Articles Posted in Sex Discrimination

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The federal First Circuit Court of Appeals has affirmed a jury verdict against the Providence Fire Department (PFD) in a sexual harassment lawsuit filed by a lesbian who formerly served as a lieutenant in PFD. The plaintiff, Lori Franchina, suffered severe sexual harassment and after she reported the harassment to PFD she experienced severe retaliation. Some of the harassment and retaliation included: a man on the first day he met her telling her that he could impregnate her if she wanted because he knew she was a lesbian; this same man later opened the closed door to Franchina’s bedroom in the firehouse, walked in while she was getting undressed, and refused to leave until the third time she asked him to “get the f—k out”; multiple people used sexist epithets to refer to her; another person tampered with her food and made her sick; and, in one disgusting incident, someone flung blood and brain matter from a suicide victim on her. To remedy the damages that Franchina suffered, Franchina was awarded $806,000.

One of the legal hurdles that Franchina had to overcome to win this case was that she had to argue that she experienced discrimination based on her sex, not just her sexual orientation. This is because the First Circuit previously determined, about 20 years ago in a case called Higgins, that the law Franchina sued PFD under, Title VII, does not prohibit sexual orientation discrimination.

The First Circuit judges in this case distinguished the facts of Higgins from the facts of Franchina’s case because Franchina suffered harassment not just because she was gay but, rather, because she was both a woman and a gay person. Thus, the First Circuit found that this case fit into a category of Title VII cases called “sex-plus” cases. A common type of sex-plus case is where a woman with children gets discriminated against not just because she is a woman but, rather, because she is a woman with children. Similarly, Franchina experienced harassment (a form of discrimination) not just because she was a woman but, rather, because she was a woman who was gay.

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A tech entrepreneur recently took a novel approach to ensure that members of her company’s board of directors cannot engage in sexual harassment and keep their positions. The entrepreneur, Kristina Bergman, is the CEO of Integris Software. Bergman added a clause to stockholders’ voting agreements that requires them to vote out a director if there is a “reasonable probability” that they sexually harassed someone.

Typically, directors are only removable for cause, such as if they embezzle money from the company or engage in fraud. Bergman’s approach is novel but it is smart given how rampant sexual harassment is in the tech industry. Hot startup companies, like Uber, and some of the venture capital firms that fund them, like Binary Capital, have come under fire for sexual harassment. Bergman wanted to try to prevent the problem that has dogged these companies from infecting hers.

Notably, the standard of “reasonable probability” is intended to be lower than the standard of proof required to hold someone responsible for sexual harassment in court. Bergman and the lawyer who helped her draft the stockholder voting agreement wanted to avoid protracted legal fights.

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We previously reported on a bill that the Maine legislature was considering which would help address the gender pay gap.  That bill passed the legislature but Governor LePage has vetoed it.  As our previous post explained, this new law would help prevent victims of pay discrimination from continuing to suffer the effects of that discrimination when they move from one job to another.  It would also help victims of pay discrimination to discover their employers’ discriminatory practices.

“Workers should be paid a market-based salary that reflects their education, experience, qualifications, credentials and work ethic, regardless of whether a previous job underpaid them because of their gender — or any other reason,” Senator Cathy Breen (D-Falmouth) said. “If this bill becomes law, it will be a victory not only for the hundreds of thousands of Maine women who are underpaid, but for all workers that deserve fair compensation.”

Governor LePage’s veto statement focused on the part of the bill that would have prohibited employers from asking prospective employees to disclose their pay history during negotiations over their starting salary.  Governor LePage said, among other things, that “Maine’s employers are often their own HR departments.  Adding another law restricting a legitimate business practice places yet another burden on our employers.  If an employer cannot ask, they may end up making even lower offers than they normally would, resulting in lower wages.”

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In response to complaints of systemic problems with harassment and discrimination, Uber has fired 20 employees, including some senior executives.  The company has also disciplined others and is still investigating additional complaints.  This is a major shakeup at Uber, a ride sharing service based in California, that comes shortly after the company received a report from a team of lawyers who reviewed its workplace climate.

Uber hired this team of lawyers, led by former Attorney General Eric Holder, amid complaints from some Uber employees that the company prized aggressive growth so much that it would look the other way when some employees engaged in harassment or discrimination.  Uber hired another law firm, Perkins Coie, to assist with the problem as well and that firm has been investigating individuals’ complaints. Perkins Coie has investigated 215 complaints and about 100 of those resulted in actions taken against employees for sexual harassment or other forms of discrimination.  There are still complaints under investigation. 

The problems at Uber are not unique to Uber.  Harassment, in particular, is an epidemic in American workplaces.  Far too many workers face problems with sexual harassment, racial harassment, and other forms of unlawful harassment.  As we’ve previously reported, the U.S. Equal Employment Opportunity Commission (EEOC) formed a task force that heard from a variety of experts on how to address this epidemic.  The EEOC issued a report that provides a variety of recommendations for preventing harassment and changing workplace cultures that permit harassment to occur. 

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The U.S. Second Circuit Court of Appeals, in New York, has decided that the full court—all eleven active judges—will consider whether sexual orientation discrimination is a form of sex discrimination prohibited by the Civil Rights Act. If the full Second Circuit decides that sexual orientation discrimination is a form of sex discrimination, it will have to overrule a prior Second Circuit decision that held the opposite.

Normally, panels of three appellate judges decide cases but those three-judge panels are required to follow precedent. They cannot deviate from the decisions that their court reached in earlier cases. When the full appellate court considers a case, however, it can overrule prior precedents and a decision by the full court to hear a case signals that some judges want to consider overruling past precedent.

Federal appeals courts rarely decide to have the full court consider cases. This type of full-court review, sometimes called “en banc review,” is exceedingly rare in the Second Circuit. Thus, the Second Circuit’s decision to hear this case en banc is noteworthy in itself. The Second Circuit, however, is following the lead of the Seventh Circuit which earlier this year ruled en banc that sexual orientation discrimination is a form of sex discrimination.

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We previously reported on the Maine legislature’s consideration of a bill intended to lessen the gender pay gap in Maine. That bill, entitled “An Act Regarding Pay Equality,” has now received support from the majority of the legislature’s Labor, Commerce, Research and Economic Development Committee. It will now head to the Maine Senate for a vote.

The Act Regarding Pay Equality would strengthen the law against pay discrimination in two important ways. First, the bill would state that employers may not try to obtain information about a prospective employee’s wage history until after offering a compensation package to the prospective employee. As we previously explained, this part of the bill would help to prevent the effects of wage discrimination from following an employee from one job to another. Second, the bill would require employers to allow employees to share information about their own wages and other employees’ wages. This part of the bill is important because, without information about the wages other employees make, workers often do not know that they are victims of pay discrimination. In some situations it is already illegal for employers to prohibit the sharing of wage information but this bill would expand that prohibition and provide extra protection for workers.

Among New England states, Maine has the second highest gender pay gap. According to the National Partnership for Women & Families, in Maine women earn 22% less than men. Only New Hampshire has a bigger gender pay gap in New England. As we previously reported, other states have enacted legislation similar to this bill. Given the large gender pay gap in Maine, as compared to other New England states, it makes sense to pass legislation that could decrease the gap.

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Earlier this month, New York City joined a growing group of cities and states that have outlawed the practice of asking job applicants how much money they earned in their previous jobs. Massachusetts and California enacted similar laws last year and Maine as well as Colorado, Connecticut, Illinois, Maryland, Montana, New Jersey, Pennsylvania, and Texas are considering similar bills. New York City and these other states and cities have passed these laws in order to combat the persistent gender pay gap in the United States that results in women earning less than men.

Laws prohibiting inquiries about pay history are supposed to help combat the gender pay gap because employers often ask applicants about their pay history in order to determine how much pay to offer them. If the applicant faced discriminatory pay practices in the past, those discriminatory practices get perpetuated if future employers rely on the applicant’s previous unfairly depressed pay to set her pay in her new job. This is why the bill under consideration in Maine would make questioning job applicants about their pay history evidence of discrimination.

In testimony before the Maryland legislature, the National Women’s Law Center (NWLC) explained the reason for these laws like this: “if a job applicant’s prior employer discriminated against her in setting her pay below her male counterparts’, or the applicant previously worked in a female-dominated profession where pay is lower precisely because women do the jobs and ‘women’s work’ is undervalued, and the new employer sets her pay based on that prior job’s salary, the pay discrimination that applicant faced in her previous job will follow her, depressing her new wages.”

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Four current and former Massachusetts State Police troopers have sued the Massachusetts State Police for allegedly engaging in a pattern of discrimination against women and minorities.  The four named plaintiffs are three women and one black man.  Their lawsuit alleges that the Massachusetts State Police discriminates against women and minorities through its promotional and assignment practices.  The attorneys representing the troopers have identified other similarly situated troopers who have also faced discrimination, indicating a possible intent to pursue a class action.
One of the discriminatory practices identified involves alleged word-of-mouth advertising of promotional opportunities.  The plaintiffs claim that the Massachusetts State Police does not publicly post openings for many high-ranking and better-paying jobs.  Instead, they claim, the opportunities are not advertised at all or, if they are, they are only advertised for a very short time.  They claim that this practice results in white men getting favorable treatment. 
Word-of-mouth recruitment practices in organizations that lack diversity often have a disparate impact on minority groups within the organization.  If, for example, an organization is comprised overwhelmingly of white men (a “good ole boys’ network”), the U.S. Equal Employment Opportunity Commission (EEOC) has warned that word-of-mouth recruitment can disproportionately weed out women and minorities.  Studies show that word-of-mouth recruitment results in disparate impact against minority groups in workplaces that lack diversity because of “segregated networks” of communication, meaning that members of the majority group tend to communicate among themselves more than with minority groups.
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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.”

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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.