Employment Law Archives - Parks Chesin & Walbert
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Harvard Business Review study confirms that bias, not behavior, is to blame for gender inequality in the workplace

There is no question that full gender equality in the workplace is not a reality, but remains an aspiration. Women continue to be paid less than their male counterparts, and they are underrepresented in the ranks of upper management. The more controversial question remains: why? Is women’s behavior to blame? The many books telling women to “lean in,” be less “nice,” and otherwise adjust their behavior suggests so.

But an article first published in October 2017 in the Harvard Business Review confirms that the problem is not employee behavior, but management bias. Over a four-month period, the company Humanyze analyzed e-mails, speech and work patterns, movement, employee interactions, and performance evaluations, and other data points relating to employees at a multi-national company. At this company, women make up more than one-third of entry-level employees but just one-fifth of senior leadership. The data was collected, anonymized, and analyzed in a way that allowed Humanyze to know “who talks with whom, where people communicate, and who dominates conversations,” but not the content or substance of the communications.

The study’s findings are remarkable. The researchers “found almost no perceptible differences in the behavior of men and women” across all levels of seniority. Instead, the unequal treatment of women in this company, according to this study, was attributable to bias on the part of management: “Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated. This indicates that arguments about changing women’s behavior – to “lean in,” for example – might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.”

The difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated. This indicates that arguments about changing women’s behavior – to “lean in,” for example – might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.

 

The Humanyze analysts make two suggestions about how companies can address the ongoing bias against women in the workplace. First, in addition to implementing bias-reduction programs, companies should mandate that a diverse slate of candidates be considered in conjunction with hiring and promotion decisions. A separate study showed that when candidates were analyzed as a group, managers were able to effectively compare them based on job performance. However, “when managers evaluated candidates individually they fell back on gendered heuristics. The result was poorer hiring decisions and more gendered choices (for example, more men were chosen for heavily quantitative roles).” A second proposed solution would have companies “consider how to modify expectations and better support working parents so that they don’t force women to make a ‘family or work’ decision.”

Gender discrimination in employment has been a violation of federal law since the 1964 enactment of Title VII of the Civil Rights Act. But while some progress has unquestionably been made since the 1960s, a myriad of problems persist. Women have yet to achieve equal pay within the workforce, and studies have confirmed that women remain underrepresented not just in c-suite positions, but in fact at every level in the corporate pipeline.

When companies are accused of discrimination, they inevitably issue statements about taking the accusations seriously and conducting a thorough investigation. But if a strong defense was once the best offense, that is no longer the case. Employers must be proactive about acknowledging the existence of conscious and unconscious biases and taking steps to level the playing field between men and women in the workplace. Customers are beginning to demand that employers get ahead of these issues, and most importantly, employees deserve the equal treatment that has been mandated by law for more than 40 years now.

If a strong defense was once the best offense, that is no longer the case. Employers must be proactive about acknowledging the existence of conscious and unconscious biases and taking steps to level the playing field between men and women in the workplace.

 

For more than 30 years, the Georgia women’s rights attorneys at Parks, Chesin & Walbert have been fighting to protect the rights of women who have experienced employment discrimination or retaliation, sexual harassment, and sexual assault or abuse. Jenn Coalson is a partner whose practice specializes in women’s rights issues. Contact us today for a free consultation about your legal rights.

The Humanyze study discussed in this post is the subject of the article “A Study Used Sensors to Show That Men and Women Are Treated Differently at Work,” by Stephen Turban, Laura Freeman, and Ben Waber, first published in the Harvard Business Review in October 2017, available at https://hbr.org/2017/10/a-study-used-sensors-to-show-that-men-and-women-are-treated-differently-at-work.

Smyrna Fire Lieutenant Prevails in Disability Case

Parks, Chesin & Walbert’s 2018 is off to a great start with a jury verdict of almost $200,000 on behalf of a firefighter who was wrongfully terminated. In October of 1990, Allen Goble joined the Smyrna Fire Department. For the next 23 years and 7 months, he devoted his life to being a first responder. Like many firefighters and emergency medical technicians, Allen thrived on the adrenaline rush of heading to fire and accident scenes and saving lives. This work can take a toll as well. After years of witnessing some of the most profound human tragedies that most of us never encounter, and after witnessing the death of a small child, Allen developed anxiety disorder and Post-Traumatic Stress Disorder. While he tried to endure his suffering in private for some period of time, he and his family took the courageous step of informing the Fire Department of his diagnosis.

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Another PCW Victory for Whistle-Blowers

In July of 2010, Fulton County Deputy County Manager Gwendolyn Warren and Maria Colon, the Fulton County Professional Standards Officer in charge of the Office of Professional Standards (“OPS”), were removed from their jobs because they exposed extensive government waste and corruption. Their report of gross fraud and waste within the Fulton County government led to a string of successful police investigations which uncovered a variety of wrong-doing, including the illegal payment of welfare benefits to employees, potential conflicts of interest, an employee trading county employment for sexual favors, and the theft of more than $180,000 of taxpayer money by County employees who used the money to operate a private company, Exquisite Events. The County Commissioners did not like the publicity, and pressured the County Manager to eliminate OPS. Eventually, the County Manager gave into the pressure, removed both Warren and Colon from their jobs, and closed OPS.

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Whistle-Blower Paid $280,000 Thanks to Parks, Chesin & Walbert

Bernard Best came to the United Sates from Barbados, where he was a police officer. Once in Atlanta, he trained to become a housing inspector and obtained a job with the City of Atlanta in April of 2013. The City of Atlanta administers a program in the Building Department and elsewhere called the Professional Certification Program. This policy offers incentive pay to employees who obtain additional certifications in their fields. Mr. Best enrolled in the program to improve his earning potential and his skills as a building inspector. He obtained three additional certifications through the program, which, according to City Ordinances, entitled him to an additional $6,000 in annual compensation. However, Mr. Best’s managers refused to approve his new pay.

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From Anita Hill, Clarence Thomas to Gretchen Carlson, Roger Ailes: Ain’t No Sunshine When She’s Gone

Mention sexual harassment to anyone of news-viewing age in the 1990s and few names spring to mind faster than Anita Hill or Clarence Thomas. The phrase “sexual harassment” was first coined by journalist and Cornell lecturer, Lin Farley, as a succinct description of the unwelcome, insidious behavior women experienced in male-dominated work environments. However, the phrase – and its meaning – didn’t come to national prominence until 1991 – the year Clarence Thomas was nominated to the United States Supreme Court.

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Employment Practices Liability Insurance: What It Is & Why It Matters

Roger Murdoch is probably thankful he has insurance.

Earlier this year, Gretchen Carlson, a former high-profile news anchor on Fox News, sued Roger Ailes and Fox for damages relating to decades of sexual harassment she experienced during her Fox News tenure. Her suit quickly settled for an astonishing $20 million. In the aftermath, many women employed at Fox came forward (and continue to come forward) with stories about a pervasive business culture of both quid pro quo and hostile-work-environment types of harassment within the Fox News corporation.

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The History of Sexual Harassment Claims in the Workplace

It is only in the last 50 years that sexual harassment has become recognized as an obstacle to a safe working environment for all employees. For hundreds of years it was nearly impossible for a woman to successfully bring claims of rape or a lawsuit for damages against an employer who harassed her or demanded sexual favors. The rise of the Women’s Rights Movement in the mid-1800’s brought to light the issue of sexual coercion of working women (particularly servants). However, this generally received less attention than women’s lack of access to property rights, poor working conditions, and societal dependence on men.

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5 of the Most Common Mistakes Employers Make

The employer-employee relationship is a power dynamic that can often involve emotions. When an employee is terminated it is important for cooler heads to prevail in order to avoid litigation. Below, are five common employer mistakes (out of many!) to avoid if you want the separation to go smoothly as possible.

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Sexual Harassment: Blurred Lines

Title VII of the Civil Rights Act of 1964 makes workplace sexual harassment illegal. Sexual harassment includes sexual advances, requests for sexual favors, and other sexual conduct that “explicitly or implicitly affects an individual’s employment”. This includes “quid pro quo” behavior, and any conduct that works to create a hostile work environment. The U.S. Equal Employment Opportunity Commission (EEOC) is tasked with enforcing Title VII. An investigation will consider the wider picture of the workplace by asking questions like: What is the nature of the sexual advances? What is the context of the workplace?

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Whistleblower Win: Changes That Go Ch-Ching

On a local and national scale, whistleblowers are starting to win.

In August, the U.S. tax court awarded over $17 million to a pair of whistleblowers in a landmark decision that expanded the range of what can be claimed in such cases. For the first time, the tax court’s ruling permitted whistleblowers to get a portion of criminal fines and civil forfeitures in addition to part of the taxes the government recouped because of information they provided. The Wall Street Journal reports that the parties involved in the case weren’t disclosed, but it appears to stem from the prosecution of Wegelin & Co. The Swiss bank closed after it pleaded guilty in 2013 to conspiring with U.S. taxpayers to hide money from the IRS.

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