Posted by marykeating on May 16, 2012 under Age discrimination, Economic situation, Employment benefit issues | 
Since the start of the economic debacle now being termed the “Great Recession,” many United States workers have found themselves unemployed for long periods. A new study shows that while layoffs were was more likely to affect younger workers, these employees were more likely to become reemployed. By 2011, more than a third of older unemployed workers had been jobless for more than a year. This disparity was worse for men, for less educated workers, and for minority workers. As reported here before, many older workers realistically face a future where they are too young to retire, but will never have a job again.
The study looks at possible reasons for the lingering unemployment, as well as the long-term effects on workers aging toward retirement age.
Age discrimination accounts for much of the reluctance to hire workers. Sometimes age discrimination is based on irrational fears that older workers will be less technologically proficient, expect higher wages, or will be unwilling to take direction from a younger manager. Sometimes, however, the refusal to hire people of a certain age relates to the increased health insurance premiums attributable to the addition of an older worker.
The persistently unemployed older age group will face lower social security benefits because social security is tied to the worker’s latest and lifetime earnings. Some people will retire early, and therefore commit to lower social security benefits for their lifetime. And by necessity, the workers may dip into savings earmarked for their retirement. Overall, this recession will continue to affect lives for some years. If the health care reform does not untie health benefits from employment, age discrimination is unlikely to fade away.
Posted by marykeating on May 11, 2012 under Economic situation, Family responsibility, Pending legislation, Sex-based discrimination |
Congress will consider a new bill called the Pregnancy Fairness Act, designed to improve the rights of pregnant workers against endemic discrimination. The bill was introduced on Wednesday in the House.
The ways in which courts have limited pregnancy discrimination laws are well described in this article.
The new law would require employers to make reasonable accommodations to their pregnant workers, similar to requirements under the Americans with Disabilities Act. Like the ADA, it would apply only to employers with at least 15 employees.
Pregnancy discrimination appears to be on the rise, based on the calls I have been receiving. The worker who loses her job because she is pregnant is in a triple bind: she loses income, she loses her health care benefits when she needs them most, and she is less likely to be considered for a job, since she will need a leave of absence in the coming months. Many pregnant women are capable of continuing their work through term, but may occasionally need to sit down, visit a restroom more often, or refrain from heavy lifting. If an employee’s job is “Heavy Lifter,” perhaps no accommodations can be considered reasonable. But for most employees some simple consideration can keep them working.
Posted by marykeating on April 17, 2012 under Pending legislation, Sex-based discrimination, Wage and hour issues |
Today is special. Tax returns are due, two days later than usual. And it’s Equal Pay Day! That’s the day in 2012 on which women have earned the same as men did for 2011 work. “Each year, National Equal Pay Day reflects how far into the current year women must work to match what men earned in the previous year.”
The Department of Labor has a section on its website devoted to Equal Pay issues. But despite the law, which has been in effect since 1963, women continue to be paid less than men overall, and less than men for the same job. President Obama’s first signed law was the Lilly Ledbetter Fair Pay Act, to overturn a hostile Supreme Court decision.
Equal Pay act cases are still difficult to prove unless the workers have extremely similar jobs. While I doubt this was the intention of lawmakers, judges have approached equal pay act cases with a lot of skepticism. Two higher level positions are almost guaranteed not to be completely similar, but to pay two vice presidents with similar scope of responsibilities at dramatically different rates is commonplace.
Maryland’s record is better than most; according to Governor O’Malley, “Thankfully, in Maryland we’ve been able to reduce the wage gap between men and women to the fourth-lowest in the nation – and we were recently named the 3rd best State in the US to be a woman.”
But bring into the mix the State of Wisconsin, which has produced some extremely anti-labor sentiments of late.
After trying to rid the state government of unions, Wisconsin decided to attack protection for women (and racial minorities, among other protected categories). Republic state senator Glenn Grothman spearheaded the repeal of the state’s equal pay act law. Senator Grothman rejects studies showing that women are systematically discriminated against. Instead, according to him, “you could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious.”
Okay; even if that “argument” had any logic behind it, it still does not explain why a man should be paid more for the same job, just because it’s “more important” for him. Should a single mother of four earn more than a young single man living with his parents, because it’s more important for her? Hard to imagine Wisconsin getting behind that one.
No, this seems to be about gender. Men deserve more money, according to these attitudes that, unfortunately (though sometimes more subtly stated) prevail.
Posted by marykeating on March 24, 2012 under Employment benefit issues, Sex-based discrimination |
The Fourth Circuit just overturned a District Court decision dismissing an employee’s sex discrimination claim. Karla Gerner was notified that her job was going to be eliminated, and was offered three months’ pay to release her claims. She was then fired by her employer, a Virginia County, after turning down a severance offer. Gerner identified four males who had been given better treatment when the County decided their jobs should be eliminated. She was offered 3 months; the men got six months, more pension eligibility, replacement jobs, and the like. The County argued that she had no case because her severance offer was not a contractual employment benefit, and her effective date of firing was before she turned down the severance.
The Fourth Circuit employed a broader view of the “terms and conditions of employment” though. Though an employment benefit is voluntarily granted by an employer, it still must not discriminate in granting the benefits. In addition, prospective, current, and past employees are all protected from discrimination on the basis of sex.
Ms. Gerner now has a chance to go to trial on her claims of sex discrimination.
Posted by marykeating on March 13, 2012 under Sex-based discrimination, sexual harassment |
The Fourth CIrcuit yesterday reinstated an employee’s sexual harassment case after it had been dismissed by the trial court. Carla Dulaney sued her former employer after her termination, complaining of sexual harassment. Dulaney’s shift supervisor demanded sex from her. From time to time, she did have sex with him in the workplace, though it could hardly be called consensual. When she refused to accommodate the supervisor, he screamed at her, sent her home without pay, and eventually spread vicious rumors about her around the company. Her complaints were laughed off. When she escalated the complaints (after having been warned not to go over the senior supervisor’s head), she was offered a severance agreement complete with release of claims.
The District Court held that a letter from the company offering her job back meant that she was not fired for complaining or for refusing to sign the severance agreement. The Fourth Circuit determined that there were numerous factual disputes about whether the employee had suffered a “tangible employment action,” which is necessary before a court can impose liability on an employer that denies knowing about the harassment. It did not reach other issues, such as whether Carla Dulaney adequately complained, and whether the employer failed to take action on her complaints.
District Courts continue to weigh facts, often giving scant weight to the employee’s assertions, in order to award summary judgment to employers. This case shows the importance of proof that an employee made complaints about sexual harassment, and that the complaints went unheeded.
Posted by marykeating on February 29, 2012 under Discrimination in employment, disability discrimination, veterans' discrimination |
The Equal Employment Opportunity Commission issued a new guide for employers about the rights of disabled veterans to be free from discrimination.
Veterans are entitled to the same rights as other employees and potential employees to be free from discrimination, but the law has added a few additional provisions for them. Disability discrimination seems to be on the rise, from my anecdotal experience fielding calls, and from the EEOC’s own statistics. Unemployment rates for veterans are higher than the non-veteran population.
Discrimination originates with fear: fear of the “other,” fear of a disability that the viewer prefers not to be reminded of, and, with mental illness, fear of a deviation from normality. Veterans are especially susceptible to irrational fears. Studies have found that many people assume that veterans have post-traumatic stress disorder, and that they will therefore be undesirable employees.
In addition to refraining from discriminating based on an assumption about a veteran, an employer may not consider the veteran’s disability rating from the Department of Veterans Affairs to discriminate against him or her.
On the other hand, employers with government contracts may have affirmative action obligations with respect to veterans, and therefore, for affirmative action purposes, may ask if a person qualifies as a disabled veteran, and may give that person preference because of that status.
Posted by marykeating on February 16, 2012 under disability discrimination |
A new case from the Fourth Circuit directly addresses a common enough dilemma: if an illness weakens an employee such that he can’t handle swing shifts or overtime, must an employee accommodate that problem?
No, says the Court. An employee who is able to return to a 40-hour week is not disabled in the major life activity of working, and therefore the employer does not have to accommodate him.
The case came up, ironically enough, with someone who was treated pretty well by his employer. After Michael Boitnott suffered a heart attack, he stopped working as a maintenance engineer. His job was structured around 12-hour shifts; the company required employees to rotate the shifts every two weeks so no one was always a night worker.
Eventually Boitnott was given permission to return to work. At first, his doctors disapproved of his working more than 40 hours, as well as the rotating shifts. Ultimately they approved “moderate overtime,” but not the alternating shifts. In response, Corning worked with his union and ultimately created a maintenance job requiring 40 hours per week with overtime, with no radical shift changes. He took the job, and remained there through the trial. He complained about his treatment for the time period before he could work more than 40 hours.
The court held that because he could work 40 hours, he could not show himself disabled from the major life activity of working. Plenty of jobs limited to a 40-hour week existed; therefore Boitnott was not disabled. The fact that he could not do his own job does not get him over the hurdle. If he’s not disabled, Corning has no obligation to accommodate him.
This case is a good reminder of the limitations of the ADA, even with the recent amendments. Until “staying up all night” is a major life activity, a person unable to handle a swing shift, but otherwise healthy, may never get to the reasonable accommodation stage. On the other hand, sometimes an employee has a recognized disability (for example, asthma). If a reasonable accommodation would be to alter a schedule, the employer must at least consider it.
Posted by marykeating on January 31, 2012 under Discrimination in employment |
Since the new administration came into power in early 2009, the Equal Employment Opportunity Commission has enjoyed more resources and more leeway to pursue cases of discrimination. It has taken on a number of employers accused of multiple instances of discrimination, and has entered into highly publicized settlements with many of them. The areas of interest span systematic sex discrimination, job rules with impact on certain religions (such as no-facial hair rules), and rules that discriminate against disabled workers, such as no-fault attendance policies.
The EEOC recently announced a long-term plan to increase its enforcement muscle even more. The original idea behind the EEOC and the mandatory administrative filing was to work out disputes quickly, and give the EEOC the information needed to identify and root out discrimination by taking direct enforcement action. With more than 110,000 charges of discrimination filed in the last two years, though, the EEOC has to allocate its resources to maximize the impact. It promises to take some individual cases, but to increase the number of systemic discrimination cases as well.
The strategic plan is still being drafted; the EEOC hopes to finalize it by September. Any comments on the plan are due by tomorrow, and can be made by email, to strategic.plan@eeoc.gov .
Posted by marykeating on January 14, 2012 under Religious discrimination |
This week, the Supreme Court decided a closely watched Case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Cheryl Perich was a teacher at a Christian school. She sued the school after her termination, claiming the discharge violated the Americans with Disabilities Act. The school countered that the Courts had no right to interfere with how they decided their personnel matters, given the separation of church and state.
Courts have refused to get involved in disputes over the firing of a church’s pastor, invoking the “ministerial exception,” adopted by the Supreme Court in this decision. The gray areas involving other employees of religious institutions led to subtle rules. The Supreme Court sweeps a lot of that away with this decision. The teacher in this case was “called” to her faith, and counted as a religious minister, though her religious duties at this school were minor. She had a special diploma and commissioned by her congregation’s vote. Other teachers who were not “called” performed the same functions, but because of ther status as a commissioned minister, the Court said it would not decide whether her termination violated federal law. It therefore refused to consider the school’s argument that she was fired for violating church policy of resolving disputes internally, and not through courts. The Supreme Court stopped short of requiring a reason for the firing; it says that federal courts are constitutionally forbidden from questioning such terminations.
Posted by marykeating on December 31, 2011 under Sex-based discrimination |
The highest court in Maryland just reinstated a jury verdict in favor of an employee fired by Giant of Maryland after complaining of sex discrimination. A truck driver for the grocery chain, Ms. Taylor developed a condition in which she experienced unexpected heavy menstrual bleeding, which would make her absent or late to work without warning. Giant insisted that the employee take an independent medical examination and, according to Ms. Taylor, to comply with the doctor’s recommendations for treatment, up to and including a hysterectomy, or be fired. Ms. Taylor claimed (and the jury agreed) that Giant did not make male employees with health-related absences submit to a medical examination, rather than accept their doctor’s explanations.
The intermediate appellate court reversed the jury verdict, leading to an appeal to the highest court.
The Court of Appeals rejected the employer’s efforts to have the court disregard the comparisons with her male counterparts. Giant complained that the four men identified by the plaintiff were not sufficiently similar, and therefore their superior treatment could not support a sex discrimination claim. The Court disagreed. The plaintiff’s failure to identify a man with the same supervisor who had a gender-specific ailment that caused him to be late or absent, and that was not subject to a Department of Transportation physical examination, did not doom her case. There will always be differences between two employee’s situations. Instead, it is enough to identify a male comparator whose treatment is enough to cast suspicion on the employer’s stated reason for requiring the medical exam.
The opinion also rejected the employer’s appeal of the retaliation verdict. The decisionmakers at Giant denied knowing that Ms. Taylor had filed a discrimination claim, and therefore, they said, her firing could not have been in retaliation for her filing. The employee produced evidence that the discrimination claim was transmitted to Giant’s human resources department, and that an employee had knowledge and had taken action to try to mediate the claim. The court said that the jury could have disbelieved the denials by other Giant employees that they did not know of the filing.
