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EEOC Sexual Harassment Claims Drop in 2019

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Every year, thousands of women and men file claims with the U.S. Equal Employment Opportunity Commission (EEOC) for discrimination and sexual harassment at work. Surprisingly, last year the number of sexual harassment claims dropped, even though there was a nationwide push for women to come forward about sexual abuse and misconduct. Find out why that may be.

EEOC Releases 2019 Enforcement and Litigation Data

The EEOC has released its data for claims filed and enforcement actions in 2019. Here’s the breakdown:

  • Total Charges: 72,675
  • Retaliation: 39,110 (53.8%)
  • Disability: 24,238 (33.4%)
  • Race: 23,976 (33%)
  • Sex: 23,532 (32.4%)
  • Age: 15,573 (21.4%)
  • National Origin: 009 (9.6%)
  • Religion: 2,725 (3.7%)
  • Color: 3,415 (4.7%)
  • Equal Pay Act: 1,117 (1.5%)
  • Genetic Information: 209 (0.3%)

Many complaints raised more than one charge, or coupled discrimination and harassment complaints with retaliation by their employer after the discrimination was reported. These numbers do not include charges filed with state or local agencies such as the New York Human Rights Commission.

Sexual harassment and gender discrimination accounted for nearly one third of all the national discrimination complaints under Title VII of the Civil Rights Act. This reflects the ongoing struggle for women workers to be treated the same as men in the workplace.

Total Claims, Sex Discrimination Charges Show Continued Drop in Enforcement

Both the total number of charges and the sex harassment and gender discrimination claims show a trend away from filing with the EEOC. While the percentage of claims related to sex has remained steady near 30%, the total number of claims has dropped dramatically since they peaked at 30,356 in 2012. Total claim numbers show a similar trend. The 72,675 claims filed in 2019 pales in comparison to the nearly 100,000 charges in 2010, 2011, and 2012.

This reflects the EEOC’s shift in priority to reduce its caseload. Last year, EEOC Acting Chair Victoria A. Lipnic said the agency was trying to focus on “meritorious charges” and cases that “advance the public interest” rather than representing a broader range of women and minorities facing discrimination at work.

When Should You Skip Filing an EEOC Complaint?

Filing a claim with the EEOC may seem like a logical first step for your sexual harassment or gender discrimination claim. In fact, it is mandatory under most federal anti-discrimination laws. You usually cannot file a complaint in federal court until you have received a notice of right to sue from the EEOC. However, filing a complaint isn’t always the best choice for employees. You may want to skip or delay filing an EEOC complaint if:

You Work for a Very Small Company

The EEOC only has authority over employers with 15 or more employees (except in cases of Equal Pay Act violations). If you work for a very small company, you may not be able to use the EEOC or the federal statutes it enforces to get the relief you need.

You Want to Continue in Your Current Position

Retaliation is illegal under every state and federal anti-discrimination law. But the fact that 53% of all charges filed with the EEOC were for retaliation shows that it is still a real part of resolving sexual harassment and discrimination. From a practical perspective, if your goal is to keep your current position and change the culture in your workplace, the EEOC may not be your best choice. Instead, you and your gender discrimination attorney may be able to negotiate the changes you seek without burning bridges and making your employer more hostile to you and your cause.

Your Claim is Better Protected Under State Statutes

Title VII of the Civil Rights Act is the national go-to statute for sexual harassment and gender discrimination, but that doesn’t mean it is the gold standard. For some, state and local laws may apply more directly or provide better options for enforcement. This is especially true for independent contractors, vendors, and the victims of sexual orientation or gender identity discrimination. However, a claim at one office sometimes precludes filing the same claim somewhere else. Before you decide whether to go to the EEOC or the New York Human Rights Commission, be sure to talk to an experienced employment discrimination attorney so you understand the effects of that decision.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases. We know when to file a claim with the EEOC and how to make the New York State Human Rights Law work for employees who might otherwise not get the attention they deserve. Contact us to schedule a consultation at our office in New York City, or over the phone.

EEOC Considers Changes to Equal Pay Data Collections

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Women’s rights advocates and researchers are often looking for new sources for data on pay disparities based on race, gender, and other factors. In 2016, the Equal Employment Opportunity Commission added a mandatory report to help with Equal Pay Act enforcement, but now that data collection may be going away. Find out what some of the experts had to say about that.

EEOC Collects Demographic, Pay Data to Address Wage Discrimination

Every year, the Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) collect demographic and pay data from employers through Employer Information Reports (EEO-1 reports). This data tracks the number of employees in each of 12 pay bands based on each employee’s W-2 wages. The report also discloses the hours worked for hourly employees and whether overtime-exempt employees are full- (40 hours) or part-time (20 hours) employees.

The EEOC has been gathering the demographic diversity information from employers for 50 years. This has come to be known as EEO-1 Component 1. But did not start tracking equal pay data until 2016 (EEO-1 Component 2). The agency has now collected wage disparity data for 2 years, but a complete analysis of the information isn’t yet ready for public use. In addition, Title VII of the Civil Rights Act prevents the EEOC from releasing the raw data due to privacy and corporate confidentiality reasons, so researchers have not yet seen the results of this change.

EEOC Announces Intent to Stop Collecting Equal Pay Data

Even without seeing the results of the 2017 and 2018 dataset, last year the EEOC issued a notice that it planned to change the EEO-1 Reports to remove Component 2 and stop collecting equal pay data. As part of the agency’s mandatory notice and comment procedure leading up to any such changes, the EEOC held a hearing on November 19, 2019, where economic experts and employee advocates could weigh in on the proposed changes.

Pay Equity Advocates Push for Continued Equal Pay Data Collection

The EEOC heard from three witnesses who voiced the need for ongoing data collections advocates:

  • Jocelyn Frye, Senior Fellow for the Centers for American Progress
  • Jessica Stender, Senior Counsel for Workplace Justice and Policy with Equal Rights Advocates
  • Betsy Stevenson, Professor of Economics and Public Policy at the Gerald R. Ford School of Public Policy at the University of Michigan

These advocates emphasized the need for systemic collection of information on wage discrimination and equal pay disparities. Ms. Stendler explained how employer-level “pay secrecy” policies — which discourage or even prohibit employees from discussing their compensation with their coworkers — keep employees from getting necessary information to discover and prove their wage discrimination claims. She and Dr. Stevenson both explained that these kinds of reports also help employers to recognize unintentional pay disparities and unconscious bias.

Ms. Frye said undoing the 2016 additions to the EEO-1 report is misguided and ill-advised, saying the decision “represents a significant unwarranted step backwards in the fight for equal pay.” She emphasized that gender discrimination continues even after decades of civil rights enforcement. Undermining pay data collections perpetuates discrimination and masks disparities from further scrutiny.

Employers’ Consultants Say Equal Pay Reports are Too Burdensome

Three other witnesses testified on behalf of employers:

  • Lynn Clements, Director of Regulatory Affairs at Berkshire Associates
  • Michael Eastman, Senior Vice President of Policy and Assistant General Counsel for Center for Workplace Compliance
  • Joshua Mitchell, Senior Economist with Welch Consulting

These three uniformly emphasized the burden Component 2 puts on employers to compile equal pay data and submit it to the EEOC. Each testified that preparing the reports takes longer than the average 5 hours stated by the EEOC and required HR employees and corporate attorneys to spend hours preparing the reports and certifying their authenticity.

However, the employee advocates cast doubt on whether these increased preparation times would continue over time. Since the bulk of the reporting requirements fall on larger companies, it was reasonable to expect that these companies use software and automated HR and payroll systems to manage their employee pay. In the first years after Component 2 went into effect, those systems would need to be closely monitored and authenticated. But after a relatively short adjustment period, these systems could be set up to generate the report without any substantial time investment.

Usefulness of Equal Pay Data Called into Question on All Sides

One thing that all the witnesses seemed to agree on was that the usefulness of the equal pay data collected by the EEOC had yet to be determined. Employer representatives claimed that this was a reason to stop collecting the data. They equated a lack of finality with an assumption that the information collected was not useful. Mr. Mitchell in particular spent most of his written testimony laying out differences in the way employers keep their compensation records and the way the EEOC collected its data. Together, these witnesses testified that Component 2 does not further the goal of minimizing wage disparities between genders.

Employee advocates agreed that the usefulness of the 2017 and 2018 data had yet to be fully realized. However, while Dr. Stevenson suggested that changes may be appropriate in the future, all three employee advocates warned against stepping backward before the data already received could be fully analyzed. Ms. Stender concluded her testimony by warning against the dangers of doing nothing (or in this case stopping what had already been done):

“The gender wage gap has not changed in a statistically significant way for over a decade. At the current rate of change in the annual earnings ratio, it will take another 40 years, until 2059, for men and women to reach wage parity. It is therefore critical that the agencies charged with enforcing equal pay and anti-discrimination laws are able to take proactive steps to identify and better address pay discrimination, which is a significant contributor to the gender wage gap.”

With the hearing concluded, the EEOC will now determine whether to continue to collect wage data to guide its enforcement of the Equal Pay Act. However, even if the EEOC stops collecting that data, private foundations and the advocacy groups represented by the employees’ witnesses will continue to fight gender discrimination and represent women and minorities paid less for the same work.

At Eisenberg & Baum, LLP, our gender discrimination attorneys know how the EEO-1 reports can be used to show wage discrimination. We can help you file your Equal Pay Act charges, and develop a case against your employer if it appears you are being paid less than you should based on your gender. Contact us today to schedule a consultation with one of our attorneys.

Could Ability-Based Wages Close the Gender Pay Gap?

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How does your boss decide what to pay you? Is it based on your position, experience, or rain-making record? What about your core ability? An academic report suggests that income inequality and the gender pay gap could be reduced if people were paid based on their traits and abilities, rather than their job title.

Study Finds Income Inequality Thrives in Small, Professional Businesses

In July 2019, the Oxford Quarterly Journal of Economics published a new study about income inequality across the country. The study sorted through tax data for 11 million companies tracking the income of their owners and employees. It found that income inequality, which has been on the rise for over 40 years, coincides with the decline of traditional corporations and the increase in pass-through entities like S-Corporations and Limited Liability Corporations (LLCs).

S-Corporations are the favorite structure of small professional businesses focused on regional operations, like law offices, financial managers, and medical offices. In those businesses, owners and executives are far more likely to be part of the top 1 percent of earners, including lawyers, doctors, and wealth managers.

Productivity and Ability Doesn’t Justify Pay Gap

The study asked the question of whether these owners’ skills justified the difference in what they were paid. It found that the range of worker productivity is much smaller than the standard pay gap. Managers and rain-makers were approximately 50% more productive than the average worker at the company. But they were paid far higher.

Income distribution according to the study says the richest Americans earn 30% of all income, and the bottom 10% earn just 1% of the money. However, ability-based wages would narrow that spread and distribute wealth more equally across the population. When income is based on each employee’s education, IQ, age, and personality traits, the top 10% earned 19% of income and the bottom 10% earned 3%. The biggest difference came in the richest category.

Ability-Based Wages Could Help Close the Gender Pay Gap

It turns out, women in particular could benefit from the adaptation of ability-based wages. That is because women are distinctly underrepresented at the management and executive levels of business. In fact, this difference in job title makes up most of the gender pay gap. When the measurement of median income is limited by the same job and qualifications, the most recent data shows only a $0.05 difference. But an uncontrolled measurement shows that women earn only $0.79 for every $1 paid to their male counterparts. This demonstrates the systemic gender discrimination in promotion and hiring at the higher levels. For example, according to Payscale.com, by age 45, 38% of men had been promoted to a manager or supervisor level. By the same age, only 30% of women had reached the same level. The difference is even more stark at the executive level, which makes up 8% of men over age 45, but only 3% of women ever become leaders in their companies. This so-called “opportunity gap” shows that women tend to remain in lower-level positions throughout their careers (59% never move past the individual contributor level). Under the current model this equates to lower-paid positions, regardless of the women’s actual ability or productivity.

Equal Pay Act and Title VII Help Women Fight for Ability-Based Pay

All the statistics in the world won’t convince the owners of small professional businesses to change their pay model. But a well-argued complaint to the Equal Employment Opportunity Commission or in federal court might. Title VII of the federal Civil Rights Act and the Equal Pay Act both prohibit gender discrimination in wages. These laws, and their state equivalents give employees the tools they need to affect change at work and be sure they are paid what they deserve. If you believe you are paid less than your male counterparts for substantially similar work, you may be able to use an Equal Pay Act complaint to negotiate a different way to measure employee worth, and get properly compensated for your productivity and hard work.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to use statistics like the Oxford report to prove your wage discrimination case. If you believe that you have been discriminated against as a woman in your small business, we will review your situation and help you plan a strategy to help you close the gender gap. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Will You Lose Your Rights If You Quit Your Job to Escape Sexual Harassment?

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Every day, many victims of sexual harassment walk into work wondering if this is the day they will quit. They may struggle to endure the hostile working environment rather than run the risks of unemployment. Others stick it out, only to be fired rather than have their complaints heard. Are you trapped in a sexually abusive workplace? What happens to your right to sue when you quit your job to escape sexual harassment?

This blog post will discuss EEOC v. Green Lantern Inn, Inc., Civil Action No. 6:19-cv-06704 in U.S. District Court for the Western District of New York, Rochester Division. It will discuss “constructive termination” and what happens if you quit your job to escape sexual harassment. It will also cover whether leaving a hostile work environment means giving up your right to protection under state and federal civil rights laws.

Hostile Work Environments Build Over Time

Sexual harassment and gender discrimination are rarely a one-time events. Most women and men facing sexual misconduct at work are subjected to a pattern of abuse that spans weeks, months, or even years. This behavior creates a “hostile work environment”. When an employer is put on notice that this kind of behavior is going on and doesn’t do anything to correct the problem, it can give the employee the right to sue her or his employer for sexual harassment at work.

How much harassment must you tolerate before you have a claim? The law says that a hostile work environment is created when a supervisor, coworker, or even customer of the business acts in a way that is “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” In most cases, that means more than just an off-color joke or a little flirting. But when you face sexual comments, jokes, or physical conduct day after day, it can quickly add up to more than a reasonable person can tolerate.

EEOC Sues for Hostile Work Environment at Rochester, New York Restaurant

That’s what happened to Rachel Clifford and her fellow coworker at Mr. Dominic’s on Main, a restaurant in Rochester, New York. The Equal Employment Opportunity Commission (EEOC) recently sued Green Lantern Inn, Inc. (the legal entity behind Mr. Dominic’s) for violating Title VII of the federal Civil Rights Act. The complaint in EEOC v. Green Lantern Inn, Inc., Civil Action No. 6:19-cv-06704 said that Rachel Clifford and her unnamed coworker suffered a pattern of sexual harassment by the restaurant’s head chef and kitchen manager, Paul Dowlatt. According to the complaint, his sexual misconduct included inappropriate physical contact, inappropriate, hostile and offensive comments, and explicit reqeusts for sex.

It was all too much for Ms. Clifford. She filed complaints about Dowlatt’s abusive conduct to the restaurant’s owner, John Tachin, and general manager, Anthony Barbone, but the company failed to act to protect her and her coworkers from the ongoing hostile behavior. When Mr. Dominic’s took no action to stop Dowlatt’s harassment, Clifford quit. Her coworker was fired shortly after lodging her own complaint about Dowlatt.

Both employees then filed complaints with the EEOC. When attempts at negotiation failed, the agency sued the restaurant on their behalf. Jeffrey Burstein, regional attorney for the EEOC’s New York District Office said in a statement:

“Employers who are on notice of sexual harassment in the workplace have a clear duty to quickly put an end to the harassment. . . . The EEOC will continue to hold employers accountable for failing to protect their employees from unlawful harassment.”

Quitting and “Constructive Termination”

The good news is that Ms. Clifford and others who are forced out of hostile work environments don’t automatically give up their rights to file claims with the EEOC or federal court just because they leave. According to the U.S. Supreme Court:

“Under the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is [equated with] a formal discharge for remedial purposes. . . .  The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).

That means you aren’t forced to keep enduring toxic working conditions just to protect your rights. If any reasonable person would have resigned when you did, then the judge will treat your case just the same as if you were fired. You can see that in the complaint filed with the EEOC. Ms. Clifford quit, so her claim is for constructive termination, but it is treated the same as her coworker who was fired.

When an ongoing hostile work environment forces you out of a job, you need the help of employment discrimination attorneys who will work hard to protect your rights. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you demonstrate the conditions at your workplace, and prove your case to your employer, the EEOC, or the court. If you are facing sexual harassment at work, we can help. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

What Happens After a Person is Fired for Gender Discrimination?

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There are many sources for what to do and what can happen after a person is fired because of the biases of his or her supervisor or employer. The appropriate response to gender discrimination and sexual harassment is often to terminate the harasser’s employment. But what happens after a person is fired for gender discrimination is a question troubling advocates and academics across the country.

Universities Wrestle With Teaching Around Sexual Harassment Issues

The #MeToo movement is two years old. During that time, the victims of sexual harassment and gender discrimination have stood up, many for the first time, against their politically powerful abusers. #MeToo and #TimesUp advocates have toppled heavy hitters in nearly every industry, including film-makers, writers, and scientists.

Now, as the dust settles, academics across the country find themselves wondering what to do with the pieces of what is left. Teachers and professors find themselves trying to decide what to do with the works of people who have been accused of gender discrimination and sexual harassment. At the University of California, San Diego, theater major Savanah Lyon circulated a petition calling for the university to cancel its “The Films of Woody Allen” course after the film-maker was said to have assaulted his adopted daughter. At Bowdoin College, Associate Professor Nadia Celis wrestled with what to do about author Junot Diaz’s novel “The Brief Wondrous Life of Oscar Wao” while the author was investigated for unwanted sexual contact at M.I.T. Similar questions have arisen over Roman Polanski’s “Rosemary’s Baby”, Chuck Close’s “Big Self-Portrait”, and Neil deGrasse Tyson’s work on astrophysics.

The question for these educators is whether to shun the works of those who have been accused of gender discrimination and sexual harassment, or to teach the works anyway, putting the work in context with discussions of abuse and power. There are advocates on both sides. Ms. Lyon told the New York Times:

“When you teach works like Woody Allen’s you’re normalizing and romanticizing the culture of abuse he was part of. . . . It’s not censorship to be selective when you choose the art you teach.”

Others worry that by erasing the works of people accused of this misconduct, they could accidentally be silencing racial minorities or cutting students off from would-be role models.

Employer Responses to Charges of Gender Discrimination

Employers face similar questions when charges of gender discrimination happen at work. Because sexual misconduct is often an expression of power, those accused often have sway and influence in the workplace. When an employer’s investigation reveals those allegations to be true, the employer has a tough decision to make: whether to fire the person doing the harassment, or the one reporting the abuse.

When the Employer Fires the Wrong Person

State and federal anti-discrimination laws make it illegal for an employer to fire someone because they report gender discrimination, or are involved in an investigation into sexual harassment. But it still happens. That’s why Title VII and the New York Human Rights Act include a separate right to sue for retaliation by an employer. If your boss decides it is easier to fire you than to investigate your claims or deal with your harasser, you have a right to file a claim with the Equal Employment Opportunity Commission (EEOC), the New York State Human Rights Commission, or state or federal court.

What Happens to the Harasser After He or She is Fired

But what if your employer does the right thing and fires the person who harassed you? What happens to them after they leave the position? Most will likely find new employment somewhere else. Some professionals, like sports physician Larry Nassar may lose their right to practice their trade.

Depending on the nature of the gender discrimination or sexual harassment, you may also have individual claims against your abuser. Physical sexual abuse carries serious criminal consequences, as well as civil claims for assault. If the gender discrimination included spreading false rumors about you or damaging your reputation, you may have claims for libel or slander. In New York, if your coworker spread sexually explicit images of you around the office, you could also have a “revenge porn” claim against him or her.

What Employers Can Do to Avoid Continued Gender Discrimination

What happens at your office is possibly more important than what happens to the individual fired for gender discrimination. Especially if you continue within the same working environment, you will want your employer to do more than remove one bad apple. That is why an employer’s reasonable response to gender discrimination often includes company-wide anti-harassment training and improved reporting and investigation procedures. These steps show your fellow coworkers that what happened was not acceptable, and helps to avoid continued gender discrimination from other sources.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond getting a person fired for gender discrimination. We want to help our clients be compensated for the harm they suffered and help to change the climate of harassment and abuse in their workplace. We will identify strategies and push for changes at work to help prevent repeated discrimination. Contact us today to schedule a consultation with one of our attorneys.

New York State Legislators Tighten Sexual Harassment Laws, Again

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Earlier this year, the New York state legislature held its first hearings on sexual harassment and gender discrimination in nearly 50 years. Now Senate Bill 6577, the product of those hearings, has been signed into law. That means tighter sexual harassment laws and better protection for domestic workers, independent contractors, and workers in small businesses.

In this blog post, I will discuss Senate Bill 6577, which tightens sexual harassment laws under the New York State Human Rights Law. I will explain how the new law, together with those that went into effect in January 2019, will expand the definition of employer and protections for non-employee workers, as well as making it easier to prove sexual harassment claims against employers and abusers.

New York Legislature Listens to Sexual Assault Victims

New York state legislators hadn’t taken the time to hold hearings on the state’s sexual harassment laws since 1992. But after a shift in state politics, the issue of sexual harassment and gender discrimination finally pushed its way to the fore. The legislators considered a set of anti-harassment bills designed to tighten sexual harassment laws and provide protections to previously under-served workers. The state senate heard from survivors, advocates, and legislative aides who had worked together to push for sexual harassment reform. At the end of the day, the vote was 109 to 19 in favor of the new law. Senate Majority Leader Stewart Cousins said:

“New York’s outdated sexual harassment laws have silenced survivors for too long. As lawmakers, it is our responsibility to protect survivors and work to improve the standards and culture in the workplace. . . . This legislation works to close loopholes, extend the statute of limitations, and ensure that sexual harassment policies are clear for all employees across the public and private sector. I applaud Senator Biaggi for her unrelenting advocacy on this issue.”

Senate Tightens Sexual Harassment Laws

The new laws, some of which are already in effect and others of which will roll out in 2020, tighten the state’s Human Rights Law against discrimination and sexual harassment. They also put in place protections for some of the state’s most disadvantaged workers.

Changing the Standard of Discriminatory Conduct

One of the biggest changes in the new law is the removal of the “severe or pervasive” standard from discrimination and retaliation cases. This means that employers won’t be able to claim that what happened “wasn’t that big a deal” as long as a reasonable person would have been offended by the behavior.

Shielding Workers from Oppressive Internal Complaint Processes

The law also removes the “Faragher-Ellerth” defense, which means skipping the internal complaint process will no longer doom a plaintiff’s claim. This is especially important in small businesses where the owner is likely close to the person committing the abuse, or may be doing it themselves.

Giving Victims More Time to Come Forward

The law also extends the period when employees can report sexual harassment at work. Complainants now have up to three years to come to grips with what has happened, gather their evidence, and make their case.

Protecting More Kinds of Workers

Workers in the smallest of small businesses and independent contractors often have trouble asserting their rights under established state and federal laws. Limits on the number of employees a company must have to qualify under the law and the definition of what an employee was cut many workers off from the protections available to everyone else. The new law expands protections to domestic workers, independent contractors, and the employees of small businesses, removing exceptions and expanding the definition of an “employer” or “employee” under state law.

Making Multilingual Training a Reality

The law will also expand requirements in the January 2019 state budget that require notice of state-mandated sexual harassment prevention policies in workers’ native languages. The January law said that, in some cases, anti-harassment training must be provided in secondary languages when enough employees of the same ethnic background work at the company. These protections are crucial to protecting immigrants and migrant workers who are often afraid to come forward and report sexual harassment and gender discrimination.

Limiting Non-Disclosure Agreements and Arbitration Agreements

The legislature also recognized that larger companies can often pressure their workers into silence through back-door deals and mandatory arbitration agreements. The new law bans the use of mandatory arbitration clauses for all discrimination claims, giving workers their day in court. It also severely limits how non-disclosure agreements may be used, giving workers time to fully read and understand what they are agreeing and removing the pressure to sign away their right to talk about what happened to them.

Giving Discrimination Lawsuits Teeth Through Attorney Fees and Punitive Damages

In addition to making it easier for sexual harassment victims to come forward, the new laws also made the cost of violating them more serious. By requiring judges to award attorney fees to prevailing plaintiffs and allowing them to impose punitive damages, the law keeps larger companies from simply chalking up discrimination claims as a cost of doing business.

Making the Most of New York’s New Anti-Harassment Laws

This set of laws are clearly designed to make it easier for the victims of sexual harassment and gender discrimination to come forward. They make it more costly for employers who ignore their responsibilities to investigate and respond to discrimination at work, and make sure no one falls through the cracks because of the size of the company they work for.

But even with all these protections, proving discrimination and harassment isn’t easy. The sexual harassment attorneys at Eisenberg & Baum, LLP, have decades of experience helping the victims of workplace harassment get the compensation they deserve. We know how to make the most of state and federal laws and can help you build your best case. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

What Woman to Woman Gender Discrimination Looks Like

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The faces of the #MeToo movement have been women from across the country who have faced sexual harassment and gender discrimination at the hands of the men they worked for. But that’s not the only way female employees can be disadvantaged at work. Find out what woman to woman gender discrimination looks like, and what you can do when it happens.

Title VII Protects Against Sexual Harassment and Gender Discrimination

State and federal laws prevent employers from discriminating against their employees for inherent traits like sex and gender. The New York State Human Rights Act and Title VII of the federal Civil Rights Act each protect employees against sexual harassment and gender discrimination at work. Specifically, the laws say that your employer, manager, or supervisor can’t make employment decisions based on your actual or perceived sex or gender. That could include:

  • Hiring men but not women
  • Firing women who seem too “weak” to do physical jobs
  • Basing evaluations or promotions on how well a person matches sexual stereotypes
  • Assigning women to specific shifts based on assumptions about their family duties at home
  • Choosing a woman over a similarly qualified man because of her gender
  • Paying men more than women for the same work
  • Assigning bonuses based on sexual biases

The laws also protect against sexual harassment that can happen at work. They make it illegal for your boss to offer employment opportunities in exchange for sexual favors. They also require employers to investigate, respond to, and take reasonable steps to prevent sexualized behavior between coworkers.

Same-Gender Discrimination Is Just as Illegal

All those protections are gender-neutral in the statutes. It doesn’t matter who is doing the discrimination, or who their target is, male or female. While the most iconic cases involve powerful men using their power to discriminate against or harass less powerful women, the truth is that same-gender discrimination happens all the time. When it does, the same laws apply and employees can receive the same compensation, whether the person behaving badly is a man or a woman.

What Woman to Woman Gender Discrimination Looks Like

Woman to woman gender discrimination is less likely to take on a “quid pro quo” character. While it can certainly happen, in most cases, women who discriminate against their female employees aren’t as likely to be looking for sexual favors in exchange for business perks. Instead, most same-sex gender discrimination preys on the stereotypes and assumptions the female boss or coworker has about how women can and should do their jobs. This could include:

  • A woman HR director passing over female candidates applying for labor-intensive jobs based on assumptions about their physical abilities
  • A partner at a law firm or other white-collar company telling an employee she should wear skirts or make-up if she wants to be successful in the industry
  • A supervisor calling an employee “butch” or saying she is too masculine

Same-gender sex discrimination may also sometimes include assumptions about a woman’s family status or duties to her children. For example:

  • A woman CEO questioning whether her employee is planning to have children in deciding whether to offer a promotion
  • A shift-supervisor cutting a female employee’s hours without her consent so she can be home with the kids
  • A hiring manager asking if a woman is married and what her husband does as part of a job interview

Same-gender sexual harassment may be even more common than other forms of gender discrimination. This kind of behavior can happen on the workshop floor between coworkers, or it can pass from employer to employee. Woman to woman sexual harassment could look like:

  • Invitations to sexually explicit outings or events
  • Posting pornography or explicit pictures in the workplace or on company-only communication portals
  • Inappropriate physical touching
  • Making jokes about a coworker’s sexuality or gender

What to Do If You Face Gender Discrimination from Your Female Boss

With all these different ways women can discriminate against other women, it may feel like there’s nothing you can do to level the playing field at work. But remember, the law says that not only is your employer prohibited from discriminating against you for being a woman, it must take reasonable steps to respond to and prevent gender discrimination and sexual harassment at work.

That means the first step to stopping woman to woman gender discrimination is to report it. Object to the offensive jokes or the discriminatory work schedule — in writing if you can. Make a scene. Stand up for your right to wear pants (according to your company dress code) or to not wear makeup. Say no to the sexually explicit emails and invitations.

And then send it up the line. File a formal complaint with your supervisor or human resources department — again in writing — and follow up. Make them do their job to respond to the complaints. If they don’t, its time to talk to an employment discrimination attorney.

You can enforce your right to a discrimination-free workplace by filing a complaint with the Equal Employment Opportunity Commission or in state or federal court. Which route is your best option will depend on what happened, where it happened, who your employer is, and what state you work in.

At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, plan your best strategy, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We stand up for you against sexual harassment and gender discrimination, even when the boss is a woman.

EEOC Swears in Sharon Gustafson General Counsel, First Woman to Do So

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After nearly 3 years without a head attorney, the EEOC has finally sworn in Sharon Gustafson as its new General Counsel. Will the first woman to hold the seat mean stronger protections for women facing gender discrimination, sexual harassment, and pregnancy discrimination? Or will LGBT advocates’ concerns prove true?

In this blog post, I will discuss the appointment of Sharon Fast Gustafson as General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC). I will explain the role of the General Counsel, and how her appointment could affect the agency. I will also discuss the fact that Gustafson is the first woman to have held the seat, and what that could mean for future sexual discrimination cases.

EEOC Fills 3-Year Vacancy for General Counsel

The EEOC’s General Counsel is in charge of the agency’s litigation program. The officer is appointed by the President and confirmed by the U.S. Senate to a 4-year term. But the EEOC has been without its head of litigation since December 2016, when David Lopez resigned.

At the same time, the EEOC has also faced vacancies among its five commissioners. These commissioners oversee the policies, finances, and organizational development of the agency. The EEOC commission is intentionally bipartisan. Three commissioners are selected from the President’s political party and two from the opposition. When Commissioner Chai Feldblum’s term expired on January 3, 2019, there were only two commissioners left. That meant the agency as a whole has been operating without guidance or leadership for most of the year.

Then, on August 2, 2019, the U.S. Senate confirmed Democrat Charlotte Burrows for her second term as Commissioner (through July 1, 2023), and confirmed Sharon Fast Gustafson as the agency’s General Counsel. She was sworn in to the role on August 8, 2019, promising to uphold the charge of the agency to advance equal employment opportunity in the American workplace. In a statement issued by the EEOC, Gustafson said,

“My own experience so far in employment discrimination matters has not been to sit in a high seat, pulling the levers of power. Rather, I have been a solo lawyer most often repre­sent­ing the employee of modest means or the small business employer. My seat has been in a media­tion room, trying to invoke the agency’s remedies to help someone get his job back, to get compen­sa­tion for a wrongful termination, or to preserve the reputation of an employer wrongly accused. I think of my work as having been retail, street-level civil rights litigation. I look forward to using my decades of experience in employment law to conduct the litigation of the EEOC. My goal is to work with the EEOC’s career staff to prevent illegal discrimination in the workplace and to remedy it where it has occurred.”

Sharon Gustafson Becomes First Woman General Counsel to Lead EEOC

Gustafson’s confirmation is a historical moment. She is the first woman to hold the position of General Counsel. All three of the currently seated commissioners are women as well. This could imply that women facing gender discrimination, sexual harassment, or pregnancy discrimination at work may find a more sympathetic ear within the EEOC leadership.

That does appear to be at least partially true in Gustafson’s case. Prior to her confirmation, she worked for over 20 years as a solo employment attorney, representing employees and small businesses in employment cases and before the EEOC. She was also the attorney for Peggy Young, who took a pregnancy discrimination case all the way to the U.S. Supreme Court in 2015. Ms. Young had asked for pregnancy-related accommodations when her doctor recommended she limit how much weight she lifted. Her employer, UPS, refused those accommodations, which meant that Ms. Young lost her employee medical coverage at a time when she needed it most. Through Gustafson’s advocacy, the U.S. Supreme Court ruled that an employer is required to provide the same reasonable accommodations to pregnant women as they would any other employee with similar medical restrictions.

Civil Rights Groups Warn Against What Gustafson’s Confirmation Means to LGBT Workers

But not everyone is happy about Sharon Gustafson stepping into the role of EEOC General Counsel. Prior to her confirmation, a coalition of civil and human rights organizations wrote to the Senate Committee on Health, Education, Labor, and Pensions with concerns over how she will treat the rights of LGBT workers who file complaints with the EEOC. The Trump Administration’s treatment of gay and Trans* citizens has been checkered at best. While the EEOC has maintained its policy that Title VII of the federal Civil Rights Act protects against sexual orientation discrimination, the Department of Justice has argued to the Supreme Court that the law doesn’t apply to the rights of Trans* worker Aimee Stevens. The National Women’s Law Center and other advocacy groups are concerned that under Gustafson’s leadership the EEOC will fall short of “faithfully and robustly enforc[ing] civil rights laws and protect[ing] these vulnerable communities from unlawful discrimination.”

With Gustafson and Burrows’s confirmations, the EEOC will once again have the ability to create and modify policies and procedures for the agency. Given the civil rights groups’ concerns, it remains to be seen if these new changes will be to the benefit of women and LGBT workers, or if the EEOC will go the way of other agencies within the Trump administration, and away from underprivileged citizens across the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.

Study: Women Software Developers’ Gender Gap Won’t Close for 100 Years according to study

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The software industry has had a long-standing reputation as a white man’s industry. Minorities and women have had trouble breaking into the higher ranks of computer companies for decades. Now a new study shows that women software developers’ gender gap isn’t going anywhere. At its current rate, the gap won’t close for more than 100 years.

In this blog, I will discuss a study from Cornell University on gender trends in computer science. I will discuss how women software developers’ gender gap persists across the industry, and what software engineers can do to combat gender discrimination in their own workplaces.

Software Industry Struggles with Hiring Women and Minorities

Computer companies from Amazon to Google have long had difficulty recruiting and retaining women and minority software developers. Women in the software industry have fought gender discrimination in everything from hiring, to team assignments. While work has been done to try to attract minorities and women into the industry, companies’ development teams are still heavily white and male.

Experts thought the situation was getting better. There have been efforts across the industry to hire and promote women to combat the gender gap. But when the researchers at the Allen Institute for Artificial Intelligence partnered with Cornell University to study the issue, they found things were not as rosy as they seemed.

Study Says Women Software Developers’ Research Goes Unpublished

The study analyzed more than 2.87 million scientific papers published within the computer science industry between 1970 and 2018. It categorized publications based on the first names of the authors — a method that serves as an imperfect proxy for gender. While women software developers’ gender gap had narrowed, they were not nearly on par with men when it came to publications. In 2018, male authors were published around 475,000 times, while women only received 175,000 bylines. In all, women only accounted for 27% of published research done in computer science.

Then the researchers used the change year to year in those publications to look forward, estimating when women would finally receive equal publication to men. The answer surprised everyone. The most optimistic projection said women’s publications would not equal men until the year 2100. The more likely answer: 2137.

This can’t be blamed on a lack of women in STEM (Science, Technology, Engineering and Medicine) generally, either. Other scientific fields are far closer to representing men and women equally. In biomedicine, for example, the forecast calls for equality by 2048. The New York Times reports:

“‘We were hoping for a positive result, because we all had the sense that the number of women authors was growing,’” said Oren Etzioni, the former University of Washington professor who oversees the Allen Institute. “‘But the results were, frankly, shocking.’”

Are Women Software Developers Excluded from Cutting Edge Projects?

Because the study focused on publications in scientific journals, it could seem like this is an academic problem, rather than a workplace issue. However, as private companies push the boundaries of technology, they are publishing much of their best work in those same journals.

And that can cause problems in the software these companies are creating, as well. Software development companies have taken the initiative in creating programs for facial recognition, speech-to-text, and automated resume review. When the teams working on these projects are predominantly white men, the programs they create can end up duplicating their biases. This makes gender discrimination part of the code and further frustrates women’s efforts to break into the industry.

There is also a feeling that women who start in software development don’t end up there. Last year, thousands of employees walked out of Google offices across the globe because of how the company had responded to sexual harassment claims against a top male software developer. Female students and workers in computer science find they are still facing an uphill battle for a harassment-free place to study and work.

“‘There is a problem with retention,’” said Jamie Lundine, a researcher at the Institute of Feminist and Gender Studies at the University of Ottawa. “‘Even when women are choosing computer science, they can end up in school and work environments that are inhospitable.’”

Women software developers will continue to face gender gap issues for decades into the future. They will face hurdles in hiring, promotion, publication, and in the fight against sexual harassment at work. At Eisenberg & Baum, LLP, our employment discrimination attorneys are here to help. If you believe that you have been discriminated against as a woman in the software development industry, we will review your situation and help you plan a strategy to help you close the gender gap for yourself and your fellow developers. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

SCOTUS Hears Transgender and Sexual Orientation Discrimination Cases

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All eyes turned to the U.S. Supreme Court on October 8, 2019, as the Justices heard oral arguments in three transgender and sexual orientation discrimination cases. Find out what happened, and what will happen next in the defense of LGBTQ employee rights.

In this blog post, I will review the oral arguments before the U.S. Supreme Court in the cases of Gerald Bostock and Donald Zarda’s sexual orientation discrimination case and Aimee Stephens’ transgender discrimination case. You can learn more about the cases here. I will discuss what the Justices had to say, and what will happen next in each case.

Sexual Orientation Discrimination Cases Rest “On the Basis of Sex”

The first set of oral arguments were on the consolidated cases of Bostock v Clayton County and Zarda v Altitude Express Inc. In both cases, male employees were fired from their jobs as a child welfare services coordinator and a skydiving instructor when their employers learned that they were gay and attracted to the same sex.

The Arguments For and Against Sexual Orientation Discrimination Protections

Attorney Pamela Karlan speaking on behalf of the employees, summarized their position by saying:

“When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.”

In other words, because a gay man is fired for loving a man but a straight woman isn’t fired for the same behavior, that is illegal sex discrimination. She continued:

“And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.”

But the attorney for the employers and the Solicitor General from the U.S. Department of Justice disagreed. They said there was a fundamental difference between sex and sexual orientation. When Congress passed Title VII of the Civil Rights Act, they couldn’t have meant to include sexual orientation discrimination in prohibiting discrimination “on the basis of sex”. After all, they said, at that time the act of gay sexual intercourse was illegal in many states. As long as an employer would treat gay men and lesbians the same — based on their attraction to the same sex — they argued that Title VII shouldn’t apply.

Transgender Discrimination Case Asks if Status or Gender Identity is Enough to Trigger Protections

The second set of oral arguments were in RG & GR Harris Funeral Homes, Inc v EEOC, where the funeral home fired Aimee Stephens, a transgender woman, when she informed her employer she would be presenting as female and complying with women’s dress code standards at work.

The Arguments For and Against Transgender Discrimination Protections

Attorney David D. Cole of the American Civil Liberties Union (ACLU) presented Aimee Stephens’s argument. He said:

“Harris Homes is treating Aimee Stephens differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired. That is discrimination because of sex.”

The employee’s argument again was that what had happened was discrimination “on the basis of sex”, in this case, the sex assigned to Ms. Stephens at birth, and the sex stereotypes the funeral home owner held about how men and women identify, behave and dress. He continued:

“[T]he notion that somehow discriminating against someone because they are transgender is not discrimination, discriminating against them because of their sex I think falls apart because to say I’m discriminating against you because you are transgender is to say I am treating you differently from other people who have the same gender identity, because of your sex assigned at birth.”

The funeral home’s attorney, John Bursch, told the court, “Treating women and men equally does not mean employers have to treat men as women. That’s because sex and transgender status are independent concepts.” He and the Solicitor General refused to recognize transgender women, instead referring to them as “a man who identifies as a woman”. They said that Congress never included protections for a transgender classification independent of sex. Once again, the Solicitor General referred the Court to the fact that Congress had not yet amended Title VII to include separate protections for gender identity and sexual orientation.

The Justices’ Take on the Transgender and Sexual Orientation Discrimination Cases

It is always difficult to know what Supreme Court Justices are thinking just by listening to the oral arguments. Still, these hearings are the first opportunity attorneys and advocates have to gauge where the newly appointed Justices may fall on the issues of LGBTQ employee protections.

Several judges asked whether the employees were asking the Court to change the language of the statute to expand protections against transgender and sexual orientation discrimination. Justice Ginsburg and Chief Justice Roberts pushed for clarity on what Congress meant to do in 1964. Justices also asked whether this could be considered a “bona fide occupational qualification” to justify treating men and women differently, and whether there should be a religious exemption for employers who maintained sincerely held religious beliefs.

The Justices also spent a significant amount of time trying to anticipate the kinds of cases that could arise if they ruled in favor of protections for transgender employees on the basis of sex. They debated how the law could apply to sex-segregated bathrooms and sports teams.

At the end of the arguments, it seemed most of the Justices were leaning in their predicted directions. The Court’s 4 liberal Justices appeared to side with the employees while the more conservative Justices favored the employers. However, recently-appointed Justice Gorsch surprised commentators by asking questions that tended to swing in favor of LGBTQ protections. Even Justice Kavanaugh asked the employers’ attorney how the Court could distinguish “between the literal meaning of ‘because of sex’ and the ordinary meaning of ‘because of sex.’”

What Happens Next for LGBTQ Employee Protections

The oral arguments may be over, but that doesn’t mean advocates and attorneys can expect a decision soon. Most commentators believe the Court will wait until June 2020 to issue its decision, as it has in many other LGBTQ cases. At the same time, the U.S. House of Representatives have passed the Equality Act, which would explicitly add sexual orientation and gender identity to the list of protected traits under Title VII, though the Senate has not yet taken up the matter. Given the statements of certain key senators, it seems unlikely they will vote in favor of the law.

Even if the Supreme Court and Congress both fail to act to protect against transgender and sexual orientation discrimination, residents in many states, including New York, can still turn to their state Human Rights laws for additional protections. However, residents of other states, including the states where Aimee Stephens, Gerald Bostock and Donald Zarda were employed, could be left without important protections available to their cisgendered and straight coworkers.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers protect their rights under Title VII, and state civil rights laws. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work. If you have been the victim of transgender or sexual orientation discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.