Marissa Mayer's Pregnancy: An Interesting Window into Women, Pregnancy, and the Workplace

Pregnant Executive.jpgMarissa Mayer was recently named the new CEO of Yahoo. She is a former vice-president of Google who has amassed plenty of professional accolades and otherwise seems to be really smart (I love this interview she gave to Fast Co., especially point No. 7). 

But I found it more interesting that news outlets mostly bypassed leading with her professional achievements and focused on Ms. Mayer's pending pregnancy. Consider for example this sampling: 

The coverage that Ms. Mayer's pregnancy received highlight two points relative to employment and pregnancy. 

The Media Can Make a Big Deal about a Pregnant Employee; Employers Shouldn't. 

First, any employer that announced hiring decisions or made employment decisions based on pregnancy would make headlines for all the wrong reasons. 

This is because under Michigan law, pregnancy discrimination is prohibited. To prove pregnancy discrimination, a plaintiff must show that the employer discriminated against the employee on the basis of a pregnancy. MCL 37.2202(1)(a) (Technically, the Michigan statute prohibits employment discrimination because of sex and MCL 37.2201(d) defines "sex" to include pregnancy). 

In addition to the headlines, is the cost of discrimination. The Equal Employment Opportunity Commission reported at the beginning of 2012 that "53,865 charges alleging pregnancy discrimination" had been made over the past 10 fiscal years. These charges resulted in $150.5 million in monetary benefits for charging parties.

One reason for the number of filings may relate to the consistently high percentage of mothers in the U.S. workforce with children under 18 years of age. The chart from the Catalyst, a nonprofit organization focused on expanding opportunities for women and businesses, illustrates this point: 

LABOR FORCE PARTICIPATION RATE OF MOTHERS (WITH CHILDREN UNDER 18)

chart

On the one had, these numbers are encouraging in that women with children have the opportunity to remain in or return to the workforce. But on the other hand, it is worth noting that the U.S. is one of only a few countries on the planet where employers are not required to offer mandatory maternity leave. In contrast, countries like Canada and Norway provide 40 weeks or more of paid maternity leave.

Women - Young and Old - Still Underrepresented in the Ranks of CEOs. 

Second, it was also reported that Ms. Mayer is one of the youngest female CEOs. But you could drop "young" from that headline and it is still newsworthy.

This is because women significantly remain underrepresented when it comes to the rank of CEO.

Consider for example these numbers from a 2009 article from Harvard Business Review:  

When we studied the leadership of 2,000 of the world's top performing companies, we found only 29 (1.5%) of those CEOs were women, an even smaller percentage than on the Fortune 500 Global list (2.6%).

Closing Thoughts

While the workplace has certainly evolved to be gender-blind (most of the time) it is interesting that outside of the workplace women still face greater scrutiny in the media and public discussions when they decide to have a career and have children.

And it is a scrutiny that simply does not exist for men. Take Google co-founder Larry Page; He was expecting his second child two months after he took the CEO title at Google. That is probably news to most because there were no headlines, social media discussions, or debates about whether he could lead a technology giant and still be a father. 

Unfortunately, Mr. Page had it much easier than Ms. Mayer's circumstances: Google vs. Yahoo (do you need to say anything more?) and no one questioned his decision to be a father and CEO. Aside from dealing with the occasional guilt experienced because you make more for no other reason than gender, being a guy is a really good gig.   

For more information regarding avoiding pregnancy discrimination and other employment law claims, contact Jason Shinn.  

Marriage and the Workplace - Not Always a Perfect Match

Marriage.jpgI'm a big fan of marriage; It has definitely been good to me.

But marriage does not always mean it is good for a company ... at least when it comes to hiring, preemployment inquiries, or every day operations. 

Employers, however, that do not understand when they can or cannot make hiring and firing decisions based on marital status run the risk of paying out to the happy couple a money judgment or settlement for marital discrimination. 

Preemployment Inquiries about Marital Status.

Under federal law employers are generally not prohibited from asking questions regarding marital status (but such inquiries may constitute evidence of unlawful discrimination unless otherwise explained). Michigan law is different and employers are expressly prohibited from asking such preemployment inquiries, unless the employer can establish a bona fide occupational qualification for the inquiry. MCL 37.2206. Specifically, the Michigan Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.) prohibits discrimination in hiring based on, among other criteria, marital status. 

Marital Status and Workplace Restrictions Against Hiring a Spouse.

Despite the above restrictions, under Michigan law employers may enforce anti-nepotism policies that prohibit hiring relatives - natural or through marriage - of a current employee. Such policies will not generally constitute discrimination on the basis of marital status in violation of the ELCRA.  

So what is the difference between unlawful discrimination based on marital status and lawful discrimination based on workplace restrictions against hiring a spouse? 

Essentially the Michigan Supreme Court has said that the difference is one of stereotypes: A "no-spouse" rule is not discrimination on the basis of marital status but rather "different treatment based on the fact that one’s spouse works in the same place as the applicant" and this is "not discrimination based on a stereotypical view of the characteristics of married or single persons." Whirlpool Corp v Michigan Civil Rights Comm’n (1986).

Can an Employer's Anti-Nepotism Policy Force Married Employees to Quit?

A situation may arise, however, where two employees marry after having been hired. In that situation a company's anti-nepotism policy restricting spouses from working together may lawfully require one of the spouses to resign or transfer. But as explained below, the policy cannot have an adverse impact on males or females, i.e., it must be applied in a nondiscriminatory manner. 

The Take-away for Employers.

Under Michigan law employers are prohibited from discriminating in hiring based on marital status. But this prohibition will generally not extend to anti-nepotism policies that prevent spouses from working for the same employer. Accordingly, an employer can refuse to hire a spouse of a current employee and that anti-nepotism policy may also compel a spouse to resign or transfer.

To be valid, however, it is important for employers to apply such policies evenhandedly and to make sure the policy does not have an adverse impact on males or females. One way to meet this last criteria is to allow each couple to decide which one would transfer or terminate.

Understanding Family Medical Leave Act Claims - One Statute, Two Possible Claims

Fog & Uncertainty.jpgCompanies understandably find employment law to be simultaneously chaotic, complicated, and confusing. And this state of affair certainly applies to the Family Medical Leave Act, (FMLA). This is especially true when it comes to the two distinct type of claims that may be brought under the FMLA and the consequences each type of FMLA claim has on evidentiary issues for employees and employers.  

The Two Types of Claims that Can be Brought under the FMLA

FMLA violations can be broken down to essentially two categories:  First, under the FMLA it is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the Act]." 29 U.S.C. § 2615(a)(1).

Second, it is also unlawful for an employer under the FMLA to "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act]." 29 U.S.C. § 2615(a)(2).

Accordingly, employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies. See 29 C.F.R. § 825.207(a). Follow this link for more background about the FMLA

These two statutory provisions give rise to two distinct claims against employers in the Sixth Circuit (the federal jurisdiction applicable to Michigan employers). Specifically, the Sixth Circuit recognizes two discrete theories of recovery when it comes to FMLA lawsuits:

  1. The "interference" or "entitlement" theory arising from § 2615(a)(1); and 
  2. The "retaliation" or "discrimination" theory arising from § 2615(a)(2). 

Different Evidentiary Issues Arise Depending upon the FMLA Claim

For employers, it is important to understand which category of FMLA violation is in play. One reason for making this determination is because the applicable evidentiary proofs are different for interference and retaliation claims; The primary distinction being that an employer's intent is not considered in an interference claim.

The reason for the different evidentiary standards because an interference claim is based on an employer's interference with the FMLA-created right to medical leave or to reinstatement following the leave. Thus, a violation has occurred regardless of the intent of the employer.

In contrast, the central issue raised by FMLA retaliation claims is whether the employer took the adverse action because of a prohibited reason or for  a legitimate nondiscriminatory reason. Thus, an employer's motive is always relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.

Take-aways for Employers

Even if employers don't always know the answers to FMLA or other employment law questions, it is important for employers to understand - at a minimum - enough to ask the right questions (and then follow up to make sure to get the right answer). For the FMLA, the starting point for this understanding is determining which claim is being made - a retaliation claim or interference claim. For more information about complying with the Family Medical Leave Act, contact Jason Shinn

 

Are Employers Still in Denial About E-discovery Readiness? Survey Says ....

Head in Sand.jpgI recently gave a presentation about controlling e-discovery costs in employment litigation. The topic is especially relevant to employers because e-discovery costs and risks are often inherently one-sided. And there is nothing more frustrating for a company to settle a claim with little to no merit, simply because the cost of litigation - magnified by e-discovery costs - drives the decision-making process. But I digress.

As to the presentation, it was presented in collaboration with i-Sight (a leader in providing web-based case management software for corporate investigations) and, specifically Joe Gerard, Dawn Lomar, and Lindsay Khan. For any professionals that get the opportunity to work with Joe and his team, I highly recommend it: They are very easy to work with and do an exceptional job of making the presenter look good. But I digress yet again.

As to the seminar, it appeared to be well received based on the number of people who signed up and actually stayed on for the entire presentation.

During the seminar questions were asked of the attendees about the efforts of their organizations towards e-discovery planning and procedures. Two of those questions and corresponding responses are as follows: 

  • Does your organization have a e-discovery retention plan?

Disappointingly, only 24% of attendees responded that their organizations had an e-discovery retention plan. 76% of respondents. 

  • How confident are you that your company’s retention plan would survive judicial scrutiny?

The responses to this question should be very concerning for employers. Specifically, the majority of the responses fell in the range of "Not at all confident" to "Somewhat Confident." Only five attendees responded "Extremely Confident." It is, however, worth noting that no one responded "Who do I write the check to" (an actual choice).  

The Take Away for Employers

The results of the above informal survey illustrate the two biggest contributors to e-discovery mistakes and sanctions arising out of those mistakes.

First, the key to avoiding mistakes in responding to e-discovery litigation challenges begins with actively creating sound e-discovery procedures before a lawsuit arises. Taking the results of the above survey at face value, such proactive planning is woefully deficient. In fact, employers you would expect to be on top of e-discovery issues are not (See The Importance of Timely Preserving Email in Employment Discrimination: Part I, discussing e-discovery missteps by a major law firm that actually advertised its "expertise" in advising clients on e-discovery).

Second, procedures do little good if a company is not ensuring that all personnel are aware of the importance of diligently following the procedures. But borrowing a concept from Colin Powell, part of this diligence means instilling in an organization's employees the concept of "never walking past a mistake." In other words, those responsible for carrying out an e-discovery litigation plan should be encouraged to share their views for improving the process.