Delaware Employment Law Blog

Women with young children--bad idea to try to juggle a demanding job?  Or actually a great idea that, in the long-term, benefits the children who are raised to be independent and assertive?  Some famous women are discussing just this issue in the "wOwosphere," a "party designed as a website" and created, run, and written by sixteen "independent-minded women," including Candice Bergen, Whoopi Goldberg, and Lesley Stahl. 

MSN.com has some good excerpts of the continuing discussion.  Here are a few:

Candice Bergen: OK. At the risk of being politically incorrect, I think if you are going to commit to the decision to have a child, you owe that child your best. And I think the old saying "Quality time is better than quantity time" is a self-justifying adage that over-worked women use to assuage their guilt. A guilt I think is valid. . . . I always made a point of showing and telling my daughter that she was the love of my life and I think she benefited from that. Obviously I made huge mistakes. And there were times I wasn't there when I should have been. But not many. I do not think you can have it all without someone paying the price and that shouldn't be your child.

Whoopi Goldberg: The truth is it is very hard to balance career and family. If you have money, of course it's easier.  But it doesn't compensate for birthdays, graduations and the like. If you don't have money it is incredibly hard and you are constantly worried that you can't cover whatever costs you have. The truth also is that each family is different and it may be easy for some, except for the guilt of not fitting the perfect mother pattern.

Judith Martin: I have been answering these very questions for more than 40 years. During that time, there was a great wave of feminism, and middle-class mothers entered the work force in large numbers. (That poor mothers have always worked is usually overlooked.) Wouldn't you think that conditions might have changed just a little?

Then, as now, the working world was designed for people with no personal responsibilities, which originally meant men whose wives ran the entire domestic side of life for them. So both were short-changed: the mothers, who did unrelieved child-care during the years that they might have been building careers and were considered unemployable when the children had grown; and the fathers, who had little time to develop close relationships with their growing children. If anything, the work place is now worse, with ersatz socializing after hours and constant technological availability expected in many jobs. And then, as now, women who take care of their own children full-time were venerated but offered no help, while women who did it professionally were given little money and less respect.

Women On the Web is packed with information, conversations, news, and opinions all relating to topics that relate to and affect the modern American woman.

In time for National Work and Family Month, Families and Work Institute (FWI) released today full notes from conference calls it convened in September with policy leaders from Senator Obama's and Senator McCain’s campaigns.  

The calls focused on how, if elected, the two candidates would address work life issues ranging from sick leave to health care to early education and child care. “This is the first ever Presidential campaign in which both nominees have formally articulated their positions in this arena,” according to Ellen Galinski, President of FWI. While much has been written about how Vice Presidential candidates Biden and Palin manage their own work and family lives, and where Palin and Biden have been affected by work-life issues in the past, these calls move us from their personal to their policy stands on these issues. 

Among the questions addressed by the campaigns during the calls were:

• What are the work and family life issues the candidate feels are most important to address?

• What is the candidate’s position on workplace flexibility? What are the roles of the government, employers and employees in providing workplace flexibility?

• Should the Family and Medical Leave Act (FMLA) be changed? In what ways? Should it be paid? By whom? Should sick leave be established and paid? By whom and for whom?

• How would the candidate address issues of the time famine that so many employees experience?

• How does each candidate plan to address the impact of the gas crisis on commuting employees?  

• How can work life issues help address the spiraling cost of health care?

• What would each candidate do to help the low-wage working family? And how would your candidate address narrowing the gap between men and women’s pay for all workers, especially for older workers?

• What is the candidate’s position on education and care for the first three years of life for those families who need and want to work- and on universal pre-K?  What proposals does each candidate have for after-school care?

• What if anything, does either party plan to do to support the 45% of employees taking care of our growing elderly population?  

The full notes from the call with Senator Obama's campaign and with Senator McCain's campaign are linked here in pdf format.  These notes provide great insight into the positions of the candidates on work-life and work-family issues. 

Delaware is all a-frenzy with the announcement of our very own Senator Joe Biden as the presumptive Democratic nominee for vice president. If you’ve seen The News Journal over the several days, you’ve seen the almost front-to-back coverage of Joe. With Barack Obama still fighting to win over many Hillary Clinton’s women supporters, there’s been considerable focus in the media already as to Joe Biden’s record on women’s and work-life balance issues.

We’ve previously posted on Barack Obama’s position on women’s and work-life balance issues. What kind of work-and-family experience has Joe Biden had, both in his personal life and as a policy maker?

The Wall Street Journal’s blog “The Juggle” noted Biden’s personal family tragedy: the 1972 car accident which killed his wife and infant daughter and left his two sons badly injured. To care for them while continuing his political career, he commuted daily by train between Wilmington, Del., and Washington, never securing a Washington residence.

As Chair of the Senate Judiciary Committee in 1991, some alleged that he was too easy on Supreme Court nominee Clarence Thomas and too hard on Anita Hill, a former co-worker of Thomas' who had accused the federal judge of sexual harassment. Some even maintain that "he very self-consciously tried to shore up his support from women voters after the Anita Hill episode."

Although Biden is perhaps best known for his focus on foreign policy, he has also had a hand in legislation targeting work-and-family issues. According to a cached version of Biden’s senatorial campaign Website (which since this weekend has automatically referred visitors to the Obama-Biden campaign site), the Senator is a co-sponsor of the Healthy Families Act, which would require employers with more than 15 employees to offer seven paid sick days a year. In the 1990s, he was the primary sponsor of the Violence Against Women Act and supported the Family and Medical Leave Act, which guarantees workers up to 12 weeks of unpaid leave to care for a family member.

The legal profession has been unable to retain women at rates comparable to other knowledge-based and professional industries.  There often appears to be just two choices for women with families--work around the clock and forgo quality time at home, or step off the partnership track permanently.  Many law firms are working to broaden the range of choices.  Flexible work arrangements are quickly becoming the most successful choice offered. 

Working Mothers Magazine published its list of the 50 Best Law Firms for Women, which acknowledges firms working hard to retain female attorneys.  Flexible work schedules are the most common initiative but not the only one.  These firms host networking groups for female lawyers, have formal mentoring programs for senior female associates, and provide management training--all with the goal of helping make more women reach partnership. 

The winning features of each of the firms are listed in this article (pdf): 

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.

Working families, especially women who work outside the home, want to know what the presidential candidates have on their respective agendas that will affect the workplace.  Barack Obama has begun to address some of the employment-related portions of his campaign platform.

On July 28, 2008, Barack Obama unveiled the blueprint for his Plan to Support Working Women and Families. In it, Barack promises many changes to improve the lives of working women in America – among them include:

• Expand FMLA coverage to cover employers with 25 or more employees (currently it only covers employers with 50 or more employees) and to cover additional purposes including participation in children’s school-related activities
• Encourage states to adopt paid leave with fund to assist states with start-up costs
• Protect against caregiver discrimination by enforcing the recently enacted guidelines on Caregiver Discrimination
• Expand flexible work arrangements with the federal government leading by example on flexible work arrangements and telecommuting.

If Barack wins the presidency, it will be interesting to see how many of these agenda items he follows through with. Obviously, it could mean big changes for American employers. Stay tuned!

Women and men are leaving the workforce at an equal pace. A new study shows that there is no gender inequality in at least one area of today's workforce--how many are leaving it.  Men and women are leaving the workforce for the same economic reasons: job elimination; salary reduction; or lack of equivalent work. 

The gender differences appear after an employee leaves the workplace.  Women "stay home with the kids" but men are simply "unemployed."  Women are more inclined than men to say that they have dropped out of the workforce to run the household or stay home to raise children.

As reported by the N.Y. Times, in Women Are Now Equal as Victims of Poor Economy, if pushed from the workforce because of economic factors, women are less likely to return to work.  According to Lawrence Katz, a labor economist at Harvard, wage stagnation causes them to stay away.  The median pay for women in the 25-to-54 age group has fallen by 20 cents in the past three years, bringing women's pay in at just about $2.00 less than men. 

The industry most affected is manufacturing, a sector where women could earn good wages without the educational or professional backgrounds required for equal-paying jobs as knowledge workers.  But women who have been removed from the manufacturing industry--whether by choice or by market changes--will likely face difficulty if they try to return.  Technology advances have caused the manufacturing job segment to shrink, affecting both genders. And the pay has continued to decline.  Women may have to consider retraining to work in other sectors of the economy if they desire to return to to the workplace in the future.

Women in America are having babies at a considerably higher rate than our European counterparts. So is there something special about being a mom in America that makes it more appealing? And how does the high American birthrate jive with the fact that a high proportion of American women are in the workplace, where the work/mother balance is not eased by government benefits provided in some European countries?  The saying “nothin’ more American than Mom and Apple Pie” is apparently more appropriate than ever as we approach this Fourth of July holiday.

A recent article in the New York Times titled," No Babies,"  discusses some of these questions and points to some possible answers. The article points out that the United States has one of the highest birthrates of almost anywhere in the developed world – an average of 2.1 births per woman. European countries discussed in the article range from 1.3 to 1.7.

I recently posted a Family Responsibilities Discrimination Update, in which I wrote about WorkLife Law’s study about flexible work statutes in other countries. The study suggests that the United States would be wise to follow some of our more enlightened European brethren when it comes to employers’ accommodation of working mothers.

If that’s true, and the “balance” that America’s working moms are forced to strike is a more difficult one than that in many European countries, one would expect a natural consequence to be that American women to have fewer children than their European counterparts. If American working women enjoyed the benefits of state-funded childcare, liberal maternity leave policies, and statutory flexible schedules, just to name a few—wouldn’t we have more children?? Not necessarily.

The article states that within Europe, the statistics seem to suggest that the more juggle-friendly the country, the higher the birthrate tends to be. So how do we explain the U.S., which has a healthy birthrate of 2.1, despite offering relatively little government child-care assistance?

There are various hypotheses regarding the difference. The author of the article suggests that the key seems to be the flexibility of our labor market and workplaces, coupled with social mores that increasingly encourage fathers to take an active role in child rearing. In Italy, where there are traditional views about gender roles, the birthrate is only 1.3, whereas in the Netherlands where fathers share more of the traditional child-rearing roles, the birthrate is 1.7. In other words, women whose partners change the diapers, pick up kids from soccer practice, and clean up the living room, tend to have more children than those who don’t.

So, although the U.S. government offers us little in the way of social services to manage the load, our society supports the notion of women in the workplace, and our spouses (apparently) help to lighten our load. So what are we complaining about?

See Prior Post:

Family Responsibilities Discrimination Update

The U.S. Department of Labor (DOL), Women's Bureau will offer a free teleconference on June 19 2-3 pm EDT.  The topic of the free teleconference is Flex Options, Generation Y . . . What Do They Really Want. The DOL's website describes the program as a talk from the perspective of large and small businesses – and Generation Y employees – about the roles that workplace culture, flexibility and career development play in recruiting and retaining the best talent.

The three speakers include Ann Ivey, of Anna Ivey Consulting, a former lawyer and dean of admissions at a top-ten law school, Ivey now focuses on admissions consulting. 

Elizabeth Kennard is a specialist for Starbucks' Emerging Workforce Center of Excellence.  Kennard's responsibilities include the development of workplace flexibility and multigenerational workforce strategies.

Dennis Loney is the Employment Practices Specialist at Recreational Equipment, Inc. (REI), working to ensure that the co-op's practices are cutting-edge and aligned with its values. 

This is a very hot topic right now and seems to be infiltrating more and more areas of the business world.  You can register for teleconference through the following link:

Women's Bureau (WB) - Flex Options Teleconference Call - Generation Y …. What Do They Really Want

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.

Flexible work schedules (aka "alternative work schedules" or "flextime schedules") enable employees to work at varying times instead of the typical 9 to 5, 8-hour workday. This arrangement became popular as more career-women found they need some flexibility to deal with the hectic schedules of their families.  Not inclined to forego either, they forged the frontier of alternative schedules.  The future of flextime remains unclear.

A few days ago, my colleague, Adria Martinelli, posted on the results of a recent survey (New Employer & Workplace Study on Flexible Schedules), which indicate the decline of flexible work schedules.  The survey reflects statistics from the last 10 years and reflects employers of various sizes located across the country. 

Adria raised an excellent point--is the decline in alternative schedules linked to the sinking economy?  Certainly, one can imagine that, right or wrong, some employers may believe that it is more costly to employ workers on a flextime program. 

Historically, there has been a common theory that it was not profitable to use this model because of the cost of overhead per employee.  In other words, every employee, regardless of whether they work 60 or 28 hours per week still needs an office or workstation and are still entitled to benefits such as health care and employer-sponsored savings plans.  It was thought that the administrative costs incurred in running the business remained flat while the bottom line earnings of the company could decrease as more employees worked less time.

But what if the troubled economic times actually caused an increase in flextime or alternative working schedules?  As the cost of gasoline has risen, so has the cost of living.  The American workforce has had to become more and more cautious about their expenditures, some employees even taking second jobs to stay afloat in the rocky financial waters.

To cut the costs associated with the daily commute, employees have started carpooling, taking public transportation, and increasingly turned to more gas-efficient cars instead of the beloved SUV.  But what if these measures are not enough?  How many more alternatives can there really be for employees overwhelmed by the cost of fuel?

One idea that may surface in the not-so-distant future is an alternative work schedule.  A four-day workweek, where workers pack 10-hour workdays into the first four days of the week and have the fifth day off, could become a popular option for the cost-conscious commuter.

In that case, a flextime schedule would save travel time (as much as 2 hours a week for many employees who drive into a city from the suburbs), gas money, and would give them an opportunity to work on that "work-life balance" they've heard so much about. 

Family Responsibility discrimination (FRD) and gender discrimination are the targets of many advocacy groups who work to promote family-friendly workplaces.  WorkLife Law, 9to5, and Families and Work Institute are just some of them. Families & Work Institute released a study on May 21, the 2008 National Study of Employers, which followed ten-year trends in U.S. workplace policies and benefits. The results were mixed.

Employer Study on Flextime & Alternative Work Schedules

The study revealed good news and bad news for employees seeking flexible working conditions. 79% of employers now allow at least some employees to periodically change their arrival and departure time, up 10% from 10 years ago.

But off-ramping, which allows employees to move from full- to part-time work and back again while remaining in the same position or level is down 10%.  In 1998, 57% employers reported that they permitted off-ramping. Today, only 47% answered this question affirmatively. This may well be attributable to a failing economy and employers looking to cut the bottom line.

Not surprisingly, the study found that the presence of women in senior positions correlated with a more flexible workplace. It makes sense that if the people in charge require flexible schedules, they might be more likely to provide them for their employees.

What, if anything, do these findings mean for employers? There is no law that requires employers to allow flexible work schedules.  (Well, not yet anyway. This may change if the above advocacy groups have any say about it!)   So why would you make these special accommodations, especially when it appears that their popularity is on the decline?

1.  Workplace Flexibility Increases Profits

The first and most important reason is increased profitability.  It makes good dollars and cents sense when you look at the economics related to the advancement and retention of women and minorities. It is an undeniable fact of the modern workplace: women are a significant part of your potential workforce. Particularly in professional fields, employers have spent lots of time and money training female employees.

Often, any costs involved in permitting flexible work arrangements are far outweighed by the cost of hiring and training someone else to do the job. Therefore, many employers have decided it’s well worth the investment to provide a flexible schedule in order to retain an employee for the long haul.

2.  Flex-Time Translates to Risk Avoidance

A second reason is the potential for litigation surrounding the flex-time issue. Right now there is nothing illegal or improper about denying flex-time if its denied across-the-board for male and female employees. However, many of the advocacy groups have threatened to file a disparate treatment case with regard to flex-time denial, arguing that it unfairly impacts female employees.

When the right case comes along with compelling facts, you can be assured that such a case will be filed and employers everywhere will start to jump on the flex-time bandwagon.

3.  Retention Linked to Flexible Work Schedules

Put yourself ahead of the pack and make your workplace an “employer of choice” by considering these flex-time schedules and off-ramping options now. These alternative work schedules are run-of-the-mill options among the companies ranked in the top 100 Places to Work.

Additional Resources:

Family Responsibility Discrimination (includes free summary of FRD)

Mommy Bias- Truth or Fiction?

Pregnancy Discrimination Claims on the Rise

Pregnancy Discrimination FAQ

Maternal Profiling

Testing Your Pregnancy Discrimination I.Q.