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.
Piper Hoffman
Rock the Boat: Law, Society, and Social Justice
Filed under Employment Law …
Jamie Leigh Jones Loses Her Rape Case in Court
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.
The Supreme Court Robbed Workers of an Important Tool for Workplace Reform: Class Actions
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.
Companies Can’t Discriminate, But Their Managers Can: The Supreme Court Gives Wal-Mart the Win in Dukes Gender Discrimination Class Action Case
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.
Your Job or Your Rights: How Employers Force Workers Into Arbitration
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.
Turning the Other Cheek: Illegal Retaliation in the Workplace
Turning the Other Cheek: Illegal Retaliation in the Workplace
If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).
It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.
In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.
In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.
In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.
So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.
The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).
The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.
In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie test and stay in court? An “adverse employment action.”
That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”
Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).
The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Consider too their propensity for following the rules, and for expressing themselves clearly enough that they don’t appear to be flouting rules that. they are trying to apply.
The Top Ten Myths and Facts About Suing Your Employer for Discrimination
If you believe that someone at work is discriminating against you, one of your options is to go the legal route and bring a case against your employer. I’m all in favor of taking action against illegal discrimination, but you need to have your eyes open when you make up your mind to fire the opening salvo in a discrimination dispute. Here are ten myths and facts about going after your employer for discrimination. I use examples of sex discrimination cases, but the following applies to all types of discrimination.
1. Myth: Your employer will cave quickly and you will move on with your life.
Fact: There is a good chance your case will drag on longer than you could ever expect.
You would not believe how long discrimination disputes can take to resolve. Seven years is not unheard of. One reason is that there are many steps in the process before you even get to court, including filing an administrative charge at the Equal Employment Opportunity Commission or equivalent state agency (this is mandatory before you can file a lawsuit in court) and attempting to negotiate a settlement; another reason is that once you’re in court you are at the mercy of the judge, and the mercy of some judges is very slow. Some women reach an agreement with their employers relatively quickly while others will be in it for the long haul. Employers and their lawyers do their best to make it worse by dragging things out as long as possible.
2. Myth: It won’t cost too much to pursue your case.
Fact: Pursuing your case will most likely cost more than you expect.
Lawyers, especially good and experienced ones, are not cheap. When you consider that most of them charge by the hour and put that together with Myth #1 above, it is obvious that pursuing your case will cost you. This is another reason that employers and their lawyers try to drag things out – they are hoping you will run out of money, if you don’t run out of patience first.
3. Myth: Your employer is terrified of bad publicity.
Fact: Your employer will probably not surrender when you threaten to go public.
Nearly every woman who has ever come to my office to discuss suing her company for sex discrimination told me that her company was scared of bad publicity, so if we threatened to publish her accusations in the press, the company wallet would fly open. Nearly every one of them was wrong.
There are two reasons that your boss won’t wet his pants when you brandish the phone number of a Wall St. Journal reporter. First, he knows that for you, press coverage is a gun with only one bullet. Once you pull the trigger, you’re out of ammunition – in other words, once the story hits the press, it is out there, and whatever power the threat of exposure did give you is gone.
Second and more important, your employer is presumably in the press a fair amount – certainly a lot more than you are. Your story will be one bad article, but the next day or week or month there will be a good article about the business. Your story will not define the company’s public image. But your story will probably define your public image for a long time. Your employer knows this, and is counting on you having more to lose from press coverage than the company does.
4. Myth: Your colleagues – both the ones who suffered discrimination and the ones who knew it was happening – will back you up.
Fact: Your colleagues will probably wimp out.
If someone at work is discriminating against or harassing you, he is probably treating your female colleagues the same way, and other colleagues have probably witnessed his conduct. It would be nice to think that the other victims and the witnesses would tell the truth about what happened to you in the workplace.
Don’t count on it. More often than not, colleagues plead ignorance or flat-out lie when asked to step up. They fear for their jobs and will usually choose continued employment over lending you a hand or standing up for justice.
5. Myth: Your case will expose your employer for the prejudiced, backwards institution that it is.
Fact: Other people will probably not find out how evil your employer is.
Usually “success” in a discrimination case means settlement; only a very small percentage of discrimination complaints go all the way to trial. And employers have a very nasty habit of insisting that your settlement remain completely confidential. It’s the equivalent of a gag order: you are not allowed to tell anyone about the discrimination or about the settlement. This is a particularly noxious tactic because it means that other women don’t know to stay away from your woman-unfriendly workplace, and the public in general has no idea how much discrimination is really going on. Forget about getting a bucket of money from your case and then writing a book-length expose about how vile your employer is. If you settle your case, no book. If you take your case all the way to trial, then maybe no settlement agreement and no confidentiality clause. You could write the book and tell the world, and you would have years to do it (see #1), but you would need a big advance (see #2).
6. Myth: You will be avenged against the perpetrator when he loses his job.
Fact: The bad guy will probably not get fired.
One of the fondest wishes of most discrimination victims is to see the bad guy get what’s coming to him. Sadly, he very rarely will. Employers rarely fire the perpetrators of discrimination even when they lose discrimination cases in court and have to pay the victims lots of money. Occasionally they will transfer the jerks, but usually nothing happens. If seeing your boss canned is your primary motivation for suing your employer, forget it. Talk to a lawyer about some more realistic expectations.
7. Myth: You shouldn’t tell higher-ups or human resources about the discrimination.
Fact: Making a complaint to human resources can help.
Yes, your boss may retaliate against you. Yes, human resources probably won’t do anything helpful. But if you are serious about pursuing a discrimination case against your employer, you should do everything you can to end the discrimination and to get your attempts to do so documented. It will probably mean the end of your career at that company, but it will help your case. And who knows, maybe you’ll be one of the lucky few who actually have effective HR departments, you’ll be promoted and transferred to a new department, you won’t have to bring a case, you will never have to see your repulsive boss again, and justice will prevail. It does happen. It can help to see a lawyer even at this stage so she or he can coach you through this process.
8. Myth: It is illegal for your boss to treat you unfairly.
Fact: Unfair treatment is not always illegal.
Your boss can make your life miserable without breaking the law. For instance, if he treats everybody, male and female, like crap, then it’s not discrimination when he treats you like crap. If he assigns you all the scut work because he just doesn’t like you, but he treats other women well, then it’s not sex discrimination. He can cut your pay, transfer you, demote you, or even fire you just because he thinks you looked at him funny. As long as his reason isn’t your gender, then it’s not sex discrimination. It can help to keep notes about how he treats you and your peers so that if you decide to see a lawyer, you can give her or him a good picture of how your boss treats both you and other employees, both male and female.
9. Myth: The focus in my discrimination case will be on my employer’s wrongdoing, not on me.
Fact: If your case goes to court, your employer and its lawyers will do their best to invade your privacy and keep the spotlight on you and whatever wrongdoing they can dig up or make up.
If you accuse your employer of unfairly firing, demoting, disciplining, or otherwise penalizing you, your employer will almost inevitably respond by saying that whatever it did was a fair reaction to your performance: your boss fired you because you were always late, or demoted you because all your peers outsold you. Whatever it is, your employer will try to keep the focus on what you did rather than what it did.
If your case goes to court things could get even worse. One of the pre-trial stages of litigation, called “discovery,” involves exchanging relevant information with the other side. Your employer may demand that you turn over all kinds of information you consider private, such as your journals or records from all your doctors. Just because the other side requests it doesn’t mean you have to turn it over, but you and your lawyer will need to have a good legal argument not to turn it over.
10. Myth: There is nothing I can do about the discrimination I face at work.
Fact: There are many things you can do. Sex discrimination is illegal, and if it is happening to you, you should do something about it.
The first nine myths and facts might have been discouraging, but don’t give up. Consider it from a dollars and cents perspective: I and thousands of other lawyers have made a living representing employees who accused their employers of discrimination. We could not have done that if we never won.
Yes, you could stay in your job and do nothing, or leave your job without reporting the discrimination to anyone. But you could also report the discrimination to a manager or to HR; negotiate an exit that involves your employer paying you to stay quiet about the discrimination; file a complaint with the federal, state, or local government; or organize other women who are also experiencing discrimination and take on your employer as a group. This last option can be the most effective (see Part I and Part II of my article about settling gender discrimination class actions). The big class actions that you read about in the newspaper happened because more than one woman stepped up to take a company to task over workplace discrimination. When you work together with your colleagues you have more power, more credibility, and more support. If you do decide to try the class action route look for a lawyer with experience bringing class action discrimination cases, as they differ in significant ways from single-plaintiff cases.
***
Every case is unique; all of the above are generalizations based on seeing a lot of cases over time, and this article is not legal advice. Many women before you have gone after prejudiced employers and made them pay, and it may be that you have a strong case, a strong stomach, and a good lawyer who can make you one of those women. You have the right to be treated equally – if your boss is breaking the law, he should suffer the consequences. Don’t decide to throw in the towel without seeing a lawyer about your individual circumstances. One good place to find a plaintiff’s employment lawyer is the National Employment Lawyers’ Association.
Settling Gender Discrimination Class Actions (Part II)
It may not seem credible that gender discrimination remains widespread and systemic in American workplaces. Women outnumber men in colleges and graduate programs; they have entered the workforce in force; women run some companies, universities, states, and departments of the federal government.
Despite all this progress, though, discrimination persists. Women are only 17% of Congress members. Women head a mere 2.6% of Fortune 500 companies. In other words, men still overwhelmingly control our most powerful political institutions and our economy.
The familiar glass ceiling argument could explain this striking disparity: women can rise up through the ranks professionally, but at some point they hit the glass ceiling and cannot go any higher. If that were the only problem, it might explain why women are so conspicuously absent from the powerful positions listed above. But the gender disparities start well below the highest levels of power.
A striking pattern emerges from statistics analyzing the numbers of women at various levels in financial services companies (which I’ve become familiar with from representing so many women in discrimination cases against them). At the entry level, there can be as many female as male employees. At the next level up, women make up a smaller percentage of employees. At the next level, even fewer of the workers are women. And on it goes, until you reach the near complete absence of women from the position of CEO. Graphically, the numbers describe a pyramid: with every promotion the percentage of women shrinks.
Social scientists like
William Bielby of the University of Illinois at Chicago and Barbara Reskin of the University of Washington
have studied this phenomenon and traced it to its roots: unconscious bias that affects subjective decision-making.
Even the most fair-minded people are subject to unconscious biases. The Implicit Association Test is one of many studies to demonstrate that people can have strong preferences and antipathies they may not be aware of. Even people who consider themselves very fair-minded can be unconsciously prejudiced against minorities, for example. To give a very rough summary of part of the underlying theory, people tend to think in terms of “in groups” and “out groups.” My “in group” is the group of people who are like me in salient ways such as gender, race, religion, age, educational background, profession, family status, etc. I tend to attribute more positive characteristics to members of the in group and more negative characteristics to members of the out group, who are unlike me. For instance, as a native Midwesterner, I may unconsciously prefer fellow Midwesterners to people from other parts of the country, although if you ask me whether I think Midwesterners are better than other Americans in any way, I will honestly answer that I don’t. The bias is unconscious.
Unconscious biases operate in the workplace as they do in every other sphere of human interaction, with the result that the groups in power tend to stay in power. Male managers may subconsciously believe that other men are more capable than women, outperform women, or are more committed to their work than women. Again, these beliefs can be subconscious, but they still affect decision-making. When it comes to a subjective decision such as who deserves a promotion, a male manager with an unconscious bias in favor of men is more likely to promote a man than a woman. The same is true of granting raises, distributing assignments, and making opportunities like management training available. This is how unconscious bias can combine with subjective decision-making to favor men (and other groups like whites) and to create the pyramid that leaves women at the lower corporate levels while disproportionately men climb to power.
There are other factors at work here too. People tend not only to think more highly of members of their in group, but to be more comfortable with them. As a result, a male manager may invite some employees to a golf outing or to dinner – nothing formal, just being a down-to-earth supervisor. He invites the employees with whom he feels most comfortable or thinks he has the most in common. A slew of scientific studies demonstrate that he is likely to feel most comfortable with the employees who belong to his in group – in this case, men. As a result, he gets to know his male subordinates better and become friends with them. When plum assignments or opportunities for promotion arise, the manager is more likely to dole them out to the subordinates he is more comfortable working with and is friends with.
Unconscious bias is difficult if not impossible to change. Researchers including Frank Dobbin of Harvard University have shown that common techniques for combating prejudice, such as diversity training, not only do not help – they actually backfire.
The way to tackle workplace discrimination is not to try to change people’s unconscious thoughts, but to make decision-making processes less subjective and therefore less vulnerable to unconscious bias. Action must come from the top of the organization: an employer that provides clear, objective criteria to guide otherwise subjective decisions, and that enforces the use of those criteria, will make the workplace less discriminatory by diminishing the opportunity for decision-makers’ unconscious biases to affect their judgment.
The settlement of the gender discrimination class action against Novartis discussed in the first part of this post takes a stab at making these kinds of changes. It requires Novartis to clarify and systematize the criteria for evaluating employees, to train managers to evaluate employees fairly, and to “calibrate” evaluations to check that evaluators are applying performance criteria in a uniform manner.
Where bias is conscious and discrimination is intentional, decision-makers will find ways around objective criteria for decision-making. Conscious prejudice presents an entirely different set of challenges than unconscious bias. But I’d like to believe that a lot of workplace discrimination results from unconscious bias and that employers will improve their procedures to protect decision-making processes from that bias. Some employers have already done so, albeit usually under court order (demonstrating the need for more discrimination class actions). Employer initiatives to make subjective decision-making more objective will help end workplace discrimination. Please post a comment to share your workplace experience.
Settling Gender Discrimination Class Actions (Part I)
Eight- or nine-figure settlements of gender discrimination class action lawsuits regularly make news. It seems like discrimination this pervasive – essentially, discrimination as corporate policy – should be a relic of the Mad Men past. To the contrary, in countless companies and even entire industries, discrimination against women is business as usual. The latest example is Novartis, a pharmaceutical company, which settled a gender discrimination class action for up to $175 million last week. (Note that the first legal step in this case was taken seven years ago – keep that in mind before you run out to sue your boss.)
As a lawyer, I spent several years bringing and settling discrimination lawsuits against large employers. I talked with female employees who told similar stories of discrimination derailing their careers and sometimes even damaging their health. I learned that it will take an awful lot to eradicate gender discrimination against women at work.
Company-wide discrimination looks pretty much the same no matter the employer’s industry, region, or public image. Managers deny women opportunities for management training. They deny women in sales the best accounts and territories. When a woman succeeds in building up a previously lackluster account, management takes it away and gives it to a man. Managers exclude women from networking opportunities, management training, and promotions. They deny their female employees awards and recognition that they have earned. Managers penalize women who take legally-mandated leave to give birth or to bond with an adopted child. Offending companies pay men more than their female peers.
Then there is sexual harassment, which can include public humiliation, wildly inappropriate comments, even more wildly inappropriate touching, sexual propositions, public discussions among male employees and managers about their female colleagues’ and clients’ physical appearances or sexual proclivities, you name it. I know of a male manager instructing a female subordinate to unbutton her blouse more before meeting with a male client to increase her chances of making a sale. I know of a male manager raping a female subordinate. And everything in between.
Woe betide the woman who dares to complain about discrimination to Human Resources or to the government agencies responsible for enforcing anti-discrimination laws. The traditional next step is for the company to retaliate against her – never mind that retaliating against someone who complains about employment discrimination violates federal law. Retaliation means not only more of the same for the complaining employee, but worse. A manager who had not been in the habit of humiliating women in front of male colleagues and clients will take it up as a new hobby. Any raises, bonuses, promotions, training opportunities, etc. that management had promised to the woman vanish, never to reappear.
The Novartis complaint includes the detailed allegations of Novartis’s discrimination against 22 women. Combined, their stories cover pretty much all of these bases. One recurring theme is the utter pointlessness of complaining through official channels about discrimination or retaliation. Woman after woman reports that she submitted a complaint to Human Resources, and Human Resources ignored it.
This is not surprising. Human resources originated as a corporate response to the labor movement: companies discouraged employees from organizing unions by offering them newfangled personnel management or human resources departments to address their needs, assuring workers that their employers would take better care of them than unions would. From the beginning human resources was corporate CYA, tasked primarily with protecting the company from threats including unions and legal liability, and only secondarily (if at all) with helping employees. Some companies have moved past that history and created human resource departments that actually support employees, but that is far from the norm.
The Novartis settlement agreement, like many other class action discrimination settlements, focuses on reforming human resources and the complaint process so that it works for employees and not against them. The settlement agreement devotes page after page to detailing the coming reforms.
If all goes according to plan these reforms will be a welcome improvement for Novartis’s women, even if they are only partially successful. Theoretically they will serve three goals: (1) ending ongoing discrimination against individuals who file complaints (“complainants”); (2) preventing retaliation against individual complainants; and (3) deterring discrimination at Novartis. These are all ambitious goals, and perhaps not entirely reachable, but the most implausible is the second. Imagine the scenario: a woman files a complaint with her employer about her male supervisor’s discriminatory behavior. Human resources can warn him not to retaliate; his own bosses can warn him not to retaliate; the company’s lawyers can warn him that retaliation is illegal; but still, realistically, he will retaliate. Maybe he will be smart and it will be subtle. He won’t pal around with the complainant. His performance evaluation of her will be less than stellar. When he has the opportunity to promote somebody, if there is someone else with credentials reasonably similar to hers, guess who will get the promotion. And all this is the best case scenario. A less smart, less subtle supervisor will make the woman’s work life a living hell.
Reforming the human resources department at a company rife with gender discrimination is both necessary and laudable, but it is not sufficient (nor is it all the Novartis settlement agreement provides for – that document is 68 pages long). Ending discrimination can only happen before discrimination starts. Read more in Part II.
A New Side to Work Anxiety
American workers have few rights in the workplace, and those afflicted with mental health disorders are among the most vulnerable. Any worker can be fired, demoted, transferred, etc. at any time for just about any reason. There are very few areas of refuge: employers can’t discriminate on the basis of race, color, national origin, sex, religion, age, and disability (on the federal level – some states and cities have additional protections, including marital status, sexual orientation, and others). Mental disorders can qualify as disabilities, but workers who suffer from them often miss out on the legal protections available to them.
Approximately 57.7 million American adults experience a mental health disorder, from a single bout with depression to schizophrenia, in any given year. http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Mental_Illness/About_Mental_Illness.htm. That is about one in every four adults. Not every one of these individuals is too disabled to work, and many of them need only a temporary leave. But for many reasons these workers do not get that accommodation.
The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability and requires reasonable accommodations of disabled employees, and the Family Medical Leave Act (FMLA) requires some employers to provide some employees with up to 12 weeks of unpaid leave if it is medically necessary. The FMLA applies only to employers with 50 or more employees (the ADA applies to employers with 15 or more employees), and only to employees who have worked for that employer for at least a year and worked at least 1,250 hours during the year before the leave.
A recent decision by the federal Court of Appeals for the Eighth Circuit held that an employer did not violate the ADA or FMLA when it invited an employee with an anxiety disorder to resign with two weeks of severance pay rather than granting him medical leave or a reasonable accommodation. (The case is called Kobus v. College of St. Scholastica, Inc.: http://www.ca8.uscourts.gov/opndir/10/06/091583P.pdf). The employee made two big mistakes, according to the court: first, he did not inform his employer that he had a disability or a medical condition that required leave; second, he did not request a leave.
On the surface those sound like good reasons: it isn’t reasonable to expect an employer to provide leave or another accommodation to an employee that it doesn’t know is ill, or to provide leave to an employee who doesn’t ask for it. But if you dig a little deeper this case reveals how the laws protecting ill and disabled workers let people with mental disorders fall through the cracks.
First, is it really any surprise that an employee wouldn’t tell his employer that he was suffering from a mental disorder? There is an enormous stigma in this country (at least outside of Manhattan) to admitting that one is seeing a therapist or is on psychotropic medication. Often people don’t tell their family or close friends these things. There is even less reason for them to risk the repercussions of telling their employers, who might question their ability to do their jobs or even demote or fire them rather than keep a “crazy” person around. The employee in this case testified that he didn’t tell his employer that he was taking medication because he “wasn’t real proud of that fact.”
But the employee did tell his employer about his illness. After he was diagnosed with an anxiety disorder and prescribed Paxil, he “began” (suggesting he did it more than once) telling his supervisor that he was suffering from anxiety and stress. In the recent past the poor guy had endured “the illness and death of [his] mother after an apparent medical mistake; the serious illness of his brother; his ex-wife’s cancer diagnosis; and news that his son had been diagnosed with bipolar disorder and had subsequently dropped out of college.” Despite all this, the court focused on the fact that he did not tell his employer that he was taking medication for his condition or that he was depressed. In contrast the Equal Employment Opportunity Commission, which is the federal agency responsible for enforcing the ADA, recommends that “an employee’s request for time off because he is ‘depressed and stressed’” should be “sufficient to put the employer on notice that the employee is requesting reasonable accommodation,” which could include a leave of absence. My guess is that “anxious and stressed,” which is what the employee in this case told his supervisor, would be sufficient for the EEOC, meaning that the employer did know that the employee was ill. But the federal appeals court can choose to ignore the EEOC’s recommendation, and so it did.
Second, the employee did request a leave, specifically a “mental health leave.” But he had no vacation or sick leave available, which illustrates an important gap in the laws: employers are not required to provide paid vacation or paid sick leave (although in this case he may have just used all his leave). Even for salaried employees, an employer can choose not to provide any paid leave at all. On top of that, the 12 weeks of FMLA leave (assuming one is even eligible for them) are unpaid. And, the FMLA allows employers to require an employee to provide a doctor’s certification that they are ill and cannot work, but seeing a doctor requires health insurance (in this case, the employee said that he did not have a doctor and therefore could not meet the requirements for FMLA leave), cash, or both. A sick employee who should take a leave but can’t afford to forego the income might rationally choose not to request a leave. That doesn’t mean the employer should lose a lawsuit because the employee didn’t request leave. It means that the laws need to change so that people don’t have to choose between their health and four weeks of pay plus the cost of a doctor’s visit.
The disabled (whether through a physical or mental disorder) are among the populations least able to absorb that loss of income. 32% of disabled adults fall below the poverty line. http://www.spotlightonpoverty.org/ExclusiveCommentary.aspx?id=0e1ca1a2-e921-4349-866b-273a2216c664. But people with mental disorders may be the worst off financially. People “in the lowest socioeconomic strata are about two and a half times more likely than those in the highest strata to have a mental disorder.” http://www.surgeongeneral.gov/library/mentalhealth/chapter2/sec8.html#introduction, Those disorders are serious: approximately 80% of people with depression find that it interferes with their ability to work. http://www.cdc.gov/nchs/data/databriefs/db07.pdf.
Workers need more protections in the workplace, and the most vulnerable need them most of all. For that to happen, we must change the laws. Individuals with mental disorders need more acceptance in society so they can ask for what they need and exercise their rights. For that to happen, we must change our minds. Visit www.nami.org for more information.