Pay Equity Forum

On November 19, 2005, Jack Tuckner spoke at a forum on pay equity hosted by the American Association of University Women (AAUW). His condensed speech notes are below as well as information about the AAUW, invited speakers and the program of the event: Notes From Jack Tuckner’s Speech for the American Association of University Women’s Forum Gender Equity in Pay

These extended notes were the basis of Jack Tucker’s speech, for which he shared the podium with noted activists Liz Azbug and Congresswoman Carolyn Maloney.

As an employment discrimination lawyer and a radically liberal progressive feminist, I represent individual women with employment discrimination issues and partner with them to affect social and legislative improvement in the working conditions of all women.

The political climate today could be construed as a theocracy, wherein conservative religious and moral values are the basis of social policy, and the women’s rights are vulnerable to a corporate sponsored right-wing agenda. While certain laws exist to address pay inequity and other forms of gender discrimination, many significant challenges remain. In many arenas, there is an overriding hostility to progressive change and an avoidance of any civil rights legislation that has “teeth” to ensure vigilant enforcement.

The Courts

For example, the current soundstage in American jurisprudence is directed by the likes of John Roberts, currently Chief Justice of the Supreme Court of the United States, and Samuel Alito, the latest frightening addition to the Court. Championing equal pay rights in courts suffused with such conservative voices is an uphill struggle and the path is overgrown with right-wing loyalty to employers, particularly the corporate elite whose dollar signs drown out the pleas of women workers.

Congress

Save for a handful of past staunch advocates of gender equity, such as Bella Azbug, Carolyn Maloney, and Shirley Chisholm, Congress has also fallen short of real effort to protect women’s rights. In addition, tens of millions of women have also colluded in this blockade by voting for anti-female politicians such as G.W. Bush; in essence constructing their own glass ceiling through their votes. Bush has wielded his appointments as direct weapons against civil rights and women’s rights, in particular.

Social Control over Women

Hostility towards pay equity is just one facet of the continuing power struggle to keep women infantilized. The social aspects of women’s bodies, lives and choices have been pawns in games of control across the globe. Such control has been exerted over a woman’s very existence—for example, the story of Amina Lawal, a Nigerian woman sentenced to execution by stoning for adultery.[1] Control has been exerted over women’s sexuality, in the case of forced clitoridectomies and female genital mutilation in Africa. Men’s property rights over women’s reproductive rights has been instituted through the abortion rulings handed down in Planned Parenthood v. Casey, 505 U.S. 833 (1992), where the Court upheld a Pennsylvania law requiring married women seeking abortions to notify their husbands. Such insidious power-imbalances manifest everyday in subtler ways, such as the frequent “water cooler flirtations” that serve to remind women that they are vulnerable to the whims and proclivities of their male supervisors and colleagues.

Such commonplace instances of harassment reflect a presumptuous and persistent sense of entitlement, tolerated and encouraged by corporate America. Women face a widespread lack of empathy for the humiliation and anger one feels when she has invested as much time, effort and expense into her education and training as a male counterpart, but is told she should expect and accept less pay solely due to her gender. Another common misconception that chips away at public support of working women’s plight is that litigation is quick and easy, as portrayed by television shows and movies. True litigation, should a case get to the court stage, is costly (up to $200-400k), difficult and lengthy—a process of several years with no guaranteed results, and likely facing hostile courts.

Advancement of women’s equality in the workplace is further hampered by theories such as the economic theory of human capital, first devised by Jacob Mincer and Soloman Polochek, which proposes that women’s actual or expected family obligations dictate their choices to work fewer hours and choose lesser-paying “female” occupations. Conservative commentators such as Richard A. Epstein, and Seventh Circuit Judge Richard E. Posner, claim that women choose their own underpayment in the labor market by not investing as much human capital into the labor force as men. They further argue that anti-discrimination statutes unreasonably interfere with the free and efficient operation of the American labor market. Epstein and Posner extend the argument to say inequity is a natural outcome of women’s biological difference from men, in direct contradiction with women’s proven abilities to handle “male” occupations.[2]

Relevant Laws

Two federal laws are aimed at the protection and empowerment of women: Title VII – the Civil Rights Act of 1964 as amended in 1991 and the Equal Pay Act of 1963 (EPA).

Locally, there are three laws that apply to discrimination in New York. The State Executive Law, Article 15, the New York City Administrative Code on Human Rights, and the New York State Labor Law.

Title VII is a federal law that prohibits discrimination on the basis of race, color, religion, sex, national origin, age, or disability and applies to all businesses that employ a minimum of 15 people. The local laws are broader, requiring a business to have at least 4 employees. An amendment to the Act, the Glass Ceiling Act of 1991, expanded its existing power and recognized that women and minorities are underrepresented in management and decision-making positions in business, and that artificial barriers exist to their advancement in the workplace. The EPA applies to any business engaged in commerce, with no particular number of employees required to trigger the protections. The EPA forbids payment of different wages to employees of opposite sex within an employer’s establishment for equal work on jobs, the performance of which requires equal skill, effort, and responsibility and which are performed in similar working conditions. The EPA allows for four “affirmative defenses”:

1. Seniority [where one employee has worked in the establishment for a longer period of time]. There has been little litigation under the EPA with respect to the defense of seniority systems. The courts have accepted seniority as a defense where it has been consistently applied as a factor in determining wages, and have rejected it where its application has been inconsistent. 2. Merit [rewarding employees for exceptional performance]. If a system is organized and structured where employees are evaluated according to performance criteria and where a means of advancement or reward is universal. Employees must be aware of such system, and the system must be administered systematically and objectively. An employer’s subjective evaluation is not sufficient to establish the defense. 3. Productivity: A system that measures earnings by quality or quantity of production. [Must be uniform, objective and non discriminatory.] 4. “Other than sex”: A differential based on any other factor “other than sex.” This is a catch-all defense, the most often litigated. Still unsettled is whether “any other factor” means literally any other factor or only certain other factors, or, certain other factors used in job evaluation systems. Any non-sex based factor adopted for a legitimate business reason may qualify. The so-called “market” is not a factor, where employers pay females less simply because the employer can get them for less.

Burden of Proof

The plaintiff has the burden of proof—meaning that the plaintiff must demonstrate that the employer is paying different wages to an employee of the opposite sex for equal work. Should the plaintiff be able to show the wage differential, the burden then shifts to the employer who must show by a preponderance of evidence that the differential is justified by one of the above-mentioned exceptions.

Remedy

The point of any discrimination legislation is to provide a remedy for the injured. For the EPA, a successful plaintiff may receive back pay up to 3 years prior to the date her claim was filed. She may also receive liquidated damages, up to double the amount of back pay. Attorney’s fees may also be awarded.

Some states have attempted to implement a system of equity which is broader than that enacted by the EPA—the comparable worth standard. The philosophy behind the comparable worth standard is that the jobs that have been traditionally or circumstantially “female” have been consistently undervalued. Therefore, pay standards should be set by the value of the job (to be determined by job evaluation studies) as opposed to market forces (which automatically set higher wages for traditionally “male” occupations). Certain states, such as Washington, California and Maryland have had extensive legislative advocacy for comparable worth standards. Other states, including New York, have managed to implement comparable worth pay rates for government workers. Recently Senator Tom Harkin introduced legislation that uses comparable worth principles to ensure equal wages for positions comparable in skill, effort, responsibility and working conditions. As yet, Congress refuses to pass this bill despite the reality that women continue to earn 76 cents on the dollar earned by men, and minority women even less. [3]

There are two important protective measures I would want any woman to take away from this presentation.

1. Awareness is everything. After the Clarence Thomas hearings for Supreme Court nomination in 1991, during which Professor Anita Hill recounted Thomas’s sexually harassing behavior towards her, sexual harassment complaint filings rose 62%. The Thomas hearings precipitated one of the first nationwide discussions of sexual harassment, and what constitutes sexually harassing conduct. Understanding when behavior is illegal is the first step to enfranchising one’s right.

2. Notification is the key to protecting your rights in the workplace. A woman being subjected to any sort of discrimination should keep a record of the incidences, and should make a point of submitting written notification of the discrimination to the human resources department or to her supervisor, in order to establish a paper trail of the conduct. Such record serves to bolster and strengthen any future legal action against the employer. In addition, should any negative employment action (demotion, suspension, termination, harassment, etc.) occur after the notification, such action would be considered retaliation.

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[1] Under the strict Islamic Shariah Law of the particular county, a woman who becomes pregnant after divorce, as did Ms. Lawal, is automatically considered guilty of the crime, unless she finds four males who can testify to her innocence. A man under the Shariah need only profess his innocence to be exonerated.

[2] Throughout European and American history, women have aptly demonstrated the ability to handle “male” commerce and trades under the circumstances of war, or when taking over a deceased husband’s business.

[3]

Information about the AAUW, the invited speakers, and the program of November 19, 2005:

AAUW Mission Statement: AAUW promotes equity for all women and girls, life-long education and positive societal change.

The AAUW Educational Foundation provides funds to advance education, research and self-development for women and to foster equity and positive society change.

The AAUW Legal Advocacy Fund provides funding and a support system for women seeking judicial redress for sex discrimination.

In principle and practice, AAUW values and seeks a diverse membership. There shall be no barriers to full participation in this organization on the basis of gender, race, creed, age, sexual orientation, national origin, disability or class.

American Association of University Women New York City Branch Founded in 1886

PAY EQUITY FORUM Saturday, November 19, 2005 2:00 PM

111 East 37th Street New York, NY 10016 212-684-6068 [email protected]

Invited Speakers:

LIZ ABZUG, a consultant, lawyer, lobbyist and candidate for New York City elective office, has long been involved in women’s civil and human rights, She is an adjunct professor in Urban Studies at Barnard College and Columbia University. In 2003, Liz and her sister honored their mother by establishing the Bella Abzug Leadership Institute, a 501(c)3 organization to mentor and train high school and college women to be proactive, principle driven and visionary leaders of tomorrow in both political and civic life.

CONGRESSWOMAN CAROLYN B. MALONEY, a Democrat who has represented the 14th district in New York City since 1992, is a nationally recognized advocate for women’s issues. Rep. Maloney has worked to increase public awareness of social inequalities between men and women that still exist in America. In January. 2002 she released the Dingell-Maloney Report : A New Look Through the Glass Ceiling, documenting a widening wage gap between men and women managers. This was followed up in 2004 with a second study that showed a persistent wage gap for all women of 20-cents on the dollar.

SONIA OSSORIO, who was elected President of NOW-NYC in January, has served on its Board of Directors in various positions since she joined in 1999. She created its very successful Media Watch Committee and then was its spokesperson when she became Vice President of Public Information. She came to New York in 1993 as a business writer for Gannett Newspapers. In 2000 she became head of the public relations department of Catalyst, a nonprofit research organization that works to advance women in business. Ms. Ossorio delivered the keynote address at the 2000 Conference of the National Association for the Advancement of Hispanic Women.

JACK TUCKNER is the founding partner of Tuckner, Sipser, Weinstock & Sipser LLP, a law firm that specializes in women’s rights in the workplace. Formerly a Legal Aid Criminal Defense Division trial lawyer, he leads a team of veteran trial attorneys who are dedicated to leaving a legacy of significant advancement in Women’s Rights to the next generation of working women. He is a long-standing member of the National Employment Lawyers Association of New York, the New York Women’s Bar Association, and the New York Trial Lawyers Institute.

Program Welcome: Barbara Dagen, Acting Branch President

Introduction: Sarah Chu

Speakers: Liz Abzug Sonia Ossorio Jack Tuckner Rep. Carolyn Maloney

Open Panel Discussion

Please join us for light refreshments following the program.

Pay Equity Committee Sarah Chu, Chair Joan Jacobson, Vice Chair Lorrin Johnson Julie Kleszczewski Fran Sacks Lisa Wilson