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Mar 23, 2011

By John A. Gallagher

It was 1963, and John F. Kennedy approved the Equal Pay Act, very first legislation to create equal rights for women in the workplace. The EPA required women to be treated equally to men in terms of compensation and promotion opportunities.

In 1964, the Civil Rights Act was passed.  It promoted equality in the workplace for women and minorities, and prohibited sexual harassment.  Frustrated at the glacial pace of the implementation and enforcement of these statutes, Betty Friedan and others formed the National Organization for Women (“NOW”) in 1968.

In 1972, NOW and others convinced Congress to pass the Equal Rights Act, which would have amended the Constitution to guarantee equal rights to all American citizens. Yet even now in 2011, the ERA has not been ratified by all states, and thus the proposed constitutional amendment remains merely an ideal to this day, 39 years later.

Still, other strides have been made. The Family and Medical Leave Act was passed in 1993, providing women (and men) with job security when a child is born or adopted, and when leave is needed to care for a loved one who is ill. Pregnancy discrimination is now illegal. Women are Prime Ministers, Speakers of the House, U.S. Senators, and members of the clergy. Can the U.S. Presidency be far behind?

Now, nearly 50 years after JFK opened the doors and raised the ceilings for American women, the labor pains of so many, from Presidents, to Congresswomen, to mothers and daughters, to executives, CEOS, surgeons and HR professionals, are coming to bear fruit.

A working woman with a good job is a sexy woman

Fifty years ago, many men considered a woman to be sexy only if she was at home, or capitulating to the base desires of her boss. Today, men think women with good jobs are sexy.

Forty years ago, the best paying jobs for women were typically found behind a telephone, in front of a classroom, behind a perfume counter or with a thermometer in hand and white shoes afoot.

Today, women outnumber men in traditionally male –dominated professions such as human resources, accounting, financial management and budget analysis, veterinarian medicine and psychology. There are virtually just as many women as men graduating from law and medical schools, and the ladies earned nearly 45 percent of the MBAs awarded in 2010.

Equal Pay? Not quite yet

Perhaps even more encouraging is the statistics relating to the best paying jobs for women. Many of the jobs on this list did not even exist for women 30 years ago! Chief Executive Officer! Lawyers, pharmacists, surgeons, computer programmers!

Allow me to add another: Entrepreneur. So many women, empowered by their mothers (and encouraged by their fathers), enriched by their education and confident in their abilities, are starting businesses, in many instances running them from their homes – and they are succeeding. These women have grabbed the reins; they have found a way to be vocationally happy and productive, while at the same time have been able to nurture their children. Would you believe: now we have househusbands!

True, women still lag behind men when it comes to equal pay. Yet, does anyone believe that trend is not coming to an end?

And, despite this disparity, studies suggest that women may very well lead our economic recovery. The reason, it is hypothesized is as old, some (men) would say, as time itself: The logical outcome of more educated, productive women in the workplace is more quality jobs for women, with concomitant higher income.

We all know, don’t we, what a happy lady with a little extra cash does, right?  She shops!  Hence, since consumer spending constitutes 70 percent of our nation’s economic activity, can our economic recovery be far behind?!

The Scarlett FMLA and Workonality Conflicts

Still, problems remain. Allow me to share the most common claims my clients report to me – and the ones I rarely hear about.

Family and Medical Leave Act claims are clearly on the rise. Where women are concerned, FMLA is most beneficial when time off of work is needed to give birth, to care for a newborn child, to deal with one’s own illness, or to care for a child with a serious health condition.

We have found that with management’s focus on “FMLA abuse” a claim for Family and Medical leave can be tantamount to placing a “Scarlet FMLA” on your blouse. Companies relish productive employees they can count on to come in each day. When babies and illness get in the way of that utopian concept, terminations sometimes follow.

For similar reasons, pregnancy discrimination claims are on the rise. I recently read an article discussing HR secrets that revealed one company’s strategy for weeding out female candidates with young families. In order to “legally” achieve this goal, the hiring HR professional allegedly placed a picture of two young children (not her own!) on her desk, hoping it would be a conversation starter during the interview. Presumably, she had a back story for her “children!”

Claims for job-related stress are very, very common. Unfortunately, most of these situations arise from what I refer to as “Workonality Conflicts,” and not from illegal discrimination or retaliation, so there is no claim for a “hostile work environment.” However, the story does not end there.

In my view, too many employers (or the bosses about whom complaints are registered) take a dim view of employees with legitimate complaints of workplace bullying – often targeting such employees for termination. Then the complaining employee does not feel “heard,” their stress increases, they feel like an outcast, they take FMLA leave and file for short term disability, then they are fired/demoted/written up/not promoted when they return from leave and then… Well, you get the point.

Should bullying in the workplace be illegal? There has been a loud outcry to curb bullying in the school yard – we know that dire consequences can occur when young adults are subjected to stress, exclusion, etc.

In the workplace, the stakes may not be quite as dire — after all, most adults know that violence is a bad idea, but the cost of losing employees to medical leaves and quits, not to mention of potential lawsuits, should be enough to cause conscientious and business-savvy companies to really consider how effectively they deal with complaints arising out of workplace bullying.

While women are not alone the victims of such conduct, it is in my experience a far more common experience for women than men in today’s working world. Why? Some reasons, such as competition and jealousy, are obvious. Maybe, too, it is that many women are taught to be more passive (either by their parents or society), and are subject to unfair stereotypes they seek to avoid. Men, it seems, are a little more willing to “fight for their rights,” and a little less concerned about being perceived as a B***H.

The unlitigated

The claims I don’t see too much of? Sexual harassment and Equal Pay Act claims. Why? I have my suspicions.

Although the laws protect women from retaliation if they complain about these types of behaviors, the laws do not put food on the table (at least not immediately). Successful women, or women on the rise, don’t want to jeopardize their futures by making a claim, one that often become public, over indignities they believe they can withstand.

Whether my hypothesis is correct I do not know. What I do know is that I receive hundreds of calls each year from women with job-related problems. Few of them relate to sexual harassment or equal pay.

I certainly would be curious to hear TLNT’s readers’ views on whether I am imagining things in this connection.

The future is bright

The march to equality for female American workers is inexorably moving forward. Fifty years ago, the journey of a thousand miles began, and many have been traversed since.

Equal pay, family rights and workplace bullying should be addressed and stemmed, and may be the biggest hurdles that remain. It stands to reason that, with more women ascending the corporate ladder, it will not be long until the journey will be at end.

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