“Bullying” and Assertive Women

March 26, 2013 by Leave a Comment

The New York Times paints a daunting picture of “volatile”  New York City Council Speaker Christine C. Quinn, who is running for mayor.

 The Times describes an incident in which Ms. Quinn expressed her dismay to the city’s former Public Advocate Betsy Gotbaum for what she deemed to be Gotbaum’s failure of leadership at a chaotic council meeting. The Times said Quinn slammed her hand on the table and said, “You were like Bambi in there!” (Ms. Quinn says she told the Public Advocate that she had an expression of “Bambi-like eyes.”) Gotbaum called it “unprofessional behavior.”

 Before bestowing the mantle of  Workplace Bully on Ms. Quinn, I think it is appropriate to  consider how much of Ms. Quinn’s notoriety is due to the fact that she is a woman running for mayor of New York City.

There is a serious dearth of women in leadership roles in our society. As noted in Forbes Magazine , men run roughly 97% of the nation’s  largest public companies, hold 84% of major corporate board positions and control 83% of Congress.  Sex discrimination is alive and well.

And the media have a long history of savaging assertive women. Think Eleanor Roosevelt, Hillary Clinton in the ‘90s, German Chancellor Angela Merkel, House Democratic Leader Nancy Pelosi, singer Madonna, Martha Stewart, … even one-time Tea Party diva Sarah Palin.   Woman who seek power often  are magnets for  barbs like the ones the Times story throws at Quinn – brash, angry,  controlling, temperamental, surprisingly volatile, retaliated, screaming, “hair trigger eruptions of unchecked, face-to-face wrath,” etc.?

Plus it is hard imagine any candidate  making gains  in the rough and tumble  of the New York City mayoral race without sharp elbows.

 ”I don’t think being pushy or bitchy or tough, or however you want to characterize it, is a bad thing,” Quinn is quoted as stating. “New Yorkers want somebody who is going to get things done.”

There also is an interesting paradox in the Times article.   Workplace bullies often reveal themselves first to their staff and subordinates. The Times writes that members of Quinn’s staff are “strikingly loyal, with close advisers staying by her side for years.”   That says something about Ms. Quinn.

Quinn may be the bully who is portrayed in the Times article but for now  I’m reserving judgment.

Filed Under: DISPATCHES Tagged With: , , , , , , , , , , , , , ,

Immunity from Class Action

March 23, 2013 by Leave a Comment

boardroom

Workers this week suffered another  potentially devastating blow when an influential appellate court ruled in Parisi v. Goldman Sachs & Co, that a former managing director could not file a class action lawsuit against  Goldman Sachs for sex discrimination because she had signed a contract agreement to arbitrate employment disputes.

The decision by the  Second Circuit Court of Appeals in New York creates a scenario that  allows a savvy employer to class-action proof itself.

The appellate court ruled that Lisa Parisi, a former managing director of Goldman Sachs, could not sue the company in a class action because she agreed to submit all employment disputes to binding arbitration when she signed a “managing director” agreement in 2003.  Since the “managing director” agreement is  silent as to class actions,  Parisi must proceed to arbitration  on an individual basis. Bottom line: Parisi can’t sue in class action and she can’t arbitrate in class action.

 Parisi, who was fired in 2008,  alleged Goldman Sachs conducted a “pattern and practice” of sex discrimination against top female employees in violation of Title VII of  the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the New York City Human Rights Law.  She said she could not proceed in arbitration with a class action claim without Goldman Sachs permission and thus was effectively being denied her right to sue the company for systemic sex discrimination.. In other words, she said the arbitration clause in her  agreement must be invalidated because arbitration would preclude her from vindicating a statutory  right to file a “pattern and practice” class action lawsuit.

The appellate court agreed with Goldman Sachs that no substantive statutory right exists for employees to pursue a class action “pattern-or-practice” claim.

The court’s decision reversed two earlier decisions by a federal magistrate and a  district court judge who both denied Goldman Sach’s motion to compel arbitration in the case.

 The ruling  is a  boon to employers who are prescient enough to force new hires or employees who are being promoted to sign over-reaching binding arbitration clauses;  it  effectively negates the possibility that the employee will participate in a costly class action lawsuit down the road.   

Goldman Sachs took the position that it could not be sued by Parisi in federal court because of the arbitration clause, and it could not be compelled to defend a class action suit in arbitration because the arbitration clause in the agreement Parisi signed  was silent as to the arbitration of class claims.

Goldman Sachs is not entirely of the woods. Parisi filed the class action lawsuit along with two other Goldman Sachs employees,  Shanna Orlich, an associate, and H. Christina Chen-Oster, a vice president, who reportedly did not sign binding arbitration agreements with Goldman Sachs and presumably could proceed without Parisi.

Parisi’s employment agreement  contained an  arbitration clause in which she agreed  to arbitrate any dispute, controversy or claim arising out of or based upon or relating to “Employment Related Matters.”  The agreement defined  “employment related matters” are defined as “matters arising out of or relating to  or concerning this Agreement, your hire by or employment with the Firm or the termination thereof,  or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.”

 The appellate court reasoned that  the U.S. Supreme Court has consistently interpreted the Federal Arbitration Act as establishing a “federal policy favoring arbitration agreements.”  It also cited an earlier ruling in which the appeals court  concluded that in Title VII jurisprudence “pattern-or-practice” simply refers to a method of proof and does not constitute a “freestanding cause of action.”  Chin v. Port Authority of New York, 685 F.3d 135, 148 (2d Cir. 2012).

The arbitration clause in question states the Plaintiffs claims will be “finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the  National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline  to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association  (“AAA”) in accordance with the commercial arbitration rules of the AAA. You agree that any  arbitration decision and/or award will be final and binding.”

Goldman’s appeal was supported by briefs from the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Parisi had support from the NAACP Legal Defense and Education Fund and the National Women’s Law Center.

The case is Parisi v. Goldman Sachs & Co, 2nd U.S. Circuit Court of Appeals, No. 11-5229.

Filed Under: DISPATCHES Tagged With: "pattern and practice" of discrimination, arbitration clause, Chin v. Port Authority of New York, , , , Goldman Sachs, H. Christina Chen-Oster, Lisa Parisi, NAACP Legal Defense and Education Fund, National Women's Law Center, Parisi v. Goldman Sachs & Co, , Shanna Orlich, The Second Circuit Court of Appeals, ,

Race Bias ‘Widespread’ in Federal Sector

March 18, 2013 by Leave a Comment

blackhandA panel formed  by the U.S. Equal Employment Opportunity Commission (EEOC) in 2010 to identify obstacles faced by blacks  in the federal workplace  reported  this month that  ”widespread perceptions of inequality” persist  among African American workers.

The report by the EEOC  African American Workgroup says that blacks who work for the federal government are victims of significant unconscious discrimination and stereotyping that falls outside the  current ambit of federal race  discrimination laws.  An example of unconscious bias  in the report is a supervisor’s failure  to mentor or groom African Americans for promotion because  of an unconscious belief or stereotype that African Americans are not seen traditionally as leaders.

The report also states that EEOC regulations are not being effectively enforced by federal agencies. The report states that  many agencies attain technical superficial compliance with EEO regulations and directives but “there is an overall lack of commitment by the agency heads to ensuring equal employment opportunities.”  Furthermore, the report states that some agencies view equal employment directives as “a burdensome adjunct to the operations of the agency.”

 Interestingly, the workgroup did not issue a typical report with specific recommendations. Instead, the workgroup related the findings and conclusions of  “dialogue partners” who were consulted by the workgroup, including federal Equal Employment Opportunity directors, Blacks in Government and the African American Federal Executives Association.

 The so-called dialogue partners concluded that the EEOC “lacks sufficient enforcement powers” to effectively combat discrimination and eradicate impediments for African Americans in the federal workforce.   The report is particularly critical of the EEOC’s inability to force agencies to discipline managers who were found to have engaged in unlawful discrimination.

According to the workgroup, the dialogue partners recommend the following steps to remove obstacle facing African Americans in federal employment:

  • Conduct unconscious bias training for all employees so they can become aware of their biases. 
  • Legal experts must analyze how unconscious bias can be evaluated as evidence of discrimination under federal civil rights laws. 
  • Agencies should establish formal mentoring programs and monitor their effectiveness in increasing equal employment opportunities.
  • All agencies should establish an African American “affinity group” and ensure it has the resources to provide meaningful networking opportunities for African Americans.
  • Agencies should establish objective and transparent criteria for granting employees’ requested training and offering developmental assignments. 
  • Agencies should expand recruitment methods by entering into partnerships with African American affinity groups, professional organizations, universities and media that will facilitate dialogue with African Americans who may be interested in careers with the federal government. 
  • Agency heads should make a commitment to address inequities in a proactive and effective manner, and should become more visible and hands-on in managing diversity and holding senior  management accountable for results. 
  • Agencies should ensure that education requirements are job related and a business necessity. 
  • As part of their annual performance ratings, managers, supervisors and senior executives should be evaluated in at least one element that assesses their commitment to equal employment opportunity principles and goals. 
  • The EEOC should publicize findings of discrimination in the federal sector in press releases.
  • The EEOC should seek legal authority to order punishment for responsible management officials.
  • The EEOC should “ issue an agency ‘EEO Scorecard’ that evaluates agencies’ EEO programs, inclusiveness, and accomplishments in various critical EEO elements, and it should be presented in a digestible, user-friendly manner that is available to the public.”

The workgroup cites a 2007 survey by the Merit Systems Protection Board that almost three quarters of all African Americans who work for the federal government report experiencing race discrimination on the job. More than half (51%) reported there was “great” or “moderate” discrimination while 15 percent said the discrimination was “significant.”

Filed Under: DISPATCHES Tagged With: , , Blacks in Government, , , , ,
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