On Sunday June 17, 2018 the New York Times posted an article, There’s An Epidemic of Discrimination Against Pregnant Women at Work involving a case attorneys Jill Saluck and Mark Carey are working on.
The article reported “Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother… Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain…In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”
The NY Times article explored Erin Murphy’s willful pregnancy and sex discrimination case against her current employer Glencore:
“As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.
The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.
On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.
In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”
But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there. “It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”
When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.” A Glencore spokesman declined to comment on Mr. Freshwater’s behalf. After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late. But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.
When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.
Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.”
In response to the NY Times article Attorney Jill Saluck commented, “Sometimes a pregnant employee will be subject to blatantly discriminatory remarks by her employer, indicating a clear bias against pregnant workers. But more often, pregnancy discrimination is much more insidious. Often after pregnancy, a woman’s career will suddenly and inexplicably plateau. Her non-pregnant coworkers will receive raises and promotions, but despite her consistent hard work, she will not be afforded the same opportunities. If this is happening to you at work, chances are that you’re not the only employee that has been subject to this type of discriminatory treatment. Pregnancy discrimination is not just unfair, its illegal, and employers must be called out for derailing the careers of pregnant employees.”
In the case reported in the NY Times article, Erin Murphy v. Glencore, Ms. Murphy filed her legal action in the District of Connecticut on June 18, 2018 (Erin Murphy v. Glencore, Ltd, 3:18-CV-1027 D.Conn). The case will proceed to a jury trial and we expect the jury to send a strong message to the company that pregnancy discrimination will not be tolerated and punished severely.
If you need assistance with your pregnancy discrimination issues at work, please do not hesitate to contact us.
Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.
The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.
The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”
Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need. Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.
How does all of this apply to employers and nursing employees in Connecticut?
The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.
Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”
Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.
Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:
(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.
(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.
(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.
(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.
This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.
It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.
If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.
Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.
Equal employment opportunities offer protection against being discriminated due to race, color, religion or sex.
Gender Identity Discrimination
When employers fire employees because of their sex, it is illegal under state and federal laws. Now, individuals who are in the process of transitioning their sex (transgender) are also protected against employer discrimination because of their sex.
The Sixth Circuit Court of Appeals ruled (see full opinion) that employers who fire employees because the employee has announced they are transitioning to become a man or woman, violates Title VII of the 1964 Civil Rights Act.
The Court specifically held that employers cannot discriminate against an employee who is gender “non-conforming” without violating their rights.
Here is an excerpt from the judgement:
“Second, discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping. As we recognized in Smith, a transgender person is someone who “fails to act and/or identify with his or her gender”—i.e., someone who is inherently “gender non-conforming.” 378 F.3d at 575; see also id. at 568 (explaining that transgender status is characterized by the American Psychiatric Association as “a disjunction between an individual’s sexual organs and sexual identity”). Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
If you are a transgender employee experiencing discrimination at work, please contact Mark P. Carey, PC to determine how to stop the illegal behavior.
If public shaming is the new normal for dealing with sexual harassers, then how do we fix the ineffective sexual harassment laws currently in place? I have the quick fix and it makes perfect sense.
Make Sexual Harassers Personally Liable
Currently, when sexual harassers do their evil deeds, there is no penalty. Under federal law, only employers are liable. In a few states, offenders are held personally liable, for example, Massachusetts and Ohio. If the harasser understands that placing his hand on a woman’s breast or other body part has a $150,000 price tag for the single act, the harasser will think twice. If the harasser also understands that they could lose their job in addition to paying a huge settlement to the victim, then they would avoid groping other employees.
Remove the Caps on Damages Under Federal Law
Under federal law, damages for sexual harassment offenses are capped at $300,000 for both back pay and punitive damages. Trust me, this compromise struck between Congressional Democrats and Republicans in enacting the 1991 Civil Rights Act was far too low to make any real difference to deter sexual harassment. We need to remove the cap on damages that were promoted by the Washington D.C. K Street lobbyists whom promoted the caps in the first place.
Make All Settlements of Sexual Assault and Sexual Harassment Public But Conceal Victim Identities
I recently wrote about making sexual harassment settlements transparent. Transparency of all sexual harassment settlements will deter both the employers and employees from engaging in unwanted sexual harassment. We would hope that companies do more to take care of the very employees who promote the employer’s products and services; the same employees who have close professional relationships with their customers and vendors. While transparency will add further deterrence, we also need to conceal the identities of the victims of sexual harassment in settlement agreements. There is no need to harm these victims any further.
All Perpetrators of Sexual Assault and Sexual Harassment Will be Listed on the National Sex Offenders Registry
If the price tag for an occasional groping did not stop bad behavior, the next solution will. Currently, we have a nationwide sex offender registry. If you are convicted of criminal or civil sexual assault, you are automatically registered on the sex offender registry. We now need to modify current state and federal laws regarding sexual harassment at work and place all perpetrators of sexual assault and harassment on that list.
Provide a Tax Deduction to Victims of Sexual Assault and Sexual Harassment for Pursuing Claims of Discrimination
Prior to the 2018 tax overhaul, victims of sexual harassment could claim a tax deduction for legal fees and expenses in pursuit of sexual harassment claims. The tax act removed that benefit from both employers and employees. I propose reinstating the tax benefit only to employees who are the victims of sexual harassment. Frankly, it is morally the correct thing to do. We should not be cutting victims off at the knees.
If you have questions or would like to speak about an issue you’ve encountered in the workplace, we help clients located in New York, Manhattan, Connecticut, and nationwide. Contact us today!
Ugh, you got fired by a computer! Artificial Intelligence has arrived in the workplace at breakneck speed. Decisions about your performance and termination are being made by artificially intelligent machine learning computers. I enjoy sci-fi but the news of computers making decisions about performance and terminations has serious legal implications you should be concerned about.
Artificial Intelligence in Use Today
Companies such as Google and Bridgewater Associates have built powerful computers that render decisions about performance and termination. Currently, AI computers operated by Google and Facebook have been found to discriminate based on race or gender. See NYTimes Article July 9, 2015. Companies in the recruitment field have begun using AI in recruiting. For example, the new start up company Pymetrics built an AI machine to remove bias in the recruiting process.
A Very Disturbing Future For Employees in Employment Discrimination Cases
Today, employment discrimination cases are determined by direct or circumstantial proof of intentional discrimination against a variety of protected classifications of employees, i.e. sex, age, disability, race, sexual orientation etc. Employment Attorneys, courts and juries routinely examine the human interactions underlying factual evidence to determine if an employee was terminated or adversely treated because of an unlawful bias or intent to discriminate held by a supervisor, a.k.a. a decision maker. What happens when you replace the “human” decision maker with an Artificially Intelligent computer? Answer, chaos!
I predict that employers will shift the decision making to a computer and eliminate the decision making from their managers and human resource personnel. This AI HR Bot will conduct internal investigations, interview employees and witnesses and render a decision to terminate. All these functions will comply with current state and federal laws required of all employers. Most importantly, the AI HR Bot will make the “final” decision to terminate the employee, leaving employees and their attorneys, helpless to prove some human being held a discriminatory bias against them. You could expect this future to arrive in one to three years.
What can you do to prepare for the future when computers terminate you? Computers function on data, so employees should create lots of positive favorable data inputs for the AI computer to examine. For example, you should use company email to document abuse and make complaints to your manager. You should also use emails to write rebuttals to factually baseless performance reviews that are done on-line by your manager. Save all of your supporting data on your own home computer. Finally, you should hire an employment attorney to guide you through the process to develop a case to support your lawsuit or severance package.
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on the next steps.
Kindness and common courtesy in the workplace are evaporating today. New standards around what’s considered “nice” versus what crosses a professional line, are being set. Along with this movement, it has become difficult for a man to offer a simple compliment to a woman in the workplace without risking harassment claims.
In light of the multitude of public male figures being terminated due to inappropriate sexual behavior or sexual harassment in the workplace, I cannot help but push the pause button for a second to ask how this effects our workplace culture.
Yes, it empowers women to stand up for their rights and complain about gender discrimination or unwelcomed sexual advances by male colleagues. Yes, it validates a woman’s right to protect her self-worth, her career and her dignity. I encourage any woman who is treated differently or unlawfully at work to file a complaint and stand up for her rights. Always. But there is a flip side too.
Gender Discrimination in the Workplace
On the other side of this movement are men who are now fearful of interacting with their female colleagues while at work.
No employee should be subject to fear in the workplace.
In fact, men have now become so oversensitive and fearful that a woman may bring a complaint against them, that it prevents them from even so much as saying a cordial, “Good morning” to their female co-workers.
Some of the women reading this may say, “Great!” “It’s about time!” or, sarcastically, “Poor baby.” But this part of the movement is actually not a good thing. This apprehension can possibly lead to hostility in the workplace towards women because this fearful male colleague will now only say, “Hello,” or choose to interact with only his male counterparts and is hence, treating women differently. It creates a type of circular gender discrimination in the workplace.
Gone are the days of a casual conversation between a male employee and his female counterpart for fear that the woman may later could misconstrue the polite comments made toward her. Something as innocent as a man complimenting a woman on the way she is dressed or if she gets a new hairstyle is not seen as acceptable the same way a woman in the workplace offering a compliment like, “You look nice today,” to a man.
Handling Sexual Harassment in the Workplace
Gender discrimination is happening in varied ways in today’s workplace. Men should be able to go about their daily job duties without being fearful that one wrong look, one innocent comment, will get them fired. Likewise, women shouldn’t be talked to less frequently because of the changes happening.
I am certainly not saying that a man making inappropriate, sexual advances towards a woman is the same as him saying, “Good morning,” to a woman. I am simply using these extreme examples to demonstrate that men now fear even the most innocent of comments becoming misinterpreted as harassment.
I recently had a client (let’s call him Tim) who came to me after being terminated for violating company policy and having an inappropriate relationship with a co-worker (let’s call her Betty). Betty reported Tim’s alleged behavior to her superior and after a one day investigation, Tim was fired for cause. No severance, no presenting his side of the story, just fired after nearly a decade of good work performance. Tim’s story is that Betty made sexual advances towards him every time he was working in the same office. She propositioned him with sexual favors and encouraged him to meet up with her after work. Tim, refused her advances repeatedly. This continued for over a year. One evening, Tim let his guard down and gave into Betty’s sexual advances. Betty, a week or so thereafter, complained to her boss of Tim’s alleged sexual harassment and Tim was fired. Betty was not. And now Tim, sitting in my office, wonders how he could have protected himself.
The obvious answer goes without saying. But what Tim should have done was reported Betty’s inappropriate sexual advances from the beginning. He regretted making friendly conversation with her and had not been fearful of speaking to his female co-workers before his termination. But, as he sat in my office and reflected on the situation, he said that he would have to reevaluate how he acted towards any future female co-workers as he was now fearful.
Employment Law & Gender Discrimination
Sexual harassment under the law is considered gender discrimination. Both men and women are protected under Title VII as well as Connecticut and New York State laws. However, favorable case law to support a male employee’s gender discrimination claim is sparse.
Recently, the Second Circuit Court in Littlefield v. Autotrader.com, 834 F.Supp.2d 163, 168 (W.D.N.Y. July 12, 2011), Mr. Littlefield sued his former employer claiming reverse gender discrimination. He had been fired by Autotrader after his female co-worker, Ms. Long, claimed he engaged in sexually inappropriate behaviors towards her at a job training session. Autotrader fired him without hearing his side of the story. His story, like Tim’s above, was that Ms. Long was the aggressor and engaged in sexually inappropriate behavior towards him. Mr. Littlefield argues that Autotrader did not discipline Ms. Long or even investigate her behavior and instead, simply credited her version of the events. Littlefield also argued that Autotrader’s investigation of the circumstances leading up to his termination was “tainted” from the outset by “negative animus towards male employees,” thus giving rise to an inference of discrimination. The Court did not agree and reasoned that because Mr. Littlefield did not complain to Autotrader about Ms. Long’s inappropriate behaviors towards him, he could not show that he was treated differently than a comparator (the comparator being Ms. Long or another female employee). Mr. Littlefield’s claim for discrimination was dismissed.
The Eighth Circuit and Seventh Circuit have likewise reasoned that a male employee’s failure to complain about a female aggressor’s inappropriate behaviors defeat his gender discrimination claim for failing to identify a female comparator. See Yeager v. City Water and Light Plant of Jonesboro, Ark., 454 F.3d 932 (8th Cir.2006); Morrow v. Wal-Mart Stores, 152 F.3d 559, 562-63 (7th Cir.1998).
The take-away here for the fearful male employee in Tim’s situation above, is that you need to complain about a female aggressor’s behaviors. Men should no longer remain silent about this issue should it arise.
While each workplace’s culture is driven by its players and circumstance, shouldn’t every workplace be a cordial and favorable environment for both men and women?
By Kirsten Schneider
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on next steps.