Posts Tagged ‘sex discrimination’
Wednesday, April 5th, 2017
With a lopsided majority joined by a bipartisan coalition of judges, the United States Court of Appeals for the Seventh Circuit held on Tuesday that discrimination on the basis of sexual orientation violates federal civil rights law, at least in the context of the workplace.
The court telegraphed in an order last October that Hively v. Ivy Tech Community College was likely to be a victory for victims of discrimination in the workplace. The final vote in the case, however, is a bit more surprising.
Eight of the Seventh Circuit’s judges joined Tuesday’s opinion, including Republican appointees Richard Posner, Joel Flaum, Frank Easterbrook, Ilana Rovner, and Kenneth Ripple. Only three judges dissented.
The case involves Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee’s “sex.” Though Title VII contains no explicit statement that discrimination on the basis of “sexual orientation” is prohibited, two crucial Supreme Court precedents inform Chief Judge Diane Wood’s majority opinion in Hively.
The first is Price Waterhouse v. Hopkins, which established that Title VII’s ban on sex discrimination is violated when an employee faces discrimination due to gender stereotyping. Thus, in that case, a female accountant could allege illegal discrimination if she was denied a partnership because her superiors deemed her too masculine. (One partner told her to take “a course at charm school.” Another deemed her too “macho.”)
One of the the core insights of Chief Judge Wood’s decision in Hively is that, because she is a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype.” Stereotypical women enter into romantic and sexual partnerships with men. Hively defies this stereotype by engaging in such relationships with women. So presuming that she must prefer relations with men is itself a form of gender stereotyping forbidden by Hopkins.
Wood’s opinion also offers several other reasons why sexual orientation discrimination should be understood as a form of sex discrimination. Indeed, as Wood explains, this case is actually pretty straightforward. “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Wood writes. If this claim proves to be true, then it “describes paradigmatic sex discrimination.”
In reaching this conclusion, Wood acknowledges that the lawmakers who drafted the Civil Rights Act of 1964 probably did not expect it to be used this way. But the conclusion that Title VII can be read more expansively than its drafters anticipated was embraced by Justice Antonin Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services.
Oncale was a case of male-on-male sexual harassment, something that, as Scalia wrote, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But so what?
As Scalia explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
A prohibition on discrimination “because of . . . sex” was expansive enough to cover male-on-male sexual harassment in Oncale. And it is big enough to encompass discrimination on the basis of sexual orientation. So holds the Seventh Circuit in Hively.
As Wood notes in her opinion, “for many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation.” Hively is now an outlier, and the Supreme Court typically takes up cases where the federal appeals courts disagree. It is all but certain to take up this case.
That means the fate of gay and bisexual workers is likely to rest with Justice Anthony Kennedy, a conservative who often provides the fifth vote in favor of gay rights. Whether Kennedy does so in this case remains to be seen—though the lopsided vote in Hively should be an encouraging sign for supporters of LGBT rights.
This blog originally appeared in ThinkProgress.org on April 4, 2017. Reprinted with permission.
Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at firstname.lastname@example.org.
Friday, August 26th, 2016
Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year. It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,”which included wages of women of all races, and was marked on April 12th of this year. The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races. So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar. African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.
Eliminating the racial gender wage gap would provide concrete economic benefits to African American women. To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages. Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.
Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others. It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs. For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified. The California Labor Commissioner is charged with enforcing the California Fair Pay Act.
This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act. Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity. An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well. With SB 1063, she would be able to more effectively address racial wage inequality.
Certain cities already are specifically addressing wage inequality by sex, race and ethnicity. For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City. California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval. And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.
Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities. In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.
It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency. With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.
The Legal Aid Society-Employment Law Center together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.
This article was originally posted at CelaVoice.org on August 23, 2016. Reprinted with permission.
Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society – Employment Law Center.
Wednesday, September 9th, 2015
Ashley Lucas alleges she was fired not once, but twice, for being pregnant from her job with Service Boss Inc., a company that provides clients with household services such as cleaning, plumbing, and landscaping.
In a lawsuit filed last month in federal court, Lucas says she began working at the company in February 2014 but says she was fired in April, then reinstated, only to be fired again in June. She was pregnant at both times, but she says she had no work restrictions and was able to perform her job. She also says that she was a reliable employee. Given all of these factors, she believes she was fired because she was pregnant.
Lucas also describes management making derogatory comments about her pregnancy. According to her lawsuit, she was told that being pregnant made her unreliable and a liability, that she shouldn’t be working while pregnant, and that she should file for disability or welfare benefits.
Lucas’s lawsuit claims the company violated Title VII of the Civil Rights Act, which prohibits sex discrimination in employment, and the Pregnancy Discrimination Act (PDA). She’s seeking to ensure that the practice of firing pregnancy employees ends at Service Boss, as well as back pay, punitive damages, and legal fees. The company could not be immediately reached for comment.
Lucas may be somewhat unique for being fired twice for the same pregnancy, but she’s not the first employee by far to be terminated for getting pregnant. A nonprofit had to pay $75,000 for having a “no pregnancy in the workplace” policy that led to the termination of a pregnant employee. A woman says she was fired after being told to “stay home and take care of [her] pregnancy.” Another says she was fired after being told her pregnancy would make her “move too slow.” The terminations can be swift: one woman claimed she was fired two weeks after telling her employer she was pregnant, while another says it only took hours.
Employers have been warned that these actions run afoul of existing law. Last year, the Equal Employment Opportunity Commission (EEOC) updated its guidance for the first time since 1983 to remind businesses that Title VII and the PDA protect employees from being fired for being pregnant and also require them to be treated the same as any others “in their ability or inability to work” when it comes to accommodations and work adjustments so they can stay on the job. UPS also lost a high-profile case at the Supreme Court this year in a lawsuit brought by Peggy Young for failing to give her light duty during her pregnancy despite giving it to workers with disabilities or even suspended licenses.
And violating the law could come with steep financial consequences — in July, for example, AutoZone was made to pay a record-breaking $185 million in damages in a case where an employee said she was demoted and then fired for being pregnant.
Even so, pregnancy discrimination appears to be an increasing problem. Charges filed with the EEOC have increased from more than 3,900 in 1997 to more than 5,000 in 2013, and they have also outpaced the influx of women joining the labor force. The majority of charges are from women claiming they were fired for being pregnant. Meanwhile, an estimated quarter million women are denied their requests for pregnancy accommodations at work each year.
This blog originally appeared at ThinkProgress.org on September 8th, 2015. Reprinted with permission.
About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.
Tuesday, October 28th, 2014
The Association of Flight Attendants-CWA (AFA-CWA) was honored for its “pioneering role” in fighting sex discrimination in the workplace at a ceremony this week marking the 50th anniversary of the Civil Rights Act of 1964. The Chicago event was part of a yearlong series of events by the U.S. Equal Employment Opportunity Commission (EEOC) celebrating the landmark civil rights law.
Shari Worrell, who began her flight attendant’s career as “stewardess” for United Airlines in 1968, told Burt Constable of the Arlington (Ill.) Daily Herald she had to step on the scale to prove she weighed between 105 and 118 pounds, undergo an inspection to make sure the seams in her stockings were straight and submit to a girdle check.
But armed by Title VII of the act, the AFA-CWA began challenging discriminatory policies based on gender, race, age, weight, pregnancy and marital status. Over the next decade, AFA-CWA defeated airline rules requiring mandatory resignation at ages 30-35, prohibiting employment of married and pregnant flight attendants and demanding equal pay.
Professor Mary Rose Strubbe, assistant director of the Institute for Law and the Workplace at IIT Chicago-Kent College of Law, which hosted the event said, “The flight attendants played an astonishing role in the development of Title VII.” She told Constable that the changes pushed by flight attendants:
“forced employers to look at the idea that you can’t have rules that address what woman can and can’t do in the workplace if you don’t have rules for men.”
Former AFA-CWA President Patricia Friend, who began flying in 1966 with United, spoke about her career and the union’s battle for gender equality. Said AFA-CWA President Sara Nelson:
“AFA has a long and proud history of beating back discrimination. Through persistent efforts, AFA has worked to ensure that women receive equal pay, domestic partners receive equal benefits, weight restrictions were removed, men could serve as Flight Attendants and all Flight Attendants have the right to marry and have children. Our union fought for decades and overcame discriminatory policies one by one and we are honored that this dedicated work is being recognized.”
This blog originally appeared in AFL-CIO on October 25, 2014. Reprinted with permission. http://www.aflcio.org/Blog/Other-News/Flight-Attendants-Honored-for-Battle-Against-Workplace-Sex-Discrimination
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 have 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 also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen him at one of several hundred Grateful Dead shows. He was the one with longhair and the tie-dye. Still has the shirts, lost the hair.
Thursday, August 21st, 2014
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.
Tuesday, May 6th, 2014
A former Anheuser-Busch executive is suing the company for gender discrimination, and the company’s response is that she wasn’t worth as much
as her male predecessor. Francine Katz, who was, as Anheuser-Busch’s vice president of communications and consumer affairs, its top female executive, discovered that while she was paid about $1 million a year in total, her predecessor, John Jacob, had been paid $4.5 million a year. Anheuser-Busch’s defense is basically that Katz just happened to be worth that much less than Jacob, despite holding the same job title:
On Friday afternoon, August Busch III took the stand, verbally sparring with a member of Katz’s legal team as he recounted the company’s methods for paying top executives. Circuit Judge Rex Burlison twice admonished Busch for not being more cooperative.Busch heaped praise on Jacob, a civil rights leader whom he called “one in a million.”
“He had credentials that were unbelievable,” Busch said. “There was no comparison between John Jacob and Francine Katz.”
Katz’s suit also includes allegations that she was excluded from golf tournaments and hunting trips and, on one occasion, made to fly on a different plane than Busch and other top executives. She was not, in other words, allowed to develop the kind of connections and skills Busch claims to have uniquely valued in John Jacob. Such exclusion is a key way discrimination happens—women aren’t included in “social” events because women are assumed not to hunt or play golf or because the boys won’t get to be boys with a girl around, but those social events are key ways people build trust. And remember, Katz was the woman in the highest position at Anheuser-Busch. She was still excluded from the boys’ club, and she’s still being told to this day that she wasn’t worth equal pay. What does that say about other women’s chances?
This article was originally printed on the Daily Kos on May 5, 2014. Reprinted with permission.
About the Author: Laura Clawson is the labor editor at the Daily Kos.
Monday, July 29th, 2013
Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.” It is July 2013. After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.
Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant. Lou is an overweight, balding, married father of three grown daughters. Lou offers Mary an associate producer position, reporting directly to him. Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace. Edie demands that Mary be fired immediately. Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional. Lou fires Mary. He replaces her with Rhoda. In Iowa in 2013, Mary has no legal recourse.
This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive. Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms. In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.” Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).
The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.
Here is the official photo of the Justices of the Iowa Supreme Court. See if you can spot what they all have in common.
Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant. For ten years, she was an exemplary employee. She regarded her boss as a “father figure.” Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant. In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage. Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson. Ms. Nelson sued for gender discrimination. The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.
The Court’s original decision in late 2012 was greeted with outrage and ridicule. In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial. Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself. “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left). “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”
Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere. Of course it was “because of sex.” If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss. If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her. Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.
But back to Mary Richards. In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune. What if he re-hired Mary? Could Edie get her fired again in California? Not likely.
The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit. The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination. California state law takes a broader view of the impact of sexual favoritism on the workplace environment. Our Supreme Court has recognized that sexual favoritism is not merely a private matter. Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women. California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.
And besides. Why would Lou even listen to Edie? They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried. You can watch the wedding here.
Article originally appeared on CELA Voice on July 25, 2013. Reprinted with permission.
About the Author: Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation and has worked for the State of California as counsel to the Director of the Department of Industrial Relations. CELA VOICE is a project of the California Employment Lawyers Association. Our goal is nothing short of changing the discussion about issues of importance to California employees. Our method is simple. We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health. The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.
Wednesday, October 3rd, 2012
Whatever our political conflicts, we can generally agree that we should treat pregnant women nicely. We don’t hesitate to help them carry their groceries or give them a seat on the bus. Yet when pregnancy comes up as a political issue, lawmakers are far more fixated on what an expecting mom’s womb is doing, rather than her hands–as she slips the check under your plate and hopes for a decent tip–or her mind–as she loses sleep wondering whether she’ll lose her job as her due date nears.
Under current law, it’s easy for bosses to mistreat pregnant women or force them off the job. Yet the men who run Congress are too busy sponsoring anti-abortion bills and slashing social programs, it seems, to protect pregnant women in the workplace. One of the many labor bills left off the congressional radar is the Pregnant Workers Fairness Act, (PWFA) which would help prevent pregnant women from being arbitrarily fired and make employers better accommodate them.
According to the National Partnership for Women and Families, the PWFA builds on existing anti-discrimination laws by extending specific protections to pregnant employees. The legislation directs employers to “make reasonable accommodations” for an employee or job applicant’s limitations stemming from “pregnancy, childbirth, or related medical conditions,” unless this would pose “undue hardship” on the business. In addition, as the New York Times’ Motherlode explains, the law would bar employers from “using a worker’s pregnancy to deny her opportunities on the job [or] force her to take an accommodation that she does not want or need.” The bill also directs the U.S. Equal Employment Opportunity Commission to set regulations for implementing these laws, including “a list of exemplary reasonable accommodations.”
It was introduced earlier this year in the House and this month in the Senate–and not surprisingly, faces pretty bleak odds for being enacted.
The bill expands on legislation passed in the 1970s that protects women from discrimination related to pregnancy. Those earlier policies have been interpreted in such a way as to let companies refuse to make reasonable adjustments for pregnant workers. Similarly, federal and state family-and-medical-leave acts protect women from discrimination related to a seeking medical care, including for pregnancy. But many expecting mothers are left unprotected by these measures; the FMLA for example covers only unpaid leave–not the paid leave time that’s essential to protect the health of workers and their families–and generally only workplaces of 50 or more employees.
The PWFA would not shield expectant women from mistreatment altogether. The “undue burden” clause may give employers some leeway, for instance, to refuse to provide accommodations in job duties or schedules for a mom-to-be. Still, the measure would press firms to make sensible modifications for pregnant workers, such as no longer lifting heavy weights.
As with many women’s rights issues, this is also a matter of economic fairness. About 60 percent of women who gave birth in a given year also worked during that time, according to recent data; many moms are primary breadwinners, too. Making workplaces more pregnancy-friendly isn’t about coddling women; it’s about putting pregnancy on par with other medical or physical challenges workers face. Sarah Crawford, director of workplace fairness at the National Partnership, noted in an email to Working In These Times:
The result for working pregnant women is that they are too often forced to quit or take unpaid leave because their employer denies them reasonable accommodations that are lawfully required for other workers with temporary disabilities.
Losing work a double-blow for pregnant women who need to prepare financially for a new member of the household. Even if they’re not outright fired, Crawford points out, “some employers force pregnant workers into unpaid leave prematurely, which means that women are forced to take a heavy financial hit just as they are about to give birth.”
Moreover, if a pregnant woman is unfairly fired, she may have trouble simply getting hired as a new mom, which some employers may see as a liability. (Not to mention affording quality child care so she can hold onto that new job).
The National Partnership also notes major health implications for women who lose a job during pregnancy, and for their babies: The stress incurred may raise “the risk of having a premature baby and/or a baby with low birth weight.” If she can earn more before having the baby, she can potentially take more time off for maternity leave–meaning more time for bonding, breastfeeding and other essential nurturing tasks for parents that our labor structure tends to ignore.
Ironically, companies themselves suffer when they arbitrarily dismiss workers for pregnancy or childbirth-related reasons, because high workforce turnover is counterproductive in the long run.
Yet many workplaces still make women bear the brunt of the cost of childbearing. So next time you graciously offer your bus seat to a pregnant woman, just think about how our politicians fail to stand up for the labor rights of those who do the work of bringing us into the world.
This blog originally appeared in Working In These Times on September 27, 2012. Reprinted with permission.
About the author: Michelle Chen 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.
Tuesday, March 29th, 2011
Hundreds of people will show their support outside the U.S. Supreme Court Tuesday, when the High Court hears oral arguments in what could become the largest class-action civil rights suit in U.S. history.
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.
Tuesday, December 7th, 2010
Federal Employee Wins Appeal On Sex And Age Discrimination Claim
Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.
This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.
What Happened In The Case
Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer. At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:
- a record of military service
- a bachelor’s degree in history
- completed graduate course work in business administration, accounting and law
Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.
Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:
- a bachelor’s and doctoral degrees
- authorship of a length book and numerous scholarly publications
In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.
Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.
Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.
The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.
The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.
The Sixth Circuit Reverses
Burden of Proof Under The Title VII And The ADEA
Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:
- is a member of a protected class
- objectively qualified for the position
- considered for but is denied the promotion
- an individual outside of plaintiff’s protected class is selected for the position
Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”
A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either
- was not the actual reason, or
- is insufficient to explain the employer’s action
It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims — post Gross –– should continue to be analyzed under McDonnell Douglas.
The Court’s Analysis Of The Evidence
Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.
As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.
It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.
Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.
Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.
As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.
In this case, the Court pointed to:
- Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
- Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
- Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.
The Court stated:
Construing the fact in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.
Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.
As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.
In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:
- informed him that 34 years on the job was enough
- joked about whether he had taken up “antiquing or traveling or something like that”
- suggested that he should retire – a topic which Bartlett had neither broached nor considered
The Court stated:
Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’
Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.
Defendant’s Explanation Was Not Believable
In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.
As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.
The Court noted:
The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.
In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.
The case was reversed and remanded for trial.
This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.
When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.
It’s no secret to plaintiffs’ employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.
The result of what appears to be this employer oriented approach in discrimination cases, or as some call it — a hostility on the federal bench to employment cases —is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.
It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.
Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.
The reality is that if someone chooses to litigate an employment discrimination case, it’s virtually certain that it’s going to be a long road to justice.
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.