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June 18— Discrimination against female managers and executives often tends to be subtle, but the impact on an employer—which can include recruitment and retention problems, bad publicity and potential litigation—is not, according to attorneys and employment analysts.
Although employers have become more cognizant of bias against women in the workplace, disparities, not only in pay but also in the way female executives are perceived as opposed to their male counterparts, are still a problem in many workplaces, Betty Spence, president of the National Association of Female Executives, told Bloomberg BNA June 17.
“Women will often be described as overly emotional; men are never described that way,” plaintiffs' attorney Lisa Banks said.
Recent publicity surrounding Jill Abramson's dismissal from her job as executive editor at The New York Times and whether gender played a role in how she was treated has brought renewed attention to the issue.
“We can't prevent gender bias from creeping into the workplace; it's already there,” Spence said. “What we want to do is get it out. We want to eliminate it because it exists in almost every corporate workplace. It keeps happening because it's basically imbued in our culture; identifying it and moving people to action is how we get it stopped.”
Matthew W. Lampe, a partner at management law firm Jones Day, told Bloomberg BNA June 17 that employers can identify gender discrimination by looking at employment patterns. “If you're losing women employees or having a hard time recruiting women,” he said, “that can be a pretty good sign there is a culture or a perceived culture of unfair treatment towards women.”
“What we see in general is that women executives are often held to a different standard than men in terms of temperament and approach to management,” plaintiffs' attorney Lisa Banks, a partner at employment law firm Katz, Marshall & Banks in Washington, D.C., told Bloomberg BNA June 16.
“When we represent executive women we often see criticisms of them based on their style or personality that you simply would not see if it were a man,” Banks said. “If you close your eyes and pretend that you are representing a man versus a woman, it would be inconceivable that these same criticisms would be lodged against them.”
Banks said because a lot of job evaluations are subjective, particularly at higher levels in a company, it can be difficult for employers to guard against gender bias.
Steve Paskoff, CEO and founder of Employment Learning Innovations Inc. in Atlanta, a training firm that helps companies build inclusive workplaces, told Bloomberg BNA June 13 that it's very easy to address blatant gender bias and discriminatory practices, but subtle biases are much harder to address.
Paskoff, who prior to establishing ELI was a trial attorney with the Equal Employment Opportunity Commission and is currently co-chair of the American Bar Association's Compliance Training and Communication Subcommittee, said organizations have to recognize that gender bias is real and often happens unconsciously.
“It's easy to address things that are expressly illegal in the workplace because they're very clear,” Paskoff said. “However, that doesn't mean that under the surface there isn't bias that's not being verbally articulated and may not be as clear.”
Banks said a general best practice for avoiding bias when evaluating employees is to “use the most objective measures possible.”
If you're talking about someone's management style and her ability to lead a team, staff or company, she said, “that's largely relationship- and personality-driven, and that by definition is a subjective assessment, so its going to be difficult.”
Banks advised employers to word performance questionnaires very carefully so that when they evaluate managers, they are truly comparing “apples to apples.”
She said employers should be aware of terms that suggest high emotion and are typically seen as being attributed to women like “hysterical, shrill and emotional.” Banks added, “Women will often be described as overly emotional; men are never described that way.”
Lampe urged employers to be aware of the types of lawsuits that are being brought. If there are cases challenging pay and promotion practices based on certain statistical analyses, he said, employers should be aware of how their organization measures up.
Lampe, who leads Jones Day's labor and employment practice in its New York City office, said employers should also keep a close eye on their recruiting and retention of women to identify trends that might indicate a problem with gender.
He added that human resources and in-house counsel should be closely aligned with the recruiting and retention team to evaluate trends. “Again, it's not to say that there is gender discrimination going on, but there could be a perception of it which could lead to gender discrimination claims and also cause the recruiting and retention of women to suffer,” he said.
According to Lampe, employers can identify internal trends by performing audits of their recruitment and retention of women. He said that while a lot of companies feel audits are massive, expensive and time-consuming undertakings, they can provide a lot of relevant information.
“I would encourage companies, even if they're not intending to do a comprehensive audit of gender policies, to identify areas where there could be potential concern and do more targeted or pinpoint audits,” Lampe said. “That may or may not lead to a broader audit, but it's something that's more manageable and it's something I think more companies should be encouraged to do.”
Gender discrimination against upper-level managers also can cause public relations nightmares for an employer.
To deal with such situations, employers should have a crisis plan, according to Karen Doyne, managing director and leader of the U.S. crisis practice at Burson-Marsteller, a global public relations and communications firm.
“The best way to ensure a company is smart and agile in responding to an internal employee-related crisis is to have a plan in place beforehand and to have tested that plan with a crisis simulation,” Doyne told Bloomberg BNA June 13.
“Most of the public understands that companies are more sensitive to employee concerns today then they were in the past,” she said. Still, Doyne said, when a company faces sex discrimination allegations, its employees and those on the outside will be wondering, “ ‘is this a good company or a bad company,' and that's what [the employer] should speak to.”
A close working relationship between HR, public relations and legal counsel is crucial, Doyne said. In some companies that can be an informal relationship, in others it may work better for the process to be more formalized, she said. “Either way, the goal is the same and that's communication among these disciplines so that there are no surprises and situations can be managed effectively,” she said.
Another part of a good crisis plan is a process for keeping an eye on potential controversies internally and having a process for flagging them, when appropriate, to make sure that these issues are on the radar and are being managed appropriately before they become public, Doyne said.
“We have clients that have crisis assessment teams that meet regularly to discuss and evaluate emerging situations to make sure they are being managed effectively internally in order to avoid a PR crisis,” she said.
Lampe said employers also need to be aware of other employers' workplace issues because plaintiffs' attorneys tend to pursue the most prominent, high-profile issues. “It is important for the HR function and in-house counsel to be aware of these types of trends,” he said. “Plaintiffs' lawyers sue in waves,” Lampe said, and employers need to “get ahead of potential liability.”
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