Posted by marykeating on May 18, 2013 under Discrimination in employment | 
The Genetic Information Nondiscrimination Act (GINA) has been law since 2009, but to date, there seems to have been little activity arising from this law. The law provides that an employer cannot discriminate against employees or applicants on the basis of their genetic profile. As scientific advances in the genetic field gallop forward, this law is timely, maybe ahead of its time.
The EEOC just announced its first case, resulting in a settlement, against a company that required an applicant for employment to undergo a thorough medical examination, which included a family medical history. Why are family medical histories important? To predict a genetic disposition for the same issues, heart disease, cancer, and other health problems.
In this case, Fabricut of Tulsa, Oklahoma, offered a temporary employee a permanent position, subject to her medical exam. The medical examiner believed that she had carpal tunnel syndrome. Though the employee’s doctor ruled it out, the company rescinded the job offer.
The EEOC accused Fabricut of violating the Americans with Disabilities Act because it discriminated against the employee on the basis of a disability or a perceived disability; it also had no right under the law to demand her medical history.
Then earlier this week, the EEOC made similar allegations about a New York employer, again for requiring medical histories after an applicant received a job offer, and then annually thereafter.
I have heard from many employees whose employers demand medical information, including doctors’ reports, from them. Some of this intrusion seems to be normal human nosiness. It often goes further, with the employer or its medical department presuming to know better than the employee and her own doctors. While both the ADA and the FMLA allow certain medical documentation to support an employee’s requests for accommodation or leave, there is no such exception in GINA. Predictions about an employee’s medical future may not be used to make employment decisions.
Posted by marykeating on May 9, 2013 under Race-based discrimination, disability discrimination |
At a recent conference, the Equal Employment Opportunities Commission revealed some of its priorities for enforcement.
The EEOC is interested in attacking some of the barriers to getting a job. Since the EEOC has the job of enforcing federal civil rights laws, the barrier must have some impact on a particular protected category. Its efforts to challenge the use of credit reports in the hiring process, for example, have not been vigorously pursued. There is not enough research to support the theory that bad credit is more likely to be a female or African-American problem.
The use of credit reports to make hiring or promotional decisions in Maryland is limited by state law, however.
The link between criminal records and race is easier to establish. The EEOC has been trying to make clearer when the use of a criminal background is acceptable and when it unfairly weeds out potentially good applicants.
In both cases, the use of a background check needs to be linked to the job the person is applying for. Does the employee need to obtain a national security clearance? Is she going to have access to cash transactions? Is the employee going to go into customer’s homes? Is he guilty of violent crimes or drug violations?
Finally, the EEOC is continuing to focus on reasonable accommodations in the disability discrimination arena. Employers are required to engage in the interactive process to work out a way for a disabled employee to perform his job duties, even if a reasonable accommodation is required. Many employers simply make arbitrary rules without reasoning through the possibilities, or (impermissibly) use the excuse that an accommodation would not be fair to other employees.
The EEOC has been more active recently in taking cases for employees, and their settlements usually require ongoing monitoring and training of employees.
Posted by marykeating on May 4, 2013 under Discrimination in employment, FMLA, Family responsibility |
A pregnant worker at T-Mobile annoyed her employer by using the restroom more often than the employer liked. Her pregnancy required her to drink more than usual, and the increased water intake, together with the crowding near the bladder caused by pregnancy, made her take more frequent breaks. Facing extreme scrutiny, she had to take vacation time for her bathroom breaks (really), and then was fired for making a minor and uncharacteristic mistake.
It does not appear that this person filed a lawsuit, but she did write a blog post in favor of paid sick leave. I agree with her that paid sick leave should be required for companies over a certain size. It’s obvious that not allowing sick leave causes workers to come to work with infectious illnesses, or to lose a job over a temporary health issue. Still, using paid sick leave for a five minute break is overkill, and reflects a bias against pregnant women.
Maryland’s new pregnancy accommodation law, which will be signed into law on May 16, would require accommodations such as more frequent bathroom breaks. Because the T-Mobile worker was held to certain performance standards, a reasonable accommodation might be to alter the standards or allow her to work a slightly longer shift to make her numbers. Pregnant women are already facing a maternity leave, many of them unpaid. To lose their job and health benefits prior to giving birth is a nightmare.
Posted by marykeating on May 1, 2013 under Collective rights, Discrimination in employment |
The President issued a proclamation about Law Day, May 1, which states in part:
- As a Nation, we are bound together not by the colors of our skin, the tenets of our faith, or the origins of our names. What unites us as Americans is our allegiance to an idea articulated more than two centuries ago: that “all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” In the years since that declaration, we not only forged a Republic of, by, and for the people; we also set ourselves to the task of perfecting it, and bridging the meaning of those words with the realities of our time.
- This Law Day, we look back on our long journey toward equality for all. We reflect on the Emancipation Proclamation, issued by President Abraham Lincoln 150 years ago to mend a Nation half-slave and half-free under the unifying promise of liberty. We remember when Dr. Martin Luther King, Jr., stood in Lincoln’s shadow a century later and gave voice to a dream, sounding the call for an America that truly lives out the meaning of its founding creed. We honor the courageous men and women who fought to bring those ageless ideals of freedom and fairness into the rule of law — from the Civil Rights Act and the Voting Rights Act to Title IX and the Americans with Disabilities Act.
- Even now, that work is not yet finished. Opportunity remains painfully unequal for too many among us; justice too often goes undone. Law Day is a chance to reaffirm the critical role our courts have always played in addressing those wrongs and aligning our Nation with its first principles. Let us mark this occasion by celebrating that history, upholding the right to due process, and honoring all who have sustained our proud legal tradition.
Equality in the workplace represents a fundamental step toward our nation’s goal of promoting life, liberty, and the pursuit of happiness. Harassed and bullied workers, minority and women employees earning less because of their race or gender, disabled people pushed out the door for fear of the different or the health insurance premiums: all of these unfairly treated workers are cheated of their right to equal treatment, to reward for talent and hard work, and to the enjoyment of a great job.
There is hope that artificial distinctions between people are fading. Until they are gone completely, we will need the courts to enforce justice at work.
Posted by marykeating on April 16, 2013 under Discrimination in employment, Pending legislation |
The Maryland General Assembly passed the Civil Rights Tax Relief Act (HB1169/SB639). The law addresses the taxation disparity between personal injury and employment discrimination plaintiffs: emotional distress damage awards are taxable to the latter but not the former. The disparity encompasses a large number of federal laws relating to employment discrimination and retaliation, including Title VII, the Fair Labor Standards Act, and ERISA. Under the new law, noneconomic damages in employment cases will be a subtraction from income on Maryland tax returns.
Awards and settlements received by personal injury plaintiffs have long been excluded from income tax under federal law. One rationale is that an injured person has not “earned” income by suffering emotional or physical pain or disfigurement. Rather, though the victim can be compensated only by money, he or she did not voluntarily participate in the transaction, and would not have chosen to trade the miserable experience for cash.
Until 1996, employment discrimination victims did not pay tax on compensatory damages for emotional distress. Congress changed the law for employment discrimination and defamation awards, however, via the Small Business Job Protection Act of 1996. Maryland tax law automatically incorporated the taxability characterization of emotional distress damages in employment discrimination cases. Awards for emotional distress in personal injury suits remained free of taxation.
Employment rights advocates have been attempting to roll back this law on the federal level for some time. In the meantime, state by state, some victims are getting relief. Lawyers representing employers did not oppose the new law. They know that cases are easier to resolve if the plaintiff’s compensation is not eaten up by taxes. Damages attributable to punitive damages and lost wages are still taxable.
Assuming the Governor signs it, the law goes into effect as of July 1, 2013.
Posted by marykeating on April 15, 2013 under Gender orientation discrimination, Pending legislation |
After a busy and eventful session, the Maryland General Assembly has convened for the year. Several new employment related bills were passed by both houses, and are expected to be signed into law by the Governor.
One new law is titled the Pregnancy Fairness Act (HB804/SB784). Its genesis lies in a recent Fourth Circuit case involving UPS driver Peggy Young, Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2012). The Fourth Circuit decided that the Pregnancy Discrimination Act did not require UPS to give work accommodations to pregnant workers equivalent to those given to other employees.
Ms. Young worked an early shift for UPS, unloading from the airport shuttle and delivering rush letters and parcels due by 8:30 a.m. Shipments using this more expensive type of delivery ordinarily consisted of letters and light packages.
Young had experienced difficulty becoming pregnant, but in 2006 took leave and had a successful in vitro procedure. Her medical provider advised her not to lift packages weighing more than 20 pounds, as a precaution. UPS refused to allow her to return to work with the restriction. UPS offered this kind of light duty for employees who had suffered on-the-job injuries, for employees entitled to accommodations under the Americans with Disabilities Act, and for employees who had lost their federal driving certification. Young unsuccessfully tried to convince UPS that her restriction would not interfere with her work; she could use a hand truck and other employees had offered to help with the rare heavy package. UPS would not budge, and Young went on a lengthy unpaid leave of absence, losing her health insurance benefits for the remainder of her pregnancy and delivery. She later returned to UPS.
Pregnancy is not a disability under the ADA, so UPS did not have to offer her an accommodation under that law, though it voluntarily did so for other categories of employees. Young has filed a petition for certiorari in the Supreme Court frames the issue as follows:
Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Maryland’s new law would require employers with at least 15 full time employees to give pregnant women accommodations unless the accommodation would impose an unreasonable hardship. An employee’s request for different hours, job duties, or work location, for example, must be considered; the law imposes an affirmative duty on the employer to explore accommodation possibilities with the employee. Further, if an employee requests a transfer to a less strenuous or less hazardous job during the pregnancy, the employer must grant the request if (1) it would do so for any other temporarily disabled employee, or (2) the woman’s health care provider so advises, and the employer is able to do so without displacing employees or creating a new job. Pregnant workers will be required to support their requests with medical certifications.
Often pregnant employees need simple accommodations, such as more frequent bathroom breaks, water or snacks at their work sites, and flexible hours for doctor’s visits. Moreover, the lifting requirements of many jobs overstate the typical daily tasks. For more serious medical restrictions, the law specifies that leave may be a reasonable accommodation. Nothing in the law requires the leave to be paid.
This new law is expected to ease the burden on the unemployment compensation and social services budgets.
Posted by marykeating on March 29, 2013 under disability discrimination |
The Census Bureau just released statistics showing that the disabled population is less likely to be employed, and more likely to be employed in low-paying jobs.
It’s unclear from the report how detailed a statistical analysis underlays the conclusions. The type of disability can surely affect a person’s job prospects. For example, someone with serious cognitive difficulties is unlikely to land a high paying job in the high tech industry. Indeed, most jobs that pay well require specialized education.
Still, there is more to the story than disabilities that prevent job applicants from getting degrees or specialized training. For example, the EEOC just filed a case in Maryland for a job applicant at Toys R Us, which refused to provide a sign language interpreter for the interview.
Employers seem to shy away from employees with any kind of difference. Sometimes I hear of vague fears that the employer will incur some kind of liability, or the customers won’t like dealing with a disabled person, or health insurance premiums will rise. (None of these excuses is a legal reason to discriminate, by the way.) Often, though, there seems to be some mean-spirited or superstitious attitude toward someone who has a medical issue or congenital difference. And that’s the reason we need the law.
Posted by marykeating on March 20, 2013 under Sex-based discrimination, Wage and hour issues |
Federal law forbids an employer from paying men and women different rates of pay for the same job. That’s the Equal Pay Act. A different federal law, Title VII of the Civil Rights Act, outlaws sex-based discrimination in all employment decisions, from hiring to assignment of work to firing.
Most of the time, individual plaintiffs bring cases to enforce these rules. But the government also has enforcement power, which can be very helpful when individual damage claims are low, and when patterns of discrimination appear.
As we all remember from civics lessons, the executive branch enforces the law. Among the agencies in the executive branch is the Office of Federal Contract Compliance Program, which oversees federal contractors. Contractors all sign contracts agreeing, in exchange for federal money, to abide by non-discrimination laws. Under the Bush administration, however, the agency overseeing them found itself limited to enforcing a very narrow set of discriminatory practices. Those handcuffs have finally been removed. As the new regulations put it,
proof.
“The [Bush-era] Standards restrict OFCCP’s ability to enforce the Executive Order’s non-discrimination mandate.”
The “standards” gave almost unlimited discretion to federal contractors to use specified statistical models that evaded a systematic look at sex discrimination in pay.
The new emphasis on pay discrimination may open a new era of equality. People starting their first jobs in the 21st century seem very comfortable with the idea that people should be judged on their ability and effort, not their race, sex, sexual orientation, or disability status. Enforcement of these standards is overdue.
Posted by marykeating on March 8, 2013 under Sex-based discrimination, Wage and hour issues |
It’s International Women’s Day. (And let’s not forget that March is Women’s History Month.) The difference in wages between the sexes persists, however, and may in fact be growing.
Researchers have sliced through the data from all sorts of angles. Many male-dominated jobs pay more than female-dominated jobs even if, by analysis of the education and brainpower needed for the female-dominated job, the average wages for the different occupations should be identical or even reversed.
When comparing men and women in the same occupation, the statistics come in across the board. As this analysis reports, male physicians are much more highly paid than females; female counselors, however, earn slightly more than men do.
There are discussions about whether women do not negotiate for better salaries, or if they try, are rejected as overly aggressive.
No matter how statisticians try to equalize for the fact that more women take time out of the workplace to have children, or work part-time for a few years, or tend to take lower paid jobs, there remains an unexplained gap. The only reasonable conclusion is that pervasive discrimination still depresses women’s pay.
Posted by marykeating on January 31, 2013 under Pending legislation, Sex-based discrimination |
Maryland’s Senator Barbara Mikulski intends to prioritize the Paycheck Fairness Act this term of Congress. The number of women senators reached an all-time high after this past election, and women now comprise 19% of the Senate. The bills, H.R. 377 and S. 84, are in committee.
When last considered, the House but not the Senate passed the law. The purpose is to sweep away some of the defenses by employers to their failure to pay women equally for the same job. Women still earn quite a bit less than men, for the same job.
At the same time, though, Senator Mikulski, together with House Representative Rosa DeLauro of Connecticut, asked the President to require government contractors to refrain from retaliating against or prohibiting workers from discussing their pay. While many people do not discuss pay because of culturally-instilled privacy reasons, a person paid less than a peer for doing the same job cannot always find out that she is underpaid, unless she asks.
The National Labor Relations Board already considers prohibitions against discussion of pay and other work conditions to be unfair labor practices, regardless of whether the workplace has a union
