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​42% of Women Report Gender Discrimination at Work

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For the past several months, the news has been full of reports of women (and men) raising complaints of gender discrimination and sexual harassment. But are these isolated incidents, or a glimpse at a bigger, societal problem? A survey by the Pew Research Center says that nearly half, 42%, of women report gender discrimination at work.

In this blog post, I will review the Pew Research Center gender discrimination survey. I will describe what gender discrimination at work looks like, and what women (and men) can do if they believe they are being treated improperly.

Pew Research Center Survey Says Gender Discrimination Predates #MeToo Movement

In December, 2017, the Pew Research Center released survey results showing that 4 in 10 women have faced workplace discrimination because of their gender. Survey results included everything from small slights to overt sexual harassment. Lest readers think that this high frequency is due to all the recent publicity of gender discrimination issues, Pew made clear that the survey was conducted between July 11 and August 10, 2017 — months before the #MeToo movement was making headlines. The survey shows that gender discrimination issues are widespread, and are much more than simply the issue of the moment.

25% of Women Report Wage Discrimination

One of the largest areas of concern was wage discrimination. Gender-based pay gaps were a concern for one in four working women, who said they have earned less than a man in the same position. Only 5% of men report making less than a female coworker.

The Equal Pay Act and Title VII of the Civil Rights Act make it illegal for employers to pay women less for the same work as men. This includes everything from salary or hourly wage to bonuses and benefit packages. When an employer uses gender biases to set compensation, employees are entitled to file a complaint with the EEOC to receive additional compensation.

However, the issue of wage discrimination can be complicated by defenses that the employer based compensation on seniority, assignments, employment history, or other gender-neutral factors. When an employee determines that they are being paid less than their other-gendered coworkers, they should talk to an employment discrimination attorney to develop a strong case for wage discrimination.

Women 4 Times as Likely as Men to Experience Competence Questions and Subtle Slights at Work

Pew reports that 23% of women have been treated as though they were not competent at work (compared to 6% of men). 16% reported repeated small slights on the job, and 15% reported receiving less support from senior leaders at work. 10% have been passed over for important assignments.

These apparent small slights are often not enough to prove gender discrimination on their own. Title VII gender discrimination claims must show that gender-based treatment has become so severe or pervasive that it creates a hostile work environment that would negatively affect a reasonable employee.

However, small slights like shift and task assignments or comments about a person’s competence are often signs of bigger problems bubbling just below the surface. An experienced gender discrimination attorney can help employees gather the proof and connect the dots to put together a successful case for gender discrimination under Title VII.

22% of Women Have Personally Experienced Sexual Harassment

The Pew survey distinguished between sexual harassment and the broader issue of gender discrimination. Legally speaking, sexual harassment can occur when employment decisions are made based on a person’s refusal of sexual advances by a superior or coworker. Sexual harassment claims also arise when an employer fails to respond to employee complaints about repeated sexual misconduct or unwanted advances in the workplace.

This is where the #MeToo movement has had the biggest effect on later survey results. An ABC News/Washington Post survey conducted in October found much higher numbers, including 54% of women saying they had received unwanted sexual advances. 30% of these happened at work. An NPR poll in November revealed 35% of women had personally experienced sexual harassment.

Depending on the severity of the sexual harassment, it may only take a single act to establish a Title VII complaint. For example, being fired for refusing sex is itself a strong basis for a sexual harassment claim. In other cases, though, a successful sexual harassment claim is made up of a number of less serious unwanted sexual statements or actions. A sexual harassment attorney can help you develop your strongest case and get the relief you need.

Gender discrimination and sexual harassment are problems that affect women and men in every industry, all across the country. More than just a social media movement, these issues have far ranging effects, touching nearly half of all women who work. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have been working to protect the civil rights of women, minorities, and workers for decades. We know what it takes to bring a Title VII case, and we can help you get relief, rather than simply counting yourself as part of the statistics. Contact us to schedule a consultation.

Can I Be Fired for Getting Pregnant?

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Learning that you are expecting a child should generally be a happy experience. Unfortunately, many employees face fear instead of excitement when they learn they are having a child. They may be worried that they could be fired for getting pregnant.

In this blog post I will review the recent settlement in EEOC v. Dash Dream Plant, Inc., Case No. 1:16-cv-01395-DAD-EPG, a pregnancy discrimination lawsuit filed against floral wholesaler Dash Dream. I will review the federal laws that protect pregnant employees, and explain what women can do if they are fired for getting pregnant.

The Pregnancy Discrimination Act Protects Workers Expecting Children

Pregnant mothers have enough to worry about without adding discrimination at work. The Pregnancy Discrimination Act (PDA) applies all the protections of the federal Civil Rights Act to people facing discrimination for getting pregnant. Under the PDA, employers are prohibited from discriminating against applicants or employees who:

  • Are pregnant
  • Were pregnant
  • Could or intend to become pregnant
  • Have a medical condition related to pregnancy
  • Consider or have an abortion

If your employer has 15 or more employees, the law protects you from being fired, passed over for promotion, given less desirable shifts or assignments, or forced to take leave. An employer can prevent you from doing a job that poses a significant safety risk to others due to your pregnancy, but it cannot remove you from a task or reassign you because the work would pose a risk to you or your baby.

Depending on the circumstances of their pregnancy, expectant mothers may also be entitled to accommodations under the Americans with Disabilities Act or unpaid leave under the Family Medical Leave Act.

Orchid Growers Fired for Getting Pregnant

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating pregnancy discrimination claims. In September 2016, the EEOC filed a lawsuit against Dash Dream Plant, Inc., a company that grows orchids for retail and wholesale buyers in Dos Palos, California. According to its complaint, female employees at Dash Dream were instructed not to get pregnant at staff meetings. They were warned that if a female worker became pregnant, she should consider herself fired. The complaint also said that women who left to have their children were not reinstated or rehired after childbirth.

The EEOC said this was illegal pregnancy discrimination. After pre-litigation conciliation failed, the EEOC filed a a lawsuit in the U.S. District Court for the Eastern District of California. As litigation progressed, so did the settlement talks. On October 16, 2017, the EEOC announced that Dash Dream had agreed to a settlement and consent judgment. The order:

  • Awarded $110,000 to two employees who had been fired for getting pregnant
  • Appointed an external equal employment opportunity monitor at the company’s expense for five years
  • Revised the employer’s policies and practices regarding pregnancy discrimination
  • Created a centralized tracking system for discrimination complaints
  • Required semi-annual progress reports
  • Retrained employees and management personnel regarding pregnancy discrimination

Melissa Barrios, director of the EEOC’s Fresno Local Office, said in a statement:

“We are encouraged by Dash Dream’s acknowledgment of a woman’s fundamental right to have children, and not lose her livelihood for that choice. The changes that will be put in place as part of this settlement will benefit not only women, but the workforce as a whole.”

What to Do if You Are Fired for Getting Pregnant

Women and families have the right to have children without the fear of being fired for getting pregnant. But unfortunately, pregnancy discrimination still happens. If you have been fired or discriminated against because of your pregnancy, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We can review your case and negotiate with your employer to get the accommodations you need without losing your job. If negotiations fail, we can help you file a complaint with the EEOC or in court. If you are facing pregnancy discrimination, contact us today to schedule a free consultation.

Can Private Schools Discriminate Based on Gender?

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Many parents consider public, private, and charter school options available to their students. But could choosing a private school cut a child off from civil rights protections Can private schools discriminate based on gender?

In this blog post, I will review the Title IX prohibition on gender discrimination and sexual harassment in education. I will explain how these laws apply to private and religious schools. I will also explain what to do if you think your child has been discriminated against at school.

Title IX Prohibits Gender Discrimination in Education

Title IX of the Education Amendments of 1972 says gender discrimination is illegal in any educational program or activity which receives federal financial assistance. That means federally funded schools cannot treat students or potential students differently based on sex when it comes to decisions involving:

  • Recruiting and admissions
  • Financial aid
  • Enrollment in academic programs
  • Student services, counseling, and guidance
  • Discipline
  • Classroom assignments
  • Grades or evaluations
  • Athletics, physical education, or extracurricular activities
  • Recreation
  • Housing

Schools covered by Title IX are also required to respond to and prevent sexual harassment in their midst. Violations of Title IX’s prohibition against gender discrimination are reviewed by the U.S. Department of Education’s Office of Civil Rights. They include claims of inequitable treatment of students, teachers, and others involved in a school setting.

Does Title IX Apply to Private Schools?

Title IX applies to any school or educational program that receives federal funding. This includes most state and locally run public schools, state colleges and universities, and charter schools. But Title IX does not apply to private schools unless they receive federal funds.

At first glance, this may seem like parents choosing private schools are signing away their students’ civil rights. In fact, many private schools do choose to receive federal funding for programs like:

  • Reduced or free lunch and breakfast programs
  • Technology or facility upgrade grants
  • Remedial, special education, or low-income assistance

These federal funds come with strings attached – schools accepting government money must comply with Title XI’s gender discrimination laws, and other civil rights laws.

Under the Trump Administration, the Department of Education has announced plans to make additional federal funds available to low-income parents choosing private schools. This could increase the number of private schools subject to Title XI protections.

Are There Different Rules for Religious Schools?

Most private schools are religious. Title IX excludes religious schools “to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.” If a particular school has gender discriminatory policies based on the religious tenets of that organization, Title IX won’t apply.

For example, certain divisions of a number of popular religions believe that men and women should remain separate. Single-gendered schools can sometimes meet Title IX’s criteria, even in the public-school setting, if they provide substantially equal educational options between to students of different genders. However, in the religious school context, a limited curriculum or different educational plan for women, as compared to men, will be allowed if it is based on the school’s religious tradition.

What to Do if You Face Gender Discrimination at a Private School

If you think your son or daughter has been discriminated against at a private school because of his or her gender, contact an experienced discrimination attorney. At Eisenberg & Baum, LLP, we can help you determine whether Title IX will apply, identify options, and negotiate with the school on your behalf. If there is federal funding involved, we can help you file complaints with the Office of Civil Rights and in federal or state court. Contact us today to schedule a consultation and review your case.

Wage Discrimination at BBC Goes Public

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How do you measure wage discrimination in field where talent affects each individual’s pay? For the last 6 months, the British Broadcasting Company (BBC) has been wrestling with this issue in light of claims of wage discrimination at BBC. With Carrie Gracie’s resignation from the China editor position, the struggle went public, even reaching news outlets here the United States.

In this blog post I will review the open letter published by the BBC’s China editor, Carrie Gracie, about wage discrimination between the company’s four international editors. I will explain how the U.S. Equal Pay Act compares to Britain’s Equality Act of 2010, and what U.S. employees can do if they find out they are being paid less because of their gender.

On January 7, 2018, Carrie Gracie published an open “Letter to BBC Audience” on her personal blog. The letter announced that she would be stepping down from the China Editor position and resuming her role at the BBC newsroom. The reason for the sudden change was what Gracie saw as substantial wage discrimination between female and male international editors.

BBC Releases High Earners’ Salaries, Revealing Apparent Wage Discrimination

Gracie’s letter brought attention to apparent wage discrimination first disclosed in July 2017. At that time, the BBC published the salaries of all those earning £150,000 or more, grouped into £50,000 tiers, under the terms of its new Royal Charter. Two thirds of those stars were males (62 men as compared to 34 women), including the company’s top seven earners. Prime Minister Theresa May said “I want women to be paid equally,” and Lord Tony Hall, BBC’s general director, pledged to close the gender pay gap by 2020.

But Carrie Gracie didn’t want to wait. She asked the BBC to address wage discrimination between her colleagues and herself. She noted that she is a China specialist, fluent in Mandarin, and had nearly 30 years of experience in journalism. She noted that her position also brought unique challenges including distance from loved ones, censorship, police harassment and official intimidation. All of these factors could contribute to a higher rate of pay. But in a BBC Channel 4 News Interview on January 8, 2018, she disclosed that she only earns £135,000 per year, less than 50% of her male colleagues.

The BBC apparently offered her a substantial raise to resolve the matter. However, Gracie says it wasn’t big enough to eliminate the wage discrepancies, nor did it address treatment of other women across the company. She called on the BBC to engage in independent arbitration to resolve those individual cases, but she would not weigh in on whether that meant raising women’s compensation or forcing male employees to take a pay cut.

British Equality Act 2010 Compared to U.S. Equal Pay Act

The British Equality Act of 2010 created an overarching civil rights law similar to the U.S. Civil Rights Act. Among many other things, the law protects British workers from discrimination at work including pay and benefits. It allows claims even when there is no direct comparison to a worker of another gender. It also made pay secrecy clauses unenforceable, making it easier for women (and minorities) to discover illegal wage discrimination.

The British law combines several civil rights laws with American equivalents. For the purposes of wage discrimination, it connects to Title VII of the U.S. Civil Rights Act and the Equal Pay Act. Title VII protects against sex and gender discrimination in work-related decisions, including pay, benefits, and raises. The Equal Pay Act explicitly prohibits paying different wages based on an employee’s sex.

Both the British and American systems allow employers to justify pay differences based on gender-neutral characteristics. Under the Equal Pay Act that could include:

  • Merit
  • Quantity or quality of production
  • Experience
  • Skill needed to complete the task
  • Risks associated with the task

However, under the Equal Pay Act, an employer cannot solve wage discrimination by reducing the wages of other employees. The British Equality Act does not appear to have the same restriction. While the BBC has said there was “no systemic discrimination against women”, the company has admitted that meeting its own promises could cause male “talent” to face pay cuts.

What To Do If You Face Wage Discrimination

American workers facing gender-based wage discrimination have the right to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. Many states also have their own laws prohibiting wage discrimination, which allow for claims to be filed in state court.

However, in many cases, before filing those complaints an employee must exhaust internal complaints and grievance procedures. It was due to frustration with a similar internal process that finally pushed Gracie to publish her open letter and resign from her position as China Editor. However, until those remedies are exhausted, American workers may not be allowed to take the case to court.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you sort through the law and make sure you follow the right processes. If you believe that you are being paid less than your coworkers because of your gender, even in an industry with individual pay calculations, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Harassed at Work: Can You Sue for Emotional Abuse?

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When you are harassed at work, it can make you dread every shift and put your physical and mental health at risk. But can you do anything to stop it? Can you sue for emotional abuse if harassed at work?

In this post, I will review the laws that protect employees from workplace harassment and emotional abuse. I will summarize the damages available for stress, mental health treatment, and other emotional distress, and how an employment discrimination attorney can help you be compensated for your emotional pain and suffering.

Emotional Abuse Can Cause Serious Health Concerns

Emotional abuse at work is always about power. The conscious, repeated effort to wound an employee with words is designed to undermine those employees’ accomplishments and rob them of their self-confidence. Workplace harassment can include:

  • Misplaced blame for errors
  • Sabotage of work done
  • Unreasonable work demands
  • Stealing credit for work done
  • Discounting accomplishments
  • Intimidation
  • Insults and put-downs
  • Humiliation
  • Threats to a person’s job, seniority, or assignments

Workplace bullying and other forms of emotional abuse aren’t just about hurt feelings. Psychological harassment can seriously harm an employee’s well-being and productivity. Over time, emotional distress caused by a hostile work environment can result in anxiety, depression, stress, and even trauma responses like Post Traumatic Stress Disorder (PTSD). It can cause reduced productivity, increased absenteeism, and even require leaves of absence as the victim addresses the mental-health consequences of the abusive treatment.

The effects of emotional abuse can’t be easily undone. They often require ongoing mental health treatment, therapy, and sometimes even require medication. When emotional abuse rises to the level of psychological trauma, the effects can even be permanent. Stress and trauma can also cause physical illnesses including ulcers, digestive issues, and sleep disorders.

When Emotional Abuse is Illegal

There is no general law against workplace bullying or other forms of harassment at work. But state and federal laws do protect against a hostile work environment based on a number of protected traits:

Often, a hostile work environment includes emotional abuse and derogatory statements based on or about a person’s protected trait. When an employer doesn’t respond to complaints about sexual harassment or racial jokes, it can open the door for an employee to sue for emotional abuse.

What to Do When Workplace Harassment Isn’t Discrimination

Even when your emotional distress isn’t caused by racial tension or unwanted sexual advances, you may still have the ability to sue for emotional abuse. Many employer have anti-bullying policies against workplace harassment. When a superior refuses to enforce those policies it can create a breach of contract action against the company. However, the claims and damages available in these cases depend on the language in each individual contract or policy. So it is important to meet with an experienced employment lawyer to review your options.

Damages Available in an Emotional Abuse Lawsuit

If you and your employment discrimination attorneys determine you have a valid emotional abuse lawsuit, you may be able to recover a variety of damages and other remedies. On the one hand, you will be entitled to back pay and front pay for any time you were unable to work as a result of the abuse. This can cover leaves of absence under FMLA or short-term disability, as well as constructive firing if you had no choice but to leave your job.

You should also keep a record of all actual costs connected to the abuse and any related job loss. You may be able to receive compensation for anything from hospital bills and therapy costs to travel for interviews in replacement jobs or training needed to shift employment.

Depending on the nature of your workplace harassment claim, and the laws in your state, you may also be entitled to compensatory and punitive damages based on your emotional distress, pain and suffering, harm to reputation, and other non-economic injuries. Often these damages must be objectively demonstrated. You and your lawyer should be prepared to use medical records and even expert witnesses to present your claims.

Finally, if you want to keep your job, you may be entitled to injunctive relief. This is where a judge orders your employer to change its ways. An injunction could require a company to create or enforce anti-harassment policies, change hiring, job assignment, and firing practices, or put managers, supervisors, and employees through training. A judge could even require a business to fire the one responsible for the harassment.

There are many options for remedies available in an emotional abuse lawsuit. At Eisenberg & Baum, LLP, our employment discrimination attorneys will review your case, determine which laws apply to your circumstance, and help you understand your rights. We will discuss your options and create a plan, so you know what to expect. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

When is it Legal for Women to be Paid Less than Men?

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Employees often don’t like to share information about salary. Some employers even try to forbid it to prevent hard feelings in the workplace. But the secrecy around compensation also allows women to be paid less than men, without anyone realizing it. What can you do if you find out this is happening to you? Is it ever legal for women to be paid less than men for the same work?

In this blog post, I will review the Ninth Circuit Court of Appeals opinion, Rizo v. Yovino, and the exceptions included in the Equal Pay Act. I will explain when the Equal Pay Act makes it legal for women to be paid less than men, and what employees can do to see if those exceptions apply to them.

The Equal Pay Act Protects Against Wage Discrimination

The federal Equal Pay Act ensures that men and women are paid the same compensation for the same work. This doesn’t mean that every server, assembly line operator, or attorney needs to be paid exactly the same wage. But it does mean that women must be paid as much as men for substantially equal work. The Equal Pay Act includes all forms of compensation, including:

  • Salary
  • Hourly wage
  • Overtime pay
  • Bonuses
  • Stock options
  • Profit sharing and bonus plans
  • Life insurance
  • Vacation and holiday pay
  • Expense allowances
  • Hotel accomodations
  • Travel reimbursement
  • Other benefits

In determining whether the EPA has been violated, it is the content of the job that counts, not the title. Courts will look at:

  • The skill, experience, and education required to do the job
  • The physical or mental exertion needed to complete tasks
  • The accountability employees have, including direct reports and additional assigned tasks
  • Working conditions including physical surroundings and potential hazards
  • Other positions within the same business establishment

If an employee believes the EPA has been violated, he or she can file a claim in federal court directly. However, many violations of the Equal Protection Act also amount to gender discrimination under Title VII of the Civil Rights Act. These claims must be filed with the EEOC first, so many employment discrimination attorneys will take EPA cases through the EEOC’s investigation and voluntary settlement process to preserve those claims. If the court finds that an employer willfully violated the Equal Pay Act, the employee could be awarded back pay, raises or additional benefits, penalty fees, attorney fees, and costs.

Exceptions That Make it Legal for Women to Be Paid Less Than Men

A plaintiff in an Equal Pay Act lawsuit only has to prove that she was paid less than her male coworkers for substantially the same work. But that doesn’t mean that every case ends there. Employers can avoid paying damages if they are able to show their compensation fits into one of four exceptions that make it legal for women to be paid less than men:

  1. A seniority system
  2. A merit system
  3. A compensation system based on quantity or quality of production
  4. “A differential based on any other factor other than sex.”

What the last exception means was the topic of a recent Ninth Circuit case, Rizo v. Yovino. The opinion is currently under consideration by the entire en banc panel of the Ninth Circuit. Aileen Rizo was a math consultant for the Fresno County pubic schools. After working there for a time, she discovered that her male counterparts were all paid substantially more than she was.

The district used a “Standard Operation Procedure 1440” to set starting salaries of management-level employees like Rizo. The procedure laid out 12 levels with steps within each. A new employee’s salary was set on the step 5% above his or her last salary. For Rizo, that meant she was paid the lowest starting salary, or $62,733. But others in the same position came in at more than $80,000.

The school district admitted that it paid its male math consultants more than Rizo, but said that its procedure was “based on any other factor other than sex”, specifically the employee’s past wages. The EEOC said that wasn’t enough, because it ran the risk of perpetuating discriminatory wage disparity between men and women across the industry.

The Rizo court said that “an employer could maintain a pay differential based on prior salary (or based on any other facially gender-neutral factor) only if it showed that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as its other practices.'” The school district had argued the business purposes supporting its business policy included:

  • Objectivity in calculating starting salaries
  • Encouraging candidates to leave their current jobs to receive a 5% pay increase
  • Preventing favoritism and ensuring consistency in application
  • The judicious use of taxpayer dollars

But the District Court hadn’t weighed the validity of those purposes, or whether the school district had applied them reasonably, so the Ninth Circuit sent the case back for a more thorough consideration.

What to Do If You Are Facing Wage Discrimination

The Equal Pay Act does a lot to protect the victims of wage discrimination. It puts the onus on the employer to show any discrepancy is excusable. It also allows complainants to go straight to federal court, without pursuing administrative remedies first. However, if you have a claim under the EPA, you need to be prepared for your employer’s defense. That’s where an experienced employment discrimination attorney can help.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you prepare your case to stand up to industry defenses. If you believe that you are being paid less than your counterparts because of your gender, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Do Men Have a Right to Paternity Leave?

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There is a lot to think about when a man’s partner is expecting a child. Many new fathers want to take time off work to address the practical issues of caring for a newborn, and to bond with their new children. But will doing so put your job at risk? Do men have a right to paternity leave from work?

In this blog post, I will review the federal laws related to parental leave in the United States, including the Family Medical Leave Act. I will discuss the EEOC v. Estee Lauder Companies, Inc., and how Title VII of the Civil Rights Act can be used to protect men’s right to paternity leave. I will also explain when and how an employment attorney can help get fathers time off after their children come home.

Do Men Have a Right to Paternity Leave Under the FMLA?

The answer to the question “Do men have a right to paternity leave?” depends on what you mean by the question. When you are looking into parental leave, it is important to distinguish between paid and unpaid time off. The United States is the only country among 41 nations surveyed by the Organization for Economic Cooperation and Development (OECD) that does not have any level of mandatory paid parental leave. Instead, the decision to offer paid parental leave is left to the individual companies. If they choose not to offer this employment benefit, there is little an employee can do short of finding another job.

However, there is a national right to unpaid parental leave under the Family Medical Leave Act (FMLA). The law requires public agencies, public and private schools , and companies with at least 50 employees to provide employees with up to 12 weeks of unpaid leave each year. This leave can be used for:

  • Serious health conditions
  • Care of a spouse, child or parent with a serious health condition
  • Placement of a foster or adoptive child with the employee
  • Parental leave for the birth and care of a newborn child of the employee

To be eligible, employees must have worked for their employer for at least 12 months and at least 1,250 hours in the past 12 months. They must also work in a location where the company employs at least 50 employees within 75 miles.

Unpaid FMLA leave applies to mothers and fathers, natural and adoptive parents alike. If your family has the financial means to do so, this means that men have the right to up to 12 weeks of paternity leave to connect with their children.

How Can Title VII Help Fathers Seeking Paid Paternity Leave?

Many two-income families would rather not resort to unpaid FMLA leave, especially given the costs connected to bringing home a new child. There may be no universal right to paid paternity leave, but where a company offers paid maternity leave, Title VII of the federal Civil Rights Act requires that benefit to apply to fathers too, regardless of gender.

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) took Estee Lauder to court on this issue. The EEOC’s complaint said the makeup and skin care manufacturer had violated Title VII and the Equal Pay Act by offering different parental leave benefits to men and women in their employ. Under the company’s parental leave program, Estee Lauder would pay for leave provided to new mothers to recover from childbirth, as well as an additional 6 weeks of parental leave to bond with their children. New fathers were only granted 2 weeks of child bonding time. The lawsuit said that new mothers also receive flexible return-to-work benefits when their maternity leave expired, but fathers didn’t have the same opportunities.

Title VII and the Equal Pay Act prohibits discrimination in pay or benefits based on sex. The EEOC said in its complaint that Estee Lauder’s policy violated those laws by setting different time limits and conditions on maternity leave and paternity leave of their employees. The case is still ongoing, but it makes clear that an employer cannot treat men seeking paternal leave differently because of their sex.

Where to Start to See if You Have a Right to Paternity Leave

If your wife or partner is expecting a child, now is the time to start investigating your right to paternity leave. The employment discrimination attorneys at Eisenberg & Baum, LLP, can help you uncover your options and determine if there are any claims under state or federal laws. We will start by reviewing your contract or employee handbook to see what the policies are at your place of employment. Next, we will see if you qualify for unpaid FMLA leave. We may also be able to negotiate with your employer to correct civil rights violations or other illegal policies, and take the matter to court if necessary. If you need help exercising your right to paternity leave, contact us today to schedule a free consultation.

Job Discrimination Against Black Women: Racial Discrimination, Sex Discrimination, or Both?

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Black women sometimes face serious discrimination at work. But it can be hard to tell whether job discrimination against black women is based on their sex, their race, or both. Find out what protections are available and what the differences are between racial discrimination and sex discrimination claims.

In this blog post I will review potential job discrimination claims by African American women against their employers. I will discuss the similarities and differences between racial discrimination and sex discrimination, and explain how an employment discrimination attorney can help make the most of the claims.

Racial Discrimination and Sex Discrimination Options

Title VII of the federal Civil Rights Act protects against job discrimination based on race, sex or gender, and other inherent traits. The law makes it illegal for employers to make hiring decisions based on these traits, treat their employees differently because of them, or allow a hostile work environment to exist.

Racial discrimination claims can be based on a person’s actual or perceived race, national origin or color. It can include racial slurs, offensive or derogatory remarks, or the use of racially-offensive symbols.

Sexual discrimination claims are similar, but the behavior must be based on a person’s sex or gender identity (including transgender status). Many sex discrimination claims are based on sexual harassment . This includes unwelcome sexual advances, requests for sexual favors, or other unwanted comments or physical contact that is sexual in nature. A sexually hostile work environment can also exist when comments are made about a person’s gender, even when not specifically targeting the employee who files the claim.

Women who face wage discrimination also have the ability to file a separate claim under the Equal Pay Act. This law prohibits employers from paying men and women differently for substantially equal work. When a woman faces sex discrimination, she often has claims under both Title VII and the EPA.

Black Women Face Complicated Job Discrimination Claims

Unfortunately, black women face substantial discrimination at work and when they are looking for jobs. Research suggests that black women continue to be paid significantly less, and receive fewer employment opportunities than their white or male counterparts. But when African American women face discrimination at work, it can sometimes be hard to tell whether the bias is against their race, or their sex.

Sometimes, racial or sexual bias is obvious. When a person is forced to endure racial slurs or sexual advances, it can be clear which claims apply. But in other cases, particularly where an employer uses illegal biases to make hiring, firing, promotion, or pay decisions, it can be harder to tease apart what caused the decision.

In these cases, your employment discrimination attorney may need to gather a lot of information about your workplace to build a case against your employer for racial discrimination, sexual discrimination, or both. When direct evidence or statements aren’t available, you may need to establish your claim by demonstrating:

  • Racial or sexual trends in hiring, firing, or promotion
  • Aggregate data regarding pay and compensation by your employer
  • How your employer reacted to your internal complaints
  • Who was given the job, raise, or duties you were denied.

Raising Alternative Discrimination Claims

Sometimes all that information isn’t available right away. It may only become obvious whether discrimination was based on race or sex as the case is developed. Because of this, when an employment discrimination attorney helps a black woman file a claim for job discrimination, the complaint will often raise “alternative” discrimination claims. By listing both race and sex as a basis for illegal discrimination in her initial complaint with the Equal Employment Opportunity Commission or in federal court, a black woman can protect her right to sue, even if it isn’t yet clear which type of discrimination applies. As the case develops and an employer’s motives become clear, one or the other claim may sometimes be dropped. But in other cases, both race and sex contributed to the hostile workplace environment on the job.

Black women face complicated job discrimination issues every day. If you believe you have been singled out at work, because of either your race or 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.

Top 10 Industries with Largest Gender Pay Gaps

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Do you ever wonder how much you make, compared to others in your industry? Men and women may be surprised to find out the top 10 industries that continue to struggle with a large gender pay gap.

In this blog, I will review a recent PayScale study analyzing the gender pay gap across different jobs, industries, and geographies. I will explain some factors that contribute to the uncontrolled pay gap, and in what cases a gender discrimination attorney can help close the gap.

The Gender Pay Gap Persisted in 2016

When the data-management company PayScale updated its data to include information from 1.8 million employees between October 2014 and October 2016, one thing was clear: the gender pay gap was here to stay. Across the country, the overall gender wage gap was 24% – only two points lower than last year’s level. That means for ever dollar a man earns, a woman earns 76 cents. This is also higher than the 20% gender wage gap for 2015, reported by the Institute for Women’s Policy Research.

The Top 10 Industries With Unequal Pay

The data set has been evaluated by a number of different metrics, including geography and education level. When it comes to job category, the PayScale shows the following industries were the worst (based on uncontrolled data):

  1. Finance and Insurance (29.1%)
  2. Public Administration (25.6%)
  3. Professional, Scientific, and Technical Services (25.2%)
  4. Health Care and Social Assistance (23.3%)
  5. Mining, Quarrying, and Oil and Gas Extraction (22.8%)
  6. Information (22.1%)
  7. Retail Trade (20.0%)
  8. Management of Companies and Enterprises (19.4%)
  9. Manufacturing (18.8%)
  10. Utilities (18.3%)

The data uses the same category definitions as the U.S. census. So if you want to know where your job falls, you can find it there.

The fact that healthcare and social assistance ranks so highly shows that a gender payment gap can exist even in female-dominated sectors. Even though women held 80% of the jobs in that industry, they are still paid just over 77 cents on the dollar, compared to their male counterparts.

The Glass Ceiling Can Mask the Gender Pay Gap

The PayScale data can be read raw (also called uncontrolled) or controlled by job title, job level, or years of experience. When controlled in this way, women’s wages are 98% of men’s in the same positions. But by doing so, researchers can inadvertently hide the true harm of unequal pay. Jeff Kauflin, a writer for Forbes, explains:

In this post we focused on PayScale’s raw, uncontrolled data, because controlling for a factor like management responsibilities ignores the fact that women can be blocked from promotions by gender discrimination. If you statistically remove the differences in corporate rank, you’re manipulating the numbers in a way that can hide the effects of gender bias.

The PayScale report calls this the “opportunity gap.” According to their data, Men are 85% more likely than women to be promoted to VPs or C-Suite executives by the middle of their career and 171% more likely to hold these positions later in their careers. Among 60 year old employees, more than 60% of women are still working at the individual contributor level. Among men, that number is only 45%. Since these promotions almost always come with a salary increase, an uncontrolled look at the raw data is better able to demonstrate the true gender pay gap.

Unequal Pay Is Illegal

The gender pay gap may be persistent, but in many cases it is also illegal. If your employer pays you less because of your gender, or passes you over for promotion based on your sex, you may have the grounds for a legal complaint under the Equal Pay Act or Title VII of the Civil Rights Act. An employment discrimination attorney can help you determine whether you are the victim of gender discrimination and unequal pay.

At Eisenberg & Baum, LLP, we will help you review your situation and determine whether you should file a claim with the Equal Employment Opportunity Commission (EEOC), a private lawsuit in state or federal court, or pursue alternative routes to equality. No matter which strategy is best for you, we will help you fight to close the gender pay gap. Contact Eisenberg & Baum, LLP, today for a free consultation.

Four Ways Women Face Discrimination at Work: And How to Fight Them

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In workplaces all across the country, subtle forms of discrimination go undetected, and unaddressed. Managers, supervisors, and coworkers can make their job sites better for everyone by fighting back against gender bias at the office, or on the line.

In this blog I will review the American Bar Journal’s article entitled “4 common patterns of bias that women face at work–and how you can correct them.” I will explain what managers and coworkers can do when they see these four common types of gender discrimination at work.

Feminist Legal Scholar Shares Tips for Fighting Discrimination at Work

Feminist legal scholar Joan C. Williams at the University of California’s Hastings College of Law and her daughter Rachel Dempsey co-authored a book What Works for Women at Work. The publication gives female employees practical solutions to the implicit bias they experience every day at work. According to the book’s summary on Amazon.com:

Often women receive messages that they have only themselves to blame for failing to get ahead—Negotiate more! Stop being such a wimp! Stop being such a witch! What Works for Women at Work tells women it’s not their fault. The simple fact is that office politics often benefits men over women.

Williams and Dempsey interviewed 127 successful working women and put together a toolkit based on 35 years of research in combating established gender norms. The work got the attention of the American Bar Association, which has been addressing the lack of diversity and gender equality in the legal industry. In its article on Williams’s work, the ABA noted:

There’s no shortage of discussion about lack of diversity in the workplace, especially the legal profession. But solutions to the diversity problem and ways to combat implicit bias are harder to come by.

Here four common problems women come up against in the workplace, and some solutions Williams suggests.

Women and Minorities Are Asked to Prove It Again

Women in male-dominated industries are often asked to reestablish their credentials with supervisors in order to get the credit they deserve. Williams labels this “Prove-It-Again.”

What Prove-It-Again Looks Like

An employee being asked to “prove it again” may find her ideas being echoed by, and credited to, others. For example, a woman may recommend a meeting idea, only to have it ignored. But when a man later repeats that idea, it gets action.

How to Fight Back Against Prove-It-Again Bias

If you notice women’s ideas being ignored or attributed to men, give credit where it is due. Williams suggests correcting the gender bias by saying, “I’ve been pondering that ever since Pam first said it.”

Women Walk a Tightrope Between Professionalism and Gender Expectations

Subtle implicit gender bias often influences the assignment of duties. When “women’s work” falls disproportionately on female employees, it causes them to walk a “tightrope” between masculine and professional behaviors and the expectation of what it means to be feminine.

What a Tightrope Situation Looks Like

Tightrope situations happen when women are expected to take on housekeeping and secretarial duties not normally a part of their job descriptions. It could include planning the company party, taking notes during a conference, or cleaning up after a meeting.

How to Fight Back in a Tightrope Situation

To keep these tasks from falling unfairly on women employees, suggest establishing a rotation or assigning these tasks to assistants or support staff. This will make better use of professional women’s time and respect their expertise.

Women Are in a Tug of War Between Their Work and Their Womanhood

When women become identified as a minority, it can make them representatives of their entire sex. This places them in a tug of war between their loyalty to their work and their identity with their gender.

What a Tug of War Looks Like

A “tug of war” often happens when a female employee is called out as a woman and asked “What do women think?” By being made the “token woman” and being asked to speak on behalf of their gender, female employees are forced to put their professional identities aside. They are reduced to the stereotypes of their gender.

How to Fight Back Against Tug of War Situations

Williams encourages managers and co-workers to be on the look out for tokenism. By making sure there isn’t a pattern of placing just one woman on a committee or team, a supervisor can prevent that woman from having to speak for all women in the course of professional debate.

Women Face a Maternal Wall in Advancement

The “maternal wall” puts women in the tough spot of choosing between their families and their careers. When an employer makes decisions about a woman’s commitment based on her children, gender discrimination is a natural result.

What a Maternal Wall Looks Like

When an employer uses family commitments as an excuse not to promote a woman or give her prestigious assignments, it creates a maternal wall. Whenever child care issues or possible impact on an employee’s family is part of an employment decision, it raises red flags.

How to Fight Back Against a Maternal Wall

It can be difficult to fight back against “maternal wall” policies informally. Williams recommends asking “I wonder if we’d say the same thing about a man.”

Family status is a protected class under state and federal employment discrimination lawsuits. If adverse employment decisions are based on a person’s pregnancy, marital status, or the fact that she has children, she may be entitled to file a gender discrimination or pregnancy discrimination claim. Encourage the employee facing the “maternal wall” to talk to an employment discrimination attorney to explore her options in and out of court.

At Eisenberg & Baum, LLP, we know the subtle signs of gender discrimination. We can help coworkers and the victims of discrimination work together to change the culture of their workplace. When that doesn’t work, we can take the matter to court to force employers to treat all their employees based on their credentials, instead of their gender. If you or a coworker are facing gender discrimination at work, contact Eisenberg & Baum, LLP, to schedule a free consultation.