Category Archives: Discrimination

Pay Equity: What You Don’t Do Can Hurt You

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 16, August 6, 2018
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$2.66 million. That’s the amount of money the University of Denver has agreed to pay to settle claims it paid full female professors in its law school less than their male counterparts.

Despite warnings that pay equity was high on the Equal Opportunity Commission (EEOC)’s priority list, the institution of higher education allegedly paid female full professors in its Sturm College of Law an average of $20,000 less per year than male full professors for substantially equal work under similar working conditions. The salary disparity wasn’t confined to just a portion of the female full professors. According to the EEOC’s lawsuit, the salaries of all seven female full professors in the school were below the average salary paid to men.

How To Fire An Employee Returning From Leave

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
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An employee has major surgery and uses six weeks of Family and Medical Leave Act (FMLA) leave during recovery. While he’s absent, another employee takes on his duties and finds a major mistake had been made in a calculation on an important project and a number of assigned tasks were incomplete or poorly done. Normally, this level of performance would result in termination, but you can’t fire someone just returning from leave, can you? Isn’t that just asking for a lawsuit?

Terminating an employee who is returning from any type of protected leave can be tricky, but it’s doable if you have the right evidence and documentation. Courts will look closely to be sure the termination isn’t a pretext for illegal discrimination, but if the business justification is clear, they are apt to side with the employer.

Navigating the Maze of State and Local Employment Laws Concerning Sick Time and Family Leave, Criminal and Salary History Checks, Pregnancy and Lactation Accommodation, and Anti-Discrimination Protection for Medical Marijuana Users

Source: Alan D. Berkowitz, J. Ian Downes, and Jane E. Patullo, Employee Relations Law Journal, Vol. 43, No. 4, Spring 2018
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This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

State and local laws have long been an integral part of the web of laws that regulate the workplace. Among other things, such laws have for many years expanded the scope and reach of anti-discrimination laws, and imposed complex requirements concerning the payment of wages and other compensation issues. In recent years, however, state and local legislators seem to have widened their gaze to expand regulation into numerous new areas, including family and sick leave laws, prohibitions on consideration of criminal histories and prior salary information, and protection of the rights of pregnant and breastfeeding employees. Additionally, the dramatic proliferation of medical marijuana laws in many states has brought with it numerous challenges and issues in the employment area. This article provides a brief overview of some of the major trends in employment law regulation at the state and local level.

Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
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Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.

Intentional Invisibility: Professional Women and the Navigation of Workplace Constraints

Source: Swethaa Ballakrishnen, Priya Fielding-Singh, Devon Magliozzi, Sociological Perspectives, First Published June 25, 2018
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From the abstract:
Drawing on an in-depth case study at a large nonprofit organization, we find, in line with previous scholarship, that women professionals continue to face biased expectations at work and at home. We leverage data from interviews and participant observation to identify a new strategy that women use to navigate professional constraints created by the second shift and workplace double binds: “intentional invisibility.” Intentional invisibility refers to a set of risk-averse, conflict-avoidant strategies that women professionals in our study employ to feel authentic, manage competing expectations in the office, and balance work and familial responsibilities. We find women across the organization reporting intentionally remaining behind the scenes in attempts to avoid backlash and maintain a professional status quo. While intentional invisibility allows women to successfully navigate gender unequal professional and personal landscapes, it could simultaneously present an additional challenge to career advancement.

Related:
Why some women prefer ‘intentional invisibility’ at work
Source: Melissa De Witte, Futurity, July 30, 2018

Judicial Politics and Sentencing Decisions

Source: Alma Cohen, Crystal S. Yang, Harvard Law School, May 7, 2018

From the abstract:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

State Constitutions in the Era of a Shifting Supreme Court

Source: Rockefeller Institute of Government and the Government Law Center at Albany Law SchoolJuly 23, 2018

The Rockefeller Institute of Government and the Government Law Center at Albany Law School recently hosted “How Can State Constitutions Respond to a Shifting Supreme Court?” to examine the role state constitutions can play if the Supreme Court begins to roll back federal protections.

With the retirement of Supreme Court Justice Anthony Kennedy and the recent nomination of Brett Kavanaugh to take his place, the Supreme Court is expected to shift further to the conservative end of the ideological spectrum, with the potential for weakening or even extinguishing important constitutional protections.

Much attention is being paid to the possible implications for reproductive rights, protections for immigrants, affirmative action, environmental protections, LGBTQ rights, and other issues. So what does it mean for New Yorkers — or for states more generally? Although we often don’t think of state constitutions, many of them offer protections above and beyond what is provided in the federal Constitution.

What role can state constitutions play if the Supreme Court begins to weaken federal protections? In many ways, your position on the states-versus-federal rights issue often depends upon where you sit. Last year the Rockefeller Institute and Government Law Center at Albany Law School issued a report on the topic.

Related:
Protections in the New York State Constitution Beyond the Federal Bill of Rights
Source: Edited by Scott N. Fein and Andrew B. Ayers, the Government Law Center at Albany Law School and the Rockefeller Institute of Government, April 18, 2017

Increasing minority employment: Are you ready to recruit?

Source: Mary Lou Egan, Marc Bendick Jr., Employment Relations Today, Early View, First published: 23 July 2018
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From the abstract:
To increase employment from desired race or gender groups, employers nearly always first turn to recruiting from outside their organization. But a few years after such initiatives are undertaken, diversity numbers typically remain low or even decrease, turnover among recruits from the sought‐after groups is high, and the efforts are threatened by their recurrent cost. Employers need to break this fruitless cycle by thinking more strategically. Without an inclusive organizational climate that retains and fully utilizes minority employees after hire, simply recruiting more such employees will not lead to sustainable changes in workforce demographics. Drawing on empirical research, this paper describes six “red flags” that identify workplaces not ready to recruit. Only after organizational changes address the deficiencies identified by the red flags will the time for minority recruitment be at hand. But by then special focused recruitment may not be necessary; when employers change their workplace cultures to become truly inclusive, word gets around.