Search Results for: discrimination

We’re going to have fantastic economic growth… as long as litigation over bathroom usage and skin color generate as much as output as machine tools.

Here’s an interesting lawsuit covered by the Daily Mail: Young woman with a mixture of “German, Irish and Italian descent” is told that she doesn’t qualify for a “Multicultural Undergraduate Internship” at the Getty Foundation.

Up until now private institutions have been able to select students, for example, based on skin color. It was public universities that ran into trouble and litigation when they operated race-based admissions programs. I’ll be interested to find out what the legal theory is here. The Getty is entirely private. Why can’t they say “We don’t want to hire any white people”?

If a court says “No, you can’t choose by race” what about other non-profit programs that are limited by age? (Disclosure: I helped set up one myself that would potentially become illegal in a changed legal regime.)

Related:

• my photo essay on the Getty from shortly after it opened
• J.Paul Getty Biography (“The majority of very wealthy single men will tell you sadly that most, though not all, women can be divided into two types, those you pay to stay with you and those that you pay to stay away.”)
• Why California needs your tax dollars

I recently spent two days at Mt. Auburn Hospital in Cambridge. We got a healthy baby out of the deal so I am not complaining about their operation from a consumer perspective. However, I am thinking that there is an opportunity for litigators there.

Kleiner Perkins has a workforce that is 30-percent female (20 percent of partners are women) and that made them a target for legal buccaneer Ellen Pao and as well as guilty in the eyes of the New York Times, both before and after a five-week trial.  What would the jury have made of an operation where 100 percent of the employees (that we saw, over a 53-hour period) were of a single gender?

Health care jobs are the best in the U.S. The chart linked from “Software engineering = meaningless job?” shows that being in health care offers the best combination of pay and meaning. If these jobs don’t pay as well as collecting child support in Massachusetts (see Kosow v. Shuman in this chapter, for example), they certainly pay more than the median Massachusetts hourly wage of $21.48 (BLS May 2014). There is great protection from foreign competition and virtually unlimited demand for services, especially since the government made it illegal not to purchase health insurance.

How can it not be a lucrative field for litigators when the maternity and labor/delivery departments were both 100-percent staffed by women? Let the defense argue that men don’t want to experience the joy of working around newborns and helping women realize their dreams of motherhood. The plaintiffs will argue that these departments created a hostile environment for men.

Readers: If Ellen Pao had what the New York Times thought was a great lawsuit, why isn’t there a truly superb lawsuit here?

[Sidenote 1: The value of healthcare IT was on display throughout the delivery process. Mt. Auburn has achieved all of the Obama Administration’s “meaningful use” hurdles. This was our second baby to be monitored through pregnancy by the midwives at this hospital. This was our second baby where a test from this group had informed us that we would be having a boy. Yet we were asked three times by three different people, each typing at a computer, whether we knew the sex of the baby and, if so, what it was. (Separately, at what age can gender dysphoria begin? If very young, is it medically meaningful to ask “Are you having a boy or a girl?”) While sharp labor pains tortured the mother-to-be, we were asked about mailing addresses, health insurance data, etc. (the same information collected exactly two days earlier at a checkup) While suffering labor pains severe enough to merit an epidural, the mom was asked to sign a consent form for an epidural. (Why wasn’t it signed, scanned, and in the computer weeks before?) Having been given a due date by this group within this hospital, we were asked what the expected due date was.]

[Sidenote 2: At a “meet the midwives” event and some similar gatherings of expectant mothers, all were talking about their own to-be-born babies as fully human individuals, e.g., when looking at a 2-month ultrasound. They would refer to the fetus by name in some cases, talk about the child kicking, etc. Yet, given that the hospital is in Cambridge, it is same to assume that most are supporters of the Massachusetts law permitting on-demand abortion of babies at any time through 24 weeks of pregnancy (Wikipedia says a fetus may be viable outside the womb at 23 weeks).]

[Sidenote 3: New mothers are provided with a stack of pamphlets regarding welfare programs for which she would be either newly eligible or eligible at a higher level of benefits. In theory, Cambridge provides free housing for all non-working adults, but there is a waiting list and a parent with a young child gets higher priority. Anyone with a low income is eligible for food stamps, but “Women, Infants, and Children (WIC)” is available in addition for women and young children, according to the federal site. Obamacare requires insurance companies to pay for a breast milk pump with each baby, so the mother of four children will eventually end up with a stack of Medelas in the closet.]

Related:

• Thoughts on observing a birth
• Egyptian versus U.S. health care system

As a member of the MIT Class of 1982 my friends are now getting to the age (or beyond) where employers might want to replace them with younger/childless/cheaper/etc. workers. This seems especially likely in Silicon Valley where the cool/valuable companies are seemingly the ones founded by 20-year-olds. Ellen Pao (wrap-up; divorce litigators’ perspective on) started at Kleiner Perkins in 2005. Pao was supposedly 43 in 2012 (Fortune) and thus would have been 36 at the time that Kleiner hired her. Even if she came in with videos of spry 75-year-old relatives doing demanding mental and physical work do we think she would have been hired for that job as a 56-year-old, regardless of race or sex? If not, plainly there is more age discrimination in Silicon Valley than gender discrimination.

The question then becomes what is the threshold age at which a person who had been fired could expect to win a lawsuit under the various federal and state laws that supposedly protect workers from age discrimination? (it is “supposedly” because my business-minded friends say that these laws actually hurt older workers because companies don’t want to hire them and incur the litigation risk)

A friend on Facebook who also happens to work at Facebook posted the following:

‪#‎ellenpao‬ fired despite her results & despite them being credited to less competent men. ‪#‎whendoesitend‬ I am so happy to be at Facebook now where Sheryl Sandberg leads on culture. The stories I could tell about other places.

She linked to a story on Business Insider about the trial in Ellen Pao’s lawsuit against Kleiner Perkins.  Right next to the story that she referenced was a link to “A woman has hired Ellen Pao’s lawyers to sue her former employer Facebook for sex discrimination and harassment.”

Related:

• Ellen Pao’s new job?
• Litigious Minds Think Alike: Divorce litigators react to the Ellen Pao v. Kleiner Perkins lawsuit
• Ellen Pao v. Kleiner Perkins wrap-up

When Americans elected someone who identifies himself as “black” as president, folks said that this might usher in a new era of open minds and tolerance. I’m wondering if, ironically, Obama will end up presiding over the greatest increase in employment discrimination that the country has ever seen.

I’ve started six companies and had the good fortune to operate most of them during the prosperous period 1985-2006. I hired whites and blacks. I hired women and men. I hired 18-year-olds and 55-year-olds. I hired Muslims, Hindus, Jews, and Christians. In addition to Americans, I hired people from Pakistan, India, China, Germany, England, Canada, Australia, Japan, Croatia, South America, and various parts of the former Soviet Union. Was I trying to make a statement about diversity? No. I was trying to stay in business. We had growing demand from customers and, thanks to the strong economy, there weren’t many qualified applicants for the jobs that I offered. I felt lucky whenever I could find someone whom I was enthusiastic about hiring.

This article (dated from some time in 2009 according to the text) says that, due to the 25 million Americans who are unemployed or underemployed, there are typically 200 applicants for every job opening in the U.S. If we assume that 15 of those 200 are pretty well qualified, that leaves an ample opportunity for personal prejudice to operate. If an employer does not like workers of a particular race, he need not hire any and won’t face any financial consequence. More realistically, if any employer is prejudiced against older workers, who are rendered less attractive by government mandates to provide them with ruinously expensive health insurance, he or she can hire a workforce of twentysomethings.

In Obama’s speech he noted that “My administration has a Civil Rights Division that is once again prosecuting … employment discrimination”.  I think this makes sense. In a healthy classical free market economy, there would be almost no involuntary unemployment and a firm practicing discrimination would risk being overtaken by competitors. In a moribund planned economy, however, there is ample opportunity for cost-free employment discrimination and only a larger government can discourage it (though the Framers might ask why this isn’t a job for the 50 states; see The Dirty Dozen).

As government tends not to be perfectly efficient, my prediction is that Obama has a good chance of presiding over a massive expansion of employment discrimination in America. I expect this to fall hardest on older workers.

While the U.S. is losing thousands of jobs every day, it might seem odd that Congress is making it tougher for companies to hire people in the U.S.  This New York Times story covers the fact that it will now be possible for someone to sue a company 20 or 30 years after they were hired, on the grounds that the person who hired them (who may be dead by the this time, and thus unavailable to testify) paid them less money than a person of another sex or a difference race.  If you’re an employer, how do you budget for this liability?  How do you account for it in your pension fund, given that once 20 years of pay are adjusted the pension fund will need to be beefed up to pay out a higher pension based on the revised salary.  It sounds at first as though we’re rearranging the deck chairs on the Titanic.  In a nation where everyone is unemployed we’re going to argue about how much people should have been paid back in 1979 when they had jobs.  (Only from the perspective of 2009 does 1979 look like it might have been a good year for the economy!)

The effect on young people would appear to be especially pernicious.  The people who have the best chance of arguing that they were discriminated against are in their 50s and 60s (Lilly Ledbetter, the plaintiff for whom the bill is named, was hired by Goodyear in 1979 and retired in 1998).  As the U.S. economy shrinks, the pool of available money to pay wages shrinks.  If more of the money is given to oldsters and their attorneys, less money will be available to 22-year-olds starting their careers.

An economist would tell you that pay discrimination laws aren’t necessary in a free market.  A company that was underpaying women, for example, would find that its skilled women had quit to work for a competitor.  If women in all sectors of the economy were underpaid, a company could make tremendous profits with little risk simply by hiring an all-female workforce and entering markets where most firms had a mixed or all-male workforce.

Perhaps Congress is smarter than it would be appear at first glance.  Employers who aren’t subject to the market can do whatever they want and many of the most egregious cases of pay discrimination have been at monopolies such as the old telephone company and at government agencies.  Looking at where the jobs are right now and where we are going, the U.S. is no longer a market economy.  By the time we’re done with layoffs and stimulus, at least 40 percent of the economy will be government (federal, state, local).  16 percent of the economy is health care (overlaps with the preceding 40 percent), which does not behave according to the free market, and something like 7 percent is Wall Street, recently nationalized in all but name (and upside).  A school district can pay its workers whatever it wants to and however it wants to; parents have no choice but to continue to pay property taxes and send their children to the local school.  A hospital can pay doctors more or nurses less and still get its Medicare and Medicaid funds.  A Wall Street firm can hand out bonuses to the (mostly male?) managers who drove it into insolvency because there are always more TARP funds available.

A 22-year-old who is lucky enough to find a job in the land of his or her birth will most likely find it in the non-market portion of the U.S. economy.  If present trends continue, a child born today who remains in the U.S. is virtually certain to work for the government, in government-sponsored health care, or at a government-guaranteed financial firm.  Thus the new bill may not be as simple as the “old folks and plaintiff’s lawyers continue to grab everything that isn’t nailed down”.