Pay Equity Forum
On November 19, 2005, Jack Tuckner spoke at a forum on pay equity hosted by
the American Association of University Women (AAUW). His condensed speech
notes are below as well as information about the AAUW, invited speakers and
the program of the event:
Notes From Jack Tuckner's Speech for the American Association of University
Women's Forum Gender Equity in Pay
These extended notes were the basis of Jack Tucker's speech, for which he
shared the podium with noted activists Liz Azbug and Congresswoman
Carolyn Maloney.
As an employment discrimination lawyer and a radically liberal progressive
feminist, I represent individual women with employment discrimination issues
and partner with them to affect social and legislative improvement in the
working conditions of all women.
The political climate today could be construed as a theocracy, wherein
conservative religious and moral values are the basis of social policy, and the
women's rights are vulnerable to a corporate sponsored right-wing agenda.
While certain laws exist to address pay inequity and other forms of gender
discrimination, many significant challenges remain. In many arenas, there is an
overriding hostility to progressive change and an avoidance of any civil rights
legislation that has "teeth" to ensure vigilant enforcement.
The Courts
For example, the current soundstage in American jurisprudence is directed by
the likes of John Roberts, currently Chief Justice of the Supreme Court of the
United States, and Samuel Alito, the latest frightening addition to the Court.
Championing equal pay rights in courts suffused with such conservative voices
is an uphill struggle and the path is overgrown with right-wing loyalty to
employers, particularly the corporate elite whose dollar signs drown out the
pleas of women workers.
Congress
Save for a handful of past staunch advocates of gender equity, such as Bella
Azbug, Carolyn Maloney, and Shirley Chisholm, Congress has also fallen short
of real effort to protect women's rights. In addition, tens of millions of women
have also colluded in this blockade by voting for anti-female politicians such as
G.W. Bush; in essence constructing their own glass ceiling through their votes.
Bush has wielded his appointments as direct weapons against civil rights and
women's rights, in particular.
Social Control over Women
Hostility towards pay equity is just one facet of the continuing power struggle to
keep women infantilized. The social aspects of women's bodies, lives and
choices have been pawns in games of control across the globe. Such control has
been exerted over a woman's very existence—for example, the story of Amina
Lawal, a Nigerian woman sentenced to execution by stoning for adultery.[1]
Control has been exerted over women's sexuality, in the case of forced
clitoridectomies and female genital mutilation in Africa. Men's property rights
over women's reproductive rights has been instituted through the abortion
rulings handed down in Planned Parenthood v. Casey, 505 U.S. 833 (1992),
where the Court upheld a Pennsylvania law requiring married women seeking
abortions to notify their husbands. Such insidious power-imbalances manifest
everyday in subtler ways, such as the frequent "water cooler flirtations" that
serve to remind women that they are vulnerable to the whims and proclivities of
their male supervisors and colleagues.
Such commonplace instances of harassment reflect a presumptuous and
persistent sense of entitlement, tolerated and encouraged by corporate America.
Women face a widespread lack of empathy for the humiliation and anger one
feels when she has invested as much time, effort and expense into her education
and training as a male counterpart, but is told she should expect and accept less
pay solely due to her gender. Another common misconception that chips away
at public support of working women's plight is that litigation is quick and easy,
as portrayed by television shows and movies. True litigation, should a case get to
the court stage, is costly (up to $200-400k), difficult and lengthy—a process of
several years with no guaranteed results, and likely facing hostile courts.
Advancement of women's equality in the workplace is further hampered by
theories such as the economic theory of human capital, first devised by Jacob
Mincer and Soloman Polochek, which proposes that women's actual or expected
family obligations dictate their choices to work fewer hours and choose lesser-
paying "female" occupations. Conservative commentators such as Richard A.
Epstein, and Seventh Circuit Judge Richard E. Posner, claim that women
choose their own underpayment in the labor market by not investing as much
human capital into the labor force as men. They further argue that anti-
discrimination statutes unreasonably interfere with the free and efficient
operation of the American labor market. Epstein and Posner extend the
argument to say inequity is a natural outcome of women's biological difference
from men, in direct contradiction with women's proven abilities to handle
"male" occupations.[2]
Relevant Laws
Two federal laws are aimed at the protection and empowerment of women: Title
VII - the Civil Rights Act of 1964 as amended in 1991 and the Equal Pay Act of
1963 (EPA).
Locally, there are three laws that apply to discrimination in New York. The State
Executive Law, Article 15, the New York City Administrative Code on Human
Rights, and the New York State Labor Law.
Title VII is a federal law that prohibits discrimination on the basis of race, color,
religion, sex, national origin, age, or disability and applies to all businesses that
employ a minimum of 15 people. The local laws are broader, requiring a
business to have at least 4 employees. An amendment to the Act, the Glass
Ceiling Act of 1991, expanded its existing power and recognized that women
and minorities are underrepresented in management and decision-making
positions in business, and that artificial barriers exist to their advancement in
the workplace. The EPA applies to any business engaged in commerce, with no
particular number of employees required to trigger the protections. The EPA
forbids payment of different wages to employees of opposite sex within an
employer's establishment for equal work on jobs, the performance of which
requires equal skill, effort, and responsibility and which are performed in similar
working conditions. The EPA allows for four "affirmative defenses":
1. Seniority [where one employee has worked in the establishment for a
longer period of time]. There has been little litigation under the EPA with
respect to the defense of seniority systems. The courts have accepted seniority as
a defense where it has been consistently applied as a factor in determining
wages, and have rejected it where its application has been inconsistent.
2. Merit [rewarding employees for exceptional performance]. If a system is
organized and structured where employees are evaluated according to
performance criteria and where a means of advancement or reward is universal.
Employees must be aware of such system, and the system must be administered
systematically and objectively. An employer's subjective evaluation is not
sufficient to establish the defense.
3. Productivity: A system that measures earnings by quality or quantity of
production. [Must be uniform, objective and non discriminatory.]
4. "Other than sex": A differential based on any other factor "other than
sex." This is a catch-all defense, the most often litigated. Still unsettled is
whether "any other factor" means literally any other factor or only certain other
factors, or, certain other factors used in job evaluation systems. Any non-sex
based factor adopted for a legitimate business reason may qualify. The so-called
"market" is not a factor, where employers pay females less simply because the
employer can get them for less.
Burden of Proof
The plaintiff has the burden of proof—meaning that the plaintiff must
demonstrate that the employer is paying different wages to an employee of the
opposite sex for equal work. Should the plaintiff be able to show the wage
differential, the burden then shifts to the employer who must show by a
preponderance of evidence that the differential is justified by one of the above-
mentioned exceptions.
Remedy
The point of any discrimination legislation is to provide a remedy for the
injured. For the EPA, a successful plaintiff may receive back pay up to 3 years
prior to the date her claim was filed. She may also receive liquidated damages,
up to double the amount of back pay. Attorney's fees may also be awarded.
Some states have attempted to implement a system of equity which is broader
than that enacted by the EPA—the comparable worth standard. The philosophy
behind the comparable worth standard is that the jobs that have been
traditionally or circumstantially "female" have been consistently undervalued.
Therefore, pay standards should be set by the value of the job (to be determined
by job evaluation studies) as opposed to market forces (which automatically set
higher wages for traditionally "male" occupations). Certain states, such as
Washington, California and Maryland have had extensive legislative advocacy
for comparable worth standards. Other states, including New York, have
managed to implement comparable worth pay rates for government workers.
Recently Senator Tom Harkin introduced legislation that uses comparable
worth principles to ensure equal wages for positions comparable in skill, effort,
responsibility and working conditions. As yet, Congress refuses to pass this bill
despite the reality that women continue to earn 76 cents on the dollar earned by
men, and minority women even less. [3]
There are two important protective measures I would want any woman to take
away from this presentation.
1. Awareness is everything. After the Clarence Thomas hearings for Supreme
Court nomination in 1991, during which Professor Anita Hill recounted
Thomas's sexually harassing behavior towards her, sexual harassment
complaint filings rose 62%. The Thomas hearings precipitated one of the first
nationwide discussions of sexual harassment, and what constitutes sexually
harassing conduct. Understanding when behavior is illegal is the first step to
enfranchising one's right.
2. Notification is the key to protecting your rights in the workplace. A woman
being subjected to any sort of discrimination should keep a record of the
incidences, and should make a point of submitting written notification of the
discrimination to the human resources department or to her supervisor, in order
to establish a paper trail of the conduct. Such record serves to bolster and
strengthen any future legal action against the employer. In addition, should any
negative employment action (demotion, suspension, termination, harassment,
etc.) occur after the notification, such action would be considered retaliation.
---------------------------------------
[1] Under the strict Islamic Shariah Law of the particular county, a woman who
becomes pregnant after divorce, as did Ms. Lawal, is automatically considered
guilty of the crime, unless she finds four males who can testify to her innocence.
A man under the Shariah need only profess his innocence to be exonerated.
[2] Throughout European and American history, women have aptly
demonstrated the ability to handle "male" commerce and trades under the
circumstances of war, or when taking over a deceased husband's business.
[3] http://harkin.senate.gov/fair-pay/index.cfm
Information about the AAUW, the invited speakers, and the program of
November 19, 2005:
AAUW Mission Statement:
AAUW promotes equity for all women and girls, life-long education and positive
societal change.
The AAUW Educational Foundation provides funds to advance education,
research and self-development for women and to foster equity and positive
society change.
The AAUW Legal Advocacy Fund provides funding and a support system for
women seeking judicial redress for sex discrimination.
In principle and practice, AAUW values and seeks a diverse membership. There
shall be no barriers to full participation in this organization on the basis of
gender, race, creed, age, sexual orientation, national origin, disability or class.
American Association of University Women
New York City Branch
Founded in 1886
PAY EQUITY FORUM
Saturday, November 19, 2005 2:00 PM
111 East 37th Street
New York, NY 10016
212-684-6068
aauwnyc1@aol.com
Invited Speakers:
LIZ ABZUG, a consultant, lawyer, lobbyist and candidate for New York City
elective office, has long been involved in women's civil and human rights, She is
an adjunct professor in Urban Studies at Barnard College and Columbia
University. In 2003, Liz and her sister honored their mother by establishing the
Bella Abzug Leadership Institute, a 501(c)3 organization to mentor and train
high school and college women to be proactive, principle driven and visionary
leaders of tomorrow in both political and civic life.
CONGRESSWOMAN CAROLYN B. MALONEY, a Democrat who has
represented the 14th district in New York City since 1992, is a nationally
recognized advocate for women's issues. Rep. Maloney has worked to increase
public awareness of social inequalities between men and women that still exist in
America. In January. 2002 she released the Dingell-Maloney Report : A New
Look Through the Glass Ceiling, documenting a widening wage gap between
men and women managers. This was followed up in 2004 with a second study
that showed a persistent wage gap for all women of 20-cents on the dollar.
SONIA OSSORIO, who was elected President of NOW-NYC in January, has
served on its Board of Directors in various positions since she joined in 1999. She
created its very successful Media Watch Committee and then was its
spokesperson when she became Vice President of Public Information. She came
to New York in 1993 as a business writer for Gannett Newspapers. In 2000 she
became head of the public relations department of Catalyst, a nonprofit
research organization that works to advance women in business. Ms. Ossorio
delivered the keynote address at the 2000 Conference of the National
Association for the Advancement of Hispanic Women.
JACK TUCKNER is the founding partner of Tuckner, Sipser, Weinstock &
Sipser LLP, a law firm that specializes in women's rights in the workplace.
Formerly a Legal Aid Criminal Defense Division trial lawyer, he leads a team of
veteran trial attorneys who are dedicated to leaving a legacy of significant
advancement in Women's Rights to the next generation of working women. He
is a long-standing member of the National Employment Lawyers Association of
New York, the New York Women's Bar Association, and the New York Trial
Lawyers Institute.
Program
Welcome:
Barbara Dagen, Acting Branch President
Introduction:
Sarah Chu
Speakers:
Liz Abzug
Sonia Ossorio
Jack Tuckner
Rep. Carolyn Maloney
Open Panel Discussion
Please join us for light refreshments following the program.
Pay Equity Committee
Sarah Chu, Chair
Joan Jacobson, Vice Chair
Lorrin Johnson
Julie Kleszczewski
Fran Sacks
Lisa Wilson
