Why You Want a Consent Judgment in Your Employment Discrimination Case

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When you hear about a big employment discrimination case settling in the news it is often through a “consent judgment”. Find out what that means, what it does for employers and employees, and why you might want a consent judgment in your employment discrimination case.

In this blog post I will explain what a “consent judgment” is within the context of employment discrimination. I will describe the kind of relief that can be included in a consent judgment and how the ongoing nature of these agreements hold employers accountable even after you have gotten your financial relief and moved on.

Consent Judgments Signal the End of Employment Discrimination Cases

Life at work has become unbearable. Maybe you have been the target of sexual harassment, maybe you’ve been passed over for promotion because of your gender or gender identity, maybe your workspace has become filled with racial slurs or religiously offensive jokes. Maybe you have even been fired for objecting to discrimination at work.

Whatever the reason, you have found yourself facing employment discrimination and have turned to a lawyer for help. You’ve worked with your employment discrimination attorney to gather all your evidence and prepare your case. You’ve filed a complaint and begun the long, time consuming process of negotiating, when suddenly, finally, you have a deal. Your lawyer contacts you to ask you to come and review the consent judgment, and that means your employment discrimination case is as an end.

What is a Consent Judgment?

A consent judgment is a court order signed by the judge and the parties (or their attorneys) that resolves a lawsuit. They are used in everything from collections cases to divorces to employment discrimination cases. Ultimately, they mean that everyone involved in the case (including the judge) thinks that the terms contained in the order are an acceptable (if not ideal) way to resolve the case.

In an employment discrimination case, a consent judgment is a powerful thing. It can include many different kinds of relief, including:

  • Money awards to the employee for lost wages and other harm done by the employer’s behavior
  • “Declarative” judgments specifically saying that the employer’s behavior was wrong
  • “Injunctive” relief changing the way the employer behaves in the future

Each of those categories can include a variety of different relief, depending on what happened, and what needs to change.

How is a Consent Judgment Different from a Settlement Agreement?

If you file a complaint with the Equal Employment Opportunity Commission, or if your employment discrimination case goes to facilitated mediation, you may be asked to sign a different document called a settlement agreement. At their core, settlement agreements and consent judgments do the same thing: they resolve a civil lawsuit and state the terms that everyone will agree to.

There are reasons why an employee may prefer a private settlement agreement to a formal consent judgment entered by the court, such as privacy, ongoing relationships within the company, and the speed of resolution. But in other cases, a consent judgment is good for employees facing employment discrimination.

Why is a Consent Judgment Good for Employees Facing Employment Discrimination?

In an employment discrimination case, a consent judgment is often seen as the stronger cousin to the settlement agreement. This is because, unlike settlement agreements, consent judgments:

  • Are formal court orders
  • Can be enforced through the court system
  • Can give employees collections options to collect money if an employer fails to pay
  • Often include public statements of fault or wrongdoing
  • Can include on-going, independent monitoring to be certain the employer keeps its promises

Sometimes, improving the conditions at your workplace is more important than the money you receive in a settlement. You may know of other employees who face similar treatment but who can’t speak up for themselves. Maybe you want to prevent others from having to face the same situations you did. Settlement in an employment discrimination case could include promises by the employer to:

  • Adopt new anti-discrimination policies
  • Create confidential reporting procedures
  • Train employees, managers, and supervisors about discrimination at work
  • Respond appropriately when complaints arise

When these terms are included in settlement agreements, they can sometimes be difficult to enforce, especially when those agreements also contain non-disclosure or confidentiality clauses. The ongoing monitoring included in many consent judgments gives employees who settle employment discrimination cases the confidence to know that someone is watching to make certain the employer makes the changes it promised. And the public nature of a consent judgment means the employer’s reputation depends on them keeping their word.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys know how to make consent judgments work to our clients’ advantage. If you have faced an employment discrimination at work and are considering a settlement, we can help you review the language, so you know what you are getting, and how that agreement can be enforced. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Sexual Harassment and Sexual Assault: Lawsuit, Crime, or Both?

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The words sexual harassment can mean a lot of things. Some are verbal, or make a person uncomfortable. But others cross the line into sexual assault. When physical sexual harassment occurs, it can raise the question of whether you should file a lawsuit, report it as a crime, or something else.

In this blog post I will discuss how state and federal sexual harassment employment laws interact with criminal laws against sexual assault. I will explain how a criminal case may affect your lawsuit for sexual harassment, and how you, the plaintiff (or victim in criminal court) can end up stuck in the middle.

Sexual Harassment and Sexual Assault Have Different Standards

Just because something is Illegal doesn’t automatically mean it is a crime. Laws can sometimes regulate behavior of individuals, companies, or even industries by allowing a government agency or individuals to file a lawsuit. The penalty for violating these laws is the money paid to the people hurt when the laws are violated.

That’s the case with Title VII of the Civil Rights Act. This law makes it illegal for your employer to allow sexual harassment in the workplace. That includes any unwanted conduct, including both physical contact or inappropriate comments and jokes, that either:

  • Are a condition of employment
  • Are severe or happen often enough to create a hostile work environment

Under Title VII, sexual harassment includes anything that a reasonable person would find sexually offensive.

State sexual assault crimes usually aren’t that broad. In New York, for example, the crimes of sexual abuse, rape, and forcible touching all require physical sexual contact, though that is not limited to intercourse. Sexually predatory language, even repeated requests for sexual contact, don’t qualify. New York also has laws against stalking; however these laws again center on a threat to physical or mental health, or employment. That means that sometimes sexual misconduct will qualify as sexual harassment at work without being a crime.

Where to Go First When Sexual Harassment and Sexual Assault Overlap

The victims of work-related sexual assault can often feel pulled in different directions. It can be hard to know where to go first: the police or your supervisor.

When there has been a physical sexual assault, you should almost always go to the police first. Most police departments have special tools (such as “rape kits”) and techniques to gather evidence of what happened in a compassionate and dignified way. Some of these techniques are time-sensitive. If you wait to report sexual assault, it may be less likely that the abuser will face criminal charges.

Once you have worked with the police to file a report and make a statement, you can use those documents to file a complaint with your supervisor or HR department. Ask the police for copies of the report and your statement, as well as the contact information for any officer you worked with. Keep copies for yourself and provide copies to your employer for use in its investigation. If your employer fails to take appropriate steps to stop sexual harassment and sexual assault in its workplace, you can also use these documents (including your internal complaint) in filing a claim with the Equal Employment Opportunity Commission, or in federal court.

How a Criminal Investigation Can Affect Your Sexual Harassment Claim, and Vice Versa

When sexual harassment and sexual assault investigations happen at the same time, it can sometimes complicate both. There are differences between workplace and criminal investigation processes, and the accused’s rights in both cases that can sometimes be contradictory.

In some cases, employers will take a “wait-and-see” approach. They will delay investigating sexual harassment claims that raise criminal issues, letting police take the lead on interviews and evidence gathering. If the police find enough to file charges, the HR department can use those charges as a basis for discipline at work.

However, even when employers decide to let police do the work, they still have a duty to protect you from any continued sexual harassment that might happen in the meantime. That could mean separating you and your harasser, assigning you to different departments, shifts, or locations, removing him or her from his or her supervisory role, or even issuing a temporary suspension.

If your employer does decide to continue the investigation alongside the police, things can get more complicated. Employers can require a person accused of sexual harassment to cooperate with the company’s internal investigation on the threat of termination. Employees do not generally have the right to have an attorney present during these investigations (unless a collective bargaining agreement says otherwise). But if an accused employee admits to misconduct, those admissions can be used by police and prosecutors in the criminal context. Because of this, if the accused harasser has already hired a lawyer, that lawyer may advise them not to cooperate with the workplace investigation.

When workplace sexual harassment takes the form of criminal sexual assault, it can create a knot of procedural questions as police, HR personnel and others sort out their respective roles in the investigation. And that can leave the victims of these most severe forms of sexual harassment feeling alone or left behind.

But you don’t have to be. At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how to navigate the intersection of sexual harassment and sexual assault. We will help you throughout the process, and ensure that your rights are protected at work and in court. Contact us to schedule a consultation.

Women Economists Call for Accounting on Gender Discrimination, Sexual Harassment

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Economics and finance have long been male-dominated industries. Last year a #MeToo complaint brought to light a climate of gender discrimination and sexual harassment. Now women economists are speaking out, even disrupting the American Economic Association’s annual meeting, calling for an accounting of past behavior, and change for the future.

In this blog post I will discuss how women economists and finance experts are speaking out about sexual harassment and gender discrimination in their industry. I will explain how industry-wide gender bias can affect hiring decisions, and will explain what women economists can do to change the culture of their industry.

American Economics Association Turns its Attention to Gender Discrimination and Sexual Harassment

Every January, economists from across the country gather at the American Economics Association Annual Meeting. It’s the biggest event of the year, featuring professors, economists, and finance professionals from across the industry. This year’s topic of conversation was gender discrimination and sexual harassment within the industry. Incoming president Janet L. Yellen, the first chairwoman of the Fed and an expert within her field, called diversity “the highest priority” for the industry.

Gender Discrimination is Widespread in Economics and Finance

Gender discrimination and sexual harassment happen in every industry. But some fields have a stronger history of exclusion and misconduct than others. Economics is one of those fields. Women economists make up only about a third of all economics doctoral candidates — a number that hasn’t changed since 2000. At senior levels within economics, the gender gap is even wider. Racial and ethnic minorities also have a hard time breaking into the field. Within the economics industry as a whole, the women in finance are particularly hard-hit. Barely 10% of tenured finance professors are women.

Economics is a unique industry to deal with these problems because women economists are specifically trained to be able to study and measure systemic, industry-wide problems. Over the years, women economists have performed studies showing that women faced misogyny, hostility, and higher standards than their male counterparts. Even those studies were held to a higher level of scrutiny than other similar reports.

Male economists have long ignored complaints about gender discrimination and sexual harassment in their industry. They claimed that predictive models indicated that gender discrimination and racial bias would disappear naturally because of competition. But that has not been the case.

Women Economists Call for Change at AEA Annual Meeting, In the Midst of Continued Underrepresentation

Conversations about gender discrimination and sexual harassment were everywhere at this year’s AEA annual meeting. This was due in part to public allegations last year that Harvard economist Roland G. Fryer had sexually harassed and bullied women in his research lab at the university. Harvard has since substantiated some of the claims, but others are still under investigation. In December, 2018, Fryer quietly resigned from the AEA, where he was slated to join executive committee.

The allegations, and the AEA’s lackluster response, opened something of a flood gate of #MeToo stories by women economists, graduate students, and professors. In total, over 400 graduate students and research assistants signed on to an open letter calling for change in the industry. The New York Times reported:

“‘There’s just a ton of anger and resentment around how the profession has been,’ Elisabeth Perlman, 24, an economist with the Census Bureau, said at the [AEA’s formal business] meeting. She added that the profession must also address the misconduct that was allowed to go unchecked for decades.”

The students and women economists who signed the letter and spoke out at the meeting called for the AEA to create systems to report gender discrimination and sexual harassment, as well as procedures to punish or expel members who violated the AEA’s newly adopted code of conduct on the issue.

But even as they raised their voices in these meetings, women economists found themselves silenced at the presentation table. Heather Long, a reporter for the Washington Post, described the scene:

“In a panel on trade, I walked into the room to see all men sitting at the table at the front of the room. I was surprised, because a female economist was listed as one of the speakers. As the session started, one of the men informed the audience that there wasn’t room for her at the table. Her male co-author would present the paper, and she would field questions later. The panel ran out of time and she never spoke.”

Calling for Equality Within the Economics Industry

Gender discrimination and sexual harassment continue to be problems for women economists and other white-collar professionals in male-dominated industries. Through underrepresentation, heightened scrutiny, and overt sexual misconduct, leading economists tell their female counterparts they are not worthy of the same recognition and attention.

There are solutions to gender discrimination and sexual harassment within the economics industry. In addition to the kind of culture shifts that Yellen and others propose, individual women economists can take action at their universities and workplaces, and in court.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to call universities, private employers, and government agencies to account for gender discrimination and sexual misconduct. We can help you review your case, and your legal options, to find a solution to the gender discrimination you experience. If you are a woman economist facing sexual harassment in your profession, contact us today to schedule a free consultation.

Salary Negotiations or Racial and Gender Pay Discrimination: How Can You Tell?

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Whether you are applying for a new position, or asking for a raise, the idea of demanding more money from an employer is often nerve wracking. But what if you are being underpaid because of your race or gender? How can you tell if your pay is based on salary negotiations or racial or gender pay discrimination?

In this blog post, I will look at the factors the EEOC and the courts consider in determining whether differences in salaries are based on racial or gender pay discrimination. I will explain how the Equal Pay Act protects workers from being paid less for the same work, and will review common defenses by employers that may make proving your case more difficult.

Women, Minorities Get Paid Less for the Same Work

Every year, Equal Pay Day happens in early April (this year it was April 2). This date represents how far into the new year women have to work to earn the same amount as men in the previous year. In other words, this represents how big the gender pay gap is in the U.S.

According to the most recent data from PayScale, women earn approximately $0.79 for every $1 men earn in 2019. Even when you compare employees with the same title and qualifications, women still earn less than men. This number has improved over recent years, but not by much. In 2015, women earned $0.74 per $1 men earned. The numbers are also worse for employees in many racial minorities. Black or African American workers are still stuck at $0.74 per $1. Only Asian American women fair better than average at $0.93 per $1.

Title VII, the Equal Pay Act, and Pay Discrimination

State and federal law makes it illegal to pay women or minority workers less for the same work. Title VII of the federal Civil Rights Law includes salary, raises, and promotions in the definition of “adverse employment actions.” If these decisions are made based on any protected status — including sex, gender, or race — an employee is entitled to file a pay discrimination complaint with the Equal Employment Opportunity Commission.

Also, state and federal Equal Pay Acts specifically protect against gender pay discrimination. The New York State Equal Pay Act uses the same language as the federal law. In both cases, the law requires that men and women be given equal pay for work equal work in the same establishment. That doesn’t mean that cashiers in the same location of the retail store all receive the same wage. The laws don’t depend on titles to determine who gets paid how much. Instead, they depend on whether the jobs require substantially equal:

  • Skill (including experience, certifications, ability, education, and training)
  • Effort (including physical or mental exertion)
  • Responsibility (including accountability)
  • Working conditions (including physical surroundings and work hazards)
  • Physical place of business

Once an employee demonstrates that she was paid less than her coworkers for substantially equal work, it is up to the employer to justify the difference. The federal Equal Pay Act allows for 4 exceptions:

  • A seniority system
  • A merit system
  • A pay system based on quantity or quality of output
  • Any other factor other than sex

The last factor (called a “catch all” provision) has been used by employers to claim that differences in pay aren’t a result of gender pay discrimination. They are simply the result of men being better at salary negotiations than women.

Can Salary Negotiations Justify Racial and Gender Pay Discrimination?

Women can face difficulty negotiating for a higher starting salary or getting raises. Harvard Law School’s Program on Negotiation, described the intersection of salary negotiations and gender discrimination by saying:

“Yet its persistence in the workplace presents a personal negotiation challenge that asks women to reconcile their needs with how they present those needs to their counterparts.”

Siegel Bernard of the New York Times has described this conversation as trying “to juggle when they are on a tight rope.”

But whether or not it is difficult, do differences in the way men and women engage in salary negotiations excuse a company for paying women less? Basing a person’s salary on what he or she made at the last job can perpetuate systemic gender pay discrimination. Last year, in Rizo v Yovino, the Ninth Circuit Court said that “any other factor other than sex” necessarily means legitimate, job-related factors like experience, educational background, ability, or prior job performance. The court said that prior salary alone was not enough to justify gender pay differences.

That decision was vacated by the U.S. Supreme Court on February 25, 2019, but not because the Court disagreed with the ruling. Circuit Court Judge Stephen Reinhardt was listed as part of the majority in the Ninth Circuit decision, but he had died before the opinion was final. The Supreme Court said that was inappropriate and sent the case back to correct the error. Whether the Ninth Circuit stands by its decision on remand remains to be seen.

In the past, the Supreme Court has held that differences in the market value of men and women’s services “became illegal once Congress enacted into law the principle of equal work for equal pay.” Glass Works v. Brennan, 417 U.S. 188, 205 (1974). However, since then, the courts have been split on whether salary negotiations were enough of a reason to pay men more. That means whether an employer can use salary negotiations as its reason for why it pays men more than women could depend on where the employee lives or works.

If you are facing racial or gender pay discrimination, you need an employment discrimination who knows the law, and the courts, to help you make your case. At Eisenberg & Baum, LLP, we will help you review your situation and decide your best course of action to getting equal pay for equal work. No matter which strategy is best for you, we will help you fight to stop gender pay discrimination. Contact Eisenberg & Baum, LLP, today for a free consultation.