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How Professional Records Help Your Discrimination Lawsuit

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The first step in a discrimination lawsuit starts before you ever leave work. By gathering your professional records ahead of time, you can fight back against victim blaming. Find out what you should know, and what you can do before even meeting with a lawyer to make your case stronger.

In How to Create a Sexual Harassment Log, I explained that your log should include performance reviews, job offers, raises, and other professional records. In this blog I will explain how an employment attorney can use those records to prove your workplace discrimination lawsuit. I will explain what records you should keep and why, and explain how they can protect you from a common employer defense strategy.

Why Professional Records Are Important

Whether you are facing workplace bias based on your race, gender, religion, or sexual orientation, your discrimination lawsuit comes down to one of two legal theories:

  • Hostile work environment or
  • Adverse employment decisions.

An adverse employment decision can include any decision by a manager, supervisor, or boss that negatively affects your work, as long as it is based on one of the protected traits. While a hostile work environment is usually demonstrated by logging who did what on the job, proving adverse employment decisions can take a bit more paperwork.

When most people think of employment discrimination they imagine a person being fired because of their gender, or passed over because of their race. But there are more subtle decisions your boss makes every day that could be considered grounds for a discrimination lawsuit. Decisions like job delegation, shift assignments, and raises can sometimes go unnoticed without careful attention to your professional records.

How Lawyers Use Professional Records

When you file a complaint with the Equal Employment Opportunity Commission (EEOC) or in civil court, you will have to show that your employer made work-related decisions based on illegal bias. Your discrimination attorney can use your professional records to show when and how these decisions happened. By gathering documents from before and after the discrimination began, your attorney can show what has changed along the way.

One popular defense employers use in discrimination cases is to say that the decision was made because of employee performance. In other words, it wasn’t your race, sex, or ethnicity that caused you to be fired; it was the work you did in the past. Professional records are a strong tool against this defensive tactic. By showing what other supervisors, managers, or even previous employers thought of your performance, your lawyer can prove that it wasn’t your work that motivated your employer. It was bias.

What Professional Records Should You Keep?

Which records are most important depends on what your boss is doing.

  • Offer letters and contracts: Your lawyers can use offer letters and employment contracts to show what your work was supposed to be.
  • Performance reviews: If your employer uses periodic performance reviews to determine raises, promotions, or bonuses, these reviews can demonstrate your value as an employee. As supervisors change, and biases become evident, you will be able to see shifts in the way you are evaluated.
  • Proof of raises and bonuses: Your attorney can use anything from a check stub to an award letter to show when you have received raises or bonuses in the past. This can also provide clues to your lawyers about what documents exist for other employees, so they can show how you were treated differently than your coworkers.
  • Work schedules and job assignments: By keeping a log of your weekly work schedule or job assignment over time, you and your lawyer can see where a supervisor is treating you poorly. If you are consistently brought in for split shifts or odd hours that you didn’t expect, it could be a sign of discrimination.

Why Not Let the Lawyer Do the Work?

As you prepare to file a discrimination lawsuit, it is a good idea to start gathering the paperwork, even before your lawyers draft a complaint. Unfortunately, sometimes when an employee complains about discrimination he or she may be quickly fired or denied access to records related to employment. This is illegal retaliation, but it can make it harder to prove your case. That’s why it is a good idea to collect your documents early, rather than letting your lawyer do the work as part of your discrimination litigation.

An experienced employment discrimination attorney can make your professional records work for you, helping to prove your discrimination lawsuit. At Eisenberg & Baum, LLP, our staff can help you identify what to keep, and make a strategy to get the relief you want, in or out of court. Contact us to schedule a free consultation.

Should Women Use Initials to Avoid Gender Bias?

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You are on Monster or Indeed, or one of the many other online job application forums. You are looking for a technical job in your field. But if you are a woman, would you ever consider using just your initials to land an interview?

In this blog I will review and discuss an article by John Greathouse of the Wall Street Journal, recommending that women in tech industries hide their gender to combat gender bias, along with readers’ reactions. I will also discuss the legal effects of discriminatory hiring and what women (and men) can do if they feel they have been passed over unfairly.

Gender Bias in Hiring

In his article “Why Women in Tech Might Consider Just Using Their Initials Online” writer, investor, and serial entrepreneur John Greathouse recognized that the tech industry, like many other professional subsets, has a gender problem. He quoted Renee Rottner, Assistant Professor at the University of California, Santa Barbara’s Technology Management Program as saying:

“Gender-bias limits us whether we are investors, employers or educators. In studies that reveal gender, but keep the content the same – the same venture pitch, the same resume, the same online course material – women are perceived as less competent than men, even though their performance was identical.

What’s more, these studies find that the evaluator’s gender has little effect – women and men are equally biased in their judgments against women – not exactly a win for gender equality. However, once we accept that we all have these biases, then we are in a position to fix the problem.”

Greathouse acknowledges efforts made in professional orchestras toward diversity. By holding blind auditions, professional music companies were able to remove gender, race, and ethnicity from consideration in evaluating and hiring the most talented musicians.

Hiding Identity to Avoid Gender Bias

But rather than call for the tech industry to make similar changes, Greathouse went on to suggest that women seeking skilled technical positions hide their identities online by using only their initials or gender neutral names. He says:

“In a similar fashion, women in today’s tech world should create an online presence that obscures their gender. A gender-neutral persona allows women to access opportunities that might otherwise be closed to them. Once they make an initial connection with a potential employer or investor, such women then have an opportunity to submit their work and experiences for an impartial review.”

To get around gender bias in employment, raising capital, and obtaining investments, John says “however unfair it may be” women should:

  • Eliminate photos from your online profiles
  • Identify yourself and your team using initials
  • Modify social media accounts like LinkedIn, Twitter, and email to use the same initials and eliminate photos.

Interestingly, Greathouse goes on to say “I am not suggesting that people shun their ethnicity or run from their cultural identities.” He makes no such qualification about turning away from a person’s gender.

Women Respond to Greathouse

The Wall Street Journal received wide criticism for Greathouse’s article and his recommendations. In a subsequent article, “Readers React: Should Women Use Their Initials to Break into Tech?” writer Demetria Gallegos summarizes the response saying:

“The column elicited a strong response on Twitter, with many criticizing the suggestion that individuals take this action when the industry itself is at fault. Others acknowledged the practice and had, in some cases used it themselves.”

Responses called the article out for causing girls and women to be ashamed of their gender. They likened Greathouse’s advice regarding using initials only to mandated burkas or comments that a woman should “not dress like that” if she did not want attention. Many called Greathouse’s comments “mansplaning” – when a man talks condescendingly toward a woman about something he does not fully understand, assuming he knows more on the topic than the listener.

The general consensus was that Greathouse was essentially telling women how to work around implicit gender bias in the patriarchy, rather than expose the problematic industry practices that cause women to be hired less frequently than men. One respondent, “Laine Nooney @ NOPE” who uses the Twitter handle @Sierra_Offline said:

“What we need from you @johngreathouse is to NORMALIZE and SIGNALBOOST respect for women, not give dealing-w-patriarchy protips.”

The overwhelming response caused John Greathouse to rethink his position. Within a day, he had issued the following apology:

“I apologize for the dreadful article I wrote in the WSJ.

I told women to endure the gender bias problem rather than acting to fix the problem. I hurt women and utterly failed to help, which I wholly regret and apologize for having done. Women have a tough enough time having their voices heard and my insensitive comments only made matters worse. I am truly sorry. – John”

Legal Options to Fighting Gender Bias

Women do face implicit gender biases every day when looking for jobs. But they may not have to resort to gender-stripping identities and ineffective text-only profiles to get around the establishment. State and federal laws include protections for job applicants against gender discrimination. Potential employees in male-dominated industries can often work with employment discrimination attorneys to build a case against gender bias in hiring practices. By filing complaints with the Equal Employment Opportunities Commission (EEOC) or in court, women can help change the climate of the tech industry, rather than finding ways to work around it.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know what gender bias looks like, and how to fight it. We will meet with you and discuss your options, both in and out of court. If you believe you have been passed over for a job because of your gender, contact us to arrange a free initial consultation.

Am I Being Treated Unfairly at Work Because of Pregnancy?

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Life can be difficult when you are pregnant. Physical and hormonal changes can make everyday tasks a challenge. But being pregnant shouldn’t result in unfair treatment on the job. If you think you are being treated unfairly at work because of pregnancy, please continue reading to learn about your rights.

In this blog post I will explain how federal laws work together to protect pregnant mothers on the job. I will explain what accommodations you are entitled to, and what pregnancy discrimination looks like.

Can I Take Pregnancy Leave Under the Family Medical Leave Act?

Federal law dictates the minimum pregnancy leave available at larger companies as part of the Family Medical Leave Act. This law applies to government jobs, public and private schools, and all companies with at least 50 employees. It requires those employers to provide 12 weeks of unpaid leave each year for a number of medical reasons, including the birth or care of a newborn child of the employee. Leave is available for pre-term complications or work restrictions, as well as immediately after child birth.

To qualify for FMLA leave, a pregnant mother must have worked for the employer for at least 12 months and at least 1,250 hours over the past 12 months. It only applies to locations where the company has 50 or more employees within 75 miles.

What Pregnancy Discrimination Protection is Available in Small Businesses?

Even if you don’t qualify for FMLA leave, you are protected by the Pregnancy Discrimination Act. This law prohibits an employer from treating a woman unfavorably because of pregnancy, childbirth, or related medical conditions. If you work for a small business with as few as 15 employees, you cannot be fired, passed over for promotion, given lesser assignments, or forced to take leave because of your pregnancy.

The Pregnancy Discrimination Act also protects against pregnancy harassment. If your boss, co-workers, or even customers routinely tease, make fun of, or otherwise harass you because you are pregnant, you may have a federal civil rights claim. However, harassment must be so frequent or severe that it creates a hostile work environment or result in an adverse employment decision.

What If I Am a Pregnant Job Seeker?

The Pregnancy Discrimination Act and Title VII of the Civil Rights Act both apply to job applicants as well as employees. If a potential employer passes you over for a job because of your pregnancy you may have a federal civil rights claim against the business.

What If I Am Unable to Do My Job Because I Am Pregnant?

As your baby develops it may become more difficult to do parts of your job. Many pregnant mothers face medical restrictions on standing, lifting, and other activities that affect their employment. Under the Americans with Disabilities Act, a woman who is unable to do her job because of pregnancy may have a temporary disability. Employers are required to treat that medical condition the same as any other temporary disability (like a broken leg). That means your employer is legally required to make reasonable accommodations for your physical condition. Depending on your job, this could include:

  • Light duty
  • Alternative assignments
  • Providing on-site accommodations (like a stool or ergonomic furniture)
  • Allowing breaks
  • Allowing you to work from home
  • Allowing time off for doctors’ appointments
  • Paid disability leave (if offered for other conditions)

When a new mother returns to work, some short term disabilities may continue. If there were complications during pregnancy or if a mother is breastfeeding, she may need continued accommodations including breaks to pump breast milk or continued light duty until she is healed. These are also covered by the ADA.

Can I Be Fired For Taking Time Off to Have My Baby?

The Pregnancy Discrimination Act says employers may not discriminate against you because you are or were pregnant, could become pregnant, or are trying to become pregnant. In general, this means you cannot be fired because of your pregnancy. Nor can you be laid off or reassigned because your boss believes the job posses a risk to you or your baby. However, if you work for a company with less than 15 employees or if your pregnancy would pose a significant safety risk to others at work, you may be reassigned.

Smaller companies are also not required to provide paid or unpaid maternity leave. However, if your company has a policy regarding short-term disability leave, you are entitled to all the same protections as a person with any other disability. This may include paid or unpaid leave which would ensure that you could not be fired for taking time off to have your baby.

The federal laws protecting pregnant mothers can be confusing. Your position, the size of your company, and internal disability policies can all affect your rights. However, most employees are entitled to significant protections against pregnancy discrimination and harassment. If you believe you are being treated unfairly because of your pregnancy, our employment discrimination attorneys at Eisenberg & Baum, LLP, are here to help. We’ll explain your rights and help you negotiate for the accommodations and treatment you deserve. Contact Eisenberg & Baum today for a free consultation and get protection for you and your growing family.

Can Donald Trump Reverse Laws on Sex Discrimination at Work?

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Now that Donald Trump has become the next President of the United States, several communities find themselves wondering how their lives will change. They want to know how Donald Trump can affect laws that protect them from sex discrimination and sexual orientation discrimination at work. Will they be safe from harassment in years to come? Can Trump reverse laws on sex discrimination in the workplace?

In this blog post, I will discuss how the Equal Employment Opportunity Commission (EEOC) enforces Title VII prohibitions against sex discrimination. I will explain how a change in Executive Branch leadership can affect policy decisions and enforcement priorities, and what might be on the horizon under a Trump presidency.

Title VII is Well-Established Law

The primary federal statute protecting employees’ civil rights is Title VII of the Civil Rights Act. First enacted in 1964, it has been amended several times during both Republic and Democratic administrations. The law makes it illegal to discriminate against employees based on a number of inherent characteristics, including sex.

The Equal Employment Opportunity Commission (EEOC) has enforced Title VII and other civil rights laws for decades. More recently it has begun enforcing Title VII against employers who discriminated against workers based on sexual orientation and gender identity. These complaints and lawsuits are filed on behalf of gay, lesbian, and transgender employees who race hostile work environments or adverse employment decisions because they do not fit traditional sexual stereotypes (including that women are not attracted to women and that men do not wear dresses or make-up).

The United States Supreme Court has upheld sexual stereotypes as a basis for a sex discrimination claim. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). It has also held that same-sex harassment is sex discrimination under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1988). The EEOC has used these decisions and its policy to pursue administrative settlements for LGBT workers facing sex discrimination on the job.

While the EEOC’s policies are subject to change from time to time, these court decisions will likely remain, providing a basis for private employment discrimination attorneys to seek sex discrimination claims for their LGBT clients. Last week’s blog provides a more thorough discussion of President Trump’s influence over the courts’ decisions.

President-Elect Donald Trump’s Influence on Decision Makers

The U.S. Equal Employment Opportunity Commission is a bipartisan independent agency made up of five members. These Commissioners are appointed by the President. Among the five, Jenny Yang is the current Chairperson. She was named Chair by President Obama on September 1, 2014. As Chair, Yang has the ability to direct the EEOC’s policies and priorities. She has focused on equal pay for women as well as sexual orientation and gender identity claims.

As president, Donald Trump will have the authority to designate a new Chair. As of December 14, 2016, he had not announced any new EEOC appointments, so it isn’t clear that there are any changes on the horizon. But if he does designate a new chairperson, or appoint other EEOC commissioners, it could cause the organization to shift its focus away from women and LGBT rights toward more traditional forms of civil rights protections.

In addition to the Commission, the EEOC is directed, coordinated, and supervised by the General Counsel, an attorney appointed by the President. In October, the EEOC’s General Counsel, David Lopez, announced he would be leaving the organization in December. Much of the agency’s work on sexual orientation discrimination has happened under Lopez’s direction. The vacancy will allow President Trump an early opportunity to appoint new leadership at the EEOC and shape the way the agency enforces civil rights law in the future.

Finding Ways Through Uncertainty

The laws underlying EEOC protections against sex discrimination and harassment of LGBT workers haven’t changed. Private employment discrimination attorneys still have decades of legal decisions to rely on in protecting American workers from hostile work environments and harmful employment decisions. If President-Elect Donald Trump wants to affect changes to the system, he will have to do it through the appointment of executive branch positions, like the EEOC Commissioners and the General Counsel. While this could make it harder to protect employee rights, it won’t eliminate the good work already done by the EEOC to create legal precedent and protect vulnerable workers.

At Eisenberg & Baum, LLP, we have represented employees under a variety of political administrations. We know how a President can affect the work we do, and how to work around his influence. If you are facing sex discrimination and harassment at work, contact Eisenberg & Baum, LLP, to schedule a free consultation. We’ll help you plan a strategy that guides you through the uncertain transition between presidents and protects your rights.

Big Law Survey Shows Big Pay Gap, Equity Disparity for Women

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If you are a woman working at a big law firm, it may be hard to understand why your paycheck falls short compared to your male co-workers. A new study shows you are not alone.

In this blog post, I will review a study performed by Major, Lindsey & Africa, a legal search firm based in Washington, DC. I will explain how women partners’ hourly rates, billable hours, and origination attribution may all be contributing to a large pay gap for female equity and nonequity partners in the nation’s largest firms.

The Statistics Behind the Pay Gap

Major, Lindsey & Africa is a legal search firm, which performs a biannual survey of partner compensation among big law firms. In October the firm announced its 2016 results, which are based on over 2,150 responses. The survey shows the gender pay gap continues to be a problem for the legal industry. According to the survey, the average male partner earned $949,000 per year, compared to only $659,000 for female partners. The survey also showed a distinct gap in billable rates ($701 for men compared to $636 for women) and annual billed hours (1,703 as compared to 1,632 for women).

Gender Pay Gap Explained as Origination Differences

Study author Jeffrey Lowe, Managing Partner at Major, Lindsey & Africa’s Washington DC office, says:

“Originations is probably the single biggest determination of what your compensation will be.”

Origination is defined as the total dollar value of work performed and collected by a law firm as a result of a partner’s efforts. The survey showed that the average male partner has over $2.5 million in originations, compared to $1.7 million for women.

“That’s the crux of the issue: Why are men generating more business than women?” Lowe said. “Is there some boys club aspect or not?”

At least part of the problem of origination can be seen in the difference in the billable hour. With a $65 difference in the average billable hour and over 1,600 hours billed each year, that difference can add up. But most partners do not set their own billable rate. It is decided by the firm. If a woman’s firm won’t agree to bill equally for their work, that female lawyer will end up having to work harder for the same amount of origination credit.

Equity Partnership May Play a Role

Another reason why female partners make less may have to do with their position. While the Major Lindsey study did not separate equity from nonequity partnership, another 2016 survey by The American Lawyer did. It found that at the 254 largest U.S. law firms, women made up 27% of the nonequity partners and only 17% of equity partners. Becoming an equity partner increases a lawyer’s pay, billable rate, and support in the office, so the vast difference in numbers is a problem.

“Many firms want to address it,” Lowe said, “but when you try to address it with them it becomes a question of, ‘How much business do [these lawyers] have?’”

Big Law Gender Pay Gap Causes Dissatisfaction at Work

The Major Lindsey survey also dug into the effect of the gender pay gap. Lowe asked big law partners how satisfied they were with their salaries, and their jobs. The number of women dissatisfied with their pay has grown from 5% in 2014 to 8% in 2016. Another 19% of women said they were “not very satisfied” with their salaries.

While only 10% of partners cited gender bias as a reason for their disappointment, another 24% attributed it to cronyism, which is a related concern.

Female Partners File Gender Pay Gap Lawsuits

Many female partners feel they are not given credit for the work they do perform. Earlier this year, Attorney Kerrie L. Campbell sued big law firm Chadbourne & Parke, LLP, for violations of the Equal Pay Act and gender discrimination. Her complaint said that she was being credited with fewer “compensation points” based on origination factors than her male counterparts. Similarly, Kamee B. Verdrager sued Mintz Levin, saying credit for business she brought in was incorrectly being credited to male attorneys in her firm. Once, origination credit was assigned to a male attorney who didn’t even know the client’s name.

The Equal Pay Act is designed to protect women whether they are in the file room or a top equity partner. At Eisenberg & Baum, LLP, our gender discrimination attorneys understand how to use the law to protect women and their rights against industry-wide problems of sex bias and discrimination. 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.

Top 5 Reasons Women Sue Their Employers

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What would make a woman take her employer to court? If you are facing a difficult situation at work, you may wonder what other female employees have done to get fair treatment. Here are some common forms of discrimination lawsuits that women file against their bosses.

In this blog I will discuss 5 common issues for employment lawyers who advocate for women. I will introduce issues of gender discrimination, pregnancy and disability accommodations, and equal pay wage gap problems. I will also provide examples for each kind of discrimination.

Women Sue to Stop Sexual Harassment

Whether it is overt sexual advances or repeated sex-related jokes, sexual harassment can make an office or job site unbearable. When gentle reminders and formal complaints fail, women often have to take their employers to court to stop sexual harassment. There, the judge will look at whether a pattern of behavior is so extreme or pervasive that it creates a hostile working environment.

For example, if a woman is repeatedly exposed to pornographic male images, even after asking her co-workers to stop, she may be facing sexual harassment. If her employer won’t do anything about the “jokes” she could be able to sue.

Gender Discrimination Lawsuits Help Break the Glass Ceiling

Gender discrimination doesn’t always look like harassment. Sometimes, a woman will discover that she is being given poorer working conditions or has been passed over for promotion simply because of her sex. When a manager, supervisor, or boss bases employment decisions on sexual stereotypes, it can result in an adverse employment decision and the basis for a gender discrimination lawsuit.

For example, if a woman has the qualifications for an accounting position at her company, but her boss gives the job to a man because “women can’t be trusted with money,” she may have a claim.

Expectant Mothers Stand Up Against Pregnancy Discrimination

The birth of a child should be a joyous event. But sometimes, when an expectant mother gains a child, she loses a job. Even though the Pregnancy Discrimination Act prohibits making job decisions based on a person’s pregnancy, childbirth or related medical condition, many women find themselves having to choose between family and work. When an employer refuses to make temporary accommodations for a pregnant woman’s medical restrictions or denies a pregnant mother unpaid leave, those decisions can sometimes lead to a pregnancy discrimination lawsuit.

For example, if a woman takes unpaid maternity leave from a larger company, only to find she has been replaced when she is ready to come back, she could be entitled to file a lawsuit.

Disabled Women Deserve Work Too

Not every lawsuit a woman brings against her employers has to do with her gender. Women also face discrimination at work for things like race, religion, and disabilities. When a female employee is disabled, for example, she may have to sue to get the reasonable accommodations she needs to complete her work. The Americans with Disabilities Act and the Rehabilitation Act are designed to make sure every worker has the tools she needs to do her job. Still, many employers are unwilling to make even simple accommodations for their workers. When that happens, women can get the help they need through a lawsuit under the ADA.

For example, if a female cashier’s physical condition makes it difficult to stand at her register for her entire shift, she may request a stool to sit on as an accommodation. If her employer refuses even though it would not be unreasonably expensive or difficult, she may be able to sue.

Women Sue for Equal Pay at Work

Even when an employer doesn’t interfere with a woman’s work, it may still be discriminating against her when it comes to her pay check. In many industries, women make significantly less than men for doing the same work, even though that is illegal under the Equal Pay Act. When a woman discovers that she is making less than her male counterparts because of her gender (rather than performance or seniority, for example), she may be able to sue for wage discrimination.

For example, if a professional woman discovers that her annual bonus is half of that received by male employees with similar work histories, she may be entitled to file a lawsuit.

Helping Women Get Fair Treatment at Work

When women find the odds stacked against them at work, they need the help of skilled and experienced gender discrimination attorneys to set the records straight. At Eisenberg & Baum, LLP, we help women every day to get equal treatment from their employers. Whether your case involves gender discrimination, sexual harassment, or pregnancy, disability, or wage discrimination, we can help you make your case. Contact Eisenberg & Baum, LLP, today to schedule a free initial consultation and find out whether it is time to sue your employer.

Female Lawyer Sues Chadbourne & Parke for Wage Discrimination

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When you think of wage discrimination, you may think of secretaries, teachers, or other traditionally female roles. But a recent lawsuit by female lawyer Kerrie L. Campbell against the law firm Chadbourne & Parke shows that wage discrimination can happen at any level, and in any industry.

In this blog post, I will review the law relating to wage discrimination based on gender. I will discuss the Campbell lawsuit against Chadbourne & Parke and explain how gender discrimination can happen even at the partner or management level.

Wage Discrimination & The Equal Pay Act

In 2015, women working full time jobs in the U.S.A. earned an average of 80% of the wages paid to men. This gap has shrunk considerably from the 60% they were earning in 1960, but a distinct wage gap still exists. When this happens within a particular business, the underpaid female employees may have the grounds for a lawsuit.

Gender discrimination is illegal under state and federal law. Title VII of the Civil Rights Act prohibits employers from considering sex or gender when it sets the pay or benefits of its employees. So if a company routinely pays its female staff less than its male employees, those women workers could have a claim before the EEOC or in federal court.

Similarly, the Equal Pay Act requires that men and women working in the same workplace be given equal pay for equal work. If two people’s job content (what they do) is substantially similar, their pay, overtime options, and benefits should be equivalent as well. Where inequality is found, the company is not allowed to lower one employee’s wages to match the other.

One big difference between wage discrimination claims under Title VII and the Equal Pay Act is the process to get relief. In most cases, gender discrimination claims must go through the Equal Employment Opportunity Commission (EEOC) before they head to federal court. The EEOC will assign an investigator and negotiate with the employee and employer to try to resolve the matter without a lawsuit. If the EEOC decides that there is evidence of discrimination it can issue a “right to sue” letter or take the case to court itself. All of this can take time, while an employee is stuck in an underpaying job. Under the Equal Pay Act, underpaid employees can take their cases directly to court, without going through the EEOC first.

Kerrie L. Campbell v. Chadbourne & Parke, LLP

On August 31, 2016, trial attorney Kerrie L. Campbell filed a wage discrimination complaint against Chadbourne & Parke, LLP, in the United States District Court for the Southern District of New York. The complaint claims that Campbell, a seasoned trial lawyer with a good reputation and years of experience, was being paid among the bottom ranks of male partners at the firm. The complaint describes her achievements at the firm, noting that she had generated revenue “consistent with the Firm’s top performing male Partners.” But her compensation was two to three times less than her male counterparts.

According to the complaint, hiring, firing, and wage decisions at Chadbourne & Parke are made by a 5-man (yes, all males) Management Committee. As outlined in the complaint, Campbell noticed that they tended to assign fewer compensation points (which translate into salary raises and bonuses) to women than men who generate similar revenue. The complaint alleges that when she brought her concerns to management, she was told her success in 2014 was a “fluke” and her litigation support was cut. According to Campbell’s complaint, the Management Committee decided in 2015 that she did not “fit” with the “strategic direction” of the firm. She alleges that in order to get her to leave quickly, the committee slashed her pay to less than a first-year associate.

Wage Discrimination in Big Law Firms

This isn’t the first time a female attorney has raised wage discrimination claims against a top law firm. Recently, Traci M. Ribeiro sued Sedgwick LLP, because she alleged that her wages “did not match [her] contributions to the firm.”

Women now make up 45% of law firm associates. But according to the American Bar Association, only 18% of Big Law partners are women, and they earn 80% of what their male counterparts earn. It will take courageous, high-profile women, like Kerrie Campbell, to combat this discriminatory status quo. By filing wage discrimination lawsuits, professional women (and men) can show that they deserve equal pay for equal work on every rung of the ladder to success.

Whether you are earning minimum wage or have the title Partner, wage discrimination can still happen to you. If you believe you are being compensated unfairly based on your sex, our gender discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you and plan a course through negotiations with your employer, the EEOC, or in court, to make sure you get the compensation you deserve. Contact us today to schedule a free consultation and get the process started to a fair wage.

Women Passed Over for Promotions Because of Gender: Yes, It Still Happens

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As a country, America has come a long way since World War II when women first began to enter the workforce. Today, women are represented in every industry, and continue to hold prominent positions in fields like medicine, law, and education. Yet, even as more women enter the board room and take on leadership roles, others are being left behind. Women across the country are being passed over for promotions because of their gender. They may not know that this is illegal or where to turn to get the recognition they deserve.

In today’s posting, we’ll talk about gender discrimination, and what women can do when they are passed over for promotions because of their sex. We’ll also talk about your rights as an employee and how to raise a claim for gender discrimination or sexual harassment. If you believe you have been passed over for a promotion because of your gender, contact Eisenberg & Baum. Our team of employment lawyers have years of experience handling discrimination claims. We can help you understand your rights and get you the remedy you need as a victim of discrimination.

Is It Discrimination If an Employer Does Not Promote an Employee Because of Her Gender?

Title VII of the 1964 Civil Rights Act, and New York State and City Human Rights Laws protect women from gender discrimination in the workplace. These laws generally make it illegal for an employer anywhere in the United States to treat an employee differently at work because of a protected trait, like sex or gender. These laws apply whenever there is an adverse employment action against the victim of discrimination based on a protected characteristic. In particular, an employer is not permitted to base decisions about job assignments or promotions based on an employee’s sex, including gender identity, sexual orientation, or pregnancy.

The Sex Discrimination Lawsuit Against Dean Foods / Country Fresh

Sex discrimination continues to be a problem, even in the modern job market.

The U.S. Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit against Country Fresh, a division of Dean Foods, located in Grand Rapids, Michigan. The lawsuit, which was filed in the U.S. District Court for the Eastern District of Michigan, was brought on behalf of a female employee at the company’s Livonia, Michigan plant. She had worked in various production jobs in various parts of the plant and had accumulated decades of experience. In spite of all her hard work for the company, the employee was repeatedly bypassed for promotions in favor of male employees. The EEOC is asking the court to issue an injunction to keep Country Fresh from engaging in promotion discrimination in the future. If the lawsuit is successful, the employee could also be awarded significant financial damages.

Is It Sexual Harassment If an Employer Does Not Promote an Employee Because She Refuses Sexual Advances?

In some cases, gender discrimination happens because of stereotypes or other factors inherent to the gender. In others, women are being passed over for promotions because they refuse to play along with sexual harassment. Unfortunately, employees in some workplaces still face unwelcome sexual advances, requests for sexual favors, offensive remarks about a person’s gender, and other verbal or physical sexual harassment. When a woman’s refusal to give in to these behaviors becomes grounds not to promote her, the employer has violated Title VII of the Civil Rights Act, as well as New York city and state laws.

Can an Employer Refuse to Promote an Employee for Reporting Gender Discrimination or Sexual Harassment?

Gender discrimination usually isn’t a secret. Co-workers often observe the adverse treatment of a victim. Unfortunately, fear of retaliation can keep concerned co-workers from speaking up, either internally or through official legal channels. Federal and state laws protect employees from retaliation for reporting gender discrimination or sexual harassment. Employees are protected whether they were victims of the discrimination or just a witness. Employees facing retaliation, including failure to promote, have the same options available as the victims of discrimination. Without this protection, employees would remain silent in the face of hostile workplaces and serious gender discrimination out of fear that they could be next.

How to Fight Back Against Gender Discrimination and Sexual Harassment

Women facing gender discrimination and sexual harassment in the workplace may feel like they are out of options. A hostile work environment can make it seem like there is nowhere to turn. When discrimination comes from a manager or supervisor, it may seem there is no safe way to complain. When that happens, we encourage you to contact an attorney. The employment discrimination attorneys at Eisenberg & Baum have years of experience dealing with gender discrimination and sexual harassment claims. We bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

How Can I Protect Myself from a Hostile Work Environment?

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Having to face the challenge of going to work each day in a hostile work environment can take a toll on you. Your work product, health and personal relationships can suffer when you are the target of harassment at work. You shouldn’t have to worry about jokes, slurs, touching and other unwanted conduct on top of your job duties. So how can you protect yourself from a hostile environment at work? Fundamentally, you should know that it’s your employer’s responsibility to create and maintain a workplace free from harassment, and it should never be considered the victim’s responsibility to avoid illegal harassment. However, there are some steps we recommend that can empower you to minimize the chance of a hostile work environment, and even if one exists, that will help you deal with it quickly and effectively.

If you’d like to talk with someone about your own hostile work environment claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who can help you understand your claim and advise you of your rights under the law.

Know Your Rights

The first step to protection as an employee is knowing your rights under the law. We’ve spent a lot of time on our blog talking about employment discrimination and the idea of the hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and it is created when you experience unwelcome conduct that is so severe or pervasive it affects the terms of your employment. We commonly think of a hostile work environment in terms of sexual harassment in which co-workers or supervisors subjecting an employee to repeated unwanted sexual conduct, including inappropriate comments, pictures and touching. However, a hostile work environment can be based on a number of different legally protected characteristics, not just gender.

Harassment at WorkUnder federal law, employees are protected from discrimination based on their race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws in your area can protect you based on additional characteristics. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. To learn more about hostile work environments, read our prior post on “What Is a Hostile Work Environment.”

Discrimination Policies and Training

One of the most common and easiest things an employer can do to help prevent discrimination in the workplace is to adopt a policy against discrimination and a thorough process for reporting and investigating claims of discrimination, then train employees and management on the subject. If you notice your employer does not have these policies and processes in place or what they do have does not sufficiently address workplace discrimination, we recommend you talk with your employer. A strong set of policies and training can help educate all employees about what is and is not appropriate conduct at work and reduce instances of harassment and discrimination. Having an explicit procedure for reporting and investigating discrimination claims encourages victims to speak up when they have a complaint and can show that the employer takes such complaints seriously and responds with action when needed. When you contribute to a better set of policies and procedures at work, you not only help yourself but your co-workers, managers and employer. Try talking with your supervisor or if you’re uncomfortable talking with your supervisor, try another member of management or a human resources team member.

Confront, Report and Document

If you are already experiencing harassing behavior that is disrupting your ability work, it’s time to take action. If you’re comfortable with the idea, let the harasser or harassers know clearly and directly that you want them to stop what they’re doing. Whether it’s a supervisor who is belittling you because of your age or a group of co-workers who like to share stories about their sexual experiences in the open, let them know that their behavior is making you uncomfortable and you want them to stop. If you are afraid to confront your harasser directly, maybe because they’ve physically threatened you, then we encourage you to talk with your supervisor or human resources contact. Even if you’re not directly affected by harassing conduct at work, if you witness it, say something. This is your chance to help change the culture at your job. By reporting harassing conduct at work, you can protect the victim and everybody else at work, including yourself, from future harassment.

In addition to reporting any instances of harassment, there are other steps you can take at work to protect yourself when you’re in the midst of a hostile work environment. You can start making sure that your story is heard and supported by having co-workers around you when you encounter your harasser. Your harasser might be less bold around other people, and if they’re not, you will at least have witnesses to their conduct. Also, you can begin taking notes of your interactions with your harasser. Make sure you’re as detailed as possible in describing when, where and how your encounters with your harasser happened, and take the notes as close as possible to each event so that your memory is still fresh. These notes can help in your employer’s investigation and in any future legal action you may have to take.

Finally, we don’t recommend retaliating against your harasser. This could cloud your employer’s investigation or a court’s determination of your original claim and potentially subject you to liability. Use the resources you have at work and under the law to report and stop the discriminatory conduct against you.

Contact an Attorney

If you find your employer isn’t appropriately responding to your complaints, contact an attorney. An experienced employment discrimination lawyer can help you get the resolution you need, whether that requires filing a charge with the Equal Employment Opportunity Commission or a lawsuit in federal or state court. A lawyer can help advise you of your legal rights and options as a victim of workplace discrimination. Eisenberg & Baum’s employment discrimination attorneys have decades of experience handling hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Sexual Harassment and Racial Discrimination Lawsuit Against McDonald’s

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Last year, McDonald’s and one of its franchisees faced an employment discrimination lawsuit that may be a sign of things to come. The lawsuit, brought by employees of McDonald’s franchises in Virginia, claimed both the franchisor and the franchisee were liable for alleged race and gender discrimination committed by supervisors at the restaurants. While the case settled, it along with recent labor law developments provide an interesting current look at employment discrimination cases in the fast food franchise business.

We’ll discuss the allegations in the recent discrimination lawsuit against McDonald’s and the changing landscape of franchisor liability for the employment actions of franchisees, specifically in the context of violations of anti-discrimination laws. If you’d like to talk with an attorney about your own employment discrimination claim, please contact Eisenberg & Baum. We have a group of employment discrimination attorneys with years of experience handling discrimination claims.

The Allegations of Employment Discrimination Against McDonald’s

Eleven former employees brought the employment discrimination case against McDonald’s and its franchisee, Soweva Co., in federal court in Virginia. The legal basis for their claim was Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination against employees based on their sex, race, color, national origin, or religion. The allegations in the McDonald’s case included both race and sex discrimination claims.

Racial Discrimination

The former employees in the case were all either African-American or Hispanic. The group alleged they’d been discriminated against on the basis of their race, having been harassed and wrongfully terminated on that basis. Please check out our prior blog posts on harassment and wrongful termination for more information about those types of claims.

The harassing conduct allegedly engaged in by the employees’ supervisors included offensive jokes, racial slurs, and a different disciplinary standard than their white counterparts. The employees alleged that, ultimately, the franchise owner decided to decrease the number of African Americans working at his restaurants and targeted them in a mass termination that impacted mostly African American employees. The employees say that, when asked why they were being fired, the owner explained they “didn’t fit the profile” he wanted.

Sexual Harassment

In addition to their racial discrimination allegations, the former employees claimed that their supervisors had also engaged in activity that constituted sexual harassment. Sexual harassment is a form of gender discrimination prohibited under Title VII. For a broader discussion of what constitutes sexual harassment, you can read our prior blog post on how to identify when you have a sexual harassment claim.

Among other allegations, the former McDonald’s employees claimed that supervisors at their workplace made inappropriate comments about employees’ bodies, sent and showed employees inappropriate pictures, touched female employees on their legs and buttocks, and attempted to solicit sexual activity with employees.

Holding a Franchisor Liable for Employment Discrimination

McDonald’s operates under a franchise business model, meaning that the vast majority of McDonald’s restaurants are not actually owned by McDonald’s USA, the franchisor, but by independent franchisees. Many other fast-food restaurant chains, like Subway, Wendy’s, Jack in the Box and Taco Bell, work under a similar model. For many years, franchisors have seen the franchise model as a way to guard against liability for employment law claims under the argument that the franchisee is truly responsible for employment decisions and matters. While this has been accepted in many labor and employment law cases, there has also been an exception for those situations where the franchisor and franchisee are seen as “joint employers” of an employee. Typically, for a franchisor to be considered a joint employer, they would need to have exercised some direct control over the day-to-day operations of the franchisee.

In the McDonald’s case, the plaintiffs sought to hold both the franchisor, McDonald’s Corp. and McDonald’s USA, and franchisee, Soweva Co., accountable for the alleged discrimination the plaintiffs suffered at work. To bring the McDonald’s corporate entity in, they argued that the company had the right to control operations at all of its restaurants through its franchise agreement and its business manuals. According to the plaintiffs, the McDonald’s corporate entity directs everything from how franchisees spend their advertising dollars to how they manage, train and supervise their employees. McDonald’s manuals also contain corporate policies and processes on discrimination and sexual harassment.

The parties to the McDonald’s lawsuit settled the case before it went to trial and the details of the settlement were not made public, so we won’t know if the plaintiffs’ argument for holding the McDonald’s franchisor entity liable would have been successful. However, recent developments in the area of labor law seem to indicate that the standard for holding franchisors liable as joint employers may be expanding in the favor of employees. In August 2015, the National Labor Relations Board issued a ruling in Browning-Ferris Industries of California, Inc. that created a new standard for the joint employer theory of liability in the context of unfair labor practices. The prior standard required an entity to take actual direct action over a worker to be considered a joint employer, while the new standard expands joint-employer status to entities that have indirect control or an unexercised right of control over a worker.

The ruling in Browning-Ferris did not directly apply to franchisors or to employment discrimination claims, but there is reason to believe that the ruling could be used in those contexts. The NLRB is currently in a fight with McDonald’s over whether it should be responsible for labor violations at independently owned franchises. Also, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal employment discrimination laws, sided with the NLRB’s position in Browning-Ferris noting that the NLRB’s standards can influence the judicial interpretation of joint employment in the discrimination context. The Browning-Ferris ruling is now being appealed and Congress is considering a new law that would overturn the ruling. Whether
franchisors like McDonald’s will be held increasingly responsible for employment law violations at the franchise level remains to be seen.

Who Should Be Responsible for Your Discrimination Claim?

If you’ve been the victim of discrimination and have questions about who should be responsible and what types of legal claims you can bring, we suggest you to contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim and the best way to pursue it. Eisenberg & Baum is ready and able to help you with your discrimination claim, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are.