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Common Examples of Workplace Harassment

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You may have the feeling you’re being harassed at work, but you’re not sure whether you have an actual legal claim. There can be a difference between what one individual employee feels is harassment and what constitutes illegal harassment under federal, state and local laws. Merely being bothered by a supervisor or co-worker, while unfortunate for an employee, does not necessarily mean you have a legal claim for harassment. Workplace harassment has a very specific definition under the law. We’ll discuss that definition and give some common examples of harassment in the workplace.

If you have experienced what you believe to be harassment at your job, these examples can help you understand some of the types of harassment that lead to a legal claim. If you’d like more guidance on your rights, contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help and advocate on your behalf.

What Is Workplace Harassment Under the Law?

Harassment can be a form of employment discrimination under various federal, state and local laws. In order to be considered discrimination, the harassment must be based on some protected trait — some aspect of who the employee is, rather than his or her behavior or performance on the job. Under federal law, those traits include:

  • Race or Color,
  • National origin,
  • Sex or Gender,
  • Pregnancy,
  • Age,
  • Religion,
  • Disability, and
  • Genetic information.

Many state and local governments have enacted similar anti-discrimination laws which overlap with the federal protections. New York State’s Human Rights Law adds protections for discrimination or harassment based on a person’s:

  • Sexual orientation,
  • Gender identity
  • Marital status,
  • Arrest and conviction record,
  • Military status or service,
  • Religious observance of Sabbath,
  • Political activities,
  • Unemployment status, and
  • Status as a victim of domestic violence.

Illegal workplace harassment under the state or federal law happens when an employee suffers unwanted conduct based on a protected trait and either:

  • The employee had to endure the conduct in order to keep their job or
  • The conduct was so severe or happened so often that it created a hostile work environment.

Typically, isolated incidents of unwanted conduct or petty slights won’t be enough to file a claim under anti-discrimination laws, though that’s not a hard and fast rule. Some conduct can be so severe that even one incident can create a legal claim of workplace harassment. The examples we provide below tend to focus on the more common situation where an employee is subjected to continued unwelcome conduct over an extended period of time.

Examples of Workplace Harassment

Harassment can come in many forms and from many sources. The harassing conduct can be verbal or physical and the harasser can be a co-worker, supervisor or even an non-employee like a customer or contractor. Under New York State’s Human Rights Act, non-employees are also protected if they are doing business at the company’s location (including contract workers or vendors). Here are some common forms of workplace harassment.

Verbal Harassment

Possibly the most common behavior that comes to mind when you think of workplace harassment is verbal harassment. Verbal harassment can include jokes, innuendos, slurs, name-calling and insults, among other things, as long as the behavior is based on a protected trait.

Verbal Harassment

One discrimination case settled between the federal Equal Employment Opportunity Commission (EEOC) and an Arizona-based aviation services company provides a good example of the type of verbal conduct that can create a workplace harassment claim. In that case, an employee of the company claimed he was harassed based on his national origin (Turkey/Palestine) and religion (Islam). The employee said that his supervisor made insulting remarks to him, including that he “dressed like [he was] gonna blow up the World Trade Center,” and made derogatory jokes about Arabs. Despite the fact that the employee reported this conduct to his employer, the employer did nothing to stop it and the employee eventually resigned. The company eventually settled the case for $50,000.

In another EEOC case against the restaurant chain Golden Corral, the verbal harassment focused on the employee’s mental disability, and then turned to sexual harassment. The company’s dishwasher had a form of high-functioning autism. His assistant manager called him a “retard” and “stupid”, swore at him, and threatened to sexually assault him, demanding oral sex. Eventually, the employee was forced to leave because of the hostile work environment after he was again assigned to report to the same abusive manager. He filed a complaint with the EEOC, which sued Golden Corral’s parent company, Jax, LLC. The case eventually settled for $85,000.

Physical Harassment

Though physical harassment is less common than verbal harassment, it can often be more severe. Physical conduct, like hitting, pushing, groping and other touching, can be present in any number of harassment claims, but is often associated with sexual harassment.

Physical Harassment

For example, in a sexual harassment case filed by the EEOC against Red Lobster, several female employees alleged their manager created a hostile work environment by, among other conduct, physically harassing them. The conduct included the manager pressing himself against the employees as well as grabbing and groping them. Again, the employees complained to their employer, but no action was taken. After the EEOC filed suit on the employees’ behalf, Red Lobster agreed to pay $160,000 in damages and make other changes at its restaurant to avoid similar incidents in the future.

Starting in 2019, New York State law now requires all employers to train new hires and existing employees about how to prevent and respond to physical sexual harassment. This training must include examples of workplace harassment and explain an employee’s rights and remedies if they find themselves the target of illegal and unwanted behavior.

Supervisor Harassment

Harassment can be most intimidating when it comes from a boss, manager, or supervisor. Supervisors can use their position of authority to subject employees to discriminatory conduct, leaving the employee feeling trapped and vulnerable. Federal courts have found that when it is the employee’s supervisor doing the unwanted conduct, it creates a claim for workplace harassment that much sooner.

Supervisor Harassment

In another sexual harassment case, brought by a female employee of UBS Financial Services, a manager and UBS Vice President allegedly harassed the employee over a period of several years with repeated inappropriate sexual comments, remarks about her body, explicit emails and phone calls to the employee’s home. The employee complained to her employer, but instead of getting relief from the harassment, she was ultimately fired. The employee filed a lawsuit against UBS and received an award of $8.4 million.

Supervisor harassment can even come from the owner of the company itself. When you work for a small business, sometimes it can be hard to get relief under Title VII or other federal anti-discrimination laws. However, the New York State Human Rights Act applies no matter how small the company is. When a popular New York restaurant owner created a “culture of fear” among his employees, they went to the press to make their stories heard. The New York Human Rights Division reviews these kinds of cases. If no resolution can be reached, state residents can sue their bosses in state court.

Co-Worker Harassment

While coworkers may not have the same level of authority over an employee, they can also create an intimidating work environment for employees that is just as unlawful as harassing conduct of a supervisor.

Coworker Harassment

A case brought by the EEOC against a North Carolina trucking company in 2011 exemplified the type of hostile work environment case that can be created by the discriminatory actions of coworkers. The EEOC brought the case on behalf of two African-American employees, alleging their employer had allowed a racially hostile work environment to exist. According to the EEOC, that environment was created, in large part, by coworkers who made derogatory and threatening comments to the employees, used racial slurs and even displayed a noose in the workplace. The jury in that case agreed that the employees had been harassed based on their race and awarded them a total of $200,000 in damages.

In another EEOC complaint, several partners of a top law firm sued the firm for coworker harassment and gender discrimination they said created a “fraternity culture” at work. Among their claims, the female lawyers said that male partners would demand that they sing and dance, force the women to climb over them or push them into pools at company parties, and make sexualized comments about the female employees’ clothes, high heels, or smiles. When these male partners would make inappropriate jokes they would often say “add it to the file” acknowledging that their conduct was illegal. The case requested over $2 million in damages.

Are You Being Harassed at Work?

The examples of unlawful workplace harassment don’t end with what we’ve listed above. In some cases, there is a mixture of unwelcome conduct (both verbal and physical) and harassers (supervisors, coworkers and others) that ultimately creates a discriminatory environment for an employee. In other cases, the initial workplace harassment is made worse by retaliation when employees speak out. Each case of workplace harassment is unique. Whether it rises to a level of illegal discrimination depends on the specific facts of the case.

At Eisenberg & Baum, LLP, our employment discrimination lawyers have seen countless examples of workplace harassment. We know what it takes to make, and win, a case for sexual harassment and gender discrimination in state or federal court. If you’d like to discuss the facts of your own employment harassment claim with an experienced attorney, please contact us. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

Are Female Government Contractors Protected from Gender Discrimination?

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Should female government contractors be entitled to fair pay for the work they do? An Obama-era 2014 executive order called Fair Pay and Safe Workplaces sought to hold contractors accountable for pay violations, sexual harassment, and other forms of gender discrimination. But those protections have been rolled back under the Trump Administration, leaving employees wondering if they are still protected at all.

In this blog post, I will discuss the federal laws and executive orders protecting female government contractors from sexual harassment, abuse, and gender discrimination. I will explain how an Obama-era executive order extended additional protections, and how a 2017 executive order repealing those protections could change the way women are treated, and paid, in government contract jobs.

Anti-Discrimination Laws Protect Female Government Contractors from Gender Discrimination and Unfair Pay

If you work for the federal government or one of its many contractors, you would assume that federal laws against unfair compensation, harassment, and discrimination would apply to you as much as to any employee of a private company. And you would be right. Federal contractors, departments, and agencies can all be sued for violating anti-discrimination laws including Title VII of the federal Civil Rights Act and the Equal Pay Act. Employees of these contractors have just as much right to file complaints with the Equal Employment Opportunity Commission (EEOC) and in federal court as their privately employed counterparts.

But in 2010, the United States Government Accountability Office (GAO) found that female government contractors were being targetted for sexual harassment, unequal pay, and gender discrimination violations. Companies that received millions in federal contract dollars were among the worst offenders when it came to violations of 14 labor and civil rights laws. Of the 50 worst employers examined by the GAO, 60% had been given federal contract money after receiving penalties by the Department of Labor’s Wage and Hour Division. They scored similarly poorly at the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB).

Mandatory Arbitration Clauses Hide Sexual Harassment Against Female Government Contractors

But those same numbers weren’t showing up in the courts. The research did not reveal very many allegations of sexual harassment or sexual assault against the government contractor employers. At the time, this was attributed to the mandatory arbitration clauses in the contractors’ employment agreements. These agreements pushed sexual harassment and abuse claims out of the public eye, forcing them to be resolved behind closed doors by privately paid arbitrators, rather than federal judges.

Obama-Era Executive Order Put Government Money Behind Fair Pay

On July 31, 2014, in response to the 2010 GAO study, then-President Barack Obama signed the Fair Pay and Safe Workplaces Executive Order. This order said that government contractors receiving more than $500,000 in federal funds had to live up to the expectations of civil rights and labor laws to get their money. It required applicants for federal funds to disclose 3 years of public and private awards or decisions (including arbitration decisions) against the company for violations of:

  •  “(A) the Fair Labor Standards Act;
  •  (B) the Occupational Safety and Health Act of1970;
  •  (C) the Migrant and Seasonal Agricultural Worker Protection Act;
  •  (D) the National Labor Relations Act;
  •  (E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
  •  (F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
  •  (G) Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity);
  •  (H) section 503 of the Rehabilitation Act of 1973;
  •  (I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans’ Readjustment Assistance Act of 1974;
  • (J) the Family and Medical Leave Act;
  • (K) title VII of the Civil Rights Act of 1964;
  • (L) the Americans with Disabilities Act of 1990;
  • (M) the Age Discrimination in Employment Act of 1967;
  • (N) Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors); or
  • (O) equivalent State laws, as defined in guidance issued by the Department of Labor.”

The order also required federal government contractors to provide transparency in their pay determination and to remove mandatory arbitration in cases of sexual harassment, sexual assault, or discrimination. The Executive Order also contained a detailed explanation as to why these protections were necessary:

“This order seeks to increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws. … ”

President Trump Undoes Fair Pay and Safe Workplaces Executive Order

The Fair Pay and Safe Workplaces Executive Order continued as the law of the land for the rest of President Obama’s term in office. But just over two months into Donald Trump’s presidency, he signed an executive order of his own. The new order didn’t include any sweeping policy statements or provide any explanation. It simply said,

“Executive Order 13673 of July 31, 2014, section 3 of Executive Order 13683 of December 11, 2014, and Executive Order 13738 of August 23, 2016, are revoked.”

It then instructed all executive agencies and departments to rescind orders, rules, regulations, and policies based on the now-revoked orders. Without further instruction, the order left it unclear what those agencies were supposed to put in their place to protect female government contractors.

Fighting Back Against Unfair Pay and Gender Discrimination

Two years later, female government contractors still face gender discrimination on the job and in their paychecks. For some, the Fair Pay and Safe Workplaces Executive Order has created lasting changes to their employment contracts. They have better access to federal and state anti-discrimination laws, and a clearer understanding of their companies’ pay structures.

But for others, when Trump rescinded the executive order, it signaled a return to the old habits and cavalier violations of federal labor and civil rights laws that prompted the GAO study in the first place. For those female government contractors, a successful defense against sexual harassment and gender discrimination at work will depend on zealous representation in front of arbitrators and investigators alike, and a creative approach to getting them the relief they need.

The employment attorneys at Eisenberg & Baum, LLP, can help. Our experienced gender discrimination and sexual harassment attorneys know how to fight back against government contractor employers trying to hide behind arbitration clauses and pay secrecy. Contact us to schedule a consultation at our office in New York City, or over the phone.

Alleged “Fraternity Culture” at One Top Law Firm Blamed for Equal Pay Act Violations

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Do you have to be “one of the boys” to get the best projects, and the best pay, at your work? A lawsuit against one of the top law firms in the country says the firm’s “fraternity culture” led to gender discrimination and Equal Pay Act violations. And the plaintiffs are asking for a big payout.

In this blog post I will review a lawsuit against Jones Day for Equal Pay Act violations. I will explain how the firm’s alleged “fraternity culture” was blamed for unequal pay to women associates and resulted in gender discrimination and illegal treatment based on their pregnancy and maternity.

Complaint Calls Out Jones Day for Gender Discrimination, Pregnancy Discrimination, and Equal Pay Violations

On April 3, 2019, Sanford Heisler Sharp, LLP filed a complaint against one of the country’s biggest law firms: Jones Day. The complaint outlined the experiences of 6 women, Nilab Tolton, Andrea Mazingo, and four who remained anonymous trying to get ahead in Jones Day’s competitive work environment. According to the complaint:

“In Jones Day’s fraternity culture, male brotherhood is affirmed and strengthened by comments and conduct that derogate women, leaving female associates to choose between capitulation and exclusion.”

The complaint describes a corporate culture that gave more opportunities to male partners and associates, while exposing women to sexual harassment, gender discrimination, pregnancy discrimination, and unequal pay.

Gender Discrimination and Equal Pay Violations at Jones Day

The core of the complaint centers around Jones Day’s fraternity culture, which the plaintiffs’ attorneys say gave male associates an advantage in career advancement. It claims:

“Jones Day’s fraternity culture presents female attorneys at Jones Day with an unpalatable choice: participate in a culture that is at best inhospitable to women and at worst openly misogynistic or forego any hope of success at the Firm. For a female associate to succeed at Jones Day, she must at least tolerate the stereotyped expectations of the Firm’s male powerbrokers. To challenge these expectations by word or deed, even in settings ostensibly provided for ‘honest’ feedback, is career suicide.”

Within this environment, male associates are partnered with mentoring senior partners, who guide them toward promotion and advancement. Women, however receive inadequate access to high-impact work, mentorship, or support. Advancement decisions at the firm are also disturbingly subjective and susceptible to gender stereotyping and bias. All partnership and pay decisions are made by a single Managing Partner, Steve Brogman, based on “consensus statements” about the employee’s work over the past period. These reports are notoriously cherry picked to justify Brogman’s decisions. Nor are staff permitted to keep copies of the “consensus statement” after their review meeting.

Pregnancy Discrimination Against Partners and Associates

When women fail to advance within this fraternity culture, the complaint says that it is often because of gender stereotypes and assumptions about mothers’ commitment to the firm.

“The tireless, childless female associate is inadequately ‘fun’ and excessively ‘intense’; the high-performing associate mother of small children is ‘deadline-challenged,’ or lacks ‘commitment.’ ”

Plaintiff Nilab Tolton said that when she asked about the firm’s maternity leave policy she was immediately seen as a problem child, despite her credentials as a Harvard-educated attorney. When she did become pregnant, she returned to find her salary frozen, negative reviews on her record, and less access to work opportunities. After her second child’s birth she was simply told to find a new job.

Sexual Harassment Among Top Law Firm Employees

Jones Day’s fraternity culture also manifests in overt instances of sexual harassment and abuse, according to the complaint. When they seek out a male patron to aide their career, they are often met with sexual harassment and abuse from those male partners who they are relying on to provide them work.

The complaint also alleged a number of sexual harassment violations by Jones Day employees including:

  • Demands for female attorneys to sing and dance
  • Requiring a female associate to climb over male associates to leave a table at a restaurant
  • Pushing a female associate into a swimming pool during a party at a partner’s home
  • Sexualized comments about female employees’ clothes, high heels, or smiles

The fraternity culture is so prominent that Jones Day’s male attorneys mock complaints over gender discrimination that happens at the firm, making jibes like “add it to the file” when they make sexist comments or jokes.

Class Action Seeks to Change Fraternity Culture at Jones Day

Tolton, Mazingo, and the other plaintiffs aren’t just looking for a payout for themselves. They have filed the complaint as a class action, saying that all the women in the workplace at the law firm has been affected by gender discrimination, pregnancy discrimination, and equal pay violations. The six representative plaintiffs want the court to find that Jones Day must:

  • Compensate men and women equally for substantially similar work under the Equal Pay Act.
  • Implement training and programs to eliminate the hostile work environment under the gender discrimination portions of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.
  • Promote and compensate female attorneys in a non-discriminatory way.
  • Pay money damages for lost pay, benefits, penalties, and other financial losses.
  • Pay punitive damages to all members of the class.
  • Pay fines, waiting time penalties, and civil penalties under the Pregnancy Discrimination Act
  • Pay the plaintiff’s attorney fees, costs, and interest

All together, the amount of money damages requested is $2,000,000. The injunctive relief and process of changing their policies and systems could cost the famous law firm far more.

When a fraternity culture turns a workplace into a locker room, it is often the women who take the brunt of damage. Whether in the form of sexual harassment, gender discrimination, pregnancy discrimination, or equal pay violations, employers in male-dominated industries like law can put up obstacles that women must work hard to overcome.

At Eisenberg & Baum, LLP, we aren’t afraid to take on big employers with fraternity cultures and deep histories of harassment and discrimination. We can help you find allies at your office, coordinate your claims, and file the right complaints with the Equal Employment Opportunity Commission (EEOC) and in federal court make the most of your sexual harassment or gender discrimination claims. Whether you have faced sexual harassment, gender discrimination, pregnancy discrimination, or equal pay violations, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

Women Venture Capitalists Fight Gender Discrimination in Lending

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Where can a woman go for funding to start her business? Women entrepreneurs continue to face challenges raising seed money from venture capitalists who are overwhelmingly male, and white. Now a group of women venture capitalists in New York are fighting gender discrimination in lending by starting their own investment companies and incubators. They are even holding women-only pitch nights.

In this blog post, I will look at the problem of gender discrimination in lending. I will review an article about how a group of female venture capitalists are fighting back, and will discuss how anti-discrimination laws can help narrow the gender gap for entrepreneurs and women-owned startup businesses.

Women-Only Pitch Night Connects Female Business Owners with Investors

One cold night in January, 275 women gathered together in a SoHo coworking club to listen and lend. They snacked on crudites, cheese, and wine, as they laughed and cheered one another on. The Wingable women-only pitch night connected female-founded companies with investors ready to lend. The event answered the question the New York Times posed:  “What would VC-funded industries look like if more women controlled the money?”

The Wingable pitch night was hosted by The Wing, a women-only co-working club with spaces across New York City and the country, and Able Partners, a women-owned New York venture capital firm. It featured 10 companies, each with at least one self-identifying female among their founders. The companies had completed Able Partners’ incubator program and were ready to gather seed funding for their new ideas.

The lenders in the room were women, too. In addition to Lisa Blau and Amanda Eilian, the founders of Able, many other women investors had come out to support these new startups.

“‘We need the old girl’s network,’ said Linnea Conrad Roberts, the chief executive of Gingerbread Capital and a former partner at Goldman Sachs, as she waved to Ms. Blau. ‘If you think about the ecosystem that guys have, a Silicon Valley founder will make hundreds of millions of dollars and he doesn’t go home and retire; he starts putting it toward funding other companies.’”

Gender Discrimination in Lending Leads to Unequal Investment Opportunities

The push for women-owned venture capital companies comes in no small part from the gender discrimination and overt sexual harassment female entrepreneurs feel when starting to launch their companies. According to the venture-tracking site Crunchbase, only 8% of investing partners at the 100 top venture capital firms are women. Across the industry, 89% of venture capitalists are men, and 87% are white.

That gender disparity shows up in their lending too. Last year, female founders received only 2.2% of all venture capital investments. In a $130 billion industry, women only got $2.9 billion. It’s not that women aren’t starting businesses, either. The Department of Labor estimates that over one third of all businesses are owned by women.

Women entrepreneurs actively seek out seed money and capital investments, but often their pitches are met with stereotypes, gender discrimination, and out-right sexual harassment.  Attendees of the Wingable shared some of their own stories:

“‘Last year, when I was raising my seed, this guy was like, “It must be really difficult for you to raise money, Shannon, because men dissociate intelligence from attractiveness,”’” Ms. McLay said. Everyone in earshot groaned.

“‘I’ve heard, “I really love you, Chanel, I think you have an amazing company, but I think I might want to date you,”’” said Chanel Melton, 31, the founder of a hair-extension company called RoseGold Pro. More groans. ‘He followed up later, like, “Hey, I hope I didn’t make you feel uncomfortable.”’”

Other women founders have reported sexual harassment when they sought funding within the technology start-up industry. Women report that while making their pitch they have been hit on, touched without permission, and asked for sexual favors.

New York State Human Rights Act Helps Women Facing Discrimination and Harassment from Venture Capitalists

The trouble is that the investor-investee relationship doesn’t always fit with the legal protections against gender discrimination and sexual harassment. Title VII of the federal Civil Rights Act only applies to employees and employers. The federal Equal Credit Opportunity Act, 15 USC section 1691, protects against gender discrimination in consumer lending, but may not apply in cases between businesses.

But for the women of Wingable, and others in New York, state and local laws may provide a better answer. In 2018, the New York State Human Rights Act was expanded to cover more than just traditional employer/employee relationships. Under New York state law, an employer is now responsible for gender discrimination and sexual harassment by or against:

  • Permanent and temporary employees
  • Contract workers
  • Independent contractors
  • Agents of the employer working on the business

This broader definition of employee means that complex corporate structures won’t protect venture capital companies that allow their lenders to discriminate. Depending on the relationship formed between a lender and a startup founder it could also give additional protections to women business owners once the first round of funding is complete.

Between women venture capitalists, women-owned businesses, and stronger sexual harassment laws, New York is a great place to start a business. But when old assumptions make gender discrimination in lending a part of doing business, the employment discrimination lawyers at Eisenberg & Baum can help. Our New York-based team can work with you to explore your options and build your case against employers and venture capitalists who treat you or your business differently because you are a woman. If you are a woman entrepreneur facing gender discrimination in lending, contact us today to schedule a free consultation.

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.

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.

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.

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.