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Sex Discrimination

Preserving an Individual's Right to Sue After Enduring Intolerable Treatment at Work

This term, which begins next Monday, the Supreme Court is slated to hear a case that could raise new obstacles for individuals who faced intolerable discrimination in the workplace that forced them to quit their jobs. 

Green v. Donahoe (now listed as Green v. Brennan) asks the Court to decide whether, under Title VII, the clock for bringing a constructive discharge claim begins to run when an employee resigns or at the time of an employer's last discriminatory act prior to the resignation.

A constructive discharge occurs when an individual’s work environment has become so intolerable that the worker has no real choice other than quitting. She hasn’t been officially terminated, but leaving her job is a reasonable response to extreme and unchanging hostility or harassment at the workplace. Read more »

Mach Mining v. EEOC: When Can an Employer Point Fingers to Avoid Defending Against a Discrimination Charge?

Today, the Supreme Court hears oral arguments in Mach Mining v. EEOC, a story about a woman who applied for a position as a miner with Mach Mining and filed a complaint with the Equal Employment Opportunity Commission (EEOC) after she was denied the job. The EEOC investigated the company, and sued Mach Mining for systemic hiring discrimination against women on the basis that they have never hired a female miner. And yet the story being told at the Supreme Court today is not the one you think. It’s not about sex discrimination, it’s not about the company’s practices, it’s not about the fact that the share of women in the mining industry has remained shockingly low— less than one half of one percent—for decades, due in large part to the discrimination that blocks women from entering and staying in the field. Instead, the story is about whether the EEOC did enough to conciliate with Mach Mining before suing the company for sex discrimination, and whether that question is even reviewable by the courts. Conciliation is the process by which the EEOC must first attempt an informal resolution with the employer before filing a lawsuit in federal court. Read more »

A Dirty Little Secret About Salary Negotiation

When it comes to salary negotiation, managers ought to check their biases at the door, and make decisions about employees based on merit. But a recent article from TODAY Money notes that women who ask for more money are often negatively perceived by their supervisors as being greedy, demanding, or not nice. Research has documented that women pay a social cost for negotiating pay that men do not experience; one study found that when women negotiated they were considered less desirable by hiring decision-makers, and their colleagues had less desire to work with them. Research also shows that women have greater concerns than men about experiencing backlash for negotiating pay, and that these concerns are very much grounded in reality. This backlash, in itself, is a form of workplace discrimination.

It is crucial that employers put conditions in place that control for the “implicit bias” that women experience in negotiations, reducing the likelihood that women who negotiate will experience and fear discrimination. For example, a recent study found that when job announcements specified that the salary was negotiable women were actually more likely than men to engage in negotiations. This transparency signals to workers that negotiating is acceptable, and unlikely to lead to fallout. Read more »

Hanna Rosin Says The Wage Gap Is A Lie. That’s Just Plain Wrong.

Each September the U.S. Census Bureau puts out information on the annual earnings of male and female workers. We’ll soon know the numbers for 2012, but we already know that in 2011, the most recent year for which data are available, women working full time, year round were typically paid just 77 cents for every dollar paid to their male counterparts – a loss of $11,084 in 2011. Read more »

10 Reasons to Get Back to Work After Labor Day

We all know it can be hard to come back to work after a long weekend. For those of you fighting for women’s equality, here are 10 reasons to roll up your sleeves on the Tuesday after Labor Day: Read more »

Why Are Men More Likely to be Given Flexible Work Schedules?

As a young woman looking for a career after college, I know that the playing field is still far from level for women in the workplace. We’re subject to a stubborn wage gap between men and women doing equivalent jobs; persistent occupational segregation of women into low-paying jobs; an inadequate federal minimum and tipped minimum wage, which is hardest on women since we make up two-thirds of those paid the minimum wage or less; and sexual harassment. And this week I learned another troubling statistic: managers are more likely to grant higher-status male employees’ requests for flexible work schedules than they are to grant requests from equivalent female employees. Read more »

Reed v. Reed Reminds Us What’s At Stake for Women in Constitutional Fights

Happy anniversary! Forty years ago today, the Supreme Court ruled for the first time in history that a law that discriminated against women violated the Constitution. Reed v. Reed was the first in a series of path-breaking cases that established that the Constitution does not permit government to discriminate on the basis of sex unless it can prove it has an exceedingly persuasive justification for doing so. Today let’s start giving thanks a few days early and celebrate the cases that recognized that women are among those persons who may not be denied equal protection of the law under the Fourteenth Amendment.

But while these victories merit celebration, today it is also important to remember that women still have much at stake in current arguments about the Constitution and its meaning. For example, a week ago, the Supreme Court agreed to consider whether the Affordable Care Act’s expansion of Medicaid and individual responsibility provision are constitutional. The answers to these questions will determine the fate of the Affordable Care Act-- legislation of tremendous importance to women’s health. The Court’s decision may also affect other laws upon which women depend. Read more »

Romney Advisor Robert Bork: The Equal Protection Clause Doesn’t Protect Against Sex Discrimination, Which Doesn’t Exist Anyway

Law professor Robert Bork has signed on as co-chairman of GOP presidential candidate Mitt Romney’s “Justice Advisory Committee.” According to Bork, a former federal judge and failed Supreme Court nominee, “I’d like to be asked a question now and then for advice.”

So, what kind of advice will Bork, known for his staunchly outlier positions, offer? Well, in addition to his opposition to the constitutional right to privacy and his very limited view of the protection of the First Amendment, Bork takes an extreme stance on the Fourteenth Amendment: he believes the Equal Protection Clause should not apply to women. (Even Justice Scalia recently walked back a similar view.) As Bork explained to Newsweek:

“I think I feel justified [in taking that position] by the fact ever since [the Court held that it applies to women], the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.” Read more »

Justice Scalia Before Senate Judiciary Committee: Maybe the Constitution Protects Against Sex Discrimination After All

About a year ago, Justice Scalia was asked whether the Fourteenth Amendment, which prohibits the government from denying the equal protection of the laws, applies to sex discrimination. (Hint: in decades of jurisprudence, the Supreme Court has said that it does.) His answer was shocking. He said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” Read more »