Is Sex Discrimination At Work Still A Problem?

Copyright © 2011 National Public Radio®. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Last month, the U.S. Supreme Court heard arguments on the largest sex discrimination lawsuit in history against the country's largest employer. A class action suit on behalf of one and a half million female employees at Wal-Mart claims rampant bias in both pay and promotion. Wal-Mart rejects the charges.

The case before the Supreme Court focuses really on a separate issue, the unprecedented size of the class in this suit. But along the way, the justices heard a lot about sex discrimination in the workplace, and some have begun to suggest that we should declare the long fight over equal pay for equal work over.

More on the court case in just a moment. But what is happening where you work? Have we reached the tipping point on sex discrimination? Our phone number, 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, the second in our series of conversations on ideas to reduce the federal debt. But first, NPR legal affairs correspondent Nina Totenberg joins us here in Studio 3A. Nice to have you with us, Nina, as always.

NINA TOTENBERG: Nice to be here, Neal.

CONAN: And again, this case before the court not about sex discrimination per se, but about the unprecedented number of people in a class action suit.

TOTENBERG: It's even actually broader than that. The district court in this case - let's just say for a minute what a class action is. It's when a whole group of people get together and sue in a single lawsuit on behalf of everybody in a similar situation.

In products - you sue for a bad product, and everybody gets some money back, for example. Well, you do the same thing in employment discrimination. And there have been very large employment discrimination lawsuits in the past, tens of thousands, even hundreds of thousands of people, but not one this big.

And Wal-Mart has 3,400 stores and it says, you know, countless different categories of people and you can't mush them all together, that a class action suit has to have commonality, that people really have to be in the same situation.

On the other side, the lawyers for the plaintiffs say, look, these are cookie-cutter jobs. They're basically five different kinds of jobs, all the way up the line, and Wal-Mart both controls everything from headquarters in Bentonville, Arkansas and gives local managers too much discretion, and the end result is that there's a big pay gap and a big promotion gap.

CONAN: And so along the way, that's the issue that's going to be decided eventually by the court when they come around, probably in, what, June. But in any case, along the way there were some really interesting arguments in this case about sex discrimination.

TOTENBERG: Well, it was, you know, a little bit of a litmus test. I should say here that it is entirely possible that the court will be unanimous and reach some fairly limited conclusion and send this case back to the lower court and say: You didn't do this right. You've got to revisit all kinds of questions.

Or it could be much more limited than that, much more divided than that. It could be five to four. But what was interesting is - you know, we now have three female justices.

CONAN: For the first time.

TOTENBERG: For the first time, and they clearly rejected Wal-Mart's argument that you could - that you needed something more specific to show discrimination.

CONAN: Other than results.

TOTENBERG: Other than results. The plaintiffs say there's unfettered discretion, and that's the practice that leads to discrimination. And Wal-Mart says that's not enough. You have to show a policy. And the three women said: If you give people unfettered discretion, there is plenty of evidence that there can be discrimination.

And Justice Ginsberg said that, she who began her career pioneering in sex discrimination cases and was a plaintiff in a class action suit against her employer.

And Justice Kagan, who is a quarter-century younger and was the first female dean at Harvard Law School, she said that. And Justice Sotomayor said that. And they said that quite aggressively.

And so it was interesting to watch it play out. I mean, there was a great moment when Justice Ginsberg said, you know, there was a case here a while ago from AT&T. Women said they weren't being promoted to middle-management positions. And they did just as well as the men on all the tests, but they flunked the whole-person test, which was the subjective test, which was - and that was the guys looking at the gals and saying: Well, she's not - her whole-person rating isn't good enough.

CONAN: What do you mean by a whole-person rating?

TOTENBERG: And I think I've screwed up the name. It was - or their personhood rating. Let me find where this place is in my notes. She -Justice Ginsberg said - noted that the women scored competitively for promotion on the objective test but disproportionately flunked the final and subjective total-person...

CONAN: Total person test, okay.

TOTENBERG: Largely because all other things being equal, decision-makers tend to pick people who look and sound like themselves, and that wasn't women. And the women won that case.

CONAN: So in getting back to the Wal-Mart case, what they're suggesting by supervisors on the local level getting too much discretion, in other words they got to hire whomever pretty much they wanted to hire, and they could use subjective criteria.

TOTENBERG: And Wal-Mart counters: We have a very strong anti-discrimination policy. We've done the best we can. We train people out of Bentonville, Arkansas. All our managers have to go through that.

And the other side says: Yeah, but you don't really supervise them. And they point, for example, to one of the top managers, who said diversity is fine, but unless you actually reward people for diversity and punish them when they have disproportionate workforces, it doesn't mean anything. It's just lip service.

And at the court, we saw some of the conservatives - Chief Justice Roberts, Justice Alito - saying: Well, Wal-Mart's numbers, as I understand it, aren't any different than society's numbers in general, to which the lawyers for the plaintiffs said: Well, but what counts is the numbers in this particular company. Otherwise, you just will always repeat those numbers.

CONAN: They will be perpetuated forever. And indeed, if you fail to promote women, then you don't have enough women supervisors to maybe hire people on the total-person score like them, and so you perpetuate the problem there.

TOTENBERG: Wal-Mart, interestingly, brought out its - one of its very senior executives, its head of HR, vice president for HR, Gisel Ruiz, to - in front of cameras to make the case for Wal-Mart's diversity program.

CONAN: And it's interesting. From what you've said, it might sound like the justices were tough on Wal-Mart. Later in the case, when the...

TOTENBERG: They were much tougher on the plaintiffs. And in fact, the women piled on the plaintiffs, too. And they said: Look, you say there are no records on these promotions. And you say it's too late now to have individualized hearings for who gets back pay.

Justice Ginsberg said: How - this is a very serious problem. How can you handle a million and a half people to determine who gets what, to prevent some from getting a windfall and others from being disproportionately harmed and not getting their just reward?

CONAN: And so it's going to be interesting to see how that plays out, as you said. It might be a unanimous decision on a narrow issue, sending it - we simply don't know.

800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION. We're going to be talking about the workforce in general, not just Wal-Mart. But is sex discrimination over? Have women reached the tipping point in the long fight over equal pay for equal work?

TOTENBERG: I think we should stress here that this is not a case, at this point, about whether Wal-Mart discriminated or not. It is whether this case can go to trial before a jury. And a federal district court judge, after lengthy hearings, said there was enough commonality here that they could proceed.

The Ninth Circuit Court of Appeals agreed by a very close vote, and then the Supreme Court agreed to review the case. And I really think that, in candor, when the Supreme Court agreed to review the case, that was a signal that this case is not going to go forward, at least as is. The question is: How, if at all, will it be allowed to go forward?

CONAN: And before we go forward, Nina, I wanted to ask you. As you look at the legal profession, for one profession, has the number of women in that profession changed substantially over the years? And does it represent something like equality now?

TOTENBERG: It has changed very substantially. About half the students graduating from law school are women. The same is true in the medical profession. But there are still a lot - there still is significant disproportionality if you look at the big partners in law firms.

There's relatively - a fewer number of those are women compared to in other professions. But actually, interestingly, I just wrote a speech about this for a medical group, for the American College of Surgeons, and it was interesting to find that in some ways medicine does better than some other professions because - at least in surgery, it's piecework. You get paid for what you do.

If you want to take time off, you get paid for fewer pieceworks, so to speak. I mean that's very over-simplistic, obviously. I'm not going to re-do my speech here, but it...

(Soundbite of laughter)

CONAN: Well, you make it sound like the ILGWU here for a minute.

TOTENBERG: But there is no doubt that, first of all, that there still is some forms of very subtle discrimination, some less subtle. There's also no doubt that women have a different approach often, not all the time, but often, to their work life.

They still are more often the primary caregivers for their children, that they in general may want to work fewer hours, and that society imposes some interesting things on them.

Justice Ginsberg tells a wonderful story about when her son was a kid and was, as she puts, active. And she kept getting calls from the principal of the school because he was in trouble again. And she was getting these calls.

And one day she was pulling her hair out. She was a lawyer. She had cases all over the place. She had a case in the Supreme Court. And she finally said to the principal: This child has two parents, you know. Try the other one.

And once they realized they had to call every other time - they at least had to call the father - they called less.

CONAN: Nina Totenberg, as always, thank you so much for your time.

TOTENBERG: Thank you.

CONAN: NPR legal affairs correspondent Nina Totenberg, with us here in Studio 3A. We're talking about sex discrimination in the workplace. Is the battle for equality over?

Up next, we'll look at evidence on both sides of progress and where problems continue. What has happened where you work? Give us a call, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION from NPR News. Im Neal Conan.

In recent years, women have reduced the pay gap with men but not entirely, and this at a time where more women than men graduate from college, and more and more women work outside the home.

There are some who argue the battle for equality in the workplace has been won, and they explain the remaining pay gap with other factors. Others argue the experience of countless women proves there's still a long way to go.

What's happened where you work? Have we reached the tipping point on sex discrimination? 800-989-8255. Email talk@npr.org. You can join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Ilene Lang is president and CEO of Catalyst, Incorporated, a nonprofit organization that researches the status of women in the workplace. And she joins us from the studios of Chicago Public Radio. Nice to have you with us today.

Ms. ILENE LANG (Catalyst, Incorporated): Thank you, great to be here.

CONAN: And your company focuses much of its research on women in relatively high-level positions. What are the trends there?

Ms. LANG: Well, we have been studying the representation of women in senior levels of Fortune 500 companies, which are the largest companies that are headquartered in the U.S., although they happen to be global companies.

We've been doing this for over 15 years, and we count. We do a census every year. So we look to see how many women are on boards of directors and how many women hold senior positions like CEO and other executive-level positions.

And what we've seen over these years is that women have been 46 to 49 percent of the overall workforce in the U.S. They have been 50 percent of managers and professional positions in the workforce. But when it comes to the senior levels, we've been stuck at about 15 percent.

CONAN: Fifteen percent?

Ms. LANG: Yeah. Now, in 1995, when we started, it was around nine percent, and by 2004, it was up to about 15 percent. It's fluctuated but not statistically significant ways, and it's stuck around 15 percent of women-held board seats and women in executive positions.

And I would say, just to emphasize, those are averages. So in some companies, it's zero, and in some companies, it's as high as 50 percent or more. But the average has been stuck, and these are 500 companies, Fortune 500.

CONAN: But that's an elite level of employment. Surely it's not the same for women throughout the workforce?

Ms. LANG: Well, actually, that's what we all thought. And we thought that until about eight years ago, when we - or five to eight years ago, when we saw that there was this leveling off. And we said: What's causing this? Could there be a problem in the pipeline? That's what we call the middle manager and next level of director, but people coming up into leadership across companies.

So we've been studying that for the last four years, and we've had some very interesting results. We looked at alums, women and men, close to 5,000 of them from around the world who had earned MBA degrees at 26 of the most prestigious programs in the U.S., Canada, Europe and Asia.

And we actually plotted career paths. We looked at their first job up to their current job over a period of many years, and we looked at their work experience before they went to get their MBA, we looked at the function, the industry, the geography afterwards. We looked at everything.

We looked at parenthood status. So we even compared women with no children to men with no children. And what we found was that there was a pay gap from the very first job after business school only based on being a woman.

CONAN: We're talking about sex discrimination in the workplace, 800-989-8255. Email talk@npr.org. Let's start with Freda(ph), Freda with us from New Mexico.

FREDA (Caller): Hello.

CONAN: Hi, Freda, you're on the air.

FREDA: Hi. Yeah, I wanted to relate - I've been a federal employee with the U.S. Forest Service for more than 30 years, originally as a seasonal and then as a permanent.

Back in the late '70s, I experienced threats of physical harm in my job. I was in wildland, fire and land management. And it got better through the early to mid-'80s, and then it's actually in the last seven, eight years, it's as bad as it was in the '70s.

CONAN: Really?

FREDA: And it's not about policy because the policies are clearly in place. It's the federal - it's the federal workplace. But there is no accountability.

And when, you know, we're talking - we're looking now at the possibility of furloughs. Those people in those jobs are all about safety and security. And I've worked in five different states.

The discrimination was - also had a racial bias when I was in the northern (unintelligible) states. And I'm in New Mexico now, in part to get away from that. I can't change the fact that I'm female. But I can at least change the fact that I dont stand out as much racially.

But it's clearly - I mean, I have physical threats and threats of violence with firearms and even bringing physical proof to law enforcement agents within the agency and generally having them tell me it's time to move on.

CONAN: Time to move - in other words to leave.

FREDA: Yeah, yeah. They weren't going to bother to deal with it. I even had - I've had three different mediators come in from the outside, not specifically on my case, but when they were talking to our forest teams in general, say, you know, you're wasting your time here. They don't have to change. They're not going to change. You need to find a different way.

But, you know, at the time, I was idealistic and thought, how do you get the system to change if you're not willing to work from within? You know, I thought it was about performance. And I just set new records for the first person to get outstanding performance appraisals with no monetary or certificate awards.

So it's pretty discouraging, and I would not recommend any female relative, friend or acquaintance to bother with the federal government and the forest service. It's not worth - certainly it's no longer worth the pay, either. But all the education you can bring to it, and your sincerity, there's too much male dominance.

And in - I've been in a lot of the Western states, where specific religious cultures can be dominant, too.

CONAN: Ilene, that's a depressing call. But I thank you for it. And Ilene Lang, you would think the federal government would be a model, as our caller said. All of the rules are in effect.

Ms. LANG: Well, it is a depressing call. And I think that it's a - you have to remember the government's a huge employer, and there are different kinds of jobs and different situations. And I feel terrible to hear the story that this woman just told.

CONAN: Here's an email we have from Lisa(ph), and this is a completely different profession: I graduated from medical school in 1982. After 10 years on faculty at one large academic medical center, a committee to investigate gender disparities in salary found problems. I got a 30 percent raise.

Two years ago, when I was now at a large private medical center, another committee to investigate gender disparities in salary resulted in a 40 percent raise. Yes, I think there are still problems. Supervisors have told me to my face that since my husband makes a good salary, I don't need to make as much.

That's interesting, and this from Whitney in Boise: My friends and I talk about this all the time. We women are treated differently in the workplace. It's probably not as overt as it once was, but often we're not given as many opportunities, we're not paid as much.

A recent boss of mine constantly second-guessed my decisions. I guarantee if I were an older man, she wouldn't have questioned me as often. I finally offered to enlarge and post a copy of my resume for her on her wall so she could remember why she hired me, and she backed off.

Does it suggest that - that suggest that female employers are no easier than men?

Ms. LANG: Well, Catalyst Research has - we've gone into all these different kinds of issues that are being raised in these emails and comments that you've just read. And our analysis shows that it all is true, it all happens.

And it's not necessarily a basis of the gender of the supervisor because we - all women and men, we live in the same society, and we're subject to the same social norms. So we behave in similar kinds of ways.

Our research also shows that as women, our rising in the managerial ranks; one of the most important things that they say is critical to them to be successful is to develop a style that men are comfortable with.

So if you think about that, what that really means is women are often more successful or think they're going to be more successful or are encouraged to think they will be more successful if they behave more like men.

So I would venture to say that women and men pretty much manage and lead in ways that the corporate culture encourages and rewards and supports and that we probably are holding women managers to a higher standard around this whole issue without remembering that we're all subject to similar cultural norms.

CONAN: Let's go next to Chris(ph) and Chris with us from New Orleans.

CHRIS (Caller): Yes, hello. Well, thanks for taking my call.

CONAN: Sure.

CHRIS: I wanted to basically just provide my experience in the workplace regarding this issue of gender equality. And basically I work for a woman-owned, disadvantaged small business under the (unintelligible) program Small Business Administration. And I feel that primarily the government services and programs that have allowed this organization to succeed and be able to compete in the marketplace - because of these disadvantaged, you know, recognitions - have allowed, you know, women, you know, to advance towards equality in the workplace.

I can say in my organization, most of the leadership roles - not necessarily all - or not necessarily the most, but many at least of the leadership roles are occupied by women.

And I would assume - I don't know the salaries of everyone in the company per se, but I can say that, you know, I feel like that is an equalizing factor in a market that otherwise, you know, that the gender discrimination would probably continue.

CONAN: All right.

CHRIS: And as a matter of fact, during the last legislative session, the 111th Congress, there was a small business administration law that was passed which strengthened the woman disadvantaged program to -especially in the area of the mentor and mentoree roles for different -or companies and that sort of thing.

And so I think, you know, equality and a diverse society is not something that's just achieved and then you'd walk away. It's just something that we as a society always have to keep working towards, and I think - at least as long as our eye is on that prize, we're headed in that direction.

CONAN: All right, Chris. Thanks very much for the call. Appreciate it.

CHRIS: Thanks for your time.

CONAN: Here's an email from Michael in Grand Rapids. As a man in the health care world, I'm in meetings with 20 or 30 women. Sometimes I'm the only man in the room.

Nina Totenberg mentioned it earlier, but I think any time any group has more power and there's not parity, you can get the potential for abuse. Since I have been sexual harassed by women who are my boss, I'd say we are reaching equity in our society. Women are finally equal to men in both their abilities for positive change and negative. Well(ph), I think it's a great change in society even, if it has some negative effects for me personally.

We're talking about sex discrimination in the workplace. Have we reached a tipping point? 800-989-8255. Email, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION.

And our guest again is Ilene Lang, president and CEO of Catalyst, a research and advisory organization that focuses on advancing women into business leadership. And I wanted to read you something that was written by Jonah Goldberg recently in a blog, the National Review online.

At a time when education matters more than ever, more American women attend college than men. More women graduate, with better grades, and get more advanced degrees. Even the fight for pay equity is an argument about statistics, lagging cultural indicators, and the actual choices liberated women make - to take time away from paid jobs to raise their kids - never-married women without kids earn more than men - or to work in occupations like the nonprofit sector that pay less. These are the fruits of feminist success. Should we celebrate important feminist success?

Ms. LANG: Well, I would say that I agree with him up through the point about the statistics about women's education and educational achievements, but from that point on, it's just - what he claims is just not supported by the facts.

All of the studies about the gender pay gap control for some of these factors that he talks about, they control for the industry that you're in. They control for whether or not there are children involved. So I think that he's overlooking the basic economic arguments here that suggests that, you know, by blaming the women for making less money than men, it's not a matter of blaming the women. Pay equity is still not in our - a reality. Now, that doesn't mean everywhere.

But industry by industry, you see broad variations, but at the same time there is a there is still a core 18 percent pay gap. That means women earn 82 cents to every dollar that men earn. Now, those are averages, but that was based on 2010 data for women and men working full time.

CONAN: Let's go next to Emily. Emily with us from Colorado Springs.

EMILY (Caller): Hi. I was just calling to impart my experience in the corporate world versus nonprofit world. I worked for a large corporate law firm. I'm trained as an attorney and have a Master's degree in addition to that. And when it came time for me to look at family life, I thought, oh, maybe I will maybe not continue in that realm and want to go into nonprofit world.

And, you know, I think a number of us in the nonprofit community have realized that there are just as many issues in the nonprofit world in terms of equity, not just in pay but wanting flexibility and that kind of thing.

CONAN: And so what has happened in your situation?

EMILY: Oh, I mean I don't want to disparage my employer, but I think that, you know, I think that there are a number of us in the nonprofit world - I seem to think - maybe just anecdotally - that there are more women in the nonprofit sphere, so you'd think that there would be more safeguards or more things put in place for that family life adjustment, that flexibility.

Unfortunately it seems like even that corporate culture of the glass ceiling seems to transfer over, and I just, you know, have a number of friends in the nonprofit world that are struggling with that family life issue right now and wanting it to be different but not experiencing that the same - even though it seems like that there are so many more of us in the nonprofit world thinking that that would change, and I don't think it is. It's not just pay equity. It's just lifestyle as well.

CONAN: All right. Emily, thanks very much for the call.

EMILY: Thank you.

CONAN: And good luck.

(Soundbite of laughter)

CONAN: Here's an email - we'll end with this - from Susan. Discrimination is a symptom of society. The laws help, but we need teachers and parents to teach both their sons and daughters that we are equal. I'm a female mechanical engineer. The percentage of women in engineering has not increased since the late 1970s.

When I asked my company's recruiter why we are not hiring more female engineers, she said none were applying. When I asked young women why they aren't becoming engineers, they say they hate science and math. The support needs to start as kids, and then hopefully some days(ph) the laws will not be necessary.

We wanted to thank Ilene Lang for her time today. We appreciate it.

Ms. LANG: Thank you.

CONAN: Ilene Lang is president and CEO of Catalyst, a research and advisory organization that focuses on advancing women into business leadership. She joined us from the studios of Chicago Public Radio.

Coming up, we're going to continue our conversations about the debt. We're going to talk today with Alison Acosta Fraser, who's with the Economic Policy Studies program at The Heritage Foundation. Yesterday we heard from a different organization, tomorrow from another. We're asking you to listen to all three of these. Hold your questions until Thursday, when we're going to spend a lot of time focusing on the issue of long-term debt and how best to reduce if not eliminate it.

Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

Copyright © 2011 National Public Radio®. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to National Public Radio. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.