I've written before about the Strategic Enforcement Plan of the Equal Employment Opportunity Commission, which was officially adopted last December, and the Commission's priorities. Last week, EEOC Commissioner Victoria Lipnic spoke about the Plan in more detail at legal compliance symposium.

Commissioner Lipnic is a Republican who used to head the Employment Standards Administration of the U.S. Department of Labor under former President George W. Bush. In that position, she was over the Wage and Hour Division and the Office of Federal Contract Compliance Programs, among other agencies.

As one might expect from a Republican commissioner, Ms. Lipnic appeared to be somewhat less than 100 percent "on board" with the EEOC's current agenda. She reportedly expressed skepticism that use of credit histories in hiring created a disparate impact on women and minority applicants and said that she thought the EEOC should focus more on helping employers to comply with the law and less on litigation.

Victoria Lipnic: Not a team player?

Anyway, here are five ways, according to Ms. Lipnic, that your company could become an EEOC target:

1. You use credit or criminal histories to screen new hires. Although Kaplan's recently cleaned the EEOC's clock in a credit history case, other employers can't necessarily count on doing as well. (In case you're feeling really cocky, please note that in the last couple of weeks, the EEOC has had some multi-million dollar wins. Read it and weep.) The EEOC is unfavorably disposed to the use of these screening devices. As stated above, Ms. Lipnic is skeptical about whether use of credit histories creates a disparate impact. On the other hand, criminal background checks have been demonstrated to have a disparate impact on African-American and Hispanic men. If you use credit or criminal background information in hiring, make sure that (a) the information is relevant to the position applied for and that you can prove it, and (b) you make an individualized analysis of each person who has a credit/criminal problem rather than flatly refusing to hire in all cases.

The EEOC's clock after Kaplan's cleaned it. (And still a little shaky from the experience.)

And, I hope this goes without saying, but you should never use arrests as a basis for declining employment -- convictions and pleas only.

2. You automatically terminate employees when they reach the end of their medical leaves of absence -- no ifs, ands, or buts. I've harped on this a number of times. The EEOC's position is that when an employee reaches the end of his or her allowable medical leaves, the employer should make a good-faith attempt to bring the employee back to work, with or without reasonable accommodations, before cutting the cord.

3. You won't accommodate individuals with disabilities (duh!) or pregnant women who have pregnancy-related limitations. The EEOC is looking askance at employers who will not make "accommodations" for pregnant employees but instead either fire them (hopefully not!) or force them to take medical leaves of absence. This is an unsettled area of the law -- generally, pregnancy is considered a "temporary disability" and so the courts have required employers to treat pregnant women the same as other employees with temporary disabilities. Of course, now that the EEOC has indicated non-permanent conditions may be "disabilities" within the meaning of the ADA, it's possible that a nine-month limitation would be considered a real ADA disability. At least, that's the EEOC's story, and they're sticking to it. 

Gratuitous Cinco de Mayo picture. These women do not appear to have any medical restrictions.

4. You run afoul of an "emerging issue." A big one for the EEOC right now is transgender discrimination. Discrimination against a transgendered individual isn't an ADA issue because the ADA specifically excludes "transsexuals" (the terminology that was being used in 1990, when the ADA was enacted). But it can be a form of sex discrimination, in violation of Title VII.

5. You have pay disparities based on race or sex. If you read this blog, you know I am a skeptic when it comes to the gender pay gap. But what I think doesn't matter. Ms. Lipnic says the EEOC will be on the lookout for equal pay cases to pursue.

I hope everyone knows the "equal pay drill" by now:

* analyze your comp yourself before the government does it for you.

* correct any disparities you may find that don't have good explanations.

* if you do have good explanations for disparities, be sure they are documented so you can prove it.

6. You don't respect your elders, and 50 is the new 40. Although the Age Discrimination in Employment Act protects individuals age 40 and older, Ms. Lipnic said that the EEOC is going to target employers who discriminate against employees 50 and older. In my opinion, this is a great strategy -- after all, age discrimination against people in their 40's is fairly rare. (Unless you're a fashion model, athlete, or TV anchorwoman.)

"Don't hate me because I'm over 50!"

Anyway, back to the EEOC. I know that none of you would dream of discriminating against an employee because of age. But do be sure that you have well-documented reasons for taking action against an older employee and that you are treating that older employee the way you would any "similarly situated" younger person. Also, be even-handed in making hiring and promotion decisions. 

AND, IN OTHER NEWS . . .

Way to go, Marissa Mayer! I have given Yahoo CEO Marissa Mayer a lot of grief over her decision to eliminate telecommuting for employees while having a nursery built next door to her office. Well, it was announced this week that Ms. Mayer is doubling the amount of paid maternity leave for Yahoo moms from 8 weeks to 16 weeks. (Dads get 8 weeks of paid leave.) I still wish she would restore telecommuting (not that anyone asked me), but this is a really nice new benefit.

Model Lanisha Cole settles her sexual harassment lawsuit against The Price Is Right for an undisclosed amount. This came after the court threw out a $7.8 million verdict in her favor. Don't worry, TPIR lawsuit followers -- I'm sure there are plenty more to come!

Are male-dominated workplaces discouraging to mothers?

This is kind of creepy . . . but how else do you get a 15 percent raise any more? A real estate agency in New York offered pay increases of 15 percent to any employee who got a tattoo of the firm logo. The tattoo can go -- er -- anywhere, and 40 employees have said yes so far.

Oh, that Michael Bloomberg. Mayor Bloomberg strikes again. He initiated a bike-sharing program to encourage New Yorkers to become more fit. But no one weighing 260 lbs. or more is eligible to participate because of fear that they'll damage the bikes. Kind of defeats the purpose of a bike-share program designed to promote physical fitness, doesn't it?

¡Feliz Cinco de Mayo!*

*DISCLAIMER: Cinco de Mayo is Sunday, not today.

Image credits: Wikimedia Commons. Painting is Portrait of an Old Man by Niccolo Cassana (1659-1714).

"Hippity, hoppity, y'all!"

This is my third and final installment on equal pay -- at least, until I decide to talk about it again. My first post is here, and the second is here.

What is the one simple, cheap, and easy thing that an employer can do to minimize the risk of an equal pay claim?*

*Besides not discriminating, of course, which ought to be too obvious to require mention.

CLUE: It does not require you to hire attorneys or Human Resources consultants. It does not involve sophisticated (or even unsophisticated) statistical analysis.

*Drum roll* "Can you stand the excitement? I sure can't!"

Read on . . .

Evaluate everybody at the same time. When we ask managers how they ensure that their employees are evaluated on an equitable basis, we often hear, "I rate each employee as an individual." That sounds wonderful, but "grading on a curve" is a better way to rate your employees if you don't want a discrimination claim. Many companies have a single performance review period for everybody in a given job classification. That is a great idea. Many other companies evaluate employees on the employees' anniversary dates. Not as good an idea from a pay equity standpoint. Why, do you think?

When it comes to comp, make sure you are comparing Apples to Apples.

Here's why: the discrimination laws don't require you to be nice, or to respect anybody's individuality. They require you to treat "similarly situated" employees the same. (Exceptions apply, of course, for reasonable accommodation of disabilities or religious beliefs.) You can usually be a sweetheart or a jerk*, as long as you are equally sweet or jerky to everyone, regardless of race, sex, national origin, color, religion, age, or disability. And, some other characteristics, too, depending on your jurisdiction.

*As anyone who reads this blog knows, there are lots of reasons why you shouldn't be a jerk at work, but the discrimination laws are primarily concerned with equal treatment, not "good" treatment.

Now that we've established that guiding principle, here are two important reasons why you should rate your employees in similar jobs at the same time.

Speaking of equal pay, be sure to register for Constangy's webinar, "Federal Contractor's Guide to Understanding the OFCCP's Compensation Conundrum" from 2 to 3:30 p.m. EDT Tuesday, April 9, presented by Cara Crotty and Angelique Groza Lyons!

Reason 1: If your employees' pay depends on what you ate for breakfast that morning (figuratively speaking), you could wind up with a discrimination issue. Think about how you felt the morning after you slept like a baby, woke up naturally without needing the alarm, exercised, savored the delicious-and-nutritious breakfast of your choice, and then headed to work with the golden sun aglow in the azure sky while pretty little bluebirds twittered sweetly above the treetops, having received kisses and hugs from your beautiful spouse and adorable above-average children, having encountered nothing but wide open roads paved with gold, and having walked in the door 15 minutes early to the approving gaze of your dear boss, who is such a joy to work for and also your best friend.

This day was ugly by comparison.

You're going to start the day in a good mood, aren't you? And when you're in a good mood, you are going to feel well-disposed toward others. Including your employees.

Now, think about how you felt in the morning after the neighbor's dog was barking all night, you hit "snooze" at least 500 times and still got up exhausted, breakfast consisted of stale cereal that you don't even like from that box that's been sitting opened on the shelf for six months and probably has mealy bugs in it even though you've told your kids a million times to CLOSE THE BOX WHEN THEY'RE THROUGH, you had an argument with your spouse that caused you to miss your exercise, as you drove to work it was 39 degrees and the ominous gunmetal-gray sky was pelting that nasty gelatinous half-rain/half-ice mix at your windshield, and some moron skidded in the rain and had a wreck, causing one lane to be shut down and you to be a half hour late, and of course your boss was standing right near the door giving you the evil eye as you tried to slink in without being noticed.

"Nine a.m., eh? Hmm -- not exactly promotion material!"

Your mood might not be quite so lovely, right? And you might not feel quite so well-disposed to others, right? Including your employees?

Now, let's say you have to do performance evaluations that day. Are you going to give your employees the benefit of every doubt? If it's your perfect day, I bet you will. If it's that other day, I'd be surprised. If you evaluate your folks at different times, you could inadvertently create some pay disparities simply because your mood has changed.

Then you'll be accused of discrimination, which will put you in a really bad mood.

Reason 2: If you apply different standards to employees in the same position, you could wind up with a discrimination issue. "But I would never do that!" Oh, yeah? Here's an illustrative story: Lola and Dave held the same position, and their job performance was identical. In May, the company set goals for employees in their position. When Lola was evaluated on her anniversary date in July, she had not met the goals and got a poor evaluation and a lousy raise. In August, the company decided the goals were unrealistic and made them easier to achieve. Dave was evaluated on his anniversary date in November. Unlike poor Lola, Dave did fine because the unrealistic goals were no longer in place.

QUIZ: If Lola ever finds out what rating and raise Dave got (and you know she will!), do you think she will understand that she was just a victim of bad timing and not discrimination? ANSWER: "No."

QUIZ: Even if she does understand it, do you think she will accept it? ANSWER: "No."

After it went to an easier standard, the company should have retroactively corrected Lola's performance rating and pay increase -- especially since her co-workers were being held to the more-lenient standard. But it would have been even easier for the company if it had used one single performance review period for all of the employees in that position. If the evaluations were done after August, everybody would be happy because the lenient standard would apply to everybody. If the evaluations were done before August -- well, that would be a drag, but Lola would not be able to claim sex discrimination because her co-workers would have gotten exactly the same raw deal. They'd all be miserable; ergo, no discrimination.

"I'd love to take your discrimination case," Perry Mason said, "but there's no point because your employer treated you all like dirt, without regard to anyone's legally protected status."

So that's why I say you should rate your "similarly situated" employees at the same time every year. So easy! So cheap! No lawyers or statistics needed!

All that having been said ("Yep - we knew it was coming!"), another very wise thing to do that may require some outside assistance is conducting a compensation audit about once a year. This is a good way to catch any slip-ups early and make necessary corrections before you are the target of an audit, charge, or lawsuit. If you're a federal contractor, this is especially important with the increased attention being given to pay equity issues by the Office of Federal Contract Compliance Programs, which enforces affirmative action requirements. 

OK. Next week we'll talk about harassment or something, I promise!

Image credits: Wikimedia Commons. 

That nasty remaining five percent or so* that can't be explained by personal choice.

*Completely unscientific percentage.

If your pay audit uncovers one of these issues, you ought to be thinking about fixing it:

The Lilly Ledbetter Effect. Lilly Ledbetter says she received relatively poor performance reviews in the 1980's because she was a woman. Whether she is correct or not, I am sure that her employer, Goodyear, would have had a tough time disproving this* because she didn't sue until after she had retired, and any records were probably long gone by that time.**

*Yes, I know the burden of proof in a discrimination case in court is on the employee, but as a practical matter it's on you, the employer. And if you're a federal contractor, you know that the Office of Federal Contract Compliance Programs will not give you the benefit of the doubt. If they find a disparity, you will have to prove to their satisfaction that it's not a result of discrimination.

**This is a reason why employers should not destroy records, but that's a topic for another blog post.

But, anyway, let's take Ms. Ledbetter's word for it. So, she got lousy reviews only because she was a woman in a man's world, and pay increases were based on performance ratings. Just for the sake of argument, let's say Goodyear gave a 5 percent increase to everybody who got "Exceeds Expectations," and 3 percent to everybody who got "Meets Expectations." And just for the sake of argument, let's say Ms. Ledbetter deserved an "Exceeds" rating in 1982 but got only a "Meets" because her male chauvinist pig of a boss thought women were good for only one thing. And I don't mean making tires. Meanwhile, Ms. Ledbetter's male counterpart, Joe, got "Exceeds" in 1982 even though he had exactly the same performance as Lilly, just because he was a man.

"Women can't do no work. Dey ain't as smart as us guys is!"

Let's say the male chauvinist pig boss retires in 1983, and from that point on, Lilly begins reporting to Alan Alda, who gives her the performance ratings she really deserves every year after that. Which means that she and Joe BOTH get "Exceeds" in every year until Lilly retires, many years later.

"I love all women. And I don't mean that in an inappropriate way."

Not only will Lilly never catch up with Joe, but also the gap in their pay will widen over time, even though they received exactly the same percentage pay increase every year from 1983 forward.

If you review your compensation and find an unexplained pay disparity involving long-term employees, you should investigate whether it's a result of the "Lilly Ledbetter Effect" -- the lingering effects of a long-past discriminatory decision. If so, then go ahead and make an adjustment to catch her up. Don't wait for her to sue you, or (more likely) for an audit by the OFCCP.

Be sure to visit Stephanie Thomas's The Proactive Employer Blog for this month's Employment Law Blog Carnival, Spring Is In Bloom Edition! Stephanie, thank you for hosting!

The "Retro Career Choice" Effect. This is similar to the Lilly Ledbetter Effect, except that it's technically not a "discrimination" issue. However, it is a fairness issue that creates the appearance of discrimination.

In this scenario, you have a long-term female employee (let's call her Flo) in a supervisory or management position who is paid less than her male counterparts with similar time in the position. Flo has been a great employee, and you don't have any male chauvinist pigs working for you, so you know that she's been rated fairly her entire career.

Flo is on the right.

When you look back at the beginning of her employment, you see that Flo started out as a machine operator and worked her way up to supervisor 20 years ago. Her male counterparts started out as skilled mechanics before working their way up to supervisor 20 years ago. Flo and the boys all got a 10 percent pay increase when they were promoted to supervisor 20 years ago.

OK, Robin - we see where you're going with this. So why not give everybody a "flat" pay increase when they get promoted?

Glad you asked! The reason you use a percentage rather than a "flat" increase is that you want to make sure employees don't lose money when they're promoted from an hourly position with overtime into a management position without overtime. The only way to guarantee this (apart from giving everybody, like, a $100,000 pay increase when they're promoted to supervisor) is to base the employee's supervisor pay on his or her prior hourly pay.

Oh, OK. Thanks. Now, back to our story. Flo freely chose the machine operator job (contrast with "The Channel Effect" below), but the machine operator job didn't pay as much as the mechanic job, so when Flo was promoted and got her 10 percent increase, she got less real money than the guys did. And her future raises would have been a percentage of each year's salary. Which means that, even if Flo and the guys got exactly the same percentage increases every year after their promotions, as with Lilly Ledbetter, the pay gap would continue to widen, and after 20 years Flo would be earning significantly less than her male counterparts. Even though she is every bit as good a supervisor as they are, and even though your company has treated her in a completely non-discriminatory manner.

Doesn't seem right, does it? So, even though this is technically not discrimination, we do normally suggest that employers give their "Flo's" an adjustment to bring them into line with their counterparts.

The Channel Effect. Thanks to commenter Randy Martinez for bringing this up last week in connection with sales positions. Anyone with eyes to see and ears to hear knows that women (statistically speaking, of course) tend to choose certain jobs and that men (statistically speaking, of course) tend to choose other jobs. If these choices are truly voluntary, then there is nothing wrong with it -- whatever the government or the National Organization for Women may tell you.

"Oh, yeah?"

But occasionally the employer will take it upon itself to "guide" women into certain jobs and "guide" men into different jobs that pay more money.

In recent history, supermarkets have been accused of channeling women into cashier positions and men into meat department positions, which pay a lot more because they involve things like cleaning fish guts and cutting cows up into steaks. (I'm not saying supermarkets actually channel -- only that they've been accused of it.)

The OFCCP is onto channeling, and has announced that it will be on the lookout for it during compensation audits.

If you're "channeling" based on assumptions, stereotypes, or even past experience, about what men and women prefer to do or are better at, then stop it! Right now! This is sex discrimination, and it is illegal.

Then, once you've stopped, figure out a way to offer the "male" jobs to your female employees. Many will prefer to stay where they are, but those who prefer the "male" jobs ought to have the opportunity. Once you find out who those women are, consider whether you also need to make some pay adjustments.

The "I Have No Flipping Idea" Effect. Finally, you might come across this one. You or your lawyer finds that a female is paid less than similarly situated males. You try to figure out why. You investigate all of the non-discriminatory reasons we discussed in last week's post, and none of those fit. You investigate all of the discriminatory or quasi-discriminatory reasons discussed above, and none of those fit, either. You talk to everybody who has been involved in hiring these people, as well as those involved in giving raises. Nobody has a clue why this woman is making less money.

"Hmm. I have no flippin' idea why Evangeline is making less money."

If you have a pay disparity that you cannot explain, then go ahead and make an adjustment. Your utter lack of an explanation will be held against you.

Next week, I'll conclude this series with a post on preventive steps that employers can take to avoid creating pay disparities in the first place.

Image credits: Wikimedia Commons.

Yes. That Lilly Ledbetter. Lilly Ledbetter of the Lilly Ledbetter Fair Pay Act. The Lilly Ledbetter who wore a red suit and stood beside President Obama when he signed the Fair Pay Act into law. Ms. Ledbetter had recently published her book, Grace and Grit: My Fight for Fairness and Equal Pay at Goodyear and Beyond.

Yes, I am serious! The Lilly Ledbetter who is standing right behind the President!

Stephanie is always great, and Ms. Ledbetter herself was a gracious and charming lady, and our half hour flew right by. If she hadn't lived two states away from me, I would have invited her over for dinner.

Ms. Ledbetter strongly believes that pay discrimination against women is rampant. And a women's advocacy group has recently come out with a study showing that, between 2011 and 2012, women's relative pay has dropped from about 82 cents for each dollar that men earn to only about 81 cents on the male dollar.

At the same time, we have extremely well-compensated female super-executives like Sheryl Sandberg of Facebook saying that women aren't as successful, not because men are holding them back, but because women don't want success enough, or something like that, and Marissa Mayer, CEO of Yahoo, saying she's not a feminist and abolishing telecommuting for her employees while building herself a baby nursery next door to her office. (Sisterhood is powerful, baby! This is what we fought for!)

THE PRICE WAS WRONG: I had reported earlier on model Brandi Cochran's $7.7 million verdict in a pregnancy discrimination lawsuit against the long-running TV game show The Price Is Right. The trial judge has now granted the show's motion for a new trial, saying that he gave an erroneous jury instruction according to a California Supreme Court decision that was issued after the trial. I'll continue to keep you posted on this and all daytime-TV-related employment law.

So, with all apologies to Lilly Ledbetter, as we approach the sixth anniversary of the Supreme Court's decision saying that Ms. Ledbetter's case against Goodyear was untimely (a decision that Congress overruled by passing the Ledbetter Fair Pay Act), and the 50th anniversary of the Equal Pay Act, and as the Office of Federal Contract Compliance Programs says in so many words that it's going to keep on scrutinizing contractors' pay in every way possible until it finds a violation, I'm going to be contrary: here are five reasons why I think the "gender pay gap" is mostly baloney.

Res ipsa loquitur.

1. The "X cents on the dollar" argument is fallacious. This statistic measures all women in the workplace against all men in the workplace. It takes nothing into account except sex and pay. That's it. It doesn't control for anything else that might affect a person's pay, such as educational level, years in the workforce, skill or experience level, willingness to travel or do "dirty" work, or anything. Just sex and pay. So it doesn't tell you much of anything about discrimination. At most, it's the first piece in a 2,000-piece jigsaw puzzle. Here are a few of the other 1,999 pieces:

Problem solved! My work here is done!

2. Statistically speaking, men are disproportionately willing to work heavy, dirty, dangerous jobs in bad conditions with long or inconvenient hours. Because these jobs totally stink aren't very pleasant, companies are sometimes willing to pay quite a lot to anyone who is willing to do them. Companies don't have to do that with nice, clean, 9-to-5, Monday-through-Friday office jobs, or even "pink-collar" jobs, which might have inconvenient hours and be stressful in some ways but don't usually involve danger or heavy lifting.

3. Statistically speaking, women are more likely to start their work lives later and interrupt their work lives. (Remember, we are talking "statistically.") The work force is still full of women my age and older, who unlike today's young women, may not have jumped right into their chosen careers, often because we were working at dead-end jobs for a few years while our husbands went to professional school or threw themselves headlong into their own careers. And/or we were having babies. (In my own case, I didn't even start law school until I was 30 and already had one child. And I'm not that unusual.) Even if we were working, we quit* when we had babies. Our husbands never did -- male "moms" are a relatively new phenomenon.

*Quit working outside the home. Moms and dads who stay home, of course, do a ton of work.

So, if you're young, remember that the "pay equity" stats include us as well as you, and we have a big pay gap that usually was not a result of discrimination by employers but a result of family choices we made at various stages of our lives. In other words, our choices are bringing down the average for the whole group of working women. Don't you feel better now?  :-)

4. In the most recent recession, the pay gap narrowed somewhat, and do you know why? It's because women were employed while men were unemployed. (Statistically speaking, of course.) That's right -- men were disproportionately affected by the last recession. You may recall that they even called it a "mancession." Most of the jobs that went away were "men's" jobs -- construction, heavy manufacturing, etc. This narrowed the gender pay gap because women were making a little bit of money while many men were not making any money. If the pay gap really is widening again, I hope it's because some of those poor unemployed men have started to find jobs.

5. Even when they're in the workforce, women disproportionately treat their jobs as "secondary" to their spouses' so that they'll have time to devote to their families. (Statistically speaking again, of course.) Just look around you. Count up the women you know who take off work when their kids are sick, assume primary responsibility for taking care of elderly or sick relatives (including their in-laws), move when their spouses get transferred, and say they want a job that they can "forget about" when they go home at night. Now count up the men you know who do these things.

Some might say taking good care of them is as rewarding a career as any.

My guess is that everyone's circle of acquaintances will include a relatively large number of women, and a relatively small number of men, who do. Now -- tell me who do you think is probably going to make more money at work? Would it be the people who consider their jobs "secondary" to the jobs of their spouses, or would it be the people who consider their jobs to be the "primary" jobs in the family? Do I really have to ask? Of course not. And, if that's the way those women want it, then what's the problem?

I can tell you what the problem isn't: it isn't employment discrimination. 

Image credits: Wikimedia Commons: (1) President Obama signing Lilly Ledbetter Fair Pay Act into law (January 2009) with Lilly Ledbetter standing behind him (in black turtleneck); (2) random person starting a jigsaw puzzle; (3) Benno Adam, "Stier"; (4) William-Adolphe Bouguereau, "The Elder Sister."

Dum-da-dum-dum!

The Equal Employment Opportunity Commission has adopted essentially the Strategic Enforcement Plan that I posted about earlier this year. The final version has added "equal pay enforcement" to its list of high priorities. Here is the EEOC's press release, and here is the final version of the Plan. The Plan will be in effect from Fiscal Years 2013 through 2016. We'll have to wait and see whether this really translates into more aggressive enforcement against employers.

It's been an interesting week, hasn't it? Congratulations to President Obama on winning a second term. My Election 2012 coverage would not be complete without some labor and employment prognostications for Obama Administration II.*

*Please do not read these again in 2016 to see how accurate I was. I don't want to be known as the Dick Morris of employment law bloggers.

Aggressive agencies and E.O.s. Because the GOP managed to hang onto control of the House, the President will not be able to push through much in the way of legislation -- at least, not before the 2014 mid-term elections. Of course, Obama has had the same problem since the 2010 mid-term elections, but he's gotten around it in two ways: (1) by issuing Executive Orders, and (2) by having his agencies take expansive, aggressive positions on existing laws. This is expected to continue in his second term.

For some employment-related examples, just take a look at the EEOC's proposed Strategic Enforcement Plan, which calls for going after employers who require pregnant employees to take medical leaves of absence if they can't do their jobs. Right now, reasonable accommodation of normal pregnancy is not required. The EEOC also intends to enforce non-discrimination against individuals based on their LGBT status. Right now, some courts have said that "gender stereotyping" and discrimination based on gender identity is a form of sex discrimination, but Title VII does not directly address this, and it doesn't prohibit discrimination based on sexual orientation.

If the Democrats regain control of both houses of Congress, we'll see enactment of more employee-friendly legislation (which I'll discuss below). In the meantime, look for more E.O.'s and agency interpretations that push the envelope.

"Say hello to my little friend, the EEOC!"

Supreme Court: Ginsburg breathes a sigh of relief, while Scalia and Kennedy try to hang on by their fingernails. With Obama's reelection, Justice Ruth Bader Ginsburg can retire in peace, knowing that her successor will be philosophically compatible. Meanwhile, Justices Scalia and Kennedy, who at 76 are no spring chickens, will probably try to hang on until the 2016 election. A replacement for Justice Ginsburg, of course, will not change the usual 5-4 conservative majority on the Court. But if President Obama has the opportunity to replace Justice Scalia or Justice Kennedy, that narrow majority is kaput.

"Oy vey, Tony," said Nino, "I'm too old for four more years of this." "Eh? Did you say something, Nino?" Tony replied.

National Labor Relations Board: More of the same (can it get any worse?). Right now the Board has four members and one vacancy. Two active members (Sharon Block and Richard Griffin) are vulnerable to challenge as the President's allegedly improper recess appointments. (The third member subject to this challenge, Terence Flynn, has already resigned from the Board.) Meanwhile, we can look forward to more Board decisions and opinions invalidating employer social media policies, taking a dim view toward employment-at-will disclaimers, taking an expansive view on protected concerted activity, and much more. With poor ol' Republican Brian Hayes as the lone dissenter. Bless his heart.

Affordable Care Act. I guess this is really gonna happen. The Supreme Court has said it's constitutional, and Congress won't be able to repeal it. Open enrollment begins next fall (2013).

President's (labor and employment) legislative wish list. The President has made clear that he favors enactment of the Paycheck Fairness Act, which would make it much easier for women to bring lawsuits for pay discrimination. No doubt the GOP will oppose this, unless they are skittish about the gender voting gap that we saw in this election. If the Democrats regain control of the House and hold on to the Senate, I would also expect the President to push for enactment of the Employment Non-Discrimination Act, which would prohibit discrimination based on sexual orientation and gender identity. He may also try to revive the Employee Free Choice Act, which would have required recognition of unions through card-check without elections. And based on the signals we've been getting from the EEOC, I would also expect him to try to enact an amendment to the Pregnancy Discrimination Act requiring reasonable accommodations for pregnancy.

Other interesting election issues:

Same-sex marriage. Voters in the states of Maine, Maryland, and Washington all approved measures allowing same-sex marriage. This is the first time in history that voters, as opposed to courts or legislatures, have approved such measures. Has the zeitgeist changed? Also, Minnesota rejected a constitutional amendment, similar to the one approved by North Carolina voters in May, which would have defined marriage as between one man and one woman.

Of course, same-sex marriage requires employers to treat married same-sex couples the same way they treat married opposite-sex couples with respect to employee benefits, spousal leave under the Family and Medical Leave Act, and other purposes. Many employers have already adopted such policies voluntarily for partners in civil unions.

Legal pot! (Dude. Sweet.) Voters in the states of Colorado and Washington approved legalization of the sale or possession of marijuana in small amounts, even for recreational purposes. According to a court decision I reported on earlier this year, legalized pot may not make a difference to the exclusion from protection under the Americans with Disabilities Act for "current use of illegal drugs" because the illegal drug definitions in the ADA are based on federal law. In other words, unless the ADA is amended again, it may not be a violation for a Colorado or Washington State employer to take action against an employee for testing positive for marijuana.

*hic* "Way to go, our friendsh from the Centennial and Evergreen states!" *hic*

Puerto Rico votes to become an estado. (Or did it?) For the first time ever, voters in Puerto Rico approved a measure that would begin the process for statehood. It is expected that our prospective 51st state would be a "blue" one, so we may see a break along party lines if and when Congress ever takes this up.

So, what are your predictions? Feel free to post them in the Comments section!

Photo credits: Wikimedia Commons.

Lois Lane and I have to maintain our journalistic integrity.

Last night, I finally took a peek at what my colleagues were asking, and there were indeed some great questions that I wish I'd thought of.

Dan Schwartz, who organized our blogfest (thank you, Dan - this was a great idea!), had multiple questions for each candidate. Dan appears to have shared my concerns about the need for more pay equity legislation and was critical of the progress that has been made thus far on enacting the Employment Non-Discrimination Act. My favorite question of Dan's, though, addressed to Governor Mitt Romney, was whether he really intended to "de-politicize" the National Labor Relations Board and, if so, how.

Jon Hyman took a bipartisan approach, asking President Obama why his administration had done so little to help families, implying that Jon favored expansion of the Family and Medical Leave Act. He also implicitly criticized Governor Romney for waffling on the ENDA. But then he asked Vice President Joe Biden to explain to employers his support for an aggressive NLRB and the Employee Free Choice Act, and he implied that Congressman Paul Ryan wasn't a true fiscal conservative -- notwithstanding Ryan's expressed admiration for Ayn Rand.

Mitt Romney was accused of a lot of waffling this week.

Eric Meyer asked Gov. Romney whether he would repeal the FMLA (yeah, right!) and, like Jon Hyman, criticized Vice President Biden for the administration's failure to do more to enact equal pay legislation.  Yesterday, his question to Congressman Ryan was very similar to the one I had asked -- whether Ryan believes there is any role for unions in today's workplace. Eric went one step further than I did, asking Ryan whether he believed in repealing the National Labor Relations Act altogether.

Donna Ballman of "Screw You Guys, I'm Going Home" and author of Stand Up for Yourself Without Getting Fired was the only plaintiff's lawyer in our group, and she did not disappoint. She was unabashedly partisan, and I'll focus on her questions for the Republican candidates, since adversarial questions are more fun.

She asked Romney whether he still believed that management needed to be more cooperative with labor and forgo some perks so that companies would survive, and then commented, "I'm pretty sure I know the answer, but I'd like to hear him backpedal." She also accused him of waffling on whether the minimum wage should be tied to the Consumer Price Index (a position he had taken as governor of Massachusetts but presumably no longer holds). "This election is of huge importance to employees," she concluded. "You can either vote against your own economic interests and can buy into what Fox is telling you, or you can vote with your wallet. For anyone making under a million a year, the choice is pretty clear."

Here's Donna Ballman going after the GOP. (Just teasing, Donna!)

Then it was Ryan's turn to face Donna. She raked him over the coals for his comment at the Republican National Convention implicitly blaming Obama for a plant closing in Wisconsin when the plant closing had actually been announced during the end of the Bush Administration and only carried out during the Obama administration. (She also had questions about his support for extending unemployment benefits, his support for Governor Scott Walker of Wisconsin, and of the ENDA.)

In short, it was a lively week, and a good time was had by all. I hope you enjoyed it, too. The first real presidential debate will be next Wednesday at 9 p.m. Eastern on most major TV networks and streamed over the internet. Be sure to tune in and see whether the moderators use any of our questions! I am sure they will.

Photo credits: Wikimedia Commons.

EEOC does nothing to protect actor wrongfully terminated because of arrest record. (NOTE: I'm being tongue-in-cheek here.) You have probably heard by now about the arrest of actor Fred Willard for alleged "lewd conduct" in an adult movie theater. Willard denies behaving lewdly apart from being in the XXX-rated movie theater in the first place, and his lawyer contends that even if he was more lewd than that (just for the sake of argument), it's not a violation of the law. That's about as much detail as I can provide in a family blog, but Google has plenty more for those who want it.

Anyway, none of this would be a concern to us except that Willard was almost immediately fired from his job as a host of Market Warriors, an antique-shopping show on the Public Broadcasting System. I have just one question: Isn't it against the law to fire people for arrests? Especially when they maintain their innocence and their alleged behavior doesn't endanger anybody? (OK, that was two questions.)

(PLEASE NOTE AGAIN: The above was tongue-in-cheek.)

No private right of action on "lactation accommodation" claim, but retaliation claim survives. A federal court in Iowa has dismissed some claims of a convenience store employee who alleged that her employer did not provide her with a private place to express breast milk, in violation of the Patient Protection and Affordable Care Act (aka "Obamacare") amendments to the Fair Labor Standards Act. (Scroll down to January, "Express yourself.") The court said that the plaintiff had the right to file a complaint with the U.S. Department of Labor but not a lawsuit against the store chain. According to the plaintiff, she was told to express milk in a store office, which worked out fine until she learned that there was a surveillance camera in the office (*yikes!* I am sincere - no sarcasm!). When she told management about the camera, they refused to remove the camera but told her to cover the lens while she was expressing milk. She alleged that she continued to feel uncomfortable and that her milk production suffered as a result. Although the court dismissed her "accommodation" claim, it allowed her retaliation claim to go forward. (She alleged that she was constructively discharged after complaining.)

If you grant leave to an employee who doesn't qualify for FMLA, fine, but do not call it "FMLA leave." A federal court in Pennsylvania has held that a county employer cannot defend an FMLA retaliation claim by contending that the plaintiff wasn't eligible for FMLA leave . . . even though she wasn't. The plaintiff's son had Asperger's Syndrome, and she requested intermittent leave for him even though she had not worked 1,250 hours in the year preceding her request for leave. The county apparently assumed she was eligible and "granted" her FMLA leave and provided paperwork indicating that she qualified for FMLA leave. She was later terminated for attendance and sued for FMLA retaliation (punishing an employee for requesting or taking FMLA leave) and FMLA interference (denying FMLA leave or discouraging employees from requesting or taking FMLA leave). The court dismissed her interference claim because she was indeed ineligible for FMLA leave -- therefore, she had no FMLA "rights" for the county to interfere with. But the court allowed her retaliation claim to go forward because the county had led her to believe that she was eligible and could have the time off that she had requested.

Gender pay gap widens? Or, is it just that men are going back to work? Which would be good, right? A recent report from the U.S. Department of Labor's Bureau of Labor Statistics shows that median weekly earnings for men working full-time increased 4.8 percent in the second quarter of 2012. This resulted in an increase in the gender pay gap among full-time employed people. In the second quarter of 2011, women employed full-time were paid 83.5 cents for each dollar that men employed full-time were paid. In the second quarter of 2012, the share for women employed full-time dropped to 79.7 cents on the "male dollar." Of course, the statistics are comparing only individuals who are employed full-time, and men have suffered disproportionately from unemployment in the current economy -- so much so that it has been called a "mancession." Suzanne Lucas of Evil HR Lady has a good discussion of why women shouldn't be up in arms about this latest "pay gap" news.

Feds say work-life balance improves safety and health on the job. Now you have no excuse! Not long ago, I had a post on work-life balance and its importance. The National Institute of Occupational Safety and Health has now come out with an article saying that work-life balance contributes to a healthier and safer work force.

Speaking of work-life balance . . . Constangy, Brooks & Smith has extended the entry deadline for its 7th annual Work-Life Balance Award until August 10. If you're interested in entering your company or in-house legal department, please go here to get all the info and download an entry form. There is no cost to enter! If you have any questions, you can contact Wendy Angel.

"Curioser and curioser": Check out the July edition of the Employment Law Blog Carnival. The always-excellent Heather Bussing of HR Examiner has done a great job with the latest edition of the Employment Law Blog Carnival, with links to posts by such luminaries as Jon Hyman, Eric Meyer, Donna Ballman, Mark Toth, and Phil Miles, and many others among whom I am honored to be included. It's definitely worth a read.

Photo credits: Wikimedia Commons (public domain). Painting is Mary Cassatt, "Baby John Being Nursed" (1910).
Hat tip to Bloomberg BNA for every item except Fred Willard and Blog Carnival.

Well, wait a minute. Let me try that again. I'm not skeptical about the existence of the pay gap. I'd be a fool to deny all that cold, hard reality. I just don't think it's usually a result of sex discrimination. Nearly all of the pay gap can be explained by the lifestyle choices that women are more likely to make. Such as the following:

*Until the latest generations of women, entering the workforce later than men.

*Until the latest generations of women, less formal education than men. (For you youngsters who may not know, back in the dark ages, women used to drop out of school to get married. Really!)

*Then and now, interruptions of career to bear and rear children.

*Choosing a "job" instead of a "career" to have more time for family.

*Working fewer hours because of personal/family needs.

*Placing a premium on flexibility rather than money because of personal/family needs.

*Tending to choose cleaner, safer jobs that don't involve heavy lifting, extensive travel, or other "negative" working conditions where the tradeoff may be premium pay.

Now, if you are a female zillionaire CEO or a single mom who is the sole financial support of her family, please don't tell me I'm full of beans. I know there are plenty of women who earn more than their husbands, or even have husbands who stay home and take care of the kids full-time, or don't even have husbands at all. But statistically speaking, women are far more likely to take on most of the "family" responsibility while their husbands focus on being the primary economic support of the family. And, I submit, this explains nearly all of the "gender gap" in pay.

In other words, as I've said before (scroll down to No. 5), I think the "women earn only 81 cents for every dollar that men earn," is a gross exaggeration to the extent that it's used as evidence that rampant sex-based pay discrimination continues to plague our nation.

OK. I hope I have sufficiently disclaimed what is about to follow.

The U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed summary judgment for an employer in an equal pay case.

Before I talk about the case, let me share what we usually find when we audit pay. I've done my share of "compensation analyses," either in connection with equal pay charges or lawsuits, or audits by the Office of Federal Contract Compliance Programs, or sometimes just because the employer wants to make sure it is paying employees in a fair and equitable manner.

What we usually find is a lot of gaps, frequently correlated with race or sex. To put it more bluntly, what we usually find is that the white guys generally are making the most money. But, as we all know, "correlation is not causation." When we probe, we usually find good, non-discriminatory explanations for almost all of the discrepancies. Maybe Joe was hired with 20 years' relevant experience, while Mary was recently promoted from a lower-level position. Maybe Mary had a five-year interruption a few years ago while her kids were in preschool, and hasn't caught up since her return to the work force. Maybe the gap can be explained by some other reason, like Joe is a hard-working, extremely talented, prince of a fellow, beloved by all, and Mary is a rude, clock-watching, incompetent ninny who doesn't even deserve to work when you really think about it.

However, we also frequently find one or two people whose pay is below where it should be and for whom there is no good explanation. This doesn't necessarily mean that discrimination was the reason. But if you're sued or audited by the government, and a pay gap is discovered that you can't explain, a judge or jury, or the government, is going to assume that the real reason was discrimination.

(The good news is that if you find discrepancies like this on your own, it's pretty easy to fix them by making a pay adjustment.)

Which brings us back to this Seventh Circuit case, which contains some good lessons for employers who want to ensure that they're "clean" from an equal pay standpoint. So, let's make the usual Y-shaped incision and perform an "autopsy" of the case, shall we?

(Continued . . .)

Ms. King was a business manager whose compensation was supposed to be based primarily on sales results. The employer conceded that her results were better than those of most of her peers, so she wasn't like my fictional Mary the ninny. Even so, Ms. King's starting salary was low, and it increased only $6,000 in six years.

Well, you may say, times are tough. Yes, they are. Except that her male peers were getting much bigger increases than she was during those same "tough times." In fact, one male peer, who the company had conceded was comparable in performance, was making about three times as much as she was.

And it wasn't just the plaintiff, either -- almost all of the female business managers had low starting salaries, and got smaller increases without necessarily worse performance.

The company claimed that the women started lower because they had less education and less relevant work experience. Sounds reasonable?

Maybe . . . except that, as the court pointed out, even though less education and experience might explain a lower starting salary, it doesn't explain why she's continuing to get paltry annual increases after she's come in and shot the lights out . . . while the dudes, who aren't any better, are raking it in.

The burden of proof was on the employer to, uh, prove that education and experience were in fact the reasons that the women did so poorly. It didn't help that the guy who set the salaries testified in his deposition that the process was "subjective" and refused to elaborate. 

The court said that Ms. King should have the opportunity to prove that the employer's explanations for the pay disparities "were just smokescreens."

Ouch, baby. Very ouch.

In one last desperate move, the employer argued on appeal that the selection of pay rates was not discriminatory because it was "random." NOTE TO EMPLOYERS: When you have to make this argument, you might as well get out your wallets. Of course, the Court slapped that one down, too. The Court said that, although "random" doesn't equate to "discriminatory," one would expect truly "random" salaries to sometimes give women the advantage. In this case, the women almost all did significantly worse than almost all of the men.

So, Doctor, how shall we avoid this employer's fate?

First, employers should conduct preventive compensation audits to find problems like this and fix them before they become "issues." Once a year is ideal. Less often isn't as good, but anything is better than nothing, as long as you fix the problems you find.

Second, consider doing all pay increases for employees in a given job category at the same time each year, rather than doing them on individual employees' anniversary dates. If you're doing them all at the same time, you will be much more likely to notice without even trying that Jane is getting a pittance in relation to John, so you can take whatever remedial steps are necessary. If you use anniversary dates, be sure you make the extra effort to compare the employee with his or her peers.

Third, be fair across the board. The King case focused on discrimination against women. Sometimes we find that a white male is paid less than it seems he should, compared with his female or minority peers. Even if the person who deserves more money is a white guy, don't hesitate to do the right thing and get him where he needs to be. Sometimes the government looks for "reverse" discrimination, too. Which, as we all know, is also illegal.