New York Employment Lawyer Blog

Sex discrimination on Wall Street is on the rise. Wall Street is a boys club and shows no signs of changing. The statistics show that the number of woman working on wall street dropped by 16% over the past decade, while the number of men on Wall Street increased by 7%. However, the number of women in the overall national workforce increased by 4% over the same period and number of men joining the overall workforce fell by half a percent. Look at the graphs illustrating this trend at Fincom and their article, The Changing Face of Wall Street. The data comes from the U.S. Department of Labor and it shows that women are disappearing from Wall Street and being replaced by men.

The statistics show that more women than men are entering the workforce, except on Wall Street. Wall Street is still stuck in a male dominated culture such as that portrayed in Mad Men. I suspect that we could still find real life Don Draper's on Wall Street complete with the trophy wife at home in the suburbs and the secretary that sends out his dry cleaning.

It is probably easier for a woman to join the Army than to work on Wall Street. The military has changed it's culture, so why is Wall Street so behind the times? If you want to share your thoughts, please send me an email at robert@ottingerlaw and I will post some comments.

As reported yesterday in Above The Law, the Third Circuit Court of Appeals rejected a sex discrimination case filed by a female law partner. The partner, Alyson Kirleis, worked for Dickie McCamey in Pennsylvania since 1988. From the Legal Intelligencer (via Above the Law who got if from The Careerist):

In the suit, Kirleis accused Dickie McCamey of paying female lawyers less than males and alleged she was told by a male partner that a woman with children should relinquish her partnership and work only part-time.

Kirleis, who has worked at the firm since 1988, also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers. The suit also included allegations that Kirleis has suffered retaliation since her suit was filed, and that Dickie McCamey’s annual Christmas party is effectively closed to women “because of the sexually explicit nature of the entertainment including skits, songs, pornographic materials and props.”

The Court apparently was unmoved by fairly clear evidence of unequal treatment. It is known that female law partners earn about $66K less per year then male partners and Ms. Kireis was clearly facing different standards than men. Nonetheless the Court held that a law partner cannot sue her own law partnership because she is an owner and has some control over management and policies herself. This ruling looks like a cop out to me because it seems pretty clear that Ms. Kirleis did not have the ability to impact the firm's treatment of women - if she did she probably would have raised her pay and punished her bigot partners. She clearly did not have enough votes so she looked to the courts for help and got nothing. I hope she appeals this one to the USSC that now has more female members.

I frequently receive calls from potential clients who have been fired after reporting a supervisor's affair with a subordinate. Is it illegal to fire an employee for reporting a supervisor's affair with a subordinate? The short answer: probably not. The EEOC does not consider isolated incidents of "sexual favoritism" to be violations of Title VII. However, coerced sexual conduct by a supervisor may constitute quid pro quo harassment, and "widespread favortism" may give rise to a hostile work environment claim. What is "widespread favoritism"? Generally, it means more than one affair in the workplace resulting in greater opportunities for paramours. The EEOC, and many state and federal courts, have determined that "widespread favoritism" communicates to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. I represented an employee who was fired for reporting his supervisor's affair. In a complete coincidence, a year later, I was contacted by the paramour seeking to sue the same employee for defamation. Workplace affairs are a nasty mess. Nobody should be forced to work for someone who promotes paramours, but if you must, play the game long enough to find another job. If you feel truly humiliated and degraded by a culture of affairs and meritless advancement, call a lawyer. If you are having an affair with a subordinate, do yourself and your employees a favor - stop.

At the end of the 1978 movie "Animal House," before the credits role, the fate of the degenerate frat boys at the heart of the story is revealed in short clips. John "Bluto" Blutarsky, played by John Bulushi, becomes a U.S. Senator, and others become doctors and diplomats, the joke being that drunken depravity is not a liability in some supposedly respectable professions.

If you are an employee in a law firm or medical office, don't expect a civil work environment simply because you work among the well-educated. The Blutos of the world, often blessed with social privilege and elite schooling, take their depravity into adulthood. In fact, there are plenty of professional offices which become small social clubs, like fraternities, centering on the same rituals of drinking and debauchery.

Sexual harassment involves the exploitation of power. Doctors' and lawyers' offices are not immune to these abuses.

Mad Men is an excellent television show about the advertising business back in 1950-60. The ad men drink at work and some have sex with their secretaries and one of the partners uses his power to seduce young aspiring models into his office for a spin on his rug. Woman are openly disrespected. These were the days before Title VII. It is a great show and you can see that there were virtually no checks on office behavior. Most everyone in the office is white as well, except for the occasional black repair men or elevator operator. These were the days of openly coercive sexual exploits at work and racial discrimination. That was part of American culture and those days are not so long ago. That life style seen in that show still exists today. That is why there are so many employment law suits. Title VII is an attempt to curb behavior at work, but it does not work very well, in my view. It is a crude ax that prevents some blatant discrimination, but far more is needed. Mostly it has been a boon for lawyers and created its own industry. I think we could come up with a much better system to protect people at work. But at least things have improved since the days of Don Draper. Watch the show if you can, great entertainment too.

Some companies do not treat working moms equally. Some think that working moms
have “too much on their plate” at home and don’t give moms the same opportunities at work. Take Laurie Chadwick, a mother of four young children, for example. She had a strong record of success at Wellpoint Inc., even though she had young kids. She scored a 4.40 out 5 in her latest review. But when she applied for a promotion, Wellpoint denied her an instead promoted a less qualified woman without children. Ms. Chadwick sued for sex discrimination.

The federal trial judge threw her case out of court, but the relentless Ms. Chadwick appealed. She found a sympathetic audience with the Court of Appeals and they reversed that pesky trial judge and reinstated her case. Here is what the Court of Appeals said:

"Unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. ... [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities."

In Ms. Chadwick’s case, the company made a few telling comments. For example, when she asked why she did not get the promotion, she was told, "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." And during an interview the promotion, one of the interviewers said, "Oh my -- I did not know you had triplets. Bless you!" This decision in favor of Ms. Chadwick is a great victory and this decision can be used by other working moms who suffer employment discrimination.

According to a handbook given out to all female officers graduating from the New York Department of Correctional Services Academy, women should avoid gossiping at work, being too bossy at home and should eat ice cream to avoid burnout.

The blue booklet, "Orientation Handbook for Female Staff Working in an Institutional Setting," has been distributed to new female guards for at least 20 years and is still being handed out. Thanks to Sue Weibezahl Porter for bringing this to my attentions.

Not surprisingly, no such book exists for new male corrections officers, said Erik Kriss, public information director for the department.

"There are several mistakes which females make in their relationships with one another," the book says, then mentions "rumor spreading," "jealousy among other female staff members" and "classification snobbery," or looking down on female civilian employees. These behaviors are disruptive in the workplace, the book says.

It's that message that is helping Penny Collins, of Marcellus, N.Y., substantiate her claim of harassment and discrimination filed against the Department of Correctional Services in federal court, her lawyer said.

"To hand out something like that, it just shows how pervasive this is in the department," said attorney John Valentino of Syracuse. "They still seem to be living in the 1950s."

Collins said more than a dozen other women in New York have similar lawsuits against the department.

Collins is one of 2,264 female corrections officers. The department has 19,633 men in corrections.

"Females generally have the primary responsibility for the care of their offspring," the book notes. "Don't hesitate to talk to other female employees. They may be a good source for obtaining information on desired support services."

The book has sections on "wolf whistles" and "catcalls" and says women shouldn't use profanity "to be one of the boys" and should "eliminate flirtatious mannerisms while on the job."

"This is wrong on so many levels, I don't even know where to start," said Rosemary Agonito, former director of women's studies at the Rochester Institute of Technology who runs a workplace consulting firm. "This is just bizarre in the extreme in this day and age."

It reinforces negative stereotypes and "puts the burden on women to behave in certain ways without asking comparable things of men," said Agonito, of Onondaga, N.Y., who has written six books on gender issues in the workplace, including "No More Nice Girl."

Kriss said the agency's 19-page book was written by corrections officials in the 1980s "in response to situations that had arisen over the years that were unique to women corrections officers and to help women anticipate what to expect and how to handle it."

"There were no big high-profile events," he said. "The fact of the matter is if you're a female going into an all-male facility, they're going to be treated differently."

A federal appeals court has upheld a lower court ruling that found transsexuals are not covered by federal discrimination laws. The 10th U.S. Circuit Court of Appeals ruled that Krystal Etsitty had no legal recourse in fighting her firing by the Utah Transit Authority in 2005.

The 44-year-old Salt Lake County resident was born a biological male and given the name "Michael." She has been diagnosed with Adult Gender Identity Disorder and always believed she was born with the wrong anatomical sex organs. Eventually, she began taking female hormones and living as a woman to prepare for sex reassignment surgery in the future. In the fall of 2001, Etsitty was hired as a UTA bus driver and presented herself as a man and used male restrooms during her training period, court records say. She later told her supervisor she was transsexual and would begin to appear more female.

She was fired in February 2002 after UTA's manager of operations and a human resources official said they were concerned about liability based on possible complaints from women about Etsitty using the same restroom. The officials said she was eligible for rehire after her surgery and denied any discriminatory motive.

The court, which sits in Denver, found that the trial judge was correct in finding that the transit authority feared it could be sued by people born biologically female if it were discovered Etsitty still had male genitals.

However, the court seemed to hedge a little by stating "[t]he conclusion that transsexuals are not protected under Title VII as transsexuals should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals," the ruling said. "If transsexuals are to receive legal protection apart from their status as male or female, however, such protection must come from Congress."

Yesterday, the Wall Street Journal ran a story about a gender bias case filed against tech giant, EMC Corp. The Workplace Prof Blog provides a nice summary of the article.

The tech sales business is described by Kelly Harman as a "testosterone ladden environment, like playing for a football team .... a bunch of white guys running around selling technology." Harman is the former chairwoman of Woman in Technology, a professional association. She says that some companies are now pushing for a more balanced work force.

The 2000 census reported that woman make up 25% of the tech work force. Some companies, like IBM, report positive changes and a real increase in female employees - now up to 40% at IBM. However, other tech companies report lower numbers - EMC at 13.5% and CA, the software vendor, at 29%.

The EMC suit and the WSJ story on it show that the tech industry overall is still a tough place for a woman. Double standards and macho cultures still exist in some tech companies.

What IS the Glass Ceiling?
Many clients do not recognize that they may have a viable legal case of discrimination related to glass ceiling issues. The term "glass ceiling" refers to the idea that certain individuals--usually women--can see the top but cannot reach it. In other words, an individual has the credentials and experience but is never promoted beyond a certain level. Typically, these cases involve gender discrimination as well.

Glass ceiling cases are complicated and extremely fact-specific. The law recognizes that a corporation or business can have discriminatory policies even if it hires a few members of a “protected class”, individuals who are members of a group that it is unlawful to discriminate against—either by city, state or federal law. The law also recognizes that subjective criterion for judging a person’s qualifications can mask discriminatory practices.

Factors Courts Consider When Assessing a Glass Ceiling Case

--Statistics
Courts recognize that discriminatory practices are often hidden. Therefore, statistics are used to show what employers do not say but what employees already know--that certain people get promoted while others do not. A statistical analysis of a company's hiring practices is often the deciding factor in a glass ceiling case.

--Job Responsibilities
Courts also consider an individual's specific job tasks compared with those of others. In a recent Supreme Court case (Burlington Northern and Santa Fe Railway Company v. White), the court pointed out that some job duties are more desirable than others. It has also acknowledged that certain job duties are more likely to lead to promotions than others. An employee can show discrimination where she is assigned tasks that are less likely to lead to a promotion--even if they fall under the description of her job duties.

Dealing With a Potential Glass Ceiling Issue
If you think you are hitting the glass ceiling, the most important thing to do is to complain to your employer and document those complaints. Many people do not want to complain because they fear retaliation. However, it's important to give your employer a chance to fix the problem.

The drug company Novartis AG will have to defend itself against sex-discrimination claims brought by a group of female sales employees in a $100 million class-action lawsuit, a federal judge has ruled.

The class action is brought by 19 current and former employees in sales-related positions.

The judge certified, as a class, women who hold or have held a sales-related job at the pharmaceuticals unit from July 15, 2002, to present, including sales representatives, sales consultants, sales associates and some district managers.

In his order, the judge also granted a request to dismiss claims against Novartis Corp., the pharmaceutical unit's U.S. parent.

The lawsuit, which originally was filed in 2004, had alleged the Novartis unit was discriminatory in its pay, promotions, evaluations and treatment of women who take pregnancy leave. The complaint is seeking at least $100 million in damages and back pay.

The U.S. House is expected to pass legislation this week that will reverse a Supreme Court decision in the Lilly Ledbetter case that related to when a lawsuit seeking back pay must be filed.

The Lilly Ledbetter Fair Pay Act, which reverses a May 30 U.S. Supreme Court decision that ruled a former Goodyear Tire and Rubber Co. manager waited too long to sue for back pay, which she said was due to gender-based pay discrimination.

In its 5-4 ruling, the court's majority said that employees who claim unfair treatment in pay and bonuses based on gender or race must do so within 180 days of the original discriminatory action -- not within 180 days of their last paychecks.

The proposed law would reverse that, by allowing workers to file suit within 180 days of their last paychecks. It would also not require a worker who has already filed charges to keep filing new charges with each new paycheck.

The Supreme Court's decision in the Ledbetter case made it much easier for employers to defend against Title VII workplace-discrimination litigation -- specifically when the decisions about salary, raises and other pay-related issues were made a long time ago.

This could be a very important Bill for all prospective plaintiffs who feel that they have been receiving unequal pay as a result of their gender.

Lindy Vivas, the coach of a college volleyball team in Fresno California, sued Fresno State for sex discrimination and retaliation. She said she was fired because she demanded equal treatment for female athletes. The jury believed her and awarded 5.8 million.

She sued under Title IX which prohibits discrimination in education. Sex discrimination at university sports programs appears to be a serious problem. The percentage of woman's teams coached by woman is at an all time low. Also the salaries for female coaches are lower than those for men. Moreover, the men's teams get most of the support and the woman's teams are relegated to second tier status. Ms. Vivas was fired for challenging this situation and demanding change.

The discrimination at Fresno State was apparently rampant with male coaches openly mocking the female coaches and athletes with events like the "Ugly Woman Athletes Day." Ms. Vivas' case demonstrated that a battle of the sexes was raging at the University. Several other woman have similar suits pending against Fresno State. The school plans to appeal.

A state jury in Massachusetts awarded almost $2 million to a former employee of Wal-Mart after finding the retailer underpaid her and then fired her as a result of gender discrimination.

The woman who brought the suit, Cynthia Haddad, worked at Wal-Mart as a pharmacist from 1993 through 2004, before she was fired by the company, according to court papers.

The world's largest retailer has been plagued by complaints of underpaying its workers. It is also facing the biggest sexual discrimination case in U.S. history.

Continue reading "Employee Awarded $2M for Gender Discrimination and Retaliation" »

Sex discrimination can be hard to prove. But a group of women who wanted to be sausage packers proved that they were denied jobs because of their gender. The purpose of this blog entry is to show how sex discrimination can be proved.

There is a sausage packing plant in Fort Madison, Iowa. The packers carry and lift 18,000 pounds of sausage a day. Each pack weighs 35 pounds and it must be lifted 30 to 60 inches high. 46% of the new packers hired were female. But the company noticed that these packers had a high rate of injury and that cost them money - so they created a strength test for new hires. The percentage of females hired dropped from 46%t to 8% after the strength test was used. Only 38% of women passed the test while 97% of men passed. A group of women who were rejected as sausage packers sued and they won. Read more to find out how the women beat the company.

Continue reading "How Sausage Packers Proved Sex Discrimination" »

On Equal Pay Day April 24, the Education and Labor Committee held hearings on the Paycheck Fairness Act. April 24 symbolizes the number of days into a year women work before earning what men earned by December 31.

Earlier this year Sen. Hillary Clinton, D-N.Y. and Rep., Rosa DeLauro, D-Conn., introduced the "Paycheck Fairness Act", a bill aiming to reduce the pay gap in several ways. Specifically, this Act would tighten loopholes in existing pay equity law and reinstate the Equal Pay Initiative, proposed in 2000 to dedicate $27 million to teach employers and employees how to recognize and respond to wage discrimination.

The Paycheck Fairness Act would also allow those bringing gender discrimination lawsuits to receive compensatory and punitive damages and require employers to provide pay data broken out by race, sex and national origin.

Continue reading "Sex Discrimination and the Paycheck Fariness Act" »

Morgan Stanley, one the world's largest securities firms, said Tuesday that it had set up a $46 million claims pool to settle a sex-discrimination lawsuit and said it would enact new policies to help women succeed as financial advisers.

The settlement, which must be approved by the U.S. District Court in Washington, would change training and management-development programs in Morgan Stanley's wealth-management division, the company, based in New York, said.

Six women who are former Morgan Stanley financial advisers filed the complaint last year, claiming the company had discriminated against them and more than 3,000 other current and former advisers since August 2003. Morgan Stanley paid women less than men and gave them fewer promotion opportunities, the women claimed.

Morgan Stanley fired four male employees in January 2006 after they attended an Arizona strip club with at least one client.

In New York City and elsewhere, law firms have begun to tailor programs to women. Bryan Cave in New York recently hosted a shoe shopping day for its female attorneys and clients. Skadden Arps held its ninth women's retreat for its female attorneys and Akin Gump hosted a similar retreat in D.C.

This raises an interesting question as to how law firms should foster equality within their firms and with clients. These events do provide a forum for female attorneys and clients to build a relationship and they also allow the firms to create a more comfortable work environment for their attorneys. On the other hand, these events also inherently divide offices based upon gender lines and some, like the one hosted by Bryan Cave, create opportunities where female attorneys have greater access to female clients possibly to the detriment of male members of the firm.

This possible "inequality" will most likely produce a net benefit for firms and for women in the legal profession. I think men will be able to cope with lost retreats if it means a more diverse and happy field of colleagues as well as a more congenial atmosphere for female clients.

According to the U.S. attorney's office, who just filed a discrimination lawsuit in federal court this week, the city's failure or refusal to hire female bridge painters constitutes sex discrimination under Title VII of the Civil Rights Act if 1964. According to the complaint, New York City has never hired a female bridge painter even though qualified women have applied for the job

Since 1997, 56 people, including three qualified women, have applied for 13 jobs as bridge painters, according to the complaint filed by the U.S. Attorney's office, adding that all 13 jobs were awarded to men.

New York City employs about 100 bridge painters to maintain the 770 bridges it operates and the city's Department of Transportation denies that it had engaged in discrimination.

"We are confident the court will determine that DOT's hiring practices for bridge painters comply with civil service requirements and are gender neutral," Georgia Pestana, the chief of the Labor and Employment Division of New York's law department, said in a statement.

The city's civil service process requires the Department of Transportation to administer an open and competitive search when filling competitive positions like bridge painters.

But since 1992, the agency has not administered a civil service exam for bridge painters and has gotten around the rule by hiring on a provisional basis, the U.S. attorney's office said in the lawsuit.

A federal appeals court ruled this week that Wal-Mart Stores, the world's largest private employer, must face a sex discrimination class-action lawsuit alleging that female employees were discriminated against in both pay and promotions.

The lawsuit claims that over 1.5 million current and former female employees earned less than men and were bypassed for promotions.

Wal-Mart argued that conventional rules of class actions should not apply in this case because its 3,400 stores operated like independent businesses, and that the company did not have a policy of discriminating against women.

This ruling expanded the suit, originally filed by six women, to include all women who worked at Wal-Mart stores from December 1998 to the present, excluding upper management and pharmacy workers.
http://www.ottingerlaw.com/lawyer-attorney-1180048.html

Judy Scheidemantle was not qualified for the locksmith position posted by her employer, Slippery Rock University. Slippery Rock posted an ad for a locksmith and said the candidate must have at least two years of experience. Judy completed a home study locksmith course and had a professional locksmith license, but she did not have the requisite two years of experience. The other candidate, Mr. Clavin Rippey, did not have two years of experience either - but he had more experience than Judy.

Slippery Rock hired Mr. Rippey and Judy filed an EEOC charge alleging sex discrimination and age discrimination. The EEOC determined that Mr. Rippey had 941 hours of locksmith experience and that Judy's course work was the equivalent of 241 hours of experience. The EEOC dismissed her claim because Slippery Rock simply selected the candidate with the most experience. Judy then filed suit in District Court in Pennsylvania.

While the case was pending, Slippery Rock promoted Mr. Rippey out of the locksmith position and announced a new locksmith opening in June 2004. Judy applied. This time Slippery Rock hired another man, Bradley Winrader. Mr. Winrader had no locksmith experience. Judy amended her complaint to include the 2004 rejection. The District Court determined that Judy was not qualified for the position according to the objective criteria listed in the job posting and therefore could not establish a prima facie case of sex discrimination.

The Third Circuit Court of Appeals reversed and found Judy was qualified. The Court held that since Slippery Rock hired two men that lacked the objective qualifications, it created an inference that something less than the posted qualifications could be sufficient. Therefore Judy was able to establish a prima facie case of sex discrimination and the dismissal was reversed.