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 .

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.

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.

Second, the law clarifies that a person’s military status supports a claim of hostile work environment.  Hostile work environment based on sex, race, and national origin, among other things, violate the country’s civil rights laws, based on court recognition that a hostile work environment changes the “terms and conditions” of employment..  But recently a federal court refused to recognize a hostile work environment based on veteran or military status.  Now military status is clearly entitled to protection from harassment.

With veterans suffering a much higher than normal unemployment rate, this law’s incentives may help returning military personnel reintegrate into civilian life.

There is no reason for a gender war over the small economic gains, and that is not the coalition’s purpose.  It is true that in a one-parent household the parent is more likely to be the mother, however, so the job loss affects multiple people. The coalition “HERvotes, seeks to  emphasize the importance of extending unemployment benefits, and providing affordable health insurance.

The first is called “My Next Move for Veterans.”  The website asks for the veteran’s military occupation code, and gives some guidance on jobs in the private or public sector that make use of the same skills.

The second is a veteran’s job bank, offering job listings from companies specifically looking for veterans as their next hire.

It is harder to prove discrimination in the failure to hire someone.  If a veteran is turned down for a job, he or she is usually not told why, and doesn’t have the inside knowledge to show it was veteran status.  Perhaps employers fear that the employees will be recalled to duty, that they came back damaged, that they won’t take direction from a non-military boss.  If these resources help veterans find employment, that would help us honor their service.

Acknowledging that the differential was narrow, the authors point out the high-stakes consequence: “the firm’s reliance on this number for partnership consideration makes it nearly three times more likely that men than women will be promoted to partner.”

Despite the finding, the law firm chose not to revamp its system, institute training, or take any creative steps to erase the ingrained bias.  The firm apparently gave lip service to the idea of improving its record of promoting women, but “we’d rather not change anything.”

Although the identity of the firm is a secret under the consultant’s agreement, I never underestimate the power of the grapevine; its identity may yet leak out, which could yield an interesting situation for the scores of women held back by the firm in spite of its realization that its evaluations were biased.

In a recent Montgomery County case, for example, the employer retaliated against an employee for reporting sex discrimination.  The harassment victim’s supervisor alerted the higher-ups of the retaliation.  Soon thereafter the 30-year employee (the one reported her subordinate’s complaint and her observation of the retaliation) experienced retaliation herself.  Her supervisor and upper management demoted her, and transferred her, increasing her daily commute from 4 to 84 miles. The jury responded to her allegations that she was fired for opposing a discriminatory practice, and awarded $650,000.

The Civil Rights Tax Relief Act, introduced last week, is designed to make the tax treatment fairer in two ways.  One would treat emotional and physical injuries caused by the discrimination as not taxable.  This is how personal injury cases treat monetary compensation for pain and suffering.  There is no logical reason why money for an auto accident should be tax free while money for discrimination should be taxed.

The second prong would let the employee use income averaging to stretch out the payments that are intended to make up for lost compensation.  The employee would pay tax on the backpay and front pay, but all at the tax rate that would apply if the income were apportioned by year.  In other words, the employee is not immediately sent to the top tax bracket for the one year in which he received the payment meant to compensate for seven years of discrimination.

Interestingly, the bill enjoys the support of both employee advocates and business groups.  Settlements and sometimes awards are made with the tax consequences in mind.  If the tax consequences are eased, settlements will be easier to reach, and can be lower if the tax consequences are not so severe.

In the Supreme Court case, a teacher at a Christian school charged that her termination violated the Americans with Disabilities Act. After several years as a teacher of both secular and religious courses, Cheryl Perich developed narcolepsy, and missed several months of the school year. The school refused to permit her return, and she threatened to sue under the ADA. The school then contended that her suit threat contravened the religious principles of the Evangelical Lutheran sect.

The case presents an interesting intersection of the religious exemption problems that come up in employment cases. One exemption is afforded institutions to permit employment decisions based on religion. The exemption furthers freedom of religion as well as the separation of church and state. A teacher of Jewish studies can be fired by his school for doctrinal reasons, or for not adhering to certain tenets of the faith. But in this case, the teacher claims two things: one, that she was fired in retaliation for taking time off for her disability, and complaining of her treatment; and two, if the reason was religion-based (an avoidance of conflict, for example), she should not fall within the ministerial exemption because, for one reasons, she taught secular subjects for the most part, with a minimal religious component.