Gender Discrimination

In the Workplace

Case Study on

Gender Discrimination Class Action Against Lawrence Livermore National Laboratory

Table of Content

Introduction. 3

Discrimination Laws. 3

Gender Discrimination. 6

Evaluation of Gender Discrimination Case. 6

Background. 6

Statement of Facts. 7

Case Arguments. 9

Case Decision. 10

Footnote. 13

Introduction

The word discrimination comes from the Latin "discriminare", which means to "distinguish between". It means to make a distinction between people on the basis of class or category without considering their ability. Knowingly or unknowingly distinguishing people has affected people in their workplace either emotionally or financially. Employees, who felt that they have been discriminated, have filed cases either against organization or the management several cases for their rights of equality.

Theories such as Egalitarianism claim that there should be equality among people living in a society. Every individual has the right to avail the kind of freedom being provided by the government.¹

Discrimination Laws

There is no one law that talks about Employment Discrimination. There are several laws, which evolved eventually, and seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. The main body of such laws is composed of federal and state statutes. The United States Constitution and state constitutions prevents and punish the discriminatory practices at the work place.

Some of the laws related to discrimination that evolved are discussed below.

The Fifth and Fourteenth Amendments^{3, 4} of the United States Constitution limit the power of the federal and state governments to discriminate. According to The Fifth Amendment, no person should be deprive of "life, liberty, or property," without due process of the law. The U.S. Constitution amendment V also contains an implicit guarantee that each person receives equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group.

The Equal Pay Act^{3, 4} prohibits paying wages based on sex by employers and unions. It provides that where workers perform equal work in jobs requiring equal skill, effort, and responsibility and performed under similar working conditions, they should be provided equal pay.

The Fair Labor Standards Act applies to employees engaged in some aspect of interstate commerce or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.

Title VII of the Civil Rights Act of 1964^{3, 4} prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. The Act prohibits discrimination based on race, color, religion, sex or national origin. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor Organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.

The Age Discrimination in Employment Act (ADEA)^{3, 4} prohibit employers from discriminating on the basis of age. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.

The American with Disabilities Act (ADA)^{3, 4} was enacted to eliminate discrimination against those with handicaps. It prohibits discrimination based on a physical or mental handicap by employers engaged in interstate commerce and state governments. The type of discrimination prohibited is broader than that explicitly outlined by Title VII.

The Equal Opportunity Employment Commission (EEOC)^{3, 4} interprets and enforces the Equal Payment Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. Title VII established the Commission. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.

Gender Discrimination

The law prohibits employers from discriminating against employees because of their gender. Both male and female employees are protected. However, an employer generally may make employment decisions based on gender if it is reasonably necessary for normal business operations. For example, a theatre may hire only female actors to play female characters. Employment decisions based on stereotypes of men and women—rather than reasonable necessity—are impermissible. For example, an employer cannot refuse to consider female applicants for jobs that men have traditionally performed, and vice versa. Pregnancy discrimination and sexual harassment are also forms of sex discrimination.²

Evaluation of Gender Discrimination Case

Case: -

Gender Discrimination Class Action Against Lawrence Livermore National Laboratory ⁵

Background

The lawsuit was filed nearly five years ago, on December 23, 1998, charging that female Lawrence Livermore National Laboratory (the “Lab” or “LLNL”) employees in a variety of job categories are paid and promoted less than male employees with comparable education and experience. One of the lawsuit’s main contentions is that the Lab has discriminated against women through a system, which bases annual salary adjustments on an employee’s subjectively determined “Relative Value Rank” - a number that supposedly reflects an employee’s “value” to the Lab as compared to other employees. Plaintiffs allege that this system allows gender stereotyping and biases to influence decisions. The lawsuit also alleges that the Lab had documented, but failed to correct, discrimination against women for more than a decade.

Statement of Facts

The plaintiffs allege that the LLNL has discriminated against female by paying them less than comparable male employees and by denying and limiting their opportunities for advancement as compared to male employees. Based on the allegation, a study was performed by third party on the Pay structure from 1989 through 1998.

According to the study, over 2,000 of the 6,500 employees at the Lab are women. As early as the late 1970s, female employees started feeling that they were being discriminated based on their gender and is being paid less compared to their male counterpart. They formed a Salary Study Committee within the Lawrence Livermore National Laboratory Women’s Association (LLNLWA) specifically for the purpose of studying the salary differences between comparable male and female employees. For the next ten years, LLNL management repeatedly promised to conduct an analysis of salaries at the facility in response to the advocacy efforts of the LLNLWA’s committee, but failed to fulfill its promises. In 1988, after the LLNLWA’s committee presented LLNL management with evidence of the discrimination in the form of their own salary studies, the then-director John Nuckolls directed that the issue of salary differences be examined from 1998 to 1993.

Outside consultant, John Davis was hired to develop a statistical model by which to assess the pay equity of protected class members, including women and minorities. Using his statistical model, the Human Resources Department of LLNL conducted a pay equity study. The study was conducted by Norton Croft, a former compensation manager of LLNL who had left the Lab in the mid-1980s, and who was rehired by the human resources manager in connection with implementation of the study. Mr. Croft collaborated with other employees of the Human Resources Department in conducting the study, and consulted with a number of managers and salary committee members from around the Laboratory, including the scientists and engineers’ salary committee, the technical salary committee, and the administrative salary committee

A report of one such study acknowledged that females are paid statistically significantly lower than males by $110.46/month on average

Fact that the documents and information is being withheld on the ground of attorney-client privilege

The result was produced to the defendant but the defendant has refused to produce documents, or permit other discovery. According to the defendant, those studies were not conducted at the direction of the Lab director as they had been in the first four years, but were instead conducted at the direction of the Lab’s in-house counsel. On that basis, the defendant claims that documentation of and raw data for the post-1992 studies, as well as conversations regarding those studies, are protected from disclosure by the attorney-client privilege. Yet aside from bald assertions of the privilege, the defendant has provided no evidence to show that counsel in fact directed the post-1992 studies, or that oversight of the studies was ever shifted from the Director to in-house counsel.

Case Arguments

Arguments supporting the plaintiff’s case were made based on the studies and other facts gathered. The arguments were as discussed below.

The studies of LLNL pay from 1989 through 1998 shows that pay and/or rank disparities existed between women and men. The studies also surfaced the evidence of intentional discrimination as they show that LLNL management knew about the discrimination and failed to either stop or prevent the unequal pay and employment for female employees. They also had no basis to claim that the entire study should be shielded from scrutiny by attorney-client privileged.

The Defendant has Improperly Invoked the Attorney-Client Privilege to Prevent Discovery Concerning the Post-1992 Pay Equity Studies.

The defendant has tried to hide the evidence of salary differences between men and women at the Lab. According to the defendant, the post-1992 pay equity studies were done to monitor equal opportunity for men and women at the Lab by the management and should be shielded from attorney-client. However, this was treated as an attempt to hide the facts.

Defendant’s counsel also refused to allow questioning the LLNL employees about the post-1992 pay equity studies. The Court emphasized that even where a corporation is the client-litigant, “a litigant may not silence a witness by having him reveal his knowledge to the litigant’s attorney.” Therefore, the defendant’s witnesses should be compelled to answer questions concerning the pay equity studies, and any other questions related to the case.

It was also argued that the defendant allegation that they have taken reasonable steps to stop any discrimination based on the post 1992 pay equity studies should be open to the plaintiff. The Plaintiff should be entitled to test the defendant’s defense of reasonableness and should have complete access to the effort made by the defendant to stop discrimination.

Case Decision

The Regents of the University of California voted on November 19, 2003 to approve a settlement agreement. Under the settlement agreement, the Lab will change its performance management system, including its system of Relative Value Ranking (RVR), and its human resource practices. The Lab will pay $9.7 million in damages to the class members, pay an additional $80,000 to the seven representative plaintiffs, and increase the base salary of all class members by 1%, with the increase totaling about $850,000 in the first year alone. Following are some other practices that the Lab will have to incorporate under the settlement agreement.⁶

• The Lab will eliminate RVR for three groups of administrative and technical employees. Compensation for these employees will instead be based on a system that determines pays primarily based on the employee’s job classification and performance.

• The Lab will issue revised guidelines for the RVR of all remaining employees designed to eliminate subjective biases from decision processes.

• The Lab will conduct annual pay, promotion, and rank equity studies to identify any disparities between male and female employees. If the studies show statistically significant disparities based on gender, the Lab will determine the reason for the disparity and either correct the problem or document the non-discriminatory reasons for the disparity. The studies will be shared with the attorneys for the class, who may use such information to show the Court that the Lab is not complying with the agreement.

• The Lab will develop and implement a written plan to promote equal opportunity for women in obtaining desirable job assignments.

• Lab managers and supervisors will be required to receive training on compliance with the settlement agreement; compliance with federal, state, and Lab prohibitions against discrimination and retaliation; diversity; and recognizing and avoiding the influence of stereotyping in the making of personnel decisions.

• Annual performance evaluations of Lab managers and supervisors will include evaluations of their ranking and performance evaluation skills and compliance with equal employment opportunity laws.