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States Fight Back Against Pregnancy Discrimination

Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project, on the steps of the U.S. Supreme Court.

Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project, on the steps of the U.S. Supreme Court.

This is a guest blog post that was originally published on the American Civil Liberties Union (ACLU) website. 

By Lenora M. Lapidus, Director, ACLU Women’s Rights Project, and Ariela Migdal, Senior Staff Attorney, ACLU Women’s Rights Project

When Peggy Young got pushed out of her job at UPS after she became pregnant, she fought back by bringing a lawsuit against her employer, claiming that UPS discriminated against her by refusing to give her a light duty rotation, even though UPS admitted that it routinely accommodates workers with on-the-job injuries, workers who lose their drivers’ licenses, and workers who are covered by the Americans with Disabilities Act. Unfortunately, many employers think it’s okay to treat pregnant workers worse than other employees who need temporary light duty positions or other temporary adjustments, like the ability to sit down or drink more water. And some courts have agreed.

In Ms. Young’s case, in which the ACLU submitted a friend-of-the-court brief, an appeals court held that to require UPS to give pregnant workers the same kinds of accommodations it gives other workers would be to grant special “most favored nation status” to pregnant employees.

Recently, however, a growing number of states has decided that it is fundamentally unfair and unlawful to allow companies to push pregnant women out of the workforce in this way. The majority of American women will be pregnant at some point in their working life, and it makes no sense to allow employers to send pregnant workers packing, when employers can keep pregnant workers on the job using the same policies they already use to keep temporarily injured or disabled workers at work. While the federal Pregnancy Discrimination Act was passed in 1978 precisely to ensure that pregnant women were not subject to unlawful firings and other mistreatment, courts—like the court in Peggy Young’s case—have been allowing employers to treat pregnant workers worse.

States have started to fight back. Recently, the state of Maryland, with the support of Peggy Young, the ACLU of Maryland, and other civil rights groups, passed a law that will close this gap in the law, at least for pregnant workers in Maryland. The Governor is expected to sign the bill into law in May. Now, pregnant women in Maryland will receive the same kinds of accommodations that are currently provided to other employees with temporary physical restrictions.

In New York, the Governor and advocates, including the New York Civil Liberties Union, are trying to pass the New York Women’s Equality Agenda, which will explicitly require employers to provide a reasonable accommodation for pregnant workers, just as they already do for many other workers who are temporarily unable to do any aspect of their job. The law would provide more certainty for pregnant workers like Julie Desantis-Mayer, who was forced onto unpaid leave when she requested light duty in her job as a package delivery driver for UPS. We filed a sex discrimination charge with the EEOC on behalf of Ms. Mayer and are currently proceeding before the agency.

A number of states, including Michigan, Connecticut, California, and a handful of others, already have some kind of law requiring parity in accommodations for pregnant workers. Other states are starting to follow suit—this year bills were introduced in Iowa, Illinois, and Maine, as well. These bills should not be necessary. Congress tried to outlaw the widespread practice of pushing pregnant women out of the workplace 35 years ago. But employers—and some courts—have not gotten the message. Women workers in states around the country won’t stop until their right not to be forced off the job when pregnant is secure.

Woman server with plateHeading out this Valentine’s Day? Keep restaurant workers’ well-being in-mind.

By Courtney Kishbaugh

Valentine’s Day is the second most popular day to dine out, according to the National Restaurant Association. As couples flock to restaurants all over the country, they should keep in mind that the backhouse realities of the restaurant industry are far from romantic.

It takes a bit of research to know the issues that restaurant workers are handling on the job—like harassment from co-workers, lack of benefits such as paid sick days, and low pay—since they are not evident from within a candle-lit dining room.  But with a bit of information, diners can choose to visit food establishments that value job quality and workers’ well-being.

The restaurant industry can be an especially difficult workplace for women. The combination of high rates of sexual harassment, low wages, and unstable work schedules all disproportionately affect women, and their economic security.

Treatment that would typically incite outrage in many other workplaces is considered the norm in restaurants, and women are suffering for it. Sexual harassment is a huge problem in the restaurant industry. Data from the Equal Employment Opportunity Commission (EEOC) shows that, in 2011, almost 37 percent of sexual harassment cases reported that year occurred in restaurants, making the restaurant industry the “single largest source of sexual harassment claims.” Speaking from personal experience, I can attest to the fact that actions typically seen as unacceptable in most workplaces are customary in restaurants.

Simultaneously, the majority of people earning the tipped minimum wage is female. (The federal tipped minimum wage is now $2.13 per hour, and tips are supposed to bring the workers at least up to the regular federal minimum wage of $7.25 per hour.) Women tend to be stuck in lower paying positions in the kitchen or dining room, rather than rising through the ranks to salaried jobs, evidenced by the fact that women fill only 19 percent of the higher paying chef positions. Though the restaurant I worked at was high-end and earning less than the regular minimum wage was never an issue, Women’s eNews reported  that “tipped workers are more likely to fall into poverty than those who receive [the regular] minimum wage,” and that “servers rely on food stamps at nearly double the rate of the general population.”

In addition, though female servers make up the majority in casual dining establishments, a male majority workforce prevails in fine dining. This leads to further income inequality because women are not only stuck in tipped positions, but also prevented from moving into the higher paid bracket of the tipped positions. The proportion of female servers was much lower at a fine dining restaurant I worked in, and very few women worked in the salaried manager or kitchen positions, outside of the dessert and pastry shop.

The industry’s unstable work schedule disproportionately affects women, who often are primary caretakers in their families. Many restaurants stay open until the last customer leaves, while others have hours that go until three in the morning. Child care centers are seldom open at these late hours, leaving women hard-pressed to find adequate child care. Furthermore, last-minute schedule changes, based on customer volume, can make it difficult for women to make arrangements for their family, a situation already made challenging by low pay.

However, these facts should not ruin the prospect of eating out on Valentine’s Day.  Those planning on eating out should consider using the Restaurant Opportunities Centers United (ROC-United) dining guide (available either as a PDF or as a free mobile app for smartphones) that details which restaurants pay their workers fairly and provide them with benefits, such as paid sick days. The guide covers a number of restaurants in major cities such as New York City, Washington, D.C., and Los Angeles.

Supporting establishments that treat their workers fairly is a step in the right direction to improve the situation of restaurant staff in general, especially women, by increasing their economic security.

Courtney Kishbaugh is a Research Intern with the Institute for Women’s Policy Research and is currently a student at Georgetown University.

The Wage Gap: Myths vs. Realities

By Heidi Hartmann

We owe a debt of gratitude to MSNBC host Rachel Maddow for pointing out the differing perceptions people have about the gender wage gap. In April, she invited me on her show to set the facts straight on the wage gap and I hope that I helped her to do that

By now, most Americans are likely familiar with the 77 percent figure, meaning that, at the median, women’s wages equal only 77 percent of men’s wages both for full-time, year-round work (in 2010, the most recent year for which data are available). This figure, provided annually by the U.S. Census Bureau, has come under criticism from conservative economists and others for a variety of reasons for the past several decades—so much so, that this simple and accurate figure is now viewed by many media outlets as suspect. One New York City newspaper even refused to allow an op-ed writer to include a number such as this provided by IWPR based upon government data.

On an April 30 broadcast of  the Sunday morning television show, Meet the Press, Ms. Maddow pointed out that another guest on the show, conservative-leaning CNN commentator Alex Castellanos, seemed to deny that men’s and women’s wages are unequal. After first countering that wages were equal, Mr. Castellanos said they were unequal but that was due to good reasons such as women working in fields like science or math, or women taking time off to have children, and so on. Mr. Castellanos was echoing justifications provided by conservative economists over the years to ignore the size of the wage gap by imagining that it is really much smaller than the data show, or that it may reflect women’s preferences—therefore, no government action to end discrimination is necessary.

While often those on opposite sides of an issue agree on facts but disagree on solutions, Ms. Maddow’s point is that, in terms of the wage gap, there exists a major difference in belief about the facts. In such circumstances, it is impossible to come to a compromise and agree upon a solution. Just as conservatives have spent decades challenging the role of government in regulating pollution, banks, or big business, they have spent decades challenging the popular wage gap number, and for a similar reason—to avoid policy changes. Let’s review what conservative economists have been saying.

Some economists challenge the 77 percent figure by pointing out it does not compare women’s and men’s earnings in the same jobs: in other words, the figure implicitly compares truck drivers, who are mostly male, with secretaries, who are mostly female, for example. Yes, the figure does compare women and men across the whole economy, but do we believe women should receive lower pay because they are any less talented, competent, or hard working than men? Given their equal competency, shouldn’t both women and men be able to find jobs in the economy that pay them what they’re worth?

When citing the wage gap, it may be more accurate to say, as President Obama often does, that women earn only 77 percent of what men earn for an equal day’s work (rather than for equal work).

A second set of reasons economists give for challenging the 77 percent figure is that the women and men being compared are not identical. More women than men have likely taken at least a year off from work in the past to take care of children, even if they are working full-time, year-round now. Also, more working women than working men are single parents. More married working fathers than married working mothers have stay-at-home spouses, allowing them to focus on full-time paid work.

Critics who cite these issues suggest it would be more accurate to compare single workers without children in restricted age ranges, where time spent working and work life careers are presumably more similar. But does it make sense to consider only subsets of workers? Shouldn’t women and men expect equal earnings when they provide equal effort and skill on the job whatever their age, marital, or parental status?

Yet another set of economists’ favorite reasons revolves around women’s choices. Perhaps women chose more family-friendly jobs that pay less, for example, because they provide more flexibility in exchange for the lower wages. Interestingly, data about the nature of jobs held by women and men cannot confirm this hypothesis. According to a recent survey IWPR conducted, single mothers have the least flexible jobs and college-educated white men the most flexible jobs.

Ms. Maddow was correct to point out that Mr. Castellanos is denying a reality that many women experience every day, lower pay than they deserve for the work they do. Many economists have been denying this reality for a long time. Let’s hope women’s voices and women’s votes in this election season make it clear that women’s lower wages must be addressed by stronger public policies.

Dr. Heidi Hartmann is the President of the Institute for Women’s Policy Research.

Women Workers in a Post-Walmart World

By Katherine Kimpel

Last week, the Supreme Court issued a decision that makes it harder for women in the workplace to protect their rights to be free from discrimination.  In reaching their decision in Dukes v. Walmart, the Justices—the five men who wrote the majority opinion, notably overruling the objections of all three women on the court— assumed that discrimination in the workplace just doesn’t really happen that much anymore. But Supreme Court Justice Antonin Scalia and the other men on the court didn’t cite any evidence, didn’t refer to any studies, or even bother to tell any anecdote to back up that claim. They didn’t bother to contend with the fact that individuals and government agencies continually litigate, prove, and then settle or win employment discrimination cases—cases that show that discrimination is, alas, alive and well.

For example, just last year a jury in New York federal court delivered a unanimous verdict against Novartis Pharmaceuticals Corporation, finding that the corporation had discriminated against female employees in pay and promotions, and had discriminated against pregnant employees. Although the over $250 million dollars resulting from that verdict was significant, even more important were the 23 pages of changes to policies and procedures that the company later agreed to in order to settle the case.

You see, the brave women who stood up to Novartis to bring that lawsuit helped more than themselves.  They helped the other women at Novartis, by getting the company to change. They helped other women working in the pharmaceutical industry, by sending a message to employers that discrimination will not be tolerated and that litigation can result in just and heavy penalties. And they helped the government, by holding a global corporation accountable to our federal civil rights laws.

Congress knew, when drafting the civil rights laws, that we could never expect the government to shoulder enforcement by itself. They created a system where individual Americans could stand up and act as private attorneys general—essentially privatizing, in part, the enforcement of equal opportunity. However, had last week’s Supreme Court decision in Dukes v. Walmart been the law of the land in 2010 when Novartis was decided, the brave plaintiffs in the case may not have been successful, and the changes at Novartis may never have happened.

For women workers in a post-Walmart world, it is undeniable that the scales are weighted more heavily in favor of corporations, scaling back the progress for which our mothers, grandmothers, and great grandmothers fought so valiantly. That sad fact does not relieve us of responsibility; instead, it simply means that we will all have to fight harder and with more determination than before.

On a day-to-day basis, this fight takes shape in advocating for yourselves in negotiating starting salaries, demanding rightful raises, and pushing aggressively for promotions. This fight takes shape in developing trusted coworkers who will help you benchmark your compensation and better understand the ladders to success. This fight takes shape in keeping detailed records of all of this and of your employers responses, good or bad, so that if the day comes when you or they need to get outside help, you’re ready. This fight takes shape in refusing to be silent when you or a coworker is underpaid, passed over for promotion, subjected to harassment, or disproportionately disciplined.

All of those things are necessary and good, but they are not enough. Women workers— indeed, all workers—in a post-Walmart world need to be proactive about this affront to our fundamental right to equal opportunity. Educate family and friends, write letters to your local paper, and contact your elected representatives to let them know you’re paying attention, you’re concerned, and you expect the Supreme Court’s over-reaching on behalf of corporations to be corrected.

Justice Scalia and the four other men of the majority got it wrong when they assumed that our world is a better place than it is, when they assumed that discrimination doesn’t happen anymore. They got it wrong when they decided that protecting corporations was more important than protecting individual Americans, be they men or women of any race. But the underlying faith in people wasn’t entirely misplaced. Every day, I work with men and women whose bravery to stand up for what is right inspires me. The moment now calls for the rest of us to also stand up to a Supreme Court that has gone too far.

Katherine M. Kimpel is a Partner of Sanford Wittels & Heisler, LLP, a national law firm with offices in Washington, D.C., New York, and California.  Ms. Kimpel received her law degree from Yale Law School in 2006. She served as class counsel in the Velez v. Novartis gender discrimination case and authored the amicus brief on behalf of the U.S. Women’s Chamber of Commerce in Dukes v. Walmart. Before joining Sanford Wittels & Heisler in 2007, Ms. Kimpel served as Special Counsel to Senator Russell Feingold on the Senate Judiciary Committee, where she handled criminal justice and other civil rights issues for the Senator.

Social Security: A Lifeline for Latinas

by Mallory Mpare

With talks about the national debt and deficit dominating policy discussions, much attention has been paid to the fabled contributions Social Security makes to the national debt.  As has been said before (but clearly bears repeating), Social Security does not contribute to the national deficit. In fact, poll after poll shows that the American people understand that Social Security does not contribute to the deficit.  Yet it seems that with Social Security still on the table for cuts, this message is not getting through to those who need to hear it most.

How can we make this message resonate? It is important to discuss policy and its wider implications for the economy at large, but we cannot forget that policy is always tied to people. Instead of focusing on the dollars and cents of Social Security maybe we should talk about how changes to the program affect individuals. After all, how long can political leaders continue to ignore the needs of their constituents?

Social Security was created to ensure that the elderly could retire from the workforce in dignity, without fear that after a lifetime of work they might spend their old age in poverty. Today, Social Security is a crucial source of income for many Americans.  An IWPR report details how, even in the midst of efforts to scale back benefits, people are becoming increasingly reliant on Social Security as a source of income. Though men’s reliance has increased more than women’s, the degree ofreliance is greater for women and people of color who tend to have fewer alternative sources of income.

To supplement its report, IWPR released a fact sheet which details the importance of Social Security to Latinas in the United States. Yes, Social Security is designed to redistribute income to low earners and yes, it currently has policies that disproportionately benefit women.

However, it is impossible to fully compensate for a lifetime of gender inequality in wages.

Compound this with labor market discrimination based on race and ethnicity and many Latinas are bound to encounter economic insecurity in old age.  Additionally, Latinas have a higher life expectancy—89 years compared with 85 years for women of all races and ethnicities combined—and tend to be concentrated in low-wage jobs without pensions.

Latinas in the United States account for at least 1.7 million of the total 52.5 million Social Security beneficiaries. After age 64, few Latinas receive income from sources other than Social Security. In fact, only 27 percent of Latinas aged 64–74 report any income from assets and this source of income becomes even scarcer with age (only 21 percent of  those 75 years of age and older report having any income from assets). Yet asset income is the most common source of additional income for older Latinas, after Social Security.

Although many older Latinas rely on Social Security, the benefits they receive from the program are relatively modest. Among Americans aged 75 and older, women as a whole receive average annual benefits of $11,585.  But Latinas of the same age range receive on average just $8,975 in Social Security benefits.  Still, these modest benefits constitute by far the largest share of income for older Latinas. Eighty percent of Latinas aged 75 and older rely on Social Security for at least half of their income and more than half rely on Social Security for all their income.

In other words, for older Latinas, Social Security is not merely a safety net; it’s a lifeline.

Mallory Mpare is the Communications Manager at the Institute for Women’s Policy Research.

Dukes v. Wal-Mart and the Importance of Class Action Lawsuits in Addressing Systemic Sex Discrimination in the Workplace

By Jennifer Clark and Ariane Hegewisch

The Supreme Court heard arguments on Tuesday to decide whether the lower courts rightly certified the one million or more women at Wal-Mart as a class. According to Wal-Mart’s own salary data, women earn on average $1,100 per year less than men, differences that cannot be explained by experience or performance, and women are much less likely to get promotions than men.

An unprecedented number of amicus curiae (or ‘friend of the court’) briefs were submitted to the court, from groups as varied as the Chamber of Commerce, the NAACP, and the American Sociological Association, as well as the Institute for Women’s Policy Research. Below is a roundup of resources that break down what is at stake, not just for the million-plus women affected by this specific lawsuit, but for the country’s ability to address systemic employment discrimination.

New Research

Key to the Wal-Mart case is not just whether the class should be certified, but on which basis it should be certified. The lower courts certified the case on the basis of ‘injunctive relief,’ which asks primarily for changes to personnel policies and practices to prevent future discrimination; it does not ask primarily for monetary damages (although the women would still be entitled to get back pay for any discrimination they suffered).  This approach is what Wal-Mart and its proponents take issue with. They argue that if there was class certification, then the certification should be on the basis of monetary damages—a procedure that requires, as it happens, a much higher burden of proof than certification on the basis of injunctive relief. Wal-Mart also claims that class certification is not necessary in the first place, because if there were discrimination anywhere, Wal-Mart reasons, then it could be tackled just as effectively by each woman suing Wal-Mart on her own.

IWPR's new report on sex and race discrimination in the workplace.

Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, a new report released yesterday from IWPR, finds otherwise. The report reviews injunctive relief in over 500 court-supervised employment discrimination settlements—also known as consent decrees—involving alleged sex and/or race discrimination in employment. The report finds that class action lawsuits are much more likely than other settlements to introduce changes to make a long term and sustained impact on discrimination. For instance, over 70 percent of certified class action settlements, compared to five percent of other settlements, mandate the introduction of objective and transparent criteria for job assignments and promotions. Lack of posting of promotion opportunities, or of criteria for being admitted to the training programs that were essential requirements for promotions, is a key complaint by women at Wal-Mart. More information on employment discrimination consent decrees are available on IWPR’s website.

Selected Amicus Briefs

In support of the Respondents (Betty Dukes, et al.)

  • Institute for Women’s Policy Research reviews social science literature and research and argues that individual employment law suits hardly ever lead to injunctive relief; and class action lawsuits, because of their emphasis on best practice injunctive relief (changes to employment policies and practices) play a significant role in remedying systemic employment discrimination.
  • National Women’s Law Center and the American Civil Liberties Union, et al., filed a brief arguing that, despite the size of the class, sex stereotypes, and discrimination in the workplace bring up issues that are common to the class of 1.5 million women.
  • American Sociological Association, et al., filed a brief that establishes social science research as a rigorous and valid form of analyzing workplace culture and discrimination, and then argues that social science research has found that corporate policies that allow unchecked managerial decisions can lead to biased decision-making.
  • U.S. Women’s Chamber of Commerce, National Partnership for Women and Families, and California Women Lawyers filed a brief that argues class action lawsuits, while rare, have benefited both employees and employers in promoting systemic reforms that comply with the law and work within corporations’ own needs and existing infrastructures.

In Support of the Petitioner (Wal-Mart Stores, Inc)

  • U.S. Chamber of Commerce filed a brief that argues the Ninth Circuit Court of Appeals decision to uphold the class certification of the 1.5 million women misread the scope of Rule 23(b)(2) in certifying class action lawsuits.
  • Society of Human Resource Management filed a brief arguing that personnel decisions made by individual managers against the backdrop of a larger company-wide diversity policy are not inherently discriminatory.

Around the Web

The National Women’s Law Center argues that Wal-Mart is not too big to be held accountable for employment discrimination. At AAUW, Holly Kearl outlines the basics of why the Wal-Mart case matters. On the National Partnership for Women and Families (NPWF) blog, NPWF Director of Workplace Fairness Sarah Crawford stresses the importance of this case in the efforts to achieve fair pay. On Huffington Post, Martha Burk, director of the Corporate Accountability Project at the National Council of Women’s Organizations, provides some numbers on Wal-Mart’s gender bias.

Jennifer Clark is the Development Coordinator at the Institute for Women’s Policy Research.

Ariane Hegewisch is a study director at the Institute for Women’s Policy Research. Her most recent report is Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope.

Wal-Mart in Trouble, Yet Again

The world’s largest private employer is feeling the heat for myriad reasons. All you ever hear about Wal-Mart these days is a plethora of criticisms. From their shortcomings in providing adequate healthcare for employees, to Wal-Mart’s effect on the environment, to the adverse effects on the communities where Wal-Marts open — we’ve heard it all. From a legal perspective, at present there are a slew of lawsuits pertaining to discrimination and violation of wage & labor laws.
Over 50 members of Congress have asked that Wal-Mart disclose information about its wages for Congressional review to assess whether gender biases in wages exist. In September 2006, a class-action suit was filed against Wal-Mart contractors concerning sweatshop conditions at their overseas sites. Aside from Wal-Mart’s practices abroad that allow the retail conglomerate to have such competitive prices, there are plenty of domestic concerns to discuss that are raised on a regular basis. Last week proved no exception. On February 6, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s decision in Dukes v. Wal-Mart, certifying a class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act.
A case that began with six female Wal-Mart employees in June 2001 has the possibility to become the largest civil rights case in history. The plaintiffs allege that Wal-Mart discriminates against women in wages and promotions. The class, which is the single item in contention, includes all women employed at any Wal-Mart since December 1998, “who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” This case covers at least 1.5 million women in approximately 3,400 stores, making this case monumental.
Evidence supporting the plaintiff’s case that women are not getting the same pay for the same work & are getting fewer promotions is convincing. According to Richard Drogin, the statistical analyst hired by the plaintiffs, it takes women an average of 4.38 years from the date of hire to be promoted to assistant manager, while it takes men 2.86 years. The average salary of a female manager is $89,280, compared to $105,682 for male managers. For workers receiving an hourly wage, women make 6.7% less than men in comparable positions. Additionally, Wal-Mart’s total workforce consists of 72% women, yet women hold only 33% of its managerial positions. Ninety-two percent of Wal-Mart’s cashiers are women, but only 14% of store managers are women. These figures are most certainly striking.
The women filing suit against the world’s largest retailer are hoping that the case will go to trial, and so am I. Employers in this nation have gotten away with discrimination in employment for far too long.
– Layla Moughari, IWPR Research Intern

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