08-02-2017
Recent headlines regarding on-going challenges that women face in the workplace – not to mention the shifting political, economic and social climate – leads to inevitable questions about where we are in the workplace with respect to women’s issues. While women now match or exceed men in educational achievement and comprise nearly half of the workforce,1 we still find persistent issues of inequity on a variety of women’s issues. Genderless or gender-neutral practices would be ideal but that is not a realistic objective given reproductive matters so policies that affect women and not men are necessary. Additionally, pay equity, glass ceilings, family leave, medical leave, and necessity breaks (lactation and bathroom breaks) are all ongoing concerns for women who work.
“Workplace gender equality is achieved when people are able to access and enjoy the same rewards, resources and opportunities regardless of gender.”2 How is your organization managing to level the playing field while giving deference to gender specific needs? That is the question we address in this article – what employers can do to minimize the gender gap, therefore, creating a respectful and inviting workplace for all.
Pay Equity
2059 … The year that it is estimated women might receive equal pay to men.3 The National Committee on Pay Equity (NCPE) indicates that women earn 79.6 cents for every dollar men earn. Despite efforts under the Equal Pay Act, Title VII, Lilly Ledbetter Fair Pay Act, and state laws regarding pay equity, employers are failing to shrink the gap.
The EEOC has even announced that they are ramping up enforcement on equal pay and filed lawsuits against at least two employers alleging violations of equal pay. Congress is taking things a bit further by introducing The Pay Equity for All Act (H.R. 6030) in 2016 which would, if passed, amend the Fair Labor Standards Act to prohibit employers from seeking or requiring previous wage information or salary history from job applications. Note, however, that this proposed legislation may conflict with the National Labor Relations Act, which allows certain employees to discuss wages and terms of employment for collective bargaining purposes.
Employers can combat this pay inequity issue by reviewing compensation practices and reviewing compensation data, and employment decisions regarding starting pay, incentives, increases, and bonuses. As I often recommend, the organization should have an “HR vortex:” a person or persons who review all compensation changes before implementation and audit those changes for equity and fairness. If you determine that the organization may have imbalances with respect to pay equity, it may behoove you to engage in a compensation audit to determine if or where pay discrepancies exist and determine what positions are “substantially similar” in skill, effort and responsibility, regardless of title, and determine if the work is performed under similar conditions.
Glass Ceiling: Performance and Promotion
With nearly fifty percent of the workplace comprised of women, it would seem intuitive that the percentage of those rising in the organization and into leadership roles would also be fifty percent, but statistics show that is not the case. Instead, as several recently published essays depict, “the glass ceiling is so hard to break” because women aren’t represented in the industry, women can’t win without male support and because leadership doesn’t notice the disparity and would require “authority figures of all genders [to] be aware, empathetic, and active about keeping really subtle discrimination out of the workplace.”4
HR’s responsibility is to educate management on the subtleties of discrimination and ensure that there are no perceived or unconscious biases. As my colleague, Jessica Caspe, wrote in her article Mitigating the Impact of Unconscious Bias in the Workplace,5 “While some unconscious biases can be positive, they overall tend to have a detrimental impact on the workplace. They can negatively affect morale, teamwork, and diversity. Unconscious biases can affect all aspects of employment decisions from recruitment and hiring to performance evaluations, work assignments, and promotions.” According to the National Academy of Sciences, “In one study, two identical resumes with different names were sent in for a lab management position. ‘Jennifer’ was rated as less competent than ‘John,’ and hiring managers recommended paying her, on average, $4,000 - 13% less than John.”6 To combat this type of bias, it is critical to bring awareness to our biases so we can be certain that they are not negatively impacting decision-making at work. This process includes critically evaluating our own behaviors and actions and any patterns; being conscious of our language and its impact on the workforce; and fostering an environment where employees are comfortable openly communicating about these issues.7 Stripping your hidden biases requires expert coaching, training, and ongoing practice.
Pregnancy and Birth
At the federal level, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to attend to pregnancy-related protections. These protections prohibit an employer from refusing to hire a pregnant woman because of her condition or prejudices and not to single out a pregnant woman because of pregnancy-related issues. Further, if a pregnant employee is temporarily unable to perform her job because of pregnancy, the employer must treat her the same as any other temporarily disabled employee. Finally, pregnant employees must be permitted to work as long as they are able to perform her job and the employer must hold the job open for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.
In my experience, employers sometimes impose their opinions and judgments regarding pregnancy onto the pregnant individual. With the best of intentions, they impose physical work limitations, pregnancy protections or attendance forgiveness to accommodate pregnancy when unnecessary which can limit the pregnant worker’s opportunities. Or, on the contrary, an employer may discipline a pregnant person for attendance or performance expectations when the medical situation necessitated accommodation. The bottom line? Managers cannot discriminate on the basis of pregnancy or any pregnancy-related illness or condition and women affected by pregnancy, childbirth or related medical conditions must be treated the same for all employment-related purposes as other employees who are temporarily disabled but similar in their ability to work. In my experience, many managers are not fully aware of the pregnancy law protections or their employers’ policies and even with the best of intentions, make arbitrary and uninformed decisions regarding expectant employees.
Lactation
Breastfeeding and lactation is another area of recent significant legal change. While in effect, the Affordable Care Act (ACA) amended the Fair Labor Standards Act to require employers to provide reasonable break time to employees to express breast milk and provide a private location, other than a bathroom, to express breast milk.8 Furthermore, 49 states, D.C., and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location; 29 states exempt breastfeeding from public indecency laws; 28 states have laws related to breastfeeding in workplace, and six states implemented or encouraged the development of a breastfeeding awareness education campaign.9
I recently had a client who determined that he only needed to accommodate his staff’s breastfeeding needs for one year. While the current federal law limited lactation rights to one year, the employer’s state law and the company policies did not place a limitation on the term of breastfeeding. Therefore, the manager was unknowingly violating his employee’s right to express milk at work after one year. It’s critical that employers regularly review and reissue handbook policies and policy manuals to ensure compliance with current federal, state and local laws while keeping the workforce current on developing employment law and human resources best practices.
As with all employment related issues, ignorance of the law is no defense. An employer’s efforts to build a respectful workplace and move toward equity as it relates to all employees stems from fully familiarizing yourself with your employees’ rights and expectations in the workplace, including knowing when to apply gender neutral practices and accommodate gender-specific needs.