Legal Trends

By Jonathan A. Segal Apr 1, 2005
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HR Magazine, April 2005 Remove barriers to the executive suite, but avoid the legal risks of female-only approaches.

We have come a long way toward achieving gender equality in society and in the workplace. But we still have a long way to go, particularly when it comes to finding women at the highest levels of management. Women account for 45 percent of the workforce, for example, yet women represent fewer than 15 percent of Fortune 500 officers.

In most organizations, there is still a glass ceiling—that invisible but often impenetrable barrier that makes it more difficult for talented women to rise as high as men of equal (or sometimes lesser) talent.

Fortunately, employers increasingly recognize the business benefits of gender diversity, independent of legal mandate. For example, shattering the glass ceiling is in an employer’s economic self-interest relative to recruiting top-notch talent and expanding the employer’s customer base. But glass-ceiling initiatives on behalf of women are themselves fraught with the risk of unlawfully discriminating against men.

This article discusses seven common approaches to eliminating the glass ceiling, the legal risks inherent in them and strategies for minimizing the risks. While the article focuses primarily on gender, many of the observations and recommendations also apply to the glass ceiling blocking racial and ethnic minorities from the highest reaches of corporate success. But that’s another article for another day.

Giving Gender a ‘Plus’

To obtain the benefits of gender diversity, some employers consider gender favorably in hiring and promotion decisions. Title VII of the Civil Rights Act of 1964 protects women (among others) from employment discrimination, but it also restricts employers’ freedom to consider gender to women’s advantage.

On the one hand, it is established that Title VII prohibits an employer from imposing gender quotas. On the other hand, the U.S. Supreme Court has made it clear, in Johnson v. Transportation Agency, 480 U.S. 616 (1987), that an employer may consider gender as one factor in an affirmative action plan that has the remedial purpose of correcting the employer’s past discrimination or where there is a “manifest imbalance” in “traditionally segregated job categories.”

But the high court has yet to rule definitively on whether an employer can consider gender as a “plus” in the absence of a remedial purpose (i.e., to remedy prior discrimination or a manifest imbalance).

The Supreme Court did hold in 2003 that the University of Michigan Law School could give race a plus in making admissions decisions, as part of an individualized, holistic determination. In allowing institutions of higher education to maintain some race-conscious affirmative action, the Supreme Court focused on, among other issues, the fact that students can develop the skills employers need to compete in the global marketplace only through “exposure to widely diverse people, cultures, ideas and view points.”

While Grutter v. Bollinger, 539 U.S. 306 (2003), and its companion case involved students and not employees, some of the court’s analysis would support allowing employers to give race or gender a plus in employment decisions, so long as it is part of a holistic process in which there are no quotas—either by design or effect.

Nevertheless, there are likely to be a number of changes on the Supreme Court over the next few years. President Bush has indicated that he intends to appoint “strict constructionists” like Associate Justices Antonin Scalia and Clarence Thomas, each of whom wrote a very strong dissent against affirmative action in the Michigan decisions.

A strict construction of Title VII’s wording probably would prohibit consideration of gender as a plus in employment decisions, even where the goal is to increase diversity. In fact, that is the holding of the only appellate court that has ruled directly on this issue. In 1996, in Taxman v. Board of Education of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), the plaintiff challenged a school district’s affirmative action plan that called for the layoff of white teachers ahead of black teachers with equal qualifications.

The school district could not argue that the affirmative action plan had a remedial purpose because it neither conceded discrimination nor demonstrated that black teachers were underrepresented. Accordingly, the employer justified its plan based on its goal of having a culturally diverse workforce. Rejecting the school board’s justification and finding its plan unlawful, the court of appeals held that, independent of a remedial purpose, “there is no Congressional recognition of diversity as a Title VII objective requiring accommodation.”

With the very real possibility that the Supreme Court or other federal appeals courts will adopt the 3rd Circuit’s analysis in Taxman, employers are well-advised not to consider gender (or race) directly in employment decisions (absent a remedial purpose). To consider gender directly is to invite claims by disgruntled men.

What employers can and should consider are differences that may correlate with gender but that are not gender per se. For example, an employer can consider differences in experiences, perspectives and contacts.

Increasing Applicant Pool Diversity

Employers cannot reserve positions for women. However, they can and should increase the diversity of the applicant pool. Ordinarily, this means not limiting recruiting to word-of-mouth—an approach that may perpetuate the EEO profile of upper management. Most white male executives probably will be acquainted with more white men than, for example, women of color whom they could refer for available senior positions.

Generally, employers should post positions internally and supplement their internal posting with diversified external recruiting. This should include targeted recruiting through associations, publications, web sites, etc., that are geared toward women.

But what if the ultimate decision-maker would like to hire a known, qualified white male candidate? The known candidate comes into the process with a very strong presumption in his favor, not directly because of his gender, but because he is a known quantity. In these circumstances, increasing the diversity of the applicant pool may do nothing more than increase the legal risk because there is a greater likelihood that a woman who makes it to the finals will challenge the decision. Individuals who are not interviewed and do not have their expectations raised are unlikely to challenge the decision.

Accordingly, when the ultimate decision-maker has a candidate in mind, it is legally dicey for HR to insist on following a process that will not change the end result. Process just for the sake of process not only increases the employer’s ultimate legal risk but also wastes the time and efforts of qualified applicants who don’t have a prayer.

HR should push for casting a wide net in deciding whom to interview. But where the die already has been cast, policies and practices need to be flexible enough to accommodate this reality, as long as there is no evidence that management is unlawfully motivated.

‘Benign’ Stereotyping

Even when there is no preferred candidate waiting in the wings, the interview process often favors men—white men in particular. This is true with regard to both new hire decisions and promotion decisions. In some cases, the result is due to unadulterated gender bias. It’s best that you give those decision-makers the opportunity to find new jobs. In other cases, however, the result is due less to invidious discrimination and more to unconscious comfort with similarity.

More specifically, some studies indicate that women as a group tend to lead somewhat differently from men. These studies suggest that women are more likely than men to apply a collaborative/transformational leadership style rather than an authoritarian/transactional leadership style.

A problem arises when an authoritarian man (or woman) assesses the leadership skills of a more collaborative woman (or man). Because there are more authoritarian men in power than women, this is more likely to work to the disadvantage of women. Authoritarian men pick men who not only look like them but also seem to lead like them. In the process, they undervalue the leadership skills of those who apply a more collaborative style.

To address this very real problem, many organizations provide management training that emphasizes diversity in leadership style. Unfortunately, these well-intended programs may themselves perpetuate stereotypes. While it is critical to value diversity in leadership style, it is dangerous to state or suggest that differences necessarily correlate with gender. There is as much diversity among women as there is between women and men.

Stereotyping through sensitizing may create the factual predicate for denying men positions that require collaboration. Sensitizing also may create an indirectly higher burden for women. Implicit within the statement that women are more collaborative than men is the assumption that they have stronger interpersonal skills. In fact, a few management gurus have made the assumption explicit, stating expressly their view that women make better leaders.

Here’s how acting on that assumption may play out in a hiring or promotion decision: Assume a decision-maker believes that women are stronger than men interpersonally. Let’s say that on a scale of 1 to 9, the average man interpersonally is a 5 and the average woman is a 7.

Now assume there are two final applicants for a COO position: a man with an interpersonal skill set rated 5 and a woman with an interpersonal skill set rated 6. The woman is clearly the more qualified in this area. However, the man seems like the better candidate because he meets the lower expectations we have established for him, while the woman fails to meet the higher expectations we have established for her.

Extolling women’s interpersonal skills has another unintended adverse consequence: Consciously or unconsciously, employers may hire or promote women disproportionately into relations positions rather than line positions. As we know, line positions are more likely than relations positions to feed into executive positions.

HR needs to sell the benefits of diversity without making generalizations about women and men of the kind that, we hope, would never be made about race or ethnicity.

Flexibility

While women and men alike struggle with work/life balance, in our society the burden of family still falls more heavily on women. According to a U.S. Census Bureau Report, 26 percent of married women with children under 15 who stayed out of the labor force throughout 2003 did so to care for home and family. Only 0.7 percent of out-of-work married men remained unemployed for that reason. Reports are commonplace that professional women are more likely than their male counterparts to abandon existing or potential employment opportunities because of competing pressures at home.

Aware of this reality, many organizations appropriately have become more flexible. This flexibility includes allowing meaningful part-time work and telecommuting. While flexibility is a good thing, so is consistency. And this is where another legal minefield lies.

Many organizations are adopting increasingly flexible policies to attract and retain women, but they must allow men the same flexibility. It is unlawful—and unfair—for employers to deprive fathers of the same accommodations that they provide to mothers.

Accordingly, managers need training on how to reconcile two values that sometimes compete: flexibility and consistency. Managers need to be consistently flexible.

Sometimes managers become so concerned about work/life balance that they make decisions for their subordinates based on their own calculus of the balance. Stated otherwise, some managers do not offer women with children (particularly young children) assignments that involve substantial travel or exceedingly long hours.

Even if well intended, this kind of paternalism is not only inappropriate but also unlawful. Women don’t need men (or other women) to decide what’s good for them. Organizations should communicate that fact as part of management training.

Mentoring

When assessing retention problems, organizations often focus heavily on why employees leave. But the reasons why employees stay are just as important. For all employees, mentoring is important in terms of both career development and emotional bonding with the organization. However, mentoring is particularly important for women, who are more likely than men to face overt and covert gender bias.

Where an organization does not have a formal mentoring program, the de facto mentoring that exists tends to exclude women. We often informally mentor people who remind us of ourselves; most men don’t see themselves when they look in a woman’s face.

For this reason, many organizations have instituted formal mentoring programs that in some cases are limited to or geared primarily toward women. Such a limitation creates potential legal problems. The employer is offering something that a court would likely find to be a tangible employment benefit that has been unlawfully restricted on the basis of protected group status.

Accordingly, eligibility for participation in mentoring programs should be defined in gender-neutral ways. Within the context of these programs, employers can focus on issues unique to women, people of color—and even white men.

Formal mentoring programs also should avoid matching partners based on gender. Where men hold disproportionate power in an organization, gender-based matches give men of promise greater access to the inner circle than women of equal promise.

Matching based on gender also has a major business flaw. It deprives men in power of the opportunity to learn from the experiences and perceptions of promising women. With this knowledge, men become better managers.

Training And Marginalization

Most employers provide training not only on harassment but also on discrimination as applied to tangible employment actions. The absence of such training exposes an employer not only to a greater risk of liability but also to punitive damages if liability is found.

But sometimes the training is too successful. Managers become so risk averse that they avoid managing and socializing with those who might pose a greater legal risk—in other words, those who are different from them.

The sad reality is that the fear of sex discrimination and harassment claims has increased gender-based avoidance, which itself constitutes discrimination. For many professional women, covert marginalization is a greater obstacle to advancement than overt bias or hostile behavior.

Training on legal issues needs to address this marginalization, lest the training shore up the glass ceiling. Specifically, managers need to understand that discrimination often arises out of what they don’t do, as much as what they do. If a woman is struggling, for example, her manager should respond as directly as he would to a floundering male employee. If he doesn’t, she probably won’t improve like the male comparator who is managed more aggressively.

When away on business, male managers should not avoid women. Nor should they participate in activities that are likely to make women uncomfortable, such as going to strip clubs. Women often are marginalized within the margins of tangible employment decisions. Employers need to address these margins in their training, policies and practices.

Auditing

No matter how stellar an employer’s training, policies and practices, so long as decision-makers have discretion, there is the potential for gender bias. Accordingly, employers need to audit the results.

Are a disproportionate number of women being rejected because they are perceived as either not strong enough or too strong? Is a collaborative style perceived as weak and an assertive style perceived as too aggressive?

Do women in the organization make 79 cents on the dollar of what men in comparable positions make? In other words, do your pay practices resemble the national average?

Does the formal assignment system exist on paper only? Does overt or covert customer preference along gender lines affect who gets the plum projects?

While employers need the answers to these and other questions, the problem is that the data the employer uncovers may be discoverable in litigation and then could be used against the employer. Engaging an attorney to conduct the audit independent of actual or threatened litigation does not eliminate the risk. While the advice given may be privileged, the underlying data may not be.

Some employers assume there is a privilege for self-analysis independent of the attorney-client privilege. Courts have not routinely adopted such a privilege, even though public policy in favor of eradicating discrimination would clearly favor it.

That self-audits are not without legal risk does not mean that employers should not do them. There is a legal risk in not taking the legal risk. Waiting until a plaintiff discovers the problem is not a viable answer from either a business or legal perspective.

While you cannot eliminate the risks of conducting self-assessments, you can minimize them by:

  • Limiting the number of individuals who are involved in the self-audit.
  • Conducting oral rather than written (including electronic) conversations about the data collected.
  • Reaching conclusions based on finding of fact (e.g., three women in a row have been denied promotions based on their perceived “edge” or lack of “edge”) rather than legal conclusions (e.g., the decision-maker discriminates against women).
  • Taking corrective action so that any discovery includes not only the problem but also the employer’s proactive solution.

Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., a contributing editor of HR Magazine , is a partner in Philadelphia in the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.
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