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ACBA Labor and Employment Section 
Winter 2016 Newsletter


Contents and quick links:
  1. ARTICLE: How Can We Evaluate Gender Bias in the Workplace?
  2. ARTICLE: FEHA Amended to Protect Employees Who Request Reasonable Accommodation From Retaliation
  3. ARTICLE: Equal Pay in California and the Fair Pay Act of 2015
  4. SPOTLIGHT: Hillary Benham-Baker
Gender Bias in the Workplace - man woman symbols over a man's hand writing on a piece of paper

How can we evaluate gender bias in the workplace?

By Suzanne Wertheim, Ph.D.

Recently, there’s been a lot of press about a new study showing that student evaluations of college instructors do not actually correlate with teaching effectiveness. In fact, the study shows that student evaluations are better at measuring the unconscious bias of the evaluators (here, students) than they are at assessing the performance of workers (here, teaching assistants).
 
The study looked at two groups of students. The first group, in France, was made up of students taking large classes with multiple sections taught by teaching assistants (TAs). In their evaluations, male TAs were systematically assessed as teaching better than their female colleagues. This then raises the question – what if those male TAs were just better teachers? The researchers analyzed results for final exams, and found that the students who had been taught by female TAs actually did better on average than the students who had been taught by males. So, at least based on final exams, the female TAs, while rated lower, were overall more effective teachers than the males.
 
The second group of students was enrolled in an online course in the US and unknowingly took part in an experiment. This course had sections taught by two TAs, one male and one female. Each TA taught the same number of students, half the time using their real name, half the time using the other TA’s name. Half the time, the TAs were doing their online (text-only) teaching in disguise – the same exact teaching, just under a different name. Once again, the students evaluated the performance of the male instructors as better. When the male TA taught using a female name, he was evaluated lower than when he taught as himself. And when the female instructor taught using a male name, she was rated better than when she taught as herself. However, students taught by the female TA, in either guise, performed significantly better in the course.
 
What’s especially interesting about this second study is that the skewed performance evaluations were made even for “objective” data. One example is whether or not instructors returned assignments in a timely fashion. The course software showed when assignments had been returned. The return time was identical for each TA. Even so, students ranked their “male” TA as better at this teaching task.
 
In France, it was male students who showed slightly more bias against their female instructors. In the US, it was female students who were slightly more biased against female instructors. But the end result for the people being evaluated was always the same: being female meant that your work was systematically evaluated as less good, even when it was identical to, or possibly better than, the work of your male colleagues.
 
These kinds of studies are helpful when thinking about bias in all kinds of workplaces, not just the classroom. Because the researchers had access to large numbers of evaluations, could run comparisons, and could analyze performance outcomes, they were able to find clear evidence of gender bias. The same unconscious bias found in the students is also present in managers and co-workers in all kinds of workplaces because it stems from the same cultural patterns and expectations. It’s just harder to spot and harder to prove, both because we can’t get access to the same volume and kinds of data, and because it can be expressed in ways that are more subtle and harder to measure.
 
As a linguistic anthropologist, I have been researching expressions of bias, particularly in the tech world. I’ve collected data by interviewing women in tech, attending panels on diversity and inclusion, and analyzing published surveys and first-person narratives. What I’ve found is that everyday interactions, mundane and innocuous seeming for many, may make women in inequitable workplaces feel marginalized, demeaned, sexualized, uncredited, or unwanted – in other words, evaluated unfairly.
 
For example, conversations when we meet someone new are an opportunity to establish placement on a hierarchy – are we on the same level or should one of us be marked as higher? They also establish where boundaries should be drawn – are we in-group or are we out-group? A getting-to-know you conversation is actually an evaluation of sorts, and language is used both to reflect and to establish a social relationship. Data shows that for women in tech, these conversations can be a means of marking them as lower or as out-group when in fact they are neither. In these conversations, women are sometimes downgraded in terms of their work position, for example, assumed to be assistants because they sit near an executive rather than the software engineers that they are. (In the same vein, female professors are often assumed to be graduate students and female doctors to be nurses or medical students.) Or the men they’re talking to may push back at their claimed status by questioning their credentials in detail, which suggests without stating it explicitly that they find their claims of expertise not be believable. Or they may evaluate the women as not worth talking to at all, avoiding eye contact or addressing questions and responses to male colleagues only.
 
When this “getting to know you” conversation is part of a job interview, the ramifications of gender bias can be even more significant. In addition, these kinds of evaluations can appear in performance reviews, where coded language may show that female workers are being evaluated more negatively and with different criteria than their male colleagues. By systematically studying linguistic expressions of bias, and training managers and co-workers how to recognize and avoid them, we can work towards more equitable evaluations.
 
Bio: Suzanne Wertheim is the Founder and CEO of Worthwhile Research & Consulting, a boutique firm providing customized diversity training and communication workshops, legal consulting and continuing legal education, and communication coaching.
FEHA Amendments - grey background with FEHA Seal

FEHA Amended to Protect Employees Who Request Reasonable Accommodation From Retaliation

By Sean McHenry
 
Effective January 1, 2016, an amendment to the Fair Employment and Housing Act (FEHA) explicitly protects employees who suffer retaliation because they sought reasonable accommodation for their disabilities or religion.
 
The amendment effectively overrules Rope v. Auto-Chlor (2013) 220 Cal. App. 4th 635. In Rope, the plaintiff requested time off work to donate a kidney to his sister. The employer denied his request and fired him a short time later.  The plaintiff filed suit, alleging, among other claims, that his employer retaliated against him in violation of the FEHA by firing him for requesting leave. The appellate court upheld the trial court’s decision to dismiss the employee’s complaint. The court found that the employee had not engaged in protected activity as required by Government Code section 12940(h) because he had not “opposed any practices” forbidden under FEHA. The court held that requesting reasonable accommodation does not constitute opposition to discrimination and therefore cannot form the basis for a retaliation claim under FEHA.
 
In response, the California State Legislature amended FEHA to “make clear that a request for reasonable accommodation on the basis of religion or disability is a protected activity,” “[n]otwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc.” More specifically, FEHA was amended to add section 12940(m)(2) specifically prohibiting retaliation against an employee for requesting accommodation. In addition, the legislature reiterated that federal law – which protects employees who request reasonable accommodations from retaliation – provides a floor of protection, which state law exceeds. The full amendment text may be found at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB987
 
While it appears that no appellate court has yet addressed the issue, it is quite likely that this amendment will apply retroactively. The amendment clarifies rather than changes existing law, and thus can be applied retroactively. See Carter v. California Dep’t of Veterans Affairs (2006) 38 Cal. 4th 914. Moreover, the Legislature acted promptly to abrogate a specific existing decision, which also supports the conclusion that the amendment should be applied retroactively. See Western Security Bank v. Superior Court (1997) 15 Cal. 4th 232.
 
Bio: Sean McHenry practices employment law exclusively on behalf of employees at Minnis & Smallets LLP
Equal Pay Act over photo of the California State Capitol

Equal Pay in California and the Fair Pay Act of 2015

By: Jennifer Reisch
 
On January 1, 2016, the California Fair Pay Act, SB 358 (Jackson) took effect, amending California Labor Code Section 1197.5 to make it one of the strongest equal pay laws in the nation.  This new law, which received broad bipartisan support and the endorsement of the business community, as well as worker advocates, makes California a national leader in rooting out the gender-based wage discrimination that costs women and their families billions of dollars each year.

The law takes aim at the persistent gender wage gap which continues to negatively affect women across the occupational spectrum and at every education and income level.[i]  Even though California women make up nearly half the workforce[ii] and are breadwinners in most households with children,[iii] they still earn, on average, just 84 cents for every dollar earned by men, comparing the median annual earnings of full-time workers in this state.[iv]  And the wage gaps experienced by women of color are much larger: for example, Latinas working full time in California are paid less than 43 cents for every dollar paid to white, non-Hispanic men.[v]  While California has the eighth smallest wage gap in the country for all women compared to all men[vi], and the overall gender wage gap here has narrowed by five percent over the past decade,[vii] California women employed full time are still losing a combined total of more than $39 billion annually due to the wage gap. This translates into hundreds of thousands of dollars in lost income over individual women’s lifetimes.[viii]

The Fair Pay Act makes several important amendments to the state’s equal pay law (Section 1197.5 of the California Labor Code), which until now, closely tracked the federal Equal Pay Act of 1963 (29 U.S.C. § 206) – even though California enacted its equal pay law first, in 1949.  Under the new law, employers must pay women and men equally for “substantially similar” work performed under similar working conditions, even if their titles are different or they work in different offices, unless pay differences are based on systems of seniority, productivity, or merit, or can be explained entirely by a non-sex related factor that is job-related to the position in question and consistent with business necessity.  Employers are also prohibited from retaliating against employees who discuss their salaries or inquire about the pay of other employees.

Specifically, the new law amends Section 1197.5 to:
  • Require equal pay when employees of different sexes perform “substantially similar” (rather than “equal”) work under similar working conditions.  The change from “equal” to “substantially similar” work codifies the longstanding (but inconsistently enforced) principle that jobs do not have to be identical to require equal wages.[ix]  The “substantially similar work” provision of SB 358 takes a totality-of-circumstances approach that is designed to ensure that employers look beyond mere job titles to focus on what employees are actually required to do in setting and making decisions about their pay.  Wage differentials will be tougher to justify when jobs held by men and women require substantially similar skills, effort and responsibility and they are performed under similar working conditions.  Of course, the same rule works both ways in that individuals who share the same job titles could still be paid differently if the employer can establish, for example, that the employees have different levels of responsibility, or supervise a different number of employees.[x]
  • Eliminate the “same establishment” requirement.  This means that employees will be able to challenge unfair wage differentials across worksites, not just at their own locations.  Until the Fair Pay Act was enacted, California was in the minority of states with equal pay laws that included “same establishment” language, which limited the ability of employees to compare their wages to those of co-workers employed in different branches or offices of the same employer. 
  • Clarify the employee’s and employer’s burdens of proof.  To demonstrate a violation of the Equal Pay Act has never required proof that the pay differential is the result of intentional discrimination.  However, the Fair Pay Act clarifies that, once an employee establishes her prima facie case, it is the employer’s burden to show that one of the enumerated exceptions or defenses to the rule of equal pay applies.  The law further requires that to meet this burden, the employer has to demonstrate that the factor or factors relied upon to explain the pay differential are applied reasonably and account for the entire difference in pay.  So, for example, if an employer wants to rely on the existence of a “seniority system” to justify a $50,000 salary difference between a male and female employee who are only six months apart in seniority, it would also have to demonstrate that this factor (seniority) is being applied reasonably and accounts for the entire difference in pay, not just some portion of it. 
  • Narrow the “bona fide factor other than sex” defense.  Under the old law, employers could assert an affirmative defense that a pay differential was based on “any bona fide factor other than sex.” Some employers argued for interpretations of this defense that were so broad that they were themselves based on or related to sex (e.g., a male employee’s stronger salary negotiation “skills” or higher previous salary).  The Fair Pay Act significantly tightens this defense to require that employers show any “bona fide factor other than sex” (such as education, training, or experience) is job-related to the position in question and serves an “overriding legitimate business purpose.”  Labor Code § 1197.5(a)(1)(D).
  • Discourage pay secrecy and strengthen protections against retaliation.  Existing law prohibits employers from requiring employees to “refrain from disclosing the amount of their wages” or discriminating against any employee who “discloses” the amount of their wages.  (Labor Code § 232(a), (c).)  The Fair Pay Act further discourages pay secrecy policies and expands protection against retaliation by explicitly prohibiting discrimination against employees who disclose, discuss, or inquire about their own or co-workers’ wages, or otherwise “aid or abet” a fellow employee in exercising rights under the Equal Pay Act.  This change will enhance employees’ ability to learn about wage disparities and to evaluate whether they are being paid unfairly.
The gender wage gap has been harming women and our economy for generations and will not be closed overnight.  But while no law is a silver bullet, the Fair Pay Act represents an important step forward in the fight against discriminatory pay practices that contribute to that gap and will help to make California’s workplaces more fair for everyone.
 
Bio: Jennifer Reisch is the Legal Director of Equal Rights Advocates (ERA), a national non-profit legal organization based in San Francisco and founded in 1974 that is dedicated to protecting and expanding economic and educational access and opportunities for women and girls.  As an organizational sponsor of the California Fair Pay Act of 2015 (SB 358), ERA was involved in developing the bill’s language and advocating for its passage.
 
[i] See Mount St. Mary’s University Los Angeles, The Report on the Status of Women and Girls in California (2015), p. 24, at https://www.msmu.edu/uploadedFiles/Content/Status_of_Women_and_Girls/RSWG%202015%20final.pdf (citing U.S. Census, 2013 American Community Survey data); see also Ariane Hegewisch and Emily Ellis, Institute for Women’s Policy Research, The Gender Wage Gap by Occupation 2014 and by Race and Ethnicity (April 2015), at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2014-and-by-race-and-ethnicity (finding that women’s median earnings are lower than men’s in nearly all occupations, whether they work in occupations predominantly done by women, occupations predominantly done by men, or occupations with a more even mix of men and women). 
[ii] Luke Reidenbach, California Budget & Policy Center, How California’s Workforce Is Changing and Why State Policy Has to Change With It, p. 10, at http://calbudgetcenter.org/wp-content/uploads/How-Californias-Workforce-Is-Changing_Report_09062015.pdf (showing women comprised 45.7% of the state workforce in 2013, per analysis of U.S. Census Bureau data). 
[iii] Wendy Wang, Kim Parker & Paul Taylor, Pew Research Center, Breadwinner Moms: Mothers Are the Sole or Primary Provider in Four-in-Ten Households with Children; Public Conflicted about the Growing Trend (May 29, 2013), at http://www.pewsocialtrends.org/files/2013/05/Breadwinner_moms_final.pdf.
[iv] National Partnership for Women and Families, Fact Sheet: California Women and the Wage Gap, September 2015, at http://www.nationalpartnership.org/research-library/workplace-fairness/fair-pay/9-2015-ca-wage-gap.pdf (“California Women and the Wage Gap”).
[v] National Partnership for Women and Families, Fact Sheet: Latinas and the Wage Gap (Dec. 2015), available at http://www.nationalpartnership.org/research-library/workplace-fairness/fair-pay/latinas-wage-gap.pdf.
[vi] National Women’s Law Center, Shocking State Wage Gaps for Women of Color (Dec. 3, 2015), at http://nwlc.org/shocking-state-wage-gaps-for-women-of-color/.
[vii] Institute for Women’s Policy Research, Fact Sheet #R415, The Status of Women in California, 2015: Highlights, at http://statusofwomendata.org/app/uploads/2015/02/California-Fact-Sheet1.pdf.
[viii] See California Women and the Wage Gap, supra note 4.
[ix] Stanley v. University of Southern California, 178 F.3d 1069, 1074 (9th Cir 1999) (“[Under the [federal Equal Pay] Act, the plaintiff need not demonstrate that the jobs in question are identical; she must show only that the jobs are substantially equal.”); see Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir. 1970), cert. denied, 398 U.S. 905 (1970) (clarifying that jobs need only be “substantially equal: not “identical” to fall under the protection of the federal Equal Pay Act).
[x] At least one other state’s equal pay law uses “substantially similar work” in setting out the standard for equal pay.  See Illinois Equal Wage Act, 820 Ill. Comp. Stat. 110/1, et seq. and Illinois Equal Pay Act of 2003, 820 Ill. Comp. Stat. 112/1, et seq. (prohibiting employers from “paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work [. . .]”). 

ACBA Labor & Employment Law Executive Committee Spotlight


Hillary's Head ShotName: Hillary Benham-Baker
Firm: Campins Benham-Baker, LLP
Office Location: Lafayette and San Francisco
Phone: 415-373-5333
Email: hillary@cbbllp.com
Website: cbbllp.com

Year admitted to practice: 2009
How long have you been a member of the ACBA? Since 2014
What sections of the ACBA are you a member of: Labor & Employment
How long have you been on the L&E Executive Committee: one year
 
Brief description of types of cases you handle or area of law you practice:
We handle plaintiff-side employment discrimination and retaliation cases, whistleblower retaliation cases, ERISA and non-ERISA employee benefits matters, and disability access class actions.  An important focus of our practice is on issues impacting working parents such as FMLA retaliation, lactation rights, and other forms of family responsibilities discrimination.  We also assist clients with employment contracts and severance agreements.  

Interests and hobbies:
I love living in Oakland and enjoy trying out the delicious restaurants and cultural experiences in our town.  I especially love taking in a movie at the New Parkway, strolling down Piedmont Avenue on a nice day, or enjoying the beautiful views while on a walk around the Mountain View Cemetery.  I also enjoy weekend getaways to Gold Country (Amador County) or West Marin.   
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