“Bullying” and Assertive Women

The New York Times paints a daunting picture of “volatile”  New York City Council Speaker Christine C. Quinn, who is running for mayor.

 The Times describes an incident in which Ms. Quinn expressed her dismay to the city’s former Public Advocate Betsy Gotbaum for what she deemed to be Gotbaum’s failure of leadership at a chaotic council meeting. The Times said Quinn slammed her hand on the table and said, “You were like Bambi in there!” (Ms. Quinn says she told the Public Advocate that she had an expression of “Bambi-like eyes.”) Gotbaum called it “unprofessional behavior.”

 Before bestowing the mantle of  Workplace Bully on Ms. Quinn, I think it is appropriate to  consider how much of Ms. Quinn’s notoriety is due to the fact that she is a woman running for mayor of New York City.

There is a serious dearth of women in leadership roles in our society. As noted in Forbes Magazine , men run roughly 97% of the nation’s  largest public companies, hold 84% of major corporate board positions and control 83% of Congress.  Sex discrimination is alive and well.

And the media have a long history of savaging assertive women. Think Eleanor Roosevelt, Hillary Clinton in the ‘90s, German Chancellor Angela Merkel, House Democratic Leader Nancy Pelosi, singer Madonna, Martha Stewart, … even one-time Tea Party diva Sarah Palin.   Woman who seek power often  are magnets for  barbs like the ones the Times story throws at Quinn – brash, angry,  controlling, temperamental, surprisingly volatile, retaliated, screaming, “hair trigger eruptions of unchecked, face-to-face wrath,” etc.?

Plus it is hard imagine any candidate  making gains  in the rough and tumble  of the New York City mayoral race without sharp elbows.

 “I don’t think being pushy or bitchy or tough, or however you want to characterize it, is a bad thing,” Quinn is quoted as stating. “New Yorkers want somebody who is going to get things done.”

There also is an interesting paradox in the Times article.   Workplace bullies often reveal themselves first to their staff and subordinates. The Times writes that members of Quinn’s staff are “strikingly loyal, with close advisers staying by her side for years.”   That says something about Ms. Quinn.

Quinn may be the bully who is portrayed in the Times article but for now  I’m reserving judgment.

Employer gets Immunity from Class Action

boardroom

Workers this week suffered another  potentially devastating blow when an influential appellate court ruled in Parisi v. Goldman Sachs & Co, that a former managing director could not file a class action lawsuit against  Goldman Sachs for sex discrimination because she had signed a contract agreement to arbitrate employment disputes.

The decision by the  Second Circuit Court of Appeals in New York creates a scenario that  allows a savvy employer to class-action proof itself.

The appellate court ruled that Lisa Parisi, a former managing director of Goldman Sachs, could not sue the company in a class action because she agreed to submit all employment disputes to binding arbitration when she signed a “managing director” agreement in 2003.  Since the “managing director” agreement is  silent as to class actions,  Parisi must proceed to arbitration  on an individual basis. Bottom line: Parisi can’t sue in class action and she can’t arbitrate in class action.

 Parisi, who was fired in 2008,  alleged Goldman Sachs conducted a “pattern and practice” of sex discrimination against top female employees in violation of Title VII of  the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City Human Rights Law.  She said she could not proceed in arbitration with a class action claim without Goldman Sachs permission and thus was effectively being denied her right to sue the company for systemic sex discrimination.. In other words, she said the arbitration clause in her  agreement must be invalidated because arbitration would preclude her from vindicating a statutory  right to file a “pattern and practice” class action lawsuit.

The appellate court agreed with Goldman Sachs that no substantive statutory right exists for employees to pursue a class action “pattern-or-practice” claim.

The court’s decision reversed two earlier decisions by a federal magistrate and a  district court judge who both denied Goldman Sach’s motion to compel arbitration in the case.

 The ruling  is a  boon to employers who are prescient enough to force new hires or employees who are being promoted to sign over-reaching binding arbitration clauses;  it  effectively negates the possibility that the employee will participate in a costly class action lawsuit down the road.   

Goldman Sachs took the position that it could not be sued by Parisi in federal court because of the arbitration clause, and it could not be compelled to defend a class action suit in arbitration because the arbitration clause in the agreement Parisi signed  was silent as to the arbitration of class claims.

Goldman Sachs is not entirely of the woods. Parisi filed the class action lawsuit along with two other Goldman Sachs employees,  Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, who reportedly did not sign binding arbitration agreements with Goldman Sachs and presumably could proceed without Parisi.

Parisi’s employment agreement  contained an  arbitration clause in which she agreed  to arbitrate any dispute, controversy or claim arising out of or based upon or relating to “Employment Related Matters.”  The agreement defined  “employment related matters” are defined as “matters arising out of or relating to  or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,  or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.”

 The appellate court reasoned that  the U.S. Supreme Court has consistently interpreted the Federal Arbitration Act as establishing a “federal policy favoring arbitration agreements.”  It also cited an earlier ruling in which the appeals court  concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method of proof and does not constitute a “freestanding cause of action.”  Chin v. Port Authority of New York, 685 F.3d 135, 148 (2d Cir. 2012).

The arbitration clause in question states the Plaintiffs claims will be “finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the  National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline  to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association  (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any  arbitration decision and/or award will be final and binding.”

Goldman’s appeal was supported by briefs from the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Parisi had support from the NAACP Legal Defense and Education Fund and the National Women’s Law Center.

The case is Parisi v. Goldman Sachs & Co, 2nd U.S. Circuit Court of Appeals, No. 11-5229.

OK for Dentist to Fire Object of Desire

flossIn a small office, an employee often has no where to go  when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court  ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The  Court upheld a lower court’s grant of summary judgment  in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded  there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson.  Therefore, the case was dismissed before  trial.

Knight said he fired  Nelson, who had worked for him for ten years,  after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

 Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.”  Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

 Nelson also recalls that  Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that  Nelson did  not remember ever telling  Knight not to text her or telling him that she was offended.

 When Knight’s wife found out that her husband and Nelson had been  texting each other, she confronted her husband and demanded that he terminate Nelson’s employment.  The Court finds it significant that Knight and his wife  consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

 The Court states in its decision that the question  to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.”   In this case, the Court held that  Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

 The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

 So if  Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them,  presumably a Court could find discrimination  on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager.  Justice Mansfield wrote the opinion.

The EEOC’s New Gameplan

The situation in the United States is bleak, to say the least, for workers who are targets of employment discrimination and harassment.

 Federal courts are blatantly hostile to these types of cases –  dismissing most of them before they ever reach a jury – and our leaders in Washington, D.C., seem to be oblivious.

Part of the problem is that the U.S. Equal Employment Opportunity Commission, the federal agency that is supposed to be combating employment discrimination, is overwhelmed and underfunded.

 The EEOC says there has been  a 38 percent rise in the number of charges filed with the EEOC  against private employers and state and local government employers in the past 20 years.  But  the  EEOC’s staffing levels and funding dropped nearly 30 percent between 2000 and 2008. An infusion of resources in 2009 allowed for some rebuilding of capacity, but that was quickly stalled when funding was reduced and hiring freezes were implemented in FY 2011 and 2012.

The bottom line is that  many observers feel the EEOC has been about  as effective as a gnat battling an elephant in recent years.

 But  it seems that change is afoot. The EEOC is seeking public comment  (see below) on a proposed new strategic plan that it hopes will be more effective than the EEOC’s prior practice of  filing individual lawsuits against select employers. 

In its new plan, the EEOC says it will strategically attack  practices and issues that adversely affect large numbers of employees. The EEOC identifies five national priorities:

1.  Eliminate Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based  hiring discrimination and facially neutral hiring practices that adversely impact particular groups. This includes, for example, steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law.

2. Protect immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Address Emerging Issues. The agency will address emerging issues with respect to:

-The Americans with Disability Act, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;

-Lesbian, gay, bisexual and transgender individuals coverage under Title VII sex discrimination provisions.

-Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserve Access to the Legal System. The EEOC will target policies and practices intended to prevent  individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement effort, including retaliatory actions; overly broad waivers; and settlement provisions that prohibit filing charges with EEOC.

5. Combat Harassment. The EEOC will launch a national education and outreach campaign – aimed at both employees and employers – to prevent and appropriately respond to harassment in the workplace.

 Okay, some of this sounds like politically-correct gobbledygook that is incapable of measurement. At the same time, it is encouraging that the EEOC is rethinking its past practices. The  38 percent increase in charges filed with the EEOC  also represents an increase  the suffering of American workers and their families who are subjected to illegal discrimination by employers.  American workers need all the help they can get!

Comments and suggestions must be submitted to the EEOC about the plan by 5 p.m. ET on September 18, 2012 at strategic.plan@eeoc.gov or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.