Piper Hoffman's Recent Blog Posts

Court in Costco Discrimination Case to Employers: Don't Fight Discrimination

Submitted by Piper Hoffman

Plaintiffs suing Costco for sex discrimination face another round of litigation thanks to the Supreme Court's recent dismissal of the Wal-Mart sex discrimination case. Because of the Supreme Court's decision, the Ninth Circuit Court of Appeals ruled on Friday that the Costco trial court must reconsider whether the plaintiffs can prove that the company should be liable for sex discrimination in store-level promotions. On this question the Court of Appeals, like the Supreme Court before it, ruled the wrong way, discouraging companies from implementing measures that would prevent discrimination.

When companies leave employment decisions like promotions to individual decision-makers without giving them clear, relevant criteria to guide their decisions, those decisions are often discriminatory, albeit sometimes unintentionally. Many corporations, including Costco, provide no uniform criteria – or any guidance at all – for making promotion decisions. This leaves each individual manager (the vast majority of whom are male at Costco) to make promotion decisions as he sees fit. When making decisions with unfettered discretion, people tend to rely on stereotypes and to promote those they are most comfortable with and who are most like them – in short, in the absence of clear criteria, men usually promote men. Witness Costco's demographics: female lower-level managers at Costco are less likely to be promoted than their male counterparts. It appears that only two of Costco's top 34 executives are women. The problem is not a shortage of interested or qualified women: Costco's competitors have a much higher proportion of women in management than Costco does.

Companies can prevent this kind of discrimination. Sociological research shows that holding top management responsible for establishing and enforcing uniform, unbiased promotion criteria goes a long way. When companies provide managers with performance-related criteria for promotion decisions, managers can evaluate whether a candidate satisfies those criteria instead of making a gut-level decision based on personal relationship or other irrelevant factors.

Bloomberg did not discriminate against women by treating new mothers the same as other leave-takers

Submitted by Piper Hoffman

Article first published as Judge: Bloomberg Did Not Discriminate Against Women on Blogcritics.

The judge who ruled that Bloomberg LP did not illegally discriminate against women for taking pregnancy leave raised an important policy question in her written opinion. Judge Preska did not drop "an anvil…on the work-life balance scale," despite commentators' efforts to portray her decision as a calculated blow against work-life balance; in deciding in Bloomberg's favor, all she did was follow the existing law. In her commentary, however, she questioned the wisdom of the law itself, and noted that one alternative might be for employers to "treat pregnant women and mothers better or more leniently than others." Judge Preska did not say whether she thinks that would be a good idea. It is a dreadful idea.

The judge's legal reasoning in the Bloomberg ruling is by the book. The federal law bans pregnancy discrimination as a form of gender discrimination, as it should – only women get pregnant. The law does not require employers to treat pregnant women better than other employees, just not to treat them worse. Based on the evidence Judge Preska summarized in her decision, Bloomberg LP did not treat women who took pregnancy leave worse than other leave-takers; to the contrary, if that evidence is to be believed (in an earlier ruling Judge Preska threw out the Equal Employment Opportunity Commission's expert witnesses, leaving the evidence lopsided in Bloomberg's favor), women returning from maternity leave may have fared slightly better in terms of compensation than employees returning from other kinds of leave.

The evidence also showed that taking leave for any reason is not a wise career move at Bloomberg. The company policy is, in essence, that employees must put Bloomberg LP ahead of God, country, family, and whatever else figures in their particular pursuits of happiness. Bloomberg scoffs at work-life balance, and while that might be poor business judgment or even reprehensible, Judge Preska was correct that it is not against the law.

Judge Preska makes it clear that the law, whether she likes it or not, grants employers the right to ignore and even discourage workers' lives outside of work. She quotes former General Electric CEO Jack Welch's grim assessment that there is “no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

Companies Can’t Discriminate, But Their Managers Can: The Supreme Court Gives Wal-Mart the Win in Dukes Gender Discrimination Class Action Case

Submitted by Piper Hoffman

Today the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

Supreme Court Ok's Forcing Employees Into Arbitration

Submitted by Piper Hoffman

Article first published as Your Job or Your Rights: How Employers Force Workers Into Arbitration on Blogcritics.

Seven of Jamie Leigh Jones’s male co-workers welcomed her to her new job in Iraq by drugging and gang-raping her, according to the federal Equal Employment Opportunity Commission. She says that the rapists were so violent that afterwards she had to undergo reconstructive surgery on her breasts.

Ms. Jones sought her day in court, but her employer, Halliburton, tried to bar the courthouse doors. When she took the job Halliburton made her sign an arbitration agreement which forces employees to give up their rights to take employment-related disputes to a jury. Instead, they pledge to resolve disputes through secret, binding arbitration.

This spring the Supreme Court issued an opinion in another forced arbitration case, AT&T vs. Concepcion, which involved cell phone users whose service contract required them to take disputes to arbitration and not to court. It also prohibited them from bringing a class action in arbitration, leaving them no way to bring a class action at all. The Supreme Court announced that that is just fine. It is legal for a company to unilaterally ban customers from court and eliminate the possibility of a class action.

Turning the Other Cheek: Illegal Retaliation in the Workplace

Submitted by Piper Hoffman

Or, How to Choose Judges Article first published as Turning the Other Cheek: Illegal Workplace Retaliation on Blogcritics. If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana).

The Top Ten Myths and Facts About Suing Your Employer for Sex Discrimination

Submitted by Piper Hoffman

If you believe that someone at work is discriminating against you, one of your options is to go the legal route and bring a case against your employer. I’m all in favor of taking action again illegal discrimination, but you need to have your eyes open when you make up your mind to fire the opening salvo in a discrimination dispute. Here are ten myths and facts about going after your employer for sex discrimination.

1. Myth: Your employer will cave quickly and you will move on with your life.
Fact: There is a good chance your case will drag on longer than you could ever expect.

You would not believe how long discrimination disputes can take to resolve. Seven years is not unheard of. One reason is that there are many steps in the process before you even get to court, including attempting to negotiate a settlement and filing an administrative charge at the Equal Employment Opportunity Commission or equivalent state agency (this is mandatory before you can file a lawsuit in court); another reason is that once you’re in court you are at the mercy of the judge, and the mercy of some judges is very slow. Some women reach an agreement with their employers relatively quickly while others will be in it for the long haul. Employers and their lawyers do their best to make it worse by dragging things out as long as possible.

2. Myth: It won’t cost too much to pursue your case.
Fact: Pursuing your case will most likely cost more than you expect.

Lawyers, especially good and experienced ones, are not cheap. When you consider that most of them charge by the hour and put that together with #1 above, it is obvious that pursuing your case will cost you. This is another reason that employers and their lawyers try to drag things out – they are hoping you will run out of money, if you don’t run out of patience first.

3. Myth: Your employer is terrified of bad publicity.
Fact: Your employer will probably not surrender when you threaten to go public.

Nearly every woman who ever came to my office to discuss suing her company for sex discrimination told me that her company was scared of bad publicity, so if we threatened to publish her accusations in the press, the company wallet would fly open. Nearly every one of them was wrong.

There are two reasons that your boss won’t wet his pants when you brandish the phone number of a Wall St. Journal reporter. First, he knows that for you, press coverage is a gun with only one bullet. Once you pull the trigger, you’re out of ammunition – in other words, once the story hits the press, it is out there, and whatever power the threat of exposure did give you is gone.

Second and more important, your employer is presumably in the press a fair amount – certainly a lot more than you are. Your story will be one bad article, but the next day or week or month there will be a good article about the business. Your story will not define the company’s public image. But your story will probably define your public image for a long time. Your employer knows this, and is counting on you having more to lose from press coverage than the company does.

Settling Gender Discrimination Class Actions (Part II)

Submitted by Piper Hoffman

It may not seem credible that gender discrimination remains widespread and systemic in American workplaces. Women outnumber men in colleges and graduate programs; they have entered the workforce in force; women run some companies, universities, states, and departments of the federal government.

Despite all this progress, though, discrimination persists. Women are only 17% of Congress members. Women head a mere 2.6% of Fortune 500 companies. In other words, men still overwhelmingly control our most powerful political institutions and our economy.

The familiar glass ceiling argument could explain this striking disparity: women can rise up through the ranks professionally, but at some point they hit the glass ceiling and cannot go any higher. If that were the only problem, it might explain why women are so conspicuously absent from the powerful positions listed above. But the gender disparities start well below the highest levels of power.

A striking pattern emerges from statistics analyzing the numbers of women at various levels in financial services companies (which I’ve become familiar with from representing so many women in discrimination cases against them). At the entry level, there can be as many female as male employees. At the next level up, women make up a smaller percentage of employees. At the next level, even fewer of the workers are women. And on it goes, until you reach the near complete absence of women from the position of CEO. Graphically, the numbers describe a pyramid: with every promotion the percentage of women shrinks.

Social scientists like William Bielby of the University of Illinois at Chicago and Barbara Reskin of the University of Washington have studied this phenomenon and traced it to its roots: unconscious bias that affects subjective decision-making.

Even the most fair-minded people are subject to unconscious biases. The Implicit Association Test is one of many studies to demonstrate that people can have strong preferences and antipathies they may not be aware of.

Settling Gender Discrimination Class Actions (Part I)

Submitted by Piper Hoffman

Eight- or nine-figure settlements of gender discrimination class action lawsuits regularly make news. It seems like discrimination this pervasive – essentially, discrimination as corporate policy – should be a relic of the Mad Men past. To the contrary, in countless companies and even entire industries, discrimination against women is business as usual. The latest example is Novartis, a pharmaceutical company, which settled a gender discrimination class action for up to $175 million last week. Note that the first legal step in this case was taken seven years ago – keep that in mind before you run out to sue your boss.

As a lawyer, I spent several years bringing and settling discrimination lawsuits against large employers. I talked with female employees who told similar stories of discrimination derailing their careers and sometimes even damaging their health. I learned that it will take an awful lot to eradicate gender discrimination against women at work.

Company-wide discrimination looks pretty much the same no matter the employer’s industry, region, or public image. Managers deny women opportunities for management training. They deny women in sales the best accounts and territories. When a woman succeeds in building up a previously lackluster account, management takes it away and gives it to a man. Managers exclude women from networking opportunities, management training, and promotions. They deny their female employees awards and recognition that they have earned. Managers penalize women who take legally-mandated leave to give birth or to bond with an adopted child. Of course, offending companies pay men more than their female peers.

After the jump, the perils of reporting bad behavior and the history of human resource departments' role in these questions ...

Women: What is Wrong with Your Last Names?

Submitted by Piper Hoffman

Why do women change their last names when they get married? Setting aside the fact that it is the conventional thing to do, the reasons women change their names aren’t overly persuasive. Many of the female friends and relatives who are dearest to me have changed their last names, and they are intelligent, thoughtful individuals who probably considered the following arguments, so I hope that they and other women like them will submit comments about why they disagree.

The Legal "Fast Track" and Feminism

Submitted by Piper Hoffman

This Careerist article about women who graduated from Harvard Law School in 1993 contends that women who step off the law firm “fast-track” have been derailed and may be “anti-feminist.” This is startling news to me, a 1999 graduate of Harvard Law School who stepped off the fast-track. I’m as dedicated a feminist, and far from feeling derailed, I’m happier than ever.

The thesis of the article is that “some of the brightest [female] legal minds in the country” can’t or choose not to hack it on the legal “fast-track,” generally because they prefer to focus more on their children and feel they can’t do both. The article bemoans the low rate of Harvard women who are partners in firms and calls it “astonishing” that 60% of the women who graduated Harvard Law in 1993 have “dropped out of the fast track.”

I am more astonished that more men haven’t left the law firm “fast track.” At mainstream corporate law firms, the fast track is an outdated, inhumane, pressure cooker system, and I just can’t believe that many of the men on that track aren’t wishing they could hop off themselves.

I got to where Chen wants women like me to be: I made partner (although I did it at a smaller and far friendlier, more humane public interest firm). And then I gave it up. I am now a part-time independent contractor for the same firm and spend the rest of my time writing, for one reason: that is what I want to do. I work from home, I’m doing what I love, and I have never been happier. And it had nothing to do with my kids or work/life balance: I don’t have kids, and I’m working more now than I ever have before. But I am doing what I love on my terms.

My experience suggests a couple problems with Chen’s thesis. One is her implication that the “feminist” goal should be for more women to succeed (i.e., rise up the ranks to partnership) in the legal system as it exists.