Looking a Flexible-Schedule Gift Horse in the Mouth
Posted by Adria B. Martinelli On March 20, 2009 In: Alternative Work Schedules , Women In (and Out of) the Workplace , Women, Wellness, & Work-Life Balance
Flexible schedules is a topic of particular interest to me, in some part, because I am the grateful beneficiary of one. I commend employers, including my own, who have made the enlightened and informed decision to offer this benefit. It's a decision that I firmly believe will pay dividends in employee loyalty and ultimately save the employer money on hiring, retraining, etc.
Raising happy, healthy, adjusted children is the responsibility of our entire population, and the burden of doing so should not rest on the mother’s shoulders alone. However, the United States, unlike other industrialized nations, has little legislation to promote this ideal. Absent the FMLA, permitting new parents 12 weeks (unpaid) to bond with their children, and the Pregnancy Discrimination Act, which prevents employers from discriminating against women on the basis of their pregnancy, accommodations or benefits to assist new mothers in balancing their work and families are left largely to the employer’s discretion.
WorkLife Law has advocated aggressively and effectively on behalf of working mothers, suggesting litigation through existing statutes where possible to remedy inequities with respect to mothers in the workplace. In part due to their efforts, the EEOC issued its guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities , which helped to focus employers and EEOC investigators on subtle biases about the commitment of working mothers to their job responsibilities, that may result in actionable discrimination cases.
A recent “Employer Alert” from WorkLife Law, however, has taken it too far, suggesting the following:
[P]ay discrimination claims can arise in the context of reduced hours employees. Consider the female employee who returns from maternity leave and adopts a part-time schedule. She later learns that she is paid at a lower rate than a full-time male employee who performs similar work. Employers often fail to consider whether their pay decisions with respect to employees on a reduced schedule may be discriminatory. Yet, the majority of employees on reduced hours schedules are women, typically mothers.
Thus, WorkLife Law suggests that a potential lawsuit may lie for women who are the beneficiaries of a part-time schedule but feel they are being paid at a “lower rate,” whatever that means. Most “flexible schedules” are afforded to professional woman on an annual salary. It goes with out saying that in exchange for a “reduced” or “flexible” schedule, women on these schedules accept some kind of salary cut. It is not always easy to quantify, but it is anticipated that a woman working fewer hours accepts less pay.
What often happens is that women on “reduced” schedules end up producing the same workload, or accomplishing the same tasks than their (predominantly male) co-workers do on a full-time schedule, either by working more than their agreed hours (perhaps at home), or simply by being more efficient.
Addressing this inequity through litigation is the wrong answer. First, it is unlikely to be successful. Flexible schedules are a benefit, currently left to the sole discretion of the employer. As long as they are offered to men and women alike, the fact that women who chose them may then suffer some unfairness in pay scale is not likely to be actionable. Courts have routinely held in other contexts that where a benefit, or lack thereof, may disparately impact one sex or the other, as long as the benefit is applied uniformly to both sexes, it is not discriminatory.
For instance, employees have litigated against employers who have failed to provide medical coverage for infertility treatments or even birth control, arguing that this unfairly impacts women. Although such coverage clearly impacts women more than men, the vast majority of courts have held that as long as the coverage was gender-neutral, i.e., no coverage of infertility treatments for men or women, it did not violate Title VII.
Second, there is an easy answer for employers if they are faced with this litigation: no more flexible schedules. The fact is, there are always going to be inequities as to pay in the workplace. There are always workers who will say “I’m doing more work than my co-worker and getting paid the same.” Just because this feeling may occur in the context of a flexible work schedule does not make it a violation of Title VII, nor do I think the beneficiaries of flexible schedules ultimately would benefit from this approach.
Unless or until legislation is passed addressing flexible schedules, the best way to address perceived inequities in pay is not through litigation.
Click here for previous posts on the topic of Flexible Work Schedules.
Comments
Posted by: Consuela Pinto | March 23, 2009 8:50 PM
Adria, congrats on your successful flexible schedule and thanks for the mention of our Employer Alerts. I want to clarify a couple of things. As may be evident from the title, our Employer Alerts are advisories for employers, giving them updates about laws and rulings in the family responsibilities discrimination area that they should be familiar with to avoid liability. I am both the author of the Alert and a management-side employment attorney, and I want to be clear that the purpose of the Alert is not to advocate for litigation against employers.
The topic of discussion in the Alert you are referencing was the recent passage of the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act), which many organizations and attorneys on both sides of the issue agree will lead to an increase in the number of pay discrimination claims and calls for increased vigilance on the part of employers.
In keeping with its mission to eliminate FRD through education and prevention, we provided an example of how a pay discrimination claim may arise in the FRD context. The example of a female part-time employee who is paid at a lower rate than a full-time employee performing similar work is based on the decision Lovell v. BBNT Solutions (295 F. Supp. 2d 611 (E.D. Va. 2003); Lovell v. BBNT Solutions, 299 F. Supp. 2d 612 (E. D. Va. 2004) (plaintiff’s motion for reconsideration denied.)) After Lovell, a pay structure that pays part-time employees less than a proportional salary (i.e., 80% the salary for a full-time employee in the same or substantially familiar position for 80% of the hours) violates the Equal Pay Act (EPA). (The Ledbetter Act does not apply to the EPA. However, the holding in an EPA case may apply in a Title VII pay discrimination claim, which is impacted by the Ledbetter Act.) Thus, the potential for liability on the part of an employer is very real.
The Alert outlined steps employers can take to prevent liability for pay discrimination claims (i.e., avoid litigation). These steps included: (1) periodic compensation audits to determine whether pay decisions have an adverse impact on a protected category of employees, including women on reduced schedules; (2) properly documenting compensation policies, including the factors to be considered when making compensation decisions and the reasons for individual pay determinations and (3) implementing a centralized compensation process whereby Human Resource professionals review all compensation decisions before they are finalized.
WLL is a nonprofit research organization that seeks to eliminate family responsibilities discrimination in the workplace. WLL works with employers, employees, attorneys, legislators, journalists and researchers to identify and prevent FRD. For employers and their attorneys, WLL has developed a number of resources, including prevention checklists, key case lists, monthly e-mail alters, and training programs.
Consuela Pinto
Senior Counsel
Center for WorkLife Law
Posted by: Adria Martinelli | March 24, 2009 11:09 AM
Thank you for your comment, Consuella. I applaud the work that WorkLife Law is doing, and think that the Employer Alerts are useful as well as thought-provoking. Your recommended steps for employers to avoid liability are well-advised. Keep up the good work over there!