Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008

Senator Edward Kennedy (D-Mass) has proposed two new, much-necessary bills. The first, called the Fair Pay Restoration Act, would essentially undo the harsh effects created by the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which held that the 180 day statute of limitations deadline for filing discrimination actions starts to run when a worker first begins to receive unequal pay, instead of when the employee actually becomes aware that his or her pay is discriminatory. We wrote about the Ledbetter decision on December 31, 2008 in a post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender. Senator Kennedy’s bill would make clear that the statute of limitations clock starts to run after the employee becomes aware of discrimination.

Senator Kennedy’s second bill, the Civil Rights Act of 2008, would undo more bad Supreme Court precedent as well. Among other things, the bill would reverse the 2001 Supreme Court decision in Alexander v. Sandoval, which held that individuals could not challenge federally-funded programs on the basis of discriminatory effect, but must rather meet the heavy burden of proving discriminatory intent.

The New York Times today featured an editorial on these two bills entitled, Restoring Civil Rights.

Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases

The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute “opposition” to sexual harassment. Click here for the Sixth Circuit’s decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF’d employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer’s business necessity defense. Click here for the Second Circuit’s decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.

6 Tips to a Better Employment Contract

The subprime disaster has catapulted employment contracts, and the golden parachutes that sometimes come with them, into the limelight. While negotiating $100 million in severance pay that Countrywide Financial CEO Angelo Mozilo could receive is certainly not the norm, there are certain bases that every employment contract should cover.

Mike Hyatt, Chief Strategy Officer of N2Growth, provides a helpful overview of what every contract should include in his article entitled, Management Matters with Mike Myatt: 6 Tips to a Better Employment Contract. The article outlines 6 main points: (1) Job Description, (2) Term, (3) Compensation, (4) Indemnification, (5) Termination, and (6) Winding Up Provisions.

An ounce of prevention equals a pound of cure. Employment contracts protect an employee’s professional and financial interests in the event that the employer has a sudden change in heart. Every contract will contain its own nuances. The more an employee understands the details of what his or her contract should include going into the negotiation, the smoother the transition down the road.

Settlement in Race Discrimination Finalized After 37 Years

Judge Robert L. Carter of the Manhattan Federal District Court recently approved a $6.2 million settlement against Local 28 of the Sheet Metal Workers Union. The Equal Employment Opportunity Commission (EEOC) filed the lawsuit 37 years ago in 1971, charging the union with race discrimination for failing to provide equal employment opportunities to nonwhite members. The final settlement compensates 156 Black and Hispanic sheet metal workers for lost wages for the years 1984 to 1991.

Until the late 1940s, the union’s constitution contained a provision excluding nonwhites from its membership. According to the EEOC, the union continued to discriminate. In order to prove discrimination, the EEOC relied, in part, on circumstantial evidence, which appeared powerful in this case. In 1974, for example, minority workers comprised only 3 percent of the union’s membership.

More can be read about the settlement in the New York Times article entitled, Settlement in Bias Suite that Stalled for 37 Years.

The settlement could not come at a better time. Today is Martin Luther King, Jr. Day — a day when we can reflect on the progress we have made as a nation while being mindful of the challenges ahead. Below is Dr. King’s I Have a Dream speech:https://www.youtube.com/watch?v=iEMXaTktUfA

Medical Leave Eligibility and Handicap Status in the Workplace Explored

An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

Medical Leave Eligibility and Handicap Status in the Workplace Explored

An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

As the article further points out, because this particular employee has been out of work for about 8 months, FMLA and MMLA leave have long run out. I agree that this is where Chapter 151B and the American with Disabilities Act (ADA) come into play. I also agree that an employer may be required to provide additional leave as a reasonable accommodation. I disagree, however, with the following analysis:

However, the fact that you were injured on the job may be significant because employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability.

The ADA and Chapter 151B may obligate an employer to provide additional leave as a reasonable accommodation only where the employee is deemed handicapped. To be considered handicapped, an employee must be substantially limited in a major life activity. The case law is generally clear that working constitutes a major life activity when the medical condition precludes the employee from a broad class of jobs. Thus, “employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability ” … where the injury substantially limits an employee in a major life activity.

Lastly, don’t forget that, under the ADA and Chapter 151B, employers have a duty to participate in what is called the “interactive process,” which requires a dialogue between the employer and employee with the objective of finding a means by which a disabled employee can perform the essential functions of a job in the employer’s workplace.

Age Discrimination Demographics Revealed in Ohio State University Study

The Age Discrimination in Employment Act (ADEA) and Chapter 151B of Massachusetts protect employees age 40 years or older from workplace discrimination based on age. A recent study co-authored by Ohio State University Professor of Sociology, Vincent Roscigno, concluded that workers 50 years old or older face a higher incidence of termination. The study analyzed complaints filed with the Ohio Civil Rights Commission from 1988 through 2003 where either: (1) Probable Cause for discrimination was found, or (2) the employer settled the matter before litigation. Overall, the study evaluated over 2,181 age discrimination claims.

The study revealed that employees who were close to turning 50 years old or 60 years old had the highest incidence of complaints. Roscigno theorized that companies’ desires to lower healthcare and pension costs has created a spike in age discrimination complaints among workers near 60 years old. The study also revealed a sampling of the stereotypes that older workers continue to face:

In one case a 64-year-old director of finance was discharged after being told she was too old and un-trainable for computer school.

More information about the age discrimination study can be found from OSU’s website in an article entitled, Nearing Age 50 or Retirement? Watch out for Discrimination.

Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket

The Supreme Court’s docket in 2008 may include a case out of Nashville, TN involving sexual harassment. An article out of the Tennessean gives a synopsis of the facts:

The case began in 2002, when Vicky Crawford, then a payroll supervisor who had worked for the school system for 30 years, was contacted by school officials looking into allegations of sexual misconduct against Gene Hughes, then the schools’ employee relations director.Crawford told investigators that she had seen Hughes grab his crotch in her presence, that he had asked to see her breasts, and on one occasion, he grabbed her head and tried to force it into his groin. At the time, Hughes was responsible for investigating all claims of sexual harassment in the school district. The lawsuit alleges that the internal investigation ended with no disciplinary action against Hughes. But Crawford, and two other female employees who cooperated with the probe, were fired, the suit says.

Title VII prohibits employers from taking adverse employment actions against employees who oppose unlawful employment practices such as sexual harassment. At issue in Crawford’s retaliation claim under Title VII is the definition of oppose.

Crawford argued that she opposed Hughes’ inappropriate conduct by cooperating with the school’s internal investigation. In response, the school argued that Title VII’s whistleblower provision was not intended to protect employees participating in an internal investigation initiated by an employer. Disregarding Title VII’s broad remedial purpose, the district court and the Sixth Court agreed with the school’s argument and dismissed Crawford’s retaliation claim. Click here for the Sixth Circuit’s decision.

If the Supreme Court grants certiorari, the issue will focus on whether an employee who is terminated after cooperating with an internal investigation in which she alleges unlawful employment practices states a claim for retaliation under Title VII.

Age Discrimination Outlook in Post-Retirement Job Hunting

Forbes recently featured an interesting article written by Jan Cullinane entitled Post-Retirement Job Hunting highlights some of the obstacles that baby boomers who plan to work during retirement may face:

During 2006, the Equal Employment Opportunity Commission received 16,548 charges of age discrimination. Also, consider that the average job search was 16 weeks for people under 55 years old, but 22 weeks for those older than 55. And Texas A&M economics professor Joanna Lahey found that companies were more than 40% likely to interview a younger job seeker rather than an older job seeker.

Cullinane states, however, that the shear number of workers over 40 years old, coupled with labor shortages, may force employers to not overlook the skills and value of this cohort:

Most experts, however, are upbeat about the future of mature workers. With baby boomers (more than 76 million) retiring from primary careers, and fewer younger workers (48 million Gen Xers) to replace them, labor shortages will force companies to retain, retrain (if necessary) and value the older employee.

Time will tell whether employers will be savvy enough to discard precedent and remove what has been coined as the “gray ceiling.”

Massachusetts Commission Against Discrimination (MCAD) Issues Probable Cause Finding in Handicap Discrimination Case

Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination (MCAD) in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee to verify a medical condition and make accommodations, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent’s inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine that an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

Click here for the full decision.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.