July 2008 Archives

July 29, 2008

Women Leaving the Workforce Due to Poor Economy: But Is That All?

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Women are leaving the workforce in their prime earning years, according to an article in the New York Times that claims, "women are being afflicted on a large scale by the same troubles as men: downturns, layoffs, outsourcing, stagnant wages, or the discouraging prospect of an outright pay cut. And they are responding as men have, by dropping out or disappearing for a while." 

The title of the article -- "Women Are Now Equal as Victims of Poor Economy" -- may be right. But being equally subject to economic downturn does not "equal" make. According to the U.S. Census Bureau, in 2004, women in the workforce earned an average of 77 cents to every dollar a male earned.

This comparison isn't necessarily apples to apples -- it doesn't compare two individuals in the exact same job.  But another study shows that one year out of college, women make 80 cents for every dollar earned by their male counterparts, with a big pay disparity even when working in the same field. (The Equal Pay Act, passed in 1963, recognized this pay disparity and seeks to correct it. And other legislation on both the state and federal level has sought to protect women from this and other sex discrimination that is still alive and well in today's workforce [pdf].) 

So is there some justification for the disparity? According to some, men make choices that "lead to higher annual salaries," such as working in jobs that require extensive travel, hazardous assignments, or provide less "free time." That may be true, but it seems a little disingenuous. Most obviously, in childbearing couples, men and women are not created equal, and some of these salary-enhancing factors put childbearing women at a disadvantage. It may be hard for pregnant women to travel extensively or take on hazardous assignments, for example (and there are enough lawsuits to show they may face employer criticism for trying). 

Only women become pregnant, deliver babies, and breastfeed. Child-bearing women must exit the workforce for, at very least, the amount of time it takes for prenatal care, delivery, and recovery. Men, by comparison, need not take any time at all (though many do, to attend appointments, provide care, and bond with new infants).  Is it really any surprise, then, that mothers are more likely than fathers to work part time or take leave when children are born? Or that two wage earners, faced with the high cost of child care, might decide that the lower wage earner should stay home -- or perhaps not immediately seek to reenter the workforce after a layoff, when the economy is bad? 

So yes, the economy may be hitting men and women equally, but there's no question -- other factors aren't, and there's more to the story of what's driving women from the workforce. 

Alayna Schroeder

July 25, 2008

ADA Amendments? Not So Fast

The ADA Amendments Act (the ADAAA), which would overturn several Supreme Court cases that limited the application of the Americans with Disabilities Act, passed in the House last month and is now before the Senate. The ADAAA has widespread support from employee and disability rights advocacy groups and employer advocates -- rarely do you see legislation supported by the ACLU, the Leadership Conference on Civil Rights, the NAACP, The Society for Human Resource Management, and the Chamber of Commerce. But the price of this broad coalition might be coming due now, as the Senate tries to parse the compromise language used in the ADAAA.

An overriding goal of the legislation is to make sure that serious conditions and diseases qualify as disabilities under the law. Here are some of the changes the ADAAA would make:

  • Prohibit consideration of "mitigating measures" when determining whether someone has a disability. The Supreme Court has held that medications or assistive devices a person uses to control or diminish the effects of a disease or impairment must be taken into account when determining whether that person has a disability. For example, someone whose epilepsy is controlled by medication could be determined not to have a disability. The ADAAA would reverse these holdings and require courts to look at the person's condition in its unmitigated state when deciding whether he or she has a disability.
  • Include certain bodily functions as major life activities. In the past, some serious diseases (including certain types of cancer) were not considered "disabilities" under the ADA because they did not yet substantially affect a major life activity. The ADAAA provides that major bodily functions -- for example, the proper functioning of the immune system, cell growth, brain, and respiratory system -- are major life activities. 
  • Include impairments that are episodic or in remission. The ADAAA provides that conditions that would be disabling when active count as disabilities, even if they do not currently substantially limit a major life activity. This provision would cover serious conditions that have disabling flare-ups, such as certain types of epilepsy or multiple sclerosis, and cancers that are in remission.
  • Redefine the "substantially limits a major life activity" standard. The ADAAA says that a condition or impairment is a disability if it "materially restricts" a major life activity. This is the compromise language that is currently under discussion in the Senate.

As originally introduced, the legislation (then called the ADA Restoration Act) would have gotten rid of the "substantially limits" language altogether, and stated simply that a disability is a physical or mental impairment. The Supreme Court has interpreted "substantially limits" to require a severe restriction. The language of the ADAAA -- that the condition must "materially restrict" a major life activity -- is a compromise intended to cover those with serious conditions while excluding minor or temporary impairments.  

Senator Harkin, one of the Senate sponsors of the ADA 18 years ago, has expressed concerns about how this language will be defined by the courts. He has indicated that, although he wants the Senate to quickly pass similar legislation, the "materially restricts" language may need to be further clarified in the Senate's version of the bill.  

Lisa Guerin

July 3, 2008

Discrimination Code Words: Just as Illegal

Discrimination is cloaking itself in more subtle terms. As EEOC attorney Sanya Hill Maxion told Dahleen Glanton of the Chicago Tribune, "People are smart and know they cannot use blatant terms, so they get the message across in other ways." It may come out on a job description as "enthusiastic" or "progressive" -- but if it really means "young," it's discriminatory.

Maxion represented Tomeika Broussard, who won $44,000 in a racial discrimination lawsuit against her employer. Broussard's supervisor called her "reggin" -- it sounded negative to Broussard, but it didn't automatically register that it was the "N" word spelled backwards. (Check out Glanton's article to read a full account of her ordeal.)

"Smarter" discrimination means smarter deciphering is in order. No one wants to quelch inside jokes or friendly banter, or rewrite an enthusiastic job description as a dry recitation of job duties. But many times, the negative connotation of a word -- even one we may not understand -- is obvious, just as it was to Ms. Broussard.

Alayna Schroeder