There’s been a lot of conversation about pay inequity lately. Who knows exactly why? Is it real concern or a sly way of highlighting the two female candidates in next year’s presidential election? Is it just the latest “hot topic” for a media looking to fill a few minutes of a 24-hour news cycle? Whatever the reason, the issue appears to be taking off and while inequity can be based on an individual’s race, ethnicity or age, most people think of gender when talking about pay equity. And gender pay inequity is not a new issue. Various federal and state laws have existed for years as a means to prohibit and rectify pay discrimination on the basis of gender. Despite this, differences seem to remain.
While the Paycheck Fairness Act keeps bouncing around Washington D.C., some states have decided to tackle the issue themselves. In California, legislators are considering a bill which, according to its sponsors, would help eliminate gender-based pay inequity. Just last week, A.B. 1017, which would bar employers from asking job applicants about their salary history and from releasing the salary history of current and former employees, was referred to the state’s senate Committee on Labor and Industrial Relations.
According to the bill’s sponsor, Assembly Member Nora Campos, A.B. 1017 will:
- address pay inequity in two key ways so that women have more bargaining power when negotiating their salaries.
- address women’s pay inequity in the public sector by prohibiting employers from seeking job candidates’ salary histories.
- remove past salary history from the hiring determination, which will help ensure that employers will not be able to use a history of low pay as justification for continuing to underpay women.
Eliminating gender-based pay inequity. According to a legislative analysis, the bill is sponsored by the California Employment Lawyers Association and the American Association of University Women. They have argued that the sluggish progress of efforts to eliminate gender-based pay inequality is due, at least in part, to employers having been permitted to preserve historical inequities. Because changing jobs is often the best chance women have to increase their pay, lawmakers should make sure they are not penalized by prior salaries that may well have been discriminatory, according to the bill’s sponsors. Policies pegging current salary to prior pay by default ignore the reality that the prior salary earned by a male job applicant may be the product of sex discrimination, or may reflect the residual effects of the traditionally enhanced value attached to work usually performed by men.
Opposition. A coalition of employers, including the California Chamber of Commerce, opposes the measure. They assert that despite the assumption that employers have accurate wage information on what the current market is for all potential job positions, they often do not. By requesting salary information, employers are able to adjust any unrealistic expectations or salary ranges to match the current market rate for the advertised position. This has worked to the benefit of the applicant or employee, according to opponents. Moreover, current protections exist in law to address pay disparity—this bill would merely create additional avenues of litigation, opponents say.
California Fair Pay Act. Campos is a member of the California Legislative Women’s Caucus, which introduced the California Fair Pay Act – Senate Bill 358 – earlier this year. According to the caucus, SB 358 will California’s equal pay laws to ensure that women are paid equally for work that is comparable to their male colleagues and do not face retaliation if they discuss or ask about pay at work. SB 358 is currently before the senate Appropriations Committee.
By Lisa Milam-Perez, J.D.
I love conferences. I absolutely geek out at them. It’s like being back at school, but without the homework, and taking only the classes that you want to. Plus, you get to meet some nice people.
A few weeks ago, while attending the Minnesota CLE Upper Midwest Employment Law Institute, I broke bread with a finance attorney from North Dakota. He was only there for the CLE requirements, he confessed, but he was finding this employment stuff fascinating. Could this conservative gent (“Obama lies about everything,” he warned) and this unabashed liberal find common cause over the course of the half hour we’d spend together by dint of fate and banquet-style luncheon seating?
As it turns out, we agreed more than not—most passionately about the troubling rise in income inequality and the generally crappy state of wages these days for too many American workers. I thought of him yesterday, in fact, when I came upon the New York Times’ survey which found there was urgent concern about income inequality across the political spectrum. But we had a clear difference of opinion (albeit a civil, reasoned one) on this snowballing issue of criminal background checks.
My lunch mate argued that employers should be able to engage in unfettered due diligence in staffing their business—and to freely refrain from hiring criminals for safety’s sake and to avoid the liability risks. He was a mighty, if friendly foe. But I steeled myself and thought back to when, at this very conference three years earlier, the EEOC’s Chai Feldblum and Victoria Lipnic sat before an enormous crowd of skeptical HR types, defending the agency’s just-released update to its guidance on the use of criminal history in employment decisions.
I remembered the “due process” rationale behind the individualized assessment requirement (it had been quite a sticking point for employers): that applicants should be afforded notice and an opportunity to explain any adverse information in their records. I recalled the Commissioners urging attendees that, rather than reject out-of-hand those prospects with criminal convictions, they should consider the nature of the past offense, the particular position being filled, and the importance of taking into account the amount of time elapsed since an offense was committed, given evidence of its inverse correlation to recidivism rates.
But mostly, I remembered Lipnic—a Republican—speaking earnestly of the social implications. “I understand you may be looking at thousands of applicants, and you may have a system in place that is going to knock them out of the blocks right away. But if that’s the process we have, then people with criminal backgrounds will never be able to get a job,” Lipnic told the audience at the time. “Do we really expect that people who have been incarcerated should never have an employment opportunity again?”
Would that I was able to confer with my lunch mate with such eloquence; we might not have parted ways with a “pleasure to meet you” and an agreement to disagree.
The next day, I sat hoping that my North Dakota friend was somewhere in the audience listening to the EEOC’s Peggy Mastroianni during the morning plenary session. As she discussed the agency’s enforcement focus on discrimination in recruitment and hiring, she boasted that the 2012 guidance had “transformed the way employers look at criminal records.” According to one survey, she told attendees, 88 percent of employers are following the guidance, and 64 percent are conducting individualized assessments rather than issuing blanket restrictions on hiring applicants with criminal records.
“People are realizing that it’s very easy to get a criminal record in the United States. And we are becoming aware of the economic impact of mass incarceration. To have a huge segment of our population out of the workforce doesn’t make sense economically.” Did you hear that, Mr. North Dakota Finance Lawyer Man?
Meanwhile, Mastroianni added, “ban the box” has gone viral. The phrase refers to state laws prohibiting public employers from including, on job applications, checkboxes asking applicants if they have criminal records, along with voluntary policies exercising such restraint by private employers. Target, Walmart—even Koch Industries—have “banned the box.” Seventeen states have done so too, and more than 100 municipalities. (In six of those states and a number of cities, the measures cover private-sector employers too.)
The federal government could well be next. Last month, Sens. Sherrod Brown (D-Ohio) and Cory Booker (D-NJ), along with a sizeable number of their Democratic Senate colleagues, sent President Obama a letter urging him to ban the box for federal agencies and government contractors. Federal “ban the box” legislation has been introduced in the past to no avail. However, an executive order impacting federal contractors would reach a critical mass of the nation’s private employers. And it would no doubt further fuel this burgeoning movement.
Will I be sitting in a conference session about a newly enacted federal ban-the-box statute at the Minnesota CLE next year? Not likely, given Washington’s current political makeup. But federal policy, state law, employer practices, and indeed, public opinion on the issue are clearly changing. So at least if I run across my lunch mate next year, we may find even more upon which we can agree.
As a child in my early years of elementary school, cereal was the usual breakfast provided to my younger brother and me by our single parent father in our Northeast Kansas home. Cereal boxes were a big deal to kids back then; indeed, to our great joy, our father purchased costumes so that my brother and I could go trick-or-treating as the General Mills “Monster Cereal” characters “Franken Berry” and “Boo Berry,” respectively, one Halloween. Among the many cereal boxes of that mid-to-late 1970s era, I remember the images of (then) Bruce Jenner on the front of Wheaties (another General Mills cereal) boxes following his much celebrated 1976 Olympic Decathlon victory. I think of those cereal box images now as new images of Jenner emerge in another high-profile release. Yesterday (June 1, 2015), Jenner revealed her identity as “Caitlyn,” along with a new Twitter account and photos which will be featured in the cover story of an upcoming issue of “Vanity Fair” magazine.
The Kardashian publicity machine aside, Jenner’s gender identity revelation is big news in its own right. While some only know Jenner from reality television, others may remember those Wheaties boxes and think about the progression not only of our culture, but of our laws. Coincidently, new regulations and guidance from federal agencies regarding gender identity in the workplace have been implemented temporally alongside the recent developments in Jenner’s public life.
OSHA guidance on restroom access. On the same day Jenner announced her identity as Caitlyn, OSHA announced its publication of a guide for employers on best practices regarding restroom access for transgender workers. OSHA’s sanitation standard requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. The guide notes that “[r]estricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
OFCCP rules prohibiting discrimination. Only weeks ago, on April 8, 2015, the first ever federal regulations protecting workers from discrimination by private employers – albeit only those employers that are covered federal contractors and subcontractors – on the basis of sexual orientation and gender identity took effect. On April 24 – just over two weeks later – ABC aired Diane Sawyer’s groundbreaking interview with Jenner, who was then still publicly going by “Bruce.”
These regulations, which revise existing rules enforced by the OFCCP and were published in the Federal Register on December 9, 2014 (79 FR 72985-72995), apply to federal contractors who hold contracts entered into or modified on or after their effective date of April 8, 2015. They enforce Executive Order (EO) 11246, as amended, which prohibits covered federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Sexual orientation and gender identity were expressly added to the categories protected from discrimination under EO 11246 on July 21, 2014, when President Obama signed EO 13672. In addition, EO 13672 amended the existing EO 11478 to ensure that federal employees, who were already protected on the basis of sexual orientation, are now formally protected from discrimination based on gender identity as well.
Law progressing along with change in attitudes. No doubt, had Jenner revealed her gender identity immediately after the Decathlon triumph, she would have faced far more negativity than she is experiencing today. Jenner’s gender identity reveal has been met with a generally positive reception that would have been inconceivable to many, if not most, of those viewing the Wheaties boxes back in the mid-to-late 70s. Roughly four hours after she launched her Twitter account, she became the fastest Twitter user ever to reach one million followers, beating the five-hour record set by President Obama only two weeks earlier (May 18). Later that day, ESPN announced that Jenner is slated to receive its Arthur Ashe Courage Award at the televised ESPYs ceremony next month (July 15, 2015).
A few days after the Sawyer interview aired, General Mills voiced its support for Jenner, and the company reiterated this sentiment in a June 2, 2015 ABC news report, which quotes a GM spokesperson as saying: “Bruce Jenner has been a respected member of Team Wheaties, and Caitlyn Jenner will continue to be.” There are even calls to put Jenner back on the Wheaties box as she appears today.
Still, Jenner’s gender identity expression has met a measure of resistance, with some refusing to refer to Jenner by female pronouns or by her newly disclosed name. In a similar vein, legal protections for workers in the United States against discrimination based on gender identity and sexual orientation are not currently comprehensive.
Patchwork coverage of legal protections. When Jenner appeared on Wheaties boxes in the 1970s, courts were just beginning to flesh out and otherwise interpret the protections against sex discrimination in the workplace afforded by Title VII of the 1964 Civil Rights Act, which covers all but the smallest of private employers. It wasn’t until 1989 that the U.S. Supreme Court ruled, in Price Waterhouse v Hopkins (49 EPD ¶38,936), that discrimination based on gender stereotyping (i.e. failing to act and appear according to expectations defined by gender) could constitute a violation of Title VII.
In its landmark April 20, 2012 ruling in Macy v Holder (CCH Employment Practices Guide ¶6881), the EEOC – citing the court precedents of Price Waterhouse and its progeny which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account – ruled that transgender workers are protected under Title VII even though Title VII does not expressly cover gender identity. With the amendments made by EO 13672, both EO 11246 and EO 11478, unlike Title VII, now expressly cover sexual orientation and gender identity, but as noted earlier, those protections only extend to government employees and employees of covered federal contractors. In an April 16, 2015 OFCCP directive addressing the processing of sexual orientation and gender identity discrimination complaints, the OFCCP notes that the “EEOC and private litigants continue to develop sex discrimination theory” under Title VII. To date, there has been no U.S. Supreme Court ruling addressing the EEOC’s interpretation, set forth in Macy, of Title VII as to the extent of coverage afforded to transgender workers by the sex stereotyping theory.
When signing EO 13672 in July 2014, President Obama noted that “18 states have already banned workplace discrimination based on sexual orientation and gender identity. And over 200 cities and localities have done the same.” However, there is no federal law that expressly prohibits private employers who are not covered federal contractors or subcontractors from discriminating against workers on the basis of sexual orientation or gender identity. Various incarnations of the Employment Non-Discrimination Act (ENDA), a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity, have been pending in Congress for the past four decades to no avail. Thus, in a majority of states, workers may still be legally fired, or subject to other adverse employment actions, based on their gender identity or sexual orientation.
Further, state laws on bathroom access for transgender workers vary. The OSHA guide details state laws which support the principle that employees should be allowed to use the restrooms that correspond to their gender identity. In contrast, laws are currently pending in some states that would require individuals to use the bathroom facilities that correspond to the sex listed on their birth certificates.
Images mark milestones. Like many of the other Wheaties boxes featuring famous athletes, Jenner’s Wheaties box images became iconic. The Vanity Fair images of Jenner, as arguably the most high-profile transgender reveal to date, will likely become iconic as well (if that isn’t already the case). Both mark milestones not only in the life of one person, but in our culture and law as well. How the increasing awareness of transgender individuals in the public sphere, and corresponding shift in attitudes, will impact laws governing the workplace remains to be seen. In any event, Jenner’s legacy will now be one of not only a monumental triumph in the athletic field, but also of a key public figure in the development of our culture’s view of transgender individuals.
There’s an old adage that “words are never a provocation.” But we all realize that words, in fact, can wound and leave deep and lasting scars on their victims. Courts have recognized that racial epithets and terms that conjure up racial stereotypes provide ample cause for an employee to feel the heat of a hostile work environment. Three recent decisions serve as a reminder of the seriousness of inappropriate “words” in the workplace.
Underscoring the seriousness of inappropriate language in the workplace, the Fourth Circuit, sitting en banc in Boyer-Liberto v. Fountainebleau Corp., held an African-American female who was called a “porch monkey” by a coworker on two consecutive days could pursue race discrimination and retaliation claims under Title VII and Sec. 1981. Looking to the Supreme Court’s pronouncement in Faragher v. City of Boca Raton, the appeals court concluded that an isolated incident of harassment, if extremely serious, can create a hostile work environment.
Relying on the Fourth Circuit’s precedent in Jordan v. Alternative Resources Corp., the district court had awarded summary judgment to the employer, concluding that “the two incidents of use of a racial epithet do not comprise either pervasive or severe conduct, however unacceptable they are.”
Severity of conduct. The en banc Fourth Circuit first considered whether the employee made the required showing that “the environment would reasonably be perceived, and is perceived, as hostile or abusive.” Although a viable claim often involves repeated conduct, an “isolated incident” of harassment can “amount to discriminatory changes in the terms and conditions of employment” if that incident is “extremely serious,” reasoned the court.
In measuring the severity of harassing conduct, the status of the harasser may be a significant factor. Thus, “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” The status of the harasser also is relevant to the fourth element of a hostile work environment claim: whether the harassment is imputable to the employer. For purposes of vicarious liability, the harasser qualifies as a supervisor, rather than a coworker, “if he or she is empowered by the employer to take tangible employment actions against the victim.”
Here, the court pointed out that before the incident occurred, the coworker repeatedly and effectively communicated to the employee that she had the owner’s ear and could have the employee fired. She berated the employee’s job performance and then obstructed her attempt to report the racial harassment to management.
Proper standard. The appeals court determined that the Jordan standards were at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment. The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? When assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment, concluded the Fourth Circuit. That assessment involves factors used to judge whether a workplace is sufficiently hostile or abusive for purposes of a hostile environment claim—specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.”
Applying this standard, the appeals court concluded that a jury could find the employee reasonably believed there was a hostile work environment in progress when she reported the manager’s use of the “porch monkey” slur. In the context of her retaliation claims, the employee had made the lesser showing that the harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring.
The “N” word. Racial epithets were also at the heart of the complaints of two African-American drivers for a moving company in Jackson v. Morse Moving & Storage, Inc. In that case, the employees also sued their former employer under Title VII and Section 1981 asserting that they were discriminated against and harassed on the basis of their race and retaliated against for complaining. Both employees claimed to have experienced racial discrimination from coworkers and supervisors, including being called a “big black n****r,” “a slow n****r,” a “dumb n****r,” a “f***ing porch monkey,” and a “black motherf***ing n****r,” among other slurs. The drivers informed the general manager about the slurs and were promised action, but the coworkers’ behavior did not change.
Although the employer argued that there was no evidence the employees’ complaints about racial animus caused their termination, the employees’ retaliatory discharge claims survived summary judgment.
Reviewing the employees’ claims under the direct method, the court concluded that they sustained their burden of showing a causal connection between their harassment complaints and their terminations. There was evidence that the GM said that he would not schedule them to work with the coworkers about whom they had complained, as well as evidence that when another worker protested the treatment of the two employees, his hours were cut. Moreover, the evidence showed that management had done nothing to address their complaints of racial harassment. Thus, the court found they sustained their burden of showing a causal connection between their claims and later discharges.
Pimpmobile. Additionally, words with no obvious racial connotation may still be found to have a racial component, ruled the court in Perkins v. National Express Corp. Here, the court determined that a reasonable jury could conclude from the context that the terms “a player’s” car and “pimpmobile” uttered to an African-American manager by his supervisor carried a racially discriminatory meaning. It thus permitted the employee to move forward on his claim that multiple drug tests within a nine-month period were racially discriminatory.
According to the employee, during his tenure with the company his supervisor made racially offensive remarks to him, including that the employee drove a “player’s” car or “pimpmobile,” and took discriminatory actions against him. He explained that he usually commuted to work in his 1994 Volvo. But when he drove his Mercedes-Benz to work, his supervisor made the comment that he was riding his “player’s” or “pimpmobile.” The employee testified that the statements referred to African-Americans in luxury cars and that he took the comment offensively.
It was precisely the ambiguity of the comment that created a genuine dispute of fact over whether the reference involved a discriminatory racial connotation, given the context. Given that the supervisor directed the “pimpmobile” comments to the employee specifically on the day he drove his Mercedes to work, a reasonable jury could find that the reference to “player’s” or “pimp” directed at an African-American male driving a luxury car carried a discriminatory meaning.
While litigants are often reminded that courts do not “sit as a super-personnel department” and that Title VII is not a “general civility code,” it is bears remembering that certain language remains out of bounds in the rough and tumble of the workplace.
It was my turn to blog, so I wrote this traveling home from my brother-in-law’s funeral. Post-polio syndrome weakened his lungs and likely hastened his death.
Skip was five when he became ill with polio. Jonas Salk was still working on his vaccine, which wasn’t made available to the nation’s children until several years later. He spent months in an iron lung and returned home with crutches as his companion, until surgery shortened his good leg to match his bad. He wore a leg brace all his life.
Interference with functional independence. Post-polio syndrome affects an estimated 25 to 40 percent of polio survivors, mimicking the onset of the disease with progressive weakness, loss of mobility, and often diminished lung capacity. As the NIH page on the disease states, “post-polio syndrome is rarely life-threatening, but the symptoms can significantly interfere with an individual’s ability to function independently.” Not well-understood, it seems to strike individuals in their 40s and 50s—in their prime earning years.
Skip worked as a med tech for many years. Soon after a new supervisor took over in his department, his performance was measured and found wanting; he was too slow; he made mistakes. By this time post-polio syndrome had begun to affect him. Post-polio syndrome is diagnosed by the following characteristics: already having had polio with paralysis; a period of partial or complete functional recovery, usually for at least 15 years or more; plus progressive and persistent new muscle weakness with decreased endurance, sometimes including general fatigue, muscle atrophy, or muscle and joint pain. After ruling out other causes, these symptoms must have persisted for at least a year before a diagnosis can be made.
Individualized inquiry. Usually an accommodation request from an employee triggers the duty to accommodate. But, if an employee with a known disability isn’t performing well, a manager or supervisor may ask the employee if an accommodation is needed. Skip likely would not have asked for an accommodation. His supervisor noticed he was too slow; did she wonder if he needed an accommodation? Yet even if she had, could his disability have been accommodated? He couldn’t move quickly from patient to patient; could the job have been restructured so that he spent more time in the lab running tests? I don’t know; I wasn’t there; I don’t know whether there was an individualized inquiry into his medical status and qualifications before Skip was fired.
He moved home with his parents and never really worked again, although he volunteered for a public health department outreach where he was particularly valued for his ability to do blood draws on difficult patients, like little kids. He sang in the choir and in a men’s chorale for years, until his lungs gave out and even performing in his wheelchair was too much for him.
Doing the hard thing well. I’ve managed people for over 25 years; in my experience, managing individuals with disabilities that require accommodation (note: not all disabilities do) can be challenging at best; unsettling and unsuccessful at worst. It requires management effort—sometimes a lot of effort; it always sucks up management time; it requires the cooperation of the organization; and it doesn’t always work. And until I read this paragraph over again while proofreading it, I did not realize my stated perspective completely lacked any consideration of the impact this process has on the individual with the disability.
Often, by the time an employee does seek a reasonable accommodation for a disabling impairment, he or she is frustrated. Managers or supervisors are likely frustrated too. Many times the employee’s coworkers are aware of the situation as well; they also may be frustrated. As managers and employment lawyers, when faced with such a situation, how do we react? Do we overreact, either by a knee-jerk “no, that will never work,” borne out of exhaustion, or by an over-accommodating “yes” to anything the employee asks because we feel compelled by unrealistic optimism? Either approach is a form of giving up, an urge we should resist. Instead, no matter how difficult, we need to respond to the individual in front of us with honesty, compassion, and understanding, whether or not accommodation is possible.
Skip’s life reminds me of the individual behind the disability, and so I remind you.