Gender Bias in Public Utilities: Breaking the Silence

1. 2018 CCPUC MCLEElimination of Bias in the Legal ProfessionJanuary 18, 20183:00 – 4:30 p.m. • “Can you bring me some coffee, hon?” Breaking the Silence on Gender Bias in the Utility Industry • CCPUC Auditorium • 505 Van Ness Ave. • San Francisco, CA. 94102 Women In Public Utilities 1 1/17/2018

2. Gender Bias in the Utility Industry • Speakers • Panelists: Amy Yip-Kikugawa, Deputy General Counsel, CPUC Legal Division • Deana Michelle Ng, Director, Major Projects, Regulatory Compliance & Controls, SoCalGas • Olga Savage, Senior Associate, Procopio, Cory, Hargreaves & Savich, LLP; and • Megan Somogyi, Partner, Goodin, MacBride, Squeri & Day, LLP

3. Amy Yip-Kikugawa Amy Yip-Kikugawais Assistant General Counsel in the Commission's Legal Division.  Amy joined the Legal Division in 2000, where she was an attorney in the State Appellate Practice section handling appeals on a variety of energy issues, including those arising from the Energy Crisis. In 2007, transferred to the Commission's ALJ Division, where she presided over ratemaking and adjudicatory proceedings.  During that time, she also served as an advisor to Commissioner John Bohn. Prior to returning to Legal Division in 2015, Amy was Assistant Chief ALJ.  She was appointed to her current position in 2016, where she supervises attorneys representing the Office of Ratepayer Advocates, the Safety and Enforcement Division and the Consumer Protection and Enforcement Division.  Prior to joining the Commission, Amy worked as a consultant for Ernst & Young and as a financial advisor for a private wealth management firm. She received her undergraduate degree from Georgetown University, an MBA from The Ohio State University and a JD from University of San Francisco School of Law.

4. Megan Somogyi Megan Somogyihas regulatory, transactional, and appellate experience in matters relating to public utilities, with a focus on energy, transportation, and water, and represents clients in administrative compliance and litigation proceedings before the California Public Utilities Commission and other regulatory agencies.  Ms. Somogyi has represented municipalities and utility clients in electric transmission line siting proceedings, ratemaking litigation, sale and transfer of electric utility property, and utility certification proceedings.  She has also represented clients in appellate litigation before the California Courts of Appeal and Supreme Court. Before joining Goodin MacBride, Ms. Somogyi was a Civil Staff Attorney at the Supreme Court of California, where she previously served as a judicial extern to Justice Marvin R. Baxter. After receiving her B.A. from the University of California, Berkeley, Ms. Somogyi obtained her J.D. from the University of San Francisco School of Law, where she served on the Editorial Board of the University of San Francisco Law Review as an Articles Editor. Ms. Somogyi was named one of the Top Women Attorneys in Northern California for 2017 by Super Lawyers, and has been named a Super Lawyers Rising Star for Northern California in 2015, 2016, and 2017.  Ms. Somogyi co-founded Women In Public Utilities in 2017.  She teaches Advanced Legal Writing at the University of California, Berkeley School of Law, and is a Senior Research Fellow with the School of Law’s California Constitution Center.  Ms. Somogyi served as the 2016–2017 co-chair of the Young Utility Lawyers section of the Conference of California Public Utility Counsel.  Ms. Somogyi is a member of the California State Bar.

5. Olga Savage Olga Savage defends employers in individual and class action lawsuits and administrative agency proceedings involving claims of wrongful termination, discrimination, retaliation, harassment, defamation and wage and hour violations, and prosecutes and defends claims of unfair competition and trade secret misappropriation. Ms. Savage also represents employers in collective bargaining and union grievance arbitrations and defends employers against unfair labor practice charges. Ms. Savage provides counseling on compliance with state and federal labor and employment law and assists in the preparation of employee handbooks, personnel policies, employment contracts and severance agreements. Ms. Savage also conducts presentations and seminars on emerging labor and employment law issues to employers, attorneys and human resources professionals. Representative Matters Obtained defense verdict at trial in class action involving claims of conversion of tips and unfair business practices. Defeated motion for preliminary injunction in trade secret misappropriation and unfair competition case.

6. Deana Michelle Ng • Deana Ng is Director, Major Projects, Regulatory Compliance & Controls, at Southern California Gas Company, the largest natural gas distribution utility in the country.  In this role, Deana is responsible for identifying risks associated with capital investments totaling more than $4 billion—including a multi-year, $3.5 billion-dollar capital project to modernize SoCalGas’ natural gas transmission infrastructure—and driving strategies to mitigate financial risk and enhance operations.  Prior to this leadership position, Deana was Managing Attorney for SoCalGas, advising the utility on complex regulatory matters and advocating sound energy policy at federal, state and local regulatory agencies. • Deana currently serves on the Board of Directors of Inner City Law Center, a non-profit legal services firm that combats slum housing and homelessness and advocates on behalf of veterans in Los Angeles; as the Secretary of the South Pasadena Educational Foundation, which provides financial support to South Pasadena public schools and enrichment programs that provide enhanced learning experiences to local students; and as co-troop leader of Girl Scout Troop 9541 in South Pasadena.  Deana holds a BA in Political Science and American Studies from California State University, Fullerton and a JD from New York University School of Law.  Following law school, Deana served as the judicial law clerk to the Honorable Roger L. Hunt, in the United States District Court, District of Nevada.  Deana was named a Rising Star by Super Lawyers magazine from 2004 through 2007, distinguishing her among the top 2.5 percent of lawyers in the State under the age of 40.

7. Unintended Consequences Bias (noun): an inclination of temperament or outlook; especially: a personal and sometimes unreasoned judgment –Merriam Webster’s Dictionary

8. Unintended Consequences “I would never intentionally do anything to offend anyone . . . .” –Judge Kozinski “The last two days have forced me to take a very hard look at my own troubling flaws.” –Matt Lauer “To try to put people at ease, the president routinely tells the same joke–and on occasion, he has patted women’s rears in what he intended to be a good-natured manner. Some have seen it as innocent; others clearly view it as inappropriate.” –Spokesman for Pres. George H.W. Bush “I have never willfully or intentionally harmed anyone.” –Knight Landesman “I clearly became insensitive as to how the discussion of [surrogacy] might affect others.” –Rep. Trent Franks

9. How did we get here?

10. Personhood and Credibility • English common law: Doctrine of coverture • “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband . . . . [A] man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence[.]” -Blackstone’s Commentaries on the Laws of England • 1900 B.C.E.–1980: Hysteria is the first mental disorder attributed only to women. From the Greek word for “uterus”–hysterus–the condition was used as a catch-all diagnosis for virtually any female behavior.

11. Personhood and Credibility:A Brief History of Neither If the history of women’s legal and societal rights is viewed as a 24-hour clock beginning with the industrial revolution (1760), in which 2018 is midnight, women have been: • Allowed to own property separately from their husbands since between 7:25 a.m. and 1:05 p.m. • Allowed to vote since 3:00 p.m. • Entitled to equal pay since 7:00 p.m. • Declared “persons,” without qualification and for purposes of equal protection, by the U.S. Supreme Court since 7:50 p.m. • Able to legally terminate a pregnancy since 7:55 p.m. • Protected from employment discrimination based on pregnancy since 8:20 p.m. • Protected from discrimination in being promoted to law firm partner since 8:58 p.m. • Freed from the requirement to show physical or serious psychological injury as a result of sexual harassment since 9:53 p.m. • Allowed to seek civil rights remedies for rape, domestic violence, and other gender-related crimes since 9:56 p.m. Native American women on tribal lands, immigrants, and lesbians have been afforded the same remedies since 11:55 p.m.

12. Unintended Consequences • Women are 50.3% of current law school graduates but are just under 35% of lawyers at firms. • Women take more clerkships and public interest positions than men. • After entry-level, the representation of women at firms shrinks each subsequent year. • In 2017: • Summer associates: 49.9% women, 18.23% minority women • Associates: 45.5% women, 12.9% minority women • Partners: 22.7% women, 2.9% minority women -National Association of Law Placement 2017 Report on Diversity in U.S. Law Firms • Women are 24.8% of General Counsels for Fortune 500 companies and 19.8% of GCs for Fortune 501-1000 companies. -American Bar Association A Current Glance at Women in the Law, January 2017

13. Unintended Consequences • Women in law firms currently earn 90–94% of what their male counterparts earn. • Nearly 70% of firms have only one, or zero, women in their top 10 earners. • Median woman equity partners earn 94% of what a median man equity partner makes in firms with more established women’s initiatives, compared to 82% in the firms that report relatively new initiatives. • Women hold 25% of leadership and governance positions in law firms. • Women and men partners bill approximately equal hours. Women associates on average bill slightly fewer hours. • BUT, Women equity partners and associates complete more non-billable hours, including administrative tasks, diversity and inclusion hours, trainings, and pro bono hours. –National Association of Women Lawyers 2017 Annual Survey Report on Promotion and Retention of Women in Law Firms

14. Bias, and Options for Combating It Olga Savage Procopio, Cory, Hargreaves & Savitch LLP

15. Examples of Anti-Discrimination Laws • Title VII of the Civil Rights Act of 1964 : prohibits discrimination in employment on the basis of sex (and other protected characteristics) • California Fair Employment & Housing Act: prohibits discrimination in employment and housing on the basis of sex (and other protected characteristics)

16. Examples of Anti-Discrimination Laws • California Equal Pay Act: prohibits an employer from paying its employees wage rates that are less than what it pays employees of the opposite sex (or a different race or ethnicity) for substantially similar work

17. Examples of Anti-Discrimination Laws • Laws that protect an employee’s right to take leave to care for a newborn or newly adopted child or for a pregnancy-related disability • Family Medical Leave Act • California Family Rights Act • California Pregnancy Disability Leave

18. Unconscious Bias • Many people “discriminate” without meaning to, and without even realizing it • People draw on previous experiences (e.g., personal experiences, stereotypes perpetuated by media) to make quick decisions

19. Unconscious Bias • Bias creates unintentional discriminatory reactions and decisions. • And it is self-perpetuating. • E.g., biased portrayals of women in the media result in people exposed to the biased portrayal to unconsciously adopt and act on that bias.

20. Bias that Affects Women in the Workplace • Gender bias – Women possess certain characteristics that make them more/less suitable for certain roles. • “Similar to Me” bias – People have an unconscious tendency to favor people that are physically similar to them.

21. How to Minimize Harmful Impact of Bias • Bias becomes harmful when people do not/cannot detect it or correct it and allow their biases to affect decision-making. • This can be prevented by learning to acknowledge and recognize bias and to actively focus on people’s individual characteristics, rather than on stereotypes and generalizations.

22. Additional Materials

23. Personhood and Credibility • 1777–Women, initially permitted to vote in some areas during the colonial period and early statehood, are disenfranchised in every state through a series of legislative acts; New Jersey puts the final nail in the coffin by revoking suffrage in 1807. • 1839–late 1800s: Married Women’s Property Acts adopted piecemeal by the states, giving women some control over their property and earnings. • 1866–Fourteenth Amendment passed by Congress; defines “citizens” and “voters” as “male” for the first time in the Constitution • 1869–Wyoming becomes the first territory to pass a women’s suffrage law • 1870–The Fifteenth Amendment is ratified, prohibiting abridging the right to vote based on race, color, or prior status as a slave. The right to vote based on sex is not mentioned.

24. Personhood and Credibility • 1873–Bradwell v. State, 83 U.S. 130 • Illinois Supreme Court denies application of Myra Bradwell for admission to practice law because, as a married woman, she was legally unable to enter into express or implied contracts. • US Supreme Court affirmed. The concurrence stated that the ability of women as US citizens to “engage in any and every profession, occupation, or employment in civil life” was not one of the privileges and immunities protected by the Fourteenth Amendment. Furthermore, “[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” • 1875–Minor v. Happersett, 88 US 162, held that, while women may be citizens of the US, the right to vote was not a privilege or immunity inherent in citizenship and was therefore not protected under the Fourteenth Amendment. “If the law is wrong, it ought to be changed; but the power for that is not with us. . . . No argument as to woman’s need of suffrage can be considered.”

25. Personhood and Credibility • 1890–Wyoming is the first state to grant women the right to vote in all elections. The Nineteenth Amendment gives this right to the rest of the country 30 years later in 1920. • 1918–Margaret Sanger wins her lawsuit in New York to allow doctors to advise married patients about birth control for health reasons. • 1932–National Recovery Act forbids more than one family member from holding a government job; many women lose their jobs. • 1961–Hoyt v. Florida, 368 U.S. 57, upholds Florida rules that make it much less likely that women will be called for jury service on the grounds that a “woman is still regarded as the center of home and family life.” • 1963–Congress passes the Equal Pay Act. • 1964–Title VII of the Civil Rights Act prohibits employment discrimination based on sex

26. Personhood and Credibility • 1969–Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir.), rules that women meeting the physical requirements can work in many jobs that had previously been for men only. • 1969–California adopts the nation’s first “no-fault” divorce law. • 1971–Phillips v. Martin Marietta Corp., 400 U.S. 542, outlaws the practice of private employers refusing to hire women with pre-school-aged children. • 1971–Reed v. Reed, 404 U.S. 71, is the first time the court strikes down a law treating women and men differently. The U.S. Supreme Court finally addresses women as “persons” in the context of equal protection, without qualification. • 1973–Roe v. Wade gives women the right to legally terminate a pregnancy. • 1974–Equal Credit Opportunity Act allows women to apply for credit. • 1975–The term “sexual harassment” is used for the first time, at the NYC Human Rights Commission. • 1978–Pregnancy Discrimination Act prohibits employment discrimination against pregnant women.

27. Personhood and Credibility • 1981–Kirchberg v. Feenstra, 450 U.S. 455, holds a state statute making the husband the “head and master” with sole control over community property violates the Fourteenth Amendment. • 1984–Mississippi finally ratifies the Nineteenth Amendment. • 1984–Hinshon v. King and Spaulding, 467 U.S. 69, holds that law firms may not discriminate on the basis of sex in promoting lawyers to partnership positions. • 1986–Meritor Savings Bank v. Vinson, 477 U.S. 57, holds that a hostile or abusive work environment can prove discrimination based on sex. • 1989–Webster v. Reproductive Health Services, 492 U.S. 490, affirms the rights of states to deny public funding for abortions and to prohibit public hospitals from performing abortions. • 1993–Harris v. Forklift Systems,Inc., 510 U.S. 17, holds that a victim does not need to show that she suffered physical or serious psychological injury as a result of sexual harassment. • 1993–Family and Medical Leave Act goes into effect.

28. Personhood and Credibility • 1993–Spousal rape becomes illegal in all 50 states. • 1994–Violence Against Women Act allows women to seek civil rights remedies for gender-related crimes, including rape and domestic violence. • 2005–Jackson v. Birmingham Board of Education, 544 U.S. 167, rules that Title IX prohibits punishing someone for complaining about sex-based discrimination. • 2009–Lily Ledbetter Fair Pay Restoration Act allows victims of pay discrimination to file a complaint with the government against their employer. • 2013–Reauthorization of the Violence Against Women Act extends coverage to women of Native American tribal lands who are attacked by non-tribal immigrants, as well as lesbians and immigrants.

29. Form Over Substance