Piper Hoffman

Lactation is not a medical condition related to pregnancy or childbirth, and firing someone who wants to pump breast milk is not sex discrimination, according to a federal judge in Texas.

This decision is a stumper. Lactation occurs because of and immediately following pregnancy and childbirth, which makes it “related” to them. Only women lactate, so firing an employee because she needs to pump does discriminate against her on the basis of her sex.

The Equal Employment Opportunity Commission brought this suit against debt-collection agency Houston Funding on behalf of an employee whom the company fired, allegedly because she wanted to pump at work. The EEOC is considering appealing the decision by Judge Lynn Hughes (who is male).

Since the firing the federal government passed a law requiring employers to provide break time for new mothers to pump breast milk at work, but it does not prohibit employers from firing workers for pumping. One might have presumed that the anti-discrimination laws already had that covered, but now that is up in the air, and it will probably take years and opinions from higher courts to clear it up.

Women want more life and less work, and they are willing to sacrifice to get it.

Working women tend to value their personal lives more than professional advancement, according to a new survey from More Magazine. It found that “65% of women say it’s more important to have TIME in their life than to make more MONEY at their job” and “73% say if their boss left her job, they would NOT apply to replace her.” These priorities are trending: “43% say they are LESS AMBITIOUS now than they were 10 years ago,” and “58% say that flexibility is more important to them now than it was 10 years ago.”

I wonder how men would answer the same questions. Is this the mood all over? Is it a result of women finding that jobs aren’t all they were cracked up to be?

Beyond women’s feelings about work, this survey should help bust the stereotype of women as materialistic opportunists who seek mates who can buy them lots of shoes, since 65% of women polled prefer time over money. That should put the canard to rest…but it won’t.

Apparently voters don’t mind sexual harassment. A candidate who illegally degrades and even assaults women in the workplace is electable. What voters will not tolerate is a consensual affair.

Herman Cain is losing support because a woman accused him of having an extramarital affair with her, according to today’s New York Times. The paper quoted Mike Huckabee saying that the allegation of an affair “is one that could upend his presidential campaign.” Apparently all the prior allegations of sexual harassment were not “ones that could upend” a campaign.

The paper also quoted “a conservative” from West Des Moines who, it reported, had supported Cain “through the accusations of sexual harassment,” but considered the allegation of an affair “different.” Because of the alleged affair, she said, “I would guess Herman Cain is not electable now.”

These two aren’t alone. The Times found that the “support from many conservatives, which poured in after reports of sexual harassment were first made against Mr. Cain nearly a month ago, was significantly muted.”

How to explain the combination of equanimity in the face of multiple sexual harassment accusations on the one hand, and communal backing away from the suggestion of one affair on the other? Perhaps conservatives just don’t believe sexual harassment happens but know that affairs do. But the sad truth is that some men cheat on their wives, some men harass women they have power over, and some men do both.

Both types of accusation reflect on Cain’s fitness for office. Having an affair means he broke a promise, which, while not a desirable trait in a politician, is an inevitable one. Sexually harassing subordinates means he abused his power in order to hurt people. Call me wild-hearted or a bleeding eye or whatever, but I think that is worth voting against.

Plaintiffs suing Costco for sex discrimination face another round of litigation thanks to the Supreme Court’s recent dismissal of the Wal-Mart sex discrimination case. Because of the Supreme Court’s decision, the Ninth Circuit Court of Appeals ruled on Friday that the Costco trial court must reconsider whether the plaintiffs can prove that the company should be liable for sex discrimination in store-level promotions. On this question the Court of Appeals, like the Supreme Court before it, ruled the wrong way, discouraging companies from implementing measures that would prevent discrimination.

When companies leave employment decisions like promotions to individual decision-makers without giving them clear, relevant criteria to guide their decisions, those decisions are often discriminatory, albeit sometimes unintentionally. Many corporations, including Costco, provide no uniform criteria – or any guidance at all – for making promotion decisions. This leaves each individual manager (the vast majority of whom are male at Costco) to make promotion decisions as he sees fit. When making decisions with unfettered discretion, people tend to rely on stereotypes and to promote those they are most comfortable with and who are most like them – in short, in the absence of clear criteria, men usually promote men. Witness Costco’s demographics: female lower-level managers at Costco are less likely to be promoted than their male counterparts. It appears that only two of Costco’s top 34 executives are women. The problem is not a shortage of interested or qualified women: Costco’s competitors have a much higher proportion of women in management than Costco does.

Companies can prevent this kind of discrimination. Sociological research shows that holding top management responsible for establishing and enforcing uniform, unbiased promotion criteria goes a long way. When companies provide managers with performance-related criteria for promotion decisions, managers can evaluate whether a candidate satisfies those criteria instead of making a gut-level decision based on personal relationship or other irrelevant factors.

Companies can also prevent sex discrimination in promotions by increasing the pool of candidates. When employees don’t know promotions are available, managers may not even consider qualified women for the positions – they may not know them well, or may rely on stereotypes to conclude that they don’t want promotions. The Costco case illustrates these consequences: the three women who sued desperately wanted promotions, but none of them ever applied for one – they couldn’t, because Costco did not accept applications, and they never knew when promotions were available anyway. An easy fix is to inform employees of promotion opportunities and invite applications. Interested women will throw their hats in the ring and managers will evaluate them based on the relevant criteria, resulting in more promotions of women.

The courts in Costco and Wal-Mart ruled the wrong way because they discouraged companies from adopting these measures. They held that corporations are not liable in class actions for the discretionary decisions of individual managers, creating an incentive for companies to wash their hands of preventing discrimination in their ranks. The more anarchic the system for decisions about promotions and other perks – raises, bonuses, etc. – the more insulation the company has from discrimination class actions. The Costco decision quoted the Supreme Court’s Wal-Mart ruling on this point: “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to [bring] a nationwide class [action] will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” In other words, if the only thing promotion decisions have in common is that managers make those decisions however they want, the company as a whole is not liable for resulting discrimination. In contrast, if the company disseminates guidelines for making promotion decisions that result in discrimination, the company can be held liable.

Smart companies will adopt best practices like enforcing uniform criteria for promotion decisions, both to retain and get the benefit of employing talented people and to avoid discrimination suits by individuals, which are not affected by the Wal-Mart and Costco decisions.

The Court of Appeals sent the Costco class action case back to the trial court for reconsideration, giving the plaintiffs another chance. But the trial court will labor under the higher court’s instruction (again, quoting the Wal-Mart decision) that it “must determine whether there was ‘significant proof that [Costco] operated under a general policy of discrimination.’” Proving that Costco operated under a general policy of laissez faire will not suffice to save this sex discrimination case.

Article first published as Judge: Bloomberg Did Not Discriminate Against Women on Blogcritics.

The judge who ruled that Bloomberg LP did not illegally discriminate against women for taking pregnancy leave raised an important policy question in her written opinion. Judge Preska did not drop “an anvil…on the work-life balance scale,” despite commentators’ efforts to portray her decision as a calculated blow against work-life balance; in deciding in Bloomberg’s favor, all she did was follow the existing law. In her commentary, however, she questioned the wisdom of the law itself, and noted that one alternative might be for employers to “treat pregnant women and mothers better or more leniently than others.” Judge Preska did not say whether she thinks that would be a good idea. It is a dreadful idea.

The judge’s legal reasoning in the Bloomberg ruling is by the book. The federal law bans pregnancy discrimination as a form of gender discrimination, as it should – only women get pregnant. The law does not require employers to treat pregnant women better than other employees, just not to treat them worse. Based on the evidence Judge Preska summarized in her decision, Bloomberg LP did not treat women who took pregnancy leave worse than other leave-takers; to the contrary, if that evidence is to be believed (in an earlier ruling Judge Preska threw out the Equal Employment Opportunity Commission’s expert witnesses, leaving the evidence lopsided in Bloomberg’s favor), women returning from maternity leave may have fared slightly better in terms of compensation than employees returning from other kinds of leave.

The evidence also showed that taking leave for any reason is not a wise career move at Bloomberg. The company policy is, in essence, that employees must put Bloomberg LP ahead of God, country, family, and whatever else figures in their particular pursuits of happiness. Bloomberg scoffs at work-life balance, and while that might be poor business judgment or even reprehensible, Judge Preska was correct that it is not against the law.

Judge Preska makes it clear that the law, whether she likes it or not, grants employers the right to ignore and even discourage workers’ lives outside of work. She quotes former General Electric CEO Jack Welch’s grim assessment that there is “no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

The judge writes that “it is not the Court’s role to engage in policy debates or choose the outcome it thinks is best. It is to apply the law.” Judge Preska goes on to discuss all the things that courts do not have the power to police. She includes in that list what she calls “work-family tradeoffs” – she does not believe one can have it all. But maybe one can have more than Bloomberg gives: the judge observes that it “may be desirable” and “may make business sense” for companies to “treat pregnant women and mothers better or more leniently than others.”

I disagree. Treating pregnant women and mothers more leniently than other employees is not desirable. The view that pregnant women and mothers deserve special treatment may appear feminist, but it actually serves the interests of those who want women pregnant and at home while daddy wins the bread. The law already bars employers from discriminating against women because of pregnancy and related medical conditions, so this policy question is not about whether women’s biology holds them back in the workplace. It is about whether some mothers’ choices to spend more time away from work than fathers and non-parents do should be underwritten by the government and employers.

“Treat[ing] pregnant women and mothers better…than others” would be an insult and a disservice to several groups of “others.” First, fathers: why should employers treat mothers better than fathers? To ensure that women take more time off work and that men don’t? To reinforce sexist stereotypes that, compared to men, women are better at/prefer/should be raising children? Those stereotypes don’t need much reinforcement: studies have shown that men who take paternity leave are later penalized in terms of compensation and promotion compared to men who leave all the child-rearing to women. The attitudes behind those penalties are the same attitudes that support treating mothers better than other employees.

The second group of slighted “others” is the ill and disabled: why should pregnant women and new mothers be treated better than employees who take leave that is necessary for different medical reasons? Pregnant women at least chose to suffer their medical condition, unlike people who have to take leave for, say, a kidney transplant, or to care for a dying parent. Pregnant women and new mothers should not be treated worse than others with medical conditions, and they should not be treated better.

Third, non-mothers: treating female employees who choose to bear children better than those who do not (and in some cases cannot) devalues the lives of women without kids. Requiring employers to treat mothers better in the workplace than women who are not mothers would divert both public and private resources to subsidize the individual lifestyles of people who choose to have children. People do not have children for the greater good or out of a sense of civic duty – they have children because they want to. It makes no sense to force employers to grant preferential treatment to women who choose to spend their time and resources having children over women who choose to spend their time and resources doing something else. It is not up to employers to value any of these private, non-employment-related choices over the others.

Judge Preska put a point on this policy debate by referring to “work-family tradeoffs” rather than “work-life tradeoffs.” But these are not the same thing. Family is not a substitute for life; family is a part of life, but there is more. For most people blessed with the resources to choose how to spend their time, life includes friends, the arts, physical activity, spirituality, or any of many other interests. The judge’s phrase, “work-family tradeoffs,” frames the issue as a question of trading family time for work time, implying that family is the only thing that could possibly merit time off of work. In the context of a gender discrimination case like this one, this framing is not only reductionist, it is frightening in its confinement of female employees to only two spheres: family and making a living.

Judge Preska merely outlines the policy choice of favoring mothers over other employees. She does not claim it as her own. But it is not a straw man: it is at the heart of many “work-life balance” criticisms of the judge’s ruling. Critics are not satisfied with the law’s requirement that employers treat women who take medical leave related to pregnancy the same as other employees who take leave for other reasons. They want pregnancy and motherhood to be privileged.

I am not on Bloomberg’s side. Expecting employees to put work above all else is a recipe for misery for all but workaholics, and an ugly manifestation of corporate greed. But putting children above all else is not the answer for everyone either.
Judges lack the power to force employers to facilitate humane work schedules, and in a free market with more workers than jobs, employees lack the leverage to reach company- or industry-wide bargains for a better balance. At least for now, people who choose to have children will have to make trade-offs to pursue their dreams the same way that people without children do. Under the Pregnancy Discrimination Act and Judge Preska’s ruling, pregnancy and related medical conditions are not a part of that trade-off – they should have no different effect than any other medical condition.

If other “work-family” trade-offs continue to fall more heavily on mothers than fathers, they will have a discriminatory effect. The most immediate and attainable palliative is for fathers to step up and mothers to step back. As more fathers take more parental leave the stereotype of women as children’s natural caretakers will begin to erode, and if women take less leave, the stereotype that women are not as committed to their work as men are may begin to erode too. Parents who can afford for mom to take non-medical time off with the kids should not wait for the courts or the legislature to solve their childcare challenges. They should tap underutilized in-house talent instead: dads.

Employees often encounter unfair treatment in the workplace that can be upsetting and even unbearable, but isn’t illegal. Unless the treatment is based on the employee’s sex, race, religion, national origin, disability, age, or on another protected category, a lawyer probably can’t help. The unfair treatment may not be discrimination — it may be bullying.
Workplace bullying is not uncommon. The supervisor who is consistently mean to a subordinate, the co-worker who turns others against a particular employee, the “practical joker” whose jokes cross the line into cruelty — they are all bullies. Bullies were hard to handle on the playground and can be even harder to deal with at work, where one’s very livelihood is at stake.
But there are ways to fight back. A recent article on the Harvard Business Review’s Blog Network, “Diagnose and Eliminate Workplace Bullying” by Baron Christopher Hanson, outlines one approach to ending bullying. The Workplace Bullying Institute offers another. Visit their websites for more information.
As an employment lawyer I have talked to so many people who were traumatized by workplace bullying, but I couldn’t help them because the abuse didn’t break any laws. But just because it’s legal doesn’t mean it’s acceptable.

The news this week brings a reminder that while mandatory arbitration infringes on employees’ rights to a full trial in court, sometimes a full trial in court is no great shakes either. Jamie Leigh Jones, the Halliburton employee who accused seven of her co-workers of brutally raping her, lost her case when a jury ruled that the sex was consensual. One of Jones’s attorneys suggested that the verdict may have been different if the jury had been allowed to hear evidence about “her rapist’s criminal history, including violence against women.” He said that the jury did hear evidence about Jones’s “entire personal history.”

This story may not be over: I expect that Jones’s attorneys will appeal the verdict based on those evidentiary decisions and possibly on other grounds as well.

Excellent article on how Wal-Mart’s corporate culture fosters discrimination, and how the employees have now been stripped of their two best hopes: unions and class actions.

Also published in different forms on Salon and in Newsday.

Today the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

So the Supreme Court looked to procedure. To bring a case as a class action in federal court, the plaintiffs have to get permission from the judge to proceed as a class. This makes sense: you wouldn’t want someone to be able to file a lawsuit on your behalf without an objective outsider considering whether the lawsuit was in your interest and whether the person filing it would represent you well. To protect you from becoming part of a class action that doesn’t benefit you, plaintiffs have to persuade a judge that they satisfy the requirements of what is known as Federal Rule of Civil Procedure 23 before their lawsuit can proceed as a class action.

One of Rule 23’s prerequisites is that “[o]ne or more members of a class may sue…as representative parties on behalf of all members only if there are questions of law or fact common to the class.” The Wal-Mart plaintiffs clearly alleged common questions of law or fact, including statistical evidence that Wal-Mart pays and promotes men more than women; Wal-Mart’s policy of leaving decisions regarding promotion and (within certain ranges) pay up to individual managers; evidence that Wal-Mart has a uniform corporate culture across its stores; and evidence that Wal-Mart’s culture fosters discrimination against women. These are precisely the kind of “common questions of law or fact” that courts routinely accept as satisfying the Rule 23 “commonality” prerequisite.

The Court used this previously clear “common questions of law or fact” requirement to thwart the Wal-Mart women by redefining the requirement beyond recognition. According to Justice Scalia, “common questions of law or fact” now means that plaintiffs must “demonstrate that the class members have suffered the same injury.” In no universe that I have visited do these two phrases require the same thing.

It’s not clear just how far the Court will take this bizarre new rule. Does “same injury” mean that the plaintiffs must show that every single class member was denied the exact same promotion? Or that each one was underpaid by the same amount? Scalia writes that it does mean that suffering “a violation of the same provision of law” won’t suffice as suffering the “same injury.” This is a remarkable and counterintuitive holding: after this ruling, a group cannot sue their joint employer for violating the same legal right for each one of them. Instead they have to prove that the legal violation harmed them in the same way. This is completely backwards: courts exist to redress violations of the law, regardless of whether those violations cause their victims to suffer in the same or different ways. It is thanks to this procedural backflip that Wal-Mart and other employers can now delegate their way out of being responsible for discrimination in their workplaces.

Arguably before Monday’s Dukes v. Wal-Mart decision, American employers were subject to legal liability if they delegated so much discretion to individual managers that those managers created a pattern of discriminating against women – at least, the four Justices in the minority believe that this was the law. Now employers have every incentive to take their hands off the reins and let managers make pay and promotion decisions based on whatever criteria they choose. This is a major loss for women, minorities, senior citizens, the disabled, and any other group that tends to get the short end of the stick in the workplace. The procedural manipulations required to reach this point have caused a major loss for any group of people that seeks to redress a legal violation through a class action: now each individual will have to pay for legal representation alone and probably forego evidence of violations against similarly situated people. Goliath has won, and it is every David for himself.

Article first published as Your Job or Your Rights: How Employers Force Workers Into Arbitration on Blogcritics. Blogcritics named this article an Editors’ Pick. Also published in The #employmentlaw Daily and New York Employment Law buzz.

Seven of Jamie Leigh Jones’s male co-workers welcomed her to her new job in Iraq by drugging and gang-raping her, according to the federal Equal Employment Opportunity Commission. She says that the rapists were so violent that afterwards she had to undergo reconstructive surgery on her breasts.

Ms. Jones sought her day in court, but her employer, Halliburton, tried to bar the courthouse doors. When she took the job Halliburton made her sign an arbitration agreement which forces employees to give up their rights to take employment-related disputes to a jury. Instead, they pledge to resolve disputes through secret, binding arbitration.

This spring the Supreme Court issued an opinion in another forced arbitration case, AT&T vs. Concepcion, which involved cell phone users whose service contract required them to take disputes to arbitration and not to court. It also prohibited them from bringing a class action in arbitration, leaving them no way to bring a class action at all. The Supreme Court announced that that is just fine. It is legal for a company to unilaterally ban customers from court and eliminate the possibility of a class action.

Many employers force similar arbitration provisions on their employees. In fact, there is a decent chance that you gave away your right to a jury without realizing it when you accepted your current job. Like mobile phone and credit card companies, employers hide this tidbit in jargon and small print. If you want the job, you trade your right to a jury, and in its place you get private, paid arbitrators whose decisions are essentially unappealable and who don’t have to follow the law. They don’t even have to explain the reasoning behind their decisions.

Not every employer pulls this trick, but many of the big ones do, including Anheuser-Busch, Cisco Systems, Dillard’s Department Stores, Halliburton, Hooter’s, and most major employers in the financial services industry. Approximately 48 million American workers may be bound by arbitration agreements, according to the National Employment Lawyers Association.

Employers favor arbitration because it can be faster and cheaper than court. But time-consuming judicial procedures are meant to make the process fair to both parties. Their absence from arbitration weights the balance in favor of employers: for instance, in court, employers have to turn over damaging documents and produce supervisors and co-workers for depositions; in arbitration, employers can usually keep all that information to themselves. Employers also like that arbitrators have a financial incentive to favor them: employers hire the same private arbitration companies over and over, whereas each employee tends to be a one-time player.

In Ms. Jones’s rape case, federal courts ruled that several of her claims (vicarious liability for assault and battery; intentional infliction of emotional distress; negligent hiring, retention, and supervision of the employees involved in the assault; and false imprisonment – this last arising out of Halliburton’s allegedly locking Ms. Jones in a container after the alleged gang-rape and refusing her even a phone call) were not covered by the forced arbitration clause in her employment agreement because they were not related to her employment. Therefore those claims could be heard in court rather than arbitration – but only after the arbitration of her other claims ended. This ruling validates the statements of many federal courts (though not this Supreme Court) that forced arbitration is unfair, and that it is particularly unfair in the context of employment discrimination claims.

Halliburton fought hard to convince the courts that all of Ms. Jones’ claims based on her alleged assault should be heard in private arbitration and not in open court because it knew it would be better off if it could keep Ms. Jones’s brutal allegations muffled in an inherently biased arbitration instead of public in an open, unbiased court. Despite its efforts, this June Ms. Jones’s remaining claims will go to trial.

The Supreme Court has signaled that it will not stop companies from forcing arbitration on individuals, and in the AT&T case it ruled that states may not do so either. Yet 59% of Americans oppose forced arbitration according to a study by Lake Research Partners. If employees (or consumers) are going to be protected from take-it-or-leave-it forced arbitration agreements, it will have to be by an act of Congress.