Fighting for a fair shot at justice — score one for “the little guy”?

Fighting for a fair shot at justice -- score one for

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By Wendy Musell

It is often said that “sunlight is the best disinfectant,” but even the sun needs a little help at times. Major changes to the Federal Rules of Civil Procedure that would have made it much harder for consumers and employees to vindicate their rights were on track for approval by a rules subcommittee by April 10, 2014

The proposed changes would strip the tools that attorneys for employees, consumers and environmental advocates use to gain access to documents, depositions and admissions of their adversaries. The new limits on discovery would make it more difficult, if not impossible, for plaintiffs’ lawyers to find the smoking gun document, the lone employee who will tell the truth about the reason for a firing, about why faulty ignition switches were installed, or about what chemicals made their way into the drinking water after a toxic spill.

The changes were not the result of a proverbial back door deal – an agreement reached over hazy cigar smoke or an exchange of manila envelopes containing wads of cash. No. The proposed changes were presented right out in the open and subject to a six month public comment period.

Advocates for workers and consumers across the country became alarmed when the word got out that the number of people who could be deposed would be slashed from 10 to 5, that written questions under oath would be reduced from 25 to 15, and that other means of obtaining evidence of wrongdoing were reduced. Many stepped forward to voice opposition to the changes.

The California Employment Lawyers Association, National Employment Lawyers Association, Alliance for Justice, Public Justice, NAACP, Mexican American Legal Defense Fund, AARP, National Association of Consumer Advocates, American Association of Justice, Equal Justice Center, American Diabetes Association, Disability Rights Education and Defense Fund, ACLU, Impact Fund, and many other public interest organizations gave public testimony in support of keeping discovery robust and giving “the little guy” a fair shot at obtaining redress for wrongdoing.

In addition, law professors and traditional bar organizations, including the American Bar Association, Texas Trial Lawyers Association, Los Angeles County Bar Association, Utah Association of Justice, and Tennessee Association of Justice, joined the chorus of civil rights, environmental and consumer rights organizations describing how these changes could impact the balance of justice in federal court, tipping the trough of justice for defendants representing corporate interests. Arthur Miller, a venerated law professor from NYU, gave an impassioned speech before the Congressional committee considering the proposed changes.

The public outpouring of criticism from around the country made a difference. In the face of tremendous opposition, the Advisory Committee on

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Civil Rules recommended against adopting the limitations on depositions, interrogatories and admissions proposed.

The public comment period ended February 15, 2014. Now the matter will go before the Committee on Rules of Practice and Procedure, empowered by Congress to hold a two-day meeting in May. That meeting will be “open to public observation but not participation.”

While it remains to be seen if the “sunlight” of observation is as powerful as the “sunlight” of participation, one thing is clear – active involvement is the key to retaining civil rights. Without the concerted pressure of public interest organizations, and the volunteer work of many people passionate about preserving the rights of individuals to find justice in the federal courts, odds are that the changes would have sailed through leaving the “little guy” unprotected — just as if the backroom “fix” really had been in.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

Fifty years after sex discrimination became illegal, the focus is still on how women behave instead of changing organizations to eliminate gender bias 3

Fifty years after sex discrimination became illegal, the focus is still on how women behave instead of changing organizations to eliminate gender bias

programmerBy Ramit Mizrahi

Women: “Lean in.” “Be more confident.” “Ask for a raise, but do it in a way that is ‘feminine’ so you don’t come off as demanding or unlikeable.”

We’ve had a surge of self-help articles and books telling women how to navigate a biased system. But, fifty years after sex discrimination was first made illegal, shouldn’t the focus be on how to stop the bias in the first place?

In this two-part series, I’ll first discuss how implicit biases harm women in the workplace and then cover some of the steps we can take to reduce bias.

Identifying the Problem

Many male managers believe that the glass ceiling has been shattered. This opinion, however, is not shared by their female counterparts, who know from experience that sex discrimination is alive and well in the workplace. While overt discrimination has been on the decline for the past half-century, subtle forms of discrimination are still pervasive. This is especially true in high-level jobs where criteria for advancement are more subjective. Even well-meaning executives make judgments and take actions that reflect stereotypes and implicit attitudes that disadvantage female candidates for promotion.

In the past 20 years, there has been an explosion of research about what has come to be called cognitive or implicit bias. It all begins with the research proving that even the best-intentioned people harbor biases. This is true of men and woman of all ages and races; no one is immune. It’s not that we set out to judge women or minorities more harshly or treat them less favorably. What happens instead is that our internalized stereotypes and assumptions about certain groups of people end up influencing our judgments and evaluations without us realizing it.

As psychologist Virginia Valian has explained in her book Why So Slow? The Advancement of Women,

“A woman does not walk into the room with the same status as an equivalent man, because she is less likely than a man to be viewed as a serious professional.”

People hold gendered expectations, and women who don’t meet them are viewed as less capable. For example, if asked to visualize a computer programmer, for example, one will likely think of a man (probably “geeky” and younger); someone who doesn’t fit that image will then be at a disadvantage as people wonder if she’s “as good.”

When a man succeeds, his success is seen as confirmation of his innate ability, whereas a woman’s success is often attributed to luck or simplicity of the task. When she fails, however, her failure is seen as reflection of her (lack of) ability.

It gets even more complicated when assessing leadership, particularly in jobs that are perceived as masculine. Male leaders may be judged better than female leaders who are equally effective, but who lead with a less aggressive style. Attitudes about proper gender roles positively affect performance evaluations for leaders who conform to gender norms, and negatively affect performance evaluations of women who are engaged in nontraditional employment.

Gender norms can produce a double-bind effect. In some work environments women must speak more (or louder) than men if they want to get their ideas noticed, but when they do, they are derided as pushy. In problem-solving situations social scientists have observed that women get more negative facial expressions from both male and female peers, and are perceived less positively than men, even when they follow the same script as males.

Even “neutral” evaluators can be affected. When observing a woman struggling to be heard by others, receiving negative facial expressions, and having her points ignored, outside evaluators may attribute the reaction of peers to the woman’s lesser ability, or to her bossiness, rather than to gender bias. Professor Valian describes how people who would never endorse overt “statements such as, ‘Women do not command respect from their subordinates,’ may nevertheless feel comfortable saying, ‘Lee does not command respect from her subordinates.’ The latter comment is just a ‘fact’ about Lee, arrived at through impartial and fair observation.”

While each such instance on its own may be considered inconsequential, over the course of a woman’s career, they combine to undermine career success.

Subtle biases can lead to huge differences in how people are treated based on their perceived sex. In a 2012 study, Yale-based researchers sought to explore differences in how science faculty from large research universities rate applications for a lab manager position based on the perceived sex of the applicant. They sent 127 volunteer professors from six research institutions the application of an undergraduate science student who had applied for a lab manager position. Each of the professors received the same materials, except that some were randomly assigned the name of a female student while others were assigned a male name. They were asked to rate the student’s competence and hireability, as well as the amount of salary and mentoring they would offer the student.

The results were startling:

  • — The female student was deemed less competent (on a 5-point scale as with the other measures in this study, rated 3.33 by male faculty and 3.32 by female faculty as compared to the male rated 4.01 and 4.1).
  • — The female student was deemed less hirable (rated 2.96 by male faculty and 2.84 by female faculty as compared to the male rated 3.74 and 3.92).
  • — The female student was offered a mean starting salary of $26,507.94 as compared to $30,238.10 offered to the male student.
  • — The female student was offered less mentoring (a rating of 4.0 by male faculty and 3.91 by female faculty as compared to the male rated 4.74 and 4.73).
  • — The female student was evaluated as being more likeable, but that did not translate into positive perceptions of her competence of benefits in terms of a job offer, a higher salary, or more mentoring.

These results were consistent across gender, age, scientific discipline, and tenure status. The researchers concluded that faculty gender bias, unconscious and unintended, impedes women’s full participation in science.

Similar effects were observed in another study that focused on race. In a study targeting the legal profession, researchers enlisted five law partners to draft a memo on trade secret issues that would be presented as if written by a third-year litigation associate. They deliberately inserted 22 errors (including spelling, grammar, technical writing, factual, and analytical errors). Sixty law firm partners of different backgrounds were recruited to participate in a “writing analysis study,” and asked to review the legal memo written by “Thomas Meyer.” Half were told that the author was a white associate and half were told he was black.

Stark differences resulted in the assessments:

  • — On average, partners found 2.9 of the 7 spelling grammar in white Thomas’s memo as compared to 5.8 of the errors in African-American Thomas’s memo.
  • — Partners found an average of 4.1 of the 6 technical writing errors in white Thomas’s memo as compared to 4.9 in African-American Thomas’s memo.
  • — Partners found an average of 3.2 of the 5 errors in facts in white Thomas’s memo as compared to 3.9 in African-American Thomas’s memo.
  • — Partners provided 11 edits or comments on formatting for white Thomas while making 29 for African-American Thomas.
  • — Partners described white Thomas as someone who “has potential” with “good analytical skills” and a “generally good writer but needs to work on. . . .”
  • — They described African-American Thomas as follows: “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”
  • — These biases were found across the spectrum of sex, race, and other traits.

The authors’ analysis is on point:

“When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more errors. That is unconscious confirmation bias. Our evaluators unconsciously found more of the errors in the “African American” Thomas Meyer’s memo, but the final rating process was a conscious and unbiased analysis based on the number of errors found. When partners say that they are evaluating assignments without bias, they are probably right in believing that there is no bias in the assessment of the errors found; however, if there is bias in the finding of the errors, even a fair final analysis cannot, and will not, result in a fair result.”

So what do we do? First, we must stop pretending to be sex blind, color blind, or blind to any other differences. Despite our best intentions, we are not. In fact, research has shown that people who most value fairness and objectivity are particularly likely to fall prey to biases, in part because they are not on guard against them.

This is not an easy task.  Fifty years after the enactment of the Civil Rights Act of 1964, we can all agree that intentionally discriminating against someone because of her sex or race is an act that is morally reprehensible as well as illegal. But can we equally embrace the lesson learned from years of social science research into implicit bias – that we all harbor biases? Unless and until individuals and organizations are willing to grapple with this uncomfortable truth, we will be unable to dismantle these hidden barriers head on.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

The Educational-Entertainment Complex exposed, under fire

The Educational-Entertainment Complex exposed, under fire

By Guest Blogger:  Matthew A. Kaufman

The National Labor Relations Board recently publicized the NCAA’s playbook.  For sports fans, the NLRB revealed all the things that we kind of knew (or should have known) were true, but now we know: it is all true.

Here’s what happened: on March 26, the NLRB ruled that Northwestern University football players were employees under the National Labor Relations Act and ordered that an election take place on collective bargaining.   The Board found that the Northwestern football team made overwhelming demands on the football players’ time.   During the season, players devoted 40 to 50 hours per week to the team, sometimes as much as 60 hours per week.  During the spring, the team required 12 to 20 hours per week of player time.  That does not leave a lot of time for a first-class education.   In that regard, scholarship football players received $61,000 a year in tuition, room, board and books.  Walk-on players – zero.  The NLRB found that playing football at Northwestern was pretty much a full-time job, hence collective bargaining.

In the big picture, college football seems ripe for unionization.  Last year, the Northwestern football team made a $7 million profit.  Northwestern isn’t even close to being in the league of the NCAA’s top earners.  In 2012, the University of Texas cleared $75 million in profit from football, and in 2014, UT will pay its coach $9.4 million.  Meanwhile, on the opposite end of the spectrum are the rank and file college players.  NCAA rules prohibit compensating them for their services.  The reality is that the chances of making the NFL are tiny.  The NFL Players Association advises hopeful professional football players to “come up with alternative plans for the future.”  Imagine if a trade school put that on its website.

The NCAA’s president, Mark Emmert, who himself earns over $1.7 million per year, denounced the NLRB’s decision as “grossly inappropriate.”  According to Emmert,

“To convert to a unionized employee model is essentially to throw away the entire collegiate model for athletics.  You can’t split that in two.  You’re either a student playing sports or you’re an employee of a university.  It would blow up everything about the collegiate model of athletics.”

Emmert almost got it right.  The collegiate model cannot coexist with a business model of college athletics.  But it was the NCAA and its member schools who long ago blew up the notion of bona fide amateur college athletics and turned their students into unpaid football players. The current model of collegiate football makes big money for colleges on the backs of an undercompensated workforce that, by rule, has no negotiating power.  Let’s let the players negotiate so that change can come to this fundamentally unfair system.

Equal Pay Day and the elusive gender pay gap

Equal Pay Day and the elusive gender pay gap

equal-pay-day-gender-gapBy Elizabeth Kristen

April 8, 2014, is “Equal Pay Day” in the United States. On average, women earn less than men. In fact, in 2012, full-time working women earned only 77% of what men made. That means the average woman must work four additional months—until April 8—to earn the same amount of money as a man. Equal Pay Day is yearly event meant to raise awareness of the gender pay gap.

Data shows that the gender pay gap is real. According to the AAUW, women just out of college earn 7% less than their male peers. As women get older, the pay gap gets worse: women over 35 earn 75-80% of what men make. And there’s nowhere to hide. The pay gap exists in all 50 states.

Although several US laws protect women from pay discrimination, the gender pay gap persists and improvement has recently come to a halt. Observers offer different solutions based on what they see as the root cause. For example, some agitate for legislation to address modern discriminatory employer practices. Some want to raise the minimum wage because women make up a whopping two-thirds of minimum-wage earners. Others train women to “lean in” to fight stereotypes and gendered roles. All of these seem to be viable contributors to this injustice.

Critics say that the gender pay gap is a fallacy. The argument is that women’s “life choices,” nothing more sinister, account for the gap: women tend to choose lower-compensated professions, decline to move for better opportunities, want more flexible schedules, and etc. Scholars dubbed this phenomenon the Mommy Penalty. Because women devote part of their lives to caring for their families, women work less and earn less.  The critics argue that such choices would hinder the progress of anyone’s career, male or female.

But the real fallacy is the “life choices” argument.  First of all, so-called life choices cannot fully explain the gender gap. According to a study by the Center for American Progress, 41.1% of the pay gap “cannot be explained by characteristics of women or their jobs.” “Life choices,” to use the questionable term, cannot account for the disparity.

Second, if workers who have care-giving responsibilities have to make compromises that burden their careers, then that’s an unacceptable contribution to the gender pay gap. And with women accounting for two-thirds of all caregivers, the penalties disproportionately impact women. With better leave laws and more flexible standards, valuable workers would not have to sacrifice their careers if family life calls them home. One day, I hope we reframe this issue and push for a more family friendly workplace notwithstanding sex, gender, or conventionality.

Although the laws are not perfect, California is at the forefront on family leave law, providing several strong statutes with worker-friendly presumptions. In total, California’s work and family laws, including the Pregnancy Disability law, the California Family Rights Act, Paid Family Leave, Kin Care, and the Family-School Partnership Act, mark a strong public policy in support of working families.

Strong family leave laws, however, are only part of the picture. California still has a way to go before it closes its gender pay gap. The Legal Aid Society – Employment Law Center is part of the Equal Pay Today! campaign. The campaign has a 5-point platform to end unequal pay practices. Check out the website for details and for ways to get involved.

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration
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Oakland Raiderettes Lacy T. and Sarah G. filed suit against the Oakland Raiders for various labor law violations.

Employee and consumer advocates have been screaming for years about the harsh realities of arbitration clauses.  We’ve decried them for being secret; for being unfair; and unconscionable and unconstitutional.  Like the frog in the slowly heated pot of water, the public has remained idle in the face of an unprecedented erosion of their rights.  Traction in the media has been hard to come by, and it has been worse among Congressional leaders.

Turns out all we needed was a little pom-pom pizazz.  The media has latched onto the allegations being made by Lacy T., a former Oakland Raider cheerleader and member of the team’s Raiderettes.  Lacy T. has filed a class action lawsuit against the Raiders for wholesale violations of the California Labor Code – failing to pay minimum wage for all required hours worked, failing to pay overtime, failing to provide mandated meal and rest breaks, making illegal deductions from wages for a laundry list of “infractions,” as well as for costs the employer is required to cover, and failing to pay wages on time.

The case has garnered an extraordinary amount of attention, considering the abuses alleged are endemic to low wage positions in many industries.  Undoubtedly, the intense media interest is fueled by  the NFL’s high profile, the fact that every story provides an opportunity to display pictures of the Raiderettes in uniform, and the prospect that this wage dispute may provide titillating details of the Raiders’ demeaning treatment of its cheerleaders.  As the NFL knows, sex sells. Even if it doesn’t pay enough to buy gruel.

The latest Dickensian twist in Lacy T.’s case occurred last month when the NFL moved to have the minimum wage claims taken out of a public courtroom and put into a secret arbitration to be presided over by its $44 million man, NFL Commissioner Roger Goddell.  The claims in the case, and the Raiders’ response, show just how much the team’s management has turned its back on a proud history at the cutting edge of employment civil rights.  Al Davis was the first NFL owner to hire an African-American head coach (Art Shell), a Latino head coach (Tom Flores) and a female CEO (Amy Trask).  But by invoking an arbitration clause unilaterally imposed on its Raiderettes, and pushing Lacy T.’s case into a secret arbitral forum, the Raiders have perverted another of the late Mr. Davis’ ends-means mottos:  Just Win, Baby.

Arbitration was originally conceived by Congress in the 1920s as an alternative mechanism to resolve business disputes.  In the years since, it has steadily been perverted into a means for businesses to steal from and cause injury to individuals without any real threat of liability or significant financial consequence.

It is no small irony that secret arbitration has been championed at the highest level by Supreme Court Justice Clarence Thomas.  Twenty three years ago, during Thomas’ Supreme Court confirmation hearings, Anita Hill publicly accused Thomas of sexual harassment. Her testimony (and the appalling questioning by the Senate committee) riveted the country.  Through her courageous actions, the entire country awoke to the existence of sexual harassment in the workplace.

Today, Professor Hill has been making the rounds publicizing “Anita,” a new documentary about the experience.  Two decades after exposing an insidious workplace problem on the national stage, she is asking a new generation of workers – women and men – to consider the lessons of those hearings.

Which brings us back to Lacy T.   Yes, the media is just as itchy today to publish salacious details about the Raiderettes as it was to report on Clarence Thomas’ crude statements in 1991.  The difference today is that the media may not be given any such opportunity to cover the details of a modern scourge for low-wage workers: wage theft.  And as long as workplace problems – of any kind – are denied public scrutiny and forced into secret star chambers, progress will be elusive. “Anita” reminds us that public testimony can be painful.  But it’s often how change is made.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

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