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Gender bias claims not slowing down

Employer policies help, but rising awareness fuels complaints

Gender bias claims not slowing down

Gender discrimination claims persist as a risk for employers despite widespread implementation of company policies on the issue and greater employer sophistication in this area.

Greater awareness among workers, legislative developments and demographic trends are among factors that explain why neither the total number of claims filed with the Equal Employment Opportunity Commission nor the percentage of gender discrimination claims has declined, observers say.

According to the EEOC, gender discrimination charges accounted for 29.1% of all charges in fiscal 2010. Since 2000, they have registered in a relatively narrow range between 29.1% and the 31.5% reported in 2000.

The total number of charges filed with the EEOC has increased 25.1% since 2000, to 999,922 in 2010, which many attribute at least in part to the economy. Individuals can file charges claiming multiple types of discrimination.

Meanwhile, litigation in this area continues, including the class action lawsuit brought by female employees in Wal-Mart Stores Inc. vs. Betty Dukes et al., which the U.S. Supreme Court has agreed to consider.

Other litigation includes Shirley “Rae” Ellis et al. vs. Costco Wholesale Corp., a class action originally filed in 2004 against the Issaquah, Wash.-based retailer. Women who allegedly were denied promotion to assistant manager or manager positions at Costco brought the suit, which has been stayed pending disposition of Wal-Mart.

In addition, Novartis A.G. last July agreed to pay $175 million to settle a class action that accused the Swiss pharmaceutical firm of unfair treatment of 5,600 female sales representatives regarding pay and promotion.

On Jan. 31, Sanford Wittels & Heisler L.L.P., the same law firm that filed the Novartis case, filed suit in federal court in New York on behalf of a senior human resources manager at Toshiba Corp. seeking $100 million from a U.S. unit of the Japanese firm for alleged gender bias against women in pay and promotions.

Observers say a good policy, ongoing training and adequate complaint procedures are steps that employers can take to address the issue (see story).

Basic sociological factors may be at work, say observers.

There are more women in the workplace than 15 or 25 years ago, and there are more women in jobs traditionally filled by men, said Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago.

Increased litigiousness also is a factor.

Some employers may be doing a better job “of trying to eliminate the causes of those kinds of charges,” said Paul E. Starkman, a partner with law firm Arnstein & Lehr L.L.P. in Chicago. But employees are “going to be more likely to sue than they would have in the past. It's kind of a countervailing thing, and that may explain part of why you're not seeing some kind of a dramatic shift away from these types of claims.”

The perception of gender discrimination can lead to charges, say observers.

Many point to the oft-cited statistic that women make 77 cents for every dollar paid to men, although they say this does not take into account factors that include women's greater tendency to enter lower-paying professions as well as their greater likelihood of taking time off to raise families.

“You are not comparing apples to apples,” said Richard D. Tuschman, a partner with law firm Duane Morris L.L.P. in Miami. “Nevertheless, there is that perception that women are underpaid as a routine matter, and that is the perception that led to the Lilly Ledbetter Fair Pay Act,” and can lead to charges of gender discrimination, he said.

Referring to Wal-Mart, Robin E. Shea, a partner with law firm Constangy Brooks & Smith L.L.P. in Winston-Salem, N.C., said, “It looks like the big cases have to do with equal pay and failure to promote” or the “perception that women are hitting the glass ceiling.”

New laws also have affected charges brought by the EEOC, say observers.

David Gevertz, a shareholder with law firm Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta, said, for instance, that complaints related to maternity leave under the Family and Medical Leave Act of 1993 are classified under the category of gender discrimination

In addition, more men are alleging sexual harassment in the workplace, which also falls within the gender discrimination category.

The U.S. Supreme Court's 1998 decision in Joseph Oncale vs. Sundowner Offshore Services Inc., in which the court made it clear that same-sex harassment is prohibited, “has broadened the base to some degree” of charges filed with the EEOC, said Emily S. Borna, a partner with law firm Jackson Lewis L.L.P. in Atlanta.

Observers say other factors affecting the number of gender discrimination charges include more aggressive stances on the issue by federal agencies, including the EEOC and the Department of Labor.

Philip K. Miles III, an associate with law firm McQuaide Blasko in State College, Pa., said in addition, “Although we do live in a more enlightened age, you still have just the remnants” of earlier times.

“Management and leadership in business today are still comprised of people who maybe grew up in a different time in which gender discrimination was more prevalent,” said Mr. Miles.

Meanwhile, observers say the nature of gender discrimination charges has changed.

Diana L. Hoover, a partner with law firm Hoover Kernell L.L.P. in Houston, said in recent litigation, “I had not seen any genuine quid pro quo” where women were pressured to become involved in an affair. Instead a charge is more likely to stem from a consensual relationship that ends unhappily.

Also, “You don't see the overt, belittling language to women in the workplace, where the boss is putting (a woman) down, or giving her lousy duties and the men good duties,” said Ms. Hoover.

Gender discrimination today is “definitely more subtle. It used to be quite blatant,” said Mr. Starkman.

And e-mail has become a more frequent source of gender discrimination claims, say observers.

Claims can be sparked by e-mailed jokes that are inappropriate for the workplace, “which of course the complainant will print up and keep to use to show there's discrimination in the workplace,” Ms. Hoover said.

“The prevalence of social media makes it so easy to send such material that it's not surprising at all you haven't seen a big drop in these types of claims,” Mr. Starkman said.