Women Lawyers Association of Michigan-- Annual meeting focuses on discrimination, wage gap


By John Minnis

Legal News

Chauvinistic employers are in for a rough time following the Women Lawyers Association of Michigan's 92nd annual meeting Saturday, May 15, in The Henry Ford's inspirational Lovett Hall.

Besides the swearing in of officers, agenda items included panel discussions on family responsibilities discrimination and pay equity.

"We're so happy to have you here," said Lysa Postula-Stein, who as president-elect organized the meeting to focus on key issues of her coming term. "Today is a day of education, tools and empowerment."

Noted employment law attorney Kathleen Bogas led off with an overview of family responsibilities discrimination.

"Probably everyone in this room has experienced it," she said. "We are called the sandwich generation because we have children on one end and parents on the other. We're living longer, so this is something we're going to have, a sandwich generation, for a long time."

Bogas said women with family responsibilities are being passed over or fired without cause by employers with stereotypical beliefs and "benevolent motives."

"So they are being 'good' to us," she said. "Far from it."

"Why does it matter?" she asked and cited some statistics:

* 70 percent of families have both parents working outside the home.

* One out of 10 workers are part of the sandwich generation.

* 75 percent of mothers are less likely to be hired.

* 100 percent of mothers are less likely to be promoted.

She credited the Equal Employment Opportunity Commission for stepping forward on fighting family responsibility discrimination.

"The EEOC is really on the forefront," she said. "Family responsibility discrimination is not expressly prohibited in many states."

Michigan does not have an anti-family responsibility discrimination law, but local governments, such as Adrian, Ann Arbor, Shelby Township and Wayne County, do.

"While they don't have teeth, they're a start," Bogas said.

She cited the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964; Family Medical Leave Act; American Disabilities Act and Employee Retirement Income Security Act as positive federal efforts to fight family responsibility discrimination.

"ERISA makes it illegal to terminate an employee to circumvent an employee's attainment of benefits," Bogas said.

The employment attorney further pointed out that under the new health care law, children may stay on the parents' health care insurance until the age of 26.

"People with children are going to have a more difficult time getting hired," she predicted.

Jennifer Salvatore, of Nacht & Associates, specializes in gender discrimination and sexual harassment cases. She spoke on pay equity. She pointed out that male law partners make more than female partners.

"The pay gap in the legal profession is similar to that throughout the professions," she said.

She said some of the gap is structural. Pay is often based on hours worked and book of business (hours billed), where caregivers have the disadvantage in that they cannot put in the hours of those without such responsibilities.

But according to a timely New York Times article the day of the annual meeting, structural reasons do not explain all of the wage gap. Some 9.2 percent of the wage gap is unexplainable, according to the Times.

Salvatore noted that in fields where comparable salaries are not published or readily known, the gap is even greater.

Congress passed and President Kennedy signed the Equal Pay Act in 1963. President Johnson signed Title VII in 1964.

"Interestingly, Title VII was a bill to prevent racial discrimination," Salvatore said. "Sex was added at the last minute in an attempt to kill the bill."

Equal pay laws depend on individuals taking action, bringing lawsuits, Salvatore said. She cited the Elliott-Larsen Civil Rights Act of 1976 as one of Michigan's landmark anti-discrimination laws.

She also credited Congress and President Obama for enacting the Lilly Ledbetter Fair Pay Act that "overturned a bad Supreme Court decision."

Ledbetter was a 20-year supervisor with the Goodyear Tire and Rubber Co. who discovered that despite her seniority she was being paid less than the lowest paid male supervisor. The U.S. Supreme Court ruled against Ledbetter due to the statute of limitations. The Lilly Ledbetter Fair Pay Act amends the Civil Rights Act of 1964, stating that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck.

"These are two issues women lawyers are able to impact," Salvatore said of pay equity and family responsibility discrimination. "They affect our members across the spectrum."

She cited a bill proposed by WLAM and State Rep. Rebekah Warren, D-Ann Arbor, that would amend the Wages and Fringe Benefits Act. The bill would prohibit an employer from making nondisclosure of wages a condition of employment and prevent employers from requiring employees sign a nondisclosure agreement concerning wages. The employer would also be required to provide wage information on similarly-situated employees.

"For existing equal pay acts to be enforceable," Salvatore said, "employees have to have knowledge of what others are making. As lawyers, we can't find out until we file suit and go into discovery."

The free market argument, the idea that people are paid what the market dictates, only works, Salvatore said, if people have access to information on wages.

Another piece of proposed legislation, modeled after an Ann Arbor ordinance, would amend the Elliot-Larson Civil Rights Act to include familial status employment discrimination illegal.

"Michigan has not been on the forefront on this," Salvatore said. "But Michigan sits in the Sixth Circuit, which has."

State Rep. Warren was elected to the 53rd District in 2006 and sits on the House Judiciary Committee.

"I am so pleased to be part of this panel discussion," she said.

Warren said she was asked by the Judiciary Committee chairman to be on the committee even though she wasn't an attorney because, the chairman told her, the committee was already stacked with lawyers and he needed someone with "a heart or social conscience."

She pointed out that when she was elected, she was among 20 women out of 110 representatives. That number improved to 28 in 2008.

"It's been fascinating being a woman in that role," she said. "People say when you add a woman's voice to a table, things really change. That is so true."

In 2006, Warren said, Michigan was second to the bottom in gender pay equity at 67 cents. For women of color, the gap was 10 cents greater.

"We know, we can document, the pay equity gap exists," she said, "but why?"

Warren said she introduced a bill to study that question.

"I thought it was the easiest bill to create a panel to ask why," she said. "We barely got it out of House. This really should not be a partisan issue. It affects everyone across the state."

She quoted a former Republican male state representative from the Upper Peninsula as saying at the time, "If we pay women what we pay men in this state, companies would go bankrupt."

Panel moderator Susan Hartmus Hiser, a shareholder with Vercruysse, Murray, & Calzone, commented tongue-in-cheek: "Tell him why don't you pay men what women are making. Think how profitable businesses would be then."

Warren said she was organizing a bipartisan women's caucus to explore pay equity and family responsibility discrimination.

"We really need your help in raising awareness of these issues across the state," she told the women lawyers. "When we try to raise this issue, legislators say no one has ever talked to them about this. They think we are trying to create a problem that needs a solution. This is exactly the type of activism this organization needs."

Salvatore was asked if there were retaliation and privacy issues involved in the proposed legislation requiring employers to make salary information available upon request.

First, she said, only wages of comparables would be available to employees, and employees' names would be redacted. As far as privacy issues, she noted that university employees' wages are public and "the world hasn't come to an end."

Concerning retaliation on employees, Bogas said, "This is where the real world meets the hypothetical. Practically speaking, we would be fools to say it doesn't have an effect."

Hartmus Hiser, who represents employers, said the retaliation claim is hard to beat.

"You don't have to prevail in the discrimination claim to win on the retaliation claim," she said. "Juries are more likely to buy into the retaliation claim."

One attendee pointed out that the National Labor Relations Board is taking a proactive role under Chairman Wilma B. Liebman and is looking for non-union employers engaged in wage discrimination.

Salvatore pointed out that employment discrimination doesn't happen to men who "may" have a family. "It happens to women who will or may start a family," she said.

One attendee suggested race be added to the comparable wages disclosure law. Salvatore said that was a good point.

Career coach Elizabeth Jolliffe monitored a panel discussion on "Positioning Yourself for Increased Compensation and Creative Employment Terms."

Panelist Julie Fershtman, who has her own firm and is slated to be 2011 State Bar of Michigan president, said the rules have changed considerably since she first came out of law school 24 years ago.

"Now you have to bring in business," she said.

One way to do that is to develop niche practices within your overall practice, such as what Kathryn Ossian did at Miller Canfield by positioning herself as an IT expert.

Fershtman turned her equestrian hobby into a niche practice working on cases involving horses.

She further suggested writing articles for trade publications and attending clients' trade shows and offering to be a speaker.

Fershtman developed a paper on "Rainmaking in a Down Economy."

"Don't just sit at your desk," she said. "Get out there. Break away from your desk."

Panelist Hartmus Hiser described how she negotiated for part-time status at her firm when she had two kids.

"It has to be a win-win situation for both parties," she said, "and you have to present it as a win-win situation."

She further cautioned that when asking for flexibility, women also have to be flexible. If needed on a day off, make plans to get there.

"A key factor in the ability to make this work," she said, "is the people who work with me."

In her case, Hartmus Hiser worked on billable hours only. That way, the firm only paid for what she brought in, and she didn't feel guilty for being paid when not being productive.

The firm has since created part-time partnerships.

"After two years of doing this," she said, "I became a partner."

David Winter, senior shareholder and former managing partner at Sommers Schwartz, acknowledged that women have come a long way in the legal profession.

"What I tell the young lawyers in my office is to find yourself a mentor," he said. "I'm a big believer in mentors."

He advised associates to learn how to deal with their supervising attorney, and one way to do that is to ask other associates, attorneys and partners.

"I volunteered for everything," Winter said. "Volunteer. Take on things. You get to know all the partners."

He also recommended humor and transparency as good assets to have.

Winter described Sommers Schwartz as an "eat what you kill" firm.

"We expect these young associates to be entrepreneurs," he said, "but we don't teach them how to be entrepreneurs."

He urged young associates to join nonprofit boards to gain leadership experience.

Denice LeVasseur, a senior partner in LeVasseur & LeVasseur, described a situation where a young associate took issue with the 5 percent raise she gave him at his one-year anniversary with the firm. She based the raise on cash in the drawer, but the young attorney pointed out that he had a lot of billings that would not be realized due to the nature of the cases.

He was right. But the more important thing is that he had the "backbone" to speak up.

"It was the perfect negotiation," she said. "Everyone walked away happy."

LeVasseur said she does not think men are aware that they are discriminating against women in terms of compensation and promotion. For that reason, there should be more women in management, she said, and they must be willing to fight for women.

"We need to remind women in power they need to think about it," she said.

Margaret "Peggy" Costello, a member at Dykema Gossett, said women need "a sex change" if they want to make more money.

Short of that, women can position themselves to be valuable and indispensable to the firm through client relationships and skills clients need.

She further recommended that women attorneys talk about compensation with their supervising partner before the end of the year when everyone is fighting to be heard. She further advised not to compare themselves with other attorneys personally but rather know what is doable.

"Women tend sometimes not to ask for increases in compensation," she said. "We think they know what we are doing. Men are much more willing to demand more money."

Women can also threaten to go elsewhere.

"The threat to leave the firm can work," Costello said, "but you have to be wiling to act on it."

In today's market, however, LeVasseur suggested students right out of college not negotiate. "Just accept it," she said.

To find out what the going rate is for new attorneys, Hartmus Hiser suggested going to the law schools where recruiters list their starting salaries. Rates can then be adjusted depending on experience.

Winter said he expects young attorneys to know what the going rate is and what they want.

Costello added, "If you are a three- to five-year associate, I've invested a lot of time and money in you. I don't want you to leave."

Outgoing President Kim Winokur pointed out that the WLAM began in 1919 before women could vote.

"In eight years, we will be celebrating our 100th," she said. "This has been an outstanding year, and I couldn't have done it without the support of the board. I have had great support from the judiciary and other organizations. This year, I think, was a year of rebirth and growth. We decided it was important to help women lawyers in every stage of their careers. To be a unifying voice for all women, we decided on pay equity.

"It is my pleasure," she concluded, "to introduce your next president of the Women Lawyers Association of Michigan, Lysa Postula-Stein."

The incoming president pointed out that when the WLAM was formed, women couldn't vote, but they could be lawyers--though it wasn't very easy.

The 1970s saw a surge in activism, she said, and many chapters were formed, including the Washtenaw chapter.

"What's left for Women Lawyers to do?" she asked. "The doors are open and the ceiling is getting there. Why does WLAM exist? It's not to just hold garden parties."

The new president pointed that there is still poor retention of women lawyers due to caregiving responsibilities.

"Overwhelmingly," Postula-Stein said, "women over men must make decisions between caregiving or career. Once they make their 'choices' they are told they can't advance."

She said a goal of her term is to provide women with tangible tools, such as au pair and elder services.

"We encourage the challenge of caregiving responsibilities be equally shared with men," she said. "Only then will there not be caregiver discrimination. There will not be mothers' guilt, but caregivers' guilt."

Postula-Stein and her fellow officers and directors were sworn in by Michigan Supreme Court Chief Justice Marilyn Kelly, a former president of the WLAM.

"This organization is very near and dear to my heart," she said. "We go way back together. For many of us, Women Lawyers is our most important organization."

Following the swearing-in ceremony, Maria Linderman had the "daunting task" of presenting Bogas with the WLAM Jean Ledwith King Leadership Award, named after the longtime Women Lawyers leader who was present at the annual meeting and luncheon.

Linderman noted that Elliott-Larson was passed a year after Bogas became a lawyer.

"She was our enforcer before we knew there was something in it for women lawyers," Linderman said of Bogas. "We are all better off because there were women like Kathy Bogas out there to fight for us."

She pointed out that Bogas is so highly respected that she has also been awarded by the other side, the defense bar.

"While doing all this, she raised two wonderful kids," Linderman said. "Almost everyone can tell a story that at the right time, Kathy Bogas was there."

Bogas reported that her daughter was admitted to the New York bar just last week.

She said she tells people she became a lawyer because of "Perry Mason," but the truth is she became lawyer because of a woman who was beaten by her boss when she ended an affair with him.

"I became an attorney because nobody told me I couldn't," Bogas said. "I became an employment lawyer because it really pisses me off when people are treated unfairly."

To conclude the 92nd annual meeting, Immediate Past President Winokur was given a plaque of appreciation for her service, and Tribal Court Judge Angela Sherigan was given a WLAM banner to hang in her courtroom.

"The WLAM has reached out to the tribal judges," Sherigan said, "just as they have state court judges."

Published: Fri, May 21, 2010