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A Modest Proposal for Veteran’s Day

Posted on November 10, 2011November 11, 2011 by Charlotte Fishman

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charlotte-fishman With Veteran’s Day fast upon us, the airwaves are awash in the rhetoric of appreciation for the sacrifice of military servicemen and women, but the Supreme Court seems not to have gotten the message. On October 2, the Court denied review of an astonishingly cold-blooded Fifth Circuit decision holding that a federal law prohibiting employment discrimination against military service members does not protect them from harassment on the job.

In Carder v. Continental Airlines 636 F.3d 172 (2011), a cringe-inducing opinion worthy of a Doonesbury cartoon, the Fifth Circuit refused to allow a workplace harassment claim brought by Continental Airlines pilots who are members of the United States Armed Forces Reserves and the Air National Guard to go forward. In a class action complaint that includes multiple violations of the Uniformed Services Employment, Reemployment and Rights Act [USERRA], the pilots alleged a continuous pattern of insult and derisive comments directed at their military service, excessive scrutiny of off-duty military activity, interference with military leave, threats of termination and denial of flight time affecting their retirement benefits.

Congress enacted USERRA for three purposes: (1) to encourage noncareer service in the uniformed services; (2) to minimize disruption to the lives of servicemembers, employers, fellow employees and communities; and (3) to prohibit discrimination against employees because of their service. It doesn’t take a rocket scientist to recognize that fulfillment of the third purpose is critical to success of the first. To insure robust enforcement, Congress mandated that the statute be “broadly construed” for the benefit of service members.

USERRA prohibits discrimination using language that is similar, but not identical to Title VII of the historic Civil Rights Act of 1964. Title VII prohibits discrimination with respect to the “terms, conditions, or privileges of employment, “ while USERRA prohibits discrimination with respect to “initial employment, reemployment, retention in employment, promotion, or any benefit of employment.” Congress defined “benefit of employment” as “any advantage, profit, privilege, gain, status, account, or interest” arising from the employment relationship.

From 1964 to the present, federal employment discrimination law has evolved and expanded in scope as Congress added new protected categories, and the federal courts ruled that statutes prohibiting discrimination encompass harassment and hostile work environment claims. In Meritor Savings Bank v. Vinson, 477 U.S. 37 (1986) the Supreme Court ruled that sexual harassment violates Title VII’s prohibition against sex discrimination, and in Harris v. Forklift Systems 510 U.S. 17 (1993) the Court announced that “hostile work environment” harassment also violates Title VII, provided the conduct is “severe or pervasive” enough to create an abusive work environment.

In a perfect world, USERRA’s plain language and statutory purpose, coupled with Supreme Court precedent and common sense would have led the Fifth Circuit to afford military service members the same protection against harassment enjoyed by other protected groups. Instead, the Court unaccountably seized on Congress’ failure to use the magic words “terms, conditions, and privileges of employment” as proof that it intended USERRA to provide a “more circumscribed set of actionable rights.” Having convinced itself (in the absence of any data) that harassment of military service members is not a widespread social problem in need of a remedy, the Court dismissed the pilots’ hostile environment claims, leaving them to “suck it up.”

In making an assumption that service members are not subject to the “invidious” and “irrational” harassment experienced by traditionally disadvantaged minorities, the Court utterly failed to take into account the realities of our post 9/11 world. In recent years, “citizen soldiers” have had to endure lengthier and more frequent deployments than at any other time in our nation’s history.

The trigger for employer harassment is, ironically, the very thing that society professes to value most – a service member’s willingness to disrupt his or her career to serve the nation. Deployments not only create pain and suffering for service members and their families, they also disrupt work schedules and cause financial hardship for employers. The greater the disruption and expense, the greater the employer’s “rational” incentive to get rid of employees with military service obligations.

Without statutory protection against harassment, service members are at the mercy of supervisors who foment resentment among co-workers or engage in disciplinary harassment in an attempt to avoid the “shared sacrifice” mandated by USERRA. Since reservists are typically locked into multi-year enlistment contracts, separation from the military to avoid harassment is not an option. In an economy in which jobs are scarce and unemployment high, quitting when the harassment becomes unendurable and suing for constructive discharge – the Court’s proposed “solution” – isn’t viable either.

Congress’ purpose would have been better served if the Supreme Court had summarily reversed the Fifth Circuit or agreed to hear the case and issue a definitive ruling that USERRA prohibits workplace harassment. Unfortunately, waiting for another case to wend its way to the Supreme Court can take years. With tens of thousands of deployed servicemen and women poised to return by year’s end, Congressional action is needed to secure their right to a harassment-free workplace now.

Happily, there is something we can do. As every 8^th grader knows, our democracy is protected by a system of checks and balances. When the Supreme Court fails to protect important rights, citizens can petition Congress to fill the gap. Why not honor Veteran’s Day by asking your Senator or Representative to amend USERRA to clarify that a harassment-free workplace is a “benefit” of employment? As an expression of gratitude, it sure beats “Thanks for your service, but it’s hell on our bottom line.”

About the Author: Charlotte Fishman is a San Francisco attorney, and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace.

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You’ve Come a Long Way, Baby? Maybe Not.

Posted on March 16, 2010March 17, 2010 by Charlotte Fishman

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Is it legal to fire a front desk clerk for not being “pretty enough”? Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.

Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”

Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.

When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.

In some ways Lewis’ victory is not surprising. Over twenty years ago, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court ruled in favor of Ann Hopkins, a hard-charging and aggressive manager denied partnership despite outperforming all other candidates in her year. Hopkins was told that future success at the firm would depend upon her learning to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

The Court held that unless Price Waterhouse could prove that it would have made the same decision without reference to gender stereotypes, Hopkins was entitled to prevail on her sex discrimination claim because “we are ‘beyond the day’ when an employer could evaluate employees by … insisting that they matched the stereotype associated with their group.”

But are we? Consider this: Had Heartland Inns turned Cullinan’s personal preference for pretty women into a formal job requirement, the case might well have gone the other way.

In 2006, the Ninth Circuit received a great deal of notoriety for its decision in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). The famously liberal court ruled not once, but twice in favor of Harrah’s casino, after it terminated bartender Darlene Jespersen for refusal to comply with its “personal best” appearance code. The code, which included both gender-neutral and gender-specific requirements, mandated “big hair” and a daily makeup regime for women.

Jespersen, a highly regarded 20-year employee, felt degraded by makeup. The business of a bartender is to mix drinks, assess sobriety, and maintain order. Jespersen argued that wearing makeup interfered with the deft personal touch and sense of authority she relied upon to perform those functions. Unimpressed, the Court held that her “personal preference” did not trump Harrah’s “personal best” grooming policy.

Employers, particularly in the service industry, adopt gender-specific appearance standards for competitive advantage, and defend them on grounds of customer preference. Fortunately, the law already imposes limits on this “business case” for discrimination. “Customer preference,” once a serious barrier to hiring minorities and women, was struck down long ago. “Competitive advantage,” the rationale for requiring stewardesses to parade around in hot pants, was rejected with the tart observation that the business of airlines is to fly passengers safely, not to sell sex.

Even if the required “look” is not overtly sexy, enforcing an idealized standard of feminine attractiveness increases the salience of gender over competence. This can undermine the authority of women whose jobs involve controlling the activities of others: police officers, construction supervisors and – yes — bartenders and flight attendants. While there may be rare situations in which idealized gender-specific appearance is a “bona fide occupational qualification,” the essence of most jobs is providing a service, not fulfilling a fantasy.

Yes, we have come a long way, but sadly, we are not “beyond the day” when employers can enforce gender stereotypes. It should not matter whether a stereotype-driven termination is the result of an individual supervisor’s preference or a company-wide appearance policy, but it does. This is wrong. Courts should know better than to give the green light to gender stereotypes “dressed up” as formal job requirements. If this trend is not reversed, and soon, the resulting effect on equal employment opportunity will definitely not be pretty.

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AT&T v. Hulteen: A Bad Decision that Did Not Have to Be

Posted on May 21, 2009May 26, 2009 by Charlotte Fishman

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In AT&T v. Hulteen Justice Souter authored the 7-2 majority opinion holding that AT&T’s “reliance” interest in perpetuating past pregnancy discrimination trumps the right of Noreen Hulteen and her fellow plaintiffs to enjoy the same level of retirement benefits as other employees with the same longevity of service to the company. This is a deeply unfair decision, contrary to the intent of Congress, and utterly unnecessary.

At oral argument Justice Souter acknowledged that the case could go either way, because there were competing lines of legal authority from which the case could be viewed. The Court’s choice to immunize AT&T’s conduct from liability by resurrecting General Electric v. Gilbert, 429 U.S. 125 (1976), a decision overturned by Congress’ enactment of the Pregnancy Discrimination Act of 1978, provides a vivid illustration of conservative judicial activism under the guise of “strict” application of the rule of law.

There was nothing inevitable about this decision. Gilbert holds that denying medical benefits to pregnant women is not “necessarily” sex discrimination, not that disparate treatment of pregnant women could never be. In fact, one year later Justice Rehnquist, who authored Gilbert, wrote the majority opinion in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) holding that burdening pregnant women by forcing them to forfeit earned seniority is sex discrimination.

In this case, AT&T’s pregnant employees were deprived of all but 30 days of seniority credit for the time they were out on pregnancy leave, while employees on leave for other disabilities forfeited none. The Court chose to characterize this disparate treatment of pregnant employees as not providing a “benefit,” permissible under Gilbert. But it could just as easily have decided that it created a “burden” constituting illegal sex discrimination under Satty.

Another choice the Court made was to treat the case as a challenge to AT&T’s seniority system as a whole, rather than to a specific, post-PDA retirement benefit calculation. There is a vast difference, recognized by the courts, between “competitive” seniority and “benefit” seniority. The Hulteen plaintiffs did not seek to obtain a competitive advantage over male co-workers, or any other retroactive benefit. They merely sought equal treatment in the calculation of future compensation — retirement benefits“ to which they are clearly entitled by the explicit language of the PDA: “[W]omen affected by pregnancy….shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…”

In holding as it did, the majority chose to “empathize” with AT&T rather than the retiring women who had already endured a lifetime of disadvantage on the job as a result of their pre-PDA pregnancy leaves. The majority weighed speculative harm to AT&T’s “reliance” interest more heavily than Congress’ explicit, strongly worded intent to protect women from economic injury and injustice on the basis of pregnancy.

But to what end? To establish the principle that companies may perpetuate discrimination even after Congress acts? What the Court chooses to call a “retroactive” application of the Pregnancy Discrimination Act could just as easily be described as enforcement of the statute.

No wonder Justice Ginsburg was figuratively tearing out her hair! There could not be a better illustration of what is at stake in the appointment of Justice Souter’s replacement nor of the need for another woman with Justice Ginsburg’s understanding of employment discrimination on the Supreme Court. Let’s hope that Congress acts swiftly to overturn this exceedingly bad decision, in language that will finally lay to rest the ghost of Gilbert past.

About the Author: Charlotte Fishman Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick UP the Pace. She authored the an amicus brief for the National Employment Lawyers Association et al. in support of respondents in AT&T v. Hulteen.

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Rising Hope for Women

Posted on February 6, 2009February 18, 2009 by Charlotte Fishman

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Talk about the audacity of hope – who could have imagined that barely a week into office, President Obama would sign the Lilly Ledbetter Fair Pay Act and that the Supreme Court would unanimously rule that employees who report discriminatory treatment during an internal investigation are protected from retaliation by Title VII of the Civil Rights Act in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee?

But will the winds of change continue to blow when the Supreme Court considers AT&T v. Hulteen, the last case heard in 2008?

AT&T v. Hulteen raises the question: Does the Pregnancy Discrimination Act of 1978 prohibit AT&T from giving smaller pensions to women who took pregnancy leave before its passage than it gives to other retirees with the same length of service? The Pregnancy Discrimination Act amended Title VII to require that “women affected by pregnancy … shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons … similar in their ability or inability to work.”

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women like Noreen Hulteen to go on leave while they were still physically able to work, and new mothers were not guaranteed immediate return to work after recovery from childbirth. Their leaves were classified as “personal” rather than “disability,” depriving them of the full seniority accrual enjoyed by employees disabled for reasons other than pregnancy. They were not permitted to shift to disability leave even if an unrelated disability extended their absence from work.

Non-pregnant employees who anticipated or suffered a period of disability were not subject to forced leave or delayed return. They received full seniority credit for the entire leave period. Upon return to work, non-pregnant employees retained the “net credited service” date that they had at the outset. By contrast, employees returning from pregnancy leave had their dates of hire “adjusted,” reducing their seniority by all but 30 days of the leave’s duration. Hulteen lost 210 days of service credit under this regime.

After the act went into effect, AT&T eliminated its discriminatory leave policies, but not the discriminatory service credit adjustments created by those policies. AT&T continued to use pregnancy adjusted net credited service dates to calculate retirement benefits after the Pregnancy Discrimination Act went into effect, and has been insisting on its legal right to do so, with mixed success, for 30 years.

Enter the Supreme Court. Twice, the 9th Circuit Court of Appeals held that AT&T’s conduct violates Title VII. The first time the Supreme Court denied certiorari. The second time, AT&T persuaded the court to take the case. At oral argument, its gamble appeared to have paid off.

In most press reports following the oral argument, the smart money was on victory for AT&T, and it was not hard to see why. Justice Anthony Kennedy is often the crucial swing vote on issues that divide liberals and conservatives. He seemed deeply troubled by the idea that a ruling in favor of AT&T’s retiring mothers could possibly, in the current economic climate, reduce pension funds available for everyone.

Still, reading tea leaves is a perilous game, and as inaugural afterglow fades, the Ledbetter Act and the Crawford opinion give rise to cautious optimism that the court’s decision in Hulteen will align more with Congress’ purpose in enacting the Civil Rights Act of 1964, than with its panic in enacting the Troubled Asset Relief Program. Here’s why.

First, the Lilly Ledbetter Fair Pay Act resolved a key issue in the case – timeliness – in Hulteen’s favor. In the words of the act: “[A]n unlawful employment practice occurs, with respect to discrimination in compensation … when an individual is affected by application of a discriminatory compensation decision or other practice.” Hulteen’s claim is timely under the Ledbetter Act because she filed a charge with the Equal Employment Opportunity Commission at the time AT&T awarded her a smaller pension than retirees with the same length of service.

Second, last week’s Crawford decision inspires hope that the justices will view the claim that Title VII permits AT&T to pay reduced pensions to women who took pre-Pregnancy Discrimination Act pregnancy leave with a skeptical eye. In Crawford, the employer argued that Title VII protects an employee who complains about discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks a question. Justice David Souter’s opinion rejected the employer’s position as not only wrong, but “freakish.” This is not language you hear every day from the Supreme Court.

Well, what could be more freakish than arguing that Title VII permits you to continue to calculate pensions using a discriminatory system that would violate the Pregnancy Discrimination Act if adopted today, just because it was in use when the act went into effect?

Twenty years ago, the court knew what to do with a similar argument. Speaking for a unanimous Supreme Court in Bazemore v. Friday, 478 U.S. 385 (1986), Justice William Brennan wrote: “A pattern or practice that would have constituted a violation of title VII, but for the fact that the statute had not yet become effective, became a violation upon title VII’s effective date, and, to the extent an employer continued to engage in that act or practice, it is liable under that statute.”

To be sure, Bazemore concerns paychecks, whereas Hulteen concerns pension benefits, but the fundamental equity principle is identical: Title VII was enacted to eliminate discrimination against everyone on the basis of protected status, not just those fortunate enough to enter the workforce after its effective date. Treating newly hired black employees (or newly pregnant women) the same as similarly situated others will not satisfy that statutory goal if the victims of pre-act discrimination remain in its thrall.

AT&T argues that imposing liability will upset its “settled expectation” that women who took pre-Pregnancy Discrimination Act pregnancy leaves would not receive equal benefits upon retirement. But Bazemore was decided in 1986. AT&T has already received a 30-year economic windfall by not changing its pension benefit calculation system. Now it’s time for justice.

In the words of Obama when signing the Lilly Ledbetter Fair Pay Act: “[M]aking our economy work means making sure that it works for everybody; that there are no second-class citizens in our workplaces….Ultimately, equal pay isn’t just an economic issue … it’s a question of who we are – and whether we’re truly living up to our fundamental ideals.”

And if AT&T needs a bailout, well, the Treasury Department is right down the street.

About the Author: Charlotte Fishman is a San Francisco employment attorney, a regular columnist on employment discrimination and women’s issues, and author of the National Employment Lawyers Association’s amicus brief supporting Noreen Hulteen et al. in the U.S. Supreme Court.

This article originally appeared in the San Francisco and Los Angeles Daily Journal on February 5, 2009. Reprinted with permission of the author.

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No Supreme Court Bail-Out for AT&T!

Posted on September 26, 2008September 29, 2008 by Charlotte Fishman

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As federal authorities scramble to rescue the nation’s financial institutions from the consequences of their reckless greed, AT&T seeks a bail-out of its own. In AT&T v. Hulteen, the telecommunications giant asks the United States Supreme Court to rescue it from the consequences of its reckless choice of pregnancy discrimination over basic fairness.

AT&T hopes to piggyback on the Court’s notorious Ledbetter v. Goodyear decision to avoid paying retirees who took pregnancy leave in the 1960’s and 70’s the same pensions as retirees who took disability leave for other reasons.

By now, most everyone in America knows the story of Lilly Ledbetter. In a 5-4 decision the Supreme Court refused to apply the “paycheck” rule previously articulated in Bazemore v. Friday (Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, even if rooted in a practice that pre-dated Title VII.) Instead, it held that because Lilly Ledbetter didn’t challenge the initial decision to pay her less than male supervisors, she is forever barred from challenging ongoing salary discrimination.

Lilly Ledbetter, meet Noreen Hulteen.

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women to take “personal” leave while they were still able to work. It did not permit them to accrue “service credit” while on leave, and upon return, credited them with only 30 days of “service” regardless of the actual duration of the leave. Upon return to work, new mothers had their “date of hire” moved forward – as if they had joined the company later than their actual first day of employment. Noreen Hulteen lost 210 days of service credit under this systemic practice.

By contrast, employees temporarily disabled by conditions other than pregnancy continued to accrue service credit while on leave, and retained full seniority when they returned to work. AT&T tracked and perpetuated this disparate treatment by a device known as the adjusted NCS [“net credited service”] date.

In 1978, Congress passed the Pregnancy Discrimination Act (PDA) reaffirming that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

After the PDA went into effect, the company changed its leave policies, treating future pregnancies just like other temporary disabilities. It did not, however, restore the forfeited service credit to women who had been discriminated against in the past. Nor did it discontinue reliance on their discriminatory NCS dates as the basis for distributing benefits such as job bidding, shift preference, layoffs, eligibility for early retirement, and pension levels.

On June 1, 1994, Hulteen retired. She had been continuously employed since January 1, 1964, but AT&T calculated her pension using the “adjusted” NCS date of August 3, 1965. Hulteen filed a timely EEOC charge challenging the pension benefit calculation. The EEOC found reasonable cause to believe that AT&T had engaged in class-wide discrimination.

No one, not even AT&T, can deny that the use of discriminatory NCS dates to reduce the pension benefits of women who were prevented from accruing service credit during their pregnancies is unfair, but is it illegal? Well, it’s not as if AT&T had no clue. Title VII’s prohibition against sex discrimination was enacted in 1964. The EEOC issued guidelines mandating equal treatment of pregnancy “in written and unwritten employment practices involving … the accrual of seniority” in 1972. These were cited with approval by the United States Supreme Court in Nashville Gas Co. v. Satty, striking down a discriminatory leave policy that denied accumulated seniority to employees returning from pregnancy leave. And in 1991, the Ninth Circuit, in Pallas v. Pacific Bell explicitly held that using adjusted NCS dates to calculate retirement eligibility violates Title VII.

Given this history, AT&T’s continued use of tainted NCS dates seems as reckless as the behavior of the players in the mortgage crisis. The twin reeds upon which it attempts to justify its behavior are (1) Treating pregnancy differently than other temporary disabilities was legal before 1979, so it’s still legal to use Hulteen’s adjusted NCS dates to pay her a lesser pension than retirees with the same length of service; (2) Even if it wasn’t legal to use the NCS after 1979, Noreen Hulteen waited too long to complain.

AT&T is counting on the Supreme Court to “do another Ledbetter.” But I am not so sure.

Perhaps chastened by the Congressional and editorial outrage that greeted Ledbetter, the Court will recognize that immunizing systemic violators undermines enforcement of Title VII, reaffirm the principle set forth in Bazemore v. Friday and hold that employers who perpetuate previously accepted discrimination may be held to account for their intransigence.

Or not. AT&T could be in line for a “bail-out,” leaving its retiring mothers to foot the bill.

Come next Labor Day, we’ll know the answer. By all accounts, it’s going to be an interesting year.

About the Author: Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick Up the Pace. She is currently drafting an amicus brief in support of the respondent in AT&T v. Hulteen.

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Workplace Fairness

Tag: Charlotte Fishman

A Modest Proposal for Veteran’s Day

You’ve Come a Long Way, Baby? Maybe Not.

AT&T v. Hulteen: A Bad Decision that Did Not Have to Be

Rising Hope for Women

No Supreme Court Bail-Out for AT&T!

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