January 14 2014

The Daily Beast: Are Anti-Discrimination Laws Working Against Millennial Women?

The Daily Beast

by Keli Goff, The Daily Beast

Would Millennial women worry less about gender discrimination if some anti-discrimination measures were modernized?

The Pew Research Center found some interesting contradictions in data it published last month on Millennial women in the workplace. On one hand, Millennial women now enjoy near pay parity with their male counterparts. On the other hand, they appear far more preoccupied with possible discrimination than one would expect given the near equity they enjoy. But here’s a question: Would Millennial women have less to worry about regarding gender discrimination if some of the current decades old anti-discrimination measures were modernized?

Among Pew’s most noteworthy findings: Millennial women earn 93 percent of what Millennial men earn, compared to the average of 84 percent of women across all age groups. (A study released in 2010 found that single women under 30 in major cities actually earn more than their male counterparts.) But the Pew study also found that “Women are much more likely than men to say society favors men (53 percent vs. 36 percent). Women are also more likely to say that society needs to do more to ensure equality in the workplace (72 percent vs. 61 percent of men). The gender gap on this question is particularly wide among Millennials: 75 percent of Millennial women compared with 57 percent of Millennial men say the country needs to do more in order to bring about workplace equality.”

Pew goes on to note that Millenials are particularly concerned with the impact that having children will have on their careers, a concern Millennial women are likely to anticipate bearing the primary burden for, or at the very least to be expected to. This is one theory regarding why, despite their own relatively rosy experiences in the workplace so far, Millennial women do not seem to have a particularly optimistic outlook on the larger professional picture or their own futures. Which raises one of the potential problems with current anti-discrimination measures.

At present, any employer who asks questions during the interview process regarding a potential employee’s short or long term family plans has opened himself or herself up to a possible gender discrimination lawsuit. So this means that employers—at least those who know better—avoid asking questions about whether an employee has children or plans to. While on the face of it, this may seem like a smart way to protect women in particular from discrimination, I see it as simply making women vulnerable—particularly those of childbearing years—to rampant invisible discrimination.

Consider this: if a Millennial male and Millennial female, both age 31 and both newly married, apply for a job that requires extensive travel in the first year, at the moment an employer is unlikely to ask during the interview, “What is your family life like?” for fear of being sued. Instead, it is possible he or she will simply go with the employee he knows will not be getting pregnant in the next year—or ever, which would be the male employee. But what if the female employee has no plans to have children in the coming year, or ever? Or what if she is planning to adopt but her husband will be a stay-at-home dad? Shouldn’t she get a chance to discuss her own plans and expectations with an employer? What benefit is there to either the employer or the employee in not doing so?

“The reason that employers don’t or rather shouldn’t ask is because you can’t base employment decisions on pregnancy or future pregnancy plans,” said Fatima Goss Graves, vice president for education and employment at the National Women’s Law Center, in an interview with The Daily Beast. “Title VII, which is basically a 50-year-old law that bans discrimination in employment based on sex, and race, and national origin, and religion prohibits that sort of discrimination. So an employer can’t refuse to hire a woman based on pregnancy or future pregnancy. An employer can’t refuse to promote a woman based on pregnancy. An employer can’t pay a woman less based on pregnancy or future pregnancy or based on the fact that a woman is a caregiver for a child.” She explained that this is why employers should avoid questions related to family planning.

But Carrie Lukas, managing director of the Independent Women’s Forum, thinks they should not avoid the issue. A mother of four children, Lukas wrote in an email, “I do think that it seems antiquated for the idea of future plans, including potential parenthood, to be an off-limits topic for potential employers and employees, especially when the decision about how women might adapt to having children are often no longer a black-and-white or all-or-nothing decisions.” Lukas noted that because there are so many different options today for working women, such as the ability for some to telecommute, that it is beneficial to employees and employers to have candid conversations about workplace needs and expectations, which can include balancing parenthood. She also added that “for young women who don’t see motherhood in their future, or have plans for parenting that don’t include stepping back from their jobs at all, the taboo against these discussions can be particularly costly.”

In an email to The Daily Beast, Cherylyn Harley LeBon, who previously served as senior counsel on the U.S. Senate Judiciary Committee, wrote that “it is possible” current anti-discrimination measures hinder young women because “dialogue between an employer and his or her employee that might be helpful to determine that employee’s ability to perform a particular job might not occur due to anti-discrimination concerns.”

But Graves believes family plans should never be used to judge an employee’s ability to do the job. Citing the 35-year-old Pregnancy Discrimination Act, she stressed, “I think it’s hugely important that employers not make employment decisions based on pregnancy.” But when asked if there are jobs in which a current or future pregnancy could affect job performance or capability, such as if weekly travel will be required for the next two years, she replied, “The employer should be asking everyone whether they want to take on the full requirements of the job.” So in the previous example, an employer should ask all applicants whether they are willing to travel weekly, but not ask specifically about current or future pregnancy plans.

But when I referenced other examples, such as if a woman was being considered to manage a presidential campaign but was scheduled to give birth weeks before the election, Graves still posited that pregnancy should not be a major consideration in determining hiring. I didn’t quite buy that—and doubt most candidates or political operatives would either—but posited one last example: If a woman is applying for a job as an exotic dancer and is pregnant but not showing, why shouldn’t the potential employer have a right to know? At that, Graves replied, “I think there are some occupations where there’s more leeway given the nature of the occupation. For example, occupations that are based on certain appearances—perhaps there are sometimes exceptions in the law.”

But this seems to simply reinforce how silly the enforcement of current law is. If we acknowledge that there are in fact certain jobs in which pregnancy matters, then why shouldn’t we all just act like adults and discuss such realities during the hiring process of all jobs? Wouldn’t we all be better off?

Maybe not, according to a surprising source. Tracey Kennedy is a labor and employment lawyer who often represents major companies. In a phone interview, she proposed that changing current law to allow employers to openly discuss potential family plans with potential employees might actually hurt employers.

“The problem is, fundamentally, biologically, the question about family planning because of pregnancy will only be asked of women. I think that’s fundamentally the problem,” she said. “If you have 25 men come in all between the age of 25 and 35, all recently married, none of them are going to be asked about their family planning. From the litigation perspective, if you ask that question of a woman, and let’s say she’s not qualified at all for the job and you ask her that question, then there’s evidence there that says she didn’t get the job because she said, ‘Yes, I’m planning on having kids in a couple of years,’ regardless of what the real reason is.” She concluded, “Right or wrong, I think that’s the issue.”

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