Category: Gender Discrimination

Gender Bias is No Piece of Cake – Part I

Katie Mayes was described as an employee that “worked hard” and “followed the rules” during her 12 year employment at WinCo in Idaho Falls. That is, until she was terminated for allegedly stealing and being dishonest. If you think that sounds like an unlikely conclusion to a spotless performance, disciplinary and attendance record, you’re not alone. On February 3rd, 2017, the appellate court overturned previous judgments against Mayes in the gender discrimination case she filed following her termination.

The situation begins with Mayes being hired on as a Clerk for the company in 1999. In 2006, she was promoted to a PIC (Person in Charge) for the Nighttime Freight Crew. She also served as the store’s Safety Committee Chief. Because the crew she managed worked long hours full of grueling physical labor, Mayes often motivated her employees in the form of stale cakes from the bakery. She states that her original General Manager Mark Wright had given her approval to take cakes from the bakery area to use as motivation and boost morale, so long as she wrote them down in the “in-store use log”, which she always followed protocol for. When Wright left the store in 2007, a new General Manager took over by the name of Dana Steen.

Everything was seemingly okay until about January 2011 when Mayes and other managers were instructed to only take cakes from the “stales cart”. The items on the cart had been deemed unsellable due to freshness though they were still safe to eat, and would be donated to a local food bank or charitable organization. Mayes testified that she was told she no longer had to mark the stale items in the “in-store use log”, as they had already been scanned out of inventory and reported as a “lost product”. It was also around this time that Mayes’ title as Safety Committee Chief was taken from her and given to another employee. When Mayes asked Steen why she had been removed as the chair, she alleges that Steen replied by saying that “a male would be better in that position”. Mayes then reported to Assistant Manager Scott McCartney that she felt she was being discriminated against. She testified that McCartney’s response was for her to “stay away” from Steen, because she didn’t like that a “girl” was in charge of the freight crew. McCartney however later denied recalling such a conversation in his deposition.

From there on out, Mayes contends that she was treated differently from her male peers. Of course, there was the comment about a male being better fit to the safety committee position. Another example Mayes offered was that she was given criticism for sometimes not being able to stay late or having to leave early to care for her children. According to Mayes, another PIC named Andrew Olson was in a similar situation, sometimes having to leave early to care for his daughter, but never received any negative commentary.

The situation reached its peak on July 7th, 2011 when bakery manager Terri Bruun notified Steen that a cake had gone missing from their shelves and was eaten in the employee breakroom. Steen then initiated an investigation and reviewed 6 months of surveillance video in order to find the culprit. What she saw was a freight crew employee, Nick McInelly, taking the cake in question to the breakroom. She also reported seeing Mayes take a cake from the stale cart back in June of that year. Afterwards, Steen turned everything over to their loss prevention investigator, Scott Samuelson. He visited the store later that same day in order to review surveillance footage, in-store use logs, and sales records in to help determine what had happened. Another loss prevention specialist inferred that because management would not be present that night, McInelly might try to take another cake – and he did just that.

The following morning, Samuelson confronted McInelly about the cakes, at which point he said that Mayes had given him permission to take them. Mayes of course stated that she only instructed her crew to take cakes from the stales cart.

Ultimately, both Mayes and McInelly were fired over the matter. At the termination, Mayes was told she was being let go due to “theft” and “dishonesty”. She was also presented with a document banning her from WinCo property for 100 years. Despite McCartney carrying out the termination meeting and preparing the paperwork, he testified that he had no part in making the decision to terminate nor did he know who did.

Mayes attempted to appeal the termination with WinCo’s employee grievance committee but the decision was upheld. She then filed a complaint of discrimination based on gender with the EEOC (Equal Employment Opportunity Commission) and the Idaho Human Rights Commission. She was issued a Right to Sue letter on April 11th, 2012.

Having exhausted her other options, Mayes filed a lawsuit on June 15th 2012, alleging discrimination on the basis of gender, violation of her COBRA rights, and wage issues as the company refused to pay her out for accrued vacation time.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.pdf

http://www.employmentlawblog.info/2017/02/mayes-v-winco-holdings-no-14-35396-9th-cir-feb-3-2017.shtml

https://www.law360.com/employment/articles/888471/9th-circ-revives-bias-suit-over-store-s-cake-theft-firing

https://casetext.com/case/mayes-v-winco-holdings

Research giant LexisNexis to pay gender discrimination settlement

LexisNexis is one of the world’s top research content providers to the legal, business, law enforcement, government, and corporate industries. Their sister company, LexisNexis Risk Solutions has agreed to pay more than $1.2 million to female employees in management due to the U.S. Labor Department’s allegations that they were paid less than their male counterparts. This includes 185 affected female employees in the Alpharetta office as well as 26 female employees at the Boca Raton location. The company has also agreed to pay an additional $45,000 in salary adjustments to women at the Boca Raton operation.

The settlement comes three and a half years after the investigations were initiated. Two separate investigations had been conducted by the US Department of Labor’s Office of Federal Contract Compliance Programs. They found that pay discrepancies had affected 211 women total. The allegations did not arise from a particular employee complaint, but rather from LexisNexis providing pay transparency information to the DOL. Upon review, the information appeared to violate Executive Order 11246 – which requires pay transparency and prohibits discrimination based on race, color, religion, sex, sexual orientation, national origin or gender identity by government contractors (which LexisNexis happens to be). In 2015 and 2016, the company had “millions of dollars in federal contracts with the U.S. Departments of Homeland Security, Justice, Transportation and Labor, and the Office of Personnel Management and the General Services Administration”. “It is unlawful for federal contractors to discriminate in pay on the basis of sex,” said Acting OFCCP Director Thomas M. Dowd. “Through this settlement, the affected class members will be compensated for their losses. We are pleased that the contractor worked cooperatively with us and has agreed to review and revise pay policies and procedures as necessary.”

The Department of Labor website FAQ section states that “If a business or organization has a Federal contract, subcontract, or federally–assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12–month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount will be subject to the requirements of Executive Order 11246.

LexisNexis has agreed to pay the settlement but does not consider it an admission of guilt, as a release from the company clarifies. The full statement reads: “LexisNexis Risk Solutions is committed to ensuring all employees are treated fairly and afforded equal employment opportunities. The findings [by the Office of Federal Contract Compliance Programs] were not based on any individual complaints; rather they were derived from statistical analysis conducted by the agency. The company disagrees with the OFCCP’s findings and does not believe it violated any federal laws. After three and a half years of cooperation during the agency’s review, we ultimately agreed to the settlement to avoid committing additional time and resources for continued legal proceedings.”

LexisNexis is not the only company accused of pay discrepancies based on gender in a large scale. Pharmaceutical company Merck is currently facing a class action lawsuit of more than 400 women alleging that they were discriminated against due to their gender. The case began in May 2013 with a single plaintiff, Kelli Smith. She filed the case alleging Merck had discriminated against women by denying them proper pay and promotions, by forcing pregnant women to take leave, and by fostering a hostile work environment which encouraged/allowed sexual harassment. Early in 2014 several other women joined the case, leading to a number which is now in the hundreds.

Gender discrimination cases appear to either be on the rise, or at the very least be starting to receive the media attention they deserve.

 

Sources:

https://www.dol.gov/newsroom/releases/ofccp/ofccp20170112

http://www.sun-sentinel.com/business/fl-lexisnexis-discrimination-settlement-20170112-story.html

http://www.abajournal.com/news/article/lexisnexis_risk_solutions_pays_1.2m_to_resolve_pay_bias_allegations

http://fortune.com/2016/07/21/women-suing-merck-sex-discrimination/

https://www.dol.gov/ofccp/regs/statutes/eo11246.htm

Obama Takes on Gender Pay Gap, Proposes Wage Reporting

Last Friday, The Obama administration introduced a new proposal in Washington, which would seek to require employers to disclose pay information to the EEOC (Equal Employment Opportunity Commission). Companies with more than 100 employees would have to submit salary data based on gender, race, and ethnicity at the end of each year. This would be an expansion on the 2014 law, which already mandates for employers to report gender, race, and ethnicity statistics. The goal of the initiative is to provide insight, as well as put pressure on companies in the spotlight who “don’t want to look bad”.

Currently, the median pay for women in “similar roles” as their male counterpart is $.79 for every dollar earned by a man.  Studies show that the pay gap is even wider for African-American women, earning $.60 and Latinas earning $.55 per dollar.

During this presentation, President Obama also called on Congress to pass the Paycheck Fairness Act, which protects women from retaliation when seeking equal pay. Additionally, he called on the states themselves to take initiative towards equal pay practices. California is already ahead of the curve – the Fair Pay Act became effective January 1st this year.

The new EEOC reporting proposal does not require congressional approval, and is set to be finalized by September 2016. The first set of data reports will be due Fall of 2017.

Walmart whistleblower to receive $31.2mil settlement for wrongful termination

A New Hampshire woman by the name of Maureen McPadden was terminated from Walmart in 2012 – after 18 years of service to the retail mogul. You may be wondering, what could someone do to warrant termination after so many years with a company? Well, McPadden was terminated for (and here’s where it gets interesting) losing her pharmacy key…according to her former employers.

McPadden subsequently filed a lawsuit alleging her termination was actually the result of retaliation for whistleblowing, gender discrimination, and disability discrimination. The complaint alleges that McPadden made several complaints to management and outside entities that there were not enough properly trained employees to fill orders in a safe and efficient manner. However, all of her efforts were ignored. McPadden and her counsel assert that her protestations were part of the reason she was terminated, and management was looking for a reason, any reason, to get rid of her. Additionally, there was evidence that a male pharmacist also lost his key (after McPadden’s termination) but he received a “level one coaching”, while McPadden received a more severe punishment. Finally, McPadden’s termination occurred less than two months after she had returned from stress leave (during which, her manager announced the plaintiff’s prescription to co-workers, resulting in an additional charge of privacy violation).

After a five day trial, the verdict was announced in favor of the plaintiff, awarding her over $31mil. The breakdown is as follows:

“$15 million in punitive damages on her Title VII gender discrimination claim, and another $15 million in enhanced compensatory damages under the New Hampshire Law Against Discrimination (NHLAD). In addition, the jury awarded the pharmacist $164,093 in back pay, $558,392.87 in front pay, and $500,000 in compensatory damages. “

Walmart is no stranger to employment lawsuits – from wage and hour disputes, to discrimination and harassment allegations. The company is currently dealing with two other suits which claim the plaintiffs faced sex discrimination.

 

Sources: http://www.employmentlawdaily.com/index.php/news/walmart-pharmacist-fired-after-reporting-legal-and-safety-concerns-wins-31-2m-verdict/

http://www.huffingtonpost.ca/2016/01/29/maureen-mcpadden-walmart-lawsuit_n_9113684.html

 

3 Cheers…For Fair Wages!

We have been closely following the story of the Oakland Raiderettes in their battle for fair pay since a suit was initially filed last year. Following the Raiderettes’ suit, cheerleaders around the nation filed their own legal actions against their respective teams and the NFL—the Cincinnati BenGals, the New York Jets Flight Crew, the Buffalo Jills, and the Tampa Bay Bucs to name a few.

The Raiderettes settled their lawsuit last fall for over a million dollars. The cheerleaders alleged that the Bay Area team only compensated each cheerleader the equivalent of $5 per hour. Additionally, the cheerleaders paid for all expenses, including travel and appearance, out of pocket and were even docked when an “infraction” occurred (i.e. coming into practice with the wrong poms, dying their hair an unauthorized color, etc.).

Last week, Governor Jerry Brown just added the icing to the cake. He signed a new bill into law that classifies professional cheerleaders as employees of the sports teams they cheer for. They must be paid at least minimum wage for all hours worked, including practices and promotional appearances.

State Representative Lorena Sanchez, the main sponsor for the bill, regarded the law as “an important step toward ensuring that multi-billion dollar sports teams treat cheerleaders with the same dignity and respect as every other employee who makes the game-day experience special.”

In response to the law, the NFL advised teams to follow applicable labor laws but clarified that the cheerleaders would be employees of their respective teams, and not of the NFL. This may come as a response to one of the earlier labor lawsuits that named the NFL as a co-defendant.

While the three professional football teams in the state need to rethink their cheerleader pay pyramids, the NBA announced that their teams already treated their cheerleaders as employees, therefore, they are compliant with the law.

Source: CNN Money