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Clinton is not the only professional woman held to a double standard

September 15th, 2016  |  Lorene Park

By Lorene D. Park, J.D.

Let me preface this by saying I am neither Democrat nor Republican; I focus less on party and more on qualifications. For that reason, and because I’m an employment law attorney interested in discrimination, one thing that is driving me crazy as I watch the election season unfold is the standard to which Hillary Clinton is held in comparison to her male counterpart. But she is not the only woman in her shoes. Even today, after all the equal opportunity laws that our more enlightened society has passed, professional women too often have to bring much more to the table than a man would have to bring to receive a job, higher pay, or simply recognition for achievements. Some recent case decisions illustrate the point:

She violates policy and gets fired, he violates policy and gets her job. A female bank branch manager who was fired for violating the bank’s check cashing policies (by making funds immediately available to businesses despite prior overdrafts) was replaced by a male transfer from another location who had previously violated the same policy. Based on this evidence that the employer was more lenient with the male manager, the female former branch manager will get a trial on her claim of discrimination based on her status as a woman with young children, ruled a federal court in Connecticut (Gran v. TD Bank, NA, September 2, 2016, Bolden, V.).

Glass ceiling for older female attorneys. Reversing summary judgment against a 55-year-old female attorney’s sex discrimination and age discrimination claims under Title VII and the ADEA, the Fourth Circuit found that a lower court should have more thoroughly considered testimony by other female employees supporting the attorney’s claim that her employer maintained a glass ceiling that prevented older women from advancing. After working in the law department for over a decade, she was demoted from principal to senior associate, and when she raised concerns of sex discrimination, her supervisor suggested that she “transition out.” She left and was replaced by a 31-year-old male (Calobrisi v. Booz Allen Hamilton, Inc., August 23, 2016, per curiam).

Told to “play nicely within the boys’ club.” The only female employee at management level in a national air conditioning rental company claimed that, because of her gender, she was paid less; was excluded from management meetings and from training; had her suggestions ignored; and was told by a male VP that her title was too high for a woman, she should be more “submissive,” and she should “play nicely within the boys’ club.” She also described a workplace replete with sexist comments, pornography, minimization of female workers, and at least one daytime visit by strippers. In the opinion of a federal court in New York, this was more than enough to support a sex discrimination claim (Conforti v. Sunbelt Rentals, Inc., August 15, 2016, Spatt, A.).

Repeatedly asked how a woman could command men. A female captain in the New Orleans Police Department who was denied a position as police chief for the city of Baton Rouge after being asked numerous questions about how a woman could command a mostly male department had judgment in her favor affirmed on her Title VII and state-law discrimination claims. The Fifth Circuit found that the interview questions, plus the fact that she received the high score on the civil service exam and was highly educated (in contrast to the selected male candidate), showed gender bias (Overman v. City of East Baton Rouge, July 11, 2016, per curiam).

Simply maddening. With these (and similar cases) out there, is it so surprising that a highly qualified female candidate for president would be repeatedly grilled on every flaw or failing, political and personal, while a lesser qualified (based, at least, on norms that applied generally in previous presidential elections during the last 50 years) male candidate appears unscathed by his racist and sexist comments, by the failure to disclose tax information, by the many lawsuits alleging fraud and contract breaches, and by so many other red flags? No, it is not surprising, it is maddening.

Equal employment opportunity should be standard operating procedure. Yet the wage gap between women and men persists, as does the opportunity to assume leadership roles. Indeed, a June 2016 analysis by Korn Ferry of the top 1,000 U.S. companies found that the percentage of women in CEO, CFO, COO, and other “C-Suite” positions is still dramatically lower than men.

Legislative and other efforts to combat sex discrimination. On the bright side, legislators are continuing efforts to improve the situation. For example, Senators Patty Murray (D-Wash.) and Dianne Feinstein (D-Cal.) announced that they had sent a letter to the General Counsel of the U.S. Soccer Federation requesting information on pay disparities between the men’s and women’s U.S. National Soccer Teams. And to help eliminate the wage gap, Congresswoman Eleanor Holmes Norton (D-D.C.), the first woman to chair the EEOC, along with cosponsors Rosa DeLauro (D-Conn.) and Jerrold Nadler (D-N.Y.), announced a plan to introduce a bill barring employers from asking for salary history before extending a job or salary offer. This addresses a trend in which women start at lower salaries than men, and because employers often set wages based on an applicant’s prior salary, women are unable to catch up. States are also addressing the issue. Indeed, Massachusetts enacted a bipartisan pay equity law (S. 2119) that will also bar employers from asking for salary histories before making job offers.

Meanwhile, the EEOC continues its enforcement efforts against intentional discrimination. In addition to filing suits on behalf of aggrieved women, the agency recently issued new resource documents addressing the EEO rights of women in the workplace, including the EEOC’s Equal Pay and the EEOC’s Proposal to Collect Pay Data, which explains that collecting pay data “will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of federal anti-discrimination laws.” The question-and-answer document also explains employees’ rights to equal pay. In addition, the EEOC issued a Q&A, Legal Rights for Pregnant Workers under Federal Law, which discusses pregnancy-related protections under the Pregnancy Discrimination Act and Americans with Disabilities Act.

The OFCCP has also taken action, replacing its outdated sex discrimination guidelines from 1970 and announcing a final rule on new sex discrimination regulations that align with current law and address the realities of today’s workplace. The rule addresses pay discrimination, harassment, pregnancy accommodations, gender identity bias, family caregiving discrimination, and more. The OFCCP website provides additional information, including a fact sheet.

It’s a long road. The takeaway here is cup-half-empty or cup-half-full. We may have “come a long way,” but all you need to do is view political commentary on the approaching election to realize women still have a long way to go.