What does a group of 25 attorney-mediators have to do with a swimsuit calendar? Good question. The Miami-based Florida Mediation Group has probably been asking itself that same question ever since it received a good deal of flack for having its name emblazoned across one of several themed calendars given away as gifts to clients.
It can be hard to recognize gender discrimination when it plays itself out in the workplace. A woman is required by her employer to wear two-inch heels to work. Doing so causes her to develop bunions on her feet, which can only be removed by surgery. After surgery she is ordered by her doctor to wear flat shoes for two months. Her employer refuses to permit her to do so. Left with no alternative, she quits. The employer imposes no such requirement or its attendant problems on male employees. When you realize that the employer’s two-inch-heels policy cost the woman her job and had she been male, this would not have happened, it becomes more obvious that the policy is discriminatory. Remember the wires of the bird cage. Those wires are probably what the members of the executive board of the Miami-Dade chapter of the Florida Association of Women Lawyers were thinking of when they registered their objection to the calendar. “We believe this type of advertising, whether picturing men or women, does not promote dignity in the law and is inappropriate when circulated by an organization that serves the legal community.”
It is not difficult to discriminate on the basis of gender if an employer is not sensitive to the issues involved. (See Exhibit 7.1 , “Gender-Neutral Language?”) Once again, as with race discrimination, vigilance pays off. This article will address gender discrimination in general, including pregnancy discrimination, fetal protection policies, and equal pay. Gender discrimination covers both males and females, but because of the unique nature of the history of gender in this country, it is females who feel the effects of gender discrimination in the workplace more so than men, and the vast majority of EEOC gender claims are filed by women.
Women are the single largest group of beneficiaries under affirmative action. They seem to be gaining in all facets of life. As we write this, Condoleezza Rice is secretary of state. Hillary Rodham Clinton made an unprecedented run for president of the United States as the first female candidate with a serious chance of winning. Nancy Pelosi is the first female speaker of the U.S. House of Representatives. Drew Gilpin Faust has taken over as the first female president in Harvard University’s 371-year history. Things seem OK. You think to yourself, who would be dumb enough to discriminate against women these days? It can be hard to believe that gender discrimination still exists when you go to school and work with so many people of both genders; you don’t feel like you view gender as an issue, and it just seems like everything is OK. However, EEOC reports that gender suits account for the second highest percentage of claims brought under Title VII.
Just recently, one of our female masters’ students was told by an employer that if she were a man with her qualifications, he would pay her 50 percent more. Another was told she would be able to have a full-time job upon graduation in a company in which she had experienced a very successful internship, but only if she allowed the very prominent president of the company to set her up in an apartment so she could be available to him whenever he wished to have sex with her. He was not bothered by the fact that she was married with a child. We are glad to report that she did not take him up on his offer. She was, however, put in the unenviable position of starting her job hunt all over again and not finding another job in her field until five months after she graduated.
Even professionals can be caught off guard. In 1999 the media reported that a gender-discrimination charge that started with eight female stockbrokers at Merrill Lynch alleging various forms of gender inequality, particularly economic discrimination, had ballooned to 900 women and was still growing. “It’s been a flood. I’ve been stunned. We were expecting 200–300 claims, but the calls are still coming in,” said one of the lawyers representing the women.
In 2004, arbitrators determined that it was standard operating procedure at Merrill Lynch to discriminate against women. It was the first time a Wall Street firm had been found to have engaged in systematic gender discrimination. Merrill Lynch has spent more than $100 million settling close to 95 percent of the 900 or so claims. In subsequent press releases, the firm said this is not an accurate picture of the firm today. Unfortunately, that was only the beginning of Wall Street’s gender-based litigation. Cases continue to be brought by female employees against several Wall Street firms for the same types of discrimination that cost Merrill Lynch so much. Morgan Stanley settled a gender-bias class action suit for $46 million in 2007; Putnam Investments was sued for its “ingrained culture of chauvinism,” leading to demotions and firings based on gender; Smith Barney was sued for a pattern and practice of gender discrimination against its female financial consultants; and Wall Street bank Dresdner Kleinwort Wasserstein Securities, LLC, was sued for $1.4 billion by female employees who alleged they were hired as “eye candy,” subjected to Animal House–like antics, passed over for promotions, and generally treated like second-class citizens.
Clearly, Merrill Lynch’s $100 million message was not heard by all. But Wall Street is hardly alone. Recent cases have been filed for everything from a female animal handler terminated for refusing to expose her breasts to a 300-pound gorilla who had a “nipple fetish”; to a female attorney suing her firm because she alleged she was not being paid the same as similarly situated men and there was a separate, lower track for female lawyers with children or who took maternity leave; to the Clearwater, Florida, Fire & Rescue chief being charged by EEOC with gender discrimination for ordering the department’s six female firefighters to stay away from structure fires amid reported threats that their male colleagues might not protect them; to a man suing in California because there is no convenient, easy, comparable way for him to take his wife’s name when they marry as it is for her to take his. Add race to the gender mix and it gets even worse. An American Bar Association study on women of color in law firms, commissioned after a National Association for Law Placement study found that 100 percent of female minority lawyers left their jobs in law firms within eight years of being hired, found that 44 percent of the women reported being passed over for desirable assignments (compared to 2 percent for white men), 62 percent said they had been excluded from formal and informal networking opportunities (compared to 4 percent of white men), and 49 percent reported being subjected to demeaning comments or other types of harassment at their firms.
Gender equality in the workplace is an ever-evolving area and does not occur in a vacuum. The issues in the workplace are only one part of a much larger environment of different, often unequal, treatment of individuals based on gender. Imagine the swimsuit calendar having bikini-clad males instead of females. Do you think it would have been received the same way? Manifestations of gender differences in society are the basis for differences in treatment in the workplace. They can be as diverse as the group of Massachusetts teens suing the Selective Service System arguing it is an unconstitutional violation of the Fifth and Fourteenth Amendments’ Equal Protection Clause for females not to be subject to the draft just as men are, asserting that “If people want women’s rights, they should want it wholeheartedly, including for women to have to fight in wars,” to the protest over General Nutrition Center (GNC) dropping women from its GNC Show of Strength bodybuilding competition and replacing it with the International Federation of Body Builders (IFBB) Pro Figure competition; from males suing bars for offering “Ladies’ Night” discounts to women because such promotions discriminate against men, to male fans at a major league baseball park suing the park for its Mothers’ Day promotion give-away of red net bags only to females 18 and over. Of course, it goes without saying that gender differences also find their way into the workplace through lower pay for women; women being consigned to lower-paid jobs (pink-collar jobs); women being hassled, not promoted, or not given the same assignments and training as men in jobs traditionally held by men; or in men not being hired for traditionally female jobs such as Hooters’ servers.
New types of gender claims are constantly evolving. In the past few years, at least 24 states have passed “contraceptive equity” laws requiring that any health plan that provides coverage for prescription drugs also must provide coverage for FDA-approved contraceptive drugs. When it was perceived that employers’ health plans routinely covered the cost of Viagra for male employees but not the cost of birth control for females, which EEOC determined violated Title VII, at least 27 states passed “contraceptive equity” laws requiring that any health plan which provides coverage for prescription drugs also must provide coverage for FDA-approved contraceptive drugs. As a result of state mandates, the number of employers allowing coverage for both tripled from 1993–2002. A 2004 Guttmacher Institute report found that by 2002, 86% of employers covered both. The need for lactation facilities for nursing mothers has become a growing area of workplace concern. Increasing male employee interest in balancing work and family also has found its way into the workplace. The first gender-based Family and Medical Leave Act (fmla) claim involved a new father who won $40,000 after being denied appropriate FMLA leave to take care of his premature baby and seriously ill wife. Within the past few years, in addition to the female coaches who have sued for gender discrimination, several male coaches have alleged gender discrimination. For instance, the coach at the University of Pennsylvania won his claim of being passed over for crew coach in favor of a female. In 2007, EEOC issued guidelines on “caregiver responsibility” discrimination, also known as “caregiver bias” or “family responsibility discrimination” (FRD). The EEOC issued the guidance because it realized the growing issue of the disparate impact that the conflict between work and family had on both male and female employees (though it noted that since most caregiving responsibilities fall on women, such discrimination has a disparate impact on them). That is, because of their caregiving responsibilities, women are more likely to suffer adverse employment actions taken against them such as diminishing workplace responsibilities, failure to promote or train, exclusion from decision-making channels, or other actions coming from the idea that if employees have caregiving responsibilities, then they are less likely to be dependable, competent employees who can live up to their full workplace potential. As women have increasingly entered the workforce over the past 40 years since passage of Title VII, the focus of claims of gender discrimination have more recently shifted away from hiring discrimination toward on-the-job issues such as equal pay, promotions, harassment, and pregnancy leave. Eric S. Dreiband, EEOC general counsel, recently said this reflects “new issues erupting in a diverse workforce. As blatant discrimination decreased, other areas like harassment increase.”
Viewed in this context, it then comes as no surprise that in the past few years, in addition to the substantial sums paid out by Wall Street for gender discrimination, Wachovia Bank reached a settlement with the Office of Federal Contract Compliance Programs (OFCCP) to pay $5.5 million for compensation discrimination against women. Home Depot agreed to pay $5.5 million to resolve a class action suit alleging, among other things, gender discrimination in its Colorado stores. The Palm Steak House agreed to a $500,000 settlement for failing to hire women to wait tables at its 29 restaurants because males, who could make up to $80,000 per year, including tips, were viewed as more prestigious.
Washington is the only state in the country that can boast that it has a female governor, both of its U.S. senators are female, four of its nine state supreme court justices are female, and roughly a third of its state legislators are female, yet Seattle-based aeronautical giant Boeing agreed to pay $72.5 million for gender-based compensation discrimination against its female employees. A University of California lab agreed to pay $9.7 million to 3,200 women to whom it had paid less wages and whom it had promoted less often than male employees. Costco Wholesale Corp., with a workforce of 78,000, was sued by about 650 women in a class action suit who allege the company did not announce openings for higher-paying managerial jobs, relying instead on a “tap the shoulder” policy of choosing managers. That is, top-level male managers would pick other males for high-level positions. Fewer than one in six of Costco’s managers were women, while nearly 50 percent of its workforce is female.
Then, of course, there is Wal-Mart, whose size alone puts it nearly in a class by itself. With sales of $284 billion for fiscal year 2004, it is the world’s largest retailer. More than 70 percent of its hourly sales employees are women. In Dukes v. Wal-Mart Stores, Inc., potentially about 1.6 million present and former female employees (roughly the population of San Francisco) were certified for a class action suit against Wal-Mart for gender bias. The employees allege that Wal-Mart systematically mistreats women in a variety of ways, including paying them less even though they may have more experience or outrank men, prohibiting women from advancing by denying them training, prohibiting them from working in departments traditionally staffed by men (positions that usually pay more), and not posting all management position openings. Damages could run into the billions if Wal-Mart, which denies any wrongdoing, is found liable for gender discrimination. A study done at the request of the employees’ attorney found that of Wal-Mart’s top 20 competitors, 56 percent of the managers are women, compared with about one-third of that for Wal-Mart. Only about 14 percent of the top managers at its 3,000 stores are female. In response to the media surrounding the lawsuit, Wal-Mart took out more than 100 full-page newspaper ads across the country, outlining its wages and benefits and the good the company brings to its communities.
Let’s take a look at some of the statistics that might underlie these cases to see if they support the overall picture. Nearly half the workforce is female. At the same time women are nearing the halfway mark in the workforce, they represent two-thirds of all poor adults. Nearly 80 percent of female employees work in traditional “female” jobs—as secretaries, administrative support workers, and salesclerks. Statistics show that 16 percent of the females in the workforce are employed as professionals but 10 percent of them are actually nurses or K-12 teachers—traditionally “pink-collar” female strongholds. For instance, 90 percent of nurses are women, as are 80 percent of teachers. Paradoxically, a 2004 EEOC report 5 found that women have the lowest odds of being managers in nursing care facilities. Even though Title VII has been in effect for over 40 years, only 15 percent of women work in jobs typically held by men (engineers, stockbrokers, judges), while fewer than 8 percent of men hold female-dominated jobs such as nurses, teachers, or sales clerks. According to the EEOC report, women now represent about 36 percent of all officials and managers in private-sector employment, a 7 percent increase over the 12-year period examined. On the other hand, women are well over 50 percent of the 13 million U.S. undergraduates and earn more doctorates than men, yet it is generally recognized that campuses are still predominantly male when it comes to professors, department heads, and other high-level administrators. In a historic move in 2004, Susan Hockfield was tapped to be the new president of the prestigious Massachusetts Institute of Technology. Shortly thereafter, in January 2005, the president of Harvard University, Lawrence Summers, created quite a stir when he suggested at an academic conference that women represent such a small percentage of math and science faculties because they lack innate ability in math and science. He subsequently apologized, saying, in part, “The human potential to excel in science is not somehow the province of one gender or another.” In February 2007, he was replaced by Drew Gilpin Faust, the first female president in Harvard’s 371-year history.
A 2004 study by Stephen J. Rose, an economist at the consulting firm of Macro International, Inc., and Heidi I. Hartmann, president of the Institute for Women’s Policy Research, found that while the Bureau of Labor Statistics (BLS) reports that women earn about 77 percent of men’s pay, over the course of their careers, it is actually more like 44 percent . The researchers say the BLS statistics consider only full-time, year-round employees—a category only about 25 percent of women fit into over the course of their work life—and do not account for the roughly 75 percent of those who work only part time at some point and dip in and out of the labor force to care for children or elderly parents. When the more accurate reality is used for calculation, the figure becomes 44 percent.
A 2007 report by the U.S. Census Bureau found that the median income for a male working full time, year-round was $41,965, while for females the median was $32,168, or 29 percent less. The gender-based wage gap is present in every profession. For instance, female doctors on average earn 58 percent less than male doctors.
The 1991 Civil Rights Act called for the establishment of a Glass Ceiling Commission to investigate the barriers to female and minority advancement in the workplace and suggest ways to combat the situation. In 1995, the U.S. Department of Labor released a study by the bipartisan commission. Findings were based on information obtained from independent studies, existing research, public hearings, and focus groups. The commission reported that while women have gained entry into the workforce in substantial numbers, once there they face all but invisible barriers to promotion into top ranks. “Glass ceilings” prevent them from moving up higher in the workplace. “Glass walls” prevent them from moving laterally into areas that lead to higher advancement. Research indicates that many professional women hold jobs in such areas as public relations, human Resources management, and law—areas that are not prone to provide the experience management seeks when it determines promotions to higher-level positions. This was further supported by the study by Professor Blumrosen.
Segregation by both race and gender among executives and management ranks is widespread. A survey of top managers in Fortune 1000 industrial and Fortune 500 service firms found that 97 percent are white males. As part of their findings, a survey by Korn/Ferry International found 3 to 5 percent of top managers are women. Of those, 95 percent are white, non-Hispanic. Further, women and minorities are trapped in low-wage, low-prestige, and dead-end jobs, the commission said. It is therefore not difficult to see why, in a New York Times poll of women about “the most important problem facing women today,” job discrimination won overwhelmingly.
Our country, like many others, has a history in which women’s contributions to the workplace have historically been precluded, denied, or undervalued. Prior to the 1964 Civil Rights Act, it was common for states to have laws that limited or prohibited women from working at certain jobs under the theory that such laws were for the protection of women. Unfortunately, those jobs also tended to have higher wages. The effect was to prevent women from entering into, progressing within, or receiving higher wages in the workplace. In Muller v. Oregon, which upheld protective legislation for women and justified them being in a class of their own for employment purposes, the U.S. Supreme Court stated that a woman must “rest upon and look to her brother for protection . . . to protect her from the greed as well as the passions of man.” This is precisely the view our laws took until the Civil Rights Act of 1964.
After women came into the workplace in unprecedented numbers out of necessity during World War II and performed traditional male jobs admirably, it became more difficult to maintain the validity of such arguments. This type of protective legislation was specifically outlawed by Title VII, and the glass ceiling and walls notwithstanding, women have made tremendous strides in the workplace over the past 40-plus years since the Civil Rights Act was passed. In evaluating those strides, keep in mind that women were virtually starting from scratch since there was little or nothing to prevent workplace discrimination before Title VII, so gaining entry into the workplace and the statistics reflected by that should, of course, be high.
Despite the fact that many of the strides made by women were made with the help of male judges, employers, legislators, and others, much of the cause of the figures is attitudinal. (See Exhibit 7.2 , “Sexist Thinking.”) Workplace policies generally reflect attitudes of management. In a national poll of chief executives at Fortune 1000 companies, more than 80 percent acknowledged that discrimination impedes female employees’ progress, yet less than 1 percent regarded remedying gender discrimination as a goal that their personnel departments should pursue. In fact, when the companies’ human resources officers were asked to rate their departments’ priorities, women’s advancement ranked last.
Interestingly enough, while the biggest gains under protective employment legislation in the last 40-plus years have been made by women, the truth is, gender was not even originally a part of the Civil Rights Act. Gender was inserted into the civil rights bill at the last moment by Judge Howard Smith, a southern legislator and civil rights foe desperate to maintain segregation in the south, who was confident that, if gender was included in the bill legislating racial equality, the bill would surely be defeated. He was wrong. However, because of the ploy, there was little legislative debate on the gender category, so there is little to guide the courts in interpreting what Congress intended by prohibiting gender discrimination. To date, courts have determined that gender discrimination also includes discrimination due to pregnancy and sexual harassment, but not because of affinity orientation or being transgender.
The goal of a manager, supervisor, human resources employee, or business owner is to have workplace policies that maximize the potential for every employee to contribute to the productivity and growth of the workplace, while minimizing or eliminating irrelevant, inefficient, and nonproductive policies that prevent them from doing so. The underlying consideration to keep in mind when developing, enforcing, or analyzing policies is that, no matter what we may have been taught about gender by family or cultural and societal mores, gender, alone, is considered by the law as irrelevant to one’s ability to perform a job. By law, it is the person’s ability to perform, not his or her gender, that must be the basis of workplace decisions. (See Exhibits 7.3 , “Career Stereotyping,” and 7.4, “Gender Myths.”) As we shall see, there may be very limited exceptions to this rule if a bona fide occupational qualification (bfoq) exists. It is not only the law, but it is in the best interest of any employer who is serious about maximizing production, efficiency, and profits, as well as minimizing legal liability for workplace discrimination, to recognize that gender discrimination, whether subtle or overt, is just plain bad business. After all, workplace turnover, morale, and defending against lawsuits cost the employer money, time, and energy better spent elsewhere. (See Exhibit 7.5 , “Discrimination: Bad for Business and Employees.”)
The aim of this article is to provide information about obvious gender discrimination and what factors must be considered in making determinations about the policies in “gray areas.” This article provides the tools to use when developing, applying, or analyzing policies that may result in gender discrimination claims.
Exhibit 7.1 Gender-Neutral Language?
Attorney Harry McCall, arguing before the U.S. Supreme Court, stated, “I would like to remind you gentlemen” of a legal point. Associate Supreme Court Justice Sandra Day O’Connor asked, “Would you like to remind me, too?” McCall later referred to the Court as “Justice O’Connor and gentlemen.” Associate Justice Byron White told McCall, “Just ‘Justices’ would be fine.”
Source: Newsweek, November 25, 1991, p. 17.
Exhibit 7.2 Sexist Thinking
An Esquire magazine poll asked men: “If you received $1.00 for every sexist thought you had in the past year, how much richer would you be today?” The median answer was $139.50. [We have never had a male student who didn’t think the figure should be much higher.]
Exhibit 7.3 Career Stereotyping
Dear Abby: As I begin my second year of medical school, I need some advice on how to respond to those ignorant people who assume that, since I am female, I am studying to be a nurse. Men and women alike are guilty of this.
Please don’t get me wrong, I have just as much respect for nurses—they work as hard as some physicians, but women are seldom given the credit they deserve. I once heard this statement: “Oh, so you’re in medical school? My sister is a nurse, too!”
I cannot tell you how angry this makes me. Many of my female classmates also feel this way. Do you have a response that expresses our feelings without offending the speaker?—Ms. Future Doctor in L.A.
Dear Future Doctor: Anyone who is confused about the role of a student in medical school should be told that future physicians are trained in medical schools, and future nurses are trained in nursing schools.
Dear Abby: After reading the letter from “Ms. Future Doctor,” I felt the need to write and give another view on career sexual stereotypes.
I am 27, a registered nurse for four years, and I am a MALE. I am frequently asked, “When will you become a doctor?” Or, “You’re doing this just to put yourself through medical school, right?” Also, “What’s the matter, couldn’t you get into medical school?”
When I first started my schooling to become a nurse, I considered medical school, but the further I got into nursing, the more I enjoyed being a nurse. I enjoy comforting a patient in pain, teaching my patients about their diseases, and holding the hand of someone who is frightened and hurting. These feelings are experienced by every nurse, and being male did not exclude me from doing them. (Most doctors are too busy.) I still work hard being a competent and compassionate nurse.
More males are choosing nursing as a career, and we need to shed our preconceived notions about who nurses are and what they look like.— Mr. Nurse in Tampa
Source: “Dear Abby” columns by Abigail Van Buren. Dist. by Universal Press Syndicate. Reprinted with permission. All rights reserved.
Exhibit 7.4 Gender MYTHS
Due to the particular historical development of gender in our country, there are many myths about gender that affect how those of a given gender are perceived. Here are some of the myths we have actually been told by managers and supervisors. These myths impact how we view employees of a given gender in the workplace. See if any are familiar.
• Women are better suited to repetitive, fine- motor-skill tasks.
• Women are too unstable to handle jobs with a great deal of responsibility or high pressure.
• Men make better employees because they are more aggressive.
• Men do not do well at jobs requiring nurturing skills such as day care, nursing, elder care, and the like.
• When women marry, they will get pregnant and leave their jobs.
• When women are criticized at work, they will become angry or cry.
• A married woman’s income is only extra family income.
• A woman who changes jobs is being disloyal and unstable.
• A woman should not have a job that requires her to have lunch or dinner meetings with men.
• Women should not have jobs that require travel or a good deal of time away from home.
Exhibit 7.5 Discrimination: Bad for Business and Employees
JURY TELLS NBA TO PAY FEMALE REFEREE $7.85 MILLION
Read what happened when a female rose to number two on the list of those in line to officiate in the NBA, only to be repeatedly passed over:
Sandra Ortiz-Del Valle sued the National Basket-ball Association (NBA) for gender discrimination for passing her over as a referee, and handed the NBA its first discrimination case loss when the federal jury awarded Ortiz-Del Valle $7.85 million, $7 million of which was punitive damages (the award was later reduced by a judge to $350,000). Ortiz-Del Valle had dreamed of being an NBA referee for years, but kept getting passed over. Despite documents praising Ortiz-Del Valle as being “very knowledgeable about the rules” and having “excellent basketball officiating skills,” and although the evaluator said, “I would not hesitate to recommend that at sometime in the near future she be considered to enter our training program,” the NBA kept giving her varying reasons for denying her the position. The NBA denied any discrimination and said she was not hired because she failed to upgrade the Level of Competition in her officiating schedule despite being asked to, and said she was out of shape. Ortiz-Del Valle claimed she had all the qualifications to be an NBA referee, including officiating in top men’s amateur and professional basketball leagues for 17 years. She was the first woman in history to officiate a men’s professional basketball game. Ortiz-Del Valle said she finally sued after continuously doing everything the league asked of her, and not being promoted, then seeing men she trained hired by the league. “It was like they kept moving the basket,” she said.
Source: Ortiz-Del Valle v. NBA, 42 F. Supp. 2d 334 (S.D.N.Y. 1999).