International Gender Pay Gap Revealed by British Reporting Requirements

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Finding out you are not receiving equal pay can be tough. Some businesses even make rules against employees discussing their income. Now some employees may have a little easier a time investigating their wages, since new British reporting requirements have gone into effect. And the reports show an international gender pay gap across industries, and companies.

In this blog post, I will review a new British law requiring public companies to publish gender pay gap data. I will talk about how different global companies are responding to the law and how they are seeking to close the international gender pay gap. I will also discuss how a U.S. employee of an international company can use this information in an Equal Pay Act complaint.

British Reporting Requirements Reveal Gender Pay Gaps at Large Companies

It isn’t a surprise that British businesses and international companies pay men more than women. This has been a statistical truth for years. But a new British reporting requirement means companies operating in Britain with 250 employees or more must publish salary differences between men and women each year. They must also publish differences in bonuses paid to men and women, and the proportion of men and women who receive those bonuses.

The purpose of the new reporting requirements is to create transparency about domestic and international gender pay gap issues, and to shame companies into moving toward equal pay. Andrew Bazeley, a policy manager at the British women’s rights organization the Fawcett Society, told the New York Times:

“This is a game-changer. . . . It will force businesses to think about the gender pay gap in ways they might not have before.”

Why Women Face an International Gender Pay Gap

There are many factors that contribute to the international gender pay gap. At most companies, men hold the majority of high-level positions. Women are more likely than men to have employment breaks as they raise children. They are also more likely to accept flexible or part-time work (often for less pay) to balance the demands of work and family, and less likely to negotiate for raises or a higher starting pay.

There are also societal pressures that push women and girls away from careers in science or technology, as well as jobs in sales and physical labor. Myfanwy Edwards, a programmer and engineer at the Japanese technology company Fujitsu spends time at universities, trying to recruit more women into the pipeline for high-paying jobs. Still, in 2017, only 16 percent of Britain’s STEM graduates were women (science, technology, engineering, and math).

But at least part of the international gender pay gap is the result of discrimination. Women are paid less than their male counterparts for similar work, they are passed over for promotion, and are not hired for typically male positions even when they are qualified.

Equal Pay in the U.S.A.

Here in the U.S.A., state and federal laws prohibit gender discrimination at work, and in employees’ pay checks. Title VII of the civil rights act prevents gender discrimination in hiring decisions including hiring, firing, promotions, and assignments. The Equal Pay Act prevents employers from paying men more than women for the same work.

But learning about the gender pay gap in the U.S. isn’t always easy. In 2016, the Equal Employment Opportunity Commission and the Department of Labor had announced something similar to the British reporting requirements. The agencies had imposed regulations that would require employers with at least 100 workers to report aggregated, anonymous information about employee pay based on sex, race, and ethnicity. But before the regulations could take effect, in August 2017, the Trump administration cancelled the regulations, saying they would be too burdensome on employers.

For the employees of international companies operating in Britain, Iceland, Germany, or other countries requiring publication of gender pay gaps, the regulations provide a first step to proving gender and wage discrimination. The aggregated statistics required under the regulation won’t be enough to show violations of Title VII or the Equal Pay Act on their own. But they do provide employees, and agencies like the EEOC a place to start to investigate gender discrimination at work, and in pay.

At Eisenberg & Baum, LLP, our employment discrimination attorneys can use statistics and other evidence to prove that a company’s international gender pay gap has resulted in Equal Pay Act violations here at home. If you believe you are being 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 equal pay.

What Does a Reasonable Response to Discrimination Complaints Look Like?

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If you have filed a discrimination complaint at work, it can sometimes feel like your employer is ignoring you, or isn’t taking you seriously. And it might be true. How can you know if your employer is doing enough to prevent discrimination or sexual harassment at work? What does a reasonable response to discrimination complaints look like?

In this blog post I will discuss an employer’s responsibility to investigate and correct discrimination or harassment at work. I will explain what an employee should do to bring a hostile work environment to his or her employer’s attention, and what the employer’s reasonable response to discrimination complaints might look like.

Your Employer Has a Duty to Reasonably Respond to Discrimination Complaints

Title VII of the Civil Rights Act says that discrimination and harassment are illegal if they are based on:

  • Race
  • Color
  • Religion
  • Sex (or gender)
  • National origin

Other federal laws prohibit discrimination based on age, pregnancy, genetic information, and other “protected traits”.

But just because something is illegal doesn’t mean it doesn’t happen. An employer can be held directly responsible for discriminatory employment decisions — like hiring, firing, pay, promotions, or shift assignments — and some conduct of managers or supervisors. However, when discrimination complaints are based on a “hostile work environment” created by coworkers or customers, it is up to the employee to show that the employer failed to reasonably respond to discrimination complaints.

What Employees Should Do to Register Discrimination Complaints

To start with, before an employer has a duty to respond, it must know the discriminatory behavior is happening. An employer can be assumed to know about hiring and firing decisions. But especially in larger companies, your HR department may not know about what happens in the office or on the factory floor. When that includes discrimination, employees should:

  • Verbally object to the behavior on the spot.
  • Document what happened, who did it, who saw it, and how it made you feel. Don’t keep the record on your work computer.
  • Follow your office’s complaint procedure if it has one.
  • Talk to your union representative if you have one and follow the union’s grievance process.
  • If there is no formal procedure, send a written, dated discrimination complaint to your supervisor (or his or her supervisor if he or she is involved). Keep a copy for yourself.

In many cases, if you don’t follow your company’s complaints procedure, it can affect your employer’s responsibility to reasonably respond to discrimination complaints. If you have questions about what you need to do to register your issue, bring your employee manual to talk to an employment discrimination attorney soon after the incident so you don’t miss any deadlines.

What an Employer’s Reasonable Response to Discrimination Complaints Looks Like

A reasonable response to discrimination complaints depends on the nature of those complaints, the size of the company, what happened, and who is involved. No matter how big or small the company, during the investigation, you should expect:

  • Prompt, thorough, and impartial investigation by someone other than those involved in the complaint
  • Confidential interviews with the employee complaining, the harasser, and any witnesses
  • Investigation of the complainant and harasser’s work history for previous incidents
  • Limited disclosure of information in the complaint to avoid retaliation
  • Separating the complaining employee and the harasser while the investigation is ongoing, if possible

A reasonable investigation of a discrimination complaint does take time. It could take days or even weeks for your employer to interview everyone and decide the appropriate response. Some forms of discipline may also be invisible to the complainant. However, if you haven’t heard anything after a few weeks, it is perfectly appropriate to follow up with your employer.

If your employer’s investigation does reveal that discrimination or harassment occurred, it is legally required to take immediate measures to stop the harassment and make sure it doesn’t happen again. What that response looks like will depend on what happened, and how serious the offense. A reasonable response to discrimination complaints could include:

  • Adopting anti-harassment policies
  • Imposing mandatory anti-discrimination training on supervisors or all employees
  • Removing graffiti, posters, photos, or other offensive imagery or statements
  • Correcting negative reviews, absences, or other marks against the victim of harassment or discrimination
  • Adjust shifts or assignments to separate harasser and victim in a way that does not punish the victim
  • Suspend or fire the harasser

If your employer’s response to your discrimination complaint isn’t reasonable, you may be able to file a complaint with the Equal Employment Opportunity Commission or in federal court. But deciding if the response was reasonable isn’t always easy. You may not have all the information, or your employer may not want to tell you how it reached its decision.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know what a reasonable response to discrimination complaints looks like. 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.

U.S. Supreme Court Okays Mandatory Employment Arbitration

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The U.S. Supreme Court has issued an opinion that could affect employee rights nationwide. The decision in Epic Systems Corp v Lewis allows employers to use mandatory employment arbitration clauses in their contracts, cutting employees off from class actions and other public legal proceedings. Even while publicity around sexual harassment and the #MeToo movement are showing the importance of transparency in the litigation process, this Supreme Court decision allows employers to prioritize privacy over their workers’ rights.

In this blog post I will discuss the recent United States Supreme Court decision, Epic Systems Corp v Lewis (Epic Systems). I will explain how mandatory employment arbitration works, and what the court’s decision means to employees hoping to join together to end employment discrimination or other workplace abuses.

Employees Use Class Actions to Address Problems at Work

Epic Systems was the result employees at three separate companies coming together to address problems at work, and in their paychecks. The lawsuits, which were consolidated for consideration by the Supreme Court, included Ernst & Loung LLP v Morris, where a junior accountant said his employer had violated the Fair Labor Standards Act by not paying for overtime to him, and a class of employees under similar circumstances. But Mr. Morris’s employment contract, and the contracts in the other consolidated cases, included a mandatory employment arbitration provision. It said that any employment disputes, including disagreements about overtime pay, had to be taken to independent, private arbitration, rather than federal court.

The U.S. Supreme Court was asked to determine if the employers were legally allowed to use mandatory employment arbitration to avoid public litigation by classes of employees. Because these contracts required each dispute to be resolved separately, they had the effect of cutting off employees from the ability to sign on to class action lawsuits to protect their rights at work.

U.S. Supreme Court Says Arbitration Act Okays Mandatory Employment Arbitration

The legal question pit two federal statutes against one another. The Arbitration Act requires courts to enforce agreements to use arbitration in place of traditional legal processes to resolve disputes. The Fair Labor Standards Act (FLSA) prohibits employers from interfering with workers’ efforts to engage in “concerted activities” to protect their rights at work. Traditionally, the FLSA protects workers’ right to unionize, negotiate contracts, and come together to address problems at work. The National Labor Relations Board under the Obama Administration had said this necessarily included workers’ right to use class action lawsuits to enforce wage and hour laws and other employment problems.

But the Supreme Court disagreed. In a split decision, 5 of the 9 justices ruled that the federal Arbitration Act overruled the FSLA when it came to mandatory employment arbitration. The Court said “concerted activities” was only intended to include traditional labor union activities. The Court would not extend those protections to include class action or other joint efforts to correct problems at work. If employers and employees agreed to mandatory employment arbitration in their contracts, the Court said judges were required to enforce those agreements.

Justice Ginsberg Dissents to Protect Workers’ Rights

Justice Ruth Bader Ginsberg and the Court’s three other more liberal justices joined in a powerful dissent that Justice Ginsberg read from the bench — a sign of how important she felt the issue was. She called the majority’s decision an “egregious wrong” that will cause “huge under-enforcement” of employment laws. Justice Ginsberg wrote that mandatory employment arbitration agreements have skyrocketed from only 2% of non-union contracts in 1992 to 54% today. That means 23% of non-union employees have entered contracts that give up their right to class action protections.

In reviewing the opinion, Brian T. Fitzpatrick, a law professor at Vanderbilt University, told the New York Times:

“[Justice Gorsuch] appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements. … [I]t is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.”

Class Action Lawsuits Protect Against Workplace Abuses, Including Sexual Harassment

The Epic Systems decision has the potential to affect far more than disputes about overtime pay. The Equal Employment Opportunity Commission (EEOC) and private employment discrimination attorneys often use class actions to address violations of Title VII of the Civil Rights Act and the Equal Pay Act. By bringing all of an employer’s similarly situated workers together in a single lawsuit, employment lawyers can build stronger cases for hostile work environments in sexual harassment cases, or show that women are paid less simply for being women. As Justice Ginsberg explained,

“By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation.”

However, now that the U.S. Supreme Court has approved mandatory employment arbitration, employers may be able to use their workers’ contracts to force issues of sexual harassment, discrimination, and unfair wages into private arbitration and away from EEOC or class action enforcement. Employers, in turn, may run the risk of small-scale violations of federal employment laws, knowing that their employees have contracted away their ability to come together to stop them.

The Epic Systems decision could have long-lasting effects on employee rights, and their ability to enforce those rights in court. Now that the U.S. Supreme Court has approved the use of mandatory employment arbitration agreements, more workers are going to find their employment complaints addressed behind closed doors, rather than open court.

At Eisenberg & Baum, LLP, we have employment discrimination attorneys who know how to fight for workers’ rights in the courthouse, and in private arbitration. We will meet with you to review your employment contract and develop a strategy to protect your rights. Contact us today to schedule a free consultation.

Do Civil Rights Laws Protect Against Genderqueer Discrimination at Work?

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For generations, gender in the workplace has been black and white, male and female. But as the cultural understanding of gender have grown more technicolor, the laws protecting against gender discrimination and sexual harassment haven’t always kept up. For trans* workers, intersex, and those identifying as gender non-binary or non-conforming, the question may be whether existing civil rights laws protect against genderqueer discrimination at work at all.

In this blog post, I will explore how gender discrimination laws apply to people of varying gender identities, including those identifying as non-binary or genderqueer. I will discuss how New York City’s Human Rights Law differs from the federal Civil Rights Act, and what employers can do to protect their genderqueer employees from harassment or unfair treatment at work.

Keeping Up With Evolving Gender Terminology

For those outside the LGBTQIA community, it can seem that there are new categories every day. It can be difficult to know how to refer to gender non-conforming employees. Here is a baseline to help inform the conversation:

  • Sex: A combination of biological, anatomical, or chromosomal characteristics that are used to assign gender. Most children are designated male or female at birth based on their apparent physical anatomy.
  • Gender: A person’s actual or perceived sex, generally determined through appearance, dress, self-image, identity, or behavior. This may or may not coincide with the sex assigned at birth.
  • Cisgender: A person who self-identifies with the gender and biological sex assigned at birth.
  • Transgender: A person who self-identifies with a gender or expresses a gender other than that assigned at birth. This term can sometimes be used as a broad category that includes a variety of genderqueer identities and expressions.
  • Transsexual: A medical term indicating that a person’s physical anatomy has been altered to correlate with that person’s self-identified gender. This is sometimes referred to as MTF (male to female) or FTM (female to male).
  • Intersex: A medical term indicating that a person’s anatomical or chromosomal markers are not unambiguously male or female.
  • Gender Identity: A person’s deeply held sense of gender, whether maleness, femaleness, somewhere in between, or something else not on the spectrum. This is distinct from sexual orientation.
  • Gender Expression: The outward facing demonstration of a person’s gender including, for example, name, pronouns, clothing, hairstyle, makeup, behavior, vocalizations, or body characteristics. This may or may not conform to societal gender stereotypes or the person’s sex.
  • Sexual Orientation: A person’s attraction to others of one or more sex or gender for romantic or intimate purposes.
  • Gender Non-Conforming: An identity or expression that differs from traditional gender-based stereotypes. A person identifying as gender non-conforming may or may not also identify as transgender.
  • Gender Non-Binary: An identity or expression that identifies outside the spectrum of maleness and femaleness. This may include aspects of multiple genders.
  • Genderqueer or Trans*: References to the broad category of transgender and gender non-conforming individuals while respecting the differences within the category.

No list can be exhaustive. If someone uses a term that is unfamiliar, the best thing to do is to ask them, politely, what it means to them. The same is true for personal pronouns. While many Trans* individuals use he/him/his or she/her/hers, others prefer non-gendered pronouns such as they/they/theirs or ze/hir. A person’s preferred pronouns may or may not be readily determined by their gender expression, so it’s better, and more respectful, to ask.

Genderqueer Discrimination and the Federal Civil Rights Act

Title VII of the federal Civil Rights Act protects against gender discrimination and sexual harassment at work. It does not explicitly protect against discrimination based on gender expression or genderqueer identity. However, the Supreme Court, and a variety of federal circuit courts across the country, have held that discriminating against a person because they do not conform with someone else’s expectations of gender is illegal. Workplace harassment based on a person’s deviation from a cultural gender norm is also illegal. Most of the cases on these issues included transgender individuals. However, the same arguments apply to genderqueer discrimination in the workplace.

New York City Sets the Standard Against Genderqueer Discrimination

The federal government may have left it to the courts to protect genderqueer workers, but some state and local governments have pushed ahead with laws of their own. New York City, in particular, has passed the Transgender Rights Bill which expanded gender-based protections of the local Human Rights Law (NYCHRL) to include the Trans* community. The law prohibits discrimination in employment, public accommodation, and housing on the basis of a broad definition of gender:

“[Gender is defined as a person’s] actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

The NYC government website explicitly states this includes intersex individuals. Gender discrimination under the NYCHRL occurs whenever a person is treated “less well than others” because of their broadly described gender. This means that, in New York City, genderqueer discrimination is illegal when it comes to hiring, firing, promotion, shift assignments, benefits, or any other employment discrimination. If an employer is aware of genderqueer harassment, it must take reasonable steps to protect its Trans* employees, which may include firing the harasser. For example, the NYCHRL makes it illegal genderqueer discrimination to refuse to use a person’s preferred name or pronouns.

Employer Best Practices to Avoid Gender Stereotyping and Bias Discrimination

It can be difficult for employers to keep up with the evolving standards around gender discrimination. Even though the federal law does not explicitly require companies to shield their employees from discrimination based on gender expression or identity, choosing to skirt the line can result in complaints to the Equal Employment Opportunity Commission (EEOC), lawsuits, and the loss of talent to more progressive competitors.

Employers are well advised to use the New York City standard as best practices to avoid gender stereotyping and bias discrimination in the workplace. Gender inclusive policies should include:

  • Allowing employees to designate their preferred name, pronoun, and title at the time of hire, and to change these at any time
  • Enforcing the use of designated names, pronouns, and titles except when legally required to do otherwise, regardless of legal name change
  • Allowing access to facilities (including bathrooms) and programs regardless of conformation to sex stereotypes
  • Removing gender-specific dress codes or uniforms
  • Applying uniform grooming standards regardless of sex or gender
  • Writing employee benefits in gender-neutral ways
  • Considering requests for accommodations regardless of gender (such as FMLA or parental leave)
  • Avoiding requesting medical documentation for gender-nonconforming or transgender employees to receive benefits or accommodations associated with gender or sex
  • Adopting strong anti-harassment policies that prevent violence, threats, slurs, or exclusionary behavior

The best way for employers to respect their genderqueer employees is to listen to them. By creating a confidential reporting system, employers can tap into their workers’ understanding of genderqueer life and protect them from unintended genderqueer discrimination.

At Eisenberg & Baum, we understand that gender discrimination does not always fit into convenient buckets. For members of the Trans* community, protections against genderqueer discrimination can hard to explain, and even harder to enforce. From our office in New York City, our employment discrimination attorneys travel nationwide, helping gender-nonconforming workers negotiate with employers who simply do not understand. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer 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 genderqueer discrimination.

Can a Separation Agreement Block an Employee​’s Discrimination Complaint?

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When employment discrimination comes to a head, it may be best for everyone if employer and employee part ways. But do you need to give up your legal civil rights claims to escape a hostile work environment? Can a separation agreement block an employee’s discrimination complaint?

In this blog post, I will review a settlement between The Coleman Company, Inc. and the EEOC in connection with the company’s separation agreements with former employees. I will review how Title VII and the Americans with Disabilities Act (ADA) address waivers of claim, and whether a separation agreement can be used to cut employees off from filing discrimination complaints after they have been fired.

Federal Laws Protect Against Employment Discrimination

There are a variety of state and federal laws that protect workers against employment discrimination on the job. Title VII applies to workplace discrimination based on race, religion, gender, and other protected traits. The Americans with Disabilities Act ensures that employees are not punished for their physical and mental disabilities.

These employment discrimination laws make it illegal to fire an employee, or force them to quit or retire, because of a protected trait. It is also illegal to retaliate by firing a person after he or she files an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC) or federal court. Less severe forms of discrimination are also covered by the statutes including shift assignments, compensation, and promotion decisions.

Severance Agreements and Waivers of Claim

Severance agreements are a regular part of modern employment law and human resource policies. These contracts are signed by the employee and a representative of the employer at the time of separation and control everything from intellectual property ownership to civil lawsuits. Many severance agreements include “release of claim” or “waiver of liability” provisions. They say that in exchange for financial payouts (sometimes described as so many “months of severance”) the former employee agrees to forgive any wrongdoing by the employer. But can these releases cut an employee off from filing employment discrimination claims to protect their civil rights?

EEOC Says Separation Agreement Violated Americans with Disabilities Act

The EEOC says no. In a recent press release, EEOC Phoenix Regional Attorney Mary Jo O’Neill said:

“Increasingly, we are seeing employers, whether intentionally or not, including overbroad language in their separation agreements that interferes with signatories’ rights to participate in EEOC processes or that impedes the EEOC’s ability to enforce federal anti-discrimination laws as it deems necessary.”

The agency and federal courts have generally said that contract provisions that cut off employees’ access to civil rights protections are illegal and void because they are against public policy. In other words, the courts won’t let companies get around following civil rights laws just by paying former employees not to file legitimate complaints. This means, even if the language of an employee’s severance agreement suggests she gave up civil rights claims against the company, she will still be allowed to file a discrimination complaint.

EEOC & Coleman Company Settlement Corrects Severance Agreement Overreach

When an employee filed a complaint against The Coleman Company, Inc., with the EEOC, this issue of severance agreements became the center of the case. The basis for the complaint was a violation of the Americans with Disabilities Act and Title VII. However, the voluntary conciliation agreement announced in February 2018 centered on the employee’s severance agreement and the employee’s right to file charges and cooperate with an EEOC investigation of those charges.

The EEOC said the severance agreement itself violated the civil rights laws by blocking an employee’s access to civil rights remedies. It interfered with their ability to file charges with the EEOC or accept relief obtained by the agency. Even if no other actual employment discrimination happened, the EEOC says the contract violated Title VII and the ADA by making employees believe they don’t have the right to file claims after they sign it.

After informal negotiations, Coleman agreed to hire an outside equal employment opportunity consultant to review its separation agreements, and to revise its current and past employees’ contracts to protect their ability to file EEOC charges. The company will also notify anyone who signed a separation agreement with the company between 2013 and 2015 that they may file employment discrimination charges and the company would not raise time-based defenses to the claims. O’Neill said:

“We applaud the Coleman Company for proactively tackling this issue once it was brought to its attention. . . . We hope other employers learn from Coleman’s model behavior and pay closer attention to their separation agreements. No matter what the intent, whether intentionally misleading or inadvertent, employers cannot insist on agreement provisions that are void against public policy.”

A severance agreement is not legally allowed to block employees’ employment discrimination claims. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to defend your civil rights claims, even in the face of an overly broad severance agreement. Contact us today to schedule a free consultation.