week 6 project

Gender Discrimination

Source: National Archives and Records Administration (NWDNS-44-PA-911)

Learning Objectives

When you finish this chapter, you should be able to:

1. LO1Recite Title VII and other laws relating to gender discrimination.

2. LO2Understand the background of gender discrimination and how we know it still exists.

3. LO3List the different ways in which gender discrimination is manifested in the workplace.

4. LO4Analyze a situation and determine if there are gender issues that may result in employer liability.

5. LO5Define fetal protection policies, gender-plus discrimination, workplace lactation issues, and gender- based logistical concerns.

6. LO6Differentiate between legal and illegal grooming policies.

7. LO7List common gender realities at odds with common bases for illegal workplace determinations.

8. LO8Distinguish between equal pay and comparable worth and discuss proposed legislation.

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Opening Scenarios

SCENARIO 1

A discount department store has a policy requiring that all male clerks be attired in coats and ties and all female clerks wear over their clothing a short loose top provided by the store, with the store’s logo on the front. A female clerk complains to her supervisor that making her wear the garment is illegal gender discrimination. Is it? Why or why not?

SCENARIO 2

A male applies for a position as a server for a restaurant in his hometown. The restaurant is part of a well- known regional chain named for an animal whose name is a colloquial term for a popular part of the female anatomy. Despite several years of experience as a server for comparable establishments, the male is turned

down for the position, which remains vacant. The applicant is instead offered a position as a kitchen helper. The applicant notices that all servers are female and most are blonde. All servers are required to wear very tight and very short shorts, with T-shirts with the restaurant logo on the front, tied in a knot below their, usually ample, breasts. All kitchen help and cooks are male. The applicant feels he has been unlawfully discriminated against because he is a male. Do you agree? Why or why not?

SCENARIO 3

An applicant for a position of secretary informs the employer that she is pregnant. The employer accepts her application but never seriously considers her for the position because she is pregnant. Is this employment discrimination?

Statutory Basis

LO1

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex [gender] . . . [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e-2 (a).]

(1) No employer . . . shall discriminate between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . . [Equal Pay Act, 29 U.S.C.A. § 206(d).]

(k) The term “because of sex” or “on the basis of sex” includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment- related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. . . . [Pregnancy Discrimination Act, 42 U.S.C. § 2000e.]

Note: Reread the Preface regarding the use of gender terminology before reading this chapter.

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Does It Really Exist?

LO2

What does a group of 25 attorney-mediators have to do with a swimsuit calendar? Good question. The Miami-based Florida Mediation Group has probably been asking itself that same question ever since it received a good deal of flack for having its name emblazoned across one of several themed calendars given away as gifts to clients.

Of all the bases for employment discrimination we cover in class and in consulting, gender seems to be the one that is most difficult for students to believe exists. This, despite the fact that a 2010 Harris Poll of 2,227 adults surveyed online found that 7 in 10 Americans say women often do not receive the same pay as men for doing exactly the same job, 63 percent agreed the United States still has a long way to go to reach complete gender equality, and 74 percent believe there are more pressing issues to fix first.1 As Stuart J. Ishimaru, then-acting chairman of the EEOC stated: “Sex discrimination against males and females alike continues to be a problem in the 21st century workplace.”2

In fact, as recently as January 2014, in his State of the Union address, dismissing policies and stereotypes that prevent women and men from getting the same opportunities and salaries in the workplace, President Obama said

Today, women make up about half our workforce. But they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it’s an embarrassment. A woman deserves equal pay for equal work. She deserves to have a baby without sacrificing her job. A mother deserves a day off to care for a sick child or sick parent without running into hardship—and you know what, a father does, too. It’s time to do away with workplace policies that belong in a “Mad Men” episode. This year, let’s all come together—Congress, the White House, and businesses from Wall Street to Main Street—to give every woman the opportunity she deserves. Because I firmly believe when women succeed, America succeeds.3

We understand that if you are not used to thinking that it exists, sometimes it can be difficult to recognize gender discrimination when it plays itself out in the workplace. Gender is a part of our everyday life and so much related to it is based on stereotypes, customs, mores, and ideas that we learn from birth. Gender discrimination comes in so many different forms. That is why in this chapter we will provide many different manifestations of gender discrimination for you to examine so you can gain exposure. As a manager, supervisor, or business owner, we want you to be able to analyze fact situations in the workplace as they occur in order to determine if there is potential liability.

Suppose a woman is required by her employer to wear two-inch heels to work. Doing so causes her to develop bunions, which can only be removed by surgery. After surgery she is ordered by her doctor to wear flat shoes for two months. Her employer refuses to permit her to do so. Left with no alternative, she quits. The employer imposes no such requirement on male employees. When you realize that the employer’s two-inch-heels policy cost the woman her job and that had she been male this would not have happened, it becomes more obvious that the policy is discriminatory on the basis of gender.

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Remember the wires of the bird cage in Exhibit 3.5. Those wires are probably what the members of the executive board of the Miami-Dade chapter of the Florida Association of Women Lawyers were thinking of when they registered their objection to the calendar. “We believe this type of advertising, whether picturing men or women, does not promote dignity in the law and is inappropriate when circulated by an organization that serves the legal community.”4

Perhaps you got some sense of how widespread the issues are and how frustrating they can be for those who operate under them when, on January 21, 2017, you watched (or participated) as hundreds of thousands of men and women around the globe marched and demonstrated because of their anger over what they viewed as the incoming administration’s refusal to even acknowledge their concerns about gender discrimination. Or perhaps you watched on March 8, 2017, International Women’s Day, as again, people demonstrated around the world the need to address these pressing issues.

One of the takeaways from the demonstrations and the wide-ranging issues involved is how many issues gender discrimination and disparities touch and how ingrained they are. It is not difficult to discriminate on the basis of gender if an employer is not sensitive to the issues involved. (See Exhibit 8.1, “Gender-Neutral Language?”) Once again, as with race discrimination, vigilance pays off. This chapter will address workplace gender discrimination in general, including pregnancy discrimination, lactation policies, fetal protection policies, and equal pay. Sexual harassment, sexual orientation, and gender identity discrimination are three other types of gender discrimination and will be considered in subsequent chapters. Gender discrimination covers both males and females, but because of the unique nature of the history of gender in this country, it is females who tend to feel the effects of gender discrimination in the workplace more so than men, and the vast majority of EEOC gender claims are filed by women. Interestingly, however, during the 2008–2009 economic recession, more men than women lost their jobs,5 with 78 percent of the jobs lost in the recession held by males.6 The reason given page 374is that the jobs women

hold tend to be more stable, but lower paying, and the male-dominated sectors such as construction, investment banking, and manufacturing tended to be hardest hit.7 However, by March of 2011, the Bureau of Labor Statistics reported that 90 percent of the jobs gained in the recovery had gone to men.8 By May 2012, three years after the recovery began, women had gained only 16 percent of the new jobs created and the workforce participation rate of women aged 45 to 54 had “dropped like a stone,” with married women increasingly choosing not to work because the low-paying jobs they could get in areas like temporary help, health, leisure and hospitality, or private education simply are not worth the cost of daycare, commuting, and so on.9

Exhibit 8.1 Gender-Neutral Language?

Attorney Harry McCall, arguing before the U.S. Supreme Court, stated, “I would like to remind you gentlemen” of a legal point. Associate Supreme Court Justice Sandra Day O’Connor asked, “Would you like to remind me, too?” McCall later referred to the Court as “Justice O’Connor and gentlemen.” Associate Justice Byron White told McCall, “Just “Justices’ would be fine.”*

*** According to the National Conference of State Legislatures, nearly half of states have moved to make the language in their official documents gender-neutral. Changes include replacements such as handwriting for penmanship, first-year student for freshman, and outdoor enthusiast for sportsman. The state of Washington finds it more difficult to replace airman, manhole, and manlock.†

Source: Newsweek, November 25, 1991, p. 17.

† Time, 2/18/13, p. 12.

Women are the single largest group of beneficiaries under affirmative action. They seem to be gaining in all facets of life. The latest presidential cycle saw the first female selected as the presidential candidate of a major political party. Janet Yellen heads the U.S. Federal Reserve, putting the world’s largest economy in the hands of a woman. Three of the nine slots on the U.S. Supreme Court are held by women. Nancy Pelosi was the first female speaker of the U.S. House of Representatives. Admiral Michele Howard, the first African-American 4-star general, commander of a ship in the U.S. Navy, and vice chief of the Navy, commands the Naval forces in Europe and Africa, captaining the USS Porter patrolling the international waters off the Black Sea, keeping an eye on Russian movements. Women head corporations and states, own businesses, and are members of the president’s cabinet. When Marissa Mayer became CEO of Yahoo, it made headlines when she was chosen and pregnant. Facebook’s chief operating officer, Sheryl Sandberg, was lauded for revealing she left work at 5:30 each day after becoming a parent. Beyonce signs a $50 million endorsement deal with Pepsi. Walmart announced women-friendly plans aimed at helping women-owned businesses and workers. Women can now serve in combat and even the Navy now permits women to serve on submarines.10

Things seem OK. You think to yourself, who would be dumb enough to discriminate against women these days? It can be hard to believe that gender discrimination still exists when you go to school and work with so many people of both genders; you don’t feel like you view gender as an issue, and it just seems like everything is OK. However, the 2016 EEOC statistics indicate that gender still accounts for nearly one-third, 29.4 percent, of substantive claims brought under Title VII.

At the same time we see these strides made in the gender sphere, we must keep in mind that only 21 women, 4.2 percent, headed up Fortune 500 companies as of March 2017, and 2016 saw the number decline more than 12 percent, from 24 the year before.11

When women account for nearly half the workforce, those numbers may appear to seem skewed.12 See Exhibit 8.2 “Catalyst Showing Female CEOs in Fortune 500 Companies from 1995 to 2013.” One factor in the way of females’ progress is that, even when women are imminently qualified, “male leaders tend to feel comfortable around other males, so they tend to network with, and promote, those of the same gender.”13 Also, “female leaders are caught in a Catch 22. If they adopt a page 375command-and-control orientation, they are viewed as inappropriately masculine.

If they act skillfully at solving disputes and settling conflicts, they are viewed as too feminine to be strong, directive leaders.”14

Exhibit 8.2 Catalyst Showing Female CEOs in Fortune 500 Companies from 1995 to 2013

“The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?”,

a 2011 major study by renowned women’s policy research group Catalyst, found that regardless of their career strategy, men seem to be paid for potential, while women seem to be paid for proven performance, and across all careers, men were more likely to reach senior executive positions than women. Men outpace women in rate of advancement and compensation growth from their first post–MBA job and it widens to $31,258 by mid-career.15 The Harvard Business School class of 2013 underwent an experiment for their two years of study in which some of these issues were directly confronted and attempts made to reverse them. They noted that while all students admitted to the MBA program were similarly qualified, by the time they graduated, among other things, men had spoken in class more (where participation could be up to 50 percent of the grade), had higher grades, won more awards, and landed more prestigious jobs. By instituting new policies and procedures, a dramatic impact was made, but it remains to be seen whether it will carry over into the workplace.16

As a reality check, one of our female graduate students was told by an employer that if she was a man with her qualifications, he would pay her 50 percent more. Another was told she had a full-time job upon graduation in a company in which she had experienced a very successful internship, but only if she allowed the president of the company to set her up in an apartment so she could be available to him whenever he wished to have sex with her. She declined and started her job hunt all over again, not finding another job in her field until five months after she graduated. Gender discrimination is real and is not just something that happens to other people. It is real and must be addressed in the workplace. But, first you have to be able to recognize it.

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Even professionals can be caught off guard. In 1999, a gender-discrimination charge that started with eight female stockbrokers at Merrill Lynch alleging various forms of gender inequality, particularly economic discrimination, ballooned to 900 women and was still growing. “It’s been a flood. I’ve been stunned. We were expecting 200–300 claims, but the calls are still coming in,”

said one of the lawyers representing the women. In 2004, arbitrators determined that it was standard operating procedure at Merrill Lynch to discriminate against women. It was the first time a Wall Street firm had been found to have engaged in systematic gender discrimination. Merrill Lynch spent more than $100 million settling close to 95 percent of the 900 or so claims. In subsequent press releases, the firm said this is not an accurate picture of the firm today.

Unfortunately, that was only the beginning of Wall Street’s gender-based litigation. Cases continue to be brought by female employees against several Wall Street firms for the same types of discrimination that cost Merrill Lynch so much. In 2010 women filed EEOC claims against Goldman Sachs investment bank, alleging systematic discrimination against women including pay and promotions.17 At least 58 women have joined in a 2009 suit filed by the EEOC against financial services and media company Bloomberg, founded by former New York mayor Michael Bloomberg, claiming pregnancy discrimination.18 Women at Citigroup, Inc., filed a class action for gender discrimination alleging they were laid off in the 2008 recession as part of the firm’s “glass ceiling,” and lesser qualified or underperforming males were retained.19 Morgan Stanley settled a gender-bias class action suit for $46 million; Putnam Investments was sued for its “ingrained culture of chauvinism,” leading to demotions and firings based on gender, a claim that has been made against many, many companies since; Smith Barney was sued for a pattern and practice of gender discrimination against its female financial consultants; and Wall Street bank Dresdner Kleinwort Wasserstein Securities, LLC, was sued for $1.4 billion by female employees who alleged they were hired as “eye candy,” subjected to Animal House–like antics, passed over for promotions, and generally treated like second-class citizens.

Clearly, Merrill Lynch’s $100 million message was not heard by all. In fact, it was not even heard by Merrill Lynch. In 2009 another group of women sued Bank of America, which acquired Merrill Lynch, alleging Bank of America had paid them substantially lower bonuses than men based on information from Merrill Lynch that BOA knew was discriminatory.20 The next year, three female financial advisors filed a class action lawsuit against BOA Merrill Lynch alleging a pattern and practice of gender discrimination in account distributions, partnership opportunities, up-front money, pay-out rate, other benefits in its compensation plan, and opportunities for brokers to increase their income.21 The case involving roughly 4,800 women who worked for Bank of America and its subsidiary Merrill Lynch from 2007 onward was settled for $39 million in 2013.22 However, similar charges were made in 2016 when a senior female fixed-income banker sued BOA for $6M, alleging she was paid less than half the salary of similarly situated men there and made to feel unwelcome in their “subordinate ‘bro club’ of all-male syncophants.”23

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But Wall Street is hardly alone. A $100 million class action lawsuit filed by a female partner at the law firm of Chadbourne & Parke alleged an “all-male dictatorship.”24 In 2015, EEOC contacted female directors in Hollywood to investigate gender discrimination in the television and film industry.25 Silicon Valley and the technology industry have been having a rough time of it for the past few years as well, with several high profile cases that have resulted in ugly publicity even when the companies end up winning the case. Venture capitalist Ellen Pao created a sensation in 2015 as the first woman to challenge the “boys club” in open court rather than settle. She alleged she was passed over for promotions, kept out of meetings, barred from work trips, and not invited to important Kleiner Perkins events because “It was said that if there were women there, the conversation would be tempered and it was because women kill the buzz.”26 Pao eventually lost her lawsuit, but opened the door for other women to challenge similar treatment in other tech and other companies.

Recent cases have been filed for everything from a female animal handler terminated for refusing to expose her breasts to a 300-pound gorilla who had a “nipple fetish”27; to a female

global transaction group director on track to become a managing director who sued for being terminated a month after she filed suit for gender discrimination and sexual harassment alleging she was Mommy-tracked after taking maternity leave28; to the Clearwater, Florida, Fire & Rescue chief being charged by the EEOC with gender discrimination for ordering the department’s six female firefighters to stay away from structure fires amid reported threats that their male colleagues might not protect them29; to a man suing in California because there is no convenient, easy, comparable way for him to take his wife’s name when they marry as it is for her to take his.30

Add race to the gender mix and it gets even worse. Known as intersectionality, 2015 University of California at Hastings research found that while the overwhelming majority of women in STEM (science, technology, engineering, and math) fields experience sexism, women of color are put in “double jeopardy with a full 100 percent of the interviewees reporting gender bias, compared to 93 percent of white women.”31 An American Bar Association study on women of color in law firms, commissioned after a National Association for Law Placement study found that 100 percent of female minority lawyers left their jobs in law firms within eight years of being hired, 44 percent of the women reported being passed over for desirable assignments (compared to 2 percent for white men), 62 percent said they had been excluded from formal and informal networking opportunities (compared to 4 percent of white men), and 49 percent reported being subjected to demeaning comments or other types of harassment at their firms.32 intersectionality Experiencing more than one type of discrimination at a time, e.g., that of being black and female.

Gender equality in the workplace is an ever-evolving area and does not occur in a vacuum. The issues in the workplace are only one part of a much larger environment of different, often unequal, treatment of individuals based on gender. Imagine the swimsuit calendar having bikini- clad males instead of females. Do you think it would have been received the same way? Manifestations of gender differences in society are the basis for differences in treatment in the workplace. They can be as diverse and far-flung as the group of Massachusetts teens suing the page 378Selective Service System, arguing it is an unconstitutional violation of the Fifth and

Fourteenth Amendments’ Equal Protection Clause for females not to be subject to the draft just as men are, asserting that “if people want women’s rights, they should want it wholeheartedly, including for women to have to fight in wars,”33 to the protest over General Nutrition Center (GNC) dropping women from its GNC Show of Strength bodybuilding competition and replacing it with the International Federation of Body Builders (IFBB) Pro Figure competition34; from males suing bars for offering “Ladies’ Night” discounts to women because such promotions discriminate against men,35 to the Congressional House Oversight and Government Reform Committee expressing support for the 2010 Restroom Gender Parity in Federal Building Act (H.R. 4869)36; from Playboy magazine running an article titled “Ten Conservative Women I’d Like to F—,” to Right Wing News compiling a list of the “hottest conservative women in the news media”37; from Lawry’s restaurant chain not allowing men to be servers because of a 1938 policy,38 to a female construction flag worker feeling compelled to wear a diaper to work because she was not allowed to find a bathroom in time at remote sites39; from female police officers being called “overtime whores,”40 to an athletic club charging men more than women41; from female playwrights in New York complaining at a standing-room-only town hall meeting with producers that men’s plays in the 2008–2009 season were produced at four times the rate theirs were,42 to Club Med’s “Ladies Fly Free” travel promotion43; from a temp worker alleging she was fired because she was “too hot” (such cases are on the rise)44, to the U.S. Justice Department charging that the Chicago Fire Department discriminated against women by requiring them to pass physical tests that favored men45; and from female astronauts saying they have fewer opportunities to fly in space than men in part because of the strict lifetime radiation exposure restrictions46, to the NBA facing a $3 million gender discrimination case brought by working mothers.47 And let us not forget the female employee of Christian College who was fired for premarital sex because she was pregnant, and

her job was given to her boyfriend48; or the single mother who pushed the school district to end its tradition of mother–son baseball games and father–daughter dances based on a law prohibiting gender discrimination in “any and all other school functions and activities.”49 Agree with them or not, think they have merit or not, the more examples you see of how gender discrimination can be manifested, the more attuned you will be to potential liability when you view activity in the workplace that may result in Title VII violations.

Of course, it goes without saying that gender differences also find their way into the workplace through lower pay for women even though studies show that 87 percent of men support equal pay for equal work50; women being consigned to lower-paid pink-collar jobs (women make up nearly half the U.S. workforce, yet almost two of every three people earning minimum wage are female)51; women being hassled, not promoted, or not given the same assignments and training or other opportunities as men in jobs traditionally held by men; or men not being hired for traditionally female jobs such as Hooters’ servers.

Despite federal and, in some cases, state law, the need for lactation facilities for nursing mothers has become a growing area of workplace concern. Increasing page 379male employee

interest in balancing work and family also has found its way into the workplace. The first gender- based Family and Medical Leave Act (FMLA) claim involved a new father who won $40,000 after being denied appropriate FMLA leave to take care of his premature baby and seriously ill wife.52

In 2007, the EEOC issued guidelines on “caregiver responsibility” discrimination, also known as “caregiver bias” or “family responsibility discrimination” (FRD).53 The EEOC issued the guidelines because it realized the growing issue of the disparate impact that the conflict between work and family had on both male and female employees though it noted that since most caregiving responsibilities fall on women, such discrimination has a disparate impact on them. That is, because of their caregiving responsibilities, women are more likely to suffer adverse employment actions taken against them such as diminishing workplace responsibilities, failure to promote or train, exclusion from decision-making channels, or other actions coming from the idea that if employees have caregiving responsibilities, then they are less likely to be dependable, competent employees who can live up to their full workplace potential.

In early 2013, the EEOC issued a new fact sheet with guidelines to protect victims of domestic violence, dating violence, sexual assault, and stalking, saying it could be the basis for employers’ engaging in workplace violations of protective laws based on gender, sexual harassment, and disabilities.54 Wonder what these issues have to do with gender discrimination? Women are more likely to be the victims of these issues and therefore the fallout from them such as missed work for medical reasons, recovery, police and court follow up, as well as termination for fear the perpetrator will come to the workplace. Fifteen states now have laws concerning domestic violence in the workplace.55

As women have increasingly entered the workforce since passage of Title VII, the focus of claims of gender discrimination has more recently shifted away from hiring discrimination toward on-the-job issues such as equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities, and domestic violence. Eric S. Dreiband, EEOC general counsel, stated that this reflects “new issues erupting in a diverse workforce. As blatant discrimination decreased, other areas like harassment increase.”56

Viewed in this context, it then comes as no surprise that in the past few years, in addition to the substantial sums paid out by Wall Street for gender discrimination:

• Platinum P.T.S. was required to pay an employee $100,000 for firing her after she requested leave to deal with a miscarriage.57

• The Clifford Chance law firm issued a memo called “Presentation Tips for Women,” containing 163 points. Among them “wear a suit, not your party outfit,” “think Lauren Bacall, not Marilyn Monroe,” “don’t giggle,” “no one heard Hillary the day she showed cleavage,” “don’t tilt your head,” and “pretend you’re in moot court, not the high school cafeteria.”58

• Novartis Pharmaceutical Corporation was ordered to pay $250 million in compensatory damages and $3.3 million in punitive damages to female sales representatives for discrimination in pay and promotions, and because of pregnancy, page 380despite the fact that for the past 10 years it had

been declared one of the 100 best companies by Working Mother magazine.59

• Toshiba’s U.S. unit was sued by its female employees for $100 million, alleging systemic discrimination in pay and promotions and a pervasive atmosphere of women being required to be submissive to men.60

• A court upheld a $2 million award against Walmart to a female pharmacist who was fired for asking to be paid the same as her male colleagues.61

• Outback Steakhouse was made to pay $19 million to thousands of women at hundreds of its restaurants nationwide because they hit a glass ceiling and were denied favorable job assignments that were required for them to be considered for top management positions, and they could not get into the higher profit-sharing positions.62

• Wachovia Bank reached a settlement with the Office of Federal Contract Compliance Programs (OFCCP) to pay $5.5 million compensation for discrimination against women.63

• Home Depot agreed to pay $5.5 million to resolve a class action suit alleging, among other things, gender discrimination in its Colorado stores.

• The Palm Steak House agreed to a $500,000 settlement for failing to hire women to wait tables at its 29 restaurants because males, who could make up to $80,000 per year, including tips, were viewed as more prestigious.64

• At the time when Washington was the only state in the country that could boast that its governor was female, as were both of its U.S. senators, four of its nine state supreme court justices, and roughly a third of its state legislators, Seattle-based aeronautical giant Boeing agreed to pay $72.5 million compensation for gender-based discrimination against its female employees.

• A University of California lab agreed to pay $9.7 million to 3,200 women to whom it had paid less wages and whom it had promoted less often than male employees.

• Costco Wholesale Corp., with a workforce of 78,000, was sued by about 650 women in a class action suit alleging that the company did not announce openings for higher-paying managerial jobs, relying instead on a “tap the shoulder” policy of choosing managers. That is, top-level male managers would pick other males for high-level positions. Fewer than one in six of Costco’s managers were women, while nearly 50 percent of its workforce is female.65

• Then, of course, there is Wal-Mart, whose size alone puts it nearly in a class by itself. It is the world’s largest retailer and the largest private employer in the United States. More than 70 percent of its hourly sales employees are women. In 2001 Wal-Mart was sued for gender discrimination by Betty Dukes on behalf of about 1.6 million female employees. Wal-Mart fought the issue of certifying the women as a class for 10 years, going all the way up to the U.S. Supreme Court. Both the district court and the lower court certified the class, but in Dukes v. Wal-Mart Stores, Inc.,66 the U.S. Supreme Court in 2011 denied the class certification.67 But Wal-Mart’s legal woes were not over. In page 381June 2012, nearly 2,000 women once again sued Wal-Mart for gender discrimination.

Once again alleging that Wal-Mart systematically mistreats women in a variety of ways, including paying them less even though they may have more experience or outrank men, prohibiting women from advancing by denying them training, prohibiting them from working in departments traditionally staffed by men (positions that usually paid more), and not posting all management position openings.68 In the aftermath, Wal-Mart did things like announce pro-female policies and plans. The case is still not over. In July 2016, 15 years after the original suit was filed, Betty Dukes and four other women reached a confidential settlement agreement with Wal-Mart, agreeing to dismiss their

claims. The day before the agreement was filed in court, however, six other Wal-Mart employees in the class intervened and requested that the agreement not be accepted because there were still significant issues. Stay tuned. . . .

Let’s take a look at some of the statistics that might underlie these cases to see if they support the overall picture.

• Women make up 46.8 percent of the workforce, and 57 percent of women participate in the labor force.69

• Women earn more degrees than men, and have for a long time. They have earned more bachelor degrees since 1982, more masters degrees since 1987, and more doctorates since 2006.70

• According to the U.S. Department of Labor, women earned 78.3 cents that of men in 2016, up from 62.3 cents in 1979, and 59 cents when the Equal Pay Act was passed in 1963. This is a 21.7 percent wage gap.71

• Forty-three percent of female employees work in the four most common female occupations: secretary, registered nurse, teacher, and cashier.72 Paradoxically, a 2004 EEOC report73 found that women have the lowest odds of being managers in nursing care facilities.

• For the fourth quarter of 2016, the median weekly salary of men was $927, while that of women was $758, or 81.8 percent of the median male salary. A 2007 report by the U.S. Census Bureau found that the gender-based wage gap is present in virtually every profession.74

• A March 2011 report released by the White House Commission on Women and Girls was the most comprehensive federal report on the status of women in the United States since 1963. Its statistical snapshot of women indicated that women earn 75 percent as much as men at all levels of educational attainment, with Hispanic women making 62 percent and black women 71 percent. This is despite the fact that women have now passed men in education and are more likely than men to have college or graduate degrees. Women are also more likely to live in poverty, do more housework, and suffer depression and chronic health problems.75

• A study by Stephen J. Rose, an economist at the consulting firm of Macro International, Inc., and Heidi I. Hartmann, president of the Institute for Women’s Policy Research, found that while the Bureau of Labor Statistics (BLS) reports page 382that women earn about 77 percent of men’s pay

over the course of their careers, it is actually more like 44 percent. The researchers say the BLS statistics consider only full-time, year-round employees—a category only about 25 percent of women fit into over the course of their work life—and do not account for the roughly 75 percent of those who work only part-time at some point and dip in and out of the labor force to care for children or elderly parents. When the more accurate reality is used for calculation, the figure becomes 44 percent.76 These differences in the way the determinations are made may account for the variations above between 75 percent and 80 percent.

• A longitudinal study titled “Pipeline’s Broken Promise,” found that despite company-implemented diversity and inclusion programs instituted with the expectation of creating a talent pipeline where women would be poised to make rapid gains to the top, inequality remains entrenched. In the study of 4,143 MBA graduates from elite programs in the United States, Canada, Europe, and Asia, in those that companies count on for future leadership, women lagged behind men in advancement and compensation. Unless they are part of the 10 percent of women who begin their post–MBA career at mid-management or above, they do not achieve parity in position with men. They make on average $4,600 less on their initial jobs and continue to be outpaced by men in rank and salary. Men are twice as likely to hold CEO or senior executive positions and less likely to be in the lower positions where women are overrepresented. The findings held even when considering men and women without children as well as those who aspired to senior leadership positions. Needless to say, they found that, in general, men were more satisfied with their careers overall than women.77

• Women make up about 51.5 percent of managers, but only 4 percent of CEOs.78

• Women earn more high school diplomas, BAs, MAs, and doctorates than men, yet it is generally recognized that campuses are still predominantly male when it comes to professors, department heads, and other high-level administrators.79

• An American Association of University Professors’ study of decades of research to cull recommendations for drawing more women into the science and technology fields found that though women have made gains, stereotypes and cultural biases are still in the way of their progress. In “Why So Few?” they found, for instance, that a female post-doctoral applicant had to publish 3 more papers in prestigious journals or 20 more in less prestigious journals to be judged as productive as a male applicant. The report showed that even as women earned a growing share of doctorates in the science and technology fields, they do not show up a decade later in a proportionate number of tenured faculty positions. After 310 years, Harvard tenured its first female math professor in 2010.80

• U.S. Department of Education data show that a year out of school, despite having earned a higher grade point average in every subject, young women will take home, on average, across professions, just 80 percent of what their male co-workers do.81

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Women make up 45 percent of associate attorneys at the largest law firms, but only 18 percent of equity partners. Female associates make 89.7 percent of men’s salaries and equity partners, 80 percent.82

• In looking at over 3,000 global companies, Credit Suisse found that in 2015 there were 14.7 percent females, up by 54 percent since 2010.83 The chief executive of Germany’s largest bank, Deutsche Bank, said a woman on his board (there were none) would make the board “more colourful and prettier.” Several European countries have instituted quotas and others, including Germany, are considering it. In response, Deutsche Bank set proposed quotas for female participation.84

Given the statistics and situations we see reflected in the above items, the workplace discrimination litigation listed before it makes sense. The 1991 Civil Rights Act called for the establishment of a Glass Ceiling Commission to investigate the barriers to female and minority advancement in the workplace and suggest ways to combat the situation. In 1995, the U.S. Department of Labor released a study by the bipartisan commission. Findings were based on information obtained from independent studies, existing research, public hearings, and focus groups. The commission reported that while women have gained entry into the workforce in substantial numbers, once there they face all but invisible barriers to promotion into top ranks. “Glass ceilings” prevent them from moving up higher in the workplace. “Glass walls” prevent them from moving laterally into areas that lead to higher advancement. Research indicates that many professional women hold jobs in such areas as public relations, human resources management, and law— areas that are not prone to provide the experience management seeks when it determines promotions to higher-level positions. Since this report, other phenomenon have occurred. “Glass cliffs” refer to women in leadership being brought in to help a company in desperate crisis, with the likelihood of failure being higher. “Glass escalator” refers to men entering traditionally female-dominated professions such as teaching and nursing (which accounted for nearly a third of men’s job growth from 2000–2010)85 and seeming to effortlessly glide to the top echelons in the workplace. Interestingly, transgender men, who have lived on both sides of the gender spectrum, have reported this to be true. They were overlooked as women, and found it easier to progress in the workplace as men.86

The Glass Ceiling report found that segregation by both race and gender among executives and management ranks is widespread. A survey of top managers in Fortune 1000 industrial and Fortune 500 service firms found that 97 percent are white males. As part of their findings, a survey by Korn/Ferry International found that 3 to 5 percent of top managers are women. Of those, 95

percent are white, non-Hispanic. Further, women and minorities are trapped in low-wage, low- prestige, and dead-end jobs, the commission said. Not surprisingly, women polled by The New York Times overwhelmingly chose job discrimination as “the most important problem facing women today.” Things have changed in the years since the comprehensive report was issued, but as you can see, the situation is still far from what most of us think of as a level playing field.

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Our country, like many others, has a history in which women’s contributions to the workplace have historically been precluded, denied, or undervalued. Prior to the 1964 Civil Rights Act, it was common for states to have laws that limited or prohibited women from working at certain jobs, under the theory that such laws were for the protection of women. Unfortunately, those jobs also tended to have higher wages. The effect was to prevent women from entering into, progressing within, or receiving higher wages in the workplace. In Muller v. Oregon,87 which upheld protective legislation for women and justified them being in a class of their own for employment purposes, the U.S. Supreme Court stated that a woman must “rest upon and look to her brother for protection . . . to protect her from the greed as well as the passions of man.” This is the view our laws took until the Civil Rights Act of 1964.

After women came into the workplace in unprecedented numbers out of necessity during World War II and performed traditional male jobs admirably, it became more difficult to maintain the validity of such arguments. This type of protective legislation was specifically outlawed by Title VII, and the glass ceiling, walls, cliffs, and escalators notwithstanding, women have made tremendous strides in the workplace in the fifty-plus years since the Civil Rights Act was passed. In evaluating those strides, keep in mind that women were virtually starting from scratch since there was little or nothing to prevent workplace discrimination before Title VII, so the barriers for women gaining entry into the workplace and the statistics reflected by that should, of course, be high.

Despite the fact that many of the strides made by women were made with the help of male judges, employers, legislators, and others, much of the cause of the inequity given is attitudinal. (See Exhibit 8.3, “Sexist Thinking.”) Workplace policies generally reflect attitudes of management. In a national poll of chief executives at Fortune 1000 companies, more than 80 percent acknowledged that discrimination impedes female employees’ progress, yet less than 1 percent regarded remedying gender discrimination as a goal that their personnel departments should pursue. In fact, when the companies’ human resources officers were asked to rate their departments’ priorities, women’s advancement ranked last.88 With women’s income now being critical to the well-being of more than 40 percent of American families, this is not a trivial issue.89

Exhibit 8.3 Sexist Thinking

An Esquire magazine poll asked men: “If you received $1.00 for every sexist thought you had in the past year, how much richer would you be today?” The median answer was $139.50. (We have never had a male student who didn’t think the figure should be much higher.)

Source: Parade Magazine, December 1991, p. 5.

While the pay gap between men and women has been stubbornly resistant to closing, not all of it can be attributed to discrimination. In general, women tend page 385to be acculturated

differently, which causes differences in how they approach the workplace. A Girl Scouts study found that young women avoid leadership roles for fear they’ll be labeled bossy90; women are four times less likely than men to negotiate a starting salary. A Harvard study found that women who demand more money are perceived as “less nice.”91

Interestingly enough, while the biggest gains under protective employment legislation in the last nearly 50 years have been made by women, the truth is, gender was not even originally a part of the Civil Rights Act. Gender was inserted into the civil rights bill at the last moment by Judge Howard Smith, a southern legislator and civil rights foe desperate to maintain segregation in the south, who was confident that, if gender was included in the bill legislating racial equality, the bill would surely be defeated. He was wrong. However, because of the ploy, there was little legislative debate on the gender category, so there is little to guide the courts in interpreting what Congress intended by prohibiting gender discrimination. To date, the EEOC has interpreted that gender discrimination also includes discrimination due to pregnancy, sexual harassment, gender identity, and sexual orientation. The pregnancy determination interpretation was turned into law through legislation. The sexual harassment has long been accepted by courts. As you will see in the chapter on sexual orientation and gender identity, both of these are still in a precarious position, with the EEOC having determined that they are types of gender discrimination, yet no federal legislation has been enacted and courts have rendered mixed decisions.

The goal of a manager, supervisor, human resources employee, or business owner is to have

workplace policies that maximize the potential for every employee to contribute to the productivity and growth of the workplace, while minimizing or eliminating irrelevant, inefficient, and nonproductive policies that prevent them from doing so. The underlying consideration to keep in mind when developing, enforcing, or analyzing policies is that, no matter what we may have been taught about gender by family or cultural and societal mores, gender, alone, is considered by the law as irrelevant to one’s ability to perform a job. By law, it is the person’s ability to perform, not his or her gender, that must be the basis of workplace decisions. (See Exhibit 8.4, “Gender Realities.”) As we shall see, there may be very limited exceptions to this rule if a bona fide occupational qualification (BFOQ) exists. It is not only the law, but it is in the best interest of any employer who is serious about maximizing production, efficiency, and profits, as well as minimizing legal liability for workplace discrimination, to recognize that gender discrimination, whether subtle or overt, is just plain bad business. After all, workplace turnover, morale, and defending against lawsuits cost the employer money, time, and energy better spent elsewhere. (See Exhibit 8.5, “Discrimination: Bad for Business and Employees.”)

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Exhibit 8.4 Gender Realities

Due to the particular historical development of gender in our country, there are many stereotypes about gender that affect how those of a given gender are perceived. Here are some of the stereotypes we have actually heard from managers and supervisors. These stereotypes impact how we view employees of a given gender in the workplace. See if any are familiar.

• Women are better suited to repetitive, fine-motor-skill tasks.

• Women are too unstable to handle jobs with a great deal of responsibility or high pressure.

• Men make better employees because they are more aggressive.

• Men do not do well at jobs requiring nurturing skills such as day care, nursing, elder care, and the like.

• When women marry, they will get pregnant and leave their jobs.

• When women are criticized at work, they will become angry or cry.

• A married woman’s income is only extra family income.

• A woman who changes jobs is being disloyal and unstable.

• A woman cannot have a job that requires her to have lunch or dinner meetings with men.

• Women cannot have jobs that require travel or a good deal of time away from home.

Exhibit 8.5 Discrimination: Bad for Business and Employees

JURY TELLS NBA TO PAY FEMALE REFEREE $7.85 MILLION

Read what happened when a female rose to number two on the list of those in line to officiate in the NBA, only to be repeatedly passed over:

Sandra Ortiz-Del Valle sued the National Basketball Association (NBA) for gender discrimination for passing her over as a referee and handed the NBA its first discrimination case loss when the federal jury awarded Ortiz- Del Valle $7.85 million, $7 million of which was punitive damages (the award was later reduced by a judge to $350,000). Ortiz-Del Valle had dreamed of being an NBA referee for years but kept getting passed over. Despite documents praising Ortiz-Del Valle as being “very knowledgeable about the rules” and having “excellent basketball officiating skills,” and although the evaluator said, “I would not hesitate to recommend that at sometime in the near future she be considered to enter our training program,” the NBA kept giving her varying reasons for denying her the position. The NBA denied any discrimination and said she was not hired because she failed to upgrade the level of competition in her officiating schedule despite being asked to, and said she was out of shape. Ortiz-Del Valle claimed she had all the qualifications to be an NBA referee, including officiating in top men’s amateur and professional basketball leagues for 17 years. She was the first woman in history to officiate a men’s professional basketball game. Ortiz-Del Valle said she finally sued after continuously doing everything the league asked of her, and not being promoted, then seeing men she trained hired by the league. “It was like they kept moving the basket,” she said.

Source: Ortiz-Del Valle v. NBA, 42 F. Supp. 2d 334 (S.D.N.Y. 1999).

The aim of this chapter is to provide information about obvious gender discrimination and what factors must be considered in making determinations about the policies in “gray areas.” This chapter provides the tools to use when developing, applying, or analyzing policies that may result in gender discrimination claims. You have already received a great start by being exposed to so very many different manifestations of gender discrimination in the pages leading here and having your eyes opened to the realities of the larger context in which gender operates around you every day.

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Gender Discrimination in General

LO3

Title VII and state fair-employment-practice laws regarding gender cover the full scope of the employment relationship. Unless it is a BFOQ, gender may not be the basis of any decision related to employment. This includes the following, taken from actual situations:

• Advertising for available positions and specifying a particular gender as being preferred (see Exhibit 8.6, “Pre–Title VII Newspaper Want Ads for Females”).

Exhibit 8.6 Pre–Title VII Newspaper Want Ads for Females

This classified ad excerpt, taken from an actual newspaper, is typical of those found in newspapers in the United States before Title VII was passed in 1964. For publication purposes, all names and phone numbers have been omitted. Title VII made it illegal to advertise for jobs based on gender.

• Asking questions on an application that are only asked of one gender. For example, for background- check purposes asking the applicant’s maiden name, rather than simply asking all applicants if there is another name they may have used.

• Asking questions in an interview that are only asked of one gender. For example, asking female interviewees if they have proper day care arrangements for their children and not asking male interviewees who also have children. Or, asking female applicants about reproductive plans and not asking males. (Yes, people actually do such things. Quite frequently, as a matter of fact.)

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Requiring one gender to work different hours or job positions for reasons not related to their ability or availability for the job. For example, not permitting women to work at night or not giving a promotion to a woman because it involves travel.

• Disciplining one gender for an act for which the other gender is not disciplined. For example, chastising a female employee who is late for work because of reasons related to her children while not similarly chastising a male employee who is late because of a sick dog, or chastising a female employee for cursing but not a male.

LO7

• Not taking into consideration legitimate differences between genders that can mean that treating them exactly the same may produce an undue hardship for the other, such as refusal to provide proper restroom facilities for all employees on construction sites.

• Providing or not providing training for one gender, while doing so for another. For example, providing training opportunities for career advancement to male employees and not to similarly situated female employees.

• Establishing seniority systems specifically designed to give greater seniority to one gender over another. For example, instituting a new seniority system that bases seniority on how long an employee has been working for the employer, rather than how long the employee has been working in a particular department with the intent that, if the employer ever needs to lay off employees for economic reasons, more males will be able to retain their positions because females have been in the workplace a shorter time and thus have less seniority.

• Paying employees different wages based on gender, though the job one employee performs is the same or substantially the same as another. This may also violate the Equal Pay Act, which prohibits discrimination in compensation on the basis of gender for jobs involving equal skill, effort, or responsibility.

• Providing different benefits for one gender than for another. For example, providing spouses of male employees with coverage for short-term disabilities, including pregnancy, while not providing female employees with similar coverage for short-term disabilities for their spouses.

• Subjecting one gender to different terms or conditions of employment. For example, requiring female associates in an accounting firm to dress, talk, or act “feminine,” when no comparable requirement is imposed on males aspiring to partnership.

• Subjecting one gender to continual unwanted teasing, joking, comments, angry statements, or general hassling to which the other gender is not subjected.

• Terminating the employment of an employee of one gender for reasons that would not serve as the basis for termination for an employee of the other gender. For example, terminating a female employee for cursing or fighting on the job, when males engaged in similar activity are retained.

Clearly the antidiscrimination provisions are comprehensive. The law is broad enough to cover virtually every decision or policy that could possibly be made in page 389the workplace. The scope

of antidiscrimination laws is intentionally undefined so that decisions can be made on a case-by- case basis. Some of the examples above are not illegal per se. Rather, they elicit gender or gender-related information that can form the basis of illegal gender-based employment decisions—or at least make it appear as if that is the case.

The law takes a case-by-case approach to gender discrimination, so it is imperative to know what factors will be considered in analyzing whether gender discrimination has occurred. To the extent that these factors are considered when developing or implementing policies, it is less likely that illegal considerations or criteria will be used in making workplace decisions and policies. (See Exhibit 8.7, “Appearance-Based Discrimination.”

Exhibit 8.7 Appearance-Based Discrimination

We often discriminate against others without even realizing it. Since only those things prohibited by law are considered illegal, not all discrimination is actionable. However, look at the items below and note the gender differences:

• Very attractive men and women earn at least 5 percent more per hour than people with average looks.

• Plain women earn an average of 5 percent less than women with average looks.

• Plain men earn 10 percent less than average men.

• Most employers pay overweight women 20 percent less per hour than women of average weight.

• Overweight males earn 26 percent more than underweight co-workers.

• Of men with virtually identical résumés, the taller man will be hired 72 percent of the time.

• Men who are 6 feet 2 inches or taller receive starting salaries 12 percent greater than men under 6 feet.

• Married men earn, on average, 11 percent more per hour than men who have never married.

• White women 65 pounds overweight earn 7 percent less than those of median weight; there is little effect of weight on the earnings of Hispanic women, none on black women, and virtually none on the wages of men.

• Better-looking men get more job offers, higher starting salaries, and better raises; good-looking women get better raises but not usually better jobs or starting salaries.

• Plain women tend to attract the lowest-quality husbands (as measured by educational achievement or earnings potential); beautiful women do no better in marriage than average women; looks don’t seem to affect men’s marriage prospects.

• The less attractive you are, the more likely you are to receive a longer prison sentence, a lower damage award, and a lower salary.

• Over his career, a good-looking man will make about $250,000 more than his least-attractive counterpart.

• In a Newsweek survey, 61 percent of hiring managers said it is advantageous for a woman to show off her figure in the workplace.

• In the same survey, 57 percent of corporate managers said landing a job is harder for an unattractive candidate.

• Beauty can also be a hindrance. A study in the Journal of Social Psychology found that page 390attractive women are discriminated against when applying for jobs that are considered more traditionally male, such as director of

finance, mechanical engineer, prison guard, tow-truck driver, construction worker, or hardware salesperson. Attractive men were not subjected to the same discrimination.

Sources: Taken from The Paranoid’s Pocket Guide, by Cameron Tuttle, Chronicle Books, 1997,

Professors Jeff Biddle and Daniel Hamermesh, “Beauty and the Labor Market,” American

Economic Review 83, no. 1174 (December 1994); John Cawley, Body Weight and Women’s

Labor Market Outcomes 2, no. 1, Joint Center for Poverty Research, 2000: Dahlia Lithwick,

“Our Beauty Bias Is Unfair,” Newsweek, 6/14/2010, p. 20; Jessica Bennett, “The Beauty

Advantage,” Newsweek, 7/26/2010, p. 47; Lisa Johnson Mandrell, “Workplace Discrimination:

Beauty Can Be a Beast at Work,” AOL Jobs Original,

8/9/2010, http://jobs.aol.com/articles/2010/08/09/discrimination-gender-beauty-study/.

Recognizing Gender Discrimination

When analyzing employment policies or practices for gender discrimination, first check to see if it is obviously so. See if the policy excludes members of a particular gender from the workplace or some workplace benefit. An example is a policy that recently appeared in a newspaper story on local restaurants. One owner said that he did not hire males as servers because he thought females were more pleasant and better at serving customers. As Wedow v. City of Kansas City, Missouri, demonstrates, employers may engage in obvious gender discrimination and claim to be unaware of their policies’ negative legal repercussions, even though it is a workplace held in high regard such as a fire department. This case is available at the conclusion of the chapter.

Not all cases may be as easy to recognize as gender discrimination when making workplace

decisions or policies. (See Exhibit 8.8, “Illegal or Unfair?”) It is easier to realize there is gender discrimination when the policy says “no women hired as guards” than when, as with the Dothard v. Rawlinson case (given at the end of the chapter), there is a policy, neutral on its face, saying all applicants must meet certain height and weight requirements to be guards, yet due to their genetic differences, statistically, most women do not generally meet the requirements. In the Dothard case, for the first time, the U.S. Supreme Court was faced with whether Title VII’s gender discrimination provision applied to the seemingly neutral criteria of height and weight restrictions, which had long been an accepted basis for screening applicants for certain types of jobs such as prison guards, police officers, and firefighters, even though there was little or no legitimate reason for the criteria. The Court decided that Title VII did, in fact, apply to such facially neutral policies when they screened out women (later cases extended this standard to shorter and slighter ethnicities as well) at an unacceptable rate and were not shown to be directly correlated to ability to do the job.

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Exhibit 8.8 Illegal or Unfair?

Several courts have wrestled with the issue of what constitutes gender discrimination under Title VII. One issue that has arisen several times is whether it is illegal gender discrimination under Title VII if a female who is having a relationship with a supervisor receives a job or promotion over a qualified male who applies for the position. In Womack v. Runyon, 77 FEP Cases 769 (11th Cir. 1998), Paul Womack, having excellent credentials,

experience, and training applied for a carrier supervisor position in Waycross, Georgia. He was unanimously selected as the best qualified candidate by a review board, but O. M. Lee, the newly appointed postmaster of Waycross, instead appointed Lee’s paramour, Jeanine Bennett. In rejecting Womack’s Title VII claim of gender discrimination, the court held that Title VII did not cover claims of favoritism, saying that such decisions may not be fair, but they are not illegal under Title VII. According to an EEOC policy guidance, “Title VII does not prohibit . . . preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour . . . may be unfair, but it does not [amount to] discrimination against women or men in violation of Title VII, since both [genders] are disadvantaged for reasons other than their genders.”

“Gender-Plus” Discrimination

LO5

There are some situations in which the employer may permit the hiring of women but not if there are other factors present—for example, no hiring of women who are pregnant, are married, are over a certain age, have children under a certain age, or are unmarried with children. This is “gender-plus” discrimination. Of course, the problem is that such policies are not neutral at all because males are not subject to the same limitations. (See Exhibit 8.9, “Breast-Feeding: A Gender-Plus Issue?”) “gender-plus” discrimination Employment discrimination based on gender and some other factor such as marital status or children.

Exhibit 8.9 Breast-Feeding: A Gender-Plus Issue?

A federal judge in New York dismissed a gender discrimination and disability suit brought by Alicia Martinez, a cable television producer, alleging that after returning from maternity leave, her employer, MSNBC cable, failed to provide her with a “safe, secure, sanitary and private” place to pump breast milk during work breaks and harassed her for complaining. [Martinez v. NBC, Inc. and MSNBC, 49 F. Supp. 2d 305 (S.D.N.Y. 1999).]

Regarding the ADA claim, Judge Kaplan said it was “preposterous to contend a woman’s body is functioning abnormally because she is lactating.” As to the Title VII claim, the court said this was not “sex plus” discrimination because “to allow a claim based on sex-plus discrimination here would elevate breast milk pumping—alone—to a protected status,” and that could only be done by Congress. It was not plain gender discrimination under Title VII because “the drawing of distinctions among persons of one gender on the basis of criteria that are immaterial to the other, while in given cases perhaps deplorable, is not the sort of behavior covered by Title VII.”

Note that a similar argument was struck down by Congress in enacting the Pregnancy Discrimination Act, where the court determined it was not illegal page 392gender discrimination to treat pregnant employees

differently, since only females could become pregnant. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act of 2010.

Among its provisions was an amendment to the Fair Labor Standards Act of 1938 that requires an employer of more than 50 employees to provide reasonable break time for an employee to express breast milk for her nursing child for one year after birth each time the employee has a need to express milk. The employer need not compensate the employee unless she is expressing milk on a regular paid break. The employer must also provide a private functional space other than a bathroom in which the employee may express the milk. If the employer has less than 50 employees and these requirements present an undue hardship, then the employer need not comply with this law. If state law provides stronger provisions, then the employer must comply with state law.

Forty-nine states, the District of Columbia and the Virgin Islands have laws allowing breastfeeding in any public or private location. Employers are taking this issue quite seriously and creating policies to address lactation.

See National Conference of State Legislatures, http://www.ncsl.org/research/health/breastfeeding-state- laws.aspx.

Phillips v. Martin Marietta Corp.92 was the first Title VII case to reach the U.S. Supreme Court

and is still widely cited. Martin Marietta involved an employer’s policy of not hiring women with preschool-aged children. No such policy applied to men with such children. The Court determined

that unless the employer showed a legitimate basis for making the gender-based distinction, the policy could not stand. The employer did not keep all women out of the workplace, but only those with preschool-aged children. That is the “plus” involved. The dissent in the Martin Marietta case filed by Justice Thurgood Marshall refused to believe there could be any basis for proof of a justification for the policy. The Court evidently took Justice Marshall’s dissent seriously because in the years after Martin Marietta the Court has not permitted BFOQs to be used in the way Marshall warned against. Keep in mind that, while BFOQs are permitted as a lawful means of discriminating based on gender, they are very narrowly construed. The employer is under a heavy duty to show that the gender requirement is reasonably necessary for the employer’s particular business.

Gender Issues

LO4

As we have seen, many issues are included under the umbrella of illegal gender discrimination. Following are some that are most prevalent. Keep in mind that many things we take for granted and dismiss as “that’s just the way things are” may actually be illegal in the workplace. That is what Justice Marshall alluded to in his dissent in the Phillips case, which has been followed by subsequent courts. It is extremely important to keep this in mind as managers make workplace decisions and to guard against letting such thoughts be the basis of illegal Title VII decisions that result in employer liability.

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Gender Stereotyping Much discrimination on the basis of gender is in some way based on gender stereotypes. That is, workplace decisions are based on ideas of how a particular gender should act or dress, or what roles they should perform or jobs they should hold. An employer may terminate a female employee who is too “abrasive,” or not hire a female for a job as a welder because it is “men’s work.” Stereotypes generally have little or nothing to do with an individual employee’s qualifications or ability to perform. Workplace decisions based on stereotypes are prohibited by Title VII. (See Exhibit 8.5, “Discrimination: Bad for Business and Employees”; Exhibit 8.10, “Stereotyped Humor”; and Exhibit 8.11, “Stereotypes.”) gender stereotypes The assumption that most or all members of a particular gender must act a certain way.

Exhibit 8.10 Stereotyped Humor

Studies have shown that activities like sexist language and jokes can impact our judgments about the group to which they refer. We need to be careful about the language we use and the ideas we convey, even through something as seemingly simple as humor. In one study of 100 college students who listened to a lecture by a female after first hearing jokes, the group who heard sexist jokes rated her in a more stereotyped way than those who heard non-sexist jokes.

In another, students exposed to sexist humor videos before being asked to make funding cuts for student organizations cut more from women’s organizations.

Source: Western Carolina University. “Sexist Humor No Laughing Matter, Psychologist Says.” ScienceDaily, November 7, 2007. <www.sciencedaily.com/releases/2007/11/071106083038.htm>.

Exhibit 8.11 Stereotypes

Do any of the stereotypes below, taken from actual cases, sound familiar?

• Women being included in workplace events are a “buzz kill.”

• Employer would not consider “some woman” for the position, questioned applicant about future pregnancy plans, and asked whether her husband would object to her “running around the country with men.”

• Women are not aggressive enough for certain jobs.

• A lesser job position was sufficient for women and no woman would be named to the higher position.

• Men are the family breadwinner.

• Once a woman gets married, she will get pregnant.

• Once a woman goes on maternity leave, she will not return to work.

• Women cannot take the pressure necessary for certain jobs.

• If a woman is away from her desk she is in the bathroom; the man is elsewhere talking business to colleagues.

As Price Waterhouse v. Hopkins (included at the end of the chapter) demonstrates,

stereotyping frequently leads to actions that form the basis of unnecessary liability for the employer. It is senseless for employers to allow managers and page 394supervisors who hold

such views to cause liability that costs the entire company unnecessary loss of revenue. Gender stereotyping began as stereotyping about females, but over the years the more recent cases also used the Price Waterhouse case to prohibit gender stereotyping of males, particularly as it relates to effeminacy. This, in turn, eventually resulted in the EEOC interpreting Title VII’s gender provision as also prohibiting discrimination on the basis of gender identity in 2012, and sexual orientation in 2015.

Grooming Codes

LO6

The issue of gender stereotypes may be closely linked to that of grooming codes since the issue often arises in a gender context (e.g., men being prohibited from wearing earrings at work or women being required to wear makeup). Courts recognize that employers need to be able to control this aspect of the workplace, and a good deal of flexibility is permitted. In Harper v. Blockbuster Entertainment Corporation93 male employees sued for gender discrimination based on not being allowed to wear long hair, since there was no such limitation on female employees. In rejecting their claim, the court said that “distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of Title VII. Congress sought only to give all persons equal access to the job market, not to limit an employer’s right to exercise his informed judgment as to how best to run his shop.” Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes.

Note, however, that we here address grooming codes only in the context of gender discrimination. The more recent workplace issue of, for example, applicants or employees with numerous body piercings, tattoos, and the like is generally not a gender issue but, rather, one of pure dress code–based appropriate business attire as determined by the employer. Again, employers are given a good deal of leeway in setting workplace dress codes. The codes can be

pretty much whatever the employer wants, unless a policy violates the law, such as being illegally discriminatory on the basis of gender. In making this determination, employers can use reasonable standards of what is generally thought to be male- or female-appropriate attire in a business setting. For instance, a Florida city council wanting to “clean up,” instituted a dress code requiring employees to wear underwear and use deodorant. It also prohibited exposed underwear, clothing with “foul” language, “sexually provocative” clothes, and piercings anywhere except the ears. The one city council member who opposed the measure did so because he believed the underwear rule “takes away freedom of choice.”94

Courts also have upheld grooming codes that required, among other things, male supermarket

clerks to wear ties, female employees to not wear pants, a female attorney to “tone down” her “flashy” attire, and male and female flight attendants to keep their weight down. Not permitted was a weight restriction policy applied only to the exclusively female category of flight attendants, but not the category of male directors of passenger service, when both were in-flight employees. Also not permitted was requiring male employees to wear “normal business page 395attire” and women

to wear uniforms, though both performed the same duties. The court found “there is a natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business clothes.” This is the basis for Opening Scenario 1, and the reason the female clerk made to wear the smock would have a viable claim for gender discrimination.

The wearing of the short loose top may seem like a small thing to you, and you might say to yourself, “What’s the big deal? Why would anybody complain about such a little thing?” Think back to the wires of the cage. It is not the garment itself that presents the problem. Rather, as the court said above, it is how that garment positions the employee to be perceived in the workplace, especially next to someone in normal business attire. That perception is a large part of what happens in that employee’s work life, affecting whether that employee receives promotions, training, raises, and so on.

When you think of business attire (keep in mind that the males with the same jobs were required to wear the “normal business attire” of coats and ties), the loose-fitting garment does not generally come to mind. If both genders were performing the same job, a female wearing the garment would not qualify as comparable to a male wearing a coat and tie. If you think she would, just turn the facts around and require the males to wear the blousy-looking short garment and the females to wear “normal business attire.” Not the same picture, is it? And when you think of who should get a promotion, the employee in the garment probably doesn’t come to mind as quickly as someone in normal business attire. Like the wires, each requirement, in and of itself, may not make a big difference, but taken together, the policies create a picture that is likely to keep the female employee on the low end of the workplace ladder and be more likely to lead to unnecessary litigation.

As a managerial exercise for yourself, try to think of why the employer would have required the garment. Why not require it for all employees if they really are all the same? What is the difference between males wearing them and females wearing them? Once you come up with a reason, ask yourself if it makes sense. Chances are, it doesn’t. For instance, if the garment was required to keep the employees’ clothes clean, then why not protect the clothing of males also?

Being able to see and really understand this scenario goes a long way toward being able to truly grasp the big picture of how gender discrimination works and how you can think about avoiding liability when faced with your own situations as a manager.

A gender-based grooming policy that subjects one gender to different conditions of employment also would not be allowed, for instance, where the scant uniform the female lobby attendant was required to wear made her the object of lewd comments and sexual propositions from male entrants,95 or where a manager required female employees to wear skirts when the “head honcho”

visited because he “liked to look at legs.” It is not a defense for an employer to argue that the employee knew about the grooming code when he or she came into the workplace. If the code is illegal, it is illegal, period. Agreeing to it makes it no less so, particularly given the unequal bargaining positions of the employer and job applicant/employee.

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An interesting case arose when Harrah’s Casino in Reno, Nevada, instituted a new dress code that required female employees to wear makeup. The “Personal Best” program “specified the makeup as foundation or powder, blush, lipstick and mascara, applied precisely the same way every day to match a photograph held by the supervisor.” The only requirement for men was that they not wear makeup of any kind and keep their hair and nails trimmed. Darlene Jespersen, a bartender who had been employed by the casino for 21 years and had an excellent work history, was “highly offended she had to doll herself up to look like a hooker.” She was terminated for failing to comply with the policy. Jespersen argued that the cosmetics cost hundreds of dollars per year and took a good deal of time to apply and therefore created an unequal burden on female employees. The Ninth Circuit Court of Appeals upheld the policy, saying “there is no evidence in the record in support of [Jespersen’s] contention that cosmetics can cost hundreds of dollars per year and that applying them requires a significant investment of time.”

Can you reconcile the court’s position with that of the U.S. Supreme Court in the Price Waterhouse decision, which held that gender stereotyping violated Title VII? Remember that the Court found gender discrimination when, among other things, Hopkins was told she must “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” The Ninth Circuit said its decision did not run afoul of Price Waterhouse because Price Waterhouse did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees (presumably because the more direct issue before the Court was Hopkins’s assertive/aggressive behavior, which her employers used as a large part of their rejection of her as a partner).

The full Ninth Circuit reheard the case again en banc (i.e., with all the judges present, not just a three-judge panel) in Jespersen v. Harrah’s Operating Co.96 Given the queries put to you about reconciling the case with Price Waterhouse, you can imagine the controversy it caused when the full court upheld the three-judge panel’s decision in favor of the employer.

Customer or Employee Preferences Frequently an employer uses gender as a basis for assigning work because of the preference of customers, clients, or other employees. You saw this in the Race chapter when the Lowe’s manager was terminated for honoring a customer’s request to not have a black driver deliver her purchase. Often the work to which one gender is not privy represents a loss of valuable revenue or a professionally beneficial opportunity for that employee. Such considerations may be formidable in client-driven businesses such as law, brokerages, accounting, sales, and other professions. If a customer does not wish to have a female audit his or her books, can her accounting firm legally refuse to let her service the client? Is an employer in violation of Title VII if the employer does not permit an employee of a certain gender to deal with a customer because the customer does not wish to deal with someone of that gender and the employee is thereby denied valuable work experience or earning potential? What if male employees on a construction site don’t want a female to work with them?

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The answer is, as it was with race, yes, the employer is in violation of Title VII and can be held liable to the employee for gender discrimination. Customer preference is not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender.

Hooters is an Atlanta and Clearwater, Florida–based restaurant chain known for its buffalo wings and scantily clad, generally well-endowed, female servers. Hooters does not hire males as servers. The conventional wisdom is that despite Hooters’ claims that it is a family restaurant and “Hooters” refers to its owl logo, “Hooters” is a not-so-subtle reference to female breasts, and the servers are likely more of a draw than the food they serve. This is further supported by the servers’ outfits, the fact that Hooters is known for its “Hooters’ Girls,” complete with pin-up calendars and a 10-page Playboy magazine spread, and its “more than a mouthful” logo, which few believe refers to chicken wings or owls.

Hooters has long maintained that customers want only female servers. In 1996, in response to being sued by males for gender discrimination, Hooters launched a “no to male servers” billboard campaign featuring husky, hairy male servers clad in Hooters’ attire. Despite the lawsuits brought by the EEOC and class action suits by males in Chicago and Maryland, Hooters has generally chosen to settle cases rather than litigate them, which, of course, it has the right to do as long as it is willing to foot the bill. While Hooters’ serving staff is still all female, on January 31, 2017, Hooters announced that it will be hiring male servers at its new quick serve spinoff, Hoots, with counter service fashioned along the lines of Panera Bread and Chipotle’s. The famous Hooters uniform will not be worn at Hoots.97

The Hooters situation is the basis for Opening Scenario 2. Not a semester goes by that one of

our students doesn’t ask how Hooters can “get away with” hiring only female servers. The short answer is, it can’t. At least not legally, in its present incarnation. Hooters has the right to use gender as a BFOQ to protect its female-only server policy if it can show that the gender of its servers is a bona fide occupational qualification reasonably necessary to the particular job done by the servers rather than a marketing scheme.

For instance, the BFOQ would be defensible if Hooters declared itself to be in the business of adult entertainment rather than purely food service. Despite the fact that it maintains that it is a family restaurant that even has crayons for children to prove it, it has come to be known informally as a “breastaurant,” a hybrid between a restaurant and an adult entertainment location. If it is a family restaurant, it means its purpose is serving food rather than adult entertainment, so either gender can serve its food and its female-only server policy violates Title VII. If it is adult entertainment, then it can have only females to “entertain.” So, the way Hooters “gets away with” hiring only female servers is to settle lawsuits brought by males challenging its exclusionary policy. Hooters has concluded that it is worth more to keep its female-only server policy and settle claims by male applicants than to change its policy. Again, that approach is something it has every right to take as long as it is willing to pay. To see the fine line Hooters walks in trying to characterize itself to avoid liability, visit their website and read the “about Hooters” section.

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The issue of customer preference can potentially cause problems since the 1991 amendment made Title VII applicable to U.S. citizens employed by American-owned or -controlled companies doing business outside the United States. An employer in a country whose mores may not permit women to deal with men professionally must still comply with Title VII unless doing so would cause the company to actually violate the law of the country in which the business is located.

Logistical Considerations

LO5

In some workplaces, males and females working together can present logistical challenges—for instance, female sports reporters going into male athletes’ locker rooms, female firefighters sleeping at a fire station, or lack of bathrooms at a construction site. This issue arose in the context of construction workers in the Lynch v. Freeman case, which is included at the conclusion of the chapter, when a female employee was told to use the same portable toilet as males. The court determined that the unclean (to put it mildly) toilets presented different challenges to males and females, resulting in gender discrimination. Note how the employer can take little for granted in making workplace decisions, as even the seemingly smallest decisions can be the basis of a time- consuming and expensive lawsuit.

A growing logistical concern in recent years has been the matter of female employees breast- feeding or expressing their milk at work. While the benefits of breast-feeding are clear as providing the best means of giving infants, among other things, natural immunities and nutrients, women who needed to, or chose to, return to work before their babies were weaned from the breast had little means of continuing to provide them with the benefits of their milk when they were not available to feed them. It was even illegal in many states to breast-feed in public.

In 2006, a national “nurse-in” was held to protest the treatment of Emily Gillette of Santa Fe, New Mexico. Gillette was sitting aboard a Freedom Airlines (a regional airline for Delta) plane that was three hours late in taking off, when she began to breast-feed her daughter. A flight attendant who told Gillette that Gillette was offending her had Gillette removed from the plane when Gillette refused to cover herself with a blanket. Forty-nine states, plus the District of Columbia and the Virgin Islands have passed lactation laws that make it permissible for women to breast-feed in public places without being cited for public indecency (see Exhibit 8.9, “Breast-Feeding: A Gender-Plus Issue?”). As you saw in Exhibit 8.9, the Patient Protection and Affordable Care Act of 2010 amended the Fair Labor Standards Act to require that employers with 50 or more employees provide a reasonable and private place other than a restroom and breaks for new mothers to express their milk. The breaks need not be paid unless they are normal paid breaks, and if the employer has fewer than 50 employees and the requirement presents an undue hardship, the employer need not comply. If state law provides more rights, the employer must comply with those. The right is given to employees who qualify for overtime under Fair Labor Standards Act laws discussed in a later chapter. A growing number of employers had already begun to provide lactation rooms for employees to be able to express milk at work and a means to keep it cool until they can take it home.

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In sum, employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden—usually a matter difficult for an employer to prove. These challenges must be resolved in a way that does not discriminate against the employee based on gender. Generally it is not exceedingly difficult, although it may take thinking about the workplace in a different way.

Equal Pay and Comparable Worth

LO8

(1) No employer . . . shall discriminate between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex

. . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . . [Equal Pay Act, 29 U.S.C.A § 206(d).]

You watched it play out in 2016 when the U.S. Women’s Soccer Team filed a complaint against the U.S. Soccer Federation with the Equal Employment Opportunity Commission for pay discrimination. They claimed they were paid less per game, received less for daily expenses while traveling, yet they played more games than the men and had a better winning record. The federation said it was because the men’s team brought in more money, but in 2015, the women’s team won the World Cup and brought in more revenue. The situation drew a lot of media attention, including a piece on CBS’s 60 Minutes.

Despite the statute quoted above prohibiting pay discrimination, women earn on average 78.3 cents for every dollar earned by men. This is up from 60 cents in 1979. Younger women make 80 cents for every dollar a man makes in the same age group. At the rate the gender wage gap is closing, widely cited AFL–CIO research shows that women’s salaries will not be equal until the year 2050.98 A 2003 General Accounting Office report found that the gender wage gap exists not because of less education or experience or because women get on a “mommy track” or choose low-paying professions. Instead, they concluded that discrimination is the biggest factor in the wage gap between genders.99 In a much publicized study in May 2013, the Pew Research Center found that in a “huge leap from 50 years ago when only a handful of moms were bringing home the bacon,” women are now the leading solo breadwinners in 40 percent of U.S. households, compared to 11 percent in 1960. The study also revealed that, despite the fact that mothers are now equally or more educated than their husbands, a majority of fathers still earn more than their wives.100

Title VII prohibits discrimination in employment including in the area of compensation, but even before Title VII there was legislation protecting employees against discrimination in compensation solely on the basis of gender. The year before Title VII was passed, the Equal Pay Act (EPA), actually part of the Fair Labor Standards Act (FLSA) governing wages and hours in the workplace, became law.

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Under the act, employers subject to the minimum wage provisions of the FLSA may not use gender as a basis for paying lower wages to an employee for equal work “on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” There are exceptions. Differences in wages are permitted if based on seniority or merit systems, on systems that measure earnings by quantity or quality of production, or on a differential based on “any other factor other than [gender].”

To comply with the Equal Pay Act, the employer may not reduce the wage rate of the higher- paid employees. According to Bureau of Labor Statistics figures, the pay gap that was supposed to be closed by the legislation actually widened at least nine times from one year to the next since passage of the EPA.

The EPA overlaps with Title VII’s general prohibition against discrimination in employment on the basis of gender. Title VII’s Bennett Amendment was passed so that the exceptions permitted by the EPA also would be recognized by Title VII. The EPA also has a longer statute of limitations (two years from the time of the alleged violation, which may be raised to three years for willful violations, rather than 180 days under Title VII). Perhaps due to the fact that Title VII was passed very soon after the EPA, and more generally proscribed discrimination in employment, there has been less activity under the EPA than under Title VII. However, the prohibitions on pay

discrimination should be considered no less important. (See Exhibit 8.12, “Equal Pay: Hardly a Dead Issue.”)

Exhibit 8.12 Equal Pay: Hardly a Dead Issue

A 1999 national study undertaken by the AFL-CIO and the Institute for Women’s Policy Research revealed very interesting insights into the issue of pay equality among American workers. Almost two-thirds of all working women responded to the survey. When looking at the findings and thinking about the issue of wage equality, keep in mind that the women responding provided half or more of their families’ incomes. In the years since, while some things have changed, it is pretty scary how similar the overall picture still is. See IWPR #C411 at iwpr.org, “How Equal Pay for Working Women Would Reduce Poverty and Grow the Economy” at http://www.iwpr.org/initiatives/pay-equity-and-discrimination.

• Ninety-four percent of working women described equal pay as “very important”; two of every five cited pay as the biggest problem women face at work.

• Working families lose $200 billion of income annually to the wage gap—an average yearly loss of more than $4,000 for each working woman’s family because of unequal pay, even after accounting for differences in education, age, location, and the number of hours worked.

• If married women were paid the same as comparable men, their family income would rise by nearly 6 percent, and their families’ poverty rates would fall from 2.1 percent to 0.8 percent.

• If single working mothers earned as much as comparable men, their family incomes would increase by nearly 17 percent, and their poverty rates would be cut in half, from 25.3 percent to 12.6 percent.

• If single women earned as much as comparable men, their incomes would rise by 13.4 percent and their poverty rates would be reduced from 6.3 percent to 1 percent.

• page 401Working families in Ohio, Michigan, Vermont, Indiana, Illinois, Montana, Wisconsin, and Alabama pay the heaviest price for unequal pay to working women, losing an average of roughly $5,000 in family income each year.

• Family income losses due to unequal pay for women range from $326 million in Alaska to $21.8 billion in California.

• Women who work full-time are paid the least, compared with men, in Indiana, Louisiana, Michigan, Montana, North Dakota, Wisconsin, and Wyoming, where women earn less than 70 percent of men’s weekly earnings.

• Women of color fare especially poorly in Louisiana, Montana, Nebraska, Oregon, Rhode Island, Utah, Wisconsin, and Wyoming, earning less than 60 percent of what men earn.

• Even where women fare best compared with men—in Arizona, California, Florida, Hawaii, Massachusetts, New York, and Rhode Island— women earn little more than 80 percent as much as men.

• Women earn the most in comparison to men—97 percent—in Washington, DC, but the primary reason women appear to fare so well is the very low wages of minority men.

• For women of color, the gender pay gap is smallest in Washington, DC; Hawaii; Florida; New York; and Tennessee, where they earn more than 70 percent of what men overall in those states earn.

• The 25.6 million women who work in predominantly female jobs lose an average of $3,446 each per year; the 4 million men who work in predominantly female occupations lose an average of $6,259 each per year.

Sources: “Equal Pay for Working Families: National and State Data on the Pay Gap and Its Costs,” http://www.aflcio.org/Press-Room/Press-Releases/Campaign-to-Introduce-New-State-Equal-Pay-Legislat.

In 2013, on the 50th anniversary of the Equal Pay Act, the National Pay Equity Task Force issued an assessment of the law which found that in 2011, while much progress had been made, women comprised nearly half the workforce, and many were the primary breadwinners for their families, the average woman still earned only 77 cents for every dollar earned by men and women continued to constitute a majority of employees in many low-wage sectors. For instance, 52 percent of all working women worked in service, sales, and office occupations such as

secretaries, cashiers, maids, and child care workers and were an overwhelming majority in those sectors.101

In 2016, in EEOC v. Colorado Seminary,102 the EEOC alleged that female full professors at the University of Denver’s Sturm College of Law were paid less than their male counterparts. As you saw in many of the cases mentioned in the beginning of the chapter, not only is unequal pay the basis of many gender discrimination lawsuits, but often the cases are class action suits that reflect a systemic issue in the workplace. As we mentioned then, discrimination may not account for all of the wage differential, but research shows that much of it is based on gender-based ideas. That is within the employer’s control and is thus something the employer can do something about to avoid liability. (See Exhibit 8.13, “Staying on Top of Gender-Based Pay Inequities.”)

Exhibit 8.13 Staying on Top of Gender-Based Pay Inequities

The Catalyst research on MBAs discussed earlier was sponsored by many big corporations including American Express. These CEOs offered insights and suggestions on the study’s findings. They included the following and if you have been reading the chapter carefully should sound quite familiar:

• Don’t assume that the playing field has been leveled.

• Redesign systems to correct early inequities.

• Collect and review salary growth metrics.

• Build in checks and balances against unconscious bias.

• Make assignments based on qualifications, not presumptions.

Source: Nancy M. Carter, Christine Silva, “Pipeine’s Broken Promise,” Catalyst, 2/24/2010, http://www.catalyst.org/publication/372/pipelines-broken-promise.

Under the EPA, it is the content of the job, not the job title or description, that controls the comparison of whether the jobs are substantially the same. For page 402instance, if a hospital’s

male “orderlies” and female “aides” perform substantially the same job, they should receive the same pay, despite the difference in job titles.

In County of Washington v. Gunther,103 the Court held that Title VII’s Bennett Amendment only incorporated the four EPA exceptions into Title VII, not the “substantially equal” requirement; therefore, the jobs compared in a Title VII unequal pay action need not be substantially equal.

Thus, under Title VII, employees have attempted to bring comparable worth cases in which higher-paid predominantly male jobs with similar value to the employer are compared in order to challenge lower wage rates for jobs held mostly by women. For instance, Minnesota has a gender pay equity law and uses outside consultants to help set wage levels. In 1982 it was determined that van drivers (predominantly male) and clerk typists (predominantly female) were comparable, yet the men earned $1,900 per month and the women $1,500 per month.104 comparable worth A Title VII action for pay discrimination based on gender, in which jobs held mostly by women are compared with comparable jobs held mostly by men in regard to pay to determine if there is gender discrimination.

Federal courts, however, have generally rejected Title VII claims based on comparable worth. The AFSCME v. State of Washington105 case was the first significant statewide case to

challenge gender-based pay differences on the basis of the comparable worth theory. The state of Washington conducted studies of prevailing market rates for jobs and wages in order to determine the wages for various state jobs and found that female-dominated jobs paid lower wages than male-dominated jobs. The state then compared jobs for comparable worth and, after finding that female-dominated job salaries were generally about 20 percent less than wages in male-dominated jobs, legislated that it would begin basing its wages on comparable worth rather than the market rate, over a 10-year period. State employees wanting the scheme to go into effect

immediately brought a Title VII suit against the state alleging it was a violation of Title VII for the state to know of the wage differences and not remedy the situation immediately. The court held that since the state was not responsible for the market rates, it did not violate Title VII.

You can imagine the impact of the AFSCME decision on employers. The state had basically gotten burned by trying to do the right thing in taking it upon itself page 403to determine if there

were pay inequities based on market rates and comparable worth. When it discovered the 20 percent differential benefitting men, it made a workable plan to correct the discrepancies it found. It was then sued for not correcting the discrepancies quickly enough. If you were an employer would you have then taken it upon yourself to go seeking discrepancies? We think not. There was no way they were going to wade into this morass of comparable worth unless they absolutely had to. Based on the court’s decision, since the differential was caused by market forces rather than discrimination by the state, the state had no responsibility for the pay differential. This pretty much brought the idea of comparable worth to a halt for a long while.

Over the years there have been many attempts at addressing the pay differentials between males and females. Few have met with significant success. Prompted by the flap over pay disparities in women’s soccer in January 2000, there was a flurry of activity surrounding the issue of gender-based wage differences in the American workplace. Twenty members of the U.S. Women’s Soccer Team refused to play in an Australian tournament and demanded pay equal to that of the U.S. Men’s Soccer Team. The women were scheduled to be paid $3,150 per month for the most experienced player and about $250 per game. Men were to receive $5,000 per month and an additional $2,000 for the 18 players going to Australia. In the wake of the incident, at least two pieces of legislation were introduced into Congress (the Fair Pay Act and the stronger Paycheck Fairness Act) to amend the Fair Labor Standards Act to address the issue of gender- based wage disparities. In February 2000, President Clinton, accompanied by women’s soccer player Michelle Akers, announced that he was seeking an Equal Pay Initiative of $27 million to close the gap between men’s and women’s pay, of which $10 million would be allocated to the EEOC to deal with the issue of gender-based wage violations. However, nothing much came of the flurry of activity and the laws have not yet been enacted by Congress.

The Paycheck Fairness Act would amend the Equal Pay Act to allow, in addition to the compensatory damages now permitted by the law, punitive damages for wage discrimination; prohibit employers from retaliating against employees for disseminating wage information to other employees; create training programs to help women strengthen their negotiation skills106; enforce equal pay laws for federal contractors; and require the Department of Labor to work with employers to eliminate pay disparities. The Fair Pay Act seeks to end wage discrimination in female- or minority-dominated jobs by ensuring equal pay for equivalent work. This proposed law is aimed at female- and minority-dominated employees and would establish equal pay for equivalent work. Employees would be protected on the basis of race and national origin. Wage differentials would be permitted based on seniority, merit, or quantity or quality of work and there would be exemptions for small business. The proposed law would not allow employers to pay predominantly female jobs less than predominantly male jobs if they are equivalent in value to the employer.

Another aspect of pay inequality is secrecy of the wages paid that could cause procedural issues in bringing pay discrimination lawsuits. In 2007 the U.S. Supreme page 404Court issued its

decision in the case of Ledbetter v. Goodyear Tire and Rubber Co., Inc.107 Lilly Ledbetter had been the victim of illegal pay discrimination over a long period of time. The employer had a policy prohibiting discussion of salaries, so Ledbetter did not discover this until she was given an anonymous note near the time of her retirement. She then sued the employer for gender discrimination. The issue came down to whether the 180-day statute of limitations in the Civil Rights Act began to run 180 days after the initial act of discrimination, in which case she could no longer bring her claim, or whether it ran anew each time she was given a paycheck based on the discriminatory pay. The Supreme Court held that she could not sue because the statute of

limitations was 180 days after the original act. The decision was roundly criticized by employees and lauded by business. Congress immediately took issue with the Court’s decision and the next month introduced the Lilly Ledbetter Fair Pay Act [H.R. (June 22, 2007)] to amend Title VII to allow the statute of limitations to start each time a paycheck is issued based on the discriminatory pay. This was the first act President Obama signed into law when he came into office in January 2009. Both the Fair Pay Act and the Paycheck Fairness Act continue to be reintroduced in Congress. Their passage does not look promising any time soon.108 However, in its most recent Strategic Enforcement Plan, the EEOC has continued to identify equal pay as one of its six national priorities.

Before we leave the area of pay, it should be noted that single women with no children sometimes actually make more than men. (See Exhibit 8.14, “Not All Women Are Paid Less . . . But What a Choice.”) Also, gender discrimination is not the one page 405and only reason for wage

disparities. According to a 2009 report prepared for the U.S. Department of Labor’s Employment Standards Administration by the CONSAD Research Corporation, a greater percentage of women than men tend to work part-time which tends to pay less; a greater number of women than men tend to leave the labor force for childbirth or child or elder care; women, especially working mothers, tend to value family friendly work policies more than men; and some of the gap is explained by industry and occupations. While they believe much more research is needed, their “unambiguous” conclusion is that the gap is the result of many factors and the raw wage gap should not be used as a basis to justify corrective action since there may be nothing to correct. That is, “the difference may be almost entirely the result of the individual choices being made by both male and female workers.”109

Exhibit 8.14 Not All Women Are Paid Less . . . But What a Choice

According to a study of 2008 census data by Reach Advisors, single, childless women in their twenties working full-time who live in 39 out of the 50 biggest cities in the U.S. earn more than comparable men, and they match them in 8 other cities. Women 22 to 30 with no husband or children earn a median of $27,000 per year. This is 8 percent more than comparable men in the top 366 metropolitan areas. In Atlanta the difference is most pronounced, with women earning 21 percent more than comparable men. Women in their twenties who do not meet this criteria earn only 90 percent of what men do. [Notice the difference in the 90 percent figure and the 75– 80 percent earnings gap figure given earlier in the chapter. The overall figure includes all women, not just those in their twenties, and thus is lower.] Researchers believe the shift is because women go to college in bigger numbers. Three-fourths of women go to college from high school, but only two-thirds of men do. In addition, women are one and a half times more likely to go on to graduate school. It is also due to the loss of well-paying manufacturing jobs for men who did not go to college. The trend is most apparent in cities with more than a 50 percent minority population since black and Hispanic women are more than twice as likely to earn college degrees.

The trend has interesting implications for society and the economy. Not only are male-oriented businesses such as cars and sporting goods increasingly targeting women, but builders who expected this generation to drive demand for apartments is disappointed since these women increasingly live at home with their parents.

Source: Paul Wiseman, “Young, Single, Childless Women Out-earn Male Counterparts,” USA Today, 9/1/2010, http://www.usatoday.com/money/workplace/2010-09-01-single-women_N.htm?csp=usat me.

Employers should be aware of any pay differentials between specific males and females, as well as between jobs that are held primarily by males and those held primarily by females. As mentioned in Exhibit 8.13, employers should perform periodic audits to ensure that they are not operating under gender-based pay differentials, which may lead to preventable wage discrimination litigation against the employer.

Gender as a BFOQ

Title VII permits gender to be used as a bona fide occupational qualification (BFOQ) under certain limited circumstances. Under EEOC guidelines, a BFOQ may be used when there is a legitimate need for authenticity such as for the part of a female in a theater or film production. More often than not, when employers have attempted to use BFOQ as a defense to gender discrimination, courts have found the defense inapplicable. This makes sense when you consider that in the EEOC’s view, the guideline for determining the appropriateness of a BFOQ is that it would be necessary for a male acting as a sperm donor or a female acting as a wet nurse (a woman who nurses someone else’s baby from her own breast). That is a pretty strict guideline and provides insight into how irrelevant the EEOC considers the matter of gender in the workplace to be.

That does not only hold true for women. As we have discussed, it includes men also. In EEOC v. Audrey Sedita, d/b/a Women’s Workout World,110 the employer refused to hire males as managers, assistant managers, or instructors in the employer’s exercise studio, even though they were used as instructors on an occasional basis. The employer alleged that since it was a women’s exercise studio, being female is reasonably necessary to the employer’s business. In its view, clients would want women personnel and there were privacy issues involved in seeing nudity when taking new clients around to tour the facilities. The court did not agree and said that the purpose of the operation is to provide individualized fitness and exercise instruction to the club’s women members. Therefore, the employer would have to prove that it could not achieve its business purpose without engaging in single-gender hiring. The assertion that the alternatives were not feasible because of the views of its clientele, and the difficulties of accommodating men in the health club, were not strong enough to prove that no alternatives were feasible.

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Pregnancy Discrimination

The Pregnancy Discrimination Act (PDA) prohibits an employer from using pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently than any other employee with a short-term disability if that employee can perform the job. This is why in Opening Scenario 3, it is illegal for the employer to evaluate the pregnant employee differently than it would any other. Employers illegally treat employees differently in many ways regarding pregnancy and childbirth. For instance, the employer

• Refuses to hire pregnant applicants.

• Terminates an employee on discovering the employee’s pregnancy.

• Does not provide benefits to pregnant employees on an equal basis with short-term disabilities of other employees.

• Refuses to allow a pregnant employee to continue to work even though the employee wishes to do so and is physically able to do so.

• Does not provide the employee with lighter duty if needed, when such accommodations are made for employees with other short-term disabilities.

• Terminates the pregnant employee by moving her to a new job title with the same pay, then eliminates the position in a job restructuring or a reduction in force.

• Evaluates the employee as not having performed as well or as much as other employees when the basis for the evaluation is the employer’s own refusal or hesitation to assign equal work to the employee because the employee is pregnant and the employer feels the need to “lighten” the employee’s load, though the employee has not requested it.

• Does not permit the pregnant employee to be a part of the normal circle of office culture so she becomes less aware of matters of importance to the office or current projects, resulting in more likelihood that the employee will not be able effectively to compete with those still within the circle.

The Supreme Court determined in General Electric Co. v. Gilbert111 that discrimination on the basis of pregnancy was not gender discrimination under Title VII. Two years later, Congress passed the PDA, amending Title VII’s definitions to include discrimination on the basis of pregnancy. Despite the fact that women comprise nearly 50 percent of the workforce, and statistics show that about 75 percent of those of childbearing age will have children sometime during their work life, pregnancy discrimination is still a serious workplace concern.

Many employers have maternity leave policies to address this more-than-likely event, but others, particularly smaller employers, do not. Based on traditional notions about the inappropriateness of women in the workplace in general, or pregnant women in particular, some employers are actually hostile to pregnant employees and run the very real risk of being sued for pregnancy discrimination.

It didn’t bother me at all that she was pregnant. But whether or not she was going to be able to spend the time to actually perform the job and to be a mom and do all that, yeah, we factored it in, sure. We were concerned.

page 407

This statement by Robert DiFazio, head of Smith Barney’s equities division regarding why someone other than the pregnant applicant was promoted to head the over-the-counter sales desk, is typical of many employers’ views about pregnant employees. The employee here filed a claim and the arbitration panel said, “It is hard to imagine sentiments more universally regarded as symbolic of illegal gender bias” and ruled that the remarks constituted evidence of gender discrimination. A study in the Journal of Personality and Social Psychology found that while “business women” were rated similar in competence to “business men” or “millionaires,” women who became mothers were rated as similar in competence to the “elderly,” “blind,” “retarded,” or “disabled.”112 That’s pretty startling.

The EEOC recently reported that there has been at least a 182 percent increase in the filing of

pregnancy discrimination charges over the past 10 years. While the EEOC says the most common scenario in pregnancy discrimination claims is termination of the pregnant employee (like the car dealer who fired the employee for fear she’d have morning sickness and throw up in the vehicles), employers take all kinds of measures. Walmart rejected pregnant job applicants, thousands of female Verizon Wireless employees lost benefits during maternity leave, Delta Airlines fired one pregnant ramp attendant and forced another to take unpaid leave, a producer on Spelling Entertainment’s Melrose Place fired pregnant actress Hunter Tylo on the grounds that she was “unable to play the role of a seductress,” a Dallas attorney at the law firm of Jenkins & Gilchrist claimed she was constructively discharged due to her pregnancy, and a New York City police commander claims she was passed over because of her pregnancies, as does the first woman promoted within the Annapolis Fire Department, the education reporter for television station WLOX in Biloxi, a bartender at a topless bar in Long Island, a dry cleaning presser in Minneapolis, two pregnant teachers in Atlanta, an ex-Price Is Right model who received $8.5 million in damages, $7.7 of which were punitive damages for trying to return to work after taking maternity leave, and the Mississippi bar employee who was terminated because her employer said, “The baby is taking its toll on you,” though she had no medical or working restrictions.

In Asmo v. Keane, Inc.,113 the court concluded there was pregnancy discrimination when, on a conference call with other employees and the supervisor, the employee announced being

pregnant with twins and the supervisor said nothing, though everyone else congratulated her. The employee was terminated by the supervisor two months later. We specifically included these facts and some of the quick blurbs above to demonstrate to you that as a manager or supervisor, your actions matter. The court held in Asmo that it was clear under the circumstances, when everyone else was congratulating the employee and wishing her well, that the supervisor’s silence was a clear message that the pregnancy was not acceptable. When making workplace decisions, just make sure to think about the law first, and not preconceived notions all of us tend to have in our minds.

Generally speaking, if the employee is temporarily unable to perform page 408the duties of the

job because of pregnancy, then the law requires that the inability to perform be the issue, not the fact that the employee is pregnant. The employee therefore should be treated just as any other employee who is temporarily unable to perform job requirements. Whatever arrangements the employer generally makes in such circumstances must be extended to the pregnant employee. Pregnant employees are not entitled to accommodation merely because they are pregnant, but rather, because they need the accommodation based on a temporary necessity. The EEOC has ruled that an employer’s adherence to a facially neutral sick leave policy and its consequent refusal to provide pregnant employees with a reasonable leave of absence, in the absence of a showing of business necessity, discriminates on the basis of gender because of its disproportionate impact on women.114 The Americans with Disabilities Act Amendment Act became effective on January 9, 2009, and expanded the definition of disability under the Americans with Disabilities Act. Under the ADAAA and the EEOC regulations, an impairment can be “substantially limiting” even if it is expected to last only a limited period of time. This meant that pregnancy must be accommodated as other disabilities under the ADA.

Management Tips

As you have seen from the chapter, gender discrimination can manifest itself in many forms,

some of which may take the employer by surprise. Following these tips can help keep the

surprises to a minimum.

• Let all employees know from the beginning that gender bias in the workplace will not be tolerated in any way. Give them examples of unacceptable behavior.

• Back up the strong gender message with appropriate enforcement as necessary.

• Take employee claims of gender discrimination or bias seriously and make adjustments as necessary.

• Promptly and thoroughly investigate all complaints, keeping privacy issues in mind.

• Don’t go overboard in responding to offenses substantiated by investigation. Make sure the “punishment fits the crime.”

• Conduct periodic training to keep communication lines open and to act as an ongoing reminder of the employer’s antibias policy.

• Conduct periodic audits to make sure gender is not adversely affecting hiring, promotion, and raises.

• Review workplace policies to make sure there are no hidden policies or practices that could more adversely impact one gender than another.

• In dealing with gender issues, keep in mind that none of the actions need make the workplace stilted and formal. Employees can respect each other without discriminating against each other.

Pregnancy can, of course, be used as a BFOQ. It is worthy to note that facing a 23 percent increase in pregnancy discrimination claims from fiscal 2005 to fiscal 2011,115 at the end of 2012, the EEOC officially declared that pregnancy accommodation would be one of its enforcement priorities. In pursuance of that, it filed or settled five pregnancy discrimination cases in one week soon after.116 In 2015 this effort paid off when the U.S. Supreme Court issued a favorable decision

in Young v. UPS,117 holding that an employer must offer pregnant employees appropriate accommodation for their pregnancies if the employer cannot justify why they offer short-term accommodation for non-pregnant employees.

page 409

As a manager, you should be aware of the ingrained ideas employees hold about pregnancy and be sure to ward off any trouble. Given the EEOC’s push to pursue pregnancy discrimination claims, and the broadening of the ADA by the ADAAA to require accommodation for pregnancy, it makes little sense to engage in activity that would unnecessarily put an employer in the crosshairs for avoidable actions.

Fetal Protection Policies The issue of fetal protection policies will be given attention here because of the unique gender employment problems involved. Fetal protection policies are policies adopted by an employer that limit or prohibit employees from performing certain jobs or working in certain areas of the workplace because of the potential harm presented to pregnant employees, their fetuses, or the reproductive system or capacity of employees. fetal protection policies Policies an employer institutes to protect the fetus or the reproductive capacity of employees.

The problem with these policies is that, as in the seminal case of UAW v. Johnson Controls, Inc.,118 they say they are for the protection of the unborn child, but that is not the employer’s duty under Title VII. In addition, they tend to only protect one group and leave the other vulnerable. In Johnson Controls, a group of employees challenged the employer’s policy barring all women except those whose infertility was medically documented from jobs involving actual or potential lead exposure exceeding Occupational Safety and Health Administration (OSHA) standards. Included in the group was a male who wished to transfer out of the facility in order to bring up his sperm count so he and his wife could conceive. The exposure to lead lowers sperm count. Scientific evidence showed that the lead exposure had an adverse impact on the reproductive capacity of both males and females, yet the employer only limited the females from the higher- paying jobs. Thus, the Court found the policy to be illegal gender discrimination. Where fetal protection policies apply only to women and not men when both are shown to be adversely affected by the conditions or when they take away job discrimination protection from a female employee rather than letting her make her own decisions, it can violate the law.

Chapter Summary

• Discrimination on the basis of gender is illegal and not in keeping with good business practices of efficiency, maximizing resources, and avoiding unnecessary liability.

• Gender discrimination has many manifestations, including discrimination in hiring, firing, compensation, training, pregnancy, lactation issues, fetal protection policies, client preferences, dress codes, and child care leave.

• In determining whether employment policies are gender biased, look at the obvious, but also look at the subtle bias that may arise from seemingly neutral policies adversely impacting a given gender, such as height and weight requirements. Both types of discrimination are illegal.

• page 410

Where employees must be treated differently, ensure that the basis for differentiation is grounded in factors not gender based but, instead, address the actual limitation of the employee’s or applicant’s qualifications.

• Dress codes are not prohibited under Title VII, but dress code differences based on gender should be reasonable and not based on limiting stereotypical ideas about gender.

• Logistical concerns of bathrooms, lactation rooms, and other such matters should be handled in a way that does not overly burden or unnecessarily exclude either gender.

• Under the PDA, employers must treat a pregnant employee who is able to perform the job just as they treat any other employee with a short-term disability.

• Because of health and other considerations, an employer may use pregnancy as a BFOQ and may have policies excluding or limiting pregnant employees if there is a reasonable business justification for such policies.

• If there are legitimate bases for treating pregnant employees differently, an employer has ample flexibility to make necessary decisions.

• Outmoded ideas regarding pregnant employees may not be the basis of denying them equal employment opportunities.

• Fetal protection policies may not operate to discriminate against employees and fail to extend to them equal employment opportunities.

Chapter-End Questions

1. A female restaurant employee is on the phone in the kitchen talking to her mother. The chef of the restaurant comes up to the employee, throws off his chef’s hat, grabs both the employee’s arms, and begins shaking her violently and screaming at her. She reports this to the police. She is later terminated and sues for gender discrimination. Will she win? Why or why not? [Labonia v. Doran Assoc., LLC, 2004 U.S. Dist. LEXIS 17025 (D. Conn. 2004).]

2. An employee says she was forced to quit her job because of her status as a mother of young children. She claimed that her female supervisor created a hostile work environment that violated Title VII. She was replaced by another mother. Does she win? [Fuller v. GTE Corp./Contel Cellular, Inc., 926 F. Supp. 653 (M.D. Tenn. 1996).]

3. An employer had only one promotion to give, but he was torn between giving it to the single female and the male who had a family and, the employer thought, most needed and could best use the money. He finally decided to give the promotion to the male and told the female he gave it to the male because the male was a family man and needed the money. If the female employee sues, will she win? [Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999).]

4. An accounts receivable supervisor was laid off by her employer after taking an extended disability leave for pregnancy. She claimed that the employer discriminated against her on the basis of gender and ability to bear children, stating that two male employees were retained and her replacement was a childless, 40-year-old unmarried female. She files suit, alleging gender discrimination. The employer said it was a legitimate layoff. What should the court consider in determining whether the employer’s argument is true? [Leahey v. Singer Sewing Co., 694 A.2d 609 (N.J. Super. 1996).]

5. page 411

A female police officer becomes pregnant and, after a scuffle with an arrestee, is told by her doctor to request a light-duty assignment. The police department says it has no such positions available and that the officer must take leave until she can return to full duty, which ends up being from September to June. The female cites two male officers who were injured and did not stop working. Is this discrimination? [Tysinger v. Police Department of the City of Zanesville, 463 F.3d 569 (6th Cir. 2006).]

6. A cable company closed its door-to-door sales department and released all employees of that department after settling a discrimination complaint by one of the department’s employees. The employee’s mother, sister, and two close friends also had been employed in the department. Eighteen months later, the company resumed its door-to-door sales but refused to rehire three of the former employees connected with the employee who had previously sued. The former employees sue, alleging gender discrimination. Will they be successful in their suit? Explain. [Craig v. Suburban Cablevision, Inc., 660 A.2d 505 (N.J. 1995).]

7. A power company began employing women as meter readers, and the job classification went from all-male to all-female within a few years. The labor union that represented bargaining-unit employees negotiated a new collective bargaining agreement that froze wages in the meter reader classification and lowered the wage for new hires. There was evidence that the company president made comments concerning the desirability of housewives to read meters and that he admitted the contract was unfavorable to women. A number of women in the meter reader category filed a state court lawsuit against the employer and union for gender discrimination on the basis of state law and wage discrimination under federal law. The employer argued that the federal labor law preempted the state law gender discrimination complaint; therefore, the gender complaint should be dismissed. Is the state law preempted? [Donajkowski v. Alpena Power Co., 556 N.W.2d 876 (Mich. App. 1996).]

8. A female employee is terminated for slapping a male employee. The male employee is not disciplined. Is this gender discrimination? Do you know all you need to know? [Gamboa v. American Airlines, 170 Fed. Appx. 610, 2006 U.S. App. LEXIS 3649 (11th Cir. 2006).]

9. An employer decides to shut down one of its three plants because the employees at that plant are almost exclusively women. The males who worked at the plant and lost their jobs as a result of the closing wish to sue for gender discrimination under Title VII. If they do, will they be successful? [Allen v. American Home Foods, Inc., 644 F. Supp. 1553 (N.D. Ind. 1986).]

10. During an interview, an employer asks a female applicant questions such as whether she had children, what her child care responsibilities were, and how her family felt about her weekly commute between the business’s headquarters in Virginia and the family home in New York. The employer also asked the applicant “how her husband handled the fact that [she] was away from home so much, not caring for the family” and said he had “a very difficult time” understanding why any man would allow his wife to live away from home during the workweek. Is this employer’s line of questioning a violation of Title VII? Explain. [Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007).]

End Notes

1. 1. “Three in Five Americans Say U.S. Has Long Way to Go to Reach Gender Equality: Seven in 10 Americans Say Women Often Do Not Receive the Same Pay as Men for Doing Exactly the Same Job,” Harris Interactive (August 16, 2010), http://www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/ctl/ReadCustom%20Default/mid/15 08/ArticleId/452/Default.aspx.

2. page 412 2. “Lawry’s Restaurants, Inc., to Pay $1 Million for Sex Bias Against Men in Hiring,” EEOC press

release (November 2, 2009), http://www.eeoc.gov/eeoc/newsroom/release/11-2-09.cfm.

3. 3. “Obama’s 2014 State of the Union Address: Full Text,” http://www.cbsnews.com/news/obamas-2014- state-of-the-union-address-full-text/.

4. 4. Walker, Jessica M., “Bikini Lines in the Sand: Attorney-Mediators’ Swimsuit Calendar Makes Waves in Legal Community,” Miami Daily Business Review (12/23/2004), http://www.law.com/jsp/article.jsp?id=1103549729332.

5. 5. Hagenbaugh, Barbara, “Men Losing Jobs at Higher Rate Than Women in Recession,” USA Today (January 12, 2009), http://www.usatoday.com/money/economy/2009-01-11-unemployment-rate- sexes_N.htm. Apparently, there were more than simply economic consequences to men being out of work. The London Daily Mail Online reported the traffic at websites offering opportunities for infidelity for married men rose 25% during the recession. Nicholas, Sadie, “Infidelity, Inc.: The Boom in Websites Offering Illicit Encounters for Out-of-Work Highfliers and How Their Partners Cope,” London Daily Mail (April 7, 2009), http://www.dailymail.co.uk/femail/article-1167718/Infidelity-Inc-The-boom-websites-offering-illicit- encounters-work-high-fliers.html.

6. 6. Eaves, Elizabeth, “In This Recession, Men Drop Out,” Forbes.com (April 10, 2009), http://www.forbes.com/2009/04/09/employment-men-women-recession-opinions-columnists-gender- roles.html.

7. 7. See Hagenbaugh, “Men Losing Jobs at Higher Rate Than Women in Recession”; and Blackburn, Bradley, “Women Lag behind Men in Economic Recovery: New Government Numbers Show 90 Percent of Newly Created Jobs Go to Men,” ABC World News (March 21, 2011), http://abcnews.go.com/US/unemployment-recession-men-return-work-women-left- economic/story?id=13185406.

8. 8. Blackburn, “Women Lag Behind Men in Economic Recovery: New Government Numbers Show 90 Percent of Newly Created Jobs Go to Men.”

9. 9. Time, 5/21/12, p. 22.

10. 10. Bynum, Russ, “Navy to Allow Women to Serve on Submarines: Military Orders an End to One of Its Few Remaining Gender Barriers,” Associated Press (April 29, 2010), http://www.msnbc.com/id/36854592/ns/us_news-militry/print/1/displaymode/1098.

11. 11. Merelli, Annalisa, “Only 4.2 Percent of Fortune 500 Companies Are Run by Women,” Quartz (March 7, 2017), https://qz.com/925821/how-rare-are-female-ceos-only-4-2-of-fortune-500-companies-are-run-by- women/; and Cox, Josie, “International Women’s Day 2017: Number of Female CEOs of Fortune 500 Companies Falls by More Than 12%,” The Independent (March 8, 2017), http://www.independent.co.uk/news/business/news/international-womens-day-2017-female-ceo- fortune-500-companies-fall-2016-more-12-per-cent-executives-a7617771.html (accessed March 8, 2017).

12. 12. Petrecca, Laura, “Women Make Workplace Strides, But Remain on Leadership Sidelines,” USA Today (November 13, 2013), http://www.usatoday.com/story/money/business/2013/10/12/janet-yellen- women-leadership-economy/2959761.

13. 13. Deborah Gillis, chief operating officer for women’s issues research group Catalyst, in Petrecca, “Women Make Workplace Strides, But Remain on Leadership Sidelines.”

14. 14. Don Forsyth, professor at the Jepson School of Leadership Studies at the University of Richmond, in Petrecca, “Women Make Workplace Strides, But Remain on Leadership Sidelines.”

15. page 41315. “Catalyst Study Explodes Myths About Why Women’s Chosen Careers Lag

Men’s” http://www.catalyst.org/media/catalyst-study-explodes-myths-about-why-women’s-careers-lag-men’s.

16. 16. Kantor, Jodi, “Harvard Business School Case Study: Gender Equity,” The New York Times (September 7, 2013), http://www.nytimes.com/2013/09/08/education/harvard-case-study-gender- equity.html?adxnnl=1&pagewanted=all&adxnnlx=1390162196-m944YJoJSqFTYknSdGxUZQ.

17. 17. Lattman, Peter, “3 Women Claim Bias at Goldman,” The New York Times (September 15, 2010), http://www.nytimes.com/2010/09/16/business/16bias.html?_=ref=business&pagewanted=print.

18. 18. Chen, David W., “Bloomberg Is Deposed in Bias Suit Against Firm,” The New York Times (May 15, 2009), http://www.nytimes.com/2009/05/15/nyregion/15bloomberg.html?_r=1.

19. 19. “Thompson Wigdor & Gilly LLP: Class Action Gender Discrimination Charges Filed by Five Female Former Employees of Citigroup,” Women’s Health Weekly (March 12, 2009), Document WHWK000020090306e53c000fp.

20. 20. “Bank of America Accused of Gender Discrimination at Merrill Lynch,” Workforce Management (July 10, 2009), http://www.workforce.com/section/news/article/bank-america-accused-gender-discrimination- merrill.php.

21. 21. Bank of America and Merrill Lynch sex discrimination lawsuit, http://bofagenderlawsuit.com/.

22. 22. Stempel, Jonathan, “Bank of America Settles Gender Bias Suit for $39M,” Reuters, NBCNews (September 6, 2013), http://www.nbcnews.com/business/bank-america-settles-gender-bias-suit-39m- 8C11098723.

23. 23. Stempel, Jonathan, “Senior Female Executive at Bank of America Sues over ‘Bro’s Club,’” Reuters (May 17, 2016), http://www.reuters.com/article/us-bankofamerica-lawsuit-genderbias-idUSKCN0Y8226

24. 24. Weiss, Debra Cassens, “Partner Files $100M Class Action Against Chadbourne, Targets Pay Decisions of Male ‘Dictatorship,’” ABA Journal (August 31,

2016), http://www.abajournal.com/news/article/ousted_partner_files_100m_gender_bias_class_action_again st_chadbourne (accessed March 8, 2017).

25. 25. Keegan, Rebecca, “The Hollywood Gender Discrimination Investigation Is On: EEOC Contacts Women Directors,” latimes.com (October 2, 2015), http://www.latimes.com/entertainment/movies/moviesnow/la-et- mn-women-directors-discrimination-investigation-20151002-story.html.

26. 26. Streitfeld, David, “Ellen Pao Loses Silicon Valley Bias Case Against Kleiner Perkins,” The New York Times (March 27, 2015), https://www.nytimes.com/2015/03/28/technology/ellen-pao-kleiner-perkins-case- decision.html?_r=0 Accessed 3/8/2017

27. 27. “Former Gorilla Handlers Settle Lawsuit in Bosom-Baring Case,” USA Today (December 1, 2005), http://usatoday30.usatoday.com/news/offbeat/2005-12-01-gorillacase_x.htm.

28. 28. Stempel, Jonathan, “Deutsche Bank VP Says Fired in Retaliation for Bias Case,” Reuters, The Chicago Tribune (September 19, 2012), http://articles.chicagotribune.com/2012-09-19/business/sns-rt-us- deutschebank-bias-lawsuitbre88i1bq-20120919_1_deutsche-bank-gender-bias-german-bank.

29. 29. Lee, Demorris A., “Female Firefighter Claims Discrimination,” Tampa Bay Times (September 22, 2006), http://www.sptimes.com/2006/09/22/Northpinellas/Female_firefighter_cl.shtml.

30. page 41430. Ploshay, D. S., “Man Sues California to Take Wife’s Last Name: Couple Fights for Gender

Rights of Married Couples,” Yahoo Contributor Network (January 13, 2007), http://voices.yahoo.com/man- sues-california-take-wifes-last-name-169695.html.

31. 31. Warner, Claire, “‘Double Jeopardy’ Report Shows Gender Bias Against Women of Color in STEM Is Alive and Well,” bustle.com (February 19, 2016), https://www.bustle.com/articles/142993-double-jeopardy- report-shows-gender-bias-against-women-of-color-in-stem-is-alive-and-well (accessed March 9, 2017).

32. 32. Visible Invisibility: Women of Color in Law Firms, http://www.abanet.org/women/woc/wocinitiative.html.

33. 33. Cambanis Thanassis, “Military Challenge,” The Boston Globe (January 10, 2003), http://n1.newsbank.com/nl-serch/we/Archives?p_action=print.

34. 34. Dobbins, Bill, “GNC Show of Strength 2003 to Exclude Female Bodybuilding: Boycott Threatened?” billdobbins.com (November 2003), http://billdobbins.com/PUBLIC/pages/coolfree/GNC- nofbb/main.html.

35. 35. “No Longer ‘Ladies Night’ in New Jersey Bars,” Associated Press, Fox News (June 2, 2004), http://www.foxnews.com/printer_friendly_story/0,3566,121579,00.html; and McNichol, Dunstan, “Nothing Makes Up for Ladies Night Loss,” The Star-Ledger (September 27, 2004), http://www.nj.com/news/ledger/jersey/index.ssf?/base/news-7/1096260705323880.xml.

36. 36. Lim, Dawn, “Lawmakers Push Potty Parity,” GovernmentExecutive.com (May 12, 2010). The bill called for requiring new or renovated federal buildings to have an equal number of restrooms for both genders. About half the states and many municipalities already have such laws. Branch, John, “New Ballpark Statistics: Stadium’s Toilet Ratio,” The New York Times (April 13, 2009). Many of the laws require two female restrooms for every male restroom. However, when some facilities opened up, it was found that males were waiting in line while women did not have to do so. Some laws, therefore, revised the ratio of men to women bathrooms upward. In case you think that the “potty parity” laws are silly, keep in mind that the long waits women have for bathrooms exacerbate things like urinary tract infections. In passing the laws, legislatures noted the longer time women spent in the restroom because of things like having to take their clothes up, or down, having to use toilet paper, being more likely to have children with them, and so on. Note that when men had to stand in lines, how laws were quickly changed to address this inconvenience women had suffered forever.

37. 37. Baird, Julia, “Too Hot to Handle: Stop Ogling Republican Women,” Newsweek (July 12, 2010), p. 37.

38. 38. “Lawry’s Restaurant Chain Settled an EEOC Suit for over $1M,” EEOC press release, eeoc.gov.

39. 39. Gray, Katharine, “Woman Felt Forced to Wear Diapers to Work,” NBCPhiladelphia.com (November 12, 2009), http://www.nbcphiladelphia.com/news/local/150000-for-Wearing-Diapers-to-Work-69285737.html.

40. 40. Dupis II, Roger, “Pa. Dept. Sued for ‘Overtime Whores’ Remark,” The Times-Tribune (Scranton, PA) (October 25, 2009), http://www.officer.com/publication/printer.jsp?id=49020.

41. 41. Friess, Steve, “Lower Rates for Women Are Ruled Unfair,” The New York Times (August 13, 2008), p. A17.

42. 42. Cohen, Patricia, “Charging Bias by Theaters, Female Playwrights to Hold Meeting,” The New York Times (October 25, 2008), http://nytimes.com/2008/10/25/theater/25women.html.

43. page 41543. Bell, Diane, “Men Win in Gender Discrimination Suit,” The San Diego Tribune (March 25,

2008), http://www.signonsandiego.com/uniontrib/20080325/news_1m25bell.html

44. 44. Francescani, Chris, “Lauren Odes, Temp Worker at Native Intimates, Alleges She Was Fired for Being “Too Hot,’” The Huffington Post (May 12, 2012), http://www.huffingtonpost.com/2012/05/21/lauren-odes- native-intimates_n_1534464.html.

45. 45. Byrne, John, “City Set to Pay Nearly $2 Million for Firefighter Lawsuit,” Chicago Tribune (September 7, 2013), http://articles.chicagotribune.com/2013-09-07/news/ct-met-chicago-firefighters-settlement-0907- 20130907_1_white-job-seekers-physical-test-written-test. Corpus Christie, Texas, settled with the Justice Department for the same thing involving female police officers the year before: “Justice Department Settles Sex Discrimination Lawsuit Against City of Corpus Christi, Texas, Police Department,” (September 19, 2012), http://www.justice.gov/opa/pr/2012/September/12-crt-1132.html.

46. 46. Kramer, Miriam, “Female Astronauts Said to Face Discrimination over NASA’s Space Radiation Concerns,” The Huffington Post (September 1, 2013), http://www.huffingtonpost.com/2013/09/01/female- astronauts-discrimination-radiation_n_3846118.html.

47. 47. “NBA Forced Women with Young Children Out of Jobs: Lawsuit,” The Huffington Post (October 23, 2012), http://www.huffingtonpost.com/2012/10/24/nba-gender-bias-lawsuit-brynn-cohn_n_2008583.html.

48. 48. “Fired for Premarital Sex: Woman Fired, Boyfriend Gets the Job,” Examiner.com (March 2, 2013), http://www.npr.org/2011/06/20/137296721/supreme-court-limits-wal-mart-discrimination-case.

49. 49. Bidgood, Jess, “A Father–Daughter Dance Revives Charges of Discrimination,” The New York Times (September 27, 2012), http://pandce.proboards.com/thread/65568/father-daughter-dance-revives- charges?page=1.

50. 50. “The Shriver Report: A Woman’s Nation Pushes Back from the Brink,” http://shriverreport.org/special- report/a-womans-nation-pushes-back-from-the-brink/.

51. 51. Ibid.

52. 52. Sealey, Geraldine, “Parent Trap: Moms and Dads Starting to Sue, and Win, for Discrimination,” ABC News.com (August 29, 2004), http://abcnews.go/sections/us/dailynews/discrimination020829.html.

53. 53. http://www.eeoc.gov/policy/docs/caregiving.html.

54. 54. “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm.

55. 55. http://www.workplacefairness.org/domestic-violence-workplace

56. 56. Masters, Brooke A., and Amy Joyce, “Costco Is the Latest Class-Action Target,” The Washington Post (August 18, 2004), p. A01, http://www.washingtonpost.com/wp-dyn/articles/A8646-2004Aug17.html.

57. 57. “Platinum P.T.S To Pay $100,000 to Settle EEOC Pregnancy Discrimination Lawsuit: Oil Business Co. Fired Clerk after Requesting Leave for a Pregnancy-Related Condition, Federal Agency Charged,” (August 8, 2013), http://www.eeoc.gov/eeoc/newsroom/release/8-7-13a.cfm.

58. 58. Stockton, Chrissy, “Law Firm Sends Out Insulting ‘Tips for Women’ Memo (With 163 Points),” Thought Catalog (October 26, 2013), http://thoughtcatalog.com/christine-stockton/2013/10/law-firm-sends-out- insulting-tips-for-women-memo/.

59. 59. Reuters, “Novartis Fined $250M in Sex Discrimination Suit,” The New York Times (May 9, 2010). 60. page 41660. Bray, Chad, “Toshiba’s U.S. Unit Faces $100 Million Gender-Discrimination Suit,” The Wall

Street Journal (February 1, 2011), http://online.wsj.com/article/SB10001424052748703439504576116040649121656.html.

61. 61. “Court Upholds $2M Award to WalMart Pharmacist,” The New York Times (October 5, 2009).

62. 62. “Outback Steakhouse to Pay $19M for Sex Bias Against Women in ‘Glass Ceiling’ Suit by EEOC,” EEOC press release (December 29, 2009), http://www1.eeoc.gov//eeoc/newsroom/releas/12-29- 09a.cfm?renderforprint=1.

63. 63. 9/27/2004.

64. 64. Kuntzman, Gersh, “Steakhouse Sexism: At Risk of Litigation, a Steakhouse Chain Has Agreed to Implement Gender Training and Hire Female Servers. Could This Mean the End of Meat-Filled Men’s Clubs?” Newsweek (January 5, 2004), http://www.msnbc.com/id/3880701/.

65. 65. Masters and Joyce, “Costco Is the Latest Class Action Target.”

66. 66. 474 F.3d 1214 (9th Cir. 2007).

67. 67. Dukes v. WalMart Stores, Inc. 603 F.3d 571 (9th Cir. 2010), http://www.ca9.uscourts.gov/datastore/opinions/2010/04/26/04-16688.pdf.

68. 68. Totenberg, Nina, “Supreme Court Limits Wal-Mart Discrimination Case,” National Public Radio News (June 20, 2011), http://www.npr.org/2011/06/20/137296721/supreme-court-limits-wal-mart-discrimination- case.

69. 69. Bureau of Labor Statistics, “Table 3: Employment Status of the Civilian Noninstitutional Population by Age, Sex, and Race,” Current Population Survey (2016).

70. 70. National Center for Education Statistics, Digest of Education Statistics, https://nces.ed.gov/programs/digest/d15/tables/dt15_318.10.asp?current=yes

71. 71. U.S. Department of Labor, Labor and Statistics: Women in the Labor Force, https://www.dol.gov/wb/stats/stats_data.htm#earnings; U.S. Government Accounting Office, “Women in Management: Analysis of Female Managers’ Representation, Characteristics and Pay,” (September 28, 2010); Tanglao, Leezel, “Gender Pay Gap Report: Women Managers Still Lag Behind Men: More Women Have Higher Degrees but Are Still Earning Less,” ABC News (September 28, 2010), http://abcnews.go.com/print?id=11742405; and Ludden, Jeniffer, “Despite New Law, Gender Salary Gap Persists,” NPR (April 19, 2010).

72. 72. Bennett, Jessica, Jesse Ellison, and Sarah Ball, “Are We There Yet?” Newsweek (March 29, 2010), http://www.newsweek.com/2010/03/18/are-we-there-yet.html.

73. 73. Equal Employment Opportunity Commission, Glass Ceilings: The Status of Women as Officials and Managers in the Private Sector, http://www.eeoc.gov/stats/reports/glassceiling/index.html.

74. 74. Bureau of Labor Statistics, “Usual Weekly Earnings of Wage and Salary Workers, Fourth Quarter,” (January 24, 2017), https://www.bls.gov/news.release/pdf/wkyeng.pdf

75. 75. http://www.whitehouse.gov/sites/default/files/rss_viewer/Women-in-America.pdf.

76. 76. Stephen J. Rose and Heidi I. Hartmann, Still a Man’s Labor Market: The Long-Term Earnings Gap (Washington, DC: Institute for Women’s Policy Research, 2004), http://www.nd.edu/hlrc/documents/Hartmann-StillManLaborMkt.pdf (last visited February 7, 2008).

77. 77. Carter, Nancy M., and Christine Silva, “Pipeline’s Broken Promise,” Catalyst (February 24, 2010), http://www.catalyst.org/publication/372/pipelines-broken-promise.

78. page 41778. “Why Are There So Many Women Managers, But So Few

CEOs?” theconversation.com (March 6, 2015), http://theconversation.com/why-there-are-so-many-women- managers-but-so-few-women-ceos-38447; and “Still a Slow Climb for Women in Management, Federal Report Says,” The New York Times (September 27, 2010), http://www.nytimes.com/2010/09/28/business/28gender/html/?_r=1&hp.

79. 79. Will, George F., “A New Project for the Gender Police: Gallant Government Will Protect the Weaker Sex,” Newsweek (October 4, 2010); and AAUP Faculty Gender Equity Indicators 2006, http://www.aaup.org/NR/rydonlyres/63396944-44BE-4ABA-9815-5792.

80. 80. Lewin, Tamar, “Women Making Gains on Faculty at Harvard,” The New York Times (March 12, 2010), http://www.nytimes.com/2010/03/13/education/13harvard.html; and Lewin, Tamar, “Bias Called Persistent Hurdle for Women in Sciences,” The New York Times (March 21, 2010). See also Misra, Joya, Jennifer Hickes Lundquist, Elissa Holmes, and Stephanie Agiomavritis, “The Ivory Ceiling of Service Work: Service Work Continues to Pull Women Associate Professors Away from Research, What Can Be Done? Academe Online (January–February 2011), http://www.aaup.org/AAUP/pubsres/academe/2011/JF/feat/misr.htm.

81. 81. Bennett, Ellison, and Ball, “Are We There Yet?”

82. 82. “A Current Glance at Women and the Law,” American Bar Association (January 2017), http://www.americanbar.org/content/dam/aba/marketing/women/current_glance_statistics_january201 7.authcheckdam.pdf; and Bureau of Labor Statistics, “Median Weekly Earnings of Full-Time Wage and Salary Workers By Detailed Occupation and Sex, 2015,” http://www.bls.gov/cps/cpsaat39.htm

83. 83. “Women on Corporate Boards Globally,” Catalyst (January 4, 2017), http://www.catalyst.org/knowledge/women-corporate-boards-globally (accessedMarch 9, 2017).

84. 84. “A Push for More Women on Corporate Boards,” National Public Radio’s Morning Edition (February 24, 2011), http://www.wbur.org/npr/133875785/a-push-for-more-women-on-corporate-boards; and “Deutsche Bank sets gender quota targets for the Management Board and top two management levels under the new German gender quota legislation,” Deutsche Bank (September 30, 2015), https://www.db.com/cr/en/concrete-gender-quota-targets.htm

85. 85. Goudreau, Jenna, “A New Obstacle for Professional Women: The Glass Escalator,” Forbes (May 21, 2012), http://www.forbes.com/sites/jennagoudreau/2012/05/21/va-new-obstacle-for-professional-women-the- glass-escalator/.

86. 86. Alter, Charlotte, “Seeing Sexism from Both Sides: What Trans Men Experience,” Time (June 27, 2016), http://time.com/4371196/seeing-sexism-from-both-sides-what-trans-men-experience/.

87. 87. 208 U.S. 412 (1908).

88. 88. Susan Faludi, Backlash: The Undeclared War Against American Women (New York: Crown, 1992), p. xiii.

89. 89. Deveny, Kathleen, “Families Need to Man Up: The Recession’s Silver Lining,” Newsweek (December 14, 2009), p. 30.

90. 90. Thomas, Jennifer, “Girl Scouts and LeanIn.org Partner to ‘Ban Bossy,’” Patch (March 12, 2014), http://patch.com/rhode-island/eastgreenwich/girl-scouts-and-leaninorg-partner-to-ban-bossy

91. 91. Bennett, Ellison, and Ball, “Are We There Yet?” See also Linda Babcock and Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide (Princeton, NJ: Princeton University Press, 2003); and Lois P. Frankel, Nice Girls Don’t Get the Corner Office:101 Unconscious Mistakes Women Make That Sabotage Their Careers (New York: Warner Business Books, 2004). page 418

92. 92. 400 U.S. 542 (1971).

93. 93. 139 F.3d 1385 (11th Cir. 1998).

94. 94. “City to Workers: Wear Underwear, Deodorant: New Dress Code Instructs Employees to Observe ‘Strict Personal Hygiene,’” Associated Press (June 18, 2009), http://www.msnbc.msn.com/id/31424512/ns/us_news-weird_news/.

95. 95. EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981).

96. 96. 444 F3d 1104 (9th Cir. 2006) (en banc).

97. 97. Taylor, Kate, “Hooters Is Hiring Male Servers at its New Restaurant,” Business Insider (January 31, 2017), http://www.businessinsider.com/hooters-hires-male-servers-at-fast-casual-2017-1

98. 98. http://www.pay-equity.org/PDFs/payequitysummarytable.pdf.

99. 99. “Women’s Earnings: Work Patterns Partially Explain Difference between Men’s and Women’s Earnings,” http://www.maloney.house.gov/documents/olddocs/womenscaucus/2003EarningsReport.pdf.

100. 100. Langfield, Amy, “Mom Brings Home More Bacon in Nearly 1 in 4 Homes,” NBC News (May 29, 2013), http://www.nbcnews.com/business/mom-brings-home-more-bacon-nearly-1-4-homes-6C10103171.

101. 101. “Fifty Years after the Equal Pay Act: Assessing the Past, Taking Stock of the Future,” National Equal Pay Task Force, June 2013, http://www.whitehouse.gov/sites/default/files/image/image_file/equal_pay- task_force_progress_report_june_10_2013.pdf.

102. 102. Civil Action No. 1:16-cv-02471-WYD (Dist Ct. Dist CO 2016).

103. 103. 452 U.S. 161 (1981).

104. 104. Ludden, Jennifer, “Despite New Law, Gender Salary Gap Persists,” Morning Edition, National Public Radio (April 19, 2010), http://www.npr.org/templates/story/story.php?storyId=125998232.

105. 105. 770 F.2d 1401 (9th Cir. 1985).

106. 106. Men are more than four times more likely than women to negotiate salary, which generally means higher salaries for men. This can lead women to lose more than $500,000 by age 60. Linda Babcock and Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide (Princeton, NJ: Princeton University Press, 2003). See also Lee E. Miller and Jessica Miller, A Woman’s Guide to Successful Negotiating: How to Convince, Collaborate, & Create Your Way to Agreement (New York: McGraw-Hill, 2001); and Phyllis Mindell, How to Say It for Women: Communicating with Confidence and Power Using the Language of Success (Upper Saddle River, NJ: Prentice-Hall, 2001). Online tools for researching salary data preparatory to negotiating include salary.com and payscale.com. Johnson, Tory, “Take Control: How to Negotiate Your Salary,” ABC News (April 24, 2007), http://abcnews.go.com/Business/TakeControlOfYourLife/Story?id=3094415&page=1.

107. 107. 550 U.S. 618, 127 S. Ct. 2162 (2007).

108. 108. Bassett, Laura, “Paycheck Fairness Act Vote Blocked by House GOP,” The Huffington Post (April 11, 2013), http://www.huffingtonpost.com/2013/04/11/paycheck-fairness-act_n_3063804.html.

109. 109. “An Analysis of Reasons for the Disparity in Wages between Men and Women,” A Report by CONSAD Research Corporation Prepared for the U.S. Department of Labor page 419Employment Standards

Administration, January 12, 2009, http://consad.com/content/reports/Gender%20Wage%20Gap%20Final%20Report.pdf. Retrieved 1/22/14.

110. 110. 755 F. Supp. 808 (N.D. IL. E.D 1991).

111. 111. 429 U.S. 125 (1976).

112. 112. Williams, Joan C., “How Academe Treats Mothers,” The Chronicle of Higher Education (June 17, 2002), http://chronicle.com/article/How-Academe-Treats-Mothers/46133.

113. 113. 471 F.3d 588 (6th Cir. 2006).

114. 114. EEOC Dec. No. 74-112, 19 FEP Cases 1817 (April 15, 1974); EEOC Guidelines, 29 C.F.R. § 1604.10(c).

115. 115. Elmer, Vickie, “Pregnancy Discrimination Cases on the Rise,” The Washington Post (April 8, 2012), http://www.washingtonpost.com/business/capitalbusiness/workplace-pregnancy-discrimination-cases- on-the-rise/2012/04/06/gIQALWId4S_story.html.

116. 116. Wilkie, Christina, “Pregnancy Discrimination in the Workplace Target of New EEOC Crackdown,” The Huffington Post (September 29, 2012), http://www.huffingtonpost.com/2012/09/29/pregnancy-discrimination- eeoc_n_1924603.html.

117. 117. 135 S. Ct. 1338 (2015).

118. 118. 499 U.S.187 (1991).

Cases

Case 1 Wedow v. City of Kansas City, Missouri 419

Case 2 Dothard v. Rawlinson 421

Case 3 Price Waterhouse v. Hopkins 422

Case 4 Lynch v. Freeman 423

Wedow v. City of Kansas City, Missouri 442 F.3d 441 (8th Cir. 2006)

Female firefighters were not given proper firefighting uniforms (while male firefighters were given two uniforms), which put them at risk for years; were not given restroom or shower facilities; and were otherwise not treated comparably to male firefighters. The court found that despite the fire department’s arguments to the contrary, this was gender discrimination.

Hansen, J.

***

Firefighters are each issued two sets of personalized protective clothing called bunker gear, consisting of a coat, pants, boots, helmet, gloves, a tool belt, and a self-contained breathing apparatus. Two sets are necessary because if protective gear becomes wet or soiled with chemicals at one fire, there is a danger of injury from steam when the same gear must be worn at another fire that day. The protective clothing must fit properly to ensure that the body is protected from injury due to smoke, water, heat, gasoline, and chemicals and to page

420ensure the mobility needed while fighting a fire. The City issued and required Ms. Wedow and Ms. Kline to

wear ill-fitting male firefighting clothing, although female clothing and gear were available and management officials knew of sources from which female gear could be obtained. Because the protective clothing did not fit Ms. Wedow and Ms. Kline properly, they suffered injuries from fire and chemicals when the coats would not close properly, or too large hats and boots would fall off while fighting a fire. Ms. Wedow’s and Ms. Kline’s movements were cumbersome and restricted by pants that caused them to trip or prevented them from easily climbing ladders. Excess length in the fingers of gloves made it difficult to grip objects such as the fire hose. The City’s failure to procure protective clothing tailored for women and its provision of only male-sized protective clothing to Ms. Wedow and Ms. Kline made their jobs more difficult and more hazardous than was necessary.

Despite their complaints, no one in the Fire Department made any effort to provide Ms. Kline and Ms. Wedow with adequately fitting protective clothing from 1990 through October 1998. In October 1998, the Fire Department provided Ms. Kline with one set of female-sized protective clothing, although each male firefighter is given two sets of properly fitting clothing. In late 1998, Ms. Wedow received a female-sized pair of bunker pants and a male-sized coat; she never received a complete set of adequately fitting protective clothing during the relevant time period.

Ms. Kline and Ms. Wedow also complained of a lack of adequate restrooms, showers, and private changing facilities (referred to collectively as “facilities”). Showering at the station after fighting a fire is necessary to maintain good health when serving in 24-hour shifts. At a number of stations that Ms. Wedow and Ms. Kline visited on a daily basis as battalion chiefs, the restrooms were located in the male locker rooms with the male shower room, doors were not secure, males had the keys, and where female restrooms existed, they were unsanitary and often used as storage rooms. Food and water for the station’s pet dog were kept in the women’s room in two stations and sexually explicit magazines and a poster were kept in the female restroom in station 23. Most of the female restrooms that existed did not contain shower rooms and in some stations, the women’s shower could be accessed only through the male bunkroom.

Department officials were aware of complaints about the facilities as early as 1993. From 1994 through 2000, the Fire Department submitted yearly budgets to the City requesting money for female locker room upgrades, and every year the City allocated money for this purpose, but the money was diverted to a whole-station upgrade at station 4, which already had a female restroom.

The City argues that it is entitled to judgment as a matter of law on the claim of disparate treatment in protective clothing and facilities because the plaintiffs failed to demonstrate that they suffered an adverse employment action. “An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage.” “Mere inconvenience without any decrease in title, salary, or benefits” or that results only in minor changes in working conditions does not meet this standard.

We cannot say as a matter of law that being required to work as a firefighter with inadequate protective clothing and inadequate restroom and shower facilities is a mere inconvenience. Title VII makes it unlawful to discriminate on the basis of sex with regard to the “terms, conditions, or privileges of employment” and prohibits an employer from depriving “any individual of employment opportunities or otherwise adversely affecting his status as an employee” on the basis of sex. The record amply demonstrates that the terms and conditions of a female firefighter’s employment are affected by a lack of adequate protective clothing and private, sanitary shower and restroom facilities, because these conditions jeopardize her ability to perform the core functions of her job in a safe and efficient manner. The danger inherent in the job of a firefighter compounded by the need to move and work efficiently in those dangerous circumstances, to quickly change in and out of gear, to shower for health reasons following a fire, and the need to serve in 24-hour shifts, combine to make the provision of adequate protective clothing and facilities integral terms and conditions of employment for a firefighter. JUDGMENT FOR PLAINTIFF AFFIRMED.

Case Questions

1. Are you surprised that this is a 2006 case? Why or why not?

2. How do you think the fire department should have responded when the women registered complaints about their uniforms? Explain.

3. Why do you think the fire department treated the female employees as it did?

page 421

Dothard v. Rawlinson 433 U.S. 321 (1977)

After her application for employment as an Alabama prison guard was rejected because she failed to meet the minimum 120-pound weight, 5-foot-2-inch height requirement of an Alabama statute, the applicant sued, challenging the statutory height and weight requirements as violative of Title VII of the Civil Rights Act of 1964. The Supreme Court found gender discrimination.

Stewart, J.

***

At the time she applied for a position as a correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 120-pound weight requirement established by an Alabama statute. The statute stated that the applicant shall not be less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds. Variances could be granted upon a showing of good cause, but none had ever been applied for by the Board and the Board did not apprise applicants of the waiver possibility.

In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between genders, the district court found that when the height and weight restrictions are combined, Alabama’s statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population.

In enacting Title VII, Congress required “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” The District Court found the minimum height and weight requirements constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. This claim does not involve an assertion of purposeful discriminatory motive. It is asserted, rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections.

We turn to Alabama’s argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the district court, however, they failed to offer evidence of any kind in specific justification of the statutory standards.

If the job-related quality that the Board identifies is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly. But nothing in the present record even approaches such a measurement.

The district court was not in error in holding that Title VII of the Civil Rights Act of 1964 prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents. AFFIRMED in part, REVERSED in part, and REMANDED.

Case Questions

1. What purpose did the height and weight requirements serve? Do you think they were made to intentionally discriminate against women?

2. How could management have avoided this outcome?

3. Does your view of illegal discrimination change now that you have seen how disparate impact claims work? Would you have been able to foresee this outcome? Explain.

page 422

Price Waterhouse v. Hopkins 490 U.S. 228 (1989)

Ann Hopkins, a female associate who was refused admission as a partner in an accounting firm, brought a gender discrimination action against the firm. The U.S. Supreme Court determined that it is a violation of Title VII for gender stereotyping to play a significant role in evaluating an employee’s work performance.

Brennan, J.

***

In a jointly prepared statement supporting her candidacy, the partners in Hopkins’ office showcased her successful 2-year effort to secure a $25 million contract with the Department of State, labeling it “an outstanding performance” and one that Hopkins carried out “virtually at the partner level.” None of the other partnership candidates had a comparable record in terms of successfully securing major contracts for the partnership.

The partners in Hopkins’ office praised her character and her accomplishments, describing her as “an outstanding professional” who had a “deft touch,” a “strong character, independence, and integrity.” Clients appeared to have agreed with these assessments. Hopkins “had no difficulty dealing with clients and her clients appeared to be very pleased with her work” and she “was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines, and demanded much from the multidisciplinary staffs with which she worked.”

Virtually all of the partners’ negative comments about Hopkins—even those of partners supporting her—had to do with her “interpersonal skills.” Both supporters and opponents of her candidacy indicate she was sometimes “overly aggressive, unduly harsh, difficult to work with, and impatient with staff.”

There were clear signs, though, that some of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it[’s] a lady using foul language.” Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate.” But it was the man who bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candidacy on hold who delivered the coup de grace; in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by gender stereotyping. Her testimony focused not only on the overtly gender-based comments of partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly, that were intensely critical of her. One partner, for example, baldly stated that Hopkins was “universally disliked” by staff and another described her as “consistently annoying and irritating”; yet these were people who had had very little contact with Hopkins. According to Fiske, Hopkins’s uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of gender stereotyping.

An employer who acts on the basis of a belief that a woman cannot be aggressive or that she must not be has acted on the basis of gender. Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of “sex stereotyping” in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities. A number of the partners’ comments showed gender stereotyping at work. As for the legal relevance of gender page

423stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting

that they matched the stereotype associated with their group, for “[i]n forbidding employers to discriminate against individuals because of their gender, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” An employer who objects to aggressiveness in women but whose positions require this trait places women in the intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don’t. Title VII lifts women out of this bind.

Remarks at work that are based on gender stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. REVERSED and REMANDED.

Case Questions

1. What were Price Waterhouse’s fatal flaws?

2. Does Hopkins’s treatment here make good business sense? Explain.

3. How would you avoid the problems in this case?

Lynch v. Freeman 817 F.2d 380 (6th Cir. 1987)

A female carpenter’s apprentice sued her employer for gender discrimination, alleging the failure to furnish adequate sanitary toilet facilities at her worksite. The court found the unsanitary facilities violated Title VII.

Lively, J.

***

The portable toilets were dirty, often had no toilet paper or paper that was soiled, and were not equipped with running water or sanitary napkins. In addition, those designated for women had no locks or bolts on the doors and one of them had a hole punched in the side.

To avoid using the toilets, Lynch began holding her urine until she left work. Within three days after starting work she experienced pain and was advised that the practice she had adopted, as well as using contaminated toilet paper, frequently caused bladder infections.

The powerhouse, which had large, clean, fully equipped restrooms, was off limits to construction workers. Lynch testified that some of the men she worked with used them regularly and were not disciplined. Knowing the restrooms were off limits, Lynch began using the powerhouse restrooms occasionally, after her doctor diagnosed her condition as cystitis, a type of urinary infection. When the infection returned Lynch began using a restroom in the powerhouse regularly and she had no further urinary tract infections. Lynch was eventually fired for insubordination in using the powerhouse toilet.

The lower court found that the toilets were poorly maintained. The cleaning was accomplished by pumping out the sewage. This process often left the toilets messy, with human feces on the floors, walls, and seats. The contractors were to scrub down the toilets afterwards, but it appears they often failed to do so. Paper covers were not provided, and the toilet paper, if any, was sometimes wet and/or soiled with urine. No running water for washing one’s hands was available near the toilets, although a chemical hand cleaner could be checked out from the “gang-boxes.”

The lower court found it credible that most women were inhibited from using the toilets. Further, the inhibitions described were not personal peculiarities, but that Lynch and others reasonably believed that the toilets page

424could endanger their health. Lynch introduced credible medical expert testimony to demonstrate that women

are more vulnerable to urinary tract infections than are men. On the basis of that evidence, the court concluded that all increased danger of urinary tract infections may be

linked to the practice of females holding their urine and to the use of toilets under the circumstances where the female’s bacteria-contaminated hands came into contact with her external genitalia or where a female’s perineal area comes into direct contact with bacteria-contaminated surfaces.

Few concerns are more pressing to anyone than those related to personal health. A prima facie case of disparate impact is established when a plaintiff shows that the facially neutral practice has a significantly discriminatory impact. Any employment practice that adversely affects the health of female employees while leaving male employees unaffected has a significantly discriminatory impact. The burden then shifts to the employer to justify the practice which resulted in this discriminatory impact by showing business necessity; that

is, that the practice of furnishing unsanitary toilet facilities at the work site substantially promotes the proficient operation of business.

Title VII is remedial legislation, which must be construed liberally to achieve its purpose of eliminating discrimination from the workplace. Although Lynch was discharged for violating a rule, she did so in order to avoid the continued risk to her health which would have resulted from obeying the rule. The employer created an unacceptable situation in which Lynch and other female construction workers were required to choose between submitting to a discriminatory health hazard or risking termination for disobeying a company rule. Anatomical differences between men and women are “immutable characteristics,” just as race, color, and national origin are immutable characteristics. When it is shown that employment practices place a heavier burden on minority employees than on members of the majority, and this burden relates to characteristics which identify them as members of the protected group, the requirements of a Title VII disparate impact case are satisfied. REVERSED and REMANDED.

Case Questions

1. Are you surprised by this outcome? Why or why not?

2. Does the outcome make sense to you? Explain.

3. What would you have done if you were the employer in this situation?