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The pay gap and sexual harassment must be addressed simultaneously

Wednesday, October 25th, 2017

Over the past few days, more and more men have continued to resign or at the very least publicly confront accusations of sexual harassment, and this trend shows no sign of slowing down.

On Wednesday, former President George H.W. Bush apologized for groping actress Heather Lind (with a caveat that it was an “attempt at humor“). On Tuesday, Leon Wieseltier, former literary editor of The New Republic, apologizedfor “offenses against some of my colleagues in the past” after Emerson Collective, a for-profit organization, stopped supporting Wieseltier’s project, a new magazine. On Monday, a top labor executive who led the Fight for 15 campaign resigned. Former and current Service Employees International Union (SEIU) staffers told BuzzFeed that SEIU Executive Vice President Scott Courtney had sexual relationships with young female staffers who were later promoted. Last Friday, Lockhart Steele, editorial director at Vox Media, was removed from his position after a former Vox employee, Eden Rohatensky, wrote a post on Medium that led to a company investigation. (Rohatensky did not mention Vox or anyone at Vox by name but did say “one of the company’s VPs” put his hands on them and started kissing them.)

The alleged sexual harassment and assault has ranged from the entertainment industry to the financial industry. On Sunday, The Wall Street Journal reported that Fidelity, a financial services corporation, has its own problems with sexual harassment. Also on Sunday, the Los Angeles Times reported that 38 women came forward to accuse Director James Toback of sexual harassment. It took a few hours for the number of women accusing Toback to double, and now, the reporter says that a total of 193 women contacted him since his initial expose.

But if companies are going to tamp down on sexual harassment, they need to do more than spend money on sexual harassment training and hope that’s enough. As Vox reported, sexual harassment trainings have become a legal precaution more than anything, and the data shows that they are not effective at lowering incidents of harassment. Trainings often help people realize what counts as workplace harassment, but they don’t actually change change their views or actions. Instead of simply holding trainings and hope they work, employers must make it clear that there is a culture of accountability and transparency for everyone, even executives and people who consistently provide results for the company — or the “rainmakers.” They also have to ask themselves important questions about the performance review process and how it determines pay, because women’s lack of economic power in their workplaces often makes them vulnerable targets for sexual harassment. Are senior employees held accountable for their biases in performance reviews?

Brit Marling emphasized this point when she told her own story about sexual harassment and a meeting with Harvey Weinstein that sounds like so many others. As in many other cases, Weinstein’s assistant said the meeting had been moved from a hotel bar to his hotel suite. When she got there, Weinstein asked her to shower with him. She left the room, but as it all unfolded, Marling said she was very aware of the power he had over her career. She wrote:

Men hold most of the world’s wealth. In fact, just eight men own the same wealth as 3.6 billion people who make up the poorer half of humanity, the majority of whom, according to Oxfam, are women. As a gender whole, women are poor. This means that, in part, stopping sexual harassment and abuse will involve fighting for wage parity.

Last year, the gender wage gap widened, according to a March Institute for Women’s Policy Research analysis. The ratio of median weekly earnings for women working full time compared to men decreased by 1.4 percent. Even improvements in the economy don’t help women get better-paying jobs, since those usually go to men, in part because of occupational segregation that pays women less when they are in fields dominated by women.

Bias in performance reviews certainly doesn’t help. Paola Cecchi-Dimeglio, a postdoctoral research fellow at Harvard University, shared her findings on individual annual performance reviews and bias in Harvard Business Review. Cecchi-Dimeglio found that women were 1.4 times more likely to receive critical subjective feedback, not positive feedback or critical objective feedback and that traits that were considered negative in women were often interpreted as positive in men. Where a man was considered careful for taking his time on a project, a woman was told she had “analysis paralysis.” Women’s successful performance in the office was often perceived to be the result of hard work or luck rather than abilities and skills.

Cecchi-Dimeglio said that the solution to dealing with some of these issues of gender bias include using more objective criteria, making reviews more frequent, which appeared to cut down on gender bias, and using a broader group of reviewers. A 2008 study by Emilio Castilla focused on the impact of lack of transparency and accountability on performance appraisal and performance pay.It found that employers adopting merit-based practices and policies, which are meant to motivate employees and foster a meritocracy, can actually increase bias and reduce equity in the workplace if the policies have limited transparency and accountability. The study noted that some experts on performance evaluation practices say that there should a separation of performance appraisals and salary discussion, in part because employees will focus more on the monetary amount they receive than the feedback, and managers can “manipulate performance ratings to justify salary increases” they want to give to certain employees.

Another 2012 study also reinforces the idea that transparency and accountability are central to dealing with pay inequities. Janice Fanning Madden, a Wharton real estate professor and a professor of regional science and sociology at the University of Pennsylvania, looked at the gender pay gap among stockbrokers.Madden found found that women were assigned inferior accounts, so they would earn lower returns and commissions, and as a result, they would be less likely to receive support staff, nice offices, and mentors. Using information about sales transferred by management from one broker to another, she analyzed performance and found that when women had clients who had the same potential for high commissions, they produced the sales results as men. This demonstrates the need for accountability for senior executives who are as subject to gender bias as anyone else.

Ariane Hegewisch, a researcher at the Institute for Women’s Policy Research who focuses on workplace discrimination, said that although Fidelity’s performance evaluation system, which women at the company have been critical of, may appear to be fair, it is lacking accountability for senior management. Hegewisch gave an example of a common problem in businesses and organizations.

“So the section heads have been told you have the power to assess people and there doesn’t seem to be a lot of control or monitoring of what they are doing,” Hegewisch said. “There are organizations where the HR department scrutinizes what section heads do and that has an element of performance accountability for those decisions, and that seems to be missing to some extent in the Fidelity system.”

Hegewisch added, “What it is interesting about this is that it was clearly not only women who felt aggrieved by this system. It was also some men who said it was unfair and led to inequitable outcomes and to favoritism.”

When it comes to sexual harassment claims, the situation is similar, Hegewisch added. People need to know that there is accountability for senior employees and rainmakers. There also needs to be transparency so that people know why someone left the company.

You can’t have the best designed systems if the culture is not supportive or the hierarchy is not seen as supportive. It will not generate the results that you want,” Hegewisch said. “We’ve told organizations to set up external complaint lines for sexual harassment cases. And then it turns out that in some organizations, they hand it over to HR and tell them who it is and nothing happens anyway.”

Even if a company is handling sexual harassment claims well, it needs to clear to employees what happened or why someone was dismissed. Of course, there are sometimes legal barriers to companies disclosing information about someone’s misconduct.

“If you do the right thing and pretend it was for a different reason, [it matters that employees] know about it and believe this was a way the company is backing them up when something like this happens. You have to be able to communicate it and if you can’t communicate it, you’re tying yourself up,” she said.

When it comes to reporting harassment, Hegewisch said, “There has to be some proof that people can take away that this is an issue that is serious that the company takes seriously.”

That means setting up systems to keep senior managers in check, not simply setting up a training for employees on what sexual harassment is. Since 2010, harassment complaints at the federal level stagnated or slightly rose, according to recent Equal Employment Opportunity Commission (EEOC) data. The report explained that the sexual harassment training provided over the past few decades has not been effective as a prevention tool, according to an EEOC report.

Researchers also recommend that employers try to achieve a gender balance at every level of their organization to reduce harassment and that employers need to provide assurances that people who report harassment will not be retaliated against. They need to guarantee protection against non-employer retaliation and confidentiality of complaints, when possible. The policies on how to report harassment should be clear to employees and any training on harassment should include an explanation of what constitutes employer retaliation.

This article was originally published at ThinkProgress on October 25, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress. She covers economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

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.

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.

Jane Espenson on Getting More Women in the Writers’ Room

Thursday, March 8th, 2012

Alyssa RosenbergJane Espenson, in a provocative and I think important essay for the Huffington Post, argues that the key to getting more women in the writers’ rooms of television shows is actually to walk away from the idea that women have something particular to add to the conversation:

Good writers can write across the gender line. We just can. And even those who can’t have undoubtedly convinced themselves that they can. So a male showrunner, confident in his abilities and those of his male writers, is probably not wringing his hands over how he’s going to get his female characters onto the page. By advertising ourselves as female character generators, we’re trying to provide a service that no one is clamoring for. Showrunner-dude is happy creating his own female characters. Making the case that there is a deficiency he’s unaware of is probably not going to resonate with him.

Even if you get such a showrunner to hire a woman, if you suggest that female writers have a specific (and limited) purpose, you are inviting those showrunners to feel they don’t need to hire additional women writers once they have one woman in the room; they have their female character generator, their lens onto the female point of view.

And beyond that, the argument leaves us with no basis to promote the value of women on a show with few or no female characters. In fact, it provides a frighteningly sound argument for not hiring us on such a show.

I actually think, if asked, that most male showrunners would say that they’re in agreement with Jane’s initial argument, that gender is not a legitimate factor in deciding not to ask someone to join their writing staff. But I do think there’s a gap between that theoretical agreement and actually seeking out women to work on a show. Dan Harmon’s said that it took an order from NBC programming head Angela Bromstead to get him to hire more women, an experience that ultimately convinced him that he wants to work with more women in the future. And I know he’s not alone in enjoying working with women.

I believe that Jane is correct that the best, most thoughtful male and female writers can create marvelous male and female characters interchangeably, that argument can as easily bolster the status quo as it can govern a more progressive future. But no one person, male or female, has the full range of experience with their own gender, or with people of the other gender—the more kinds of experience you have in a writer’s room, the more access you’ll have to the range of human life. And I think there are a lot of men who write female characters who are best flat and at worst are ugly distortions—and that there are more men who have the opportunity to write these sorts of depictions of women than there are women who have the chance to write stereotypes of men. Those men shouldn’t get a pass, and they shouldn’t get feedback that suggests that they’re doing just fine on their own. Because they’re not.

And if there’s absolutely no reason why white males need insights from women and people of color, why should they ever bother to hire them, especially if it means giving up job slots that otherwise would go to people who look like them? I wish I trusted more male showrunners to reach out from curiosity and a commitment to pure meritocracy, but the evidence just don’t particularly support that. Every major survey of women writers in television suggests that gains in that space are not durable: a single-year spike in the number of women in writers’ rooms tends to disappear, or even go backwards, in the next.

It might not pay to offend male show-runners sense of their capacity, but abandoning the argument that women and people of color have a definitive value add due to their experiences and perspective also means giving up a positive, substantive case for getting women and people of color—not to mention people of different class backgrounds—on writing staffs. I’d love it if we could peacefully talk our way into substantive gains in employment for women in television writing. But I don’t see the path to doing that without some difficult conversations.

This blog originally appeared in ThinkProgress on March 7, 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 ProspectThe New RepublicNational Journal, and The Daily Beast.

Employee Rights Short Takes: Supreme Court Hears Equal Protection Case, Firing For Facebook Posts May Be Illegal & More

Tuesday, November 23rd, 2010

ellen simon

Texas Doctor To Collect Over 10 Million On Defamation/Breach of Contract Case

The Supreme Court of Texas cleared the way for Dr. Neal Fisher, a Dallas physician, to collect his 9.8 million dollar verdict against Pinnacle Anesthesia Consultants – an anesthesia group of which he was a shareholder and founding member.

Fisher sued Pinnacle for defamation and breach of contract when Pinnacle falsely accused him of alcohol and drug abuse after he raised concerns about an increasing volume of patient complaints and questionable billing practices. In 2007, a Dallas jury unanimously rendered a verdict in his favor. Last year the court of appeals upheld the verdict.

This month, the Supreme Court of Texas issued an order declining to hear the case which means that the verdict stands. With pre and post judgment interest, it is reported that Pinnacle will have to pay Dr. Fisher somewhere in the vicinity of $10.8 million dollars. Fisher has been recognized as one of the top five anesthesiologists in the state of Texas. For more about the case, read here.

EEOC Issues GINA Regulations

The Equal Employment Opportunity Commission issued final regulations this month for purposes of implementation of the Genetic Information Non Discrimination Act of 2008 (GINA). Under GINA, it is illegal to discriminate against employees or applicants for employment because of genetic information. According to the Equal Employment Opportunity Commission:

GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increase, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

Congress enacted GINA to address these concerns….

The final GINA rules published by the EEOC on November 9, 2010 prohibits the use of genetic information or family medical history in any aspect of employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits employers from disclosing genetic information. Family medical history is covered under the Act since it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. The Act also prohibits harassment or retaliation because of an individual’s genetic information. For more about  the new rules and how to lawfully comply with them read here.

Firing for Facebook Posts About Work May Be Illegal

A Connecticut woman who was fired after posting disparaging remarks about her boss on Facebook has prompted the National Labor Board to prosecute a complaint against her employer – and this is big news. As noted by Steven Greenhouse in the NY Times:

This is the first case in which the labor board has stepped in to argue that workers’ criticism of their bosses or companies on a social networking site are generally protected activity  and that employers would be violating the law by punishing workers for such statements.

Dawnmarie Souza, an emergency medical technician was fired late last year after she criticized her boss on her personal Facebook page. The Harford, Connecticut office of the NLRB announced on October 27th that it plans to prosecute a complaint against her employer, American Medical Response of Connecticut as a result of its investigation.

The NLRB determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors.

It is not unusual for companies to have comparable policies in place as they attempt to deal with  lawful restriction of social networking by their workforce and that’s why this news made a huge impact in the employment law world this month.

Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms or conditions of their workplace. The NLRB has long held that Section 7 was violated if an employer’s conduct would “reasonably tend to chill employees” in exercising their NLRB rights and that’s what prompted the complaint.

You can bet that both employers and employees will be keeping a careful watch for the decision  which is expected some time after the hearing before  an administrative law judge currently scheduled for January 15, 2011. For more about it, read here.

Supreme Court Hears Case Claiming Unconstitutional Gender Bias In Citizenship Law

The Supreme Court heard arguments in Flores-Villar v. U.S. this month, a case which challenges the constitutionality of a law that makes it easier for a child of unwanted parents to obtain citizenship if the mother is a U.S. citizen rather than the father.

Ruben Flores-Villar was born in Mexico but grew up in California. He was convicted of importing marijuana, was deported, and illegally reentered the country. In 2006, immigration authorities brought criminal charges against him. At that time, Flores-Villar sought citizenship, claiming his father was a U.S. citizen. The request was denied by immigration authorities because of  a law requiring that a citizen father live in the United States for at least five years before a child is born in order for the child to obtain citizenship. Mothers need only to have lived in the county for one year for the child to obtain citizenship.

Flores-Villar claimed a violation of the equal protection clause of the Fifth Amendment claiming that the Act discriminated on the basis of gender. The Ninth Circuit Court of Appeals found against him and held that the law’s disparate treatment of fathers was not unconstitutional. The last time the Court considered the issue of gender differences in citizenship qualification was the case of Nguyen v. INS in which the Court upheld a law creating a gender differential for determining parentage for purposes of citizenship. Flores-Villar’s attorney argued that Nguyen was distinguishable because it was based on biological differences whereas this case was based on antiquated notions of gender roles.

There is no doubt that this will be an interesting and important decision from the Supreme Court. For more about the case, including the Supreme Court filings, read here.

This article was originally posted on Employee Rights Post.

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.

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