Three issues for women in the workplace: the good, the bad and the ugly. Lisa Smith Presta and Jamie R. Schumacher

LEGAL BRIEF | EMPLOYMENT LAW Three Issues for Women

In The Workforce: The Good, The Bad and The Ugly

Jamie R. Schumacher is an associate at MacDonald Illig. She concentrates her practice in the areas of commercial litigation, employment litigation, insurance defense, and municipal/ordinance enforcement. She has helped resolve a wide variety of litigation matters.

Lisa Smith Presta is a partner at MacDonald Illig and chair of the firm’s Insurance Litigation Department. Her experience includes the handling of complex, multiparty litigation matters involving commercial disputes, breach of contract claims, fiduciary obligations and professional services.

The Good: Most employers are required to provide time and space to pump breast milk. Under the Fair Labor Standards Act (FLSA), most employers with 50 or more employees must provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” While such needs vary, a common practice is for morning, afternoon and meal periods to act as the “reasonable break time” though other accommodations are recognized by the FLSA (for example, providing “floater” employees to cover). A pumping space must be a private space, other than a bathroom, which is shielded from view and free from intrusion. Often this is accommodated by providing locks on office doors, mobile screens for cubicle areas or separate lactation rooms. However, these FLSA requirements do not apply to employers with fewer than 50 employees if compliance would impose “an undue hardship.” The Bad: Data establishes that gender pay discrimination continues. Whether intentional or not, statistics undeniably support the finding that women in nearly every occupation are paid less than men in the same role with the same experience. This is true not only in the United States, but globally.

What can be done? Recently, Iceland became the first country to officially require gender pay equality. In other countries, creative initiatives have been adopted, including subsidized child care and the enforcement of paternity leave. Here at home, and from an individual employer standpoint, a variety of strategies can increase general awareness of the issue and help to avoid unintentional pay discrimination. These strategies include transparency in compensation. Some companies have gone so far as to make all employee salaries public, but even internal transparency by itself can assist with selfcorrecting any discrepancies. In addition to transparency, eliminating negotiation of compensation can help to address the issue as studies demonstrate men are more likely to negotiate their salaries than women. Other helpful practices include mentorship programs and promoting female entrepreneurs. Such initiatives promote skills development, increase emotional and psychological support, and build a talented and experienced employee base. The Ugly: Is there a new type of #MeToo litigation? Yes, and it is in the form of shareholder derivative actions. In 2019, multiple suits were filed by shareholders — including those of Alphabet, Inc., the parent company of Google — who alleged that the public company’s Board of Directors conducted itself in a manner that had an adverse impact on the company profits and on the ability to hire and retain top talent. Specifically, it is alleged that directors concealed, minimized or were willfully blind to the sexual harassment and gender discrimination of high-level executives, thus exposing the company to #MeToo litigation and regulatory action. Whether your company is accountable to shareholders or not, the #MeToo movement and related litigation should serve as a reminder to review and update your sexual harassment policy and to periodically conduct anti-harassment training. For more information, contact MacDonald Illig at 814/870-7600.