Category Archives: discrimination

Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Facing ‘Double Jeopardy’ in STEM

One hundred percent is normally associated with a perfect score in something, but a new academic study on race and gender in STEM (Science, Technology, Engineering and Math) is now casting that figure in a very imperfect light.

University of California Hastings School of Law Professor Joan C. Williams and the Center for WorkLife Law just released the report titled Double Jeopardy? Gender Bias Against Women of Color in Science, which demonstrates how subtle—and not-so-subtle—bias shapes the daily work lives of women in STEM, and how women’s experience of gender bias is shaped by race.

“This is the first time someone has asked women whether they have encountered in actual workplaces the specific types of gender bias documented in social psychologists’ labs,” said Williams.

Given the amount of attention recently paid to the lack of gender diversity in the tech space,  it shouldn’t come as a surprise to anyone that women working in STEM fields have experienced some form of bias or discrimination in the workplace.

But perhaps the most startling result of the research was this: 100 percent of the women interviewed reported some sort of gender bias.

“But studies of gender bias generally focus on the experiences of white women, leaving unanswered the major question of whether the same patterns of bias extend to women of color,” Williams said. “This report finds that women of color experience pervasive gender bias—but in ways that often differ from the ways white women experience it.”

In essence, women of color working in the STEM fields find themselves in “double jeopardy” when it comes to dealing with bias in the workplace.

Significant findings of the report include:

  1. 100% of the women interviewed reported gender bias.
  2. Black women are more likely (77%) than other women (66%) to report having to prove themselves over and over again.
  3. The stereotype that Asians are good at science appears to help Asian-American women with students—but not with colleagues.
  4. Asian-Americans reported both more pressure than other groups of women to adhere to traditionally feminine roles and more pushback if they don’t.
  5. Latinas who behave assertively risk being seen as “angry” or “too emotional,” even when they report they weren’t angry; they just weren’t deferential.
  6. Latinas report being pressured by colleagues to do admin support work for their male colleagues, such as organizing meetings and filling out forms.
  7. Both Latinas and Black women report regularly being mistaken as janitors.

From the looks of the findings, there’s definitely a great deal of work to be done before the STEM playing field evens out. But the report introduces a new approach to organizational change to interrupt gender bias, called Metrics-Based Bias Interrupters, developed by Professor Williams last year.

Bias Interrupters uses a four-step iterative process: 1) survey women to find out whether they think gender bias is playing out in basic business systems (recruiting, assignments, evaluations, etc.); 2) develop objective metrics to test whether women’s perceptions are accurate; 3) implement “Bias Interrupters” to interrupt bias in real time; 4) see whether the relevant metric improves and, if it doesn’t, strengthen or modify the intervention.

Here’s hoping these “bias interrupters” can put a dent in that imperfect 100-percent score the next time research is done on the topic.

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Favoritism is No Friend of Diversity

469735239  -- workplace diversityI thought Martin Luther King Day might be a good time to reflect on the forces that make workplaces less diverse than they can and should be. Many are well-known and well-documented, including discriminatory hiring and promoting practices, lack of disability accommodations, insensitivity to gender-identity issues, unequal pay … the list goes on.

But as this recent piece in the Kansas City Star points out, it’s not just about tangible practices and accommodations — or lack thereof. It can be far more subtle and hard to pinpoint, writer Michelle T. Johnson says, when your diversity culprit is favoritism. As she writes:

“What does favoritism even look like? Favoritism is usually about choice. In some workplaces, the work and the people who do it don’t have much variance in how the work is done and who does it. However, in other workplaces, work decisions are made frequently — assignments, shifts, territories, days off. With most decisions come subjective judgments. Every industry and workplace is so different, yet everyone can probably relate to some area of the job that bosses influence [subjectively] at least weekly.”

Her advice to all managers and HR leaders is to always be examining “why you make the personnel decisions you do.” She continues:

“People are quick to defend their decisions, saying they base them on the best person to do the job. But over time, what conditions have you created to allow, for example, one person to inevitably do the job better than another? And if that has happened, what is the reason? Is it that the person reminds you of yourself or has similar interests, or because the person has a personality you find easier to get along with?”

Favoritism can be just that simple, she says. Some people make you spontaneously smile when they walk through the door. Others make you instinctively come up with an exit plan out of a conversation. “Know who those people are and go from there,” she says.

Granted, not all employers can be as proactive as Intel was in its recent announcement that Andrew McIlvaine blogged about earlier this month. Specifically, CEO Brian Krzanich shared in his keynote address at the Consumer Electronics Show in Las Vegas his company’s plans to spend $300 million dollars over the next five years to improve the gender and racial diversity of its U.S. employee base, and of Silicon Valley at large.

Though he made the announcement, the real powerhouse behind this initiative is Intel President Renée James, as this Fortune piece suggests. Since taking over the presidency in 2013, it says, James “has pushed to review a decade’s worth of diversity data and commissioned a new hiring program that incentivized managers to hire more women and minorities.”

Whichever end of the initiative spectrum you and your organization currently find yourselves on — boldly spending and going where few have gone, like Intel, or simply taking the kind of inward look at your management and personnel choices suggested by Johnson — there’s no better time than now to start thwarting your business’ inequality and no better day to get started than this one.

 

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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DOJ’s Move to Protect Transgender Individuals

Even if you’re not a state or local public employer, you still might want to make note of the following news out of the Justice Department yesterday.

185232263In a memo to the DOJ’s component heads and United States Attorneys, Attorney General Eric Holder said the DOJ is now taking the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status, thereby clarifying the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. Put another way, it will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.

According to Holder …

“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status. This will help to foster fair and consistent treatment for all claimants.  And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

As most of you already know, the move follows a final rule released by the Department of Labor earlier this month that implements President Obama’s July 21 Executive Order 13672 prohibiting federal contractors and subcontractors from discriminating in employment practices on the bases of gender identity and sexual orientation.

As might be expected, Mara Keisling, executive director of the National Center for Transgender Equality, told the Associated Press she welcomed the news. But she also noted that, rather than breaking new ground, “it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012.”

Earlier today, I asked Thomas B. Lewis, shareholder in the Princeton, N.J., office of law firm Stevens and Lee, to share his thoughts on the move.

Lewis suggested private employers should pay attention to this, because the “natural progression” will be for these protections to be applied to the private sector.

“These protections already [exist now in some states, such as New Jersey] and I think it’s only natural that other states will follow suit with expanding discrimination protections involving transgender individuals,” he said.

“So if you’re a private-sector employer,” he added, “you have to look at this with an eye toward following the directives of the federal government and stopping any form of discrimination based on somebody’s gender identity and orientation, because it’s not healthy for the workplace environment.”

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For Women, ‘Assertive’ Still Means ‘Mean’

We really haven’t come that far, fellow females.

Not when recent polls show too many women in business — whether by their own fault or by their being mislabeled — are still being 162892062 -- bitchy bossperceived as too gruff, too assertive, too downright mean when they’re in positions of authority.

When Lawrence Polsky wrote an article about “bitchy bosses” earlier this year, he garnered hundreds of responses, clearly touched a nerve and sparked a nationwide conversation about why women leaders are perceived differently than men, according to one release I read about the article .

“Ninety percent of the leaders I have coached over the past 20 years [have been] women,” says Polsky, managing partner at the Princeton, N.J.-based global consulting firm PeopleNRG.com. “I have found the reason they are called bitchy or some  version of that, by their team or colleagues, comes down to one thing: the perception of being ‘too’ assertive. It can also be a way for employees to undermine a woman leader they don’t like or are jealous of.”

Polsky followed his article up by polling 221 professionals on their perceptions of the article for a survey he appropriately titled “Bitchy Bosses” as well.

That poll found:

  • 76 percent of women reported having a “bitchy boss” in the past, compared to 64 percent of men;
  • 89 percent said it reduced team productivity;
  • 87 percent said they or someone on their team left their job because of it;
  • 79 percent said it made them less motivated to do a good job;
  • 62 percent of men said they were lied to by the boss, compared to 52 percent of women;
  • 36 percent told human resources about the problem, yet only 10 percent said HR did anything to help the situation; and
  • 15 percent called in an outside consultant, and of those, 79 percent said that didn’t help.

A recent post on this blog by Senior Editor Andrew McIlvaine supports this notion that we have a problem out there, women. His post describes, as one linguist uncovered through her research, “what seems to be a powerful bias against women who are seen as ‘too assertive’ in the workplace — and the bias seems prevalent regardless of whether the review was conducted by a man or a woman.

That research, which surveyed 248 performance reviews from 28 companies, showed women received much more critical feedback than men did. (About 59 percent of men’s reviews included critical feedback, while nearly 88 percent of women’s did.)

Some of the criticisms against women written in the reviews included: “Stop being so judgmental” and “You can come across as abrasive sometimes.” In fact, the linguist found the word “abrasive” was used 17 times to describe 13 different women, but the word never appeared in men’s reviews. (McIlvaine’s post also includes a link to an HRE piece addressing this.)

More recently, in her October column addressing the scuffle caused by Microsoft CEO Satya Nadella’s comments on women’s pay, Susan R. Meisinger, our HR Leadership columnist, acknowledges this double standard in how we come across affects pay as well.

“Some women aren’t comfortable asking for more money,” she writes, “because they fear it will adversely impact how they are perceived. The fear may be valid: Research shows that both male and female managers are less likely to want to work with women who negotiate during a job interview, since women who press for higher pay are considered pushy.”

Boy, we really can’t win for losing, can we?

Of special concern to Polsky, from the research he did, is that HR doesn’t appear to be all that effective in mitigating the perception problem, at least as it concerns female bosses.  What this means, in his estimation, is that:

“HR cannot rely on hearing about a bitchy boss from employees but must be proactive to discover if the problem exists. [HR leaders] need to look for clues, such as a leader complaining to HR: ‘The people on my team are not stepping up to the plate.’  Another sign is if you sit in team meetings and many team members are very quiet. Both are clues that there is no space for the team to contribute. This points to the fact that either the leader hasn’t built trust or is eroding it.”

He offers these tips for dealing with this issue (as well as how he gave them to me below). If HR does hear about this type of behavior in a female manager or leader:

  1. Encourage employees to talk directly to the boss. Direct feedback is the most helpful for leaders to understand the impact they are having. Our research showed 43 percent of people spoke to their troublesome boss about the problem and about one in five said it helped improve the situation.

  2. If more than one person brings it up, then they need feedback. This needs to come from their manager, not HR.  Why?  If they are to turn this around, it could get messy before it gets better.  They need their manager on their side through the process, to make them aware of the perception problem. Often, these leaders are not aware of how they are being perceived.  Their manager needs to discuss the situation with them.

  3. Oftentimes, the team and the leader need support to move through this problem.  The leader needs help pulling back and being less aggressive while the team needs help being more assertive.  Most of the times I have been involved, the team needed to learn to be more assertive to push back on an overly assertive leader’s aggressive communication. What often gets forgotten, and what we always do, is help the team go through a process of open, honest dialogue with the leaders. This creates healing and forgiveness. Employees will forgive and move forward if they believe the leader is sorry and will change.

  4. If the leaders do not change, after six months of coaching and support from HR and/or a qualified coach,  then they need to be moved to a different position where they can thrive or be removed from their job.

Also, overlook it, he says, if it’s a one-off. If there is only one person complaining, make sure this is not an employee with an axe to grind. Check into it. “I have seen where an employee with an axe to grind gave anonymous feedback to make the leader look bad,” Polsky says.

Also overlook it if the female leader has been charged with implementing a new vision/strategy/approach. “Employees,” he says, “might be complaining because the leader is  pushing them more than the previous manager/leader/situation required.”

This notion kind of feeds into a piece by Mark McGraw, posted here earlier this month, suggesting there are times when “being a jerk” can be effective in business. Unfortunately, the researchers in his piece don’t address the “bitch” factor, only the multi-gender “jerk” factor.

I guess the million-dollar question that has yet to be answered is: Why are women getting the lion’s share of the “bitch” complaints? And (perhaps for Polsky to take on in 2015) what can HR do to even that score?

 

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Stopping ‘Sex Stereotyping’

After the Department of Labor announced a Final Rule prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors, employers are now being urged to revisit their policies to ensure they are in compliance with the new rule.

Connie Bertram, head of Proskauer’s Washington-based labor and employment law practice and co-head of Proskauer’s government regulatory compliance and relations group, says the executive order and implementing rules clarify the protections that the Office of Federal Contract Compliance Programs had been extending, in part, “under a ‘sex stereotyping’ theory.”

“OFCCP’s revised Federal Contract Compliance Manual, which was released last year, instructs compliance officers conducting audits to examine whether contractors policies make prohibited distinctions in the conditions of employment based on sex-based stereotypes,” she says. “OFCCP has issued several notices of violation recently based on this theory.”

The rule implements Executive Order 13672, which was signed by President Obama on July 21, and is the first federal action to specifically address LGBT workplace equality in the private sector. It will become effective 120 days after its publication in the Federal Register and will apply to federal contracts entered into or modified on or after that date. More information is available at http://www.dol.gov/ofccp/LGBT/.

“Americans believe in fairness and opportunity. No one should live in fear of being fired or passed over or discriminated against at work simply because of who they are or who they love,” said U.S. Secretary of Labor Thomas E. Perez. “Laws prohibiting workplace discrimination on the bases of sexual orientation and gender identity are long overdue, and we’re taking a big step forward today to fix that.”

While 18 states, the District of Columbia and many businesses, large and small, already offer workplace protections to lesbian, gay, bisexual and transgender employees, but this rule first federal action to ensure LGBT workplace equality in the private sector, according to the press release announcing the rule.

“This rule will extend protections to millions of workers who are employed by or seek jobs with federal contractors and subcontractors, ensuring that sexual orientation and gender identity are never used as justification for workplace discrimination by those that profit from taxpayer dollars,” says Patricia A. Shiu, director of the department’s Office of Federal Contract Compliance Programs, which will enforce the new requirements.

Bertram says it will be critical for contractors to update their internal and external policies, third-party notifications and affirmative action plans to include these new protected categories.

And, as with any protected category, she says, “it is critical to train managers concerning their non-discrimination obligations and to monitor compliance with the contractor’s anti-discrimination policies.

“It is not enough to ‘talk the talk,’ ” Bertram says. “[Y]ou have to ‘walk the walk’ to ensure compliance and avoid claims.”

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Unemployment Discrimination Rears Head Again

76806723 -- unemployedHaven’t seen one of these for awhile.

With the economy slowly, but surely making its way back (at least for now), cases involving unemployment discrimination have taken a back seat to recruiting and talent management, as stories go.

But as this New York Post piece from earlier this month suggests, the issue appears alive and well in a Manhattan-based staffing agency. In her recent lawsuit filed with the Supreme Court State of New York, County of New York, Valerie White claims she was turned down for an HR-coordinator position with Solomon Page Group in late July of this year because she’d been out of work for more than a year.

Here is the actual lawsuit filed, alleging that the company’s director of accounting operations, who joined White and Solomon’s recruiting director for the interview, told White, ” ‘I don’t think you can do this because you have been out of work for a year.’ ”

White claims in the lawsuit she was “extremely humiliated, degraded, victimized, embarrassed and emotionally distressed” by what happened — sentiments echoed in other stories about this issue that we’ve written and come across.

I wrote a news analysis earlier this year about the push from the White House against long-term-unemployment discrimination, including President Obama’s vow during his Jan. 2014 State of the Union address to give more long-term-unemployed Americans a “fair shot” at a job.

At the time of that story, New York was one of 10 states mulling a state law banning such discrimination. New York City, meanwhile, had already enacted, in June of 2013, one of the nation’s most aggressive bans, creating “the first law in the United States that defines a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status,” according to this report from the Society for Human Resource Management.

The SHRM piece says the NYC law is broader in scope than other laws (and bills being considered in some states) by providing plaintiffs with the right to pursue private civil claims and by treating unemployed applicants in the same way members of other protected classes are treated under nondiscrimination laws.

I was hoping to get something from Solomon about all this — about its view of the case and about doing business in New York with this law on the books — but Paul Coller, vice president of human resources at Solomon and the company’s chief human resource officer, could only say he and his colleagues “are confident the facts will show that these allegations lack any merit and, due to pending litigation, we have no further comment at this time.”

I guess it remains to be seen just how aggressive this anti-unemployment-discrimination push will be in the months and years to come. I guess it will be economy-driven. For now, my story and this subsequent column from our legal columnist, Paul Salvatore, spell out some things HR should be thinking about and doing around the push .

Salvatore’s reminder:

“HR leaders should consider the best practices released by the White House [during that State of the Union] and signed on to by many large employers. They include:

* Making sure advertising does not discourage or discriminate against the unemployed,

* Reviewing screens or procedures used in recruiting and hiring processes so individuals are not disadvantaged based solely on their unemployment status,

* Reviewing current recruiting practices to ensure a broad net is cast and to encourage all qualified candidates to consider applying, and

* Sharing best practices.”

Granted, the rate of unemployment is lower now than earlier this year, and much lower now than in the five previous years, according to the Bureau of Labor Statistics. But it’s also well above the years just preceding the Great Recession and there’s really no telling how many people out there have been out of work for so long they’ve essentially given up hope.

Best to remain vigilant, not to mention compassionate and fair, whichever way the legislative and administrative winds are blowing.

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EEOC Adds Pregnancy Cases to Controversy

Just an update for those who are following the recent pregnancy-discrimination guidelines issued by the Equal Employment 490128943 -- pregnanct employeeOpportunity Commission — despite the controversy some think the agency created amidst the pending U.S. Supreme Court consideration of Young v. United Parcel Inc.:  The EEOC isn’t waiting on the high court before filing or settling pregnancy-discrimination lawsuits either.

According to the EEOC’s website, press releases were issued on nine lawsuits filed and two settlements since the agency issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14.

Here, for your information — should you choose to venture into this much reading — are all the cases the EEOC has filed and listed on its website against employers accused of pregnancy discrimination since the guidance was issued, from most recent to oldest:

All the suits in question accuse the businesses of violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

“I am surprised that this issue continues to be a recurring theme in the workplace in this day and age,” says Robert Canino, regional attorney for the EEOC’s Dallas District Office, which filed the Pharmacy Solutions lawsuit. “We hope that by continuing to increase public awareness through our law-enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.”

But critics of the EEOC’s assertiveness and timing in issuing its guidance — which was the focus of this HREOnline news analysis I wrote back in July — say adding cases to the pregnancy-discrimination docket only clutters an already-cluttered legal landscape.

“With its new pregnancy enforcement guidance still in its first trimester, the EEOC has set about vigorously pursuing companies that do not comply,” thereby filling the courts with more to work on as the Supreme Court hearing has yet to be scheduled,  says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

“Since the EEOC first gave birth [pun intended, no doubt] to the guidance in July, it has inserted itself as plaintiff in at least nine federal-court lawsuits against employers [allegedly] discriminating against pregnant employees,” he says. “Each decision is accompanied by rather strong remarks from the [agency], which state quite clearly its intent to induce an ‘awakening’ by employers and erase ‘archaic prejudices’ still held by companies toward pregnant women.”

The issue up for consideration in Young v. UPS is whether an employer — in this case, UPS —  is required under the PDA to offer light-duty work to pregnant employees with restrictions, even if light-duty work is available for certain categories of nonpregnant employees.

“This is precisely the issue the Supreme Court has yet to take up,” Voluck told me back in July, “and that decision won’t come out until next year some time. “I honestly have no idea why this was issued at this time,” he said then. “A power move? I have no idea.

“It’s like the Perfect Storm, these two entities colliding,” he said, referring to the 2000 movie, “though my crystal ball tells me there’s no doubt the Supreme Court will expand the rights of pregnant women.”

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Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And — aside from staying on that apparently long, arduous road toward equal pay — what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

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