Six years ago in January, President Obama signed his first piece of legislation — the Lilly Ledbetter Fair Pay Act – to extend the time period in which an employee could file a claim for pay discrimination. The Act overruled the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber, which Ledbetter said allowed her employer to pay her unfairly “long enough to make it legal.”
At the time of its passage, President Obama said that the passage of the Act would “send a clear message that making our economy work means making sure it works for everyone.”
Sadly, in the six years since the passage of the Act, the gender pay gap has – at best – barely budged. Indeed, by some estimates, the wage gap has actually widened in the last few years.
If the new Congress is truly committed to the goal of pay equity, concrete steps must be taken. First, Congress should pass the Paycheck Fairness Act, which will strengthen the Equal Pay Act and help secure equal pay for equal work. Second, Congress must act to increase the minimum wage, as women make up two-thirds of the country’s minimum wage earners. Third, Congress should enact a universal, government-paid preschool program, as 10% of the wage gap is attributable to time that women spend outside of the workforce.
While the Lilly Ledbetter Fair Pay Act was a step in the right direction, Congress still has a lot of work to do to close the persisting wage gap. Let’s hope by the Seventh Anniversary of the Act, we are closer to pay equity and an economy that truly works for everyone.
This article originally appeared on celavoice.org on January 29, 2015. Reprinted with Permission.
About the Author: Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.
According to a recent study by MTV, the majority of millennials believe that they live in a “post-racial” society. They cite Barack Obama’s presidency as a great achievement for race relations. Having a black President even influenced a majority of the study participants to believe that people of color have the same opportunities as white people. Unfortunately, employment statistics say otherwise. Since 1972 –when the Federal Reserve began collecting separate unemployment data for African-Americans — the black unemployment rate has stubbornly remained at least 60% higher than the white unemployment rate. The gender pay gap has barely budged in a decade, with full-time women employees being paid 78% of what men were paid. And the gap is worse for women of color, with Hispanic women laboring at the bottom, with only 54% of white men’s earnings. 70% of Google employees are male, with only 2% Black, 3% Latino, and 30% Asian. This from the company whose motto is “Do no Evil.” How can this be? While overt racism or sexism is rarer today in corporate America, implicit biases linger.
Imagine that you are supervisor, with two virtually identical resumes on your desk. Both candidates are equally qualified. Do you gravitate toward the one with a white Anglo-Saxon name (think “Emily” or “Brendan”), or a name more likely to belong to an African-American (think “Lakisha” or “Jamal”)? Aware of their bias or not, hiring managers are 50% more likely to call the applicant with the white-sounding name in for an interview. There is a growing body of research like this that proves that implicit bias is real and is having real-life consequences for people who are considered “other” in terms of race, disability, sexual orientation and other characteristics. (There are even on-line tests you can take to find out about your own implicit biases.) But even as our understanding of how implicit bias leads to discrimination grows, judges often fail to recognize that discrimination can result from unconscious stereotypes or subtle preferences for people similar to oneself—perhaps today even more than overt bigotry. To truly provide equal opportunity for all, social science research into how people actually behave in the workplace must inform the enforcement of anti-discrimination laws.
This article originally appeared in celavoice.org on December 4, 2014. Reprinted with permission.
About the author: Amy Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.
A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.” These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen. Last month, Wolfe brought suit against Tinder for sex discrimination and harassment. Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse. Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”
The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience. Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference. After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats. She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”
In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances. And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry. An online video game was even released in which users could “beat up” Sarkeesian. These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.
There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution. These laws provide strong protections against gender harassment in employment and other contexts. So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?
It doesn’t help that tech companies are also notorious for their lack of diversity. This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white. The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade. These numbers confirm what the stories reflect — that this industry truly is “a man’s world.” And this needs to change.
Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive. Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.” While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected. Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.
Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech. This also needs to change. Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.
But change will not be achieved without help from sources outside the industry. Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry. We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance. If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”
The tech world doesn’t have to be a man’s world, and it shouldn’t be.
This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.
The latest numbers from Folio about who makes what in the world of magazine editing reaffirm what we already know: women make less money than men in comparable positions. Male editors-in-chief or editorial directors of magazines make $100,800 to women’s $85,100. For executive editors, men pull down $84,200 to women’s $65,700. And for senior editors, men make $63,600 to the $58,200 women take home in salary. What those numbers don’t tell us is how to start rectifying those pay gaps, which, as Folio editor Bill Mickey told The Atlantic Wire, start to seem inevitable: “We don’t have any further insight into that number, except that the gap has historically been about the same and I believe aligns with national trends across other industries.” We’ve collected data on gender and pay and gender and bylines for a long time. But if we want things to change, we need to start cross-referencing these numbers to see who’s doing worse, who’s doing better, and why.
Folio’s numbers, for example, break out pay not just by gender, but by whether the editors at business-to-business publications, consumer magazines, and trade publications, where they are geographically, by size of publication, and by years in the business. Looking at the numbers by gender alone are discouraging—they make it look like everyone is doing badly. But if we started cross-referencing those numbers, we might be able to see if some kinds of publications do better than others. Are women able to get a leg up in business-to-business magazines? Are the numbers skewed by bigger-than-normal pay gaps in New York, the center of the magazine industry? Are the numbers closer to parity in entry-level positions, indicating that time is doing the work to change a culture of pay inequality that magazines previously haven’t done?
These are the same kinds of questions that it would be useful to apply in film and television as well, where there is much less comprehensive salary data in any case. Knowing if women do better in dramas or comedies, in shows or films produced by different studios or airing on different networks or distributed by different companies would help us figure out who’s doing exceptionally poorly, and who’s made strides.
Until we figure out who’s doing better and who’s doing worse, we won’t be able to start asking questions about the specific cultures and practices that produce pay gaps and those that are proving successful at closing them. There are challenges, to that, of course, most significant that these surveys survive on some kind of anonymity. The organizations and individuals who are doing poorly would never want to be exposed as being so. And even organizations that do better may be hesitant to step forward to talk about their practices, for risk of exposing themselves to scrutiny for the work that still remains, and to questions from their own employees about whatever gaps persist. The fact that we lack information about salaries is intentional, and always to the benefit of companies that pay those salaries. Without accurate, cross-referenced data, it’s difficult for individuals to know if they’re being paid fairly and to negotiate if they’re not. And without those numbers, it’s impossible for us to identify industry-wide best practices, either. Numbers like these are an opening step in a road towards actual, useful transparency, rather than the end of it.
This blog originally appeared in Think Progress on September 27, 2012. Reprinted with permission.
About the Author: Alyssa Rosenberg is a culture reporter for ThinkProgress.org. She is a correspondent for TheAtlantic.com and The Loop 21. Alyssa grew up in Massachusetts and holds a B.A. in humanities from Yale University. Before joining ThinkProgress, she was editor of Washingtonian.com and a staff correspondent at Government Executive. Her work has appeared in Esquire.com, The Daily, The American Prospect, The New Republic, National Journal, and The Daily Beast.
The women who work in Idaho Gov. Butch Otter’s (R) cabinet make substantially less than their male colleagues, according to a McClatchy analysis of state salary data. Despite chairing the state Agriculture Department, for instance, Director Celia Gould makes less than male directors.
Gould has been with the administration since its first day in 2007 and oversees 259 employees; Commerce Director Jeffrey Sayer, by contrast, joined the administration in October and oversees 53. And yet, Sayer makes nearly $40,000 a year more than Gould, the highest-paid female employee. In fact, across Otter’s administration, the median wage for women is nearly $20,000 less than the median wage for men, McClatchy found:
She is the highest-paid of the women in Otter’s Cabinet but ranks just 16th among all top full-time officials. The median salary for 11 women in the Cabinet is $85,446; the median for the 33 men is $103,002.
“We really do have a glass ceiling in Idaho,” said Rep. Wendy Jaquet of Ketchum, the senior Democrat in the Legislature and a member of the budget committee.
While the pay gap between Otter’s male and female employees is substantial — the women make roughly 82 cents for every dollar earned by men — it isn’t as large as the overall pay gap between men and women in America. American women make about 77 percentof what men make, and the gap is even larger for minorities. In 2010, black women made 67.7 percent of all male earnings, while Latino women made just 58.7 percent. That wage gap costs women huge sums of money — a woman with a college degree, for instance, will earn $723,000 less over a 40-year career.
Despite legislative efforts, the gap isn’t closing. President Obama signed the Lilly Ledbetter Fair Pay Act, which made it easier for women to sue for pay discrimination, in 2009. Senate Republican, however, blocked the Paycheck Fairness Act, which would have updated the Equal Pay Act, closed many of its loopholes, and strengthened incentives to reduce pay discrimination, earlier this year.
This blog originally appeared in ThinkProgress on March 21, 2012. Reprinted with permission.
About the Author: Travis Waldron is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Travis grew up in Louisville, Kentucky, and holds a BA in journalism and political science from the University of Kentucky. Before coming to ThinkProgress, he worked as a press aide at the Health Information Center and as a staffer on Kentucky Attorney General Jack Conway’s 2010 Senate campaign. He also interned at National Journal’s Hotline and was a sports writer and political columnist at the Kentucky Kernel, the University of Kentucky’s daily student newspaper.
As legions of Walmart workers shuffled into work on Monday, the Supreme Court smacked down a major class-action lawsuit that might potentially have shifted the legal landscape on women’s rights in the workplace.
The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”
And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.
The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.
The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:
The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.
By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.
There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”
After leaving the job, Arana told PBS NewsHour in 2004:
I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.
The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.
But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.
Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:
Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.
In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.
This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.
About the Author: Michelle Chen ’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.
It may not seem credible that gender discrimination remains widespread and systemic in American workplaces. Women outnumber men in colleges and graduate programs; they have entered the workforce in force; women run some companies, universities, states, and departments of the federal government.
Despite all this progress, though, discrimination persists. Women are only 17% of Congress members. Women head a mere 2.6% of Fortune 500 companies. In other words, men still overwhelmingly control our most powerful political institutions and our economy.
The familiar glass ceiling argument could explain this striking disparity: women can rise up through the ranks professionally, but at some point they hit the glass ceiling and cannot go any higher. If that were the only problem, it might explain why women are so conspicuously absent from the powerful positions listed above. But the gender disparities start well below the highest levels of power.
A striking pattern emerges from statistics analyzing the numbers of women at various levels in financial services companies (which I’ve become familiar with from representing so many women in discrimination cases against them). At the entry level, there can be as many female as male employees. At the next level up, women make up a smaller percentage of employees. At the next level, even fewer of the workers are women. And on it goes, until you reach the near complete absence of women from the position of CEO. Graphically, the numbers describe a pyramid: with every promotion the percentage of women shrinks.
Even the most fair-minded people are subject to unconscious biases. The Implicit Association Test is one of many studies to demonstrate that people can have strong preferences and antipathies they may not be aware of. Even people who consider themselves very fair-minded can be unconsciously prejudiced against minorities, for example. To give a very rough summary of part of the underlying theory, people tend to think in terms of “in groups” and “out groups.” My “in group” is the group of people who are like me in salient ways such as gender, race, religion, age, educational background, profession, family status, etc. I tend to attribute more positive characteristics to members of the in group and more negative characteristics to members of the out group, who are unlike me. For instance, as a native Midwesterner, I may unconsciously prefer fellow Midwesterners to people from other parts of the country, although if you ask me whether I think Midwesterners are better than other Americans in any way, I will honestly answer that I don’t. The bias is unconscious.
Unconscious biases operate in the workplace as they do in every other sphere of human interaction, with the result that the groups in power tend to stay in power. Male managers may subconsciously believe that other men are more capable than women, outperform women, or are more committed to their work than women. Again, these beliefs can be subconscious, but they still affect decision-making. When it comes to a subjective decision such as who deserves a promotion, a male manager with an unconscious bias in favor of men is more likely to promote a man than a woman. The same is true of granting raises, distributing assignments, and making opportunities like management training available. This is how unconscious bias can combine with subjective decision-making to favor men (and other groups like whites) and to create the pyramid that leaves women at the lower corporate levels while disproportionately men climb to power.
There are other factors at work here too. People tend not only to think more highly of members of their in group, but to be more comfortable with them. As a result, a male manager may invite some employees to a golf outing or to dinner – nothing formal, just being a down-to-earth supervisor. He invites the employees with whom he feels most comfortable or thinks he has the most in common. A slew of scientific studies demonstrate that he is likely to feel most comfortable with the employees who belong to his in group – in this case, men. As a result, he gets to know his male subordinates better and become friends with them. When plum assignments or opportunities for promotion arise, the manager is more likely to dole them out to the subordinates he is more comfortable working with and is friends with.
Unconscious bias is difficult if not impossible to change. Researchers including Frank Dobbin of Harvard University have shown that common techniques for combating prejudice, such as diversity training, not only do not help – they actually backfire.
The way to tackle workplace discrimination is not to try to change people’s unconscious thoughts, but to make decision-making processes less subjective and therefore less vulnerable to unconscious bias. Action must come from the top of the organization: an employer that provides clear, objective criteria to guide otherwise subjective decisions, and that enforces the use of those criteria, will make the workplace less discriminatory by diminishing the opportunity for decision-makers’ unconscious biases to affect their judgment.
The settlement of the gender discrimination class action against Novartis discussed in the first part of this post takes a stab at making these kinds of changes. It requires Novartis to clarify and systematize the criteria for evaluating employees, to train managers to evaluate employees fairly, and to “calibrate” evaluations to check that evaluators are applying performance criteria in a uniform manner.
Where bias is conscious and discrimination is intentional, decision-makers will find ways around objective criteria for decision-making. Conscious prejudice presents an entirely different set of challenges than unconscious bias. But I’d like to believe that a lot of workplace discrimination results from unconscious bias and that employers will improve their procedures to protect decision-making processes from that bias. Some employers have already done so, albeit usually under court order (demonstrating the need for more discrimination class actions). Employer initiatives to make subjective decision-making more objective will help end workplace discrimination. Please post a comment to share your workplace experience
About The Author: Piper Hofman is a writer and attorney living in Brooklyn with a B.A. magna cum laude from Brown University and a J.D. cum laude from Harvard Law School. She has professional experience with the laws related to employment, animal rights, poverty, homelessness, and women’s rights.
It addresses gender discrimination, sex stereotyping, and a corporate culture of discrimination in a way few cases have. It’s simply a great case for employees – particularly for victims of sex discrimination.
What Happened In The Case
Merritt worked as a line haul truck drive for Old Dominion, a nationwide trucking company. As a line haul driver, Merritt made lengthy cross-country trips. She performed her duties without incident or complaint. At some point, Merritt became interested in becoming a pickup and delivery driver so she could work more regular hours and spend nights and weekends at home.
To prove that she could do the job, she filled in numerous times as a pickup and delivery driver, and once again performed the duties without incident or complaint.
When a permanent pickup and delivery position became available at Old Dominion’s Lynchburg Virginia terminal, Merritt talked to Bobby Howard, the terminal manager about it. Howard told her that he lacked the authority to fill the position and proceeded to hire a less experienced man for the job.
The following year another permanent pickup and delivery position became available in Lynchburg and Merritt again expressed an interest in the position to Howard. Once again, Merritt was passed over in favor of a less experienced male.
When Merritt asked why she was not hired, Howard told her that :
it was decided and they could not let a woman have that position.
the company did not really have women drivers in the city (as pick up and deliver drivers)
On another occasion he told her:
the Regional VP was worried about hiring a female pickup and deliver driver because women were more injury prone and he was aftaid a female would get hurt
the VP didn’t think a girl should have that position
Finally, a year later, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in Lynchburg. Merritt was placed on a ninety-day probationary and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms.
For the next two years, Merritt performed her Pickup and Delivery duties without a problem. Unfortunately, she then suffered an ankle injury at work which was diagnosed as plantar fascititis with a superimposed strain. She was put on light duty work by her doctor at first, but a couple of months later, he gave her a clean bill of health.
When she attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required Merritt to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis.
Merritt struggled with several segments of the test and received a failing grade. According to Merritt, the tasks she had problems with had nothing to do with her ankle. In one portion of the test, for example, Merritt was unable to place a box of weight on an overhead shelf simply because she was too short.
After receiving the results of Merritt’s PAT, Stoddard terminated Merritt’s employment. Merritt filed a charge of sex discrimination with the EEOC and then filed a lawsuit in federal court in Western District of Virginia claiming that Old Dominion terminated her because of her gender in violation of Title VII Civil Rights Act of 1964.
The district court granted judgment against Merritt because it found that Old Dominion produced a legitimate reason for firing Merritt (she failed the PAT) and because she had not produced any evidence that Stoddard (the decision maker) harbored any “discriminatory animus” towards Merritt. Merritt appealed.
The 4th Circuit Court of Appeals Reverses
Title VII makes it unlawful to discriminate against an individual on the basis of sex. The most prevalent method of establishing discrimination is under the burden-shifting framework set forth in the Supreme Court case of McDonnell Douglas Corp v. Green which goes like this:
The plaintiff makes out a prima facie case of discrimination
The burden shifts to the employer to articulate a legitimate, non-discriminatory justification for its allegedly discriminatory action
If the employer carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the neutral reason offered by the employer was not a true reason but a pretext for discrimination.
Ultimately, the plaintiff has the burden of proving that he or she was a victim of intentional discrimination.
In this case, Old Dominion put forth its legitimate non discriminatory justification for discharging Merritt – her failure to pass the PAT. That proved, according to Old Dominion, that Merritt did not have the “requisite physical strength to safely perform the job duties.” Merritt insisted that this rationale was a pretext for discrimination.
The Court of Appeals agreed with Merritt and found that the “record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”
According to the Court, Merritt produced plenty of evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver. As the Court pointed out:
Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.
In addition, the Court found that Merritt produced evidence of discriminatory intent. For one:
Injured male employees did not have to take the PAT test
Merritt produced evidence that the policy requiring all injured employees to take the PAT test did not exist
As the Court stated:
While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.
In addition, the district court ignored evidence of the corporate culture of discrimination produced by Merritt. The Court stated:
It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. …..
While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard’s own selective use of the PAT in Merritt’s case in a less neutral context.
In Lattieri v. Equant, ….[w]e deemed the plaintiff’s ‘powerful evidence showing a discriminatory attitude at her company of employment toward female managers’ sufficient to ‘allow a trier of fact to conclude that these discriminatory attitudes led to plaintiff’s ultimate termination.’ Likewise here.
The sum, the Court said:
Old Dominion fired an employee who was, according to the district court, able to do her job without assistance and in a satisfactory manner’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotype work environment.
In this case, it not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial….
Based on all of the foregoing reasons, we reverse the district court’s grant of summary judgment to Old Dominion and remand for trial on Merritt’s Title VII claim.
This case helps women in circumstances similar to Merritt’s – firefighters, police officers, constructions workers, etc. — those in male dominated physical professions who still face widespread discrimination because they are simply not wanted.
Just this past fall, I counseled a female firefighter who was repeatedly seeking a promotion, and forced to take numerous tests that were not required of her male counterparts. It’s not an unusual scenario though this type of discrimination is precisely what Title VII is aimed to prevent. The Merritt case, no doubt, should help women fight for equality in the workplace.
In a broad sense, this case hits so many of the issues that come up in discrimination cases all of the time – “stray remarks,” “post- hoc justifications,” “shifting explanations,” the parsing of evidence by district court judges — to name a few, and frames them in a way that will be extremely helpful to employees and their lawyers in discrimination litigation in the future.
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.
The committee Chair, Sen. Barbara Mikulski, reacted strongly to Robertsons’ testimony, calling it a bone-chilling and morally repugnant story of insurance company abuse. Today, the New York Times caught up with Robertson and asked for her reaction to the health care bills’ passage into law:
In a telephone interview on Friday, Ms. Robertson said: Barbara Mikulski told me, she promised me, This will never happen again. She did it. Its wonderful.
And finally, bloggers and partner organizations (esp. the National Women’s Law Center) wallpapered the web with original reporting, thoughtful analysis and calls to action on ending insurance company discrimination against women. Blogs like Feministing, RH Reality Check, and Feministe fiercely reported on these stories and directed their readers to actions.
Together, we made history. Because of your activism, in four years, United States law will ban insurers from discriminating against women with higher fees, denial of coverage, and failure to provide coverage of critical procedures and services, like maternity care and c-sections.
*This post originally appeared in SEIU Blog on March 30, 2010. Reprinted with permission.
About the Author: Jessica Kutch is an online campaign manager for the Service Employees International Union (SEIU), where she directs the union’s new media campaign to win health insurance reform. She’s been organizing online since 2005, and has expertise in email advocacy, online advertising, social media and blogger relations. Before joining SEIU, Jess managed online campaigns for Public Citizen’s Congress Watch division. She’s a graduate of Bennington College.
Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim
There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.
The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.
Facts Of The Case
It’s a long story, but here’s the gist of it.
JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.
The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.
During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.
Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.
She was retaliated against and fired, she believed, because of her complaints.
The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.
The Second Circuit Reverses
The Faragher/Ellerth Defense
One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.
In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:
* permeated with discriminatory intimidation, ridicule, and insult that is
* sufficiently severe or pervasive to alter the conditions of the victim’s employment and
* create an abusive working environment
In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”
In this case, Gorzynski presented evidence that Celeste:
* grabbed Gorzynsi and other women around the waist
* tickled them
* stared at them as if” he was mentally undressing them”
* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.
The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.
The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:
* it exercised reasonable care to prevent and promptly correct any harassing behavior and
* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm
With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”
JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:
* only complained to her supervisor — the harasser
* did not complain to other members of management.
The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.
The Second Circuit rejected the District Court’s conclusion and reversed. It stated:
We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.
Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.
Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.
Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.
In this case, the Court noted that:
* the other manager Gorzynski could have complained to was Thro — the regional manager
* the evidence showed that Thro was not receptive to receiving complaints from employees
* the evidence also showed that Thro was intimidating
* Thro retaliated against those who made complaints
Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.
Remaining Issues Of Fact For The Jury
Gorzyski established a prima facie case of age discrimination:
* she was over 40
* she was qualified for her position
* she was fired
* she was replaced by a woman in her 40’s
JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”
The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.
The Second Circuit disagreed. Some of the evidence it noted was:
* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week
* a contemporary, anonymous crewmember gave her a 4 out of 5
* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him
* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”
* Celeste told Gorzynski she reminded him of his 80 year old aunt
* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job
The Court stated:
Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.
Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.
(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)
The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.
In order to establish a retaliation claim, the plaintiff must show
1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action
The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:
* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”
* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination
* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court
In sum, the Court said
JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.
Lessons To Be Learned
The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.
It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.
Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.
Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.
*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.
About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.