Gender bias in the workplace is the subject of hundreds of scholarly articles and even more cases by courts.

But a recently-published study looked at whether the working status of a married man affects the man’s attitude of women in the workplace.

The conclusion? It’s not pretty.

We found that marriage structure has important implications for attitudes, beliefs, and behaviors related to gender among heterosexual married men in the workplace. Specifically, men in traditional marriages—married to women who are not employed—disfavor women in the workplace and are more likely than the average of all married men to make decisions that prevent the advancement of qualified women.

Results show that employed men in traditional marriages tend to (a) view the presence of women in the workplace unfavorably, (b) perceive that organizations with higher numbers of female employees are operating less smoothly, (c) perceive organizations with female leaders as relatively unattractive, and (d) deny qualified female employees opportunities for promotions more frequently than do other married male employees. Moreover, our final study suggests that men who are single and then marry women who are not employed may change their attitudes toward women in the workplace, becoming less positive.

So, are married men with stay-at-home wives ogres in the workplace — walking around mindlessly discriminating against women? Not quite, say the authors:

It is entirely possible that men in traditional marriages are unaware of their implicit gender biases, and their implicit attitudes about women in the workplace may be operating at an unconscious level. It is also possible that they may perceive their explicit biases to be privately held, and they may hold the erroneous belief that these explicit biases have no effect on attitudes or behaviors of consequence in the workplace. Either way, it is conceivable that men in traditional marriages are not intentionally being punitive toward women in the workplace

But the notion that even men who don’t show any “outward” signs of hostility towards women may still discriminate against them is still unsettling.

Even if you disagree with the premise, it’s still an interesting study that was brought to my attention by a column in this morning’s Hartford Courant.

So what’s an organization to do? Well, refusing to hire married men with stay-at-home wives is not the solution, according to the study’s authors.  Instead, the study suggests that an emphasis on diversity can blunt the effects of this unconscious bias.

A critical response…  is to establish responsibility for diversity. …  According to Kalev, Dobbin, and Kelly (2006), responsibility can entail (1) assigning accountability for setting diversity goals, devising means to achieve those goals, and evaluating progress; and (2) appointing full-time staff members or creating diversity committees or task forces composed of people from different departments, professional backgrounds, and management levels to oversee diversity initiatives, brainstorm to identify remedies, and monitor progress. Of course, these forms of responsibility pertain to promoting the representation of any protected class of workers, not just women, and as we have urged, they should not focus on men embedded in traditional marriages but instead reflect an awareness of where subtle prejudices and negative stereotypes may lie.

To be sure, even the study’s authors acknowledge the limitations on their research, noting that “we need to exercise some caution in interpreting our results.”  The authors go on, for example, to note that “While our results are consistent with the proposition that being in dual-earner marriages activates more egalitarian values in male employees, we had longitudinal data to support this hypothesis in only one of the studies.”

So, the study isn’t proof that discrimination is running rampant in Fortune 500 companies. But it is a reminder that despite all the progress that companies have made to fight discrimination, it remains important to be vigilant.

Let’s play the “law school hypothetical” game for a minute.  (I know, not as exciting as a cat being chosen in Monopoly, but bear with me.)

You hear the following allegations:

  • An gay, male employee starts works as a teacher in an “New Beginnings Alternative” program at a public school.
  • During his employment, he is subject to derogatory statements by a fellow teacher, a school police officer and a supervisor.
  • Allegedly a supervisor tells a social worker that the employee is “too flaming” or “too flamboyant”. Also, a fellow teacher is alleged to have said to the employee at a department meeting that “You are so overdramatic, you are being a bitch just like a woman.”
  • The employee is criticized for not being a “team player” and that his “apparent proneness towards using sarcasm and humor (that is often not understood by others) must change.”
  • The employee believes that the supervisor’s comments regarding how he and others cannot understand the employee’s sense of humor “stems from their divergent social views and pervasive stereotypes on gender and sexuality.”
  • Ultimately, the employee is informed that his contract may not be renewed which does, in fact, lead to a non-renewal of the contract.

Assuming, as you must for the moment, that the allegations are all true, does the employee have any claims? If so, what are they?

Continue Reading Can Being Called “Too Flamboyant” Be Basis for State Gender Discrimination Claim?

Over the last week, two unrelated stories caught my eye.  For employers, they are a reminder that claims of pay inequality based on gender are still something to be concerned about. 

Photo Courtesy Library of Congress c. 1943

The first story is that Governor Malloy announced plans for a new study to examine “factors that contribute to the gender wage gap in Connecticut’s workforce.” 

The study will be run by  new Connecticut Department of Labor Commissioner Sharon Palmer and Department of Economic Development Commissioner Catherine Smith.  The Governor has asked the commissioners to make recommendations on the issue by October 2013.   

I’ve talked about this issue before; there are some who believe that the wage gap is overstated.  But the study will make headlines this year and this renewed focus in Connecticut on the issue should have employers revisiting their own practices.

The second story illustrates the claim in much more real world terms and shows the perils of trying to navigate your way through such claims. 

In Morse v. Pratt & Whitney, decided last week, a federal court — among other issues — denied an employer’s motion for summary judgment on an Title VII unequal pay claim.

Continue Reading Gender Inequality Claims Make Headlines in Case and in New Study

While Huey Lewis may croon about "The Power of Love", I choose to praise "The Power of the Internet" today. 

Case in point: On Friday, the Hartford Courant came out with a provocatively titled article: "Gender Wage Gap in Connecticut  is Higher Than National Average."  The article raised a lot more questions than it answered and it’s through the power of the Internet that we can dig deeper. 

And so, with all the talk about the Paycheck Fairness Act this week, you’d probably think that the article concludes that gender discrimination is the main culprit in this statistical disparity.  

And you’d be wrong.

Indeed, according to a statistician for the U.S. Census, employment discrimination isn’t a factor:

Jennifer Day, a statistician with the U.S. Census, the source for all this data, detailed the gaps within jobs. The lingering effects of employment discrimination 35 and 40 years ago isn’t the answer — the proportion of women among the older workers in a job did not determine the relative pay, she found.

So, if employment discrimination isn’t the answer, what is? For that, I sent a tweet to Stephanie Thomas, Ph.D., who runs The Proactive Employer blog in her spare time as an economic and statistical expert.  Stephanie has written before about these statistics and why using these numbers to support the Paycheck Fairness Act is inappropriate. To Stephanie, it’s an issue of using numbers for advocacy without understanding their meaning.

Stephanie posted her response to my tweet this morning.  As she notes, the pay gap issue isn’t as simple as comparing "the typical earnings of men and women and subtracting." Multiple factors are at work, including "industry, occupation, education, work experience, union status, hours worked, and the choices made by individuals…." 

So where might  the answer lie? As she notes, "The answer to Connecticut’s larger-than-typical gender wage gap may lie in its larger-than-typical gap between the rich and poor. As noted in the article, ‘Famously, the state has more than its share of super-earners — and they tend to be men.’"

Stephanie goes on to give a great example explaining the differences between "averages" and "medians" and why and how the statistics can get manipulated.  It’s definitely worth a read.

What conclusions should we reach about this? Numbers themselves may not tell an entire story. Thus, the next time you hear about the gender wage gap use the power of the Internet to get a complete story. 

CT News Junkie reports this morning that the CHRO has found "reasonable cause" in the gender discrimination complaint filed by former Fox 61 Reporter Shelly Sindland last year. 

According to the report:

Anita Zakrzewski, a Connecticut CHRO investigator, concluded last month in a 23-page report that “the information gathered through the investigative process reveals that workplace conduct occurred that was unwelcome and offensive.”

Topping the list of unwelcome and offensive for Sindland and former anchors Rebecca Stewart and Susan Christensen was the “Naked News” and “Big Boob Fridays” discussion.

For detailed background on the matter, see my prior posts from last year. 

Based on the allegations that were raised, it probably is not an unexpected finding at this stage. What is a bit surprising thus far is that Ms. Sindland has chosen to stay at the state agency rather than merely ask them for a release of jurisdiction to proceed in court.  She may still do so, and perhaps believed that a preliminary finding by the state agency might bolster her position for settlement purposes.

In any event, barring her filing the case in court, the case now potentially proceeds to a public hearing where evidence will be presented to a human rights referee who will oversee the matter.  

 

— There are three kinds of lies: lies, damned lies, and statistics

                                                                                     —– Mark Twain

Given that Mark Twain is one of Hartford’s most famous residents (now "celebrating" 100 years since his death), it seems appropriate to invoke another one of his famous sayings.

Time and again, statistics keep getting raised to the forefront of public discourse. This time, it’s in the context of why we need the Paycheck Fairness Act — a proposed bill in Congress that I’ve discussed before.

Notably for those in Connecticut, the bill’s lead sponsor is Representative Rosa DeLauro (D-Conn3.)

This week, Stephanie Thomas — an economic and statistical consultant specializing in EEO issues — published a thought provoking piece about one statistic being raised in support of the bill:  that women still only earn 77 cents for each dollar earned by men.

As Stephanie notes, when most people hear that statistic, they assume that gender discrimination must be the reason for the difference. But Stephanie says that discrimination cannot be the reason when you look at the data.

She goes to the original source for the statistic and found that well over half of the difference can be explained by non-discriminatory factors:

[In the study, the researchers] found that 59% of the gender differential could be explained by non-discriminatory things: experience, chosen occupation, chosen industry, etc. So the "77 cents" statistic can’t be due to discrimination:

  • Estimated wage gap based on "77 cents" statistic = $0.23 per hour
  • Amount explained by nondiscriminatory factors = $0.14 per hour
  • Amount NOT explained = $0.09 per hour

According to [the study], the most that could be attributed to discrimination is $0.09 per hour. And this assumes that their model accounts for ALL legitimate nondiscriminatory factors.

She notes that there may be other reasons for the difference as well such as negotiating skills.

Of course, that’s not to say that there may not be yet compelling reasons for changes in the law. But as Stephanie is wise to point out — using this statistic as the basis isn’t one of them. 

(Photo courtesy of Library of Congress Flickr photostream)

Today, The New York Times reported on a privileged memo sent to Wal-Mart from its outside lawfirm back in 1995 that "found widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores and urged the company to take basic steps — like posting every job opening and creating specific goals to promote women and minorities — to avoid liability." (For more background, see this post by the Workplace Prof Blog.

Wal-Mart in response has said that the memorandum was part of a investigation conducted by the lawfirm and that the report was a privileged communication between its lawfirm and it.  No doubt it will argue that its disclosure — or use in a pending sex discrimination class action — would be improper.  

But it raises another interesting question that some company attorneys might be wondering about: What ever happened to the "self-critical analysis" privilege that companies tried to use to insulate themselves from critical memorandum like this one? The rationale behind the theory developed in the medical field, where – for example – hospitals were encouraged to review their safety protocols and procedures after a significant event with the idea that such studies improved safety and should be encouraged.

In the employment context, the U.S. Supreme Court seemed to limit that argument back in 1990 in the University of Pennsylvania v. EEOC case where the court rejected the application of an "academic peer review privilege" in a discrimination suit against the University of Pennsylvania. (Amazingly, I worked for the school newspaper that covered the case at the time.)   That case has been cited in many lower court decisions rejecting the self-critical analysis privilege.

The privilege still lives on in some instances, at least in theory.  (See also this case from the Connecticut Supreme Court in 1999 about the privilege in the medical context.) But it’s very difficult to establish and its hard to imagine that Wal-Mart would get much traction out of this argument right now.

Should the privilege be advanced further? Perhaps, but until and unless Congress or state legislatures act to explicitly create such a privilege, courts are going to continue to be reluctant to act upon it.  Companies should certainly not anticipate that this privilege is going to apply in most circumstances.

For now, I’m reminded of an oft-quoted rule: Never put something in writing that you don’t want to see on the front page of The New York Times (or its business section).  Its easy in theory to follow, but hard in practice.  That approach often gets tested when the client requests something in writing from the lawfirm or the attorney wants to do so to make sure the client understands the ramifications.  

As those who have been following my tweets know, I have been at the American Bar Association’s House of Delegates and midyear meetings. There’s lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it’s moving front and center this year as an important piece of legislation for the Obama Administration and others.  Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function.