PAYCHECK FAIRNESS ACT SHOULD BE SUBJECTED TO AMENDMENT DISCUSSION IN CONGRESS BEFORE EXECUTION. There is no President who has done more to advance the rights of Women in the Workplace than President Obama. However, Congress has proposed certain Amendments and there should be a formal debate of this issue. Some of the issues that need to be debated are highlighted here (partial list, full list will be forwarded to Congress): 1. Punitive Damages: Punitive damages should be subjected to the same caps at the Federal and State level that other EEO laws are subjected to. Federal laws caps damages by size of employer. State (NYS) and City (NYC) laws have no such caps. However, the US Sup. Ct. provided guidance on this issue, and asserted a 9X multiple. The purpose of Punitive damages is to deter future violations. The amount of damages should be assessed in terms of the willfulness and egregiousness of the Employers conduct. For example, if the Employer was on notice of discrimination and took no remedial action to deter or minimize the effects or damage created by the Discriminatory acts, the maximum multiple could be applied. Courts also look at the egregiousness of the conduct. For example in Kolstad: In Kolstad v American Dental Assn. (527 US 526, 529-530 [1999]), the Court held that punitive damages [under Title VII] are limited . . . to cases in which the employer has engaged in intentional discrimination and has done so with malice or reckless indifference to federally protected rights of an aggrieved individual. According to the Court, malice and reckless indifference refer to the employers knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination. (Id. at 535.) As the court held in Hill v Airborne Frgt. Corp. (212 F Supp 2d 59, 76 [ED NY 2002]), it is reasonable for juries to infer that employers have acted in violation of the law simply by virtue of the well-established Supreme Court case law on discrimination and retaliation, the long standing statutory scheme proscribing such conduct, the size of [the employer defendant] and the common knowledge in todays society that employment discrimination is impermissible. In Kolstad the Supreme Court also created an affirmative defense to liability for punitive damages under Title VII when the defendant can show that the discriminatory employment decisions of managerial agents . . . are contrary to the employers “good-faith efforts to comply with Title VII.” Kolstad v. American Dental Assn, 527 U.S. 526, 545, 119 S.Ct. 2118, 2129 (U.S.,1999). If an Employer discriminated against a Female executive, for example, by paying her measurably lower compensation for the same level of work and skills than Male peers, and the Employers Management knew of the discrepancy (and in many cases exploited it for gain) but took no remedial action, that Employer would be subject to Punitive Damages caps. (This issue of Caps is complex and will not be dealt with in detail here). Punitive damages are usually linked to the size of Compensatory Damages as well. The predicate is that if the DAMAGES created by the Discriminatory act were severe, then the PUNISHMENT for the WILLFUL DISREGARD of the law should be commensurately high. Current Federal Laws on Discrimination categorize Employers by size of Employees and set caps based on these categories. State and City laws do not. The award cannot simply come out of thin air. The Employee has the burden of proof by a preponderance of evidence (at the trial level, not the appellate level), and there must be a careful benchmarking of similarly situated Employees. If an Executive has a title (VP, EVP) and a functional title (Account Supervisor, Strategic Planning Director, Senior Brand Director) the analysis can be precisely effected. There are nuances that Courts should be aware of. For example, is this a one of a kind position or unique function? (Compare to the most similar). Is this person a Department head (even if they dont have the title of department head but are the most senior person performing that function)? Department heads usually are paid more than their actual title. 2. Correcting for Pay and using Compensation; The word Pay is a term that is generally used for lower and middle management positions and is synonymous with Salary. However, as Women advance in the workplace, their Pay is really much more complex, or SHOULD BE. Male executives are awarded the following: Base Salary COLA Raises Promotional Raises Annual Bonuses (on Wall Street this can be immense) Executive Benefits Stock Options Deferred Compensation Profit Sharing Retirement Plans Executive Perks These are SOME of the elements of Pay that are afforded to Male Executives at the higher levels. So using the word Pay invites a socialistic standard that cuts Women out of the full range of Compensation available. Wealth creation does not come from Salary. As most people who work in large urban areas like Manhattan know, the standard of living is so high that Salary covers living expenses. There is no way that an executive living solely on Salary can save enough funds to own homes or retire at a reasonable compensation reflective of their position. Hence, the word Pay should be replaced by Compensation. COLA raises are determined by the Employer but once a case gets to trial, the standard is compared to the Industry. In terms of Equal Compensation, however, one could argue that based solely on this factor (and not the discriminatory animus involved) that the only criteria would be the Gender benchmarking. Bonuses are based on Merit. This is where a great deal of hidden discrimination occurrs. Female executives are often downgraded artificially on performance to justify the substantial reduction in fair compensation. This is why all Performance Reviews involving Discrimination should be evaluated with a careful attention to timing, authenticity, patterns, policies and practices. A red flag would be an Exceeds Expectations initial review and then a subsequent radical downgrade to Probation. Often these agendas are hidden in RIFs and financial problems or other pretexts are deployed. Expansive but strategic discovery will surface any disconnects or contradictions that will lead to the real facts. Experts can be very helpful here. Stock Options and Profit Sharing: Historically, large Employers have gone to great lengths to cut Women out of Stock Options and Profit Sharing. There have been elaborate agendas deployed to disguise these ruses at the Executive level, given the amount of money involved. Many older male executives do not see women as equal or worth equity participation. They will often stage timely terminations to avoid paying Female Executives stock or profit sharing. Courts must not be naive about this. The key to winning an Equal Compensation case is clearly strategic discovery. Employers will often try to hide evidence and suppress facts. This is very foolish and can lead to criminal charges if taken too far. It is in the Employers interests to resolve these matters quickly and accurately. All documents related to the Compensation of the Plaintiff during the period of BlahBlah and all documents related to similarly situated persons are demanded. There should be no loopholes as this just wastes time. Ultimately the Employer must prove that any compensation differential is not based in discriminatory animus. If there have been damning admissions (stereotypical language, harassment, differential treatment, et al), the Compensation case gains traction. It then comes down to proving what the correct benchmarks are and what similar level employees received. Women outlive Men in this country. But they also are far more likely to die Poor. The Poverty rate for Women over 65 is 11%. For Men it is just under 7%. For Minorities, it is double that of whites among over 65s. What this means is that Women and Minorities are being excluded from Wealth Creation in this country and that this leads to much greater risk of Poverty during retirement years. So we need to change the word Pay to Compensation for starters. This will help Women who are doing the same level of work (often better) rise up in Wealth creation. The same standards should be adopted for Minorities if they are discriminated against based upon Race. Winning a discrimination case is not easy. At the Federal level the win rate is around 4-5%. At the State level, around 12-15%. To avoid Gender bias by Judges and Juries tainting the award of Damages, ALL Discrimination cases should be Bifurcated between Liability and Damages. Further, ALL Juries should be instructed as follows: If you find that the Employer did intentionally and willfully discriminate against the Plaintiff, and a liability decision is rendered against that Employer, you MUST award Make Whole damages. Detailed instructions on the various categories of damages available and the appropriate ranges or caps will be provided to you. Expert opinions are encouraged. Competing experts will assist you in assessing the correct assumptions and range of awards. Unrebutted experts are another matter. Unless the Defendant employer can successfully disprove the facts and assumptions relied upon by the Plaintiffs expert, the Report must be accepted as is. If there are factors that are not accurate or seem incorrect, jury questions can be submitted to the Court until those discrepancies are reconciled in the Juries mind. There will also be case law provided to you regarding legal precedents for various types of injuries. These precedents are usually based in Tort Law. To determine what will make the Plaintiff Whole is a complex discussion and must address the period of injury, the severity of the injuries, the range of injuries and the extent to which the Employers unlawful acts caused or exacerbated those injuries. The existence of various medical conditions does not reduce the damages that are available. In fact, often the opposite is the case especially where the Employer was on notice of the same but failed to take remedial action to mitigate the harm. This is a very complex subject and while we applaud the intentions of this Law, we propose that a thorough and open debate be held where Experts and the Public can testify. END DISCRIMINATION NOW
Posted on: Tue, 05 Aug 2014 17:00:12 +0000
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