On Women’s Equality Day, Calling Attention to Unequal Remedies for Gender Discrimination.

August 21, 2015 by Julie A. Uebler, Esq.

95 years ago next week, women gained the right to vote, on August 26, 1920, when the 19th Amendment to the U.S. Constitution became law. “Women’s Equality Day” is a day each year on which the United States President, though a proclamation, commemorates the granting of the right to vote to women as a symbol of the continued fight for equal rights. In the spirit of Women’s Equality Day, I wanted to call attention to an inequality that I see in my employment law practice.

Did you know that the remedies for gender discrimination in Pennsylvania are more limited than those for race discrimination? The reason for the inequality is complicated and relates to the interplay of several different federal and state anti-discrimination laws.

Let’s say you are a terminated employee seeking remedies for race discrimination. Your legal remedies for race discrimination include:

  • – recovery of your economic losses (often called back pay and front pay);
  • – compensatory damages for the emotional distress, humiliation, and other non-economic suffering caused by the discrimination;
  • – punitive damages (designed to punish the employer and/or deter it from similar conduct in the future);
  • – reimbursement for certain costs of litigation.

The deadline to pursue your race discrimination claim is two (2) years from the date of the termination.

If you are a terminated employee seeking remedies for gender discrimination, your legal remedies are similar, except that your right to recover punitive damages is limited to a legally mandated “cap” that is  based on the size of your employer (a maximum of $300,000 for employers with 500 or more  employees), and the deadline applicable to your claim is, at most, 300 days after the date of termination.

The disparity in remedies is not caused by inequity within the federal and state anti-discrimination  laws. Title VII of the Civil Rights Act of 1964, which was amended by the Civil Rights Act of 1991 and  imposes the caps on compensatory and punitive damages, provides the same remedies and procedures  for both race and gender discrimination. The Pennsylvania Human Relations Act, which has no cap on compensatory damages, but does not provide for punitive damages, also treats race and gender claims  the same.

The reason a person pursuing a race discrimination claim has broader remedies arises from the rights granted by Section 1981 of the Civil Rights Act of 1866, as amended, which prohibits discrimination based on race in the making and enforcing of contracts, including those for employment. Under Section 1981, which does not address gender equality, the deadline for filing is longer, and there are no caps on damages.

What is the practical impact of the unequal remedies? In addition to precluding women from filing claims where they fail to take action in the shorter time frame, the cap on punitive damages for gender discrimination results in less leverage to obtain compensation for those claims. In my (albeit limited) experience, when presented with allegations of egregious race discrimination allegations, employers are more likely to resolve the cases quickly and for much higher sums than when presented with similarly egregious allegations of gender discrimination.

Why? In race discrimination cases, employers understand the risks of a jury returning a high punitive damages award, but that risk does not exist in gender discrimination claims, at least in states like Pennsylvania where the local law does not provide for punitive damages. For example, earlier this year, a federal jury in Pittsburgh returned a verdict in favor of Sandra Robertson in a gender discrimination case that included $12.5 million in punitive damages. However, due to the cap on punitive damages at $300,000, the employer, Hunter Panels, would never have to pay that amount.

Is this fair? What do you think? Why do we allow this disparity in remedies for employment discrimination?

To draw a parallel: when Martha Burk, then chair of the National Council of Women’s Organizations, published her book “Cult of Power” a decade ago documenting the council’s efforts to end the all-male membership policy of the Augusta National Golf Club, she challenged people to ask themselves when confronted with an argument in defense of a gender-biased practice:

  • – Would this person be making this argument if the subject was race?
  • – If they did, would I accept the argument?
  • – What if Augusta had attempted to ban the admission of non-Caucasian races from its club?

Since then, Burk and many women’s organizations have worked to bring attention to the way in which the public seems to accept disparate treatment of women in a way that is no longer true for racial disparity. With this post, I am drawing attention to the disparity in legal remedies for these two types of equally unacceptable employment discrimination.

Regardless of how effective the legal remedies for gender discrimination were to become, however, the legal system alone will not fix gender disparity in the workplace. We need employers who are willing to openly value gender equality as a worthy goal for business and for society. Employers like Marc Benioff at Salesforce.com, who launched a “Women Surge” program, and has identified gender equality as a performance metric that should apply to every CEO across the country.

I recognize and appreciate him and all those that work to contribute to this goal for women’s equality – on August 26 and every other day of the year.

Julie A. Uebler, Partner | Employment Law