Last month a federal jury in New Hampshire found that Wal-Mart discriminated against a pharmacist because of her sex and because she blew the whistle on unsafe conditions at the store. The pharmacist, Maureen McPadden, worked at the Seabrook Wal-Mart store for 13 years before Wal-Mart fired her in 2012. Wal-Mart fired her after she complained about violations of pharmacy regulations and negligent training and supervision of pharmacy staff. Wal-Mart claimed that it fired her because she lost a key but the jury, obviously, believed that was just an excuse to cover up discrimination. Indeed, there was evidence that a male pharmacist lost a key and Wal-Mart did not fire him.
“I honestly feel the jurors listened intently,” said McPadden. “I really feel they wanted to send a message that the little guy has a voice, that Wal-Mart did something wrong.”
“The facts most certainly support the decision,” one of McPadden’s lawyers said. “A jury of eight conscientious New Hampshire residents heard compelling evidence for five days and determined Walmart willfully and with reckless disregard acted against Maureen McPadden’s New Hampshire rights to be protected from gender discrimination. (Walmart) fired her on a pretext that she had lost her key. But 12 months later a (male) pharmacist from the Plaistow (N.H.) Walmart lost his key and he wasn’t fired.”
A recent study published by the National Bureau for Economic Research finds that employers discriminate against older women at higher rates than older men. The researchers sent out about 40,000 fake resumes to employers and tracked how the employers responded to the resumes. They found that women aged 64-66 got calls from employers 12% of the time and women aged 29-31 got calls from employers 19% of the time, a statistically significant difference. Interestingly, with the exception of janitorial jobs, older men got calls from employers at approximately the same rate as younger men.
This fake resume study method is the same method that researchers have used in other studies. The method is considered more reliable than observing how employers treat real people because the researchers can ensure that the fake applicants have the same qualifications which is difficult to do when you study treatment of real people who each have their own unique qualifications.
After finding these gender disparities in age discrimination, the researchers pondered what drove the gender disparities. One of the researchers thought the gender disparity might be due to societal views on the attractiveness of older men as opposed to older women. “There is some evidence that people’s rating of attractiveness diminishes more quickly for older women than older men,” said the researcher.
This week California enacted the California Fair Pay Act. The California Fair Pay Act will enhance existing laws designed to lessen the pay gap between men and women. “Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work,” said California Governor Jerry Brown. “This bill is another step toward closing the persistent wage gap between men and women.”
Nationally, women earn, on average, $0.78 for every $1.00 that men earn. That difference is slightly better in California where, on average, women earn $0.84 for every $1.00 that men earn. This pay gap has existed for decades across the nation. The California Fair Pay Act has some provisions that may help to decrease the pay gap in California because the law addresses some of the bigger problems with the existing federal Equal Pay Act. As discussed below, Maine’s equal pay law is also better than the federal Equal Pay Act but, in some respects, it is not as strong as the new California Fair Pay Act.
The same “establishment”
A Walmart employee who has worked for Walmart in Maine and Massachusetts filed a class action lawsuit earlier this month against Walmart because the company did not provide her wife with health insurance coverage. The employee, Jackie Cote, has worked for Walmart since 1999 and she has been married to her wife Dee since 2004. Up until January 1, 2014 Walmart refused to provide Dee with health insurance benefits even though it provided health insurance benefits to spouses of employees who were married to someone of the opposite sex.
The complaint filed in court to initiate the lawsuit explains why it is important to get a ruling from the court on the illegality of Walmart’s past practice of denying health insurance coverage to same-sex spouses. The complaint explains that, while Walmart has recently extended health insurance coverage to same-sex spouses, the company disavows any legal obligation to continue providing health insurance coverage to same-sex spouses. “Benefits provided by Walmart as a matter of grace that can be eliminated at Walmart’s discretion are not secure and could potentially be withdrawn just when large health care costs are incurred,” the complaint states.
Ms. Cote is represented by Gay & Lesbian Advocates & Defenders (GLAD) as well as the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (Lawyers’ Committee). The attorneys at GLAD and the Lawyers’ Committee have advanced a few different legal arguments to support their claim that Walmart’s policy of excluding same-sex spouses from its health insurance coverage discriminates on the basis of sex. One of the more interesting arguments is as follows: “Walmart refused to provide spousal health insurance benefits for Jackie’s spouse because Jackie is a woman married to another woman, even though Walmart would have provided such coverage if Jackie were a man married to a woman.” In other words, the plaintiffs are arguing that Walmart engaged in sex discrimination when it excluded Jackie’s spouse from its health insurance coverage because if Jackie had been a man, Walmart would not have excluded her spouse from coverage.
Today is Equal Pay Day. Equal Pay Day highlights the wage gap in the United States between men and women. On average, women earn about 78% of what men earn. Equal Pay Day is today because the average woman would have to add all of the wages she’s earned between today and the beginning of 2015 to the wages she earned in 2014 in order to have the same amount of wages that the average man earned just in 2014.
Maine’s U.S. Senators, Susan Collins (R) and Angus King (I), have co-sponsored bills that prohibit retaliation against workers for discussing how much money they make. These bills would address one of the reasons why pay discrimination persists in the United States. Many women do not know that they make less money than men who do the same work as them because employers discourage employees from speaking about their wages.
Today, Senator Collins co-sponsored the Workplace Advancement Act. Earlier this year, Senators King and Collins both co-sponsored the End Pay Discrimination Through Information Act. The End Pay Discrimination Through Information Act would prohibit employers from retaliating against employees because they “inquired about, discussed, or disclosed” their own wages or the wages of other employees. The Workplace Advancement Act contains a similar protection for employees but is narrower and less protective of employees. The Workplace Advancement Act would prohibit employers from retaliating against employees because they “inquired about, discussed, or disclosed comparative compensation information for the purpose of determining whether the employer is compensating an employee in a manner that provides equal pay for equal work.”
This month in New York, a class action lawsuit was filed against Novartis, a large pharmaceutical company. The plaintiffs in the lawsuit allege a pattern or practice of sex discrimination against women who worked for the Alcon division of the company. They claim that women in the Alcon division received lower pay than men who did substantially the same jobs. The lawsuit also alleges that when one female employee blew the whistle on this discrimination to the U.S. Equal Employment Opportunity Commission (EEOC), the company retaliated against her.
This is not the first sex discrimination class action filed against Novartis. During a trial in 2010, a jury found that Novartis had engaged in a pattern or practice of sex and pregnancy discrimination, including pay discrimination, against its female employees. After the trial, Novartis settled for a total of about $175 million. The same law firm who represented the class of women in this case represents the class of women in the Alcon case.
These cases illustrate the widespread problem of pay discrimination in the United States. In the United States, women earn significantly less than men. This gender gap in pay exists in both low and high skilled jobs, and the data shows that women often earn less than men within the same occupations. To be sure, there are various reasons for the pay disparity between American men and women but sex discrimination is certainly one of them.
Last month, a sex discrimination trial began in which Ellen Pao, a former junior partner at venture capital firm Kleiner, Perkins, Caufield & Byers, has alleged that Kleiner Perkins refused to promote her and forced her out because of her sex. The trial will include evidence of lurid sexism but, perhaps more interestingly, will also include evidence of subtle forms of sex discrimination.
During the trial, Pao’s lawyers plan to present evidence that male partners of the firm sometimes treated women in overtly sexist ways. For example, a male partner, Ajit Nazre, once allegedly knocked on the hotel room of a female employee while he was wearing nothing but a bathrobe. Nazre also allegedly sexually harassed a female employee at a meeting when he rubbed her with his leg under the table. Another male partner gave Pao a book of erotic poetry and nude sketches. Still another male partner allegedly told Pao that women “kill the buzz.”
While this is certainly powerful evidence of a sexist firm culture, Pao’s lawyers also plan to introduce more subtle evidence of sex discrimination that is actually more common in the workplace. For instance, Pao claims that she was criticized for being too passive and not speaking up enough. But she was also criticized for being pushy and speaking up too much. These contradictory critiques of Pao’s performance are a commonly cited problem for women who are trying to climb the promotional ladders in workplaces like this.
This week, the U.S. Sixth Circuit Court of Appeals held that a former employee of InterVarsity Christian Fellowship/USA (“IVCF”) could not sue it for sex discrimination because of the religious natures of IVCF’s business and her job. The former employee, Alyce Conlon, alleged that IVCF fired her because it did not think she did enough to reconcile her marriage with her husband. Conlon argued that this was sex discrimination because IVCF treated her differently than male employees who divorced their wives.
IVCF is a “Christian organization, whose purpose is to advance the understanding and practice of Christianity in colleges and universities.” Conlon worked as a “spiritual director” for IVCF. Part of Conlon’s job involved assisting people to cultivate an “intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.”
The U.S. Supreme Court has held that there is a “ministerial exception” to employment discrimination laws. This ministerial exception immunizes religious organizations from lawsuits that challenge the organizations’ decisions on who to employ as “ministers.” This ministerial exception is based on the First Amendment, which restricts government interference with religious institutions. Given the religious nature of IVCF’s business and Conlon’s job, the Sixth Circuit held that the ministerial exception applied. In reaching this decision, the Sixth Circuit analyzed various factors, including Conlon’s job title and her job duties. The court also noted that IVCF qualified for the ministerial exception even though it was a multidenominational organization, instead of a church or an organization affiliated with only one Christian denomination.
A group of former McDonald’s employees have sued the McDonald’s corporation and the franchises where they worked for race and sex discrimination. The employees who filed the lawsuit worked for McDonald’s restaurants in Boston and Clarksville, Virginia. Their allegations of discrimination include claims that the restaurants believed that their employees were too “dark.” So, the plaintiffs claim, the restaurants fired black and Hispanic employees so that they could replace them with white employees. The female plaintiffs also claim, among other things, that they experienced sexual harassment, including inappropriate touching and sexual comments.
This lawsuit is particularly noteworthy because of the claims against the McDonald’s corporation. The McDonald’s business model involves contracting with smaller independent companies, called franchisees, and letting those franchisees run the restaurants. This business model normally gives the corporation, called the franchisor, the advantage of limiting its liability from lawsuits. That way, if a customer, for example, gets injured because of a restaurant employee’s negligence, the customer can sue the franchisee but not the franchisor. In this race and sex discrimination lawsuit, however, these former employees allege that McDonald’s corporation exercises so much control over its franchisees that they are no longer independent.
The plaintiffs in the lawsuit allege, among other things, that McDonald’s corporation controls its franchisees through policies and manuals that govern every aspect of restaurant operations; continual oversight by corporate representatives; control over franchisee employees’ schedules and assignments; comprehensive training of all employees; and hiring decisions. Given this amount of control, the plaintiffs argue that the franchisor-franchisee relationship is just a legal fiction. Given the realities of the relationship between McDonald’s corporation and its franchisees, the plaintiffs argue, the McDonald’s corporation should be held responsible for the discriminatory actions of its franchisees.