A Simple, Legal Way to Help Stop Employment Discrimination

Originally posted at TheAtlantic.com.

Women and racial minorities are no longer making progress toward equal representation in the workplace. Here’s a way to maybe fix that.

Jacquelyn Martin

Progress toward gender and racial equality in the workplace has basically stalled. One reason for that is the government’s lack of antidiscrimination enforcement. As Donald Tomaskovic-Devey and Kevin Stainback show in their book Documenting Desegregation, ever since the reign of Clarence Thomas as head of the EEOC in the 1980s, the Equal Employment Opportunity Commission (EEOC) has been underfunded, understaffed, and largely ineffective at doing its job. To help get things moving again, under the existing law (more or less), we could use the power of social media and the principle of government transparency to allow workers and consumers themselves to apply pressure on discriminating employers. Would it work? It couldn’t hurt. First a little background.

Anti-discrimination today
Here is the occupational segregation trend from 1966 to 2005, fromDocumenting Desegregation, just comparing white and black men and women. The index of dissimilarity shows what percentage of a group would have to change jobs to have the same representation as white men.

The figure shows white women made a lot of progress in the 1970s and 1980s, but less since. Black women have a similar pattern but much slower progress. And black men haven’t budged since 1980. The same pattern holds for representation in managerial jobs.

The burden to fight discrimination today is mostly on workers who have been discriminated against to first discover this fact and second file a complaint and/or lawsuit themselves. The courts have tightened their definition of discrimination to include only deliberate acts proven to have been motivated by discriminatory intent – a very steep burden. And they have reduced workers’ capacity to bring class actions, most notably in the Wal-Mart decision, which makes it hard to get good legal teams. As a result, few cases make it to court, and virtually no one wins. A study of 1,672 employment discrimination cases from 1988 to 2003 found that about half resulted in settlements (with a median value of $30,000), 6 percent went to trial, and one-third of those were victorious (with a median award of $110,000). Although more than 100,000 people file discrimination complaints with the EEOC, most workers lack basic information not only about the law and their options, but about their own employers’ practices (as was painfully revealed when Lilly Ledbetter discovered she had been discriminated against by Goodyear for many years). And people who aren’t hired in the first place have an even smaller chance with the law.

In the 1964, Congress passed the Civil Rights Act, which included in Title VII a mandate to collect information about employment in the private sector. Since 1966, all large employers are required to submit a simple accounting: the number of workers, by race and sex, in each of nine occupational categories. This has produced a treasure-trove of data, which Tomaskovic-Devey and Stainback used to document the trends. But this information could be used more proactively by the government itself, if stopping discrimination were a higher priority.

Anti-discrimination tomorrow
Defining and proving discrimination is difficult. Many employers have no outward motivation to discriminate—they just don’t do enough to stop discrimination by individual supervisors, recruiting practices that produce narrow applicant pools, and malicious co-workers. So not every workplace with an underrepresentation of women or minorities is a case of willful discrimination. But when a workplace has significant underrepresentation in either its management or its overall employee pool, it’s at least worth taking a look to see what’s going on.

Here’s my suggestion, inspired to by Documenting Desegregation. Underrepresentation is very widespread, and easy to detect. Why not label it?

Using the same EEOC data, my colleague Matt Huffman and I identified workplaces in which there were fewer African-American managers than would be expected by chance, using a test common in employment litigation. With a wide statistical margin—95 percent confidence—we found, for example, that 7 percent of black private-sector workers in the D.C. metropolitan area worked for employers with easily identified underrepresentation of black managers. That is, they had fewer black managers, compared with other firms in their same industry in their same town, than would have occurred by chance. Maybe they aren’t discriminating on purpose, but they’re probably doing something wrong. As a customer, client, business partner or job applicant at that firm, wouldn’t you like to know that? (Of course, as researchers we are prohibited from revealing information about individual employers.)

So why doesn’t the EEOC generate a simple certificate, like the one I have mocked up here, to notify the employer, the employees, and the public, about such cases? (This would only apply to those with 50 workers or more.)

This hypothetical firm has an overrepresentation of white men in management compared with the local industry (for example, a department store with 60 percent white male managers when the local industry average is 30 percent). They have underrepresentation of black women across the board, and Latina women compared with the rest of the industry locally. Representation of the other groups isn’t outside the range of the 95 percent test, or there aren’t enough cases to judge. The test accounts for sample size—if you only have two managers at your business, and one is a white man, you’re not going to fail.

It could be like the health department certificate posted on a restaurant wall (and online). Then, maybe someone who worked there would get up the courage to file a complaint. Maybe customers wouldn’t shop there. Maybe politicians running for office would promise to improve the local statistics. Maybe concerned managers would honestly consider their hiring practices to look for ways to do better.

This doesn’t reveal any trade secrets. It doesn’t increase the reporting burden on employers, since they’re already required to submit the forms. It wouldn’t cost much. But it gives the public a little more leverage and increases the accountability for employers. It wouldn’t solve everything either. But if equal opportunity employment were a major priority, a small step like this would seem pretty reasonable.

Gender discrimination bills ranked

With the news that Tom Harkin, the Democratic senator from Iowa, is retiring, I’m reminded of the sorry state of congressional legislation against sex discrimination.

Please correct me if you think I’m wrong, but my reading of the three recent bills ranks them like this, from least to most important:

3. The Lilly Ledbetter Fair Pay Act of 2009. This changed the Civil Rights Act to reset the statute of limitations every time a discriminatory paycheck is issued. It undid the pernicious Ledbetter Supreme Court case, which interpreted the law to start the clock with the first act of discrimination.

• STATUS: Signed by President Obama, used as the symbol of his dedication to “putting the law behind the principle of equal pay for equal work.” But it didn’t address the biggest problems in the law, which still permits different pay for equal work, just not identical work (with the same job title, in the same establishment, in some cases).

2. The Paycheck Fairness Act. Hillary Clinton used to sponsor this while she was in the Senate. It would narrow the “exception to the prohibition for a wage rate differential,” which is described as “closing loopholes” in the law. I can’t tell how much of a difference that would make, but I heard smart lawyers say it would help. It would also prohibit retaliation against employees in some cases and strengthen class action protections.

• STATUS: 36 Cosponsors in the Senate and going nowhere fast.

1. The Fair Pay Act. Introduced regularly by Sen. Harkin, most recently in 2011. “Most importantly,” according to Harkin, “it requires each individual employer to provide equal pay for jobs that are comparable in skill, effort, responsibility, and working conditions.” Where current law makes it next to impossible to sue for discrimination when men and women have separate job titles, this bill would make employers defend their pay differences across different jobs, held by men versus women, to show the pay gap was justified. This is the scariest of the lot for employers.

• STATUS: 8 Cosponsors and going nowhere very slowly.

Without Harkin, we may not even get the symbolic re-introduction of the Fair Pay Act each session.

Employment unequal

The news each month is usually on unemployment rates, weekly filings of new claims, layoffs and new hiring. And the Pew report on widening race/ethnic wealth gaps was eye-opening. But you can take the measure of the recession overall maybe best with the employment rates — how many people have jobs? By that measure, the news is flat-to-down without letup. The Black-White discrepancy in the trends is increasing.

Here is the employment trend for White and Black women, showing that Black women had higher employment rates before the recession, but they’ve fallen more than twice as much as White women’s (a drop of 5.7% versus 2.4% as of June):

Source: Bureau of Labor Statistics data.

For men, the gap is bigger and the lines further apart, so I added a ratio line to help show the gap. Black men’s rate has fallen 5.6%, compared with 3.8% for White men:

The Christian Science Monitor has an article reviewing some of the factors that contribute to the unemployment gap for men, including education, incarceration and discrimination. And the Center for American Progress has more detail in this report, which argues that declines in manufacturing and public employment are increasing the Black-White gaps especially in this recession.

What the broader statistics don’t show as well is the tenuousness of the jobs Black workers have compared to Whites generally – working for weaker firms, in more segregated jobs, as a result of a racialized sorting process, which put them at higher risk of job loss in a recession (even without discrimination in firing decisions, which there is, too).

Behind the gendered workplace

In a law review call and response, a law professor and a sociologist take on the issue of how to address gender discrimination legally.

Duke Law professor Katharine Bartlett argues in the Virginia Law Review that strengthening options for suing employers is not the answer to gender discrimination. Instead, the good intentions of employers and managers should be supported, through

strong, unambiguous norms, trust, teamwork, leadership, positive example, and opportunities to grow and advance. [On the other hand...] Excessive legal control and pressure undermine people’s sense of autonomy, competence, and relatedness and thus their commitment to nondiscrimination norms.

In other words, we need more carrot and less stick to combat gender discrimination.

In response, sociologist William Bielby, who has worked on behalf of the Wal-mart women’s class-action suit, counters that, even if crude overt discrimination has diminished, not all the remaining gender inequality is caused by unconscious bias. He warns that, since the ” ‘cognitive turn’ in workplace bias discourse”:

…scholars, litigators, human resource professionals, and diversity consultants have become so enamored with the notion of ubiquitous unconscious, implicit, or hidden bias that they are quick to attribute systemic workplace racial and gender inequality to what is going on in people’s heads. Instead, it is vital to consider what is built into organizational structures, processes, and routines.

As it happens, this is the 20th anniversary of the classic article by Joan Acker, “Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations” (now the second-most cited article in the history of the journal Gender & Society). In the Spring newsletter for the ASA’s OOW section (don’t ask), Acker has a brief essay in which she reiterates the premise of her original article:

“The worker” under capitalism is implicitly defined as unencumbered by any obligations other than those to the job, and work is usually organized on the basis of this assumption. Historically, women have been seen as encumbered wives and mothers and thus not real workers and not entitled to the rewards and rights of real workers.

She and her colleagues have completed a study of welfare reform — Stretched Thin: Poor Families, Welfare Work, and Welfare Reform. Now she sees welfare reform as “part of the redefinition of most women in neoliberal society.”

Equality may be defined now as the transformation of women into neoliberal gender-neutral unencumbered workers whose main efforts go to the job. This path to gender equality is impossible for many women, and some men, for whom it constitutes a fundamental contradiction: work expectations and family needs do not mesh.

Acker’s article was important for establishing the gendered nature of workplace “structures, processes and routines” that Bielby is talking about — and wrote about in the Wal-mart case. Built-in assumptions are related to ways of thinking, but they are more than that — they become established ways of doing business, imprinting organizations with patterns of inequality — especially having to do with job segregation.

My own research with Matt Huffman has helped establish that women in management positions reduce gender inequality at work (a paper forthcoming in Administrative Science Quarterly takes this further). We can’t say, however, if that’s because they have different assumptions about men and women, less motivation (and incentive) to discriminate, or more commitment to changing the established ways of doing things.

Working women of Wal-Mart united

The women of Wal-Mart may be closer to a settlement in their mammoth sex discrimination suit. Reports NYTimes:

In a closely watched case, a sharply divided federal appeals court on Monday ruled 6-5 that a sex discrimination lawsuit against Wal-Mart could proceed as a class action for more than a million women. The suit is the biggest employment discrimination case in the nation’s history.

I’ve used the case to teach about sex segregation and discrimination for several years, partly because of the excellent and accessible reports done by their experts, including Richard Drogan’s statistical analysis and Bill Bielby’s analysis of the company’s personnel policies and practices.

It’s a textbook case, so to speak. From Drogan’s report, fewer and fewer women as you move up the chain of command:

And Bielby’s conclusion:

[S]ubjective and discretionary features of the company’s personnel policy and practice make decisions about compensation and promotion vulnerable to gender bias.  In addition, I have concluded that there are significant deficiencies in the way the company monitors its personnel policies and practices, establishes diversity goals, and evaluates managers’ contributions to equal opportunity objectives.  Personnel policy and practice at Wal-Mart as implemented in the field has features known to be vulnerable to gender bias.  Discretionary and subjective elements of Wal-Mart’s personnel system and inadequate oversight and ineffective anti-discrimination efforts contribute to disparities between men and women in their compensation and career trajectories at the company.

Allowing the case to proceed as a class action increases the potential costs to the company astronomically, increasing the odds they’ll settle.

The new decision is here.

Devaluing and revaluing women’s work

Women’s average pay is less than men’s. One reason for this is that the average pay in jobs dominated by women is less than that in jobs dominated by men. (The other reason is that, within a given job, men earn more than women, which is when women can actually claim wage discrimination – but that’s another story.)

So why do female-dominated jobs pay less? A new analysis of Census data from 1950 to 2000 by Asaf Levanon, Paula England and Paul Allison in Social Forces, gives us perhaps the best test yet of two different explanations:

• Queuing: Women enter jobs that already pay less, either because employers hire them last (in the “labor queue”) or because the things women value in a job are “non-pecuniary” (such as career intermittence, or a love of cleaning).
• Devaluation: The pay in jobs that women hold is lower because women hold them. “Women’s work” is valued less either because there is a cultural bias resulting from women’s lower social status, because it’s similar to unpaid work that many women do for “free” (like childcare), or because women are politically weaker and employers take advantage of it.

By tracking jobs across six waves of the Census, the authors can use analysis of change in the pay and gender composition of jobs to answer which came first, the women or the lower pay.

The answer (mostly): Women came first. It’s devaluation, not queuing. (This is the wagon to which Matt Huffman and I, apparently wisely, hitched our previous work.) This is especially true in the later decades.

One thing devaluation does is create a struggle to define jobs as not women’s work. A nice new analysis of that struggle, by Rachel Sherman, appears in Work & Occupations. She shows the creative ways that “personal concierges” — most of whom are women — try to sell their services without revealing that they are essentially trying to get paid for doing women’s work (to oversimplify the story).

Note this doesn’t mean devaluation is why women get paid less overall. This can also happen for other reasons, including wage discrimination within jobs. But the conclusion is important, because devaluation is much harder to sue for under current law, which requires individual acts of discrimination either in hiring (the labor queue) or wage setting (within-job pay) – both of which are hard to document.

Because it’s not about individual discrimination, policy-wise, the devaluation thesis brings us back to “comparable worth” — the legal regulation of job pay based on the qualifications and requirements of the job — which I rather weakly advocated when the Democratic majority held hearings on gender inequity way back in 2007. (Contrary to Obama’s assertions, this would be the real equal-pay-for-equal-work). Comparable worth requires government intervention in wage setting, making it the bogeyman of anti-discrimination policy.

What ails Black women 3: Discrimination and repercussions

Thanks to Huffington Post for the clip art.

After discussing some widening employment inequality between Black and White women, as well as large and in some cases growing health disparities, the final installment of this miniseries turns to news on racial discrimination and its repercussions for Black women, especially those who are poor. Much of the economic and health inequality we find could be the result of discrimination. Here I show some discrimination and its impact in other realms.

Discrimination takes many forms and has many consequences. But, like heavy metals in fish, it appears that is effects cumulate over the lives of its victims. New research on the mental health effects of discrimination – as crudely as this can be measured – is telling.

Our results show that perceptions of unfair treatment, like other chronic stressors, are psychologically burdensome to African American women. … Many women suffer emotionally because they are unable to view themselves as efficacious and competent actors when treated with suspicion and confronted with dehumanizing interactions.

I have been struck by the responses to the earlier posts in this series, which tend to corroborate such research findings. On Huffington Post, one woman wrote:

As a black woman I dread going to work every day. People are blatantly rude and offensive. I have a degree and do substantial work for my company yet they treat me like I’m on work release. There have been times when some people act as though I’m not even there! But as soon as you call them out on their rude behavior you are labeled an angry black woman with an attitude. As a black person it sucks to have to hear people make stereotypical generalizations almost every day. I just keep my head down and stay out of their way. … Every day I step out into the world I am made to feel like less of a person.

In the extreme, consider the poor Black women in the emerging case of missing women in Cleveland and Rocky Mount, North Carolina. In both situations, Black women were murdered but for a long time not reported missing – or not seriously searched for if their absence was noted. The length of time it takes the authorities to respond to your suspicious absence is a brutal but vivid indicator of social isolation.

Elizabeth Smallwood, who was never reported missing, was found dead in Rocky Mount in February, but not identified until October.

In my capacity as a demographer I have long known about the marriage market squeeze Black women feel. Mortality, incarceration and unemployment — compounded by the statistically rare but symbolically damning greater tendency for Black men than women to marry Whites) – leave not enough “marriageable” Black men, especially in urban areas where segregation further limits cross-racial social interaction. I previously showed this for a few major cities:

Source: My analysis of data from the American Community Survey, 2005-2007, retrieved from iPUMS.org.

However, now we know that even in the online dating world, where the playing field could be more level, Black women get the worst results. We recently saw the reply rates for different groups of women on the OK Cupid dating site. Despite roughly equal “compatibility” score matches, Black women got the fewest responses to their inquiries.

Worse still, perhaps, even in a virtual world, where true experiments are more feasible, researchers who varied nothing but the skin and hair color of avatars found that virtual White women were much more likely to receive favors from strangers than virtual Black women.

Why is that worse? That means all the “non-racial” factors that are said to contribute to discrimination in the real world – such as education, cultural background, social skills, etc. – couldn’t have been the mechanism in this experiment. (Thanks to Karl for this lead.)

Demographic and racism factors may also work together. If a demographic scarcity increases the relative sway of Black men in the marriage market, and racism enhances the status of light-skinned versus dark-skinned Black women, then we would expect a pattern in which dark-skinned women are less likely to be married, even controlling for other factors – and that is what Darrick Hamilton and colleagues have found, using one of the few datasets that includes information on actual skin color.

Finally, something to think about regarding consequences. Racial inequality is both individual and collective. So the crushing levels of incarceration, police repression and supervision that Black men endure take a toll on Black communities and families as well. We should pay more attention to the effects on single mothers in particular. For example, 1-in-15 Black children have a parent in prison, compared with less than 1-in-100 White children – and more than 90% of those parents are the fathers.

Source: From Chris Uggen’s blog.

When the father is in prison, 88% of the time the children are cared for by the mother. That all boils down to more than a quarter-million Black mothers raising children whose fathers are not only not present to help (financially or otherwise), but are incarcerated – and will experience the consequences of that forever.

On the other hand

I can’t say why, but I’d be remiss if I didn’t mention that, despite all this, Black women questioned by the General Social Survey from 1972 to 2006 show a positive trend toward greater happiness. Black women are catching up with White women, who – despite the reports that “women” are less happy – are the ones driving the happiness trend downward.

Unlike in the economic and health posts, in this tour of discrimination issues I don’t have evidence of increasing discrimination. And of course happiness is not the same as the good things we measure like jobs and income and even health and family stability. I’ll leave that question to those who better understand the dynamics of internal and external sources of comfort and reward. But I don’t see how challenging these many persistent – and pervasive – forms of discrimination could hurt.

First: Work and wages

Then: Health and life

Now: Discrimination and repercussions