Gender, Policy, and the Public Workspace

Gender, Policy, and the Public WorkspaceEquity and Diversity in Public Administration

Gender Roles

Group ActivityYour public organization employs a single mom who has two children. She doesnt have any family around to help, so she needs to pick up her children at 3:30 p.m. every day. She requests that she be allowed to work a special schedule from 6 am to 3 pm each work day with a one hour lunch break. The employee is experienced and knowledgeable in her work, but the regular work day for all employees is from 8 am to 5 pm with an hour lunch break.You and your colleagues are managers in the organization and have to determine how to act on the request.Would you allow the employee to take such an action? What policy would you create for your organization on such an issue based on your previous answer? What sort of factors did you consider in your decision and policy (if applicable)?

IntroductionSex the biological differences between men and women.Gender much broader than sex, this encompasses learned behaviors as well as societal expectations and responses with regard to maleness and femaleness.Feminist jurisprudence the practice of examining and evaluating the law from a feminist perspective.The law is a codification of a cultures normative practices that are deeply masculine in nature since they reflect male visions, realities, and goals.Because societies are male controlled, laws are patriarchal.Patriarchy any social system that is male dominated at all levels from the family to the highest reaches of government.Gender and Policy Issues:Legal standards and gender discrimination Political EqualityEducational EqualityWorkplace EqualityPay EquityComparableSexual HarassmentPregnancyChild CareReproductive Rights

Gender and Public PolicyTwo categories:Laws that protect against discriminationLaws that guarantee benefitsLaws that Protect Against DiscriminationTitle VII of the Civil Rights Act of 1964Prevents discrimination against employees from private employers with 15 employees or more employees and all state and local governments based on gender.Three methods of protection:Disparate treatmentExplicit discrimination that requires only one instance to prove discrimination.Disparate impact (Covered by Civil Rights Act of 1991)Even neutral practices that results in discrimination against a protected class are illegal.Prevents institutional discrimination but requires that a statistical pattern be shown.Class action law suits (Walmart v. Dukes)Pattern of practiceDiscriminatory practices in terms of hiring, seniority system rules, firing, etc. are illegal under Title VII.ExceptionsBona fide occupational qualification (BFOQ)An employer requires a certain attribute such as gender to properly conduct business.Pregnancy Discrimination Act of 1978Amended Title VII making it illegal to discriminate on the basis of pregnancy, childbirth, or related medical conditions.Equal Pay Act of 1963Statistics show that women earn anywhere from 63 cents to 77 cents on the dollar when compared to men.Act requires employers to pay the same wage to employees holding the same job.What is the same job?Jobs dont have to be identical, they just have to be substantially related.The content of the job matters, not the title.U.S. Courts however have narrowly interpreted this rendering somewhat ineffective.Equal Rights Amendment (1972)

Gender and Public PolicyLaws that Guarantee Workplace BenefitsIntroduction169 out of 173 countries provide paid leave for childbirth.145 countries provide paid sick leave.134 countries have a cap on hours worked per week.126 countries guarantee a 24-hour break from work each week.50 countries mandate wage premiums for night/evening work.40 countries provide paid leave for major family events.The U.S. guarantees none of these.Family and Medical Leave Act (FMLA) of 1993FMLA provides 12 weeks of unpaid to take care of a family member for a medically related issue which includes birth or the care of a child.Eligibility:Employee must have worked 1,250 hours in last 12 months.Only applies to private businesses with 50 or more employees and all government agencies.State Legislation:Some states provide more benefits (California and New Jersey).Section 4207 of the Patient Protection and Affordable Care Act of 2010Requires employers with more than 50 employees to provide private, nonbathroom space for women to breastfeed.Employers must also provide a reasonable amount of time for breastfeeding though they do not have to pay for this time.Federal Tax Credits for Children

Women in the Public Workspace IDolan, Julie. 2004. Gender Equality: Illusion or Reality for Women in the Federal Executive Service. Public Administration Review. 64: 299 308.Rubin, Marilyn. 2000. Women in the American Society for Public Administration: Another Decade of Progress But Still a Way to Go. Public Administration Review. 60: 61 71.

Legal Standards and Gender DiscriminationIntroductionRace is considered a suspect classification that is subject to the standard of strict scrutiny.Those who fought for equal rights for women hoped to have the same standard applied to gender discrimination.It was clear that they still needed to prove:Invidious discriminationState action was involved.Would strict scrutiny apply to gender discrimination?Reed v. Reed, 404 U.S. 71 (1971)Frontiero v. Richardson, 411 U.S. 677 (1973)Craig v. Boren, 429 U.S. 190 (1976)

Beyond BorenWhat about discrimination based on actual physical differences between men and women?Michael M. v. Superior Court of Sonoma County (1981) Tuan Anh Nguyen v. Immigration and Naturalization Service (2001)

Gender and Policy Issues: Political EqualityEarly HistoryNo right to voteCannot hold officeLose even more rights when marriedCoverture a system in which after a man and woman marry, the married couple became one person, the man.Property of husbandCould not own land, retain their wages, enter into contracts, or sue anybody.Declaration of Independence all men are created equalWomen fought in abolition movement (hoped to obtain rights too) but were unsuccessful.No mention of sex in 15th Amendment suffrage movement

Gender and Policy Issues: Political EqualityPost-Civil WarSome states gave women the right to vote early on.Wyoming (1869)Utah (1870)It would be all the way until the 1970s that the Court would reinforce stereotypical gender roles.Susan B. Anthony prosecuted for illegally voting (1872)Minor v. Happersett (1875)The Court upheld the denial of voting rights for women in Missouri.They stated that because the right was absent in the constitution, it was up to the laws of the several states.19th Amendment (1920)The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.Congress shall have power to enforce this article by appropriate legislation.Hoyt v. Florida (1961)The Court upheld the right of states to ban women from certain occupations, such as tending bar, and even from jury duty.Equal Rights Amendment (1972)Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.Section 3: This amendment shall take effect two years after the date of ratification.

Sandra Day OConnor (1981)1st female Supreme Court justiceCurrently 3 females on the court (Ginsburg, Sotomayor, Kagan) most in historyGeraldine Ferraro (1984)First woman vice presidential candidateNever a female candidate for one of the two major parties.Barbara Boxer and Dianne Feinstein (1992)First time women occupied both Senate seats for a stateNancy Pelosi (2007)First female speaker of the house

Political Firsts

Gender and Policy Issues: Educational EqualityBradwell v. Illinois (1873)The Court upheld the denial of bar admissions because of the natural timidity and delicacy which belongs to the female sex evidently unfits it for many occupations in life.Title IX of Education Amendments (1972)No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistanceProhibits sex discrimination in educationIncludes athletic programs (source of controversy not mentioned in the act)Did not deal with single sex schoolsMississippi University for Women v. Hogan (1982)Court forced the oldest public womens college in the United States to admit Joe Hogan to the nursing program which had been exclusively for women.United States v. Virginia (1996)

Gender and Policy Issues: Workplace EqualityEqual PayComparable Worth the attempt made by some states and municipalities to compare jobs according to the skill, effort, education, and experience needed by the occupant of the job in an attempt to eliminate gender-based disparities in pay.Evaluate jobs on the basis of characteristics.EducationDegree of skillCharacteristics are weighted ratings that are assigned to each attribute of the job.A score is then computed and a determination is made about whether a comparable worth adjustment is needed.Allows for organizations to reduce the effect of occupational or agency segregation on womens pay without having to alter the gender composition of the organization.ProblemsNot in Title VII or Equal Pay Act of 1963Difficult to implement as there are disagreements on weighting standards.Market rates interfere with ability to determine comparable worth.Fair Paycheck Act does seek to remedy some of these problems.

Gender and Policy Issues: Workplace EqualityEqual Pay (contd)Wage gap difference between womens and mens earnings.Women still earn about 63% to 77% of what men do77 cents for every $1.00 earned by men.Ledbetter v. Goodyear Tire & Rubber Co. (2007)Lily Ledbetter had received raises that were 15 20% less than her male counterparts.She did not find out until years later.Supreme Court narrowly interprets title VII and says that there is a statute of limitations on challenges to discriminatory treatment.Must be filed within 180 days of the discriminatory action, regardless of continued treatment (based on Equal Pay Act of 1963).Ledbetter Fair Pay ActAmended the Equal Pay Act to extend the statute of limitations to 180 days beyond each paycheck (resets each paycheck).Fair Paycheck ActThis would amend the Equal Pay Act of 1963 to:Increase the amount of compensatory and punitive damages a person can receive.Make class action lawsuits easier to file (pattern of practice).Prohibit retaliation from employers.Close loopholes from court decisions and DOL regulations.This has not been passed.

Gender and Policy Issues: Workplace EqualityClimbing the Organizational LadderGlass ceiling perceived barrier used to explain why women, people of color, and persons with disabilities can only rise to a certain level in management and are subtly kept out of the most elite corporate jobs.Glass elevator perceived advantage used to explain why men in jobs occupied predominantly by women are presented with more opportunities than their female counterparts.Pattern of practiceDiscriminatory practices in terms of hiring, seniority system rules, firing, etc. are illegal under Title VIIWalmart v. Dukes, 564 U.S. ___ (2011)A class of 1.6 million women filed a class action lawsuit against Walmart alleging unfair pay and promotion practices.The Court voted unanimously that the group was not an appropriate class (class did not have enough in common) under U.S. law, but the Court was split (5 4) as whether the class action suit continue on via other means.The Fair Paycheck Act would correct this problem.

Gender and Policy Issues: Workplace EqualityPregnancyCleveland Board of Education v. LaFleur (1974)Pregnancy Discrimination Act of 1978 women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposesas other persons not so affected but similar in their ability or inability to work.Problem: does not require employers to provide pregnancy related leave; it only requires employers to allow pregnant women to use their sick leave for pregnancy.Family and Medical Leave Act (1993)Prior to this act, employers had the discretion of whether to provide sick/family leave.Result:Discrimination against women.Presenting women with a choice between career and family.Have children and be fired for taking leave or continue career path.12 Weeks of unpaid leave for new baby or to care for a sick family member.Eligibility:Employee must have worked 1,250 hours in last 12 months.Only applies to private businesses with 50 or more employees and all government agencies.Result:Women more likely to work less hours because of family responsibilities.Women are more likely to work for small businesses.These trends make them ineligible under FMLA.

Gender and Policy Issues: Workplace EqualityChild CareIn many parts of the world, especially Europe, child care is seen as a necessity and a public good.Taking care of children will educate them and provide a benefit for society.In the United States the view of child care is the children as pet notion which states that those who want children ought to pay for them.Women typically absorb these costs making the wage gap even bigger between men and women.Sexual HarassmentOriginally, sexual harassment was not classified as a form of employment discrimination.This began to change in the late 80s and 90s.Harris v. Forklift Systems (1993)Unwanted sexual advances that create a hostile work environment.Reasonable person standard (would find it to be abusive)Hostile work environment situation arising when an employer or someone under his or her control engages in harassment of an individual that becomes severe or pervasive enough to affect the employment relationship, thus creating a hostile work environment in violation of employment discrimination law.Requirements:Harassment must be unwelcomedHarassment must be based on a protected class (race, sex, color, national origin, or religion)Must be severe enough to affect the terms, conditions, or privileges of employmentIt must be committed by the employer or someone under the employers control

Gender and Policy Issues: ContraceptionContraceptionGriswold v. Connecticut (1965)Eisenstadt v. Baird (1972)Burwell v. Hobby Lobby, 573 U.S. ___ (2014)

Gender and Policy Issues: AbortionRoe v. Wade (1973)The 3 part trimester approach.1st Trimester:Abortion decision is private and left up to the woman and her physician (no state interference).2nd Trimester:In the interest of the health of the mother, the state may regulate abortion procedures in ways related to maternal health.3rd Trimester:The state may prevent abortions to protect potential life except in cases where medical evidence shows it would threaten the life of the mother.Restrictions Post-RoeInformed consent lawsWaiting periodsProvisions for minors to have parental consentProvisions to require all abortions to be performed at a hospitalHusband consent provisionsRestricting the use of public fundsPublic notification of those seeking or performing abortionsPlanned Parenthood of Southeastern Pennsylvania v. Casey (1992)Moved away from the trimester approach under Roe and instead moved to the undue burden standard.a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

ConclusionAll of these issues:Represent opportunities to exclude women from the workforce and thus create a less diverse organization.Diversity respect for individuals of different characteristics such as color, race, ethnicity, gender, age, religion, sexual orientation, or way of thinking.Why is it necessary?Diversity in public administration mirrors the diversity in the population.Diversity in public administration provides a work environment that is open to a variety of lifestyles and ides.Diversity in public administration eliminates the good old boys network (similar characteristics, similar values).Diversity allows administrators to deliver public services more effectively.Mean women may not have representation, either active or passive, in public organizations.Create a problem that the needs of women in the citizenry, via policy, will not be served by public organizations.Create problems of equity as seen in the various issues of discrimination discussed above.