The Dugger Law Firm, PLLC & Outten & Golden LLP File Sex Discrimination Class Action Against Connecticut Department of Correction

On January 14, 2015, Denisha Davis filed a sex discrimination class action complaint in the District of Connecticut against the Connecticut Department of Correction. 

The lawsuit follows earlier litigation in Easterling v. Connecticut Department of Correction, in which a federal court held in 2011 that the state fitness test violated Title VII and found for the job applicant plaintiffs.  The new lawsuit alleges that the state’s revised physical fitness test – which modified only one aspect of the test from a 1.5-mile run to a 300-meter dash – continued to have an adverse impact on women.

 The press release is available here.

The Legal Diversity Crisis - Why Are Black Lawyers Underrepresented at Top Law Firms?

From the New York Times and The American Lawyer - the more you think about it the more disturbing these numbers are:

"Black lawyers accounted for 3 percent of lawyers at big firms last year, a percentage that has declined in each of the last five years. And the proportion of black partners at such law firms remained stagnant at 1.9 percent during the same period, according to the 2013 diversity scorecard published in the June issue of The American Lawyer." (link)

The black population of the United States is currently 13%. 

As previously discussed (here and here), subconscious biases likely play at least a part in these dynamics: 

"Blacks lag behind in the top tiers of the law, according to the American Lawyer, because unconscious racial bias can influence the types of assignments and the relationships between and among employees. That can hinder black lawyers from advancing to the highest slots, it said."  (link)

As explained in The American Lawyer:

"What still is lacking, many black lawyers and diversity directors say, is a broad commitment by individual white partners to ensuring the success of minority lawyers, and particularly black lawyers. Recent research has painted an alarming picture of the continuing presence of unconscious racial bias at firms. The research confirms what a lot of black lawyers have known all along: It's not enough to recruit more black associates if you don't deal with pervasive bias." (link)

As explained by a black female ninth-year associate at a midsize firm:

"'You are deemed worthy of receiving the keys when you are liked, and you are usually liked by people who can relate to you or perceive you as similar to themselves,' a black female ninth-year associate at a midsize firm says, asking not to be identified because she is up for partnership. Black lawyers, she adds, 'would more often than not say that they were not able to bring their whole selves to work and therefore grew tired of the ruse and moved on, or they brought their whole selves to work and found themselves ostracized and alienated.'" (link)

The American Lawyer article points to a study similar to one previously covered here (regarding email responses by professors at top colleges):

"In late April, law firms were roiled by a study that shows in the starkest terms yet how implicit bias remains pervasive. The study, by Nextions, a law firm diversity consultant and leadership coaching firm, found that supervising lawyers were more likely to perceive African-American lawyers as having subpar writing skills.

In its study, Nextions inserted 22 errors, including minor spelling or grammar errors, factual errors and analysis errors, into a research memo written by a hypothetical third-year litigation associate. The memo was then sent to 60 partners who had agreed to participate in a writing analysis study. Half got a memo identifying the author as African-American; the other half, a memo noting that the associate was white. The hypothetical black associate got a significantly lower score on average than the hypothetical white one. Partners, regardless of their race or gender, had more positive things to say about the work of the white associate, and found fewer mistakes on average in the paper."  (link)

Of course, that is not the only dynamic at play:

"Interviews with two dozen black lawyers, in-house counsel, diversity experts and academics, plus our exclusive law firm surveys, suggest a variety of causes. Most agreed that pressures within law firms that began during the recession have made partnership both a more difficult and less attractive proposition for black lawyers. Meanwhile, the pipeline has narrowed. As firms keep associate classes smaller, fewer black lawyers are moving into firms; the black law graduates who are tapped by elite firms continue to be a small group of high-ranking students from first- or second-tier law schools. Finally, a mid-2000s push by corporations to compel their outside counsel to diversify has receded, displaced by concerns over law firm pricing."  (link)

The American Lawyer article highlights some of the efforts some law firms are taking in response to these issues, including revisiting hiring and evaluation systems:

"In the meantime, firms such as Schiff Hardin, Littler Mendelson and Reed Smith have begun taking steps to address both unconscious bias and structural impediments to black lawyer advancement. These steps echo in practical ways those recommended by the American Bar Association's Presidential Initiative Commission on Diversity in 2010 in its report summarizing its findings after a year of hearings on the issues." (link)

The full American Lawyer article is available here and is a very thorough and thoughtful piece.

NY Times Editorial: A New Fire Commissioner

The New York Times editorial addresses the previously covered pledge by the new NYC Fire Department Commissioner to take on the Department's past history of discriminatory hiring:

The commissioner, Daniel Nigro, struck the right tone at his appointment ceremony last week when he promised to end racial injustice in a department with more than 15,000 employees. “We must no longer wait for a judge’s ruling to tell us what fairness means,” he said. “We must get out front. We must point the way to change.” He also acknowledged that integrating the department — which is about 83 percent white in a majority-minority city — would be “a great challenge.”

. . .

Mr. Nigro clearly knows the department from the ground up. He joined in 1969 and took over the command of rescue operations on Sept. 11, 2001, when the chief of the department was killed at the World Trade Center. His long experience gives him instant credibility with the rank-and-file. It will not be easy to end discrimination in a department that has been a bastion of white male privilege for nearly 150 years. (link)

Subconscious Bias: College Professors at Top 250 Colleges More Likely to Respond to Emails From White Males

Whenever people get into a debate about the need (or lack thereof) for anti-discrimination laws I am always fascinated. 

While I firmly believe that anti-discrimination statutes are incredibly important the fact that some people disagree with me is not surprising at all. 

However, what I find fascinating are the reasons people give for disagreeing with me. 

What I have often found is that, while people in the abstract are against discrimination, and agree steps should be taken to oppose it, they tend to refuse to accept the notion that, however high-minded they may be, they too are susceptible to subconscious biases.

The result is a vague resistance to discrimination, but with an equally vague resistance to some of the measures used to fight subconscious biases that result in discrimination - including disparate impact civil rights statutes. 

These statutes provide that, even where there is no intentional discrimination, a protected group can still be subjected to discrimination because a policy has a disparate impact on that group -- and where the defendant cannot qualify for an exception -- for example in the employment law context where that policy is not job related and/or consistent with business necessity -- the policy will be found to be discriminatory.

These disparate impact statutes have been one of the best vehicles for addressing subconscious biases because they provide a methodology to remove the policies that may (often inadvertently) exacerbate the effects of such biases. 

To help underscore the importance of the above point I will provide a series of posts that address the application of subconscious biases in a variety of employment and other contexts.

The first, although not strictly an employment matter, is what I think was an ingenious demonstration of this issue.

A study sought to determine how professor response rates to emails from students varied based on the gender and ethnicity of the student.  The result, unfortunately, unsurprisingly, was that professors were significantly more likely to ignore emails from female students and/or students of color and respond to emails from white males (based on the usual gender and/or racial association of the name):

"A group of researchers ran this interesting field experiment. They emailed more than 6,500 professors at the top 250 schools pretending to be the students. And they wrote letters saying, I really admire your work. Would you have some time to meet? The letters to the faculty were all identical, but the names of the students were all different."

. . .

[W]hat they found was there were very large disparities. Women and minorities [were] systematically less likely to get responses from the professors and also less likely to get positive responses from the professors. Now remember, these are top faculty at the top schools in the United States and the letters were all impeccably written."  (link)

In short, "[w]hite men were more likely than women and minorities to receive a reply in every discipline except the fine arts, where the bias was reversed.” (link)

Business schools should take particular notice of this study:

"The business field showed the greatest disparity — 87 percent of white men received a response; compare this to only 67 percent of women and minorities who got a reply. Other disciplines such as computer science, engineering, and math also showed a significant bias against female and minority students." (link)

One of the most interesting aspects of the study is that Asian students experienced the greatest negative bias:

Previous studies of academia have shown a positive trend with Asians in higher education institutions.  Not this time.  “Among private university faculty the response rate for white men was 29 percentage points higher than for Chinese women — the greatest disparity observed . . . .” (link)

The researchers also found that "the greater the professor's salary, the greater the difference in response rate between white men and minority students." (link) Indeed, “[f]or every 13,000 increase in salary, . . . [there was a] drop of 5 percentage points in the response rate when compared to Caucasian males.” (link)

This study is a good illustration of why it is important for tools such as the civil rights statutes, and specifically their disparate impact provisions, are such important aspects of any effort to continue to address the effects of subconscious biases. 

At least for now, the substantive equality, and ability to equally access opportunity, for all Americans, other than white males, depends on them.

You can read the complete study here and listen to coverage on NPR here.

New NYC Fire Commissioner Promises to Increase Racial Diversity and Avoid Future Discrimination Lawsuits

The new NYC Fire Department commissioner promised Friday to break from the Department's past history of racial exclusion in hiring.

From the NY Times:

"The new commissioner of the New York Fire Department vowed on Friday to put an end to an era of lawsuits and court orders over the department’s persistent lack of diversity and to lead an effort to attract more minorities.

. . .

Flanked by diverse members of the newest class of recruits, Mr. Nigro, 65, described expanding diversity in the department, whose members are still about 87 percent white, as “a great challenge,” but one he would actively pursue.

“We must no longer wait for a judge’s ruling to tell us what fairness means,” he said. “We must get out front. We must point the way to change.” (link)

In March, the De Blasio administration agreed to settle a class action lawsuit alleging race discrimination in hiring by the NYC Fire Department against African-American and Latino applicants for approximately $100 million in relief to the class.

As the district court found, the NYC Fire Department's history of excluding black applicants was profound:

"Black residents make up 25.6% of New York City’s population; when this case was filed in 2007, black firefighters accounted for only 3.4% of the Department’s force. In other words, in a city of over eight million people, and out of a force with 8,998 firefighters, there were only 303 black firefighters. This pattern of underrepresentation has remained essentially unchanged since at least the 1960s." (link)

As the Second Circuit also observed, this discrimination is nothing recent, and the instant case was not the first time the department had been sued for the same reason:

"Even after [a]  1973 determination that [the NYC Fire Department] hiring exam was invalid because of a racially disparate impact the City’s percentage of black entry level firefighters has remained at or below 4 percent for several decades, and the current percentage of 3.4 percent compares woefully 20 to the 16.6 percent achieved by the city’s Police Department and the 21 61.4 percent achieved by the City’s Corrections Department." (link)

Only time will tell if the NYC Fire Department takes real steps to increase racial diversity and avoid future civil rights litigation.

Can My Employer Discriminate Against Me Based on My Looks?

The combination of federal, state, and city laws provide something close to comprehensive protection from employment discrimination, at least for New York City residents.  Read together, these statutes make it is illegal to discriminate based on a substantial list of protected classifications including, race, gender, age, nationality, disability status, sexual orientation, and religion to name just a few. 

But what about attractiveness? 

When you give it some thought, or at least look at the research, it quickly becomes apparent that a person’s attractiveness has a very significant impact on his or her life prospects:

"The bias in favor of physically attractive people is robust, with attractive people being perceived as more sociable, happier and more successful than unattractive people.  Attractiveness biases have been demonstrated in such different areas as teacher judgments of students, voter preferences for political candidates and jury judgments in simulated trials." (link)

The bias is so strong that one study found that even identical twins evaluate each other more negatively or positively based on small differences in their relative attractiveness: "[t]he more attractive twin assessed the other as less athletic, less emotionally stable, and less socially competent. The less attractive twins agreed, ranking their better-looking siblings ahead [of the other]." (link) 

Strikingly, these disparities appear to have very real economic effects: a study found a $230,000 lifetime earnings advantage for more attractive people compared to their less attractive peers. (link)  The one notable exception to a "beauty bias" is apparently limited to instances where women seek employment in traditionally masculine positions. (link)

But, generally, attractive individuals benefit from an attractiveness premium throughout their lives.  As a result, less attractive, but completely competent applicants and employees are not given the same opportunities, even despite equal or superior work.

That seems, at a basic level, highly unfair - but is it illegal?

Do employers and supervisors have free reign to promote, protect, and advance the employees they perceive to be more attractive, just because they perceive these employees to be more attractive?

The short answer is technically -  yes - there is no direct protection from "attractiveness discrimination" under federal, New York State, and/or New York City laws.

Nonetheless, there are still several ways that New York employees, perceived by employers and/or supervisors as "less attractive," may have a claim for employment discrimination, even under the existing legal framework.

These legal theories are not "attractiveness discrimination" cases per se, but involve instances where attractiveness "requirements" are applied unevenly, have disparate impacts on protected groups, or are used as proxies for race or ethnicity.

1. “Beauty” Used as a Proxy for Race or Ethnicity

Even while "attractiveness discrimination" is not directly prohibited, employers that exclude members of protected classes through the proxy of perceived "beauty" requirements/restrictions that are tied to racial characteristics, may be engaging in discrimination.  For example, excluding all Black or Asian applicants for a position based on a perceived lack of “beauty” -- through the illegitimate proxy of a Euro ethno-centric beauty paradigm. 

So, hiring only blonde applicants, or otherwise hiring only applicants with a racially specific "look," could result in a claim for race discrimination.  This was roughly the cause of action pursued against Abercrombie & Fitch for its previous practice of hiring only those with a "classic American look."  (link) (link)

On the other hand, if an employer hires only attractive employees, but does so while hiring both men and women, as well as applicants from varied racial backgrounds, this practice is less likely to support a claim of discrimination. 

2. Workplace Only Advances Attractive Women

Imposing an attractiveness requirement on women, but not men, with respect to hiring or advancement means the employer is treating men and women differently, which may be grounds for a sex discrimination claim.  This was the type of claim brought against airlines that imposed harsher weight requirements on female flight staff than comparable male flight staff.  (link) (link). 

3. Disparate Impact Discrimination

Another approach is a disparate impact discrimination claim.  Under a disparate impact theory of liability an employee can point to an otherwise neutral policy that they allege is the cause of a (potentially unintentional) disparate impact on a protected classification.  

For example, a female employee could point to the use of pictures in a job application and attempt to establish that this policy resulted in potentially subconscious attractiveness biases affecting which applicants are offered an interview, in a way that disparately impacted women but not men (i.e. excluding less attractive women but not less attractive men and thereby hiring a smaller percentage of female applicants).  If this policy can be isolated as the reason for a gender disparity in hiring that disadvantages women as a group, a female applicant may be able to make out an initial case of disparate impact discrimination.  The employer would then be forced to establish that the challenged policy was job-related and/or supported by business necessity. 

A Possible Solution: Pass a Law?

The state of Michigan and at least a few other localities have passed statutes forbidding discrimination based on weight, height, and/or appearance.  For example:

"The cities of Binghamton, San Francisco and Santa Cruz prohibit discrimination against weight and height as well.  Madison, Wisconsin and Urbana, Illinois have ordinances banning discrimination based on a person’s “physical appearance” and “personal appearance” respectively, while Washington D.C. prohibits all forms of personal appearance discrimination."  (link)

Although attractiveness and weight are obviously not the same thing - they are often perceived as highly correlated.  Perhaps weight discrimination would be a good starting place to start to tackle appearance discrimination.  Importantly,  obese women are often treated poorly compared to obese men:

"One recent study revealed that higher body mass is associated with reductions in women's hourly wages, family income, and probability of marriage, with obese women experiencing a 17.51 percent reduction in wages from their standard weight counterparts. In striking contrast, the only significant negative effect of obesity for men is that they are less likely to marry."  (link)

Bona Fide Occupational Qualifications

Employers can attempt to show that "attractiveness requirements" are bona fide occupational qualifications that are reasonably necessary to the normal operation of that particular business or enterprise. But that is usually hard to establish because courts apply the exception very narrowly and it also does not apply to race discrimination claims.

Obesity

It is worth noting that obesity, which is often seen as an unattractive trait (at least in American society), may, under certain circumstances, qualify as a disability under the ADA and additional state and local statutes.  When this standard is met it may provide anti-discrimination rights to an obese employee.

Conclusion

Why does this matter?  Is contemplating attractiveness discrimination statutes taking anti-discrimination protections a bit too far?

While it is may be a complicated issue I don’t think so.  I like Ruth Graham’s explanation:

Our preference for beautiful people makes us poor judges of qualities that have nothing to do with physical appearance—it means that when we select employees, teachers, protégés, borrowers, and even friends, we may not really be making the best choice.  It’s an embarrassing and stubborn truth—and the question is now whether, having established it, social researchers can find a way to help us level the playing field. (link)

Perhaps New York State or New York City should start with passing a weight discrimination statute to begin to address appearance discrimination.  Would it really hurt anybody to protect overweight individuals from employment discrimination?

Would the sky really fall if we took that step in New York?

I think it's likely to stay put.