What to Do About a Bully Boss and Their Sexual Harassment

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When your boss is demanding, demeaning, and abusive, it can make every day a struggle. And when their comments and jokes turn to sex or gender, it can also be illegal. Find out what qualifies for federal and state protections and what you can do about a bully boss and their sexual harassment.

This blog post will look at a recent article about the psychology behind being a bully boss. It will examine when bullying can cross the line into sexual harassment and what you can do if your boss’s behavior makes your office a hostile work environment.

Psychologists Say Bully Bosses Don’t Improve Employee Productivity

Recent reports about Minnesota Senator Amy Klobuchar’s aggressive management strategies have reignited public awareness of so-called bully bosses. According to reports by former employees, Sen. Klobuchar was known for berating new employees, throwing objects toward aides, and ordering employees to do degrading tasks, including cleaning personal items. As a result, her Washington staff has one of the highest turnover rates of any congressional office.

Sen. Klobuchar is hardly the only bully boss to make public waves for their behavior. Bully bosses can be men or women, part of large corporations or small businesses. They can target men, women, or everyone under them without respect to gender. Indiana University basketball coach Bobby Knight made money off his reputation for harsh management through his book “The Power of Negative Thinking.” Head Chef Gordon Ramsay turned his fiery temper into a popular cooking competition television show, Hell’s Kitchen. The late co-founder of Apple, Steve Jobs, was also known for his aggression in the office.

These kinds of bully bosses often claim that they act the way they do because it gets results, improving employee performance and productivity. However, a review of psychology research to date says these claims don’t hold up under scrutiny. Rebecca Greenbaum, a professor at Rutgers University’s school of management and labor relations, told the New York Times:

“We’d love to find out if there are good aspects of abusive leadership. There’s been a lot of research. We just can’t find any upside.”

She has found that short-term productivity may increase, but over time, employees exposed to this kind of abuse increase tardiness, sick days, and eventually leave altogether.

When Your Bully Boss Uses Sexual Harassment

Sometimes, when a manager is trying to assert control in the workplace, he or she may resort to gender stereotypes or sexual slurs to get the job done. This might include calling male employees “ladies” or worse. Sometimes, when an employee objects to a bully boss’s aggressive management style, the boss can respond by yelling for employees to “man up” or “grow some balls”. Sexual harassment by a bully boss could also include repeated sexual jokes, job assignments based on a person’s gender or the supervisor’s assumptions based on sexual stereotypes.

When a bully boss’s behavior takes on sexual overtones, it can sometimes cross the line into illegal gender discrimination and sexual harassment. Federal and New York state laws both protect employees from employment decisions based on their sex or gender. It also requires employers to step in and respond when sexual harassment is so severe or frequent that it creates a hostile work environment.

In those cases, employees can file administrative complaints with the New York Human Rights Commission or the federal Equal Employment Opportunity Commission, as well as lawsuits in state or federal court. If an administrative law judge or court decision-maker finds that an employer was involved in gender discrimination or failed to take reasonable efforts to stop sexual harassment, the employee can be entitled to:

  • Money damages for lost wages, medical expenses, and other costs connected to the bully boss’s behavior
  • Reinstatement to a lost position or equivalent job
  • Changes in company policy or procedures in responding to sexual harassment complaints
  • Disciplinary actions against the bully boss or those involved in the gender discrimination

Not every bully boss uses sexual harassment as part of their abusive behavior. But when they do, the employment attorneys at Eisenberg & Baum, LLP, can help. Our experienced gender discrimination and sexual harassment attorneys know how to fight back against a bully boss and an unresponsive employer to get change in the workplace. Contact us to schedule a consultation at our office in New York City, or over the phone.

Can You Be Forced to Take Leave for a Disability?

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Disabilities come in all severities, forms, and durations. But can a one-size-fits-all disability policy interfere with your ability to work or keep your job? Can a car accident or chronic health situation put your job at risk? Can you be forced to take leave for a disability?

In this article I will discuss a settlement by the Equal Employment Opportunity Commission in response to a complaint that an employee was forced to take leave for a disability rather than be granted reasonable accommodations. I will review what the Americans with Disabilities Act requires employers to do when faced with an employee disability. I will also explain what employees’ options are if they have been forced to take leave for a disability.

What is a Disability?

Your doctor tells you to take it easy and not lift too much for a while so your back can heal. Maybe you were in an accident and need to wear a cast or boot for a few weeks. You may have a vitamin deficiency that makes you tire easily or a repetitive movement injury that could be aggravated by your work.

Disabilities can take many forms. Not every illness or impairment is a disability, legally speaking. However, the Americans with Disabilities Act applies any time a person:

  • Has a physical or mental condition that substantially limits a major life activity like walking, standing, sitting, talking, hearing, seeing, or learning
  • Has a history of disability (like a disease in remission)
  • Is believed to have a permanent physical or mental impairment (even if it is not true)

Seeking Reasonable Accommodations for Your Disability

Having this kind of disability doesn’t automatically make you unable to work. Many people with disabilities maintain full- or part-time employment. In fact, that is one primary purpose behind the Americans with Disabilities Act. It requires employers to make reasonable accommodations for people with mental and physical disabilities.

This can include any change to the way things are normally done at work (or within the work environment) to help you meet your employers’ expectations or enjoy the benefits and privileges of your work. Some examples of common accommodations include:

  • Stools for those who would otherwise work standing
  • Wheelchair accessibility to work spaces, conference areas, break rooms, and bathrooms
  • Large-font manuals and reports for those with vision problems
  • Text-to-speech programs for the deaf and hearing impaired
  • Flexible work schedules for those who need breaks or have frequent doctors’ appointments

The ADA says your employer must provide these reasonable accommodations to you as an employee or job seeker unless doing so would cause significant expense or difficulty.

Can You Be Forced to Take Leave for a Disability?

But what happens if you inform your employer about your disability and they simply tell you to pack up your things and go? Can you be forced to take leave or be fired because you have a disability?

This was the basis behind the lawsuit EEOC v Wilmington Trust Corporation, Civil Action No. 17-cv-05077, filed in the U.S. District Court for the Southern District of New York. Starting as early as 2002, Hudson City Savings Bank (HCSB) had a “no-restrictions” disability policy. Anyone who came to work with an impairment or disability was placed on involuntary leave until they received clearance from their doctor to return to work with no restrictions. HCSB became part of Wilmington Trust Corporation in 2015, but the policy apparently continued.

Then a bank teller came to work in the Harrison, New York branch wearing a cam walker boot to treat Achilles tendonitis and bone spurs. The boot had no effect on her ability to do her job. Still, under the bank policy she was placed on involuntary leave and eventually fired.

The Equal Employment Opportunity Commission (EEOC) took up her case. In a statement, Kevin Berry, the EEOC’s New York District Director said:

“[T]he ADA requires employers to engage in an interactive process and does not allow for such ‘no restriction’ policies.”

By continuing HCSB’s policy, the EEOC said Wilmington Trust discriminated against people with disabilities, and failed to even allow them to request reasonable workplace accommodations. On December 19, 2018, the judge in the case entered a consent decree awarding the teller $700,000 in lost wages and other damages, and creating a two-year injunction where Wilmington agreed to:

  • Stop the no-restrictions policy
  • Notify HCSB legacy employees of their right to request disability accommodations
  • Conduct trainings on the company’s disability discrimination policy

Corporate Structures and Successors’ Obligations Under the ADA

The no-restrictions policy in this case pre-dated Wilmington Trust’s involvement in the company. But that didn’t excuse the successor company from correcting its predecessor’s illegal disability discrimination under the ADA. Berry said:

“The consent decree also demonstrates how a successor entity can take action to make sure a predecessor’s discriminatory practices do not infect its workplace.”

These kinds of legacy practices and inflexible leave policies promise to be a focus of the EEOC going forward. They have been identified as priorities in the EEOC’s Strategic Enforcement Plan.

When outdated policies follow employees through corporate restructuring, it can cause disabled workers to feel like there is no way to work around their restrictions. But the ADA and the experienced employment discrimination attorneys at Eisenberg & Baum, LLP, say otherwise. From our main office in New York City, we can help employees across the country negotiate for accommodations to address their medical needs, and represent disabled employees at the EEOC and in federal court. If you have been forced to take leave for a disability, contact us today to schedule a consultation.

International Employees’ #MeToo Push May Find Strength in New York State Human Rights Act

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Not every country’s laws or government take sexual harassment as seriously as in the U.S. But for international employees making a #MeToo push against their employers, a business trip to New York could give them a chance to find strength in the New York State Human Rights Act.

In this article I will discuss how employees of international companies may be able to use New York State’s Human Rights Act to protect themselves and push for change in their companies. I will talk about the limits of the New York State Human Rights Act, and how recent expansions could cover international employees who travel to the state for work.

#MeToo Movement Gains Momentum in China

The #MeToo movement is usually thought of as a Western idea. The hashtag was coined in 2006 by Tanara Burke, an African American activist seeking to empower black women and girls to speak up about sexual assault and violence. Then a decade later, it became a movement after celebrities like Alyssa Milano used the hashtag to expose sexual harassment in the entertainment industry.

However, what started in Hollywood has now spread worldwide. #MeToo movements have arisen in Europe, Saudi Arabia, South Korea, Indonesia, Russia, and even China. In Beijing, over a dozen Chinese women came forward in July 2018. They signed open letters posted on the Chinese social media site Weibo, alleging that they were the victims of sexual harassment and assault by Chinese journalists, intellectuals, and charity leaders.

Among them was Zhou Xiaoxuan, a 25-year-old screenwriter. She wrote an essay talking about her experience in the dressing room of famous Chinese anchorman Zhu Jun. She alleged that she was serving as an intern at China Central Television in the summer of 2014 when she was asked to take fruit to Mr. Zhu’s dressing room. When the other intern with her left the room, Ms. Zhou says Mr. Zhu grabbed her hand, forcibly kissed her, and groped her. She was able to escape when someone came to the door. Mr. Zhu has denied the allegations and each side has sued the other in Chinese court.

International Laws Don’t Always Protect Sexual Harassment Victims

Ms. Zhou went to the police right away with her complaints. But she says the officers told her to drop her complaint because “Mr. Zhu was a force for good in society.” They even threatened Ms. Zhou’s public-sector jobs. Zhou says this experience is not uncommon. Sometimes women wait in line at police stations for days without being able to press charges. Women in China also face laws that do not clearly define rape or harassment and cultural assumptions that blame women for sexual abuse. All of this can make it difficult for international employees to get relief from sexual harassment.

New York State Human Rights Act Provides Hope to International Employees

While international employees may have trouble finding relief at home, a recent change to the New York State Human Rights Act could give them a chance to defend themselves if their work brings them to the state. As of April 12, 2018, the New York State Human Rights Act was expanded to cover anyone who provides services in a workplace. This can include contractors, vendors, consultants, and independent contractors.

Read More: Sexual Harassment of Independent Contractors in the Workplace

The New York State Human Rights Act also applies to every employer in New York State, no matter how many employees are located there. Together, these two provisions may provide hope to international employees sent to New York on business. While their home jurisdiction may not make it easy to prevent sexual harassment, the New York Division of Human Rights may be able to help if the international employee is:

  • On temporary assignment to the New York office of an international business
  • Sent as a consultant or contractor to work with a domestic business partner
  • Attending a New-York based business conference or event

Whether the law will apply will still depend on what happened, where it happened, and the international employer’s relationship to the state. However, with a broader definition of protected employees, the New York State Human Rights Act could be used to embrace international workers who can’t find help at home.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys know that New York companies do work on a global scale. We know how to use the New York State Human Rights Act to protect international employees and traveling professionals. Contact us to schedule a consultation at our office in New York City, or over the phone.

Union Claims Attendance Policy Causes Gender Discrimination Against Flight Attendants

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Can an attendance policy be illegal gender discrimination? The Association of Professional Flight Attendants thinks so. It has filed a complaint with the EEOC, claiming American Airlines’ new attendance policy causes gender discrimination against flight attendants across the country.

In this blog post I will review reports that the Association of Professional Flight Attendants plans to file gender discrimination claims against American Airlines. I will discuss what gender discrimination against flight attendants looks like and how the company’s attendance policy may cause discrimination based on sex or gender. I will also explain what flight attendants and other airline workers can do if they face gender discrimination at work.

New Attendance Policy Creates “Cruel” Punishments for American Airlines Flight Attendants, Union Says

On October 1, 2018, American Airlines rolled out a new attendance policy for its more than 27,000 flight attendants nationwide. The new policy assigns flight attendants one or more points for any attendance infractions, including:

  • Coming to work late
  • Failing to show up for scheduled trips
  • Taking more than 2 personal days
  • Being sick during “critical periods” including July 1-7, the Thanksgiving week, and December 22 to January 3

Once a flight attendant receives 4 to 6 points during a rolling 12-month period, she or he will be required to undergo a performance review. At 8 points, the flight attendant will receive a final warning. Ten points will result in termination.

The attendance policy was announced in August 2018. Within hours, flight attendants across the country were objecting to its terms. One unnamed flight attendant wrote immediately to American Vice President of Flight Service Jill Surdek to say:

“This attendance policy, as written, is punitive, offers no human factor, and is being received by flight attendants as cruel and unusual . . . if a pipe bursts in our house, a tire goes flat or some other Act of God occurs, it’s not easy to jump on a plane for three days and forget that you are going to come home to a catastrophe.”

Can an Attendance Policy Cause Gender Discrimination?

The Association of Professional Flight Attendants, the union representing the affected American Airlines workers promised to resist the new attendance policy right away. After several months of investigation, the union filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), claiming the attendance policy causes gender discrimination against flight attendants.

The argument is based on the gender disparity between flight attendants and other American Airlines crew. The new attendance policy does not apply to American Airlines pilots, a majority of whom are men. By comparison, 75% of flight attendants are women. Since the primarily male pilots have a more relaxed standard, the union says the new attendance policy causes gender discrimination against the female flight attendants.

The airline has denied the allegation that its attendance policy causes gender discrimination and is opposing the EEOC claim.

Responding to Unintentional Discrimination

American Airlines may not have meant to cause gender discrimination against flight attendants, but that doesn’t mean the company won’t face an EEOC complaint or even a federal lawsuit for violating Title VII anti-discrimination laws. “Disparate impact” or “adverse impact” claims can help employees respond to unintentional discrimination that happens when a new policy affects one group of employees more negatively than others based on a protected characteristic like sex or gender. In these cases, it is up to the employees (the plaintiffs) to establish that the policy affects the protected group so much more (or worse) that the court can infer discrimination from those effects.

Showing the disparate impact of unintentional gender discrimination usually means the female employees filing the complaint will need to rely on statistics to show they were treated worse than their male counterparts. However, even where the numbers fall in an employee’s favor, the employer can still defend against a gender discrimination claim by showing that the company has a legitimate business reason for the policy. For example, American Airlines responded to the flight attendants’ complaint by issuing a statement saying:

“[O]ur policy ensures we’re staffed to provide our customers with the great service they expect and deserve when flying American.”

It will be up to the EEOC and the courts to decide whether in this case, applying different attendance policies to pilots and flight attendants creates a disparate impact severe enough to count as gender discrimination under Title VII. But the union’s complaint helps to show employees across the country that even when gender discrimination is part of company policy there are options to fight back and protect their rights.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. If you believe a company policy is causing gender discrimination at work, we will review your situation and help you plan a strategy to change the policy and pursue options in or out of court. Contact Eisenberg & Baum, LLP, to talk to an employment discrimination attorney today.

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.

What to Do Before You Report Sexual Harassment to the EEOC

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You’ve had enough of the jokes, the comments, and the inappropriate touching. You’re ready to get help. But should you head straight to court? What should you do before you report sexual harassment to the EEOC or your state anti-discrimination agency?

In this blog post I will discuss how to prepare to report sexual harassment or gender discrimination to the Equal Employment Opportunity Commission (EEOC) or the New York Department of Human Rights. I will provide strategies for employees facing a hostile work environment, and tips for what to do before you report sexual harassment to the EEOC.

Gather Your Proof of Sexual Harassment

At the first sign of sexual harassment, when you first start to consider whether you should file a report with the EEOC, you should start the process of gathering your proof right away. What that means will depend on the type of sexual harassment you were exposed to, and when and where it happened. It could include:

  • Printing, copying, and saving copies of the offensive emails, chat dialogs, or images
  • Keeping a journal that describes what happened, when, by whom, and how you felt about it
  • Taking pictures of the place where the sexual harassment happened
  • Talking to people who witnessed the event and asking them to write down their experiences
  • Preserving copies of any complaints you made to your supervisor or HR department

It is important to gather this proof in a way that you can take with you even if you eventually have to leave your company or are fired. Retaliation is illegal, but sometimes people do lose their jobs when they report sexual harassment. You need to be prepared by maintaining a hard-copy file off-site or at least sending everything to a personal email address.

File Internal Complaints

Before you report sexual harassment to the EEOC or file a lawsuit in federal court, you may need to “exhaust your remedies” through filing internal complaints. That means you have done everything you could in-house before turning to an outside agency. This could include reporting the sexual harassment to your HR department or supervisor. If you are in a union you may need to go through the grievance process.

Even if you are not legally required to file internal complaints, it can still be important to your EEOC complaint that you do. For conduct to be considered sexual harassment, it needs to be unwanted. If you haven’t filed internal complaints, you may face defenses from your employer that the sexual conduct was consensual or that you were playing along with the sexual banter or jokes in the office. Filing an internal complaint, or even publicly asking your harasser to stop can help fight back against these defenses and make sure your report of sexual harassment to the EEOC can continue and you can get the relief you need.

Talk to a Sexual Harassment Lawyer Before You Report Sexual Harassment to the EEOC

More than any other step you can take before you report sexual harassment to the EEOC, you should make an appointment to talk to a sexual harassment lawyer. First, an attorney with experience at the EEOC and in court can help you decide whether filing a report will get you the relief you are looking for. An attorney can help you look at what happened to you objectively and evaluate whether it reaches the point where a judge may say sexual harassment has occurred.

Next, a discrimination attorney can help you prioritize what relief you want:

  • Getting your job back
  • Having the harasser removed
  • Changing policies and practices at work
  • Receiving compensation for lost time at work and medical expenses related to the stress
  • Making a clean break and finding a new position with a positive recommendation

Some of these goals are best served by reporting the sexual harassment to the EEOC or filing a federal lawsuit. But in other cases, those complaints may raise the stakes of your case unnecessarily and increase the chances that your relationship with your employer will be broken beyond repair.

You don’t officially need a lawyer to report sexual harassment to the EEOC. But deciding whether to file, when to make the claim, and how to prove your case aren’t easy choices. They shouldn’t be made alone. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys know that the decision to take action happens long before you report sexual harassment to the EEOC. We have a variety of tools at our disposal to end the harassment and get you back to work, if that’s the outcome you want. Contact us to schedule a consultation at our office in New York City, or over the phone.

Gender Pay Gap Widens at Top Law Firms

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Differences in the income of men and women happen at every point on the pay scale. From blue-collar workers to white-collar professionals, women often have to fight to earn as much as their male counterparts. Now the most recent study of top law firms shows that the gender pay gap for law partners is not going away. If anything, it is getting wider.

In this blog post I will discuss the partner compensation study by Major, Lindsey & Africa, which reveals male partners earn 53% more than female partners at top US law firms. I will discuss how the Equal Pay Act protects women from being paid less than men for the same work, and explain how challenges enforcing the law allow the gender pay gap to continue over the years.

Survey of Top Law Firms Shows Women Partners are Falling Behind

Every two years, the market research firm Major Lindsey & Africa puts together a Partner Compensation Survey, measuring the payment of attorneys at the nation’s top law firms. Over the years, past surveys have shown the gender pay gap widening, from 32% in 2010, to 48 percent just two years later. While women made slight advances in 2014 and 2016, female partners were still receiving over 40% less than male partners who responded to the survey.

In its most recent version, published in December 2018, the Major Lindsey & Africa partnered with legal the market intelligence firm Acritas. It added extra questions to examine the gender pay gap so that researchers could investigate the reasons behind the widening pay differential. The survey was emailed to over 63,000 partners at large and mid-size law firms across the country. There was also a LinkedIn advertising campaign. All together, nearly 1,400 partner-level attorneys responded to the survey.

The result was that the gender pay gap among attorneys had widened once again, up to 53%. The average compensation for all study participants was $885,000. But while men made an average of $959,000, women made far less: $627,000. Only one female partner was among the top wage earners earning over $4.1 million.

Law Firms Blame “Origination” and Practice Areas, Not Discrimination

The press release announcing the report warned against reading the results of the survey too broadly, saying that the volunteers who responded to the survey aren’t necessarily the same.  Lucy Leach, technical research director of Acritas, also said the survey data “doesn’t suggest a conscious bias against women.” Instead she blamed the way compensation is calculated among the nation’s largest law firms.

In BigLaw, partner compensation is often based on credit for “originations” and hourly billing rates. In general, the more new clients attorneys bring in, and the more hours they spend working for those clients, the higher their compensation. Leach said this payment structure “may fail to recognize other contributions to firms and may be putting women at a disadvantage.”

According to the 2018 survey results, men were credited with $2,788,000 in originations, compared to $1,589,000 for women. They also billed at higher rates. The average billable hour for male partners was $736. For women it was $650. Industry experts say these differences have to do with how much women work compared to men, and the practice areas they tend to choose to work in. However, at least one study has shown that gender discrimination is based more on how women are perceived than the work they do.

Equal Pay Act Helps Women Close the Gender Pay Gap

The federal Equal Pay Act is designed to protect against a growing gender pay gap. It requires employers to pay men and women equal pay for equal work. As long as the work they are doing is substantially similar, the Equal Pay Act says men and women should be paid the same. When that doesn’t happen, underpaid employees can file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court.

The Equal Pay act doesn’t require the worker to show the pay gap is because of gender. Once a female worker and her employment discrimination attorney show that the gender pay gap exists, it is up to the employer to show why she is not paid as much as her male counterparts. Unfortunately, for partners at law firms and others who are paid based on the jobs they bring in or based on an hourly rate set by the company, it can often be difficult to show that differences in pay are the result of wage discrimination, instead of some other, gender-neutral factor.

In these fields, it takes the help of a experienced wage discrimination team to develop a case. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to show that a gender pay gap is because of decisions made by the company, not the worker. We know how to fight back against claims of neutral application of skewed compensation structures. Contact our gender discrimination attorneys today to start fighting for equal pay in your work.