standard hours as a means of organizing employment around child care needs, schedule fluctuations still have adverse impacts on parents and children.
  • A growing number of U.S. workers work remotely thanks to advances in communication technologies. While control over where and when they work is a highly sought-after benefit, it often comes at a price—either due to work overload or adverse career consequences for making use of flexible working options.
  • Business case studies—such as the Gap study, where workers were provided greater say over their schedules—show that using scheduling technology to allow workers a say leads to higher revenues and improved productivity.

The Lack of Legal Rights to Paid Time Off is Exacerbating Inequality and Reduces Women’s Labor Force Participation

  • The lack of paid parental leave is one factor accounting for women’s lower labor force participation rate in the United States compared with other high income countries. Job protected paid maternity leave improves women’s labor market participation, allows them to maintain and build their earnings, and improves maternal and infant health.
  • Access to paid time off and the length of paid time off is highly unequal. Low-wage workers are much less likely to have access to paid sick benefits, paid vacation and holidays, and paid family leave than higher earning workers. Hispanic workers are least likely to have access to paid sick time.

Policy Recommendations

Redistributing and reorganizing hours of work is one way of distributing productivity gains from automation equitably, smoothing the potential disruptive impact of technological displacement, and encouraging greater gender equality in paid and unpaid work.

Recommendations to improve equity in work hours include:

  • Guarantee paid family leave, paid sick days, and paid vacation. Investing in paid leave policies that address life cycle needs for time off (for parenthood, education, elder care and civic engagement) can potentially increase GDP by increasing labor force participation rates, particularly for women.
  • Improve access to quality part-time or reduced hours work. Legislation to provide workers who work less than 35 hours with the right to equal treatment in pay, promotions, and benefits, and to give employees options for reducing their hours without having to change employment or their career, can improve access to quality part-time work.
  • Increase worker control over the scheduling of their time at work. New scheduling technology makes it easier and less costly to prepare schedules and allocate shifts in occupations with extensive operating hours. Fair scheduling statutes passed in several jurisdictions offer examples of how to provide workers with more stability in the time they work.
  • Discourage extensive overwork and overtime. Providing workers with a right to refuse mandatory overtime, and providing mandatory rest times between shifts, will reduce scheduling conflict and improve health. Updating overtime earnings thresholds, and ensuring that a larger number of women and men are covered by overtime regulations, will reduce employer incentives to make long hours an expected component of employment.
  • Provide paid time for employees to upgrade their skills as technology changes. Technological innovation is affecting the delivery of learning and increasing the options for remote access to instruction. Yet, learning will continue to take time, time outside of paid work that women often do not have because of their care commitments. Paid time to upgrade skills and pursue lifelong learning can reduce inequality in access to new employment opportunities.
  • Encourage work sharing through the Unemployment Insurance system during times of economic transition and downturns and facilitate work sharing more broadly. During slack business or downturns, work sharing arrangements allow workers to receive unemployment benefits to compensate for loss of earnings if their hours are temporarily cut back. This allows employers to retain valued and skilled workers and provides greater economic security and workforce attachment to workers.
  • Promote a reduction in the standard working week. Even though it fails to be the reality for many workers, the 40-hour workweek nevertheless has become the benchmark against which working time is judged. The 40-hour threshold has not been improved since 1938 and the coming decades provide an opportunity to share time and rewards more equally by lowering the legal definition of full-time work.

Technological innovation in the coming decades will provide opportunities to promote a more equal distribution of work, leisure, and family and community time. Technology is already making it much easier for employers and employees to design win-win solutions on scheduling and the location of work. While the reduction of paid time at work alone is unlikely to eliminate gender inequality, it can support men in being good caregivers and make it easier for women to succeed at work. Without proactive policy interventions on time at work, however, gender inequalities at work and at home will likely persist—or worse, increase.

Read the full report.

This report was originally published at Institute For Women’s Policy Research on November 14, 2019. Reprinted with permission.

About the Author: Ariane Hegewisch is Program Director of Employment and Earnings at IWPR and Scholar in Residence at American University; prior to that she spent two years at IWPR as a scholar-in-residence. She came to IWPR from the Center for WorkLife Law at UC Hastings. She is responsible for IWPR’s research on workplace discrimination and is a specialist in comparative human resource management, with a focus on policies and legislative approaches to facilitate greater work life reconciliation and gender equality, in the US and internationally. Prior to coming to the USA she taught comparative European human resource management at Cranfield School of Management in the UK where she was a founding researcher of the Cranet Survey of International HRM, the largest independent survey of human resource management policies and practices, covering 25 countries worldwide. She started her career  in local economic development, developing strategies for greater gender equality in employment and training in  local government in the UK. She has published many papers and articles and co-edited several books, including ‘Women, work and inequality: The challenge of equal pay in a deregulated labour market”. She is German and has a BSc in Economics from the London School of Economics and an MPhil in Development Studies from the IDS, Sussex.
About the Author: Valerie Lacarte, Ph.D. is a Postdoctoral Research Fellow at the Institute for Women’s Policy Research. She conducts empirical analysis for research projects related to the Future of Work, entrepreneurship, and the Student Parent Success Initiative.

Prior to joining IWPR, Valerie had more than seven years of experience doing research and project implementation for development organizations, including the World Bank, the Inter-American Development Bank and the Organization of American States. Valerie has worked and lived in several countries of Latin America and the Caribbean and is fluent in French, Spanish, Portuguese, and Haitian Creole. She has also been an Adjunct Instructor at American University, George Mason University and University of Mary Washington where she taught Economic Theory, Business and Society, and Gender Economics.

Valerie has a PhD in Economics from American University. Her dissertation combined quantitative and qualitative data to analyze immigrant labor outcomes while considering the intersectionality of gender, race, ethnicity and culture.

Reckoning With the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security

Friday, November 15th, 2019
Reckoning With the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security We’re excited to announce that NWLC, in partnership with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality, released three reports about gender and racial bias in the tax code and how to harness our tax laws as a tool for equity.
Reckoning With The Hidden Rules of Gender in the Tax Code, tackles some aspects of the tax code that shape corporate and individual behaviors in ways that have negative downstream effects on women and especially women of color. Among other things, this report analyzes how the tax code incents or enables exorbitant executive compensation at the expense of worker pay; how the tax code’s treatment of debt fuels predatory behavior by private equity firms; how particular tax provisions could encourage worker misclassification; and how corporations with a high share of women and people of color as employees engaged in big stock buybacks at the expense of increasing worker pay in the wake of the 2017 tax law.  We call out specific examples from Starbucks, Toys R Us, and Hilton.
You can access the final reports and executive summary here, and an article by Annie Lowrey at the Atlantic here.

This article was originally published at National Women’s Law Center. Reprinted with permission.

About the Author: This report, co-authored by Katy Milani (Roosevelt Institute,  https://rooseveltinstitute.org), Melissa Boteach (NWLC), Steph Sterling (Roosevelt Institute), and Sarah Hassmer (NWLC), discusses how low taxes for the wealthy and corporations have played a role in enabling – and in some cases encouraging – those with the highest incomes and the most capital to accumulate outsized wealth and power in our economy. Centuries of discrimination and subjugation of women and people of color interact today with widening income inequality, such that white, non-Hispanic men are disproportionately represented among the wealthiest households, while labor and economic contributions from women of color are consistently undervalued. An agenda to advance racial and gender justice must reckon with provisions in our tax code perpetuate and enable these inequities.

The Trump administration wants to make it easier to fire women who act too ‘masculine’

Tuesday, August 20th, 2019
Thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is forbidden by a federal law banning employment discrimination. “We are beyond the day,” Justice William Brennan wrote in the court’s plurality opinion, “when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

Nevertheless, the Trump administration filed a brief last week asking the Supreme Court to bring back the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

The Trump Justice Department’s position in R.G. & G.R. Harris Funeral Homes v. EEOC wouldn’t nuke Price Waterhouse entirely. But it would severely weaken protections against sex discrimination, and give employers broad new authority to fire employees who do not comply with stereotypes about how people of a particular gender should appear.

It would do so, moreover, in service of the broader goal of denying civil rights protections to transgender workers. The thrust of the Trump administration’s position in Harris Funeral Homes is that, if existing law is broad enough to protect trans workers from discrimination, then that law must be rolled back — even if doing so will legalize a fair amount of discrimination against cis women in the process.

“Because of . . . sex”

Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired because of her decision to transition. Her former boss claims to “believe that the Bible teaches that a person’s sex is an immutable God-given gift.”

In response to her termination, Stephens sued under Title VII of the Civil Rights Act of 1964, which provides that employers may not “discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, as a textual matter, Stephens should have an easy case. Title VII’s language is capacious. It forbids any discrimination “because of” an employee’s “sex” (a term that, in this context, refers to gender). As the federal appeals court that ruled in her favor explained, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

The entire reason why Stephens was fired is that her employer believes that she is a man, and that men must dress and act a certain way. That’s discrimination because of sex.

Stereotyping

Setting aside this simple, textual argument explaining why Stephens should prevail, she also benefits from the separate line of cases prohibiting sex stereotyping — or, at least, she does under those cases as they currently stand.

Price Waterhouse is a bit of a confusing decision because it did not produce a single majority opinion. Nevertheless, a majority of the Supreme Court clearly agreed that sex stereotyping is not allowed. Brennan concluded, on behalf of himself and three other justices, that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Meanwhile, Justice Sandra Day O’Connor said that the plaintiff in Price Waterhousecould proceed with her lawsuit because she proved that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to make her a partner. So Brennan’s opinion plus O’Connor’s opinion equals five votes against sex stereotyping in the workplace.

Significantly, Justice Anthony Kennedy wrote a dissenting opinion, in which he argued that “Title VII creates no independent cause of action for sex stereotyping.” Though Kennedy conceded that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” his dissenting opinion denied that sex stereotyping alone is a valid basis for a Title VII lawsuit.

Which brings us to the Trump administration’s argument in is Harris Funeral Homesbrief:

Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.

See the problem here? This passage does not describe the majority’s view in Price Waterhouse at all. To the contrary, it’s the exact same view that Justice Kennedy took in dissent.

Having confused the majority’s view with a dissent, the Trump administration then claims that much of Price Waterhouse must be rolled back.

Indeed, it’s notable that the Trump administration is only able to cite one lower court opinion that supports its novel view of Price Waterhouse, and that opinion is a concurring opinion by Judge James Ho — a Trump judge known for writing aggressive opinions that read more like Fox News editorials than like judicial decisions. The Ho opinion that Trump’s Justice Department relies upon does not cite any other case that shares his reading of Price Waterhouse.

Price Waterhouse, moreover, is hardly an obscure case. It is a seminal decision that recognized an entire branch of American civil rights law. According to the legal research database Lexis Advance, 6,265 court decisions cite Price Waterhouse. The fact that Judge Ho (and the Trump administration) wasn’t able to find a single one that supports his reading of Price Waterhouse is compelling evidence that Ho is wrong.

It’s unclear just how drastically the Trump administration’s reading of Price Waterhousewould roll back protections for women generally, but one line in their brief suggests that the rollback would be quite significant. Unless Price Waterhouse is read narrowly, the Trump Justice Department warns, “a dress code that required men to wear neckties, for example, would be susceptible to challenge as predicated on sex stereotypes.”

Perhaps. A prototypical example of sex stereotyping is declaring that men must look a certain way and women must look another way (although some lower courts permit gender-specific dress codes so long as they are “equally burdensome” on men and women). At the very least, the Trump administration appears eager to strip all American workers of their right to keep their job even if they don’t tailor their appearance to their employer’s gender norms.

One lesson of Harris Funeral Homes, in other words, is likely to be that the fate of various civil rights plaintiffs are unavoidably linked. Denying trans workers the right to be free of employment discrimination means rolling back doctrines that protect other workers as well.

If the Supreme Court joins the Trump administration’s crusade against trans rights, the consequences will spill over to all workers.

This article was originally published by Ian Millhiser on August 20, 2019. Reprinted with permission. 

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Caster Semenya gets reprieve from discriminatory regulations, but it’s not all it’s cracked up to be

Wednesday, June 5th, 2019

On Monday, news outlets around the globe ran headlines reporting that South African middle-distance runner Caster Semenya won an important court battle. The two-time Olympic champion in the 800 meters had filed an appeal last week to challenge the Court of Arbitration in Sports’ (CAS) ruling that she must artificially lower her testosterone levels in order to compete in her best events.

The Swiss Federal Supreme Court (SFT) provided Monday’s announcement on the matter, ruling that the International Association of Athletics Federations (IAAF) would have to temporarily suspend its testosterone regulations for Semenya, while her appeal awaits decision. As such, she is currently permitted to participate in competition without having to self-administer hormone treatments.

But while these headlines provide an optimistic spin on these events, they hardly paint a realistic picture.

First of all, the suspension of CAS’s ruling is very temporary — right now, it only lasts until June 25, 2019. Furthermore, this three-week grace period only applies to Semenya. Any other women with naturally-occurring levels of testosterone above five nanamoles per liter (nmol/L) are still required to undergo medical treatment to artificially suppress their testosterone levels if they want to compete in IAAF events from 400 meters to a mile.

It’s fair to say that this decision has left athletes more perplexed than ever.

“There’s widespread confusion and even panic among athletes and coaches about whether they can compete, at what level, and what this implementation means for them,” Dr. Katrina Karazis, a senior visiting fellow at Yale University’s Global Health Justice Partnership and co-author of Testosterone: An Unauthorized Biography, told ThinkProgress.

Semenya has been battling the IAAF for the right to run in the body she was born in for 10 years now, ever since she first burst onto the scene at the 2009 World Championships. In May, CAS upheld the ability of the IAAF to target athletes with disorders of sex development (DSD). People with DSD — a condition which is commonly referred to as intersex — might have hormones, genes, or reproductive organs that develop outside the gender binary.

CAS agreed with Semenya that the IAAF regulations were discriminatory. However, the majority of the people serving on that panel endorsed the decision anyway.

“The Panel found that the DSD Regulations are discriminatory, but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable, and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events,” the ruling states.

In her appeal, Semenya’s team argued that forcing Semenya and other women with DSD to artificially suppress their testosterone levels is a human rights violation. However, on Tuesday, the IAAF released a defiant open letter to a group of women’s rights organizations that have opposed the testosterone regulations. The letter provides a window into the IAAF’s mindset, painting the members of the governing body as angered at having their wisdom challenged. And the IAAF is not only is it doubling down on its decision, it is doing everything short of explicitly calling Semenya a man along the way.

“It is not fair and meaningful for biological women (with XX chromosomes that lead to ovaries that produce much lower levels of testosterone) to compete against men,” the letter reads.

“The challenge that the IAAF faces is how to accommodate individuals who identify as female (and are legally recognised as female) but who — because of a difference of sex development — have XY chromosomes that lead to testes that produce high levels of testosterone, and therefore have all the same physical advantages over women for the purposes of athletics as men have over women,” it continues.

It is worth noting that if Semenya competed against the men, her time in the 800 meters would not put her anywhere near even qualifying for the Olympics.

“I am a woman and I am a world-class athlete,” Semenya said in her appeal last week. “The IAAF will not drug me or stop me from being who I am.”

For now, the IAAF will have until June 25 to fight this temporary suspension. If it does not get the suspension overturned, or misses the deadline, Semenya will be able to continue to compete in her best events in the body she was born in until there is a ruling on her appeal — a process that could take a year or more, depending on the SFT’s actions.

But this narrow ruling will have consequences in the meantime, as all other women with DSDs will have to either take medication, undergo invasive surgery, or abandon events between 400 meters and one mile if they want to continue to compete against women in elite competitions. If the temporary suspension is overturned on June 25, Semenya has stated that she will not take medication or suppress her testosterone levels in any way; she plans to compete in events longer than one mile, such as the 2,000 meters.

Semenya is scheduled to compete in one event in the next three weeks, the Meeting de Montreuil outside of Paris, France, on June 11.

This article was originally published in ThinkProgress on June 4, 2019. Reprinted with permission. 

About the Author: Lindsay Gibbs covers sports. SportsReporter CoHost  Tennis  Mystics   

4 actresses call out E! for gender discrimination — while live on E!

Tuesday, January 9th, 2018

On the red carpet at the Golden Globes, actress Debra Messing called out E! News for gender pay discrimination, while being interviewed on E! News.

Messing was discussing the purpose of the “Time’s Up” campaign, an initiative started by “prominent actresses and female agents, writers, directors, producers and entertainment executives” to fight systemic gender inequality. Pay equality, Messing said, was an important part of that effort. Then she turned her attention to E!.

“I was so shocked to hear that E! doesn’t believe in paying their female cohost the same as their male cohost. I miss Catt Sadler. So we stand with her. And that’s something that can change tomorrow. We want people to start having this conversation that women are just as valuable as men,” Messing said.

Sadler recently announced she would leave E! News when she discovered her male co-host earned double her salary.

Last month, ThinkProgress reported on Sadler’s decision:

In a post on her personal blog, Sadler wrote she discovered the pay discrepancy while negotiating the contract with the network. She had suspected a pay disparity existed after an executive brought it to her attention, but had no idea just how large the gap was. Her co-host Jason Kennedy was earning close to double what Sadler made for what she describes as “doing essentially similar jobs, if not the same job.”

“Know your worth. I have two decades experience in broadcasting and started at the network the very same year as my close friend and colleague that I adore. I so lovingly refer to him as my ‘tv husband’ and I mean it,” wrote Sadler in her statement. “But how can I operate with integrity and stay on at E if they’re not willing to pay me the same as him? Or at least come close? How can I accept an offer that shows they do not value my contributions and paralleled dedication all these years? How can I not echo the actions of my heroes and stand for what is right no matter what the cost? How can I remain silent when my rights under the law have been violated?”

E! probably should have seen this coming. Messing expressed solidarity with Sadler on Twitter earlier today.

Messing and most other attendees at the Golden Globes are wearing black tonight as part of the launch of the Time’s Up campaign.

Later in the broadcast Laura Dern and Sarah Jessica Parker also took the network to task during interviews on E!.

“We need the powers that be and all the industries and networks and E! to help us with closing this pay gender gap,” Dern said.

Comedian Amy Schumer raised the issue on Instagram.

This article was originally published at ThinkProgress on January 8, 2018. Reprinted with permission.

About the Author: Judd Legum is the founding editor-in-chief of ThinkProgress.

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.

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