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It’s Nothing New: Male Dominated Professions Foster Culture Of Sex Discrimination

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Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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A Better Balance: The Work and Family Legal Center

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EJW profile pictureA woman who was eight months pregnant was asked to leave her job because, according to her boss, her pregnancy “didn’t look right for the company.” Another woman suspected she was not hired after explaining to her prospective employer that the gap on her resume was because of time she needed to care for her ailing mother. A man was fired after asking for a few extra days off of work to care for his wife who was recovering from surgery.

Most American workers have families to care for and most American families rely on parents and others to provide essential income. Yet our workplaces have not caught up to this reality and often subject workers to unfair treatment because of their family responsibilities. Too many working parents and caregivers, especially those with limited income, lack access to lawyers and know little about their workplace rights. At the same time, studies have indicated that nearly one in five employers is out of compliance with the Family and Medical Leave Act, the only federal law designed specifically to address the issue of work/family integration. Workers with families need assistance navigating the legal labyrinth of the workplace when they encounter discrimination or are faced with a family health crisis.

A Better Balance: The Work and Family Legal Center and Outten & Golden LLP, the employee-rights law firm, are teaming up to help. A Better Balance is a non-profit organization dedicated to promoting equality and expanding choices for men and women at all income levels so they may care for their families without sacrificing their economic security. Outten & Golden LLP, is a national preeminent employment law firm dedicated to empowering employees and protecting their civil rights in the workplace. It is also one of the first and only firms in the nation to have a practice area dedicated to Family Responsibilities Discrimination.

Together, these two New York City-based organizations have launched a free legal clinic to provide information and advice to workers with family responsibilities about their workplace rights. The clinic grows out of a project at A Better Balance that was created to extend work/family advocacy to a segment of the workforce that faces stubbornly inflexible work hours and whose economic security is easily endangered by a family crisis. These workers are often forced to choose between their jobs and their family’s well being; for them, a sick child or family emergency can mean the difference between just scraping by and tumbling into poverty. No one should have to face such an impossible choice.

As part of the Families @ Work project, employees can now access a Guide to Your Rights at Work for workers with family responsibilities, which outlines common questions and answers about working while pregnant and while caring for loved ones. Attorneys from A Better Balance and Outten & Golden LLP are also conducting trainings for workers, lawyers, social workers and others to help them understand the scope of the law and the protections available for families at work. Individuals in the New York City area who suspect they may have been treated unfairly at work because they are pregnant, or had to take time off to care for a sick child or other relative, or for any other family-related reason, are encouraged to call the Families @ Work Legal Clinic hotline at 212-430-5982 to set up an appointment with a lawyer.

About the Author: Phoebe Taubman is an Equal Justice Works Fellow with A Better Balance: The Work and Family Legal Center, which fights to give American workers the time and flexibility they need to care for their families without risking their economic security.  She leads a project to expand work/family advocacy to low-income New Yorkers by empowering and educating them about their rights to be free from workplace discrimination based on caregiving responsibilities.  Prior to joining A Better Balance, Phoebe served as a law clerk to the Honorable Faith S. Hochberg of the United States District Court for the District of New Jersey in Newark and as a litigation associate at Mayer Brown in New York City.  Phoebe is a member of the New York City Bar Association’s Committee on Women in the Profession.  She is a graduate of Harvard University and of Georgetown University Law Center.


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Rising Hope for Women

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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!

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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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