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The Center for WorkLife Law University of California, Hastings College of the Law Convocation on Max

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Title: The Center for WorkLife Law University of California, Hastings College of the Law Convocation on Max


1
The Center for WorkLife Law University of
California, Hastings College of the
LawConvocation on Maximizing the Potential of
Women in Academe -- Biological, Social, and
Organizational Components of Success in Science
and Engineering December 2005
A new model for spurring organizational change
2

The challenge in science It did not look like
what we thought discrimination looked
like. (MIT, 1999)
3
A new model
  • Traditional language calls for eliminating the
    chilly climate by creating a culture of
    faculty support (Stanford, 1993)
  • New model calls for eliminating stereotyping and
    bias
  • In fact, the chilly climate often stems from
    documented patterns of gender stereotyping
  • Some outright illegal
  • WorkLife Law model aims to
  • 1. Describe in readily understandable terms the
    patterns of stereotyping that create the chilly
    climate for women
  • 2. Teach people to spot bias
  • 3. Highlight the importance of a new trend in
    federal employment law

4
New trend in employment law
  • In addition to glass ceiling and sexual
    harassment, maternal wall or family
    responsibilities discrimination (FRD)
  • Over 600 cases (Calvert Williams, 2005)
  • 400 increase in last decade (Still, 2005)

5
Significant potential for liability
  • Higher win rate than in other civil rights suits
    (27 v. 50) Still, 2005)
  • 37 cases with verdicts or settlements over
    100,000 (Calvert, 2005)

6
New role for stereotyping evidence
  • New role emerging in maternal wall cases
  • Traditional way of proving discrimination
    comparator
  • Two 2004 maternal wall cases held
  • Cases may also be proved with stereotyping
    evidence, without comparator (Back, 2004)
  • Cognitive (attribution) bias is recognized as a
    form of stereotyping (Lust, 2004)

7
Framing
  • Traditional language subtle, unconscious,
    implicit bias
  • Not helpful in the legal context
  • Subtle Is it fair to hold people responsible for
    things that are so subtle? (Wax, 1999)
  • Unconscious How can unconscious bias be
    intentional?
  • Implicit may not be sufficiently self-explanatory
  • New terminology unexamined stereotyping
  • Unexamined -- shifts burden of proof (Williams,
    2003)
  • Highlights that stereotype activation is
    automatic but stereotype application can be
    controlled (Sommers Ellsworth, 2001 Blair,
    2002)

8
WLL model uses law proactively
  • To spur organizational change by influencing
    intermediaries, e.g. HR
  • Process already underway
  • When WLL had only 20 maternal wall cases, a
    major HR outlet advised employers not only to
    avoid stereotyping but also to offer
    telecommuting, flextime, part-time parity
    (HRHero.com, 2002)
  • Went far beyond case law
  • A pattern described by the new institutionalists
    (Stryker, Kelly Dobkin, Edelman)
  • In order to use new legal trend to spark
    organizational change, stereotyping patterns must
    be easy to spot

9

Naming patterns of stereotyping so they are easy
to spot
10
How to do things with words
  • The glass ceiling
  • Penalizes women through 2 distinct patterns
  • Some make it harder for women to be perceived as
    competent
  • Others penalize women for being too competent
  • The maternal wall (or FRD)
  • Penalizes mothers, women perceived to be
    potential mothers, fathers who seek an active
    role in family care

11
Glass ceiling patterns that make it harder for
women to be seen as competent
  • Women judged on their accomplishments men on
    their potential
  • Hes a nascent scholarsoon to blossom she
    lacks publications (Lam, 1991)
  • Gender-biased performance evaluations including
  • Hes a good mentor and teacher she is nice and
    nurturing but not tenure material (Weinstock,
    2000) (attribution bias)
  • Hes skilled shes lucky (attribution bias)
  • Are womens, but not mens, mistakes remembered
    forever? (recall bias)
  • Double standards in how objective rules are
    framed and applied (leniency bias)
  • Including are men given greater rewards for the
    same accomplishment?
  • Need a woman be a superstar to survive?
    (polarized evaluations)
  • Can a female schlemiel do as well as a male
    schlemiel?

12
Glass ceiling patterns that make itharder for
women to be seen as competent
  • Are women out of the loop? (tokenism)
  • Social isolation is one reason many single
    women without childrenin the bench scienceswere
    considering leaving academia (Mason Goulden,
    2003)
  • Is the job defined in terms of masculine patterns
    (role incongruity)
  • In physics, we select for assertiveness and
    single-mindedness (Georgi, 2000)
  • Assertiveness masculine personality trait
  • Mother, princess, pet Are women who play
    stereotypically feminine roles taken into the
    in-group, while other women are stigmatized?
    (subgroup stereotypes)

13
Glass ceiling patterns that penalize women for
being too competent
  • Hes assertive, shes aggressive
  • To get ahead here at MIT, you have to be so
    aggressive. But if women are too aggressive
    theyre ostracized (Nedis, 1999 Fiske
    Glick Heilman)
  • Catch-22
  • and if theyre not aggressive enough they have
    to do twice the work (Nedis, 1999 Price
    Waterhouse, 1989)
  • Shes a shameless self-promoter he knows his
    own worth.
  • Sexual harassment of successful women
  • Common in the sciences?

14
Maternal wall patterns
  • Jobs defined around masculine patterns
  • In physics, we select for assertiveness and
    single-mindedness
  • Single-mindedness an immunity from household
    work most mother dont have so 95 of mothers
    aged 25-44 work less than 50 hours/week
    year-round (Still, 2005)
  • Role incongruity
  • as a mother of two infants, she had
    responsibilities that were incompatible with
    those of a full-time academician (Schneider,
    2000)(reported settlement 495,000)
  • Prescriptive stereotyping, benevolent or hostile
  • member of tenure committee told professor to stop
    worrying about tenure just go home have more
    babies (Schneider, 1996)
  • Attribution bias
  • An absent man is giving a paper an absent women
    is home with children
  • Leniency bias
  • Mothers are held to longer hours, higher
    performance and punctuality standards (Correll
    Benard, 2005)

15
Maternal wall patterns
  • Negative competence assumptions
  • A 2005 study found that relative to other kinds
    of applicants, mothers were rated as
  • less competent,
  • less committed,
  • less suitable for hire, promotion, and management
    training,
  • deserving of lower salaries (Correll Benard,
    2005)
  • The perception of me having a child is that my
    profession is not the priority anymore, that
    its now kind of second to the family.
    (Bombardieri, 2005)
  • Earlier studies elderly, blind, retarded,
    disabled and housewives (Fiske Glick, 2002,
    Eckes, 2002)
  • If youhave your child on campus, colleagues who
    recognize you when you are by yourself now only
    see you as a walking uterus and ignore you.
    (Mason, 2003)

16
Gender wars
  • Little recognized, but acute problem
  • 50 of women academics in science have no
    children (Mason Goulden, 2002)
  • Childfree women
  • May ask are mothers reinforcing stereotypes?
  • Childless women
  • May ask why should she have it all?
  • Maternal wall often pits women against women
  • A result of gender discrimination, not proof that
    this is not a gender problem

17
FRD against fathers
  • A study of 500 employees found that, when
    compared to mothers,
  • Fathers who took a parental leave
  • recommended for fewer rewards and viewed as less
    committed
  • Fathers with even a short work absence due to a
    family conflict
  • recommended for fewer rewards and had lower
    performance ratings (Dickson 2004)
  • Untenured professor told mentor he did not dare
    even to ask about parental leave, much less take
    it (confidential)

18
Training people to recognize their rights
19
Federal employment laws
Equal Protection Title VII of the Civil Rights
Act Disparate treatment Disparate
impact Hostile environment Constructive
discharge Retaliation Equal Pay Act Pregnancy
Discrimination Act (PDA) Family Medical Leave
Act of 1993 (FMLA) Title IX (atom bomb
sanctions) I will focus on maternal wall cases
20
Title VII disparate treatment
  • From WLL hotline science professor
    outstanding job evaluations from peers and
    students until she had a baby
  • Afterwards, same from students but not
    colleagues
  • Increased scrutiny of her office hours
  • People who prioritize family do not make tenure
  • Not a team player
  • Illustrates common patterns
  • Gender-biased performance evaluations
  • Double standards
  • Loose lips (hostile prescriptive stereotyping)
  • Ostracism
  • Also common withdrawal of administrative support

21
Pregnancy discrimination act
  • Protects employees from discrimination based on
  • Pregnancy
  • Childbirth and related medical conditions
  • Plans to have children (Westfall Williams,
    2006)
  • Pregnancy must be treated the same as a temporary
    illness, condition, or disability
  • Over 1/3 of academic institutions surveyed had
    maternity or childrearing policies likely
    violated PDA (Thornton, 2004)
  • Places mothers in awkward situations
  • Have to impose on colleagues
  • Fight political battles

22
Family medical leave act
  • Provides employee with
  • 12 weeks of unpaid leave and reinstatement to the
    same or equivalent job for
  • Birth or adoption
  • Serious health condition of a parent, spouse, or
    child or
  • Serious health condition of the employee.
  • Interference with FMLA rights
  • Scientist went on maternity leave supervisor
    pressured her to reduce her leave time (Liu,
    2003)
  • 40 of academic women surveyed returned to work
    earlier than they wanted to pressured to do so?
    (Mason 2003)

23
Retaliation
  • Unlawful retaliation is established when
  • The employee engaged in legally protected
    activity
  • Was subject to adverse action afterwards and
  • There is a causal connection between the two.
  • Often easier to prove retaliation than the
    underlying claim of discrimination

24
Retaliation
  • Legally protected activities
  • Complaining/filing suit about discrimination or
    harassment
  • Participating in an investigation of a
    discrimination claim or
  • Opposing discriminatory work practices
  • When a woman faces negative career consequences
    for protesting a denial of maternity leave,
    stopping the tenure clock, etc, thats
    retaliation

25
Conclusion
  • Time re reframe the chilly climate debate
  • Replace vague language of culture with
    description of specific patterns of unexamined
    bias
  • New sensitivity to what is evidence of illegal
    discrimination
  • Use new institutionalism as model for spurring
    institutional change
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