Delaware Employment Law Blog

Pharmaceutical giant Novartis recently defended a class action lawsuit filed by thousands of its female sales representatives alleging discriminatory treatment in pay and promotions. It was the largest gender discrimination case ever to reach a jury verdict. 

Novartis might need to stock up on their in-house supply of Diovan – their top-selling drug, which treats hypertension -- as there are surely some Novartis executives with elevated blood pressure following the recent verdict. The jury awarded $250 million in punitive damages, $3.37 million in compensatory damages for the 12 named plaintiffs, with compensatory damages for the remaining members of the class to be determined separately. Experts estimate that Novartis could pay as much as $1 billion when all is said and done, and that doesn’t include legal fees expended to defend the mega-lawsuit.

Given the staggering nature of this award, an increase in employment class action lawsuits is almost certain. Class action suits are far more lucrative for plaintiff’s lawyers to take on, than a single employment discrimination lawsuit where damages rarely exceed a few hundred thousand dollars. In light of this new era which is sure to dawn : it is essential that employers examine their practices and consider their potential exposure in this area now.

Prevention is the Best Medicine

Audit pay classifications and EEO numbers.

Review your pay structure. Particularly in light of the Lily Ledbetter Act, which opens up exposure for employers potentially dating decades back, employers must be confident that their compensation structure does not reflect any trends that could be construed as discriminatory. Also, review your EEO numbers – this is one of the first things defense attorneys will do when their client is hit with a class action. Be aware, though, that if you run the numbers and they don’t look good, you’ve got to be willing to take action. Failing to take corrective action after a self-analysis could make the problem worse.

Outreach/Diversity in minority communities.

Fostering diversity programs within the workplace are good business and help to create a good corporate image while recruiting minority applicants. Because the recruiting/hiring process can be ripe ground for class action lawsuits, outreach is an important preventative step.

Hold managers accountable.

Make sure managers whose statements or actions result in company liability are held accountable. Where managers are appropriately trained, and take inappropriate actions nevertheless, one approach is to have litigation costs taken from the bottom line of the division for which the manager is responsible.

Have an internal EEO reporting procedure and train all employees.

Make sure you have an internal reporting procedure for any employee who has an EEO complaint, and that all employees understand that procedure. Handling any such complaints appropriately and with due diligence often can effectively head off future litigation.

Be Afraid – Be Very Afraid

The proactive steps outlined above will go a long way towards preventing a discrimination lawsuit, whether individual or class action. But sometimes even the most diligent of employers cannot avoid lawsuits. In light of the massive award in Novartis, class actions discrimination suits are sure to become more common. What signs should you look for to indicate you may be headed for a class action?

∙ For-Cause Findings by EEOC

∙ Numerous charges with the same of similar allegations

∙ A pattern of irrelevant questions during management depositions

∙ Large numbers of employees asking for personnel files

∙ A significant increase in the number of internal complaints

If you observe any of these signs in your workplace, inform with your outside counsel immediately and brace for impact!

Bottom Line

No company is immune from a class-action lawsuit, and sometimes they are unavoidable. Nevertheless, taking the preventative steps and being attuned to the warning signs discussed above can significantly reduce a company’s risk of an employment class-action lawsuit.

Debrahlee Lorenzana has sued Citigroup, her former employer, alleging that she was unlawfully terminated because she was "too sexy for her job," to borrow a line from song by Right Said Fred. According to the New York Daily News, Lorenzana claims that she was subject to "improper comments" and reprimanded for dressing in a way that was "too distracting" to her male coworkers. She denies that she ever dressed inappropriately and complains that she's always been burdened with good looks--she draws attention from the opposite gender even when she's at the grocery store in sweatpants.

Oh, brother.

She is also quoted as saying that she refuses to "eat and gain 50 or 100 pounds because my job wants me to be the same size as everyone else."  Hmm.  I wonder if maybe she was fired for her inability to play well with others.  I mean, she sounds so charming, I can't imagine that all of the women in the office didn't adore her just as much as the men!

So what's the likelihood that her gender-discrimination claim actually has any merit?  Without having seen the complaint, I dare not even speculate.  On one hand, we've written previously about the increase of gender-discrimination suits brought by males and about how the courts seem to be expanding the protections of Title VII to include less traditional bases for such claims.  On the other hand, though, any perceived expansion has been in cases that evoke a great deal more sympathy than Ms. Beautiful's claims would likely evoke. 

It's one thing to have an individual who is tortured by co-workers for being too effeminate.  It seems that it would be altogether different to have an individual who has spent a lifetime fighting the heavy burden of being God's Gift to Men.  Maybe those of us not cursed with such beauty should just take a moment and count our lucky stars.

The trial in a class-action lawsuit alleging that Novartis Pharmaceuticals practiced sex discrimination against female employees has begun in a federal court in New York. The class of plaintiffs includes more than 5,600 saleswomen, who are seeking $200 million in damages. According to the New York Times, the suit alleges discriminatory pay and promotions targeting women, particularly pregnant ones.

It remains to be seen if the plaintiffs will be able to prove their case, but the allegations include some pretty shocking (and dumb) comments by managers, including my favorite, in which a manager reportedly told a saleswoman that he preferred not to hire young women, saying, “First comes love, then comes marriage, then comes flex time and a baby carriage.”

As we’ve long known, flexible schedules can play an important—often critical—role in work-family balance. Without the option, many women report they would not return to the workplace (at least for some period of time following their maternity leave) after having a new child. But the fact the option exists on the company books does not necessarily mean it’s an appealing one: in many workplaces they are offered, but not widely utilized because of the stigma associated with them. Other employees take advantage of them, but understand they’re a “career killer.” If the reported comment by a Novartis manager is true, it reveals a far more sinister possibility: the mere existence of flexible schedules may result in women being discriminated against from the outset, based on fear that they might actually use them.

As I’ve posted before, making an employment decision because of mere assumptions about a woman’s caregiving responsibilities and how that might affect her performance, is sex discrimination, plain and simple. It’s been labeled as Family Responsibility Discrimination or Caregiver Discrimination, and if it’s not based on actual performance, it’s illegal. So is failure to hire or promote a woman out of fear she might eventually utilize a firm’s flex-time schedule.

If employers are going to offer flex-time schedules, they can’t discriminate against the women who elect to use them. Even worse is treating women differently based on the mere possibility that they might use them.

Mikula v. Allegheny County of Pennsylvania is a new decision from the Third Circuit Court of Appeals, interpreting the Lilly Ledbetter Fair Pay Act (“the Act”).

Facts of the Case

Plaintiff Mary Lou Mikula was hired by Allegheny County Police Department as its grants coordinator in 2001. In September 2004, Mikula wrote a memo to the Police Superintendent asking him to change her title to “Grants and Project Manager” and make her salary equal to or greater than that of a male colleague whose title was “Fiscal Manager.” The fiscal manager was making $7,000 a year more than Mikula at that time. The county did not respond to Mikula’s request. In October 2005, Mikula renewed her request for a raise. The county again did not respond.

In March 2006, Mikula filed an internal complaint alleging gender and age discrimination, stating that she was paid $7,000 a year less than a comparable male colleague and that the pay discrimination had started when she was hired. She also filed a lawsuit in federal district court alleging that her rights under the Equal Pay Act had been violated. In August 2006, the County’s Human Resources department notified Mikula that it had completed its investigation of her complaint and did not agree with her allegations of discrimination.

The Timeliness Argument

In April 2007, Mikula filed a discrimination charge with the U.S. Equal Employment Opportunity Commission alleging pay discrimination based on sex under Title VII of the Civil Rights Act of 1964 (“Title VII”). When she received a right-to-sue letter, she added the claim to her federal court case. In response, the County filed a motion arguing that the Title VII claim should be dismissed because Mikula had waited too long to assert the claim.

Under Title VII, claimants in most states must file their discrimination charges within 300 days of the allegedly discriminatory act. The County argued that the pay decision had been made in 2001 when Mikula was hired, and that even if the court allowed an extension of time until 2004, when Mikula found out about the difference between her pay and the fiscal manager’s pay, she had still waited more than 300 days before filing a charge. Mikula argued that the Human Resources department’s decision in August 2006 on her internal complaint of discrimination was itself a pay decision and that she had filed a charge within 300 days after receiving the decision.

Continue reading "3d Circuit Revives Claim of Pennsylvania Worker With Lilly Ledbetter Fair Pay Act" »

In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII).

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

President Barack Obama this morning signed the first bill of his presidency, a piece of legislation known as the Lilly Ledbetter Fair Pay Restoration Act that makes it easier for workers to sue after discovering what they believe to be pay discrimination.  For a bit more detail about the potential ramifications of the new law, see Lilly Ledbetter Fair Pay Act Will Become First Pro-Labor Legislation of 2009, Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage, Equal Pay: Fair Pay Restoration Act Voted Down in Senate, More Fodder for the Fair Pay Debate, or A New Day for Employers.

The Lilly Ledbetter Fair Pay Act of 2009 has passed the Senate and could be on President Obama's desk within days.  The wage-discrimination statute, Senate Bill 181, reverses a decision by the U.S. Supreme Court in 2007, which narrowly defines the time period during which an employee can file a claim of wage discrimination.  This may be the first piece of legislation signed by the new President.  Obama has been a strong advocate for the legislation.  Lilly Ledbetter, the plaintiff in the lawsuit that inspired the legislation, was invited to the inauguration.

The bill was approved during the first week of the new congressional session, perhaps indicative of the momentum behind the expected pieces of labor legislation.

In Ledbetter v. Goodyear Tires, the case at the center of the legislation's history, the Court held that the discriminatory act, which starts the clock running on the time period to file a claim, occurs at the time of the discriminatory decision.  In other words, in a failure-to-promote claim, the date of the promotion decision is the date when the clock begins to run.  Ledbetter argued that the clock would begin to run each time a new paycheck was issued because each paycheck represented a new discriminatory act--the unequal payment of wages.  Ledbetter claimed that she did not know that she had been getting paid less than her male counterparts until a note was left in her mailbox at the end of her 19-year career with the company. 

Opponents of the law contend that it will effectively eliminate a statute of limitations period and could result in increased filings of unmeritorious lawsuits.  Employers will be hard pressed to "disprove" the decision- making process involved in a pay raise issued 20 years earlier. 

A middle ground, offered by Republican Senator Kay Bailey Hutchinson would have started the time period when the employee knew or had reason to know that discrimination was occurring.  Hutchinson said her alternative would protect both employee and employer. 

The alternative was rejected by women's-rights advocates, as the issue has become one largely divided on gender lines.  Women's-rights groups argue that the law is necessary to protect women from continued unequal pay.  Very little has been mentioned about the fact that the Ledbetter bill would apply to other protected classes, such as race, ethnicity, and national origin--not just gender.

What Other Great Minds Have to Say

Several e-law bloggers have already issued their insights on the legislation, so have a look at some of these posts to learn more about the ins and outs of what may be the first pro-employee legislation passed in 2009:

John Phillips at The Word on Employment Law, Fair Pay Act Ready to Become Law

Michael Moore at the PA Labor and Employment Blog, Ledbetter Fair Pay Act passed by Senate and awaiting Obama Signature

Jon Hyman at the OH Employment Law blog, Ledbetter passes Senate – President’s signature is next

Frank Steinberg at the NJ Employment Law Blog, Ledbetter Act Passes Senate

Ross Runkel at LawMemo, Lilly Ledbetter Fair Pay Act of 2009 awaits President's Signature 

Dennis Westlind at The World of Work, Senate Passes Lilly Ledbetter Bill 61-36

Dan Schwartz at the CT Employment Law Blog, Lilly Ledbetter Fair Pay Act of 2009 Passes Senate, 61-36; President Will Sign

Tracing the Story Back to the Beginning

And to read about the bill since its inception, see the following posts:

Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage

Equal Pay: Fair Pay Restoration Act Voted Down in Senate

More Fodder for the Fair Pay Debate

A New Day for Employers

Employers should stay tuned to what may be the first in a series of legislation that advocates for employees to the disadvantage of businesses.

The debate about equal pay is bound to continue in light of pending legislation like the Fair Pay Act and the Paycheck Fairness Act, which was passed by the House on July 21, 2008. Here are the nuts and bolts every employer should know about these important new developments.

The Fair Pay Act

The Fair Pay Act seeks to end wage discrimination against those who work in female-dominated or minority-dominated jobs by establishing equal pay for equivalent work. Under the Fair Pay Act, employers could not pay jobs that are held predominately by women less than jobs held predominately by men if those jobs are equivalent in value to the employer. The bill also protects workers on the basis of race or national origin. The Fair Pay Act makes exceptions for different wage rates based on seniority, merit, or quantity or quality of work.

The Paycheck Fairness Act

The Paycheck Fairness Act seeks to strengthen the Equal Pay Act of 1963.  The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense. In addition, the Paycheck Fairness Act calls for a study of data collected by the EEOC and proposes voluntary guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities.

Ledbetter Fair Pay Act / Fair Pay Restoration Act

Another interesting piece of pay-related legislation to watch is the Lilly Ledbetter Fair Pay Act / Fair Pay Restoration Act, which seeks to amend the Civil Rights Act of 1964 and other anti-discrimination laws to clarify at which points in time discriminatory actions qualify as an “unlawful employment practice.”  The Fair Pay Restoration Act seeks to change the results of Ledbetter v. Goodyear Tire & Rubber.  (For more information about the Ledbetter decision, see Equal Pay: Fair Pay Restoration Act Voted Down in Senate). 

Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid.   This is inapposite to Ledbetter, where the U.S. Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination, even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. The law further states that individuals may receive back pay as compensation for discrimination that occurred up to two years preceding the filing of a charge.

Three female attorneys filed suit against the New Jersey State Office of Attorney Ethics (“OAE”), alleging gender discrimination. The plaintiffs claimed that women were assigned to lower-grade positions than their male counterparts. According to the article on Law.com, males without law degrees, some without college degrees, were awarded higher ranked jobs than females with law degrees.

The suit was filed in March 2005 under the Equal Pay Act, Title VII of the Civil Rights Act and its state equivalent, the New Jersey Law Against Discrimination. The case settled in June and each of the three plaintiffs received $5,000 in back pay and a total of $135,000 in emotional-distress damages. This is a relatively small sum, especially given the number of plaintiffs and the involvement of a government defendant.

But what makes this settlement even more interesting are its conditions. The settlement agreement makes an express denial of wrongdoing by the defendants, which is not uncommon. Unlike suits settled with the Equal Employment Opportunity Commission, no remedial measures were required by the agreement, nor were the defendants required to implement any training programs or make any workplace postings.

Most significantly, though, are the provisions whereby the two plaintiffs who had resigned from their jobs during the lawsuit agree to never seek employment with the OAE. Last year, there was a bit of murmuring that the EEOC was going to take a formal position against such “banishment” clauses, also known as “no reapplication” or “no re-employment” provisions.

These provisions are of the highest importance to employers when settling a lawsuit brought by a former employee. If employers were prohibited from including this type of clause in settlement agreements, there would be a greatly decreased incentive to settle at all. Employers would risk the very real possibility that they’d pay a significant sum of money only to be taken “hostage” by an employee determined to inflict permanent suffering on his employer.

Lawyers have an image problem.  We're up against some serious stereotyping issues.  I can't tell you the number of times I've been asked, "What do you do," and replied, "I'm a lawyer," only to be met with good-natured giggling.  It happens a lot--especially on the weekends when I'm not wearing a suit and I look like a "normal person." 

I also hear, "You're too nice to be a lawyer."  What does that mean, really?  Is there actually a "niceness" qualification to practice law?  I don't recall that being mentioned when I went to law school.  Nor do I recall there being a question about my ability to be "sweet" on the bar exam. 

Apparently, I didn't take the same exam as the managing partner of Cohen Ponaini Lieberman & Pavane, an intellectual-property firm in New York.  A female attorney who was terminated from the firm has filed suit against the firm for gender discrimination and retaliation.  According to her complaint, the attorney was told that she would never make partner because the male partners were "uncomfortable" with her.  She alleges that she was reprimanded for being insufficiently sweet in her dealings with a paralegal. 

The court has ruled that the alleged comment is enough for the case to proceed.  In its opinion, the court wrote that the comment, if made, is sufficient to demonstrate that the partner had stereotyped women as "sweet and non-aggressive" and that the former attorney did not fit that stereotype.

As reported by the ABA Journal reports, the firm stands by the termination on the ground that the attorney was "insulting and unprofessional" in her dealings with others and that she'd had numerous personality conflicts with numerous staff members and other lawyers. 

I suppose that she could have been a royal pain to her co-workers and staff and, also, not be a very sweet person.  It's sort of implied, isn't it--that you're probably not seen as being sweet if you can't get along with others.  Just a guess. 

So did the managing partner make a mistake in his choice of adjectives?  If he'd called her a royal pest, there'd be no gender-discrimination claim.  If he'd called her something less flattering--a jerk, for example, he'd also not be getting sued.  But, if he'd called her the "b-word," that would be a different story, wouldn't it? 

I'm not sure how this lesson could be incorporated into supervisor training, though.  Do we need to compile a list of bad names that don't evoke gender bias?  Well, it's an idea.

NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

Dress codes prefer males over females.  Ok, maybe not. But it's hard to deny that men who work in jobs that expect traditional, corporate-minded attire, certainly have far fewer choices than women.  And fewer choices can mean fewer mistakes.  Let's face it, a suit is a suit is a suit.  Granted, men can make some pretty bad choices about their tie-shirt combos but it's quite different than selecting accessories like earrings, necklaces, scarves, shoes, and the list goes on.

I recently read a post by Laurie Ruetimann at Team Building Is for Suckers, which talked about an article in The WSJ  on the issue of women's choice for work wear and the effect it really has on their success.  Her post raised some interesting questions about whether there is a double standard when it comes to fashion choices by men and women. 

Among practicing attorneys, the belief that lawyers should "look like lawyers" remains firmly in place.  Even less conservative attorneys that I know would never consider going to see a client or giving a seminar in anything other than the traditional blue or black suit.  Brown doesn't cut it, for those of you who were wondering.

Personally, I have many times struggled with "what not to wear" as the show's title goes.  I, for one, take my fashion choices pretty seriously.  Ok, maybe even too seriously. But, knowing that I tend to be far more fashion forward than fashion conservative, I try to be especially aware that I don't cross the line--wherever that may be. 

The most grounding experience I've ever had regarding professional attire occurred before I ever was a professional.  The "memorable" and eye-opening encounter occurred during law school when I participated in a intra-school "moot court" competition (think debate team for lawyers in training).  My female teammate and I burned through our competition during the early rounds and suddenly found ourselves, unexpectedly, in the semi-finals. 

Our opponents, two men, were friends of mine.  They were also very good oralists and were taking the competition very seriously. The panel of judges were actually "real" judges, who volunteered their Saturday afternoon to attend the event, fire questions during our arguments, critique the speakers, and, in the end, declare the winners.  Our panel included two male and one female state court judges.  The men ranked significantly higher than the woman in the judicial hierarchy.

Our opponents went first and, without a doubt, were outstanding.  Then, it was our turn.  We gave an equally outstanding performance.  I was thrilled.  My family had come to watch and I was so proud to have made what I knew was a finalist-worthy argument.  I was excited to hear the critique of the judges but, honestly, did not particularly care whether we advanced or not. 

The satisfaction of performing at my best was satisfaction enough.

The judges gave our adversaries their critiques first.  As is the norm, they included both good and bad points.  Hearing the comments, I knew we were going to be declared the winners--all of the points where they had done poorly, we had performed at a top level. 

Finally, it was our turn and my teammate and I walked to the podium to hear from the judges. There was a true audience in attendance, too.  The family and friends of each of the four participants, as well as participants who had been knocked out in earlier rounds, and the hosts and volunteers running the event were seated in the auditorium style seats behind us.  I was beaming with pride.

The male judges spoke first. Each of their points were right on target.  They'd caught us when we'd struggled for answers or tried to evade their questions.  They commented on our demeanors and our use of eye contact. 

The female judge was the last to speak.  She began with my partner and then turned her comments to me.  She made a few, half-hearted introductory points, like, "Overall, your presentation was very competent."  Then the niceties were over.  She glared at me, looking over the rim of her eyeglasses, which sat perched at the end of her nose.  And, without emotion, she announced that we would not be proceeding to the final round. 

Without hesitation, she declared that she had voted for our opponents because I had not worn a skirt. 

A skirt. 

That's right.  I had worn a pants suit to the argument.  For no reason other than, at the time, it was the nicest suit I owned.  The one skirt suit I had was fairly worn and I wanted to make sure that I presented the best appearance possible. 

She explained in an almost angry tone that, if this was the real United States Supreme Court (instead of the mock trial version), would I have really shown up in pants?  She almost shuddered in disgust when she finished the sentence.  

Clearly, she went on, I had not taken this competition seriously.  It was a flagrant act of disrespect for me to make the fashion choice that I had made so flippantly. 

She continued on about the trials that the women before me had been forced to endure so that I could even attend law school today or have any shot at success in my chosen profession. She continued on. 

But, by that point, I was no longer listening.  I was fuming.  It took every ounce of self-control I could muster not to react.  I wanted to cry over the sheer humiliation I felt as she berated me in front of my mother, my father, and an entire room full of strangers.  More than that, though, I wanted to tell her that it was women like her that would force my daughters and granddaughters to continue to fight for true equality in the workplace.  Not the two men who sat beside her--they had been courteous and genuine when they spoke.  It was clear that they believed in each of the participants and felt a kind of true joy to see what would develop into the next generation of lawyers.

It was her, the only woman on the panel, and women like her, that the future generations had to worry about.

And what about now?  Now do I wear a skirt suit or a pants suit when I go before the Court?  I'll be honest and say that it is something I consider each and every time.

The so-called “anti-Mommy bias” has garnered a lot of attention recently. A type of workplace discrimination, “anti-Mommy bias” is also known as maternal profiling, or family responsibility discrimination. (See this recent article in the Cincinnati Enquirer and my earlier post on Family Responsibility Discrimination).

Groups such as the Center for WorkLife Law and 9to5, National Organization of Working Women, have reported alarming statistics regarding the increase in this type of discrimination. Kohl’s was recently hit with a multi-million dollar verdict (for allegedly discriminating against one of its managers because she was a mother.

Nevertheless, a recent survey suggests that the mommy bias may be more fiction than reality. According to the survey, only 15% of mothers say that becoming a mother has had a negative impact on their career, while 65% say that it has had no impact on their career path. If these survey results are correct, the problem may not be as widespread as it seems.

Nonetheless, given the national attention to this topic, and the EEOC’s focus on it (see EEOC’s Guidance on Caregiver Discrimination), I expect we will continue to see a rise in these types of claims. For tips on avoiding this type of claim, see the free corresponding handout, which can be downloaded from my prior post.

[H/T to Ohio Employer’s Law Blog]

Restaurants and hospitality organizations, beware--news of another seven-figure EEOC settlement with casual-dining franchise, Razoo's Cajun Cafe restaurants.

The EEOC announced on May 7, 2008 that it had settled a class-wide discrimination case filed against Razzoo’s, a chain of Cajun restaurants, with 11 locations in the Dallas/Ft. Worth and Houston areas.

According to the EEOC, Razzoo’s had a policy favoring women for bartender positions. The EEOC alleged that the restaurant sent managers a plan calling for an 80-20 ratio of women versus men bartenders. The Commission also cited an informal policy that did not allow male bartenders were to work “girls-only” events.

Razzoo’s agreed to split $775,000 among a class of affected male servers, bartenders and applicants, and to spend the other $225,000 either to hire a human resources consultant or to set up an in-house human resources department.

Good idea.