Amazon Hiring A.I. Learns Gender Discrimination Against Women

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Is automation the answer to fighting gender discrimination against women? Some big tech companies seem to think so. But after Amazon’s experimental hiring A.I. learned to favor men over women, the question is whether automation will stop discrimination or make it worse.

In this blog post, I will discuss recent reports that tech-giant Amazon’s experimental hiring tool was abandoned because it had learned gender discrimination against women. I will explain how Title VII protects against gender discrimination in hiring, and discuss what that could mean in a world where initial hiring screening is done through automation.

A.I. Has Become a Common Part of the Hiring Process

Some of the country’s largest employers have been turning to computers to help them speed up the hiring process. Goldman Sachs created a resume analysis tool to match candidates with different divisions within the company. Microsoft offers employers an algorithm to rank candidates based on job postings uploaded to LinkedIn, the company’s online professional network. Others use automated systems to screen out unqualified individuals from the pool of applicants. One report by CareerBuilder suggests that as of 2017, up to 55% of U.S. human resource managers planned to incorporate artificial intelligence (A.I.) into their hiring processes within the next 5 years.

For some employers, A.I. helps promote diversity in hiring. Automated recruiting networks at HireVue, for example, helped companies look beyond Ivy League schools to find other highly-qualified candidates from other, less sought-after schools. But others see the technology as one step in a larger process. John Jersin, vice president of LinkedIn Talent Solutions, says,

“I certainly would not trust any AI system today to make a hiring decision on its own. . . . The technology is just not ready yet.”

Resume Screening A.I. Learns Gender Discrimination Against Women

Those reservations seemed justified after Reuters reported that Amazon’s experimental hiring A.I. had been discontinued because, among other things, it had learned gender discrimination against women. Amazon began working on the project in 2014. Its machine-learning specialists were trying to mechanize recruitment searches by creating a computer program that could identify top talent. The tool would scan each applicant’s resume, and then rate it from one to five stars.

But within a year, Amazon realized it had a problem. The system had learned gender discrimination against women. Like most computer learning, the program was designed to observe patterns in successful resumes submitted to the company over time. Those resumes came with biases of their own.

Amazon’s workforce is 60% male. Across the industry, in technical roles, like software developers, male employees outnumber female employees 3 to 1. Because the tech industry has a problem with gender disparity, so did the successful resumes.

Over time, the program learned that the skills needed to do the job — like the ability to write code — appeared in almost every resume. Instead, the technology found distinction in the way applicants described themselves. It came to favor masculine language, such as “executed” and “captured”. It also reportedly penalized resumes that included the word “women’s” (such as “women’s chess club captain”) and downgraded two all-women’s colleges.

Title VII Says Gender Discrimination Against Women is Illegal, Even by Computers

Favoring, or downgrading, an applicant based on gender is illegal under Title VII of the federal Civil Rights Act. The law prohibits employers from making hiring decisions based on a person’s sex or gender (including how well he or she complies with gender stereotypes). When gender discrimination against women becomes a part of the program making hiring decisions, a Title VII violation seems likely.

The law doesn’t require a potential employee suing for gender discrimination to prove the person making the hiring decision intended for the discrimination to happen. Some cases have been won simply on a showing of “disparate impact” — that factors other than gender negatively affected one gender more than another. Even if the machine-learning team didn’t mean for their hiring A.I. to learn gender discrimination against women, the effect of screening out female applicants could be enough for a court to find the company violated Title VII.

Weeding Out Gender Discrimination from Automated Hiring Decisions

Fortunately, Amazon recognized the problems with an A.I. that weighs gender in its hiring protocol. At first, the team edited the programs to neutralize the effect of those particular forms of gender discrimination against women. But advocates warned there was no way to know if the program was developing other discriminatory ways of sorting candidates.

Ultimately, Amazon disbanded the project in 2017. The company said the program was never used by recruiters to evaluate candidates, and that it had other problems that kept it from going to market. However, given the trends in hiring and automation, it is only a matter of time before Amazon, Google, or some other technology company releases a hiring A.I. that will automate the hiring process and could potentially hard-code gender discrimination into future hiring decisions.

Gender discrimination against women in hiring happens all across the country, in nearly every industry. Whether it is because of automation or old-fashioned biases, you have a right to be considered based on your qualifications, not your sex. If you believe you have been passed over for employment due to your gender, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your situation and help you plan a strategy that preserves all of your claims and protects your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Could the Definition of ‘Sex’ Remove Civil Rights Protection for Trans* Employees?

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The Trump Administration recently revealed plans to change the way parts of the government define sex to be based on a person’s DNA. That could spell trouble civil rights protection for Trans* employees, students, and others seeking protection based on federal gender discrimination laws. But can the Department of Health and Human Services really change anything? Find out what transgender and transsexual Americans need to know about this new proposal.

In this blog post, I will review reports that the Department of Health and Human Services is attempting to set a new definition of sex that could strip civil rights protection for Trans* employees and students from Title IX. I will explain how the law works and whether the Trump Administration has the authority to make the change.

Department of Health and Human Services Considers Defining Sex as Genetic

On October 21, 2018, the New York Times broke the news that the Trump Administration — specifically the Department of Health and Human Services (DHHS) — is considering changing the legal definition of sex under Title IX. If DHHS goes through with the change, the agency would adopt a policy that says:

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The memo is reported to have urged similar action by all the “Big Four” agencies involved in the enforcement of federal civil rights laws:

  • Department of Health and Human Services
  • Department of Education
  • Department of Justice
  • Department of Labor

Some of these federal agencies have already taken steps to roll back Trans* protective policies put in place during the Obama Administration. However, none of those efforts go as far as DHHS’s proposed redefinition of sex.

The Times described this narrow definition as “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.” It said the new definition would “essentially eradicate” federal civil rights protections for Trans* Americans. But that could overstate the effect of the policy on the courts.

Title IX Protects Against Gender Discrimination in Schools

Title IX of the Education Amendments of 1972 is the primary federal civil rights protection for Trans* Americans in schools. The law says gender discrimination is illegal in any educational program or activity that receives federal funding. That includes sex-based discrimination in:

  • Enrollment and Admissions
  • Recruiting
  • Financial aid
  • Student services
  • Discipline
  • Assignments
  • Grading
  • Extracurricular activities and sports
  • Recreation
  • Housing

Title IX also applies to certain employees of schools and other educational programs, particularly where the employee is also a student.

Schools that receive federal funds are legally required to respond to and prevent gender discrimination and sexual harassment that occur within their programs. When they don’t, it can be up to the Department of Health and Human Services and the Department of Education’s Office of Civil Rights to enforce the law. Students and employees can file complaints of gender discrimination with these agencies based on their inequitable treatment of students, teachers, and others within the school setting.

Just like other federal civil rights laws, Title IX does not specifically define “sex” or “gender”. DHHS says the proposed policy abides by a court order by Judge Reed O’Connor from the Federal District Court in Fort Worth, Texas. In 2016, Judge O’Connor held “Congress did not understand ‘sex’ to include ‘gender identity’.” However, other courts have regularly found otherwise. Federal courts across the country have found federal law includes civil rights protection for Trans* individuals because treating them differently is necessarily based on gender non-conformity and sexual stereotypes.

Can the Trump Administration Change Title IX?

LGBT advocates and other Trans* supporters are upset by the proposed policy change. Within hours of the Times report, social media was filled with the hashtag #WontBeErased. Rallies took place in New York and Washington, where Trans* Americans and their supporters vocally and visibly opposed the policy.

But whether DHHS adopts the policy or not, it will not change the language Title IX or the cases interpreting it. As a federal statute, the law can only be modified by Congress, not the Trump Administration. Instead, the DHHS policy would determine which types of cases the government agency will choose to pursue when it receives complaints. In addition, any changes to a government agency’s policy require prior notice of the proposed changes and an opportunity for comment. This period will allow LGBT advocates to voice their opposition, and possibly stop the policy or modify it to include some federal civil rights protection for Trans* individuals.

The Bottom Line for Civil Rights Protection for Trans* Employees and Students

Even if the policy is adopted as proposed, it will not change federal law or erase the cases defining sex and gender discrimination to include protection for transgender and transsexual Americans. Trans* employees and students will still be able to pursue Title IX claims against educational institutions engaging in gender discrimination. However, they will likely have to do so without the help of DHHS.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for Trans* Americans. Our employment discrimination attorneys, help transgender, transsexual, and gender-nonconforming workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer or school is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against gender discrimination.

Asian-American Students Sue Harvard Over Affirmative Action Policies

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Competition for admission into America’s Ivy League universities has never been tighter. Students compete on grades, extracurricular activities, volunteer work, and awards. Still less than 5% of applicants get admitted to Harvard College. Now a lawsuit says the the school’s affirmative action policies make Asian-American students the victims of racial discrimination.

In this blog post, I will review a lawsuit filed by Asian-American students rejected by Harvard University. The complaint claims the university’s Affirmative Action policies create racial discrimination against minority students. I will review past Affirmative Action cases and explain when a college may consider a student’s race in deciding admissions.

Lawsuit Says Affirmative Action Policies Create Racial Discrimination in Enrollment

A federal district court in Boston, Massachusetts, has been asked to rule that Harvard’s Affirmative Action policies create racial discrimination in enrollment. The plaintiffs — all Asian-Americans represented by Students for Fair Admissions — say their applications were unfairly rejected from the Ivy League school based on their race. They say Harvard has set an illegal restrictive quota for the number of Asian-American students accepted to the university every year.

According to the lawsuit Harvard University’s Asian-American admissions has been stuck at 18% even though the national population has changed over time. In contrast, Asian-Americans make up 34.8% of the University of California, Los Angeles (UCLA) student population, 32.4% at Berkeley, and 42.5% at Caltech. However, part of this disparity may relate to the higher Asian-American population in California.

Is Affirmative Action Racial Discrimination?

Affirmative action has been through the courts before. Colleges and universities have long considered an applicant’s race as part of admissions, generally to promote diversity on campus. But isn’t treating applicants differently based on race illegal racial discrimination?

In 1978, in Regents of the University of California v Bakke, the U.S. Supreme Court said using racial quotas was illegal and violated the Equal Protection Clause. But that decision did allow colleges and universities to use race as one factor among many if done to achieve diversity.

In 2003, the U.S. Supreme Court considered two more affirmative action cases involving the University of Michigan and its law school. There the court again said using race as part of the admissions process was allowed, but the university’s point-based system (which awarded up to 20 points out of a total 150 points for an applicant’s race) went too far. The Court said the overly mechanized system created racial discrimination in the application process. Notice, these decisions are based on Equal Protection under the Constitution, not federal civil rights laws.

Most federal Affirmative Action lawsuits are brought by members of the racial majority. White applicants will argue that they were passed over in favor of minority candidates. In fact, Students for Fair Admissions have represented those white applicants before against the University of North Carolina at Chapel Hill and the University of Texas at Austin.

Asian-Americans Split Over Claims of Racial Discrimination

This time, the plaintiffs are themselves a racial minority: Asian-Americans. The students say that Harvard (and other elite colleges not named as defendants) holds Asian-Americans to a higher standard than other applicants. They accuse the school of using racial balancing in their admissions process, which they say violates Equal Protection.

But not all Asian-Americans feel the same way. Some believe Harvard’s admissions practice and its diversity has enriched their educational experience. Emily Choi, who will be a junior with a history and literature concentration at Harvard this fall, told the New York Times:

“I firmly believe in affirmative action. . . . The diversity at Harvard has been key to my learning, and I think that if there weren’t so many people of different backgrounds, I wouldn’t be forced to think about things in new ways.”

Does Harvard’s Affirmative Action Policy Pass the Many Factors Test?

The question for the federal district court is whether Harvard’s Affirmative Action policy lives up to the standard set in earlier Supreme Court cases. Harvard’s attorneys originally objected to releasing the university’s admissions criteria out of fear that incoming applicants may use it to game the system. But now, many of the details of Harvard’s Affirmative Action policy have come to light. The university reports that it considers an applicant’s:

  • Grades
  • Test scores
  • Intended major
  • Personality
  • Race and ethnicity
  • Geographic region (rural vs urban)
  • Parents’ occupations
  • Extracurricular activities

In addition, the team considering these applications can give “tips” (admission advantages) to some applicants who are:

  • Racial and ethnic minorities
  • The children of Harvard or Radcliffe alumni (legacy)
  • Relatives of a Harvard donor
  • The children of staff or faculty
  • Athletes

Applicants on the “dean’s interest list” may have particular clout; and the “Z-list” helps students who have weaker academic scores. In testimony taken recently, Judge Allison D. Burroughs seemed to be particularly interested in whether these “tips” and lists could create inadvertent racial discrimination based on the unconscious bias of the evaluators.

Over the years, colleges and universities have seen federal courts limit their ability to use Affirmative Action policies without raising racial discrimination concerns under the Equal Protection Clause of the 14th Amendment. Commentators are saying this Harvard case is set up to take the matter back to the U.S. Supreme Court. Whether Harvard’s claims that the policy promotes diversity will stand up to constitutional scrutiny remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys help employees facing gender discrimination on the job, and on campus. If you are the down side of Affirmative Action, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

​Can Your Employer Deny You a Chair as a Disability Accommodation?

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Disabilities come in all shapes, sizes, and severity. Sometimes accommodating for an employee’s disability requires special equipment or a flexible schedule. Other times, all that is needed is a chair. But employers sometimes refuse even the simplest requests, leading some workers to wonder if your employer can deny you a chair as a disability accommodation.

In this blog post, I will review a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against Grand Hyatt for disability discrimination. I will discuss what reasonable disability accommodation may include, and how a court may answer the question “can your employer deny you a chair?”

New York Hyatt Hotel Denies Employee Disability Accommodation

Grand Hyatt New York, Inc. operates a large hotel at Grand Central Terminal in New York City. It is part of a network of Hyatt hotels across the U.S. and internationally. So when a front desk agent filed a disability accommodation request, it was reasonable for him to expect the request to be taken seriously.

The agent, who is not named in the recent press release by the Equal Employment Opportunity Commission (EEOC), suffered from chronic back pain. To relieve his pain he made a simple request: he asked for a chair as a disability accommodation. At first, Grand Hyatt granted the request, allowing him to sit while working the front desk for two weeks. But then, the employer took his chair away and denied his request for disability accommodation.

Americans with Disabilities Act Requires Employers to Make Reasonable Disability Accommodations

The front desk agent’s request was based on the Americans with Disabilities Act, a federal civil rights law that prevents discrimination against employees based on their medical history or disabilities. The law prohibits employers from making employment decisions (hiring, firing, promotion, etc.) based on a person’s disability. It also requires employers to provide reasonable accommodations to employees or applicants to enable them to do their jobs.

The disability accommodation requirement is not unlimited. An employer is allowed to deny requests that are unduly burdensome, or would cause significant difficulty or expense to the employer. Determining what is a reasonable disability accommodation can depend on:

  • The effect of the request on the employer’s ability to do business
  • Whether there are other employees available to cover activities the disabled individual cannot perform
  • The cost of providing the disability accommodation
  • The employer’s size and access to resources
  • The employer’s history of providing similar accommodations to other employees

Can Your Employer Deny You a Chair as a Disability Accommodation?

When the front desk agent’s request for a chair was denied, he filed a complaint with the EEOC under the Americans with Disabilities Act. But Grand Hyatt still would not agree to the disability accommodation, so the EEOC has filed a lawsuit on his behalf. The question for the U.S. District Court for the Southern District of New York in EEOC v Grand Hyatt New York, Inc., (Civil Action No. 1:18-CV-07374) is whether your employer can deny you a chair as a disability accommodation. Said another way, can a request for a chair be unduly burdensome or cause significant difficulty or expense to the employer? The EEOC doesn’t believe so.

“Federal law on disability accommodations is very clear and fair – employers must provide a reasonable accommodation as long as it causes no undue burden,” said Kevin Berry, the EEOC’s New York District director. “A request for a chair is hardly likely to create such a burden.”

When a request for disability accommodation is simple, like asking for a chair to sit in, a shift change, or a change in lighting, it is up to the employer to show why the accommodation was denied and that granting it would have been unreasonable. EEOC Trial Attorney Kirsten Peters added,

“A refusal to provide a simple, low-cost accommodation to an individual with a disability is a clear violation of the law. This lawsuit could have easily been avoided if Grand Hyatt New York had done the right thing.”

Options for Disabled Employees Seeking Accommodation

The ADA may require employers to make reasonable disability accommodations, but that doesn’t mean your boss is going to make it easy for you. The employment discrimination attorneys at Eisenberg & Baum, LLP, know how to talk to employers big and small. From our main office in New York City, we can help employees across the country negotiate for accommodations to address their medical needs, sometimes without having to file a formal complaint. When negotiations fail, we can work with the EEOC and the federal courts to get you the accommodations, and damages, you deserve.

Disabled employees have the right to work with dignity. Your job shouldn’t cause you pain and suffering. If your employer is denying you accommodations for your documented medical needs, contact us today to schedule a consultation.

​Sexual Harassment in the Catholic Church: Are the Victims Protected?

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Controversy over sexual abuse and sexual harassment in the Catholic church has been swirling for years. Now a recent indictment by a Pennsylvania Grand Jury has taken the matter out of the religious world, and into the legal sphere. But the question remains, are the victims of sexual harassment in the Catholic church protected? Or does the fact that the employer is a religious organization exempt it from gender discrimination laws?

In this blog post, I will review reports and indictments connected to sexual harassment in the Catholic church. I will discuss whether federal civil rights laws against gender discrimination and sexual harassment apply to religious institutions. And I will explain what options the victims of sex abuse and misconduct within a church, temple, or other religious order have to protect their rights.

Pennsylvania Grand Jury Report Reveals “Playbook” of Sexual Harassment in the Catholic Church

On August 15, 2018, a Pennsylvania Grand Jury issued a scathing report that shook the nation. The report named over 300 “predator priests” who had been credibly identified as sexually abusing over 1,000 child victims. These sexual assault incidents spanned over 60 years, dating back to 1947, and involved clergy in six dioceses: Allentown, Erie, Greensburg, Harrisburg, Pittsburgh and Scranton. The Grand Jury report said:

“We believe that the real number of children whose records were lost or who were afraid ever to come forward is in the thousands. . . . Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades. Monsignors, auxiliary bishops, bishops, archbishops, cardinals have mostly been protected; many, including some named in this report, have been promoted.”

Most of the incidents identified in the report were too old to prosecute. But the report did result in indictments against two priests, one in Erie and another in Greensburg, who are accused of sexual molestation of minors.

Sexual Harassment in the Catholic Church Involved Employees as Well

The story of sexual abuse in the Catholic church is often framed in the most disturbing terms: of older male priests raping and molesting young children, including altar boys and girls. However, the sexual harassment involved church employees as well. In July, 2018, the New York Times published the story of Robert Ciolek, a young man studying to be a priest in the 1980s. He was sexually harassed by his Bishop, Theodore McCarrick — his superior within the Catholic church.

Ciolek, who was in his 20s at the time, felt unable to say no to his superior’s sexual advances:

“I trusted him, I confided in him, I admired him. . . . I couldn’t imagine that he would have anything other than my best interests in mind.”

McCarrick was eventually named a Cardinal, one of the highest ranks within the Catholic Church, and an advisor to Pope Francis. But after Ciolek’s allegations came to light, McCarrick resigned. The Pope has announced that the Council of Cardinals had reviewed his case and substantiated (found support for) the claims against him. The Pope ordered McCarrick to live a “life of prayer and penance” for what he had done.

Title VII and Sexual Harassment Inside Religious Institutions

Ciolek’s case, like many of the sexual abuse incidents included in the Grand Jury report, is too old to result in legal action. But as more sexual harassment victims of the Catholic church come forward, the question becomes whether the church can be held responsible as an employer under Title VII.

Federal civil rights law requires employers to take reasonable steps to investigate and respond to allegations of sexual harassment by their employees, especially managers and others with supervisory authority. When an employee reports that a supervisor pressured him or her for sexual favors as a basis of employment or punished him or her for refusing those advances, the employer is legally required to step in and take reasonable steps to stop the sexual harassment, up to and including firing the abuser.

In 2017, the Catholic church employed over 37,000 clergy, religious, and lay (secular) leaders in the United States. When one of those employees comes forward claiming gender discrimination or sexual harassment in the Catholic church, will its status as a religious organization interfere with its employees right to be free from unwanted sexual advances?

In general, religious organizations are required to comply with Title VII and other employment laws. However, two exceptions limit the options available to the victims of discrimination and harassment in the Catholic church:

Religious Organization Exception

The Religious Organization Exception under Title VII allows religious organizations like the Catholic church to give preference to members of their own religion in hiring decisions. However, this exception does not excuse discrimination or harassment based on other protected traits like sex or gender. For example, a religious organization cannot refuse to hire women based on its religious beliefs around the role of women in ministry. Because of this limitation, it seems unlikely that the Catholic church could use the Religious Organization exception to excuse sexual harassment of seminarians and other employees within its ranks.

Ministerial Exception

The bigger hurdle for the victims of sexual harassment in the Catholic church comes from the Ministerial Exception. Courts have ruled that clergy members are not allowed to file claims under Title VII and other federal employment discrimination laws because doing so would put the government in charge of deciding who could or could not lead a religious organization. That, the courts say, interferes with the church’s First Amendment right to free exercise of religion.

However, the Ministerial Exception only applies to employees who are involved in religious functions within the church. While a priest may not be able to file a claim, the church secretary might. Also, some courts have chosen not to apply the exception when the case would not affect the church’s First Amendment rights.

The Catholic church is not immune to laws protecting employees from sexual harassment and abuse. However, the Ministerial Exception and other limits placed on the courts’ ability to regulate religion could make it harder for clergy to recover for sexual harassment in their religious work. At Eisenberg & Baum, LLP, our sexual harassment attorneys know what those limits are, and how to work with employers to get religious employees the relief they need. We will meet with you to review your situation and your options, so you can be free of harassment at work. Contact us today to schedule a free consultation.

Can You Be Fired for Objecting to Racially Offensive Material at Work?

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It can be hard to stand up to your employer in the face of racial discrimination. You may worry that filing a complaint with HR will make your work life harder, or even result in termination. But can you legally be fired for objecting to racially offensive material at work? What are your options if you are facing retaliation?

In this blog post, I will review a recent EEOC lawsuit against Lafayette Schools’ Federal Credit Union, now known as Meritus Credit Union, for retaliation. I will explain federal laws protect against employees being fired for objecting to racially offensive material at work. I will discuss options available to employees who want to push for change at the office without putting their jobs at risk.

Bank Manager Fired for Objecting to Racially Offensive Material at Work

Connie Fields-Meaux was the only African-American branch manager at Lafayette Schools’ Federal Credit Union (Lafayette), now known as Meritus Credit Union, in Lafayette, Louisiana. During a training at the credit union, Lafayette screened a video showing a caricature of an African-American fast food worker as an example of “how not to provide customer service”. It upset her so much she had to excuse herself from the training momentarily.

Later, in speaking with coworkers who also saw the video, she learned that other black employees were upset too. She decided to speak out. She reported the concerns of one of her coworkers, objecting to the racially discriminatory material. The very next day, she was fired without warning or explanation.

Retaliation is Illegal Racial Discrimination Under Federal Law

In many states across the country, at-will employment is the norm. Employers are able to fire employees at any time, with or without notice, for almost any reason. However, employers can’t use at-will employment as an excuse for racial discrimination or retaliation.

Title VII of the federal Civil Rights Act makes it illegal to fire someone for objecting to racially offensive material at work. The law, like every other federal anti-discrimination statute, protects employees from both the initial racial discrimination, and from retaliation when they make a complaint. According to the Equal Employment Opportunity Commission’s (EEOC’s) New Orleans Field Office Director, Keith Hill:

“Employers must respond to — and certainly not fire — employees who raise concerns about racially offensive materials.”

What Counts as a Protected Activity Under Anti-Discrimination Laws

Title VII says that when an employee raises a racial discrimination complaint — against the company, a supervisor, a coworker, or even a customer — the employer has a duty to take reasonable steps to investigate and respond to the complaint. That does not include retaliating against the complaining employee. “Protected activities” include:

  • Filing an internal complaint for racial discrimination
  • Filing an EEOC complaint
  • Filing a racial discrimination lawsuit
  • Serving as a witness to any complaint or lawsuit
  • Talking to a supervisor about racial discrimination or harassment
  • Participating in an in-house investigation of a complaint
  • Refusing to follow orders that would result in racial discrimination
  • Resisting racial harassment

Even if it turns out that the activity does not meet Title VII standards for racial discrimination, employees are still protected as long as they reasonably believe the activity is illegal racial discrimination under federal law.

Is Racially Offensive Material at Work Always Racial Discrimination

Since Title VII only protects employees responding to what they reasonably believe is racial discrimination, you may wonder if that covers all forms of racially offensive material. According to Title VII and the EEOC, race discrimination involves treating an employee (or applicant) worse because he or she is of a specific race or has characteristics associated with race (i.e. skin color, hair texture, facial features). Racial harassment, a form of discrimination, includes racial slurs, offensive remarks, and the use of offensive symbols. For racial harassment or discrimination to be illegal under federal law, it must either:

  • Involve an “adverse employment decision” (i.e. hiring, firing, shift assignment, promotions, or raises)
  • Be so frequent or severe it creates a hostile or offensive work environment

A single off-color joke, or piece of racially offensive material may not always rise to the level of a federal lawsuit. But when employees see a pattern emerging or face a particularly hostile form of harassment, it is probably discrimination.

It is also appropriate to object even to the first piece of racially offensive material at work. This establishes that the conduct is offensive to you and strengthens your case later if your employer fails to address your concerns.

How to Object to Racially Offensive Material at Work if You Fear Retaliation

If you are worried that objecting to racially offensive material at work could get you fired, there are some strategies you can use to protect yourself, and your job:

  • File an anonymous complaint (if company policy allows)
  • Raise your concerns with your union representative (if you have one)
  • Ask to meet privately with a manager or superior
  • Send your complaint in writing (and keep a copy)
  • Talk to an employment discrimination attorney who can help with informal negotiations

Getting an employment discrimination attorney involved early in the process can help protect you from retaliation and make sure you won’t be fired for objecting to racially offensive material. A lawyer doesn’t automatically mean a lawsuit. Sometimes, your employment attorney can help you negotiate changes at work without filing a formal complaint or going to court. Because your employer knows a lawyer is involved, it will be less likely to dismiss your problem out of hand or retaliate against you for making the complaint.

If you are facing harassment at work, or are afraid to be fired for objecting to racially offensive material, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

Sexual Harassment in Restaurants Could Change U.S. Corporate Culture

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Sexual harassment in restaurants has been seen as everything from out of control to just part of the job. But with one in three American workers learning the ropes in the restaurant industry, making changes there could have a ripple effect that changes American corporate culture for the better.

In this blog post, I will review evidence that sexual harassment in restaurants is a nationwide challenge. I will explain why some commentators believe taking young servers and hostesses seriously when sexual harassment happens could empower them to respond differently later in their careers and change the way employers across the country address sexual harassment complaints.

Sexual Harassment in Restaurants is a Rampant Problem

The restaurant industry has a problem with sexual harassment, from managers, coworkers, and from its customers. According to Restaurant Opportunities Centers United (ROC), an organization that advocates on behalf of servers and other tip-based employees, around 80% of women working in restaurants report experiencing harassment from their customers and coworkers. Two thirds say the sexual misconduct comes from management. The Equal Employment Opportunity Commission (EEOC) also reports twice as many sexual harassment complaints from restaurant workers as would be suggested by their employment numbers.

This would be troubling in any industry. But it is especially problematic because restaurants are often young workers’ point of entry into the workforce. One in three American workers learn how to be an employee in the service industry. Half of the U.S.’s workforce will be employed by a restaurant at some point in their lives. Saru Jayaraman, President of ROC told Rewire News:

“We’re not talking about a small sliver of the population that experiences this industry in their youth…
“These early experiences … normalize[] harassment, it forces women to accept harassment later in life.
“For the rest of our lives, women believe anything that is not what we experienced in the industry is better and therefore okay, acceptable, tolerable, even legal.”

Tipping Minimum Wage Forces Employees to Tolerate Harassment to Make Rent

ROC attributes much of the sexual harassment in restaurants to problems with the United States minimum wage law, specifically to the tipping minimum wage. The federal minimum wage is set by the Fair Labor Standards Act (FLSA) at $7.25. But if an employee receives more than $30 in tips per month, that person is considered a Tipped Employee and need only be paid $2.13 per hour. The government assumes tips will make up the difference.

But tipped workers say relying on gratuity to pay the rent makes it hard to stand up to sexual harassment at restaurants. Jenna Watanabe was a server in Utah earning $2.13 plus tips. She told Rewire News:

“’My income was totally reliant on the approval of strangers,’ she said Tuesday during a call with the media. That left her financial prospects in chaos. ‘I had a lot of fluctuations in my income. It was really challenging for me to pay rent and school tuition.’”

ROC says moving away from a separate tipping minimum wage will significantly decrease the rate of sexual harassment in restaurants. Seven states — Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington — have mandated that all workers be paid the same minimum wage, regardless of tips. New York is considering doing the same, and Michigan advocates are collecting signatures to put a minimum wage measure on the November ballot.

Increasing the minimum wage does more than provide financial security to tipped workers. It gives women the power to say something when a customer acts inappropriately, rather than tolerating it out of fear that they won’t be paid fairly.

Better Responses to Sexual Harassment in Restaurants Could Train a Generation

Part of the challenge facing women servers also comes from poor management responses to their complaints of sexual harassment. Statistically, younger women are more likely to be hired for front-of-the-house positions — like servers and host positions — while men are more likely to work in the kitchen and in restaurant management. When a woman complains of sexual harassment while working at a restaurant, it is often up to a man to decide whether to take the complaint seriously. Historically, the answer has often been to ignore the problem.

Marisa Licandro, for example, was the victim of an attempted rape by a coworker at an on-campus restaurant while she was in culinary school. She reports “it was made unimportant by the people I reported it to.” Her manager did not reassign her, and eventually she had to quit to get away from the harasser. She said:

“I didn’t take my own story seriously because of the years I spent in the industry witnessing these things happening and not seeing any conversation or solutions. . . . My years in the industry clouded my concept of what sexual harassment and assault are, and it left me unable to even understand my own experience.”

One Restaurant’s “Management Alert Color System” Empowers Servers to Fight Back

But even where legislatures and voters aren’t taking up the plight of tipped workers, restaurant owners can and have taken steps to fight back against sexual harassment in restaurants. When Erin Wade, a former labor attorney turned restaurateur, learned that harassment was a regular problem at her mac-and-cheese joint in Oakland California, she and her staff created the Management Alert Color System (MACS) to empower servers to stand up to sexual harassment before it had time to escalate.

MACS gives servers three threat levels to respond to sexual harassment concerns with customers:

  • Yellow if a customer gives a server an unsavory look or makes him or her uncomfortable
  • Orange if a customer makes verbal comments about a server’s appearance or uses sexual undertones
  • Red if a customer does an overtly sexual act, including physical contact or lewd language

Each category has an automatic response from managements. At yellow, a server can ask a manager to keep an eye on the situation or take over the table. Orange means the manager will take over automatically and may speak to the customer about the behavior. Red means the customer is asked to leave.

The system has been very successful, and many restaurant owners have contacted Wade about adopting similar policies. She says the system works because it is simple, keeps servers from having to relive the incident in reporting it, and means managers don’t have to make judgment calls.

If owners and managers adopt policies like MACS, bystander training, and other strategies to reduce sexual harassment in restaurants it will do more than protect present day servers — though that is important in its own right. By teaching young employees they have the right not to be harassed at work, restaurateurs can teach the next generation that sexual harassment at work is not okay, and that they have the power to fight back.

At Eisenberg & Baum, LLP, our sexual harassment attorneys understand the struggles of servers and others facing sexual harassment in restaurants. We will meet with you and review your options to get you back to a comfortable working environment. Contact us today to schedule a free consultation.

Scientists’ Sensors Show Gender Discrimination and Inequality at Work

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Women have fought for decades for equality at work, and in their paychecks. After all that time and effort, gender discrimination and inequality at work is a persistent problem in companies across the country. Some say that is because of the different choices men and women make in business. But a new scientific study shows that the problem is bias, not behavior.

In this blog post, I will review a recent scientific study using sociometric badges, which measured social interactions on the job. I will discuss how the results demonstrated gender discrimination and inequality at work was based on bias, rather than performance. I will discuss how women can use objective evidence to fight back against workplace discrimination.

Do Women and Men Behave Differently at Work?

Women employees face challenges of gender discrimination and inequality at work all the time. They are underrepresented at the management and executive levels. They are paid 80.5% of the wages of men nationwide. And they are often passed over for promotions within their unit or company.

Gender discrimination and inequality at work is illegal. Title VII of the Civil Rights Act and the Equal Pay Act prevent employers to make hiring, employment, and pay decisions based on a person’s sex or gender. The law protects women who are assigned worse shifts, “protected” from hazardous assignments (which often come with higher compensation), or are not promoted because their bosses believe them to be “less serious” about their work than their male counterparts. In addition, the Pregnancy Discrimination Act prevents employers from considering if a person is having, or could have children, as a basis for hiring decisions.

Despite all the laws protecting women (and men) from gender discrimination, unequal pay, and discrimination based on family status, women still face harassment and unequal decision making at work every day. Why this happens continues to be a question. A prevailing thought has been that the difference stems from the way men and women work and the choices they make about their careers — that women take more time off for family or are not as aggressive at negotiating salaries, for example. But until recently there was no objective scientific evidence to support or challenge this assumption.

Sociometric Study Objectively Shows Gender Discrimination and Inequality at Work

Stephen Turban, Laura Freeman, and Ben Waber recently published such a study in the Harvard Business Review, which sought to fill that gap. They said that previous work in the field had all been based on self-reporting by coworkers. That method is itself prone to bias, making it unreliable within the scientific community. Instead, Turban and his team used objective measurements to investigate whether differences in behavior drove gender inequality in the workplace.

The team used a large, multinational firm as a test case. Women were underrepresented at the firm, as they are in many large businesses, making up only 35-40% of entry-level workers and 20% of high-seniority employees. To determine if this was the result of behavior, the research team went on an information gathering mission. They collected email communication and meeting schedules from hundreds of the company’s employees. Then they gave 100 of those employees sociometric badges. These devices used sensors that measured movement, proximity to other badges, speech volume and tone, and location. They told the researchers who the employees talked to, where, and who was dominating the conversation. They then reviewed the data anonymously, measuring it by gender, position, and length of time at the office.

The team’s scientific hypothesis was that fewer women ended up in senior positions because they had fewer mentors, spent less time with managers, and didn’t proactively talk to senior leadership in the same way men did. They were wrong.

Instead, the study showed almost no differences in the behavior of men and women. The Harvard Business Review reported:

“Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.”

Gender Discrimination Isn’t a Matter of Women Not Playing in “the Boy’s Club”

Another theory for why women don’t advance the same way as men within a company is that they don’t have access to the informal networks within the company — “the boys club.” But the researchers found no differences in the genders’ direct interaction with management. Women were just as important as men to the social network at the office.

Workplace Inequality is Due to Bias, Not Behavior

At the end of the study, the researchers found that behavior simply could not explain women’s experience of gender discrimination and inequality at work. They reported:

“Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated.“

The data implies that women are treated differently because of how people perceive their actions, rather than their behavior itself. The bias women experience includes how their work is perceived at the office, and what is expected about their behavior at home. Women are perceived to be:

  • More likely to leave the workplace to raise a family
  • Do more of the housework
  • Be responsible for the family’s children
  • Be less committed at work.

What Women Can Do if They Face Gender Discrimination and Inequality at Work

Now that there is at least one scientific study providing objective measurement that gender bias, and not behavior, causes discrimination and inequality at work, women can use that study to support their push for a fairer work place. When women discover they have been passed over for a promotion or a raise, or are being paid less for substantially the same work, they can use objective data to support their complaints. Whether it is as simple as counting sales figures or meetings, or as complicated as a day-by-day journal of interactions with management, these objective measurements can be useful should your matter ever go to court.

At Eisenberg & Baum, LLP, our employment discrimination attorneys can use objective evidence like the kind gathered in the study to prove that you were the victim of gender discrimination and inequality at work. If you believe you are being treated differently or paid less than your coworkers because of your gender, we will help you review the facts and file a complaint with the EEOC, or in federal or state court. Contact our gender discrimination attorneys today to start fighting for an equal work place.

Sexual Harassment and Assault Allegations Cloud Kavanaugh Confirmation

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The name Brett Kavanaugh has been on every news person’s lips for nearly a month. In the midst of a heated Supreme Court confirmation process, Dr. Christine Blasey Ford came forward with allegations of sexual harassment and assault. She claimed Kavanaugh had tried to rape her when they were teenagers in the 1980s. Now the dust has settled and Kavanagh has been confirmed, leaving many wondering what do those allegations mean for the Court, and how will Kavanaugh rule when sexual harassment cases come before the Court?

In this blog post, I will review allegations of sexual harassment and sexual assault against Supreme Court Nominee Brett Kavanaugh. I will discuss how the Senate addressed these allegations. And I will review Kavanaugh’s position regarding sexual harassment and gender discrimination, as revealed in his previous federal court decisions.

Dr. Christine Blasey Ford Raises Sexual Harassment and Assault Claims Against Brett Kavanaugh

Shortly after Federal Circuit Court Judge Brett Kavanaugh was nominated to fill Justice Anthony Kennedy’s seat on the Supreme Court, Professor Christine Blasey Ford, a psychological researcher at Palo Alto University sent a letter to Senator Dianne Feinstein. In that confidential letter, she said Kavanaugh had sexually assaulted her at a house party in the early 1980s when they were both teenagers.

Dr. Ford’s account, which later became public, described Kavanaugh and his friend Mark Judge as “stumbling drunk” when they pushed her into an upstairs bedroom and turned up the music to cover her yelling. She reported that Judge watched as Kavanaugh pinned her to a bed, groped her, ground his body into her, and tried to pull off her clothes. She reported trying to scream, but he put his hand over her mouth. She said:

“I thought he might inadvertently kill me. . . . He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Judge jumped onto the bed where Kavanaugh held her, sending them tumbling to the floor. She fled to a bathroom and then left the house.

Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. Ramirez claimed he exposed himself to her while they were at Yale University. Swetnick said the sexual misconduct happened while they were at parties as teenagers.

Senate Judiciary Committee Holds Hearings on Sexual Harassment and Assault Allegations

Kavanaugh, “categorically and unequivocally denied” Ford’s allegations, saying he didn’t even attend the party. After considering the matter, and negotiating with Dr. Ford’s attorney, Senate Judiciary Committee Chairman Chuck Grassley scheduled hearings for both Dr. Ford and Kavanaugh on Thursday, September 27, 2018. In an unusual move, the Republican senators on the panel brought in Arizona prosecutor Rachel Mitchell to question Dr. Ford, though they mostly questioned Kavanaugh themselves.

Dr. Ford, who is a psychologist with a history of writing on the long-term impacts of trauma (including sexual assault), testified to her own memory of the events and the reasons that memory should be deemed credible. When Kavanaugh read his prepared remarks his presentation was emotional, and oftentimes highly politically charged.

Supreme Court Nominees and Sexual Harassment

This isn’t the first time a Supreme Court nominee has been accused of sexual harassment. In 1991, Anita Hill spoke out against the confirmation of Justice Clarence Thomas. Hill accused Thomas of sexual harassment while working as her superior at the Equal Employment Opportunity Commission. Hill faced invasive questioning about her allegations, her credibility, and what she had to gain by coming forward. Dr. Ford has faced many of those same questions, both from Senators and in the media.

The FBI Investigates Sexual Assault Claims

The Senate Judiciary Committee advanced Kavanaugh’s confirmation on September 28, 2018. But Republican Senator Jeff Flake, a member of the committee, said he would not vote to confirm Kavanaugh without an FBI investigation into all 3 sexual misconduct claims. The FBI completed a week-long investigation, including interviews with several named witnesses to the events. However, the White House directed that investigation to be “specific in scope” and some believe it was not enough to determine the truth of the women’s claims of sexual harassment and assault.

Justice Brett Kavanaugh Confirmed in Spite of Allegations

Ultimately, on Saturday, October 6, 2018, Brett Kavanaugh was confirmed to the Supreme Court by a narrow vote: 50 to 48. He was then sworn in by Chief Justice John G. Roberts Jr., and retired Justice Anthony M. Kennedy, whom he replaces. He heard his first cases Monday morning, October 9, 2018.

Kavanaugh’s Judicial History on Employment Law Issues

Now that his is on the bench, Kavanaugh’s history of alleged sexual assault may take a back seat to the power he has to affect the rights of women and employees going forward. As a federal judge, Kavanaugh has a history of writing opinions that favored the employer, narrowly interpreting worker protections and anti-discrimination laws.

In Miller v Clinton, Kavanaugh wrote another dissent saying mandatory retirement was not against the Age Discrimination in Employment Act when used against a safety inspector at a U.S. embassy overseas. He also dissented in Howard v Office of the Chief Administrative Officer of the U.S. House of Representatives. There he said the Constitution’s speech or debate clause prevented a government employee from suing for discrimination and retaliation because the case would have to disclose legislative activities. He wrote a similar opinion in Rattigan v Holder, a Title VII case.

However, Kavanaugh does seem to stand behind some private employees facing workplace discrimination. In Ayissi-Etoh v Fannie Mae, he wrote a concurrence (agreeing with the main opinion) saying that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.” In Ortiz-Diaz v. US Department of Housing and Urban Development, he also concurred saying denial of a requested job transfer should always qualify as an adverse employment action.

Together, these opinions seem to suggest that as a Supreme Court Justice Brett Kavanaugh’s opinions will largely depend on which employer is doing the discrimination. While employees of private companies may be able to count Kavanaugh an ally, he seems reluctant to allow federal workers to bring claims against their government employers.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to argue in front of judges and justices who tend to favor employers. When the figures on the bench change, we can help you review your legal options, so you know what to expect. If you are facing sexual harassment or gender discrimination, contact us today to schedule a free consultation.

* Photo thanks to Ninian Reid, used with permission with some rights reserved.

Distributing Nude Pictures of Coworkers is Sexual Harassment and a Crime in New York City

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Distributing nude pictures of coworkers may be one of the most humiliating things a person can do to a fellow employee. Yet, the media has made news out of celebrities’ nude images going viral. That has prompted angry ex-partners to engage in “revenge porn” that hurts coworkers pride, and their professional reputations. Now the New York City Counsel is stepping in to stop it. The City has declared distributing nude pictures of coworkers both sexual harassment and a crime, and it can expose employees and employers alike to lawsuits and steep civil fines.

In this blog post I will review the New York City ordinance prohibiting unlawful disclosure of an intimate image. I will explain when distributing nude pictures of coworkers is sexual harassment and could expose employees to civil lawsuits and criminal charges in New York City. And I will explain what the victims of so-called “revenge porn” should do to protect their rights and their privacy.

New York City Council Cracks Down on Sexual Harassment

2018 has been a big year for the New York City Council. Earlier this year the City passed one of the nation’s strictest anti-sexual harassment ordinances. The law put into place many reporting requirements and protections for employees facing sexual harassment at work. It was also the first law of its kind to require city agencies and private employers with at least 15 employees to hold annual anti-sexual harassment training for their staffs.

New Ordinance Makes Distributing Nude Pictures of Coworkers a Crime

At the same time, a law the New York City Council passed late last year has now fully come into effect. The law makes it illegal, and a crime, to distribute nude pictures of another person without his or her consent. Perhaps, the law was prompted in part by the recent trend of celebrity “revenge porn” incidents.

Section 10-177*3 of the NYC Administrative Code makes “unlawful disclosure of an intimate image” a crime. That includes traditional pornographic images of sex acts, but it also includes any image that shows another person’s “intimate body parts”. The law also protects against the threat of distribution as long as the victim could be identified either from the picture itself or the circumstances of the disclosure. A person who engages in distributing nude pictures of coworkers — or anyone else — without consent may be charged with a criminal misdemeanor and face up to one year in jail.

Distributing Nude Pictures of Coworkers Can be Devastating Sexual Harassment

There are few forms of sexual harassment more severe than distributing nude pictures of coworkers. When explicit images of a person make their way around an online office chat system or email server, or get put up on the factory floor, it can immediately decimate the victim’s professional reputation. Particularly when such images target a woman, it forces even well-meaning employees to think about their coworker not for her abilities, but for her body.

This kind of demeaning sexual harassment can cause immense emotional harm, even to the point of resulting in physical illness. It can force a person to leave gainful employment to be rid of the hostile work environment caused by the exposure of his or her intimate images.

City Law Gives Victims of “Revenge Porn” the Power to Sue Coworkers and Employers

To combat the harmful effect of distributing nude pictures of coworkers, the New York City Council built a powerful civil cause of action into the new law in addition to the criminal charges. It says that the victim of non-consensual distribution of nude pictures can sue the person violating the statute and the company that allowed it to happen to recover damages for:

  • Compensation of actual costs associated with the disclosure, including medical or psychological bills, or costs associated with finding replacement employment
  • Punitive damages designed to punish the defendant
  • Injunctive and declaratory relief intended to change company policy and prevent future distribution of nude pictures or other forms of sexual harassment
  • Attorneys’ fees and costs
  • Any other relief the court deems appropriate

This civil cause of action gives New York judges and sexual harassment attorneys the flexibility to craft legal remedies that will address the harm caused by distributing nude pictures of coworkers. Since every workplace and every employee is different, what will make one person whole may not address the needs of someone else.

Similar statutes have been considered by state legislatures and city councils across the country. Employees outside of New York City may have access protections as well. Even where there is no explicit statute against distributing nude pictures of coworkers, the behavior could be the basis of a sexual harassment complaint filed with the Equal Employment Opportunity Commission (EEOC) or in federal or state court.

The harm caused by distributing nude pictures of coworkers cannot be overstated. An experienced sexual harassment attorney can help you understand what local protections are available and choose a strategy to receive compensation for your loss. At Eisenberg & Baum, LLP, we know how to fight back against this form of severe sexual harassment. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.