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Planned Parenthood Employees Face Pregnancy Discrimination

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When women want to start a family, having their employer’s support can be an important factor in the decision. Knowing you can follow doctor’s orders for light work, bed rest, or other pregnancy-related restrictions is crucial. But even at progressive women’s health organizations like Planned Parenthood employees face pregnancy discrimination when they try to do what is right for their babies.

In this blog post I will review a report that Planned Parenthood employees face pregnancy discrimination at work. I will review the federal laws that protect pregnant employees and discuss options available if your employer punishes you for having a child or pressures you to return to work before you are medically able.

Planned Parenthood Accused of Pregnancy Discrimination

Pregnancy discrimination can happen anywhere, from the largest corporation to the smallest non-profit. But when the New York Times recently published an article about how Planned Parenthood employees face pregnancy discrimination, some were struck by the hypocrisy.

The article featured employees like Ta’Lisa Hairston, who worked for the Planned Parenthood clinic in White Plains, New York. Hairston’s pregnancy resulted in high blood pressure causing her nurse to direct her to take it easy and take frequent breaks. But managers at the women’s reproductive health facility ignored Hairston’s pregnancy-related medical restrictions. They continued to force her to work long hours without breaks, often working through lunch. Hairston told the New York Times:

“I had to hold back tears talking to pregnant women, telling them to take care of their pregnancies when I couldn’t take care of mine,” she said. “It made me jealous.”

Hairston wasn’t the only one forced to ignore doctors’ orders. Planned Parenthood employees face pregnancy discrimination across the country, the article claims. It describes managers passing over pregnant women for promotions or job opportunities. It tells the stories of pregnant mothers forced to work long hours, or being afraid to take time off for fear of losing their jobs.

Pregnancy Discrimination is a Common Problem in Cash-Strapped Companies

Pregnancy discrimination is especially common in non-profit organizations and small businesses that operate on tight bottom lines. Employers blame the cost of paid parental leave and of hiring temporary replacements for mothers on unpaid maternity leave. Often, when a new mother is ready to return to work, she finds she has already been replaced.

Judit Rigo was an employee of Natera, which offers genetic testing for pregnant women. Leading up to her maternity leave, she trained another, less senior employee, to fill in for her. She told the New York Times that when she was ready to come back, that junior employee was now her boss.

What to Do When Employees Face Pregnancy Discrimination

Just because this behavior is common, doesn’t mean there is nothing to be done. The Pregnancy Discrimination Act protects employees faced with choosing between their family or their job.

The Pregnancy Discrimination Act of 1978 makes it illegal for employers to treat women differently because they are pregnant, have recently had child, or are suffer pregnancy-related medical concerns. Employers are prohibited from considering a woman’s pregnancy in employment decisions like:

  • Hiring
  • Firing
  • Pay rates
  • Job assignments
  • Promotions
  • Layoffs
  • Training
  • Fringe Benefits
  • Insurance coverage

Even if a woman isn’t pregnant, if she has been passed over or treated worse because an employer expects her to have children, she may still have a claim under federal law.

When employees face pregnancy discrimination, they are entitled to file a claim with the Equal Employment Opportunity Commission (EEOC), or file a lawsuit in federal court. In either case, the employee may be able to receive:

  • Accommodations for their pregnancy-related medical needs
  • Assignment to light duty
  • Equal access to paid or unpaid disability leave (depending on what is offered to other employees)
  • Equal insurance coverage
  • Reinstatement to pre-pregnancy positions (or their equivalent)
  • Back pay
  • Front pay (when re-employment is not possible or desirable)
  • Changes to company policy for future workers

For many new mothers, the idea of facing their employer in court can be overwhelming. With the new responsibilities involved in caring for your baby, you may not be able to put energy toward fighting back against pregnancy discrimination. But you don’t have to fight alone.

At Eisenberg & Baum, LLP, our employment discrimination attorneys are here to help. We will review your case and guide you through considering your options, from an informal letter to your employer to a full federal lawsuit. Whether you work for a large company, small business, or non-profit entity like Planned Parenthood, we will help you meet your goals and get back to work. If you are facing pregnancy discrimination, contact us today to schedule a free consultation.

Black Women in Law Face Gender Discrimination and Racial Bias

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Many people assume that lawyers — both in-house and in firms — live comfortable lives and earn a lot of money. But if you ask a lawyer, especially a woman of color, you may find they experience a life very different from the stereotype. A recent study by the American Bar Association and the Center for WorkLife Law shows that black women in law (and other women of color) continue to face gender discrimination and racial bias that keeps them from reaching those lofty expectations.

In this blog post, I will review a new report that shows gender discrimination and racial bias continues to plague the legal industry. I will discuss what gender and race discrimination looks like in high-paying fields like law, and what black women in the law can do to help fight back against the problems in the industry.

ABA Study Reveals Gender Discrimination and Racial Bias Among Lawyers

It is a known fact that women and people of color are under-represented at the highest levels of the legal field. Women are less likely to be named partner in large firms, and people of color aren’t given access to the high-profile cases they need to build a reputation. But gender discrimination and racial bias can be hard to quantify.

That’s why, in 2016, the American Bar Association’s Commission on Women in the Profession and the Minority Corporate Counsel Association came together with the Center for WorkLife Law at the University of California’s Hastings College of the Law in San Francisco to study it. The team put together a survey of 2,827 in-house and firm attorneys, including nearly 600 who provided substantive comments, to review how gender discrimination and racial bias affects the work lives of four categories of attorneys:

  • White Men
  • White Women
  • Men of Color
  • Women of Color

The study confirms widespread gender and racial bias across all 7 basic workplace processes:

  • Hiring
  • Performance evaluations
  • Mentoring
  • Assignments
  • Networking opportunities
  • Pay
  • Promotion

In most cases, black women (and other women of color) reported the highest rates of discrimination and unequal treatment. However, white women and men of color also reported significant challenges to advancing within the legal industry. The study, “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession”, summarizes its findings saying:

“This report is the first of its kind to provide a comprehensive picture of how implicit gender and racial bias — documented in social science for decades — plays out in everyday interactions in legal workplaces and affects basic workplace processes such as hiring and compensation.”

Types of Implicit Discrimination Within the Legal Industry

The report summarizes the gender discrimination and racial bias within the legal industry into categories:

Prove-It-Again

Women of color, white women, and men of color all reported having to go “above and beyond” to receive the same recognition as their colleagues. Black women reported being held to higher standards than their colleagues 32% more than white men.

They also reported being mistaken for administrative staff, court personnel, or even janitors 50% more often than white men. These cases of mistaken identity also affected white women (44% higher) and men of color (23% higher).

Tightrope

The survey also revealed that black women and white women report pressure to walk a tightrope of gender expression. They are pressured to behave in feminine ways and get backlash for acting in masculine ways. They are also asked to perform more “office housework” and administrative tasks like taking notes for meetings.

Maternal Wall

The report also revealed a “flexibility stigma surrounding leave” affecting all groups — even white men. Women of all races reported being treated worse after they had children including:

  • Being passed over for promotions
  • Given “mommy track” low-quality assignments
  • Being demoted
  • Being paid less
  • Treated unfairly for working part-time or with a flexible schedule
  • Having their commitment or competence questioned after having children

Half of black women responding to the survey agreed that taking family leave would negatively affect their career. 57% of white women, 47% of men of color, and 42% of white men felt the same way.

Gender and Racial Pay Gap

The study also revealed that, in addition to the well-reported gender pay gap, the legal industry faces racial bias in compensation. Women of color believed their pay to be comparable to colleagues 31% less often than men. When asked if they get paid less than colleagues of similar experience and skill, 31% more black women said yes. (White women clocked in at 24% on these two questions.) When it came to fair compensation, it didn’t matter whether black women lawyers were working in-house or in law firms. The compensation bias was across the board.

Sexual Harassment

No study about gender discrimination and racial bias would be complete without a survey of sexual harassment in the workplace. About 25% or women reported unwelcome sexual harassment at work (compared to 11% of men of color and 7% of white men). One in 8 white women and 1 in 10 women of color even reported losing career opportunities after saying no to sexual advances at work. However, 70% of all respondents reported experiencing sexist comments, stories, and jokes in the legal profession.

All together, this study casts the legal industry in a grim light. Joan C. Williams of the Center for WorkLife Law told the ABA Journal:

“The implication of this report is that women and people of color have been invited into these high-stakes, high-status workplaces, like the law, but often are expected to play a very specific role. . . . They have to prove themselves more than white men, and are often expected to be worker bees who don’t grab the limelight or the highest compensation. And the same mistake can be more costly for a woman or person of color than the identical mistake for a white man.”

Black Women Lawyers Can Fight Back Against Gender Discrimination in the Law

When implicit bias and small-scale discrimination create disparities at work, the study suggests there may be systemic changes law firms can make to change the culture. The study report includes Bias Interrupters Tools for law firms and in-house attorneys. These strategies can help combat the baked-in assumptions that cause gender discrimination and racial bias to continue throughout the industry. The details of these tool kits will be discussed in a future blog post.

The good news is that black women and others facing gender discrimination and racial bias in the legal profession do have the power to fight back. Federal law prohibits the kind of discrimination in hiring, pay, and workplace treatment documented in the study. When black women find themselves passed over for promotion or facing the choice between a sexual encounter and the loss of a job, they can turn to the Equal Employment Opportunity Commission, or a private gender discrimination attorney for help enforcing their rights under Title VII of the Civil Rights Act.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. We will review your situation and help you plan a strategy to confront gender discrimination and racial bias in your law firm and pursue options in or out of court. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Miscarried from Pregnancy Discrimination at Work? What are Your Options?

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Losing a baby is one of the worst feelings in the world. No legal case will bring your child back after you miscarried from pregnancy discrimination. But you may have options to receive compensation that could help with medical costs, time off work, and other damages related to the loss of your child.

In this post, I will review a New York Times report of a shipping warehouse where women miscarried from pregnancy discrimination at work. I will review the options available for pregnant women to seek accommodations for their limited physical abilities while carrying their child. And I will explain what they can do if pregnancy discrimination causes them physical harm, or miscarriage.

Shipping Warehouse has a History of Women Who Miscarried from Pregnancy Discrimination

In its article, “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination” the New York Times reported on a shipping warehouse contracted to provide cell phones for Verizon. The warehouse, near the Tennessee/Mississippi border, has a history of problems with pregnancy discrimination. The Times described the scene:

“If you are a Verizon customer on the East Coast, odds are good that your cellphone or tablet arrived by way of a beige, windowless warehouse near Tennessee’s border with Mississippi.

“Inside, hundreds of workers, many of them women, lift and drag boxes weighing up to 45 pounds, filled with iPhones and other gadgets. There is no air-conditioning on the floor of the warehouse, which is owned and operated by a contractor. Temperatures there can rise past 100 degrees. Workers often faint, according to interviews with 20 current and former employees.”

It was in that setting that Erica Hayes, age 23, miscarried from pregnancy discrimination. She was in her second trimester of her first pregnancy. She had asked her supervisor to give her a lighter assignment, but her boss repeatedly said no. Then, in January 2014, after a eight-hour shift lifting some of the heaviest boxes in the building, Hayes lost her baby in the warehouse bathroom.

The Times reports that three other women in the warehouse also had miscarriages that year. All of them had asked for light duty. Some even brought in doctors’ notes recommending lighter work or shorter shifts. But their requests were ignored or denied.

Pregnancy Discrimination at Work is Illegal

Federal law prohibits pregnancy discrimination at work. The law prohibits employers from basing any part of employment on a woman’s pregnancy. That includes hiring, firing, and assignments on the job. When a woman’s pregnancy or childbirth temporarily makes her unable to do her work for medical reasons, the employer must treat her just like any other temporarily disabled employee. Depending on the policies at work, this may include:

  • Paid time off
  • Unpaid leave
  • Light duty
  • Alternate assignments
  • Other reasonable workplace accommodations

The New York Times stopped there in its reporting on miscarriage at work. It took the position that women in physically demanding jobs are not protected from physical injury during their pregnancy. But that is not entirely true. Pregnant women also have rights under the Americans with Disabilities Act (ADA).

ADA Protects Pregnant Women in Physically Demanding Jobs

Many of the medical conditions that come with pregnancy are considered disabilities under the Americans with Disabilities Act. If a pregnant mother can demonstrate a medical disability, her employer may be required to provide reasonable accommodations for that disability. As long as it does not create an undue hardship or significant difficulty or expense for her employer, she can request adjustments to her work based on her medical need. Depending on the facts in her case, a pregnant mother may also have a claim for gender discrimination or violations of the Equal Pay Act related to pregnancy discrimination.

When women are denied reasonable accommodations for their pregnancy-related disabilities, they may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. When the denial has caused serious physical harm, or if you have miscarried from pregnancy discrimination suffered at work, your employer may be required to compensate you for damage caused by its decision to refuse accommodations.

The Pregnancy Discrimination Act may not require your employer to go above and beyond company policy to accommodate your medical needs during your pregnancy. But that doesn’t mean you don’t have options. At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know how to weave those laws together to create a safety net for our clients, and help them be compensated if they miscarried from pregnancy discrimination. We will review your case and help you decide when and how to file a complaint. Contact us today to schedule a free consultation.

Amazon Hiring A.I. Learns Gender Discrimination Against Women

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Is automation the answer to fighting gender discrimination against women? Some big tech companies seem to think so. But after Amazon’s experimental hiring A.I. learned to favor men over women, the question is whether automation will stop discrimination or make it worse.

In this blog post, I will discuss recent reports that tech-giant Amazon’s experimental hiring tool was abandoned because it had learned gender discrimination against women. I will explain how Title VII protects against gender discrimination in hiring, and discuss what that could mean in a world where initial hiring screening is done through automation.

A.I. Has Become a Common Part of the Hiring Process

Some of the country’s largest employers have been turning to computers to help them speed up the hiring process. Goldman Sachs created a resume analysis tool to match candidates with different divisions within the company. Microsoft offers employers an algorithm to rank candidates based on job postings uploaded to LinkedIn, the company’s online professional network. Others use automated systems to screen out unqualified individuals from the pool of applicants. One report by CareerBuilder suggests that as of 2017, up to 55% of U.S. human resource managers planned to incorporate artificial intelligence (A.I.) into their hiring processes within the next 5 years.

For some employers, A.I. helps promote diversity in hiring. Automated recruiting networks at HireVue, for example, helped companies look beyond Ivy League schools to find other highly-qualified candidates from other, less sought-after schools. But others see the technology as one step in a larger process. John Jersin, vice president of LinkedIn Talent Solutions, says,

“I certainly would not trust any AI system today to make a hiring decision on its own. . . . The technology is just not ready yet.”

Resume Screening A.I. Learns Gender Discrimination Against Women

Those reservations seemed justified after Reuters reported that Amazon’s experimental hiring A.I. had been discontinued because, among other things, it had learned gender discrimination against women. Amazon began working on the project in 2014. Its machine-learning specialists were trying to mechanize recruitment searches by creating a computer program that could identify top talent. The tool would scan each applicant’s resume, and then rate it from one to five stars.

But within a year, Amazon realized it had a problem. The system had learned gender discrimination against women. Like most computer learning, the program was designed to observe patterns in successful resumes submitted to the company over time. Those resumes came with biases of their own.

Amazon’s workforce is 60% male. Across the industry, in technical roles, like software developers, male employees outnumber female employees 3 to 1. Because the tech industry has a problem with gender disparity, so did the successful resumes.

Over time, the program learned that the skills needed to do the job — like the ability to write code — appeared in almost every resume. Instead, the technology found distinction in the way applicants described themselves. It came to favor masculine language, such as “executed” and “captured”. It also reportedly penalized resumes that included the word “women’s” (such as “women’s chess club captain”) and downgraded two all-women’s colleges.

Title VII Says Gender Discrimination Against Women is Illegal, Even by Computers

Favoring, or downgrading, an applicant based on gender is illegal under Title VII of the federal Civil Rights Act. The law prohibits employers from making hiring decisions based on a person’s sex or gender (including how well he or she complies with gender stereotypes). When gender discrimination against women becomes a part of the program making hiring decisions, a Title VII violation seems likely.

The law doesn’t require a potential employee suing for gender discrimination to prove the person making the hiring decision intended for the discrimination to happen. Some cases have been won simply on a showing of “disparate impact” — that factors other than gender negatively affected one gender more than another. Even if the machine-learning team didn’t mean for their hiring A.I. to learn gender discrimination against women, the effect of screening out female applicants could be enough for a court to find the company violated Title VII.

Weeding Out Gender Discrimination from Automated Hiring Decisions

Fortunately, Amazon recognized the problems with an A.I. that weighs gender in its hiring protocol. At first, the team edited the programs to neutralize the effect of those particular forms of gender discrimination against women. But advocates warned there was no way to know if the program was developing other discriminatory ways of sorting candidates.

Ultimately, Amazon disbanded the project in 2017. The company said the program was never used by recruiters to evaluate candidates, and that it had other problems that kept it from going to market. However, given the trends in hiring and automation, it is only a matter of time before Amazon, Google, or some other technology company releases a hiring A.I. that will automate the hiring process and could potentially hard-code gender discrimination into future hiring decisions.

Gender discrimination against women in hiring happens all across the country, in nearly every industry. Whether it is because of automation or old-fashioned biases, you have a right to be considered based on your qualifications, not your sex. If you believe you have been passed over for employment due to your gender, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your situation and help you plan a strategy that preserves all of your claims and protects your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Could the Definition of ‘Sex’ Remove Civil Rights Protection for Trans* Employees?

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The Trump Administration recently revealed plans to change the way parts of the government define sex to be based on a person’s DNA. That could spell trouble civil rights protection for Trans* employees, students, and others seeking protection based on federal gender discrimination laws. But can the Department of Health and Human Services really change anything? Find out what transgender and transsexual Americans need to know about this new proposal.

In this blog post, I will review reports that the Department of Health and Human Services is attempting to set a new definition of sex that could strip civil rights protection for Trans* employees and students from Title IX. I will explain how the law works and whether the Trump Administration has the authority to make the change.

Department of Health and Human Services Considers Defining Sex as Genetic

On October 21, 2018, the New York Times broke the news that the Trump Administration — specifically the Department of Health and Human Services (DHHS) — is considering changing the legal definition of sex under Title IX. If DHHS goes through with the change, the agency would adopt a policy that says:

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The memo is reported to have urged similar action by all the “Big Four” agencies involved in the enforcement of federal civil rights laws:

  • Department of Health and Human Services
  • Department of Education
  • Department of Justice
  • Department of Labor

Some of these federal agencies have already taken steps to roll back Trans* protective policies put in place during the Obama Administration. However, none of those efforts go as far as DHHS’s proposed redefinition of sex.

The Times described this narrow definition as “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.” It said the new definition would “essentially eradicate” federal civil rights protections for Trans* Americans. But that could overstate the effect of the policy on the courts.

Title IX Protects Against Gender Discrimination in Schools

Title IX of the Education Amendments of 1972 is the primary federal civil rights protection for Trans* Americans in schools. The law says gender discrimination is illegal in any educational program or activity that receives federal funding. That includes sex-based discrimination in:

  • Enrollment and Admissions
  • Recruiting
  • Financial aid
  • Student services
  • Discipline
  • Assignments
  • Grading
  • Extracurricular activities and sports
  • Recreation
  • Housing

Title IX also applies to certain employees of schools and other educational programs, particularly where the employee is also a student.

Schools that receive federal funds are legally required to respond to and prevent gender discrimination and sexual harassment that occur within their programs. When they don’t, it can be up to the Department of Health and Human Services and the Department of Education’s Office of Civil Rights to enforce the law. Students and employees can file complaints of gender discrimination with these agencies based on their inequitable treatment of students, teachers, and others within the school setting.

Just like other federal civil rights laws, Title IX does not specifically define “sex” or “gender”. DHHS says the proposed policy abides by a court order by Judge Reed O’Connor from the Federal District Court in Fort Worth, Texas. In 2016, Judge O’Connor held “Congress did not understand ‘sex’ to include ‘gender identity’.” However, other courts have regularly found otherwise. Federal courts across the country have found federal law includes civil rights protection for Trans* individuals because treating them differently is necessarily based on gender non-conformity and sexual stereotypes.

Can the Trump Administration Change Title IX?

LGBT advocates and other Trans* supporters are upset by the proposed policy change. Within hours of the Times report, social media was filled with the hashtag #WontBeErased. Rallies took place in New York and Washington, where Trans* Americans and their supporters vocally and visibly opposed the policy.

But whether DHHS adopts the policy or not, it will not change the language Title IX or the cases interpreting it. As a federal statute, the law can only be modified by Congress, not the Trump Administration. Instead, the DHHS policy would determine which types of cases the government agency will choose to pursue when it receives complaints. In addition, any changes to a government agency’s policy require prior notice of the proposed changes and an opportunity for comment. This period will allow LGBT advocates to voice their opposition, and possibly stop the policy or modify it to include some federal civil rights protection for Trans* individuals.

The Bottom Line for Civil Rights Protection for Trans* Employees and Students

Even if the policy is adopted as proposed, it will not change federal law or erase the cases defining sex and gender discrimination to include protection for transgender and transsexual Americans. Trans* employees and students will still be able to pursue Title IX claims against educational institutions engaging in gender discrimination. However, they will likely have to do so without the help of DHHS.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for Trans* Americans. Our employment discrimination attorneys, help transgender, transsexual, and gender-nonconforming workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer or school is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against gender discrimination.

Scientists’ Sensors Show Gender Discrimination and Inequality at Work

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Women have fought for decades for equality at work, and in their paychecks. After all that time and effort, gender discrimination and inequality at work is a persistent problem in companies across the country. Some say that is because of the different choices men and women make in business. But a new scientific study shows that the problem is bias, not behavior.

In this blog post, I will review a recent scientific study using sociometric badges, which measured social interactions on the job. I will discuss how the results demonstrated gender discrimination and inequality at work was based on bias, rather than performance. I will discuss how women can use objective evidence to fight back against workplace discrimination.

Do Women and Men Behave Differently at Work?

Women employees face challenges of gender discrimination and inequality at work all the time. They are underrepresented at the management and executive levels. They are paid 80.5% of the wages of men nationwide. And they are often passed over for promotions within their unit or company.

Gender discrimination and inequality at work is illegal. Title VII of the Civil Rights Act and the Equal Pay Act prevent employers to make hiring, employment, and pay decisions based on a person’s sex or gender. The law protects women who are assigned worse shifts, “protected” from hazardous assignments (which often come with higher compensation), or are not promoted because their bosses believe them to be “less serious” about their work than their male counterparts. In addition, the Pregnancy Discrimination Act prevents employers from considering if a person is having, or could have children, as a basis for hiring decisions.

Despite all the laws protecting women (and men) from gender discrimination, unequal pay, and discrimination based on family status, women still face harassment and unequal decision making at work every day. Why this happens continues to be a question. A prevailing thought has been that the difference stems from the way men and women work and the choices they make about their careers — that women take more time off for family or are not as aggressive at negotiating salaries, for example. But until recently there was no objective scientific evidence to support or challenge this assumption.

Sociometric Study Objectively Shows Gender Discrimination and Inequality at Work

Stephen Turban, Laura Freeman, and Ben Waber recently published such a study in the Harvard Business Review, which sought to fill that gap. They said that previous work in the field had all been based on self-reporting by coworkers. That method is itself prone to bias, making it unreliable within the scientific community. Instead, Turban and his team used objective measurements to investigate whether differences in behavior drove gender inequality in the workplace.

The team used a large, multinational firm as a test case. Women were underrepresented at the firm, as they are in many large businesses, making up only 35-40% of entry-level workers and 20% of high-seniority employees. To determine if this was the result of behavior, the research team went on an information gathering mission. They collected email communication and meeting schedules from hundreds of the company’s employees. Then they gave 100 of those employees sociometric badges. These devices used sensors that measured movement, proximity to other badges, speech volume and tone, and location. They told the researchers who the employees talked to, where, and who was dominating the conversation. They then reviewed the data anonymously, measuring it by gender, position, and length of time at the office.

The team’s scientific hypothesis was that fewer women ended up in senior positions because they had fewer mentors, spent less time with managers, and didn’t proactively talk to senior leadership in the same way men did. They were wrong.

Instead, the study showed almost no differences in the behavior of men and women. The Harvard Business Review reported:

“Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.”

Gender Discrimination Isn’t a Matter of Women Not Playing in “the Boy’s Club”

Another theory for why women don’t advance the same way as men within a company is that they don’t have access to the informal networks within the company — “the boys club.” But the researchers found no differences in the genders’ direct interaction with management. Women were just as important as men to the social network at the office.

Workplace Inequality is Due to Bias, Not Behavior

At the end of the study, the researchers found that behavior simply could not explain women’s experience of gender discrimination and inequality at work. They reported:

“Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated.“

The data implies that women are treated differently because of how people perceive their actions, rather than their behavior itself. The bias women experience includes how their work is perceived at the office, and what is expected about their behavior at home. Women are perceived to be:

  • More likely to leave the workplace to raise a family
  • Do more of the housework
  • Be responsible for the family’s children
  • Be less committed at work.

What Women Can Do if They Face Gender Discrimination and Inequality at Work

Now that there is at least one scientific study providing objective measurement that gender bias, and not behavior, causes discrimination and inequality at work, women can use that study to support their push for a fairer work place. When women discover they have been passed over for a promotion or a raise, or are being paid less for substantially the same work, they can use objective data to support their complaints. Whether it is as simple as counting sales figures or meetings, or as complicated as a day-by-day journal of interactions with management, these objective measurements can be useful should your matter ever go to court.

At Eisenberg & Baum, LLP, our employment discrimination attorneys can use objective evidence like the kind gathered in the study to prove that you were the victim of gender discrimination and inequality at work. If you believe you are being treated differently or paid less than your coworkers because of your gender, we will help you review the facts and file a complaint with the EEOC, or in federal or state court. Contact our gender discrimination attorneys today to start fighting for an equal work place.

Pregnancy Discrimination at Work in America’s Big Businesses

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Starting a family shouldn’t come with a risk of being fired. But expectant mothers across the country face pregnancy discrimination at work. The illegal trend to hold women back because they have children can strike anywhere, from small companies to America’s big businesses.

In this blog post, I will discuss how America’s big businesses deal with employee pregnancies. I will review laws against pregnancy discrimination at work and what your options are if you feel your job is on the line because your family is growing.

4 Federal Laws Protect Against Different Types of Pregnancy Discrimination

A recent New York Times Article, “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies” tells the stories of several women who faced firing, job stagnation, and other forms of pregnancy discrimination at some of the country’s largest employers. The article demonstrates that problem is everywhere: from Walmart to Wall Street.

You can sometimes tell how serious, or at least how complicated, a legal issue is by how many laws apply to it. That is certainly true for pregnancy discrimination. Depending on the circumstances no less than four federal civil rights laws can come into play:

Pregnancy Discrimination Act Specifically Protects Parents-to-Be

The Pregnancy Discrimination Act of 1978 specifically prevents employers from treating a woman unfavorably because of pregnancy, child birth, or related medical conditions. It applies to current employees and applicants, preventing pregnancy discrimination in:

  • Hiring
  • Firing
  • Pay rates
  • Job assignments
  • Promotions
  • Layoffs
  • Training
  • Fringe Benefits
  • Insurance coverage

Women facing discrimination because they are pregnant, have recently had children, or are of an age that the employer expects them to have children, are entitled to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court.

Rachel Mountis spoke to the New York Times about the gender discrimination she faced at Merck, one of the country’s largest pharmaceutical companies. Even though company policies “celebrate women[‘s] hard work and tenacity”, the policies did not seem to apply when Mountis became pregnant. A few weeks before her due date date she was downsized, despite receiving promotions and awards for “outstanding leadership.” She said:

“‘On paper, I was the same professional that I was nine months earlier,’ she said. Being pregnant ‘was the only thing that was different.'”

Title VII of the Civil Rights Act Prevents Gender Discrimination

Because pregnancy is necessarily a gender-specific problem, discrimination against pregnant mothers often crosses the line into illegal gender discrimination under Title VII of the federal Civil Rights Act. If your employer has special rules for women facing pregnancy (or men trying to exercise paternity leave), it may count as illegal gender discrimination.

Merck is also facing a lawsuit by Kelli Smith for paying women less than men, passing them over for promotions, and allowing sexual harassment by male superiors. The pregnancy discrimination she experienced was a part of this larger gender discrimination problem. Smith said a male colleague told her she was “not going anywhere” once she became pregnant in 2010, and her professional career derailed as a result of gender and pregnancy discrimination.

Equal Pay Act Protects Against Wage Discrimination Related to Pregnancy Discrimination

For some women, choosing to become pregnant means their careers, and their pay, will stagnate. New mothers (or fathers) may choose to reduce hours or take time off work to raise their children. These gaps in employment can make it hard to get ahead in competitive industries.

But not all wage differences related to pregnancy are voluntary. A 2014 study by the Center for Economic Studies (CES) showed that the spousal pay gap nearly doubles between the two years before couples’ first child and the one year after the child’s birth. While men earn an average of 6% more when they become fathers, women earn 4% less. A 2017 review of U.S. Census data shows that at the end of that first year, a child’s father earns an average of over $25,000 more than his or her mother. The disparity is based on more than just time off. It is also the result of overt and subtle wage discrimination.

Pregnant women in physically demanding fields often find themselves removed from higher-paying positions out of fear the physical labor “will hurt the baby” even when their obstetricians have given them the okay to keep working. In office settings, pregnant mothers often are often passed over for promotion or bonuses because of assumptions that they are less committed to their jobs or that “baby brain” will affect their work.

Paid time off is a part of a person’s compensation. When an employer pays temporarily disabled employees, but not pregnant women, it can sometimes be a form of pregnancy discrimination. A 1976 United States Supreme Court case against General Electric about the right to paid pregnancy leave gave rise to the Pregnancy Discrimination Act.

Americans with Disabilities Act Applies to Temporary Pregnancy-Related Medical Restrictions

The Pregnancy Discrimination Act also echoes parts of the Americans with Disabilities Act (ADA), protecting expectant mothers whose pregnancies come with medical restrictions. If a woman is temporarily medically unable to do her job because of her pregnancy or recovery from child birth, the Pregnancy Discrimination Act says her employer must treat her the same as any other temporarily disabled employee. Under the ADA, that includes granting reasonable accommodations for disabilities as long as it does not create an undue hardship for the business.

Otisha Woolbright worked for Walmart in the deli and bakery in 2013. Part of her job included lifting 50-pound trays of chicken into the store’s industrial ovens. This created a medical problem while she was pregnant and her doctor told her she could be at risk of a miscarriage if she continued the work. But Walmart refused to assign her to a different task. Ms. Woolbright told the New York Times that her supervisor said if she couldn’t lift the chickens, she could “walk out those doors.” After a second medical scare, Ms. Woolbright asked about maternity leave and was fired. It took her a year to find another job.

Pregnancy discrimination can happen in any workplace, from a family-run small business to a corporate giant. But there are a number of federal and state laws that protect expectant mothers. At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know how to weave those laws together to create a safety net for our clients. We will review your case and help you decide when and how to file a complaint. Contact us today to schedule a free consultation.

​Religious Objection Doesn’t Overrule Transgender Discrimination Protections, Court Says

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If you decide to come out at work, can your employer fire you for being transgender? Does it matter if your boss is a Christian? The Sixth Circuit Court says no and no. A religious objection doesn’t overrule transgender discrimination protections under Title VII.

In this blog post I will review the Sixth Circuit Court of Appeals decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. I will discuss how Title VII protects against gender stereotyping and other forms of transgender discrimination. I will also address when and how a sincerely held religious objection by an employer can affect employee rights.

Funeral Director Fired for Coming Out as Transgender

Aimee Stephens was born Anthony Stephens, a biological male. Before she came out as transgender, Aimee was employed as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a trio of funeral homes owned and operated by Thomas Rost. When Aimee decided to transition, she sent a letter to Rost saying that when she returned from a planned vacation she would be representing herself and dressing as a woman at work. She promised to abide by the company’s sex-specific dress code, which required men to wear a suit and tie and women to wear skirts and business jackets.

But Aimee was never given a chance to do so. She was fired just before going on vacation. Rost, a Christian for over sixty-five years, fired her. Rost believes “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit on of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or “wear the uniform for female funeral directors while at work.” Rost offered Aimee a severance agreementif she “agreed not to say or do anything”, but Aimee declined, believing Rost’s behavior was illegal transgender discrimination.

Title VII and Transgender Discrimination

Title VII of the Civil Rights Act protects workers against discrimination based on a person’s race, color, religion, sex, or national origin. In most cases, an employer’s illegal motive must be shown through patterns of behavior. But Aimee was able to present direct evidence of discriminatory intent. Rost made an express statement that the reason she was terminated was because she intended to present as a woman at work.

The U.S. Supreme Court, as well as several lower and state courts, have said that transgender discrimination is illegal sex discrimination under Title VII. Employers are not allowed to rely on sex stereotypes when making hiring, firing, promotion, or other employment decisions. Many past cases were based on ways transgender men and women’s conduct does not conform to traditional gender norms. However, in this case, the Sixth Circuit Court of Appeals said coming out was enough. The court ruled:

“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The court said Title VII means “gender must be irrelevant to employment decisions.” Some other courts have allowed sex stereotyping as long as requiring conformity does not impede that person’s ability to do his or her work. The 6th Circuit said it would not follow those courts’ lead. Instead, it said, “an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.”

While Aimee intended to present as female at work, the 6th Circuit said even if the company had a gender-neutral dress code she could still be the target of illegal transgender discrimination. The opinion called it “analytically impossible” for a termination based on a person’s transgender status not to be motivated, at least partially, by the employee’s sex.

An Employer’s Religious Objection Doesn’t Overrule Title VII

EEOC v R.G. & G.R. Harris Funeral Homes is also important because it says employers can’t avoid Title VII’s transgender discrimination protections based on the federal Religious Freedom Restoration Act (RFRA). The RFRA says the government cannot enforce a religiously neutral law in a way that “substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.” That means the government, in this case the Equal Employment Opportunity Commission (EEOC), can’t force someone to do something against his or her religion unless it is the least harmful way it can protect a core government interest.

Rost was a Christian who felt “that God has called him to serve grieving people” and “that his purpose in life is to minister to the grieving.” However, the Funeral Home he owned and operated:

  • Was not affiliated with a church
  • Does not include a religious purpose in its articles of incorporation
  • Does not close for Christian holidays
  • Serves clients of all faiths
  • Hires employees of any faith or no faith
  • Does not endorse employees’ beliefs or non-employment-related activities
  • Does not display religious icons
  • Allows employees to wear Jewish head coverings during Jewish funeral services

The first question for the court was whether Aimee was a “ministerial employee” of a religious institution. Clergy and other ministerial employees are protected by the RFRA because their work deals with “internal church discipline, faith, and organization”. Because the Funeral Home wasn’t a religious organization, its funeral directors could not be considered ministers under the RFRA.

The RFRA can protect private employers from claims by the EEOC as well, but only if doing so would “substantially burden a sincere religious exercise”. If Aimee had filed her gender discrimination lawsuit privately, the RFRA would not apply at all, but because the EEOC was involved, the court had to consider whether Rost’s religious objection overruled Aimee’s Title VII transgender discrimination protections.

Even with the EEOC involved, the court said enforcing Title VII’s protections against transgender discrimination did not force the Funeral Home to violate Rost’s faith. Allowing an employee to exercise a different understanding of sex and gender would not substantially burden his professed calling to serve mourners. Rost said his customers would be distracted by the presence of transgender employee, but the court said,

“[W]e hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. . . . we refuse to treat discriminatory policies as essential to Rost’s business — or, by association, his religious exercise.”

The court said tolerating an employee’s understanding of her sex and gender identity is not the same as supporting it, so the RFRA does not overrule Title VII’s transgender discrimination protections. The EEOC has a compelling interest in protecting employees from discrimination at work, and enforcing Title VII is the least restrictive way to do it.

EEOC v R.G. & G.R. Harris Funeral Homes is a powerful tool in the fight against transgender discrimination. It says you can’t be fired for coming out, and your employer’s religious objection can’t overrule transgender discrimination protections. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to make these cases work for you. If you face transgender discrimination at work or are afraid of coming out, contact Eisenberg & Baum, LLP, today for a free consultation.

International Gender Pay Gap Revealed by British Reporting Requirements

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

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

British Reporting Requirements Reveal Gender Pay Gaps at Large Companies

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

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

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

Why Women Face an International Gender Pay Gap

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

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

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

Equal Pay in the U.S.A.

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

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

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

At Eisenberg & Baum, LLP, our employment discrimination attorneys can use statistics and other evidence to prove that a company’s international gender pay gap has resulted in Equal Pay Act violations here at home. If you believe you are being paid less than your coworkers because of your gender, we will help you review the facts and file a complaint with the EEOC, or in federal or state court. Contact our gender discrimination attorneys today to start fighting for equal pay.

Do Civil Rights Laws Protect Against Genderqueer Discrimination at Work?

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

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

Keeping Up With Evolving Gender Terminology

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

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

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

Genderqueer Discrimination and the Federal Civil Rights Act

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

New York City Sets the Standard Against Genderqueer Discrimination

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

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

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

Employer Best Practices to Avoid Gender Stereotyping and Bias Discrimination

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

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

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

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

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