Chipping Away at the Wage Gap Through Transparency

One reason women consistently get paid less for equal work is  that they don’t know how much their male counterparts are earning.

President Barack Obama’s Pay Transparency Executive Order promises to help chip away at the wage gap by eliminating barriers to transparency in worker pay.

The Office of Federal Contract Compliance Programs (OFCCP), a division of the U.S. Department of Labor (DOL) that investigates pay discrimination in the federal government, recently released a  proposed final rule to implement Obama’s executive order. The Rule was published in the Federal Register on September 11, 2015 and will take effect 120 days from publication – January 11, 2016.

The order, issued on April 8, 2014, prohibits federal contractors and subcontractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants.

The pay transparency rule includes a hammer.

Contractors must submit  pay, race and gender data on their employees to the DOL each year. The DOL will use the compensation data to target contractors who appear to be engaging in pay discrimination against women and people of color.

The OFCCP contends the 118-page rule will contribute “to building an economy that works for everyone” and “make the contractor workforce more efficient.”

Employers are required to update their nondiscrimination policies to include language addressing pay transparency. This language must be incorporated into employee manuals or handbooks and disseminated to employees and job applicants.

Employers have two possible defenses to a pay discrimination charge: a general defense, which could be based on the enforcement of a “workplace rule” that does not prohibit the discussion of compensation information, and an “essential job functions” defense.

A third of all American women live in or near poverty – Center for American Progress

The pay gap has ramifications for all women but it  is especially critical for low-income and retired women.

A 2014 report by Maria Shriver and the Center for American Progress found that a third of all American women are living at or on ‘‘the brink of poverty.’’ This  equals to 42 million women – plus the 28 million children who depend on them.

The gap has devestating consequences for women in later life. The Social Security Administration’s formula for awarding retirement benefits is based upon lifetime earnings so the wage gap contributes to poverty in old age for millions of  women who have worked hard all of their lives.

What is the Wage Gap?

Comparing census data on average annual wages in 2013 reveals that women make 78 cents for every dollar that men make.

The DOL states that a  typical woman who works every year between ages 25 and 65 loses $420,000 over her working lifetime because of the earnings gap (based on median annual earnings for full-time year-round workers at age 25 and above in 2013).

The gap is wider for some women of color.  Census data shows  African-American women arre making 64 cents, Latina women making 56 cents, and Asian women making 86 cents per dollar earned by a non-Hispanic white man.

The wage gap is just one of many factors, that contribute to the gender pay disparity, including sex discrimination in hiring,  assignments, promotions and terminations.

Appeals Court Says ‘Bye to English Teacher Blogger

The First Amendment took a beating recently when a federal appeals court panel in Philadelphia, PA,  upheld the dismissal of an English teacher who wrote a semi-anonymous blog containing satirical observations about modern-day teaching at an affluent suburban high school.

Natalie Munroe was hired in 2006 by Central Bucks East High School in Doylestown, PA, earned tenure, and received excellent evaluations. But she became increasingly frustrated with student behavior,  especially with respect to academic integrity and honor, and lack of parental support for teachers. In 2009 she began a personal blog under the name “Natalie M’ that was called, “Where are we going, and why are we in this handbasket?”  The blog was intended for family and friends and had fewer than a dozen subscribers, including Munroe and her husband.

The U.S. Court of Appeals for the Third Circuit noted forebodingly in its ruling that “no password was required to access the blog.”

Munroe was suspended after a local reporter asked a  school official in February 2011  if he was aware that students apparently were circulating material from the blog on Facebook and other social media. Her suspension led to national media attention that inflamed the controversy. Principal  Abram Lucabaugh estimated that 200 parents told the district they did not want Munroe to teach their children.  Munroe was fired in June 2012.

In a 2-1 ruling, the appellate panel upheld the dismissal of Munroe’s lawsuit in which she alleged her termination was retaliatory and violated her right to free speech . The majority said public employees are entitled to discuss issues of “public concern” but the state may impose speech restrictions on public employees that are necessary for efficient and effective operations.  Although most of Munroe’s 84 blog entries had nothing at all to do with her work, the majority said Munroe’s speech was sufficiently disruptive to the school to diminish any legitimate interest in its expression. The lone dissenter observed  the majority had “ducked’ the fact that Munroe’s media appearances and interviews contributed to her discharge and said that a jury should decide whether Munroe’s speech was protected by the First Amendment.  He maintained the school district “forfeited its right to match its operational interests against Munroe’s free speech interests” when it waited two years to fire her and failed to transfer her to another school.

The stated reason for Munroe’s dismissal was  “incompetency” even though she was obviously a better-than-average English teacher. She was a good writer. Her comments were pointed but funny and thought-provoking. And she cared.

[Read more…]

Sexual Orientation Discrimination in the Workplace

  • Note: The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling in March 2017 declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin. That ruling in Evans v. Georgia Regional Hospital, is applicable to Georgia, Florida and Alabama.

Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.

Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.

But the  U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”

The EEOC ruling was made in a case filed by Leon Brooker, a  clerk at a U.S. Postal Service distribution service in Atlanta, GA, who has been forced to wage a lonely but important legal battle to be free from sexual orientation harassment. [Read more…]

Appeals Court Says Inequality Should Not Bar Justice

There is a persistent myth in America that our adversarial court system gives every litigant an equal chance for justice.

In fact, research overwhelmingly shows that federal courts are like casinos where the government and big business usually have the edge by virtue of their greater resources. They can easily drive individual plaintiffs out of the courthouse through the use of technicalities, strategic delays, and procedural sleight of hand. Meanwhile, the supposed “leadership” of the federal court system has shown little willingness to innovate or experiment  to improve the judicial process or even to engage with the public!

So it is refreshing that a panel on the U.S. Court of Appeals for the Seventh Circuit in Chicago recently acknowledged the bleak circumstances of an Indiana prisoner who filed a federal lawsuit after being denied timely access to a prescription drug to treat gastroesophageal reflux disease (GERD), which can lead to esophageal bleeding or ulcers, chronic scarring, and increased risk of esophageal cancer.

A prison physician in 2009 ordered inmate Jeffrey Allen Rowe to take an over-the-counter strength Zantac pill twice a day. However, after two years, Rowe’s pills were confiscated and he was told he could only take a pill if he bought it or when it was dispensed by a prison nurse at 9:30 a.m. and at 9:30 p.m.  His prescription was dropped altogether for a month in 2011 on the theory that he had a chronic condition that did not warrant the continued use of the drug. He says the prison doctor and nurse eliminated the prescription in retaliation for his complaints.

Rowe alleged he suffered extreme pain because he couldn’t afford to buy the drug and was forbidden to take the prison-dispensed medication with his meals. He filed a lawsuit charging the prison with deliberate indifference to a serious medical need in violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.

U.S. District Court Judge Sara Evans Barker summarily dismissed Rowe’s lawsuit because he failed to present an expert witness to dispute an affidavit submitted by the prison. The affidavit was from a doctor,  who was not a gastroenterologist, who stated that Zantac was effective for 12 hours after it was taken.  The appeals court noted  the manufacturer of Zantac states the drug must be taken within 30 to 60 minutes of eating food or drinking beverages that cause heartburn “to prevent symptoms.”

Circuit Judge Richard A. Posner wrote the 2-1 ruling, which states: “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”

Posner said Judge Barker denied Rowe’s requests for appointment of counsel and to hire an expert witness to assist him in the four-year court battle, leaving Rowe at a “decided litigating disadvantage” and unable to offer evidence beyond his own testimony.

 “Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice?” asked Posner.

The majority cites  research from “highly reputable medical websites” on the Internet to show that Rowe raised a significant issue of material fact which warranted going forward with the case. By conducting independent research, the majority acknowledged that “we may be thought to be ‘going outside the record’ in an improper sense.” However, the panel noted that Rule 201 of the Federal Rules of Evidence permits a judge to consider certain facts without requiring the testimony of an expert witness. The panel did not accept its research as “true” but construed it to be sufficient to raise a question of fact that barred dismissal on a motion for summary judgment. The panel said it is appropriate for a judge to do research when it is conducted “with circumspection. In particular, it must not be allowed to extinguish reasonable opportunities for rebuttal.”

The dissent criticized the majority for expecting Judge Barker to challenge an unquestioned expert’s affidavit and to conduct independent factual research instead of relying solely upon the official record.  The majority responded that Judge Barker had failed to “recognize the existence of a substantial issue of material fact, barring summary judgment. Rowe’s evidence of pain contradicted (the prison doctor’s) affidavit.”

The case is JEFFREY ALLEN ROWE, Plaintiff-Appellant, v. MONICA GIBSON, et al., No. 14-3316 (August 19, 2015).