Posted by marykeating on December 16, 2011 under veterans' discrimination | 
Last month Congress unanimously passed and the President signed the Veterans Opportunity to Work (or ”VOW “) to Hire Heroes Act of 2011. It’s a very catchy name, and provides both a carrot and a stick for employers. First, employers get a tax credit for hiring an unemployed veteran. The longer the period of unemployment, the better the tax credit, up to $9,600 for a disabled veteran out of work for more than six months.
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.
Posted by marykeating on December 14, 2011 under Economic situation, Sex-based discrimination |
A new coalition has formed to help women adversely affected by the sluggish economy. The earlier reports that the recession hurt men more than women has been superseded by the new reality. More layoffs have occurred in the public sector, which employs a lot of women; for whatever reason, moreover, the rate of layoffs of women exceeds their representation in the public sector. Since the recession ended, the job gains have helped men more than women.
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.
Posted by marykeating on November 11, 2011 under Discrimination in employment, Economic situation, veterans' discrimination |
Despite the protection of one of the strongest laws prohibiting discrimination (USERRA), veterans (and current members) of the armed forces experience higher unemployment rates than the rest of the population. The Department of Labor has rolled out a couple of resources that could prove helpful in reintegrating veterans in civilian society.
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.
Posted by marykeating on November 4, 2011 under Sex-based discrimination |
A recent study commissioned by a Wall Street law firm found convincing evidence that the firm assigned higher evaluation points to male associates for the same attributes and qualities as the females possessed. The firm must have had an inkling that men were getting an undeserved edge over the women, otherwise it would not have hired the consultant. It was right: women who performed just as well as men, according to the open-ended narratives accompanying the evaluations, somehow earned a lower ranking than their male peers.
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.
Posted by marykeating on October 31, 2011 under Sex-based discrimination, retaliation |
Most employers have policies against discrimination and harassment based on protected categories, such as race, sex, religion and national origin. To be effective, and to provide effective defenses against lawsuits, the policies often require supervisory personnel to report anything observed or reported to them that looks or smells like discrimination or harassment, regardless of whether an employee actively complains. The policies also require supervisors to pass along actual complaints. When they work well, these policies can minimize discriminatory cultures, and stop harassment before it ruins someone’s career. When reports of discrimination enrage the perpetrator or other managers, however, the fallout can be widespread and expensive.
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.
Posted by marykeating on October 18, 2011 under Discrimination in employment, Pending legislation |
Every candidate talks about taxes, and how the tax code is full of loopholes. One area of tax unfairness involves taxation of employment discrimination damages. An employee who complains of employment discrimination often has to wait a few years before the case is heard. In the meantime, her damages have piled up. If the employee obtains a settlement or an award at trial, it often includes (1) damages to compensate for several years of unpaid or underpaid compensation, and (2) non-economic damages, such as emotional distress. Once the money is paid, the employee is taxed on the lump sum as though it were all earned as wages in a single year. The tax bite is hefty.
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.
Posted by marykeating on September 29, 2011 under Interesting cases, Religious discrimination |
It’s almost the first Monday in October, and the Supreme Court’s first week includes a religious employer case. These issues have been percolating for a few years, and both the Fourth Circuit and Maryland recently weighed in with decisions.
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.
Posted by marykeating on September 28, 2011 under Religious discrimination |
A new case by the state’s highest court addressed a raging issue – do religious institutions have free rein to discriminate against employees, or must there be a religious component to the discrimination?
The new case involved a claim by Mary Linklater that the Prince of Peace Lutheran Church in Montgomery County. On the merits, the Court of Appeals agreed that “the evidence was sufficient to establish that Respondent (1) was the victim of sexual harassment, (2) complained about the harassment, and (3) was the victim of additional harassment and retaliation as a result of her complaints.” The employee won a substantial verdict at trial.
The more difficult constitutional issues arise because the employee was employed as a music director by a church. Music directors are involved in a church’s ministry, and courts try to stay out of church governance issues because of the First Amendment. On the other hand, as an employer subject to the laws of the state and country, a church employer is bound by laws that do not encroach on religious issues, such as sex discrimination. To relieve churches of all employment laws would tilt the church/state barrier too far in favor of churches, favoring religion, which also violates the First Amendment.
It gets murkier with sexual harassment. While sexual harassment is sex discrimination, and therefore not off limits under a church and state separation analysis, part of Ms. Linklater’s claims stated that her harassing boss engaged in quid pro quo harassment. That is, Ms. Linklater claimed that she was promised a job benefit only if she gave in to her boss’s requests for sexual favors. To judge whether she makes out all parts of her claim, though, the court has to look at whether her job performance was good enough to get the promotion without the sexual harassment. This intrudes on a church’s religious freedom. Similarly, the Court of Appeas decided that the retaliation firing claim intruded too closely on a religious institution’s ability to make its own employment decisions. The hostile work environment claim, however, survives.
The Court did not unanimously agree on this issue. The dissent would limit the religious exemption to a situation where a termination decision had a “spiritual rationale.” The hurch had not offered a reason for the firing that had anything to do with its doctrine.
As a result of this decision, the case will be returned to the trial court. The verdict is erased on state law counts, but now Ms. Linklater may pursue her gender discrimination and sexual harassment hostile environment claims.
Posted by marykeating on September 19, 2011 under Religious discrimination |
The federal anti-discrimination law known as Title VII applies to nearly all employers of more than 15 people. Among other protected categories is the religion of an employee. While the number of charges of discrimination for religious harassment or discrimination is far less than the race and sex based claims, the volume is still significant.
A number of cases over the years have addressed the breadth of Title VII’s exemption for religious organizations as employers. The Fourth Circuit last week made plain that the law exempted religious organizations from all hiring and other employment decisions, including harassment and retaliation. The exemption means “that the government interest in eliminating religious discrimination by religious organizations is outweighed by the rights of those organizations to be free from government intervention.”
In the case that brought this to the Fourth Circuit, an employee of a Catholic nursing care facility refused her employer’s request not to dress in a certain way, reflective of her religious organization’s emphasis on modest dress. When she refused, she was fired. She admitted that the law permitted her to be fired, but contended that the request not to wear her head covering and Thus, although the Catholic facility hired the employee, knowing she was not Catholic, it was free to fire her because of her religious beliefs or impose terms of employment that might conflict with her beliefs.
Significantly, the dissent to the opinion disagreed with the procedural manner in which the case reached the court, but did not believe that the nursing facility’s insistence that the employee alter her manner of dress came anywhere close to actionable harassment.
Posted by marykeating on September 13, 2011 under Discrimination in employment, Economic situation, Unemployment compensation |
President Obama’s proposed bill for job creation includes several provisions to support unemployment workers.
The jobs bill would extend both monetary and job services benefits. It also has a detailed plan to allow states to offer training and other support to those who wish to become self-employed.
An interesting part of the bill addresses a key barrier facing the unemployed: they are unemployed. The EEOC has been concerned about the overt preference given by employers to people who already have jobs; some ads state that they will only consider currently employed applicants. To counter that preference, the jobs bill incorporates a carrot and stick approach. First, it offers incentives to employers who hire someone who has been unemployed for at least six months. Employers can get up to $4,000 as a tax credit. Tax credits are always popular, since they are a direct subtraction from the tax liability, not just a deduction from income.
The stick is called the “Fair Employment Opportunity Act of 2011,” which would prohibit discrimination against the unemployed. The EEOC would have enforcement authority, much like with other forms of discrimination. This provision would eliminate job announcements that require current employment, and also ban employers and agencies from refusing to consider or hire someone on the basis that they are unemployed at the time they seek new employment. Failure to hire cases are difficult to prove, since the employer rarely states why someone does not get a job. Once the motivation is known to be illegal, such a statement would be an endangered creature. Still, with large employers or those with loose lips, the pattern of refusing to consider the unemployed may have to change.
