Employee Rights Post : Ellen Simon's Employee Rights Post : Employment Lawyer & Attorney : Workplace Discrimination & Harassment Advice & Consultations

What happens when a working mother is denied a promotion because "she has too much on her plate"?  According to the First Circuit Court of Appeals in the new opinion Chadwick v. Wellpoint, Inc. her employer can be held liable for sex discrimination. Here's what happened in the case.  

Laurie Chadwick was an employee of  WellPoint, an insurance company, since 1997.  In 2006 she was encouraged by her supervisor to apply for her second promotion to "Team Leader" because:

• she was already performing several of the functions of the Team Lead position
• the supervisor believed she was the front-runner for the job
• she received excellent reviews

At the time of the decision Chadwick was the mother of an eleven year old son and six year old triplets in kindergarten.  Her husband stayed home with the kids while Chadwick worked. She took care of the kids while he worked nights and weekend shifts.  She was also taking one college course a semester.

There was no allegation nor any evidence whatsoever that Chadwick's work suffered because of her childcare responsibilities.

Even though Chadwick was the more qualified candidate, she did not get the promotion. Another employee, Donna Ouelette, with less experience and inferior evaluations, got the position instead.

When Chadwick didn't get the job,  Nanci Miller, the manager responsible for making  the decision explained why:

It was nothing you did or didn't do.  It was just that you're going to school, you have the kids and you just have a lot on your plate right now.

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The New York Times has a long article today about pregnancy discrimination and it is certainly worth reading with one caveat.  While it is informative, I don't think it's entirely correct.

It starts off with this:

HERE’S a pop quiz: Which of the following would violate federal employment law?

1. Laying off a pregnant woman.

2. Laying off a woman on maternity leave.   

Pencils down. The answer is “neither.

I hate to disagree with the NY Times, but I think it's more accurate to say "it could be".

It's quite possible that laying off someone who is pregnant or on maternity leave is illegal under the Pregnancy Discrimination Act and to suggest otherwise is a bit misleading.

Just to set the record straight, the Pregnancy Discrimination Act, ("PAD"), which was an amendment to Title VII of the Civil Rights Act of 1964 provides that:

• An employer cannot refuse to hire a pregnant woman because of her pregnancy
• Pregnant employees must be permitted to work as long as they are able to perform their jobs
  
• Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII

As I have written about before, times of workforce reductions unfortunately create settings where discrimination is rampant.  It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play. It is also a fact that EEOC claims are on the rise. When managers are given the opportunity to let people go, it is an opportunity to discriminate for:

• younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
• men who think women should be at home instead of work
• whites who don't like blacks and other minorities

What's also true is that women who are terminated when they are pregnant can prove discrimination just like anyone else with a combination of proof showing:

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What if your employer goes into your personal e-mails and tries to use them against you?  According to the Fourth Circuit Court of Appeals case of Van Alstyne v. Electronic Scriptorium, Ltd. your employer could get involved in a big legal nightmare it never imagined.

As very well put by Frank Steinberg at the New Jersey Emplyment Law Blog  I doubt whether ESL's president thought that he was letting himself in for this kind of trouble when he decided to peruse the private e-mails of the object of his office affections.

Here's what happened in the case.  Bonnie Van Alstyne worked for Electronic Scriptorium Limited ("ESL")  a small data conversion company owned and operated by a man named Edward Leonard and his wife Brett. Van Alstyne was a friend of the family and was hired to be the  Vice-President of Marketing.

According to Van Alstyne, during the time she worked at ESL Leonard sexually propositioned her. She rejected his advances. Five months later she was terminated. 

Van Alstyne  filed a sexual harassment charge with the Equal Employment Opportunity Commission. She also filed several other claims for benefits and unpaid commissions in Virginia state court.

In what appears to be a purely vindictive move, ESL sued Van Alstyne in a separate case in Virginia state court.  During the depositions in the case, ESL's counsel started asking Van Alstyne questions about various e-mails which were marked as exhibits.

It turns out that these e-mails were from Van Alstyne's personal e-mail account that Leonard had improperly accessed.

By way of background, Van Alstyne had a company e-mail account during the time she worked at ESL.  Like many employees, Van Alstyne also had a private password-protected e-mail account which she used to handle personal matters from time to time as needed (hers was with AOL).

When Leonard got caught, he first said that he only had a few of  Van Alstyne's personal e-mails. That statement turned out to be "not entirely true" according to the Court:

Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.

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Last week Katie Couric did an excellent and important story on the topic of sexual assault in the military on the CBS evening news.The story was prompted by an annual Pentagon study presented to the Congress on March 17th. The alarming data from the CBC story and Pentagon report included the following:

• One in three female soldiers will experience sexual assault while serving in the military 
  

• For fiscal year 2008, there were 2,923 reports of sexual assaults among active duty U.S. troops worldwide, up from 2,688 reported the previous fiscal year

•  80 percent of rapes are never reported - making it the most under-documented crime in the military

For someone like me who follows subjects like this, the news was not new. It seems like there is a constant stream of awful stories about sexual abuse involving the military and there has been for many years.

Last summer, for example, there was a CNN article about a House panel which was investigating the way the military handles reports of sexual assault. The story relayed testimony from Congressman Jane Harman of California.

Rep. Harman said she recently visited a Veterans Affairs hospital in the Los Angeles area, where women told her horror stories of being raped in the military:

'My jaw dropped when the doctors told me that 41 percent of the female veterans seen there say they were victims of sexual assault while serving in the military,' said Harman . ..

'Twenty-nine percent say they were raped during their military service. They spoke of their continued terror, feelings of helplessness and downward spirals many of their lives have taken since.

'We have an epidemic here,' she said. "Women serving in the U.S. military today are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq.'

And that's not all.  A few years ago CBS reported frightening statistics about sexual abuse by military recruiters which included the following:

• More than 100 young women who expressed interest in joining the military in the past year were preyed upon sexually by their recruiters

• Women were raped on recruiting office couches, assaulted in government cars and groped en route to entrance exams

• The Army, which accounts for almost half of the military, has had 722 recruiters accused of rape and sexual misconduct since 1996
  

And it gets even worse if you can believe it.  At the end of 2007, Newsweek published a disturbing story about sexual abuse by military chaplains. 

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Those who serve in the military have a right not to be disadvantaged in their employment because they leave to serve our country.  Last Thursday, a federal district court judge sent this message loud and clear.

Michael Serricchio, an Air Force reservist, was awarded over $1 million dollars because his employer violated the Uniformed Services Employment and Re-employment Rights Act. 

The Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") is a federal law intended to ensure that persons who serve or have served in the military are:

1. not disadvantaged in their civilian careers because of their service;
   
2. promptly reemployed in their civilian jobs upon their return from duty; and
   
3. not discriminated against in employment based on past, present, or future military service.
   

USERRA covers every employer in the United States no matter how small.

In January of 2009, a Congressional bill called the Servicemembers Access to Justice Act of 2009 ("SAJA") was introduced by Senator Casey and Senator Kennedy  for the purpose of improving some of the deficiencies in USERRA  (the original bill was co-sponsored by then Senator Obama in 2008).  A statement from Senator Casey's office illuminated some of the issues:

According to the Department of Defense’s Status of Forces study released in November 2007, among post-9/11 returning Reservists and National Guard, nearly 11,000 were denied prompt reemployment and more than 20,000 lost seniority and thus pay and other benefits.  The SAJA would eliminate those problems by closing loopholes to ensure that returning reservists keep their jobs and employment benefits as required under current law

The legislation specifically:

• overrules the 5th Circuit case of  Garrett v. Circuit City Stores  to ban mandatory arbitration of disputes under USERRA
• requires attorneys' fee awards to prevailing employees
• enhances damages provisions
• waives sovereign immunity and provides for suits against the state.

The award in the Serricchio case is  believed to be the largest ever received under USERRA.

The facts of the case are set out in stories reported in the New York Times.and Hartford Courant . In sum, Michael Serricchio was a financial adviser for Prudential Securities in Stamford, Connecticut. He was called to duty after September 11, 2001 and served two years in active service. 

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It's rare that you see the Society for Human Resource Managers ("SHRM") and the ACLU on the same side of an issue -- but that's what's going on with their opposition to the federal regulation called the "conscience rule."

The "conscience rule,"  enforced by the Department of Health and Human Services, is the most  recent and thankfully one of  the last vestiges of the fundamentalist appeasing Bush Administration.

The regulation prohibits employment discrimination against health care workers who refuse certain services based on "religious beliefs" or  "moral objections"  -- such as providing abortions or birth control.

The final rule, entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, was published in the Federal Register on December 19, 2008.

The Department of Health and Human Service served notice a couple of weeks ago that it intends to rescind the regulation which went into effect on January 20th, the day President Obama took office.

There were many opponents of  the regulation when it was proposed last fall as reported in a recent article in the New York Times about Obama's plan "to undo the rule," The American Medical Association and Planned Parenthood, for example, said the rule could void state laws requiring insurance plans to cover contraceptives and requiring hospitals to offer emergency contraception to rape victims. It could also allow drugstore employees to refuse to fill prescriptions for contraceptives.

According to the  same New York Times  article  several states have filed legal challenges against the December 19th regulation:

Attorney General Richard Blumentahal of Connecticut sued in federal court on behalf of his state and several others. He issued a statement at the end of February  saying that his suit will continue until the rule 'is finally stopped.'

The American College of Gynecologists and Obstetricians made this announcement when the rule when it went into effect:

Today's regulation issued by the Department of Health and Human Services (HHS), under the guise of 'protecting' the conscience of health care providers, is yet another reminder of the outgoing administration's implicit contempt for women's right to accurate and complete reproductive health information and legal medical procedures.

In addition to concerns for women's health, opponents of the regulation correctly point out that  the Civil Rights Act of 1964 already offers broad protection against discrimination based on religion. Title VII requires that an employer must make reasonable accommodations for an employee’s religious practices and beliefs.

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I got a call last week from a woman in Michigan who was in a great deal of distress about what  was happening to her at work.  She is employed in a  sales  position for a large company.  She told me that she became aware of different criteria being used to judge performance for different individuals in the sales department in which she worked.

From documents she saw, one formula was being used to evaluate the white men,  and a second formula was being used for the one African American in the sales department.   A third formula was being used for the one and only woman. She shared her concern with the African American employee.  He filed a grievance.  She believes that she is now being retaliated against and is fearful that she will lose her job. Let's hope not.

There are three important points to share about this scenario: 

1. One of the prime ways to prove discrimination is by proving a difference in treatment.  If different standards are being used to evaluate performance for the same or similar jobs, it very well may prove discrimination. The practice of using different criteria to judge the same people in the same jobs is exposing a company to risk.
2. Retaliation is a separate claim under the law which prohibits discrimination. If a person raises a complaint  -- whether formal or informal -- about discrimination or a perceived civil rights violation and is retaliated against because of it, it's illegal.
3. If a person sticks up for or advocates on behalf  of a minority who is being discriminated against, and then is retaliated against because of it, the retaliation is illegal.

I wrote about the topic of  white employees sticking up for black friends in a recent article. The 6th Circuit Court of Appeals case of Barrett v. Whirlpool Corporation  involved a white employee who protested the racially hostile atmosphere confronting some of her friends at work.  She was retaliated against because of her advocacy.  The court stated that she had a right to be free from retaliation under those circumstances under Title VII of the Civil Rights Act.

It is sad but true that many women in sales positions are discriminated against with regularity. They are often held to higher standards, given less preferential accounts, and excluded from networking opportunities. When they complain, they are commonly retaliated against.

I had one case involving a woman who worked for seventeen years in sales for a very large corporation without a promotion.  She was regularly training young men brought in by her bosses. The trainees were then promoted over her. Since she was a single mom with a pretty good paying job she felt she could not complain.

Finally one day she had it and decided enough was enough. She voiced her concern to her boss and was immediately shut down.  She filed a complaint with the EEOC claiming gender discrimination. When her boss found out about the charge, he fired her on the spot shouting: "You better find the best god damn lawyer that you can."  We settled the case about eighteen months later.

It seems like no matter how much training and education is provided, there is still is a lack of awareness that a difference in treatment of individuals in similar positions is discriminatory. Sadly true is that when an employee has the nerve to point it out, retaliation is often common which exposes the employee to all sorts emotional and financial distress and the employer to needless liability.

image:www.fotosearch.com

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There was an interesting piece by Catherine Moreton Gray which reported Peggy Mastroianni's (associate legal counsel for the EEOC)  talk at the Society for Human Resource Managers Employment Law and Legislative Conference  in Washington last week. In that discussion, Mastroianni outlined the Commission's top priorities for 2009.

Here's what she listed:  

Enforcement of the Lilly Ledbetter Fair Pay Act: The EEOC will look closely at complaints it dismissed since May 27, 2007, the effective date of the Act to see if reinstatement is appropriate.  She said that the agency did not expect a surge in wage claims as a result of the new law.  It will be interesting to see if her prediction is correct.

GINA:  I wrote a post about the Genetic Information Non Discrimination Act in February.  In short, GINA prohibits the use of  genetic tests concerning an employee's own or family's medical history to make an employment decision.The EEOC is in the process of formulating regulations for enforcement of the Act.  There will be more to come about this law once the regulations are published.

ADA Amendments Act (ADAA):  The EEOC is working on proposed regulations for the ADAA. The big change of course is that the definition of the term disability will be construed broadly so that more people will be covered by the Act consistent with the Act's original intent. Mitigating measures, such as medications or prosthetic devices, can't be considered for purposes of determining whether a person is disabled.

I attended a Society for Human Resource Management Conference a couple of months ago.  The panel of management lawyers from the large firms all agreed on the advice to the HR manager attendees:  "treat everyone as disabled and accommodate." 

This is a good thing and it's about time.  According to Gray's article, one of  Mastroianni's remarks about the new amendments:  "employer's doing the reasonable thing won't have to make any changes."  We'll see.

Religious Discrimination:  I thought this discussion was  very interesting,  Three areas mentioned were:

1. Scheduling cases: While an employer is not required to make other employees swap shifts to accommodate scheduling around religious observances, they can't interfere with employees switching on a volunteer basis
2. Muslim prayer breaks:  Observant Muslims are required to pray five times a day. Employers may need to stagger breaks to accommodate this request so long as it does not pose an undue hardship on the business. This apparently has been a problem.
3. Modifying duties: If pharmacists do not want to fill prescriptions for contraceptives on religious grounds, the employer may  have to accommodate and pass the prescription on to another pharmacist. Again, this is a story we have heard about, and it's good to see that the EEOC is tackling it.

We'll be talking more about these topics as the regulations and new cases get reported.

Image: www.theaccidentalitleader.com

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There have been a number of good articles this week which reported the Equal Employment Opportunity Commission's news that discrimination charges are on the rise. including the Workplace Prof Blog  the Connecticut Employment Law Blog,and The Wall Street Journal. There's also some debate as what these new statistics mean.

These are the statistics:

• Overall discrimination charges are at a record high up 15%
• Age discrimination charges are at a record high up 29%                               
• Sex discrimination charges are up 14%                                                
• Religious discrimination charges are up 14%
• National Origin discrimination charges are up 13%
• Race discrimination charges are up 11%
• Disability discrimination charges are up 10%

I think it's pretty obvious that discrimination is going to occur in a time of economic distress.  When managers are given the opportunity to let people go, it is an opportunity to discriminate for:

• younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
• men who think women should be at home instead of work
• whites who don't like blacks and other minorities

I wrote about this topic last  week in an article about the hidden dangers of workforce reductions.  My opinion comes from thirty years of representing employees in discrimination claims and both proving and winning those cases.

Not surprisingly, those who represent managers have a different perspective. I just read an article on Job-Bias Claims Soaring  to Record Highs in 2008 which quoted a management lawyer with one of the top firms in the country.  His opinion was that there really is very little discrimination and that people are just looking for money:

Someone who has lost his job is in a very tough situation and may be looking for a number of avenues where he can replace revenue, said Gerald Hathaway, and employment lawyer with Littler Mendelson in New York.  But true victims of discrimination are rare.  Most commonly, someone files a claim thinking he's a victim of discrimination, but is not.

I had lunch a couple of weeks ago with a very well regarded insurance executive who handles discrimination claims nationwide and she sincerely expressed a similar view.

Obviously, there is a real difference of opinion.

Those of us who represent employees and have done so over time have seen the patterns of a spike in discrimination claims when downsizing takes place.  We have scrutinized the documentation, explanations, and business justifications for the decisions that have been made.  Often times the objective support for the termination decision simply does not exist.  In other cases we find that the particular manager has a history of racist, ageist, or sexist remarks, or that other minorities, women, or older workers were selected in disproportionate numbers by the same manager or management group.

Certainly there are some employees who believe that they were discriminated against when they were not.  Many do not understand what the term means or how discrimination is proven.   Many believe that they were treated unfairly, and perhaps they were, but an unfair decision is not necessarily a discriminatory one.  There is no doubt that some of the charges filed with the EEOC have no merit.

On the other hand, there is real discrimination that takes place in the workplace.  If these prejudices did not exist, there would be no need for civil rights laws to protect these groups.  These claims do rise in times of economic distress when people are being singled out for termination or layoff.The news from the EEOC this week is no surprise.

Certainly everyone is entitled to their opinion. But it seems to me the belief that little discrimination occurs, or that most of the claims have no merit, or that people are just looking for money  is a belief that may not fully appreciate the real prejudice which still exists and is patently manifested in  times of economic distress.  

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There a host of good reasons why the Employee Free Choice Act should pass. They are very well articulated in the AFL-CIO website and AFL-CIO Blog. There’s also a wealth of information on TheHuffington Post.

According to those reports:                                                                                    

1. 60 million people say that they would join unions if they could
2. An employee who helps to organize a union has 1 in 5 chance of being fired
3. Three quarters of the public -- nearly 73% -- are in favor of giving employees a fair chance to organize without employer obstruction and interference

There’s also a good reason for the passage of the Act I would like to share as an individual who has been representing employees for over twenty-five years. It may be obvious, but it's not often articulated.

Time and time again I have seen cases where employees were either prevented from or strongly discouraged from organizing a union.  In some of those instances, employees were given handbooks which looked similar in many ways to union contracts as a substitute or an appeasement.

The handbooks contained provisions, employees were told, which would give them similar benefits and protections to what they would have if they formed a union. The handbooks contained provisions for progressive discipline, layoffs by seniority, bumping rights and more.  The employees believed that they were protected and secure.

But when the time for layoffs came, seniority provisions were routinely not followed. Older employees were let go with 25, 30, and 40 years of experience. Women and minorities were fired in disproportionate numbers.

When we sued and attempted to get the provisions of the handbooks enforced we were told: “That’s just a handbook. Those are just 'guidelines’. It’s not a contract so we, the employer are not bound by it and can make choices as we see fit."  Most judges went along with the corporations.  The employees had no protection.

The result in tough economic times is that many employees in their 50’s and 60’s  are let go while the younger, less experienced employees stay on. The older employees lose the only jobs they had ever had with little chance of finding any work and no chance of finding comparable work – too young for social security, not old enough for retirement benefits, no health benefits without income to pay for it – not a good situation for our country.

And it's not safe.  Sometimes the older experienced workers -- those who know what they're doing -- are let go while the young and inexperienced workers are either retained or hired in to replace them. In many plants, it's a dangerous situation both for the workers and the community in which they live. I know of a case pending right now involving a chemical plant which frighteningly presents that precise scenario.

So unions are important for many reasons. But for someone who has represented countless individuals in age discrimination cases, they are particularly important in times of workforce reductions so that rules of fairness and safety instead of subjective attitudes of discrimination serve to control the harsh decisions that must be made.

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Is it illegal to discriminate against a Caucasian employee against because of her friendship with and advocacy for African-American co-employees? According to a new decision from the Sixth Circuit Court of Appeals, Barrett, et al v. Whirlpool Corporation, the answer is yes. 

In this important case, three Caucasian production workers  sued Whirlpool claiming that they were retaliated against and subjected to a hostile work environment. They said it was because they were friendly  with African American co-employees and stuck up for them when faced with racial hostility at work.

Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sec.1981 both forbid discrimination on the basis of association with or advocacy for non-whites.

While admitting that association discrimination claims could be valid, Whirlpool contended that the plaintiffs' claims fell short because the associations with their black co-workers were only casual work friendships and not the type protected under these statutes. Only a significant association that extends outside of the workplace could give rise to a claim according to Whirlpool.

Put another way,  Whirlpool argued that the only kinds of  association claims which can be brought are the kind where an employee was discriminated against because of an intimate or family relationship with a minority like the cases where:

•  an employer discharged an employee after leaning that his daughter was bi-racial (see 6th Circuit  Court of Appeals, Tetro v. Elliott Popham Ponitac, Oldsmobile, Buick, & GMC Trucks, Inc.) or
• an employer discharged an employee upon learning of an interracial marriage (see llth Circuit Court of Appeals, Parr. v Woodman of World Life Ins. Co.)

The Court  rejected this argument and held (like the7th Circuit Court of Appeals in Drake v. 3M ) that associational discrimination could be found in the case of friendship between co-workers of different races:

If a plaintiff shows that 1)she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who targets an employee because she associates with African-American co-workers.

While the Court  of Appeals found insufficient evidence to support two of the employees claims, it found in favor of the third -- Treva Nickens, a Caucasian woman who worked at Whirlpool since 1983 and testified:

• it was commonplace to hear racist jokes and racist slurs including he word “nigger”
• she complained on a daily basis about theses comments but that her supervisor refused to do anything to stop it.
• she was harassed for “hanging around with blacks”
• she was told that “she needed to stay with her own kind”
• when she reported the conduct she was physically threatened
• she was directly harassed by her supervisors
• she was denied promotions for higher paying jobs because she spoke out on behalf of her African American friends.

The Court also held reaffirmed the proposition that advocacy on behalf of African-American co-workers was protected. According to the Court:

[A]s long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.

The bottom line is that  when friends stick up for their minority co-workers in the face of discrimination or harassment, and as a result are subjected  to a a hostile work environment , there is legal protection.  I don't  remember seeing another case quite like it .

What's more, there is little doubt that its reasoning extends beyond race and can be relied upon to protect co-workers who stick up for women, the disabled, or anyone else in a protected class if the individual is then harassed because of it.

This is an excellent case for the promotion of fairness and dignity in the workplace and one that  all managers and human resource professionals should keep in their back pocket. 

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It's very well known and often bragged about that over 50% of law school graduates are women. So what's the problem with women in the legal profession?

The problem reported last week is that while women represent over 50% of those graduating from law school, they made up only 28% of those granted partnership at the 85 major law U.S. law firms according to a  new study published by the Project for Attorney Retention at the Hastings College of Law.

The disparity between the number of female law school graduates and female partners is quite remarkable. And it's not because the women are less intelligent or capable than their male counterparts. As cynical as I may be, I don't think anyone would even argue that.

While few want to come out and accuse the legal profession of  gender discrimination,  I have no problem doing so. (Of course, not every firm, not every lawyer)  It's all over the legal profession -- wage discrimination, lack of promotional opportunity, sexual harassment, pregnancy discrimination, stereotyping, including a particularly horrible record  for women of color. It's all there, and it occurs for many reasons.

We all know that many law firms have a hard time accommodating the needs of working wives and mothers.  While firms are certainly much better than they were twenty-five or thirty years ago about flexible schedules and part-time work, they still have a long way to go.

The Amercian Bar Association's (ABA) Commission on Women in the Profession studies this subject and published it's findings in 1988, 1995, and 2003. The contents are neither encouraging nor surprising. The last report notes:

Current data indicates that more and more firms are allowing part-time schedules, but women testifying at the the 2003 hearings still reported that choosing the part-time option posed professional risks.  A partner at a large national law firm reported a consensus at her firm that the part-time policy is simply 'words on a piece of paper''. . .[Y]our commitment to the firm is still questioned once you have decided to go on a reduced hours schedule.

In addition, women who have obligations to their families are eliminated from mentoring and networking opportunities with clients.  Often times even single women are eliminated from these events -- the golf game, the baseball game, the hunting trip -- simply because they are women.  If you don't  meet and interact with the clients, you don't get the business.  If you don't get the business, you don't produce the revenue and you don't make partner. It's really pretty straightforward.

There's also the plain old fashioned gender bias that is rampant in law firms. Many men believe that women should be home with their children and not working at all or don't have the appropriate composition to practice law. The fact that these views are held by lawyers, and that this attitude is illegal when acted upon in the workplace, does not seem to prevent many partners from discriminating against the women in their firms in a variety of ways.

The latest  ABA report on this subject included the following:

The 1995 report noted that '[b]oth men and women report that women lawyers are viewed as insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.  When women opt for family leave or report sexual harassment, these stereotypes are reinforced.'

In 2003, there was evidence that those stereotypes have not dissipated .....

One can hardly go a week without reading an article about a law firm being sued for or settling, or  losing  some kind of discrimination lawsuit.   It's not just because law firms are easy targets.  They really do discriminate against their lawyers at an extraordinary rate.

The fact is that many women simply leave the profession and won't sue.  I have had dozens of calls through the years from women who were discriminated against and sexually harassed at their firms.  Without exception, each decided not to sue for fear that they would never find another job.

So while it's better than it was, we are not nearly where we should be in our profession in terms of providing equal opportunity in the workplace. Wouldn't it be nice if we were at the forefront, instead of the rear, on this issue?

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There's sadly lots of news about workforce reductions.  There also seems to be lots discussion about  discrimination cases in the context of workforce reductions but as far as I am concerned, most of them are really missing the point.   

I have handled many discrimination cases over the years in times of recession. On most occasions, companies have downsized with the advice of many lawyers and consultants. Those companies appear to have been given the same or similar advice as  that which was given by an employment lawyer recently published in a National Law Journal article. 

It goes like this:

Successfully battling this "recessionary discrimination" requires the use of statistical analysis comparing the demographics of those laid off with those who are retained.

This is the way that advice is translated:

1. Managers are given directives to downsize and cut costs in their departments by a certain percentage or certain number.
2. Managers, armed with instructions on methodology, make the decisions about who should stay and who should go.
3. Following the standard advice, overall statistics are then looked at to determine if there are a disproportionate number of women, minorities, or those over 40, who are on the targeted list.

If the statistics look good, the terminations are executed, and  the company thinks it's off the hook as far as it's exposure to discrimination lawsuits.

The problem is that while companies relying on this advice may be off the hook for large class action cases, they are not off the hook on the individual employment discrimination case.

For example, as often happens, the long term employee with a solid record of performance is selected while their much younger counterpart is not. There is no objective support for the decision and the company gets sued for age discrimination. 

In that circumstance the overall statistical data makes no difference whatsoever – not to me, not to my client, and not to the jury. What matters is: what justification did you have for terminating the 57 year old employee and keeping the 32 year old my client trained to do his job? If the explanation is not credible, more often than not, the company will lose.

It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play – whether it’s getting rid of a woman, a minority, or an older employee for whom the manager has some prejudice.  A  workforce reduction gives that manager a chance to get rid of the disliked employee. This individual biased decision may not show up statistically, and statistical analysis is not going to get the company off the hook in those cases.

So companies beware. While it's certainly not bad advice, or the wrong advice to look at the overall statistics on a workforce reduction, it's not all that matters.  

image:http://www.delarondeforge.com

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