It’s A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24^th. The new rules were mandated by the ADA Amendments Act of 2008 (”ADAAA”). The law made significant changes with respect to the interpretation of  the term “disability” under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111^th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: blogs.orlandosentinel.com image.spreadshirt.com www.glbtq.comf

This blog originally appeared in Employee Rights Post on May 2, 2011. Reprinted with permission from the author.

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.

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.

The Stand with the Women of Wal-Mart rally will take place as the nation’s highest court hears arguments on Wal-Mart v. Dukes to decide whether the case can move forward as a class action.

Ten years ago, a group of women who worked at Wal-Mart stores, led by Betty Dukes, filed a lawsuit alleging the corporation engaged in company-wide gender discrimination by paying women less than men, promoting fewer women to management positions and promoting male employees more quickly. The case, now a class action, has made its way to the Supreme Court.

Wal-Mart is challenging the decision by a lower court to allow the women employed at Wal-Mart stores across the country to join together in a class action lawsuit to challenge pay and promotion practices that discriminate against women.

If Wal-Mart succeeds in keeping these women from joining together, the already uphill battle for women to fight pay discrimination will get even worse. But If the women prevail, their case will become the largest class-action civil rights suit in the nation’s history, with some 1.6 million female Wal-Mart and Sam’s Club employees.

A coalition of women’s, workers’ and religious groups are sponsoring the rally, including the AFL-CIO constituency group, the Coalition of Labor Union Women (CLUW).

In a statement, the American Association of University Women (AAUW), another rally sponsor, says class action can send a strong message to employers to follow the law in the first place. Lisa Maatz, AAUW’s director of public policy and government relations, says:

This case illuminates the dirty little secret that women know all too well — that pay discrimination is alive and well and undermining the economic security of American families.

About the Author: James Parks’ first encounter with unions was at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and has worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He also has been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

This blog originally appeared in ALFCIO on March 28, 2011. Reprinted with Permission.

For almost twenty years, I got paid less than my co-workers. I was a woman doing the same work as the men on my team — and apparently, my gender was all the excuse my employers at a Goodyear tire plant needed to cut my paychecks. My salary was far lower, and I got lower raises – over and over again.

But one year ago today, to my amazement, the President signed the Lilly Ledbetter Fair Pay Act into law, which restored the law to make sure workers can go to court to protest pay discrimination.

And now it’s time for the next step. The right to go to court is important, but it isn’t enough. We need to do more to keep women from being discriminated against in the first place.

We need to pass the Paycheck Fairness Act. This bill gives teeth to the protections against pay discrimination. And women, who are still shortchanged in the workplace, deserve just that. The bill would empower women to negotiate for equal pay, create stronger incentives for employers to follow the law, and strengthen federal outreach and enforcement efforts. It would also strengthen penalties for equal pay violations.

But from where I sit, one of the most important aspects of the Paycheck Fairness Act is a provision that would prohibit retaliation against workers who ask about employers’ wage practices or disclose their own wages to co-workers. This would have been particularly helpful to me, because Goodyear prohibited my colleagues and me from talking about our wages. This policy delayed my discovery of the pay inequities between my male counterparts and me by — literally — decades.

For the past year, I’ve been speaking out to build up support of this bill, with the help of my friends at the National Women’s Law Center.

The bill has already passed the House, and now it’s up to the Senate. It is time to improve the law, not just restore it. You can count on my continued commitment to passing this Act and to ensuring that women will some day, as the President called for in his State of the Union, truly have equal pay for equal work.

About the Author: Lilly Ledbetter is a volunteer and mother of two. She resides in Jacksonville, Alabama.

Photo by Martin Gardlin

A recent Time magazine poll found that 71% of Americans who responded want the government to place limits on the executive compensation at firms that received bailout money. Yet accomplishing this task selectively is impossible to do.

The government did appoint a czar of executive compensation for these corporations, but he approved a $7-million salary/$3.5-million bonus plan for the head of AIG, 80% of which is now owned by taxpayers. Few workers, executives included, would agree to work for less than the going rate. Executives are simply used to earning millions of dollars, and there is little that either the czar or shareholders can do about it unless Congress limits all executive compensation. But the chance of such legislation passing is slim.

Why is limiting executive compensation so difficult? Because executives have a seemingly unassailable argument — market forces — that University of Chicago professor Steven Kaplan defended in an October debate: “Market forces govern CEO compensation. CEOs are paid what they are worth.”

Of course, market forces are cited not only to justify outsized compensation for executives but also poverty wages for workers. Textbooks claim that minimum wage laws and union wages create unemployment. Just what are these market forces, and should we let them determine executive compensation and wages?

When British economists David Ricardo and Adam Smith examined this question 200 years ago, they concluded that what a person earns is determined not by what the person has produced but by that person’s bargaining power. Why? Because production is typically carried out by teams of workers, managers and machines, and the contribution of each member cannot be separated from that of the rest. A driver and a bus, for example, generate $100,000 of income a year. The driver is paid $25,000. Is this because the driver had transported 10 of the passengers without the bus while the bus had transported 30 of the passengers without the driver? The driver’s pay is so small only because the driver is so weak at the bargaining table.

It was Smith who explained that the bargaining power of each party is determined by the laws that the government passes and the way that it enforces them, and that, as a rule, the government sides with employers against employees. He was particularly concerned with anti-unionization laws. Had he witnessed the largesse that boards of directors are permitted to offer executives, and the government’s behavior toward executives in the current crisis, he probably would have added that the government also sides with executives against shareholders and taxpayers.

Despite the logic of Ricardo and Smith’s explanation that it is power, not productivity, that determines what people earn, the notion that people earn what they “deserve” persists. It dates to the Haymarket riot of 1886 in Chicago — in which police and labor protesters clashed and several policemen and demonstrators were killed — and the labor unrest that followed. Concerned about this unrest, John Bates Clark, a Columbia University professor, warned in an 1899 book: “The indictment that hangs over society is that of ‘exploiting labor.’ If this charge were proved, every right-minded man should become a socialist.”

It was thus with a clear political agenda that Clark took it upon himself to prove that the charge of exploitation of workers was dead wrong. Clark’s “proof” was to ignore the fact that production is carried out by teams and that individual contributions cannot be measured. He simply declared that the contribution of each individual worker and each machine could be measured, and that the earnings of either workers and executives or machines are simply the values of these contributions.

In this view, if the government were to raise wages by law, employers would have no choice but to fire workers, because no employer can pay out more than the worker puts in. And if the government were to set limits on executive compensation, the bright and the talented would choose to work less or limit the level of their performance.

Evidence that Clark’s theory is wrong — that production is carried out by teams and that astronomical compensation is not a requirement for good performance — can be found everywhere. In 1941, Wassily Leontief, a Nobel Prize-winning economist, tried to alert economists to the fallacy of Clark’s theory. But Leontief, like Ricardo and Smith, was ignored. And Clark’s tale that earnings are determined by productivity alone is still being taught around the globe.

Corporate executives take a different approach: picking the argument that suits them. When it comes to their workers’ wages, Clark’s theory rules: The wage of each worker is equal to the value of his or her product, and raising wages will cause unemployment. When it comes to the executives’ own compensation, however, they hide behind the idea that an individual’s contribution can’t be measured. So even when the corporations they run lose big and their stocks decline, they still collect millions in pay. Executive compensation is now so large that executives’ work effort no longer has any relation to the level of their compensation.

Adam Smith got it right: The remedy for the rule of power is the rule of law. We need new laws to check the unfair distribution of the fruits of our labor. One such law could set a maximum ratio at any given company between the highest executive compensation and the lowest worker’s wage. Another could set a minimum ratio for the division of income between labor and shareholders. Still another could raise the minimum wage and tie it to the median wage, which would make the minimum wage a consistent living wage.

Overpaid executives take more than their fair share and leave too little for the rest of us, threatening our health — and that of society.

Moshe Adler teaches economics at Columbia University and is the author of “Economics for the Rest of Us: Debunking the Science That Makes Life Dismal.”

*This article originally appeared in The L.A. Times on January 4, 2009. Reprinted with permission from the author.

About the Author: Moshe Adler teaches economics in the department of urban planning at Columbia University and is the author of the just published book: “Economics for the Rest of Us: Debunking the Science that Makes Life Dismal.”

Today is Pay Equity Day. The National Committee on Pay Equity came up with the idea in the mid-1990s to acknowledge a day in April to remind us that it takes women a full year PLUS an extra four months of earning a salary (or a total of 16 months) to equal the amount male colleagues net in just one calendar year (12 months). That is what it means when you hear the statistic that women who work full time earn about 78 cents for every dollar men earn (See U.S. Census Bureau and the Bureau of Labor Statistics). Minority women are subject to a far greater wage gap.

Not mad yet? Those twenty-two cents add up. The Center for American Progress reports that women who work year-round earn less than men in comparable jobs and at all educational levels. The wage gap increases over a woman’s lifetime and adds up to $434,000 over a 40-year career for the typical woman. A woman with a bachelor’s degree or higher can lose more than $713,000 (See Center for American Progress, “Wage Gap by the Numbers“).

“Well,” you’re thinking, “that sounds pretty bad, but this is someone else’s problem; surely I am not being paid less than my male colleagues!” Think again. The statistics say otherwise. The gender wage gap is documented in all 50 states and is at a national average rate of 78 percent (Source: National Women’s Law Center’s calculations from the U.S. Census Bureau, Income, Earnings and Poverty Data from the 2007 American Community Survey (August 2008). You do the math – chances are, if you are a woman in the workforce, it is highly likely that you are earning less than had you been a man.

If you are a man reading this, then it should trouble you that the gender wage gap is harming your wife, sister, mother, daughter, friends and colleagues. According to the AFL-CIO, working families lose $200 BILLION every year due to the wage gap! Your women are bringing home less bacon than they should be, and it is affecting everyone’s bottom line.

Or think of it another way: the current recession is especially hitting male-dominated industries, such as construction and manufacturing. Four out of every five jobs being lost in this recession affect men. Women are becoming the main breadwinner, but, on average, make up only one-third of a family’s income. Prolonged, systemic pay inequity will further hurt families who have lost the earnings of the male breadwinner and must solely depend on the woman’s wages, to say nothing of single mothers who struggle year in and year out independent of economic downturns.

In honor of Pay Equity Day, it is reasonable and even encouraged to express your well-earned outrage. There are a number of legislative efforts seeking to close the wage gaps between men and women, and minorities as well. A number of organizations’ web sites today will detail current and soon-to-be-introduced legislation to close loopholes, enhance provisions under the Equal Pay Act, and prohibit employer retaliation against workers who inquire about employers’ wage practices. I encourage you watch one of the more amusing Equal Pay legislation videos out from the Center for American Progress. Check out EQUAL PAY: Batgirl vs Chamber of Commerce.

Fixing this issue legislatively is one important approach, but cannot be achieved exclusively in this manner. If you have any doubts, consider that it was President Kennedy who signed the Equal Pay Act into law more than forty-five years ago. If Kennedy’s challenge to land a man on the moon were as successful as the Equal Pay Act, Neil Armstrong’s ‘giant leap for mankind’ would have been referring to a cool telescope.

The most direct, proven tool to combat pay inequity are unions. According to AFL-CIO compiled data from the Bureau of Labor Statistics for 2008, on average, unionization raised women’s wages by 32% compared to non-union women. A study by the Center for Economic and Policy Research found that for the years 2004 – 2007, unionized women were much more likely to have health insurance (75.4%) and a pension (75.8%) than women workers who were not in unions (50.9% for health insurance, 43% for pensions.) In real dollar terms – the average unionized woman working full-time earns a weekly salary of $809 per week vs. the $615 a non-unionized woman will earn.

The same business groups, such as the Chamber of Commerce, who fought against the Ledbetter Fair Pay Act, which restores the right of victims of pay discrimination on the basis of sex, race, national origin, age, religion and disability to challenge the discrimination in court, are the same groups waging war against the Employee Free Choice Act – the bill that will give workers the freedom to choose a union to represent them. The more women unionize, the more they rightfully earn and the narrower the wage gap becomes.

Help pass the Employee Free Choice Act, and soon we might be celebrating Pay Equity Day when it should be celebrated – in December.

About the Author: Eileen Toback is a political strategist and labor relations expert. To read more of Eileen’s commentary on labor issues, check out unionmaiden.wordpress.com. If you have a question for Eileen, contact her via eileentoback@gmail.com.

The president described the Act as, “upholding one of this nation’s founding principles that we are all created equal and we each deserve a chance to pursue our own version of happiness.”

The Ledbetter decision creates an absurd result. Individual pay decisions by themselves are usually small, incremental changes, not as obviously motivated by discriminatory intent the way that more serious discrete acts such as terminations or failures to promote do.  It is not until many discriminatory wage decisions have occurred that the discriminatory injury becomes clear to the employee.  Often, it takes many years for this pattern to develop before the employee realizes that she might have a claim.

The Ledbetter decision is inconsistent with the purposes of Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large.  It leads to an absurd situation where employees must bring pay claims prematurely when they cannot be sure there has been unlawful pay discrimination. If the employee waits to a later time when there exists more substantial evidence of pay discrimination the employee will be barred from bringing the claim at all by the statute of limitations (as in Ledbetter).  This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.

But legislative nullification depends on both what the next Congress and President plan to do to address this glaring gap in ensuring pay equity in the workplace. Even if Congress continues to support the Lilly Ledbetter Pay Equity Act and passes it in both houses next year, the identity of the next President may determine whether that legislation is signed into law.

John McCain has stated that he is “in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems . . . . This is government playing a much, much greater role in the business of a private enterprise system.” McCain chose not to return to Washington to participate in the Senate vote on the Ledbetter bill (See Washington Post article.)  Barack Obama, on the other hand, has pledged his unequivocal support for the Ledbetter bill and returned to Washington for the bill’s Senate vote in April.  (See Washington Post article.)

On this Labor Day, while we praise all the workers throughout this country for their dedication and selflessness in making the United States the economic power that it is today, let us not forget that without equal wages for an equal day’s work for all members of our workforce, we really have accomplished very little. Let’s hope that regardless of who is elected president that women are no longer afforded merely second-class status in the workplace and the Ledbetter decision’s days are numbered.

About the Author: Professor Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.

Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

Note: Workplace Fairness is a nonprofit organization and does not make political endorsements. The opinions expressed by our guest bloggers are their own.