Sex (discrimination) still a hot-button issue in employment law

Katrina Campbell

Sex discrimination issues continue to confound men and women, despite decades of jurisprudence, according to a presentation by a prominent New Jersey employment lawyer to the NJCCA’s Women’s Networking Committee and its guests.

“Is it really that you got the bad review because you were a woman, or is it really that you got the bad review because you were a bad employee?” posed Christine Amalfe, chairwoman of the employment law practice at Gibbons, P.C. The firm’s Women’s Initiative joined with the NJCCA’s Women’s Networking Committee for the continuing legal education program, “Gender Discrimination in the Workplace: Best Practices to Motivate Women to Achieve Success in the Workplace and to Avoid Claims,” on October 5, 2011 in Morristown.  Dozens of women and men attended the event.

Amalfe gave lots of examples highlighting how the professional choices women and men make affect how they are perceived in the workplace, and how choices that managers make for employees may or may not be discriminatory.

For example, Amalfe said, a manager may invite his male subordinates to his monthly poker night, but not invite his female employees to play; he might justify the decision as a personal choice, based on a belief that women would not “fit in.” However, she said, “A lot of business is getting done, along with the Jack Daniels and beer,” and the women would be missing out.

On the other hand, she noted that women may be more likely to refuse important or emergency work assignments if it meant spending significant time away from their children or others for whom they provide care. Some employees who are working flexible schedules may refuse to adjust when an emergency project arises, and then may find themselves excluded from future projects as a result.

One attendee challenged the notion that such projects are true emergencies. Often, she said, the decision to send an employee to another location may be based more on manager opinion and not on true need.

Hard facts and subjective feelings can, of course, give rise to claims and lawsuits. Amalfe reviewed several recent employment cases and settlements in the federal and New Jersey courts, including:

• Erthal v. Hapag-Lloyd (America), Inc. (D.N.J. 2011) – summary judgment granted to the employer in claim under the New Jersey Law Against Discrimination for wrongful termination due to pregnancy. Plaintiff was terminated due to a restructuring, after her job was transferred out of state and she refused to move. Plaintiff alleged that her termination was due to her having taken leave.
• Allen v. Adecco, Inc., 2011 N.J. Super. Unpub. LEXIS 197 (App. Div. Jan. 27, 2011) – summary judgment denied employer in sexual harassment claim by temporary employee, because employer failed to demonstrate that its anti-harassment policy was effective; court stated that effectiveness is demonstrated through “periodic publication of the policy; an effective and practical grievance process; and training for workers, supervisors and managers on recognition and eradication of unlawful harassment.”
• Multi-million dollar settlements paid by Novartis, sanofi-aventis, Morgan Stanley and others to female employees in pay and promotions cases.

Whether any particular case has merit is a question for the plaintiffs and defendants in that case. However, said Amalfe, statistics on women in corporate leadership positions still lags behind men. Women, she said, are still only 2.8 percent of Fortune 500 CEOs, 14.4 percent of the Fortune 500 Executives, and 20 percent of Fortune 500 general counsels, despite making up 51.5 percent of all management, professional and related occupational positions.

Whether a “glass ceiling” exists for women is still a question, said Amalfe. But, she noted, “Whether it exists or doesn’t exist, women still think it exists.”

Source of information: Christine Amalfe and written CLE materials from Gibbons P.C. provided at the event.

Katrina Campbell, Esq. is vice-president for training and education for Global Compliance, and is based in Red Bank, NJ. She can be reached at Katrina.campbell@globalcompliance.com.