Articles Posted in Sex Discrimination

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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.

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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”

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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.

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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.”

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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.

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