The full facts behind why Jill Abramson is no longer the Executive Editor of the New York Times are not yet known, although the Times itself says that Abramson was “dismissed.” Early news reports offer several legitimate reasons why she may have been fired. The Times‘s own reporting says that there were “serious tensions in her relationship with [Publisher Arthur] Sulzberger, many of them over his concerns about her management.” Meanwhile, the New Yorker‘s Ken Auletta reports that Abramson “had already clashed with the company’s C.E.O., Mark Thompson, over native advertising and the perceived intrusion of the business side into the newsroom,” and that one of Abramson’s top deputies complained to Sulzberger about a personnel issue. If Abramson was fired for being a poor manager, or because of a disagreement over the company’s advertising strategy, or for some similar matter, then those are entirely lawful reasons to let her go.
But Auletta also reports something else that could raise serious legal problems for the nation’s paper of record:
Several weeks ago, I’m told, Abramson discovered that her pay and her pension benefits as both executive editor and, before that, as managing editor were considerably less than the pay and pension benefits of Bill Keller, the male editor whom she replaced in both jobs. “She confronted the top brass,” one close associate said, and this may have fed into the management’s narrative that she was “pushy,” a characterization that, for many, has an inescapably gendered aspect. . . . I was also told by another friend of Abramson’s that the pay gap with Keller was only closed after she complained. But, to women at an institution that was once sued by its female employees for discriminatory practices, the question brings up ugly memories. Whether Abramson was right or wrong, both sides were left unhappy. A third associate told me, “She found out that a former deputy managing editor”—a man—“made more money than she did” while she was managing editor. “She had a lawyer make polite inquiries about the pay and pension disparities, which set them off.”
In a series of tweets, NPR’s David Folkenflik reports similar facts — “I can now report that I have independently confirmed that Abramson did indeed challenge corporate brass over what she saw as unequal pay.” In response to a question about whether Sulzberger was “so daft as to fire Abramson over [money],” Folkenflik responds that it was “[s]aid to be final rupture to relationship – not fire so much as spark.”
Again, we do not yet know the full story of why Abramson was let go. If she was, in fact, fired because she complained about gender discrimination in pay, however, then the Times may have violated federal civil rights law. Title VII of the Civil Rights Act of 1964 does not simply ban employment discrimination on the basis of “race, color, religion, sex, or national origin,” it also prohibits employers from retaliating against employees who complain about alleged discrimination.
This protection against retaliation is fairly broad. As the Equal Employment Opportunity Commission explains, “[a]n employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.” Moreover, one way that an employee can oppose discrimination, according to the EEOC, is by “[c]omplaining to anyone about alleged discrimination against oneself or others.” So if Abramson was fired because she complained about allegedly being paid less than her predecessor, that is illegal retaliation. Indeed, it is illegal retaliation even if her complaints were inaccurate — that is, if she was actually not underpaid relative to Keller.
Two caveats should be noted. The first is that, last year, the five conservative Supreme Court justices significantly weakened federal anti-retaliation law in a case known as University of Texas Southwestern Medical Center v. Nassar. Nassar eliminated what are known as “mixed motive” retaliation claims — that is, claims where unlawful retaliation is one of several factors driving an adverse action against an employee. After Nassar, Abramson would have to show that she would not have been fired but for the fact that she complained about alleged discrimination. Given the myriad of other possible reasons why she may have been let go, this could be a difficult hurdle for her to clear.
The second caveat is that Abramson reportedly signed a settlement agreement with the New York Times, according to the Times itself. Though the details of this agreement are as yet unknown, it is likely that, at the very least, she was given some amount of severance pay in return for agreeing to waive any legal claims she might have against the Times. If this is the case, then Abramson would be unable to bring a successful lawsuit even if she did experience unlawful discrimination.