Should Women Use Initials to Avoid Gender Bias?

You are on Monster or Indeed, or one of the many other online job application forums. You are looking for a technical job in your field. But if you are a woman, would you ever consider using just your initials to land an interview?

In this blog I will review and discuss an article by John Greathouse of the Wall Street Journal, recommending that women in tech industries hide their gender to combat gender bias, along with readers’ reactions. I will also discuss the legal effects of discriminatory hiring and what women (and men) can do if they feel they have been passed over unfairly.

Gender Bias in Hiring

In his article “Why Women in Tech Might Consider Just Using Their Initials Online” writer, investor, and serial entrepreneur John Greathouse recognized that the tech industry, like many other professional subsets, has a gender problem. He quoted Renee Rottner, Assistant Professor at the University of California, Santa Barbara’s Technology Management Program as saying:

“Gender-bias limits us whether we are investors, employers or educators. In studies that reveal gender, but keep the content the same – the same venture pitch, the same resume, the same online course material – women are perceived as less competent than men, even though their performance was identical.

What’s more, these studies find that the evaluator’s gender has little effect – women and men are equally biased in their judgments against women – not exactly a win for gender equality. However, once we accept that we all have these biases, then we are in a position to fix the problem.”

Greathouse acknowledges efforts made in professional orchestras toward diversity. By holding blind auditions, professional music companies were able to remove gender, race, and ethnicity from consideration in evaluating and hiring the most talented musicians.

Hiding Identity to Avoid Gender Bias

But rather than call for the tech industry to make similar changes, Greathouse went on to suggest that women seeking skilled technical positions hide their identities online by using only their initials or gender neutral names. He says:

“In a similar fashion, women in today’s tech world should create an online presence that obscures their gender. A gender-neutral persona allows women to access opportunities that might otherwise be closed to them. Once they make an initial connection with a potential employer or investor, such women then have an opportunity to submit their work and experiences for an impartial review.”

To get around gender bias in employment, raising capital, and obtaining investments, John says “however unfair it may be” women should:

  • Eliminate photos from your online profiles
  • Identify yourself and your team using initials
  • Modify social media accounts like LinkedIn, Twitter, and email to use the same initials and eliminate photos.

Interestingly, Greathouse goes on to say “I am not suggesting that people shun their ethnicity or run from their cultural identities.” He makes no such qualification about turning away from a person’s gender.

Women Respond to Greathouse

The Wall Street Journal received wide criticism for Greathouse’s article and his recommendations. In a subsequent article, “Readers React: Should Women Use Their Initials to Break into Tech?” writer Demetria Gallegos summarizes the response saying:

“The column elicited a strong response on Twitter, with many criticizing the suggestion that individuals take this action when the industry itself is at fault. Others acknowledged the practice and had, in some cases used it themselves.”

Responses called the article out for causing girls and women to be ashamed of their gender. They likened Greathouse’s advice regarding using initials only to mandated burkas or comments that a woman should “not dress like that” if she did not want attention. Many called Greathouse’s comments “mansplaning” – when a man talks condescendingly toward a woman about something he does not fully understand, assuming he knows more on the topic than the listener.

The general consensus was that Greathouse was essentially telling women how to work around implicit gender bias in the patriarchy, rather than expose the problematic industry practices that cause women to be hired less frequently than men. One respondent, “Laine Nooney @ NOPE” who uses the Twitter handle @Sierra_Offline said:

“What we need from you @johngreathouse is to NORMALIZE and SIGNALBOOST respect for women, not give dealing-w-patriarchy protips.”

The overwhelming response caused John Greathouse to rethink his position. Within a day, he had issued the following apology:

“I apologize for the dreadful article I wrote in the WSJ.

I told women to endure the gender bias problem rather than acting to fix the problem. I hurt women and utterly failed to help, which I wholly regret and apologize for having done. Women have a tough enough time having their voices heard and my insensitive comments only made matters worse. I am truly sorry. – John”

Legal Options to Fighting Gender Bias

Women do face implicit gender biases every day when looking for jobs. But they may not have to resort to gender-stripping identities and ineffective text-only profiles to get around the establishment. State and federal laws include protections for job applicants against gender discrimination. Potential employees in male-dominated industries can often work with employment discrimination attorneys to build a case against gender bias in hiring practices. By filing complaints with the Equal Employment Opportunities Commission (EEOC) or in court, women can help change the climate of the tech industry, rather than finding ways to work around it.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know what gender bias looks like, and how to fight it. We will meet with you and discuss your options, both in and out of court. If you believe you have been passed over for a job because of your gender, contact us to arrange a free initial consultation.

Am I Being Treated Unfairly at Work Because of Pregnancy?

Life can be difficult when you are pregnant. Physical and hormonal changes can make everyday tasks a challenge. But being pregnant shouldn’t result in unfair treatment on the job. If you think you are being treated unfairly at work because of pregnancy, please continue reading to learn about your rights.

In this blog post I will explain how federal laws work together to protect pregnant mothers on the job. I will explain what accommodations you are entitled to, and what pregnancy discrimination looks like.

Can I Take Pregnancy Leave Under the Family Medical Leave Act?

Federal law dictates the minimum pregnancy leave available at larger companies as part of the Family Medical Leave Act. This law applies to government jobs, public and private schools, and all companies with at least 50 employees. It requires those employers to provide 12 weeks of unpaid leave each year for a number of medical reasons, including the birth or care of a newborn child of the employee. Leave is available for pre-term complications or work restrictions, as well as immediately after child birth.

To qualify for FMLA leave, a pregnant mother must have worked for the employer for at least 12 months and at least 1,250 hours over the past 12 months. It only applies to locations where the company has 50 or more employees within 75 miles.

What Pregnancy Discrimination Protection is Available in Small Businesses?

Even if you don’t qualify for FMLA leave, you are protected by the Pregnancy Discrimination Act. This law prohibits an employer from treating a woman unfavorably because of pregnancy, childbirth, or related medical conditions. If you work for a small business with as few as 15 employees, you cannot be fired, passed over for promotion, given lesser assignments, or forced to take leave because of your pregnancy.

The Pregnancy Discrimination Act also protects against pregnancy harassment. If your boss, co-workers, or even customers routinely tease, make fun of, or otherwise harass you because you are pregnant, you may have a federal civil rights claim. However, harassment must be so frequent or severe that it creates a hostile work environment or result in an adverse employment decision.

What If I Am a Pregnant Job Seeker?

The Pregnancy Discrimination Act and Title VII of the Civil Rights Act both apply to job applicants as well as employees. If a potential employer passes you over for a job because of your pregnancy you may have a federal civil rights claim against the business.

What If I Am Unable to Do My Job Because I Am Pregnant?

As your baby develops it may become more difficult to do parts of your job. Many pregnant mothers face medical restrictions on standing, lifting, and other activities that affect their employment. Under the Americans with Disabilities Act, a woman who is unable to do her job because of pregnancy may have a temporary disability. Employers are required to treat that medical condition the same as any other temporary disability (like a broken leg). That means your employer is legally required to make reasonable accommodations for your physical condition. Depending on your job, this could include:

  • Light duty
  • Alternative assignments
  • Providing on-site accommodations (like a stool or ergonomic furniture)
  • Allowing breaks
  • Allowing you to work from home
  • Allowing time off for doctors’ appointments
  • Paid disability leave (if offered for other conditions)

When a new mother returns to work, some short term disabilities may continue. If there were complications during pregnancy or if a mother is breastfeeding, she may need continued accommodations including breaks to pump breast milk or continued light duty until she is healed. These are also covered by the ADA.

Can I Be Fired For Taking Time Off to Have My Baby?

The Pregnancy Discrimination Act says employers may not discriminate against you because you are or were pregnant, could become pregnant, or are trying to become pregnant. In general, this means you cannot be fired because of your pregnancy. Nor can you be laid off or reassigned because your boss believes the job posses a risk to you or your baby. However, if you work for a company with less than 15 employees or if your pregnancy would pose a significant safety risk to others at work, you may be reassigned.

Smaller companies are also not required to provide paid or unpaid maternity leave. However, if your company has a policy regarding short-term disability leave, you are entitled to all the same protections as a person with any other disability. This may include paid or unpaid leave which would ensure that you could not be fired for taking time off to have your baby.

The federal laws protecting pregnant mothers can be confusing. Your position, the size of your company, and internal disability policies can all affect your rights. However, most employees are entitled to significant protections against pregnancy discrimination and harassment. If you believe you are being treated unfairly because of your pregnancy, our employment discrimination attorneys at Eisenberg & Baum, LLP, are here to help. We’ll explain your rights and help you negotiate for the accommodations and treatment you deserve. Contact Eisenberg & Baum today for a free consultation and get protection for you and your growing family.

Can Donald Trump Reverse Laws on Sex Discrimination at Work?

Now that Donald Trump has become the next President of the United States, several communities find themselves wondering how their lives will change. They want to know how Donald Trump can affect laws that protect them from sex discrimination and sexual orientation discrimination at work. Will they be safe from harassment in years to come? Can Trump reverse laws on sex discrimination in the workplace?

In this blog post, I will discuss how the Equal Employment Opportunity Commission (EEOC) enforces Title VII prohibitions against sex discrimination. I will explain how a change in Executive Branch leadership can affect policy decisions and enforcement priorities, and what might be on the horizon under a Trump presidency.

Title VII is Well-Established Law

The primary federal statute protecting employees’ civil rights is Title VII of the Civil Rights Act. First enacted in 1964, it has been amended several times during both Republic and Democratic administrations. The law makes it illegal to discriminate against employees based on a number of inherent characteristics, including sex.

The Equal Employment Opportunity Commission (EEOC) has enforced Title VII and other civil rights laws for decades. More recently it has begun enforcing Title VII against employers who discriminated against workers based on sexual orientation and gender identity. These complaints and lawsuits are filed on behalf of gay, lesbian, and transgender employees who race hostile work environments or adverse employment decisions because they do not fit traditional sexual stereotypes (including that women are not attracted to women and that men do not wear dresses or make-up).

The United States Supreme Court has upheld sexual stereotypes as a basis for a sex discrimination claim. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It has also held that same-sex harassment is sex discrimination under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1988). The EEOC has used these decisions and its policy to pursue administrative settlements for LGBT workers facing sex discrimination on the job.

While the EEOC’s policies are subject to change from time to time, these court decisions will likely remain, providing a basis for private employment discrimination attorneys to seek sex discrimination claims for their LGBT clients. Last week’s blog provides a more thorough discussion of President Trump’s influence over the courts’ decisions.

President-Elect Donald Trump’s Influence on Decision Makers

The U.S. Equal Employment Opportunity Commission is a bipartisan independent agency made up of five members. These Commissioners are appointed by the President. Among the five, Jenny Yang is the current Chairperson. She was named Chair by President Obama on September 1, 2014. As Chair, Yang has the ability to direct the EEOC’s policies and priorities. She has focused on equal pay for women as well as sexual orientation and gender identity claims.

As president, Donald Trump will have the authority to designate a new Chair. As of December 14, 2016, he had not announced any new EEOC appointments, so it isn’t clear that there are any changes on the horizon. But if he does designate a new chairperson, or appoint other EEOC commissioners, it could cause the organization to shift its focus away from women and LGBT rights toward more traditional forms of civil rights protections.

In addition to the Commission, the EEOC is directed, coordinated, and supervised by the General Counsel, an attorney appointed by the President. In October, the EEOC’s General Counsel, David Lopez, announced he would be leaving the organization in December. Much of the agency’s work on sexual orientation discrimination has happened under Lopez’s direction. The vacancy will allow President Trump an early opportunity to appoint new leadership at the EEOC and shape the way the agency enforces civil rights law in the future.

Finding Ways Through Uncertainty

The laws underlying EEOC protections against sex discrimination and harassment of LGBT workers haven’t changed. Private employment discrimination attorneys still have decades of legal decisions to rely on in protecting American workers from hostile work environments and harmful employment decisions. If President-Elect Donald Trump wants to affect changes to the system, he will have to do it through the appointment of executive branch positions, like the EEOC Commissioners and the General Counsel. While this could make it harder to protect employee rights, it won’t eliminate the good work already done by the EEOC to create legal precedent and protect vulnerable workers.

At Eisenberg & Baum, LLP, we have represented employees under a variety of political administrations. We know how a President can affect the work we do, and how to work around his influence. If you are facing sex discrimination and harassment at work, contact Eisenberg & Baum, LLP, to schedule a free consultation. We’ll help you plan a strategy that guides you through the uncertain transition between presidents and protects your rights.

Will Donald Trump Reverse Cases Prohibiting Sexual Orientation Discrimination?

The election is over and Donald Trump is the next President of the United States. On the campaign trail Donald Trump made a lot of promises. But will any of them affect cases prohibiting sexual orientation discrimination?

In this blog post I will discuss the possible effect of Donald Trump’s presidency on federal court cases prohibiting sexual orientation discrimination. I will explain the course a case like this takes through the court system and where Trump’s influence may be felt along the way. It is important to note that no one knows what any President will do before they do it. This post is only intended to explain the process.

EEOC Takes Sexual Orientation Discrimination to Court

Since December 2012, the Equal Employment Opportunity Commission has taken the position that existing civil rights laws, particularly Title VII, prohibit sexual orientation discrimination as a part of their ban on gender-based discrimination and harassment. Under its interpretation, discrimination based on sexual orientation or gender identity are essentially punishing a person for not conforming to existing sexual stereotypes.

Based on that interpretation, the EEOC has sued a number of employers for sexual orientation or gender identity discrimination. One such case, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), is currently pending in the U.S. District Court for the Western District of Pennsylvania. Earlier in 2016, the judge in that case denied the employer’s motion to dismiss, ruling that an employee could file a claim for sexual orientation discrimination under Title VII, essentially agreeing with the EEOC’s interpretation of the law. Let’s use this case as an example to provide context to a discussion of Donald Trump’s power in this area.

What Trump’s Judicial Appointments Mean for LGBT Employees

The President of the United States cannot directly reverse court decisions. As the head of the Executive Branch, he has no direct influence over the courts. However, President Donald Trump will have the authority to nominate candidates to fill vacancies among federal court judges. This includes replacing the late Honorable Anton Scalia as a U.S. Supreme Court Justice. As of December 8, 2016, there were also 13 vacancies at the U.S. Court of Appeals level and 83 District Court vacancies. Trump will have the authority to fill all of those seats, with Senate approval.

For cases currently pending before the court, like EEOC v. Scott Medical, these appointments won’t have any immediate effect at the trial court level. However, as new sexual orientation discrimination complaints are filed they may be assigned to the more conservative judges appointed by Donald Trump. While there is no way to know how any judge will rule on a case ahead of time, more conservative judges may be less likely to agree with the EEOC’s interpretation of Title VII, and could rule in favor of employers who discriminate against their LGBT employees.

The Supreme Court and Court of Appeals

Trump’s judicial appointments at the Court of Appeals and Supreme Court level could have a broader effect on sexual orientation discrimination cases going forward. While the U.S. Supreme Court has applied the sexual stereotype standard to gender discrimination cases in the past, it has not yet heard a sexual orientation discrimination case. Appointments of judges and Supreme Court Justices who are less friendly to LGBT rights could cause the higher courts to rule against protections for LGBT employees. If they do, it would set precedent for future employment discrimination cases across the country.

However, none of this will happen tomorrow. It can take time, even years, for a case like EEOC v. Scott Medical to make its way through the court system to the Supreme Court. Right now, EEOC v. Scott Medical is still in the pretrial stages. It could take several more months for there to be a final verdict at the trial court level. Assuming the court finds that sexual orientation discrimination did occur, the employer would then have to file an appeal at the Court of Appeals level. After months of briefing schedules and oral argument, the Court of Appeals would then issue a ruling. Whichever party loses on appeal may then request permission to appeal to the Supreme Court. If that request is granted, it will be another several months before the Supreme Court renders a decision. That means any significant change in employment discrimination law will not take effect for some time to come.

EEOC Appointments Could Affect Appeals

The next blog will discuss how changes within the EEOC could affect employment discrimination cases under a Trump administration. However, there is one shift that could apply to cases like EEOC v. Scott Medical much sooner than any judicial appointment. The EEOC is part of the Executive Branch. That means the President gets to appoint its leadership. If the incoming EEOC Commissioners or General Counsel do not prioritize LGBT rights, they may choose not to appeal decisions against gay employees or file new federal lawsuits on their behalf.

If that happens, it will be up to private firms like Eisenberg & Baum, LLP, to pick up the slack. Our employment discrimination attorneys understand the reasoning behind the EEOC’s policy and know how to take these issues to court. If you are facing discrimination at work because of your sexual orientation or gender identity or expression, contact Eisenberg & Baum today to schedule a free initial consultation. We’ll explain your options and help you fight back against discrimination at work.

Historic Court Ruling: Sexual Orientation Discrimination is Unlawful Sex Discrimination

If you are a member of the LGBT community, you may feel afraid to come out at work for fear of discrimination because you are gay or lesbian. A recent federal court ruling has made sure you are safe, ruling that sexual orientation discrimination counts as unlawful sex discrimination.

In this blog, I will discuss the recent federal district court ruling in EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., Civ. No. 2:16-cv-00225-CB), and its effect on LGBT equal employment rights. I will explain how federal sex discrimination laws are now being interpreted to protect against sexual orientation discrimination by the EEOC and the court.

EEOC Says Sexual Orientation Discrimination is Unlawful

In December 2012, the Equal Employment Opportunity Commission (EEOC) adopted a new Strategic Enforcement Plan (SEP). Among other policy changes, the SEP now includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.” This policy changed the way the EEOC responded to gay and lesbian civil rights complaints, and opened the door to sexual orientation discrimination protections nationwide.

Sexual orientation and gender identity are not listed as protected classes under Title VII or the other civil rights statutes enforced by the EEOC. Because of this, until 2012, gay, lesbian, bisexual, and transgender employees had nowhere to turn to fight back against hurtful discrimination and harassment in the workplace. Without requiring Congress to amend the statute, the EEOC’s 2012 SEP reinterpreted the law, extending sex discrimination protections to any employee who doesn’t fit traditional sex stereotypes.

The EEOC explains why Title VII’s sex discrimination protections apply in sexual orientation discrimination cases like this:

  1. “[S]exual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex;
  2. [S]exual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and
  3. [S]exual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.”

U.S. EEOC v. Scott Medical Health Center

Based on its SEP, on March 1, 2016, the EEOC filed its first sex discrimination lawsuit based on sexual orientation. The case, U.S. EEOC v. Scott Medical Health Center, was based on the treatment of a gay male employee at a pain management and weight loss facility. In its lawsuit, the EEOC claimed that Scott Medical Health Center, P.C., discriminated against Dale Baxley when it allowed him to be harassed because of his sexual orientation. Baxley’s immediate supervisor was aware that he was being subjected to highly offensive anti-gay epithets and other vulgar statements based on sex stereotypes. The EEOC said that this harassment was based on the fact that Baxley did not conform to his employer’s gender-based expectations, preferences, or stereotypes. When the facility failed to respond to his complaints for two to three weeks, Baxley resigned, resulting in a constructive discharge and the basis for a sexual orientation discrimination lawsuit.

The employer filed a motion to dismiss, saying there was no unlawful discrimination because sexual orientation is not protected under Title VII. But District Judge Cathy Bissoon of the Western District of Pennsylvania in Pttsburgh disagreed. On November 4, 2016, she issued a ruling that said sexual orientation discrimination was a type of discrimination “because of sex,” which is illegal under Title VII. The law prohibits adverse treatment of workers based on “sex stereotypes.” The court said:

There is no more obvious form of sex stereotyping than making a determination that person should conform to heterosexuality. . . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.

The court’s decision struck down the employer’s motion to dismiss. Now the case will proceed to trial or settlement based on the harassment Baxley suffered and the reasonable steps Scott Medical Health Center could have taken, but didn’t.

This marks the first time a federal court has found that Title VII extends to sexual orientation discrimination. The ruling paves the way for future EEOC complaints and lawsuits to protect the rights of LGBT workers across the country, even in jurisdictions that don’t have inclusive civil rights statutes at the state level. This is a huge step forward in employment discrimination prevention. By extending sex discrimination to include sexual orientation, Judge Bissoon has provided a foothold for future litigation shielding gay and lesbian employees from cruel and often violent workplace harassment and discrimination.

The employment discrimination attorneys at Eisenberg & Baum, LLP, applaud Judge Bissoon for taking this first step in LGBT protections. We are available to anyone, gay or straight, who feels they have been harassed because they didn’t conform to an employer’s assumptions about sexual stereotypes. If you are facing sexual orientation discrimination, contact us today to schedule a free initial consultation. We’ll help you find a way out of your hostile work environment.