EEOC Updates Its Guidance on Pregnancy Discrimination – Questions and Answers

The EEOC recently issued Enforcement Guidance on pregnancy discrimination for the first time in over thirty years. The guidance suggests that the Pregnancy Discrimination Act’s (“PDA”) coverage may be much broader and provide workers much more protection than many employers previously thought. The Enforcement Guidance updates prior guidance on this subject in light of legal developments over the past thirty years.

The guidance (full copy of which can be found here) includes discussions of:

  • when employer actions may constitute unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA);
  • the obligation of employers under the PDA to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits; and
  • how Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA and was amended in 2008 to broaden the definition of disability, applies to individuals with pregnancy-related impairments.

The PDA clarifies that discrimination based on pregnancy, childbirth, or related medical conditions is a prohibited form of sex discrimination. It requires that employers treat women affected by pregnancy or related medical conditions the same way they treat non-pregnant applicants or employees who are similar in their ability or inability to work.

Title I of the ADA prohibits employment discrimination on the basis of disability and requires covered employers to provide reasonable accommodations to the known limitations of otherwise qualified employees and applicants for employment. Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. The ADA also covers pregnant workers who are regarded as having disabilities.

Both the PDA and the ADA apply to private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs. The PDA applies to employees in the federal sector, as does Section 501 of the Rehabilitation Act of 1973, which applies the ADA’s employment nondiscrimination standards. Beyond these federal laws, state and local laws in some jurisdictions provide additional protections.

With this new guidance in mind, here are some EEOC answers to some commonly asked questions regarding pregnancy discrimination and the Pregnancy Discrimination Act (“PDA”):

General Prohibitions and Requirements

  • What workplace actions are prohibited under the PDA?

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).

  • Does the PDA protect individuals who are not currently pregnant based on their ability or intention to become pregnant?

Yes. The PDA’s protection extends to differential treatment based on an employee’s fertility or childbearing capacity. Thus sex-specific policies restricting women from certain jobs based on childbearing capacity, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer’s concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions. Sex-specific job restrictions can only be justified if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business. (See also Question 7, below.)

An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Thus, demoting an employee with a good performance record two weeks after she informed her manager that she was trying to become pregnant would constitute evidence of pregnancy discrimination.

  • May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.

  • Is an employee or applicant protected from discrimination because of her past pregnancy?

Yes. An employee or applicant may not be subjected to discrimination because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically-related pregnancy leave following the birth of her child if the employee’s pregnancy is the reason for the termination. Close proximity between the employee’s return to work and the employer’s decision to terminate her, coupled with an explanation for the termination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.

  • What are examples of medical conditions related to pregnancy or childbirth?

Medical conditions related to pregnancy may include symptoms such as back pain; disorders such as preeclampsia (pregnancy-induced high blood pressure) and gestational diabetes; complications requiring bed rest; and the after-effects of a delivery. (For information about the application of the ADA to pregnancy-related medical conditions, see Question 18, below.)

Lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.

In addition to being protected under the PDA, female hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private place for breastfeeding employees to express milk. The Department of Labor has published a Fact Sheet providing general information on the break time requirement for nursing mothers. The Fact Sheet can be found at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.

Workers with Caregiving Responsibilities

  • Does the law provide protections for caregivers?

Discrimination based on an employee’s caregiving responsibilities may violate Title VII if it is based on sex. For instance, an employer would violate Title VII by denying job opportunities to women, but not to men, with young children, or by reassigning a woman who has recently returned from maternity leave to less desirable work based on the assumption that, as a new mother, she will be less committed to her job. Although leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions, if an employer provides parental leave, it must be provided to similarly situated men and women on the same terms. In addition, employers covered by the Family and Medical Leave Act (FMLA) must provide eligible employees with up to 12 weeks of job-protected leave to care for and bond with a newborn baby or a recently adopted child. Discrimination based on an employee’s caregiving responsibilities may violate the ADA if it is based on the employee’s relationship with an individual with a disability. See Question 22, below.

Concerns About Safety and Ability to Perform the Job

  • Will an employer violate the PDA if it takes an adverse action against a pregnant worker based on concerns about her health and safety?

Yes. Although an employer may, of course, require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful. Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited. For instance, it is unlawful for an employer to involuntarily reassign a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.

An employer may only reassign a pregnant worker based on concerns about her health or the health of her fetus if it can establish that non-pregnancy or non-fertility is a BFOQ as described in Question 2, above. In very few, if any, situations will an employer be able to establish this defense.

  • May an employer take an adverse action against a pregnant worker because of the views or opinions of co-workers or customers?

No. Just as an employer cannot refuse to hire or retain a pregnant woman because of its own prejudices against pregnant women, it cannot take an adverse action against a pregnant worker because of the prejudices of co-workers, clients, or customers. For instance, an employer may not place a pregnant worker who can perform her job on leave based on her co-workers’ belief that she will place additional burdens on them and interfere with their productivity.

Harassment

  • Does the PDA protect employees from harassment based on pregnancy, childbirth, or related medical conditions?

Yes. Unwelcome and offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance that is motivated by pregnancy, childbirth, or related medical conditions may constitute unlawful harassment. Whether the conduct is sufficiently hostile to constitute unlawful harassment depends on factors such as the frequency of the conduct or its severity. Employer liability can result from the conduct of supervisors, coworkers, or non-employees such as customers or business partners over whom the employer has some control.

Equal Access to Benefits
An employer is required under the PDA to treat an employee temporarily unable to perform the functions of her job because of her pregnancy or a related medical condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave.

Light Duty

  • If a pregnant employee needs light duty (temporary work that is less physically demanding than her normal duties), is the employer required under the PDA to provide it?

Yes, if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.

  • Does EEOC’s interpretation of the PDA create preferential treatment for pregnant workers?

No. Consistent with the language of the law, the EEOC’s position is that the PDA requires only that an employer treat pregnant workers the same as it treats workers who are not pregnant but who are similar in their ability or inability to work. Thus, an employer may offer light duty to pregnant employees on the same terms that it offers light duty to other workers similar in their ability or inability to work. For example, if an employer’s policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty, the employer may lawfully apply the same restrictions to pregnant workers as it applies to non-pregnant workers. If an employer does not provide light duty to employees who are not pregnant, it does not have to do so for pregnant workers.

Leave

  • May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?

No. An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interest. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby’s birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.

  • May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave?

No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:

may not fire a pregnant employee for being absent if her absence is covered by the employer’s sick leave policy;
may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the Family and Medical Leave Act (FMLA), the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

Note that under the ADA, an employer may have to provide leave in addition to that provided under its normal leave policy as a reasonable accommodation for someone with a pregnancy-related impairment that is a disability. (For more information about the obligation to make reasonable accommodations under the ADA, see Questions 23–25, below.)

  • Must an employer provide leave to bond with, or care for, a newborn (called “parental leave” in the Guidance)?

Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions, but parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose. In addition, the FMLA requires covered employers to provide 12 weeks of job-protected leave for covered employees to care for and bond with a newborn baby or a recently adopted child.

Health Insurance

  • Are employers who provide health insurance benefits required to provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions?

Yes. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. If the plan covers pre-existing conditions – as all health plans are required to do as of January 1, 2014, under the Patient Protection and Affordable Care Act – then it must cover the costs of an insured employee’s pre-existing pregnancy. If the plan covers a particular percentage of the medical costs incurred for nonpregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related expenses.

Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered.

  • May employers covered by the PDA refuse to provide coverage of prescription contraceptives if they have religious objections to doing so?

In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently ruled that the Patient Protection and Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. EEOC’s Enforcement Guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the RFRA or under the Constitution’s First Amendment.

Proof of Pregnancy Discrimination

  • How can a pregnant worker prove that an adverse action was the result of pregnancy discrimination under the PDA?

A PDA violation will be found if an employee’s pregnancy, childbirth, or related medical condition was a motivating factor in an adverse employment action. Evidence of discriminatory motive may include an explicit policy that treats pregnant workers less favorably; statements of decision-makers demonstrating pregnancy bias; close timing between an adverse action and a decision-maker’s knowledge of the employee’s pregnancy, childbirth, or related medical condition; and more favorable treatment of employees of either sex who are not affected by pregnancy but who are similar in their ability or inability to work.
Discrimination may also occur when a neutral policy or practice has a disparate (or disproportionate) impact on pregnant employees if an employer cannot show that the policy or practice is job related and consistent with business necessity. Examples may include policies that exclude all or substantially all pregnant employees from access to light duty or leave.

 

THE AMERICANS WITH DISABILITIES ACT

Covered Disabilities

  • Are pregnant employees covered under Title I of the ADA?

In some circumstances, employees with pregnancy-related impairments may be covered by the ADA. Although pregnancy itself is not an impairment within the meaning of the ADA and thus is not a disability, pregnant workers and job applicants are not excluded from the ADA’s protections. Changes to the definition of the term “disability” resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for individuals with pregnancy-related impairments to demonstrate that they have disabilities and are thus entitled to the ADA’s protection.

Pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. Major life activities that may be affected by pregnancy-related impairments include walking, standing, and lifting, as well as major bodily functions such as the musculoskeletal, neurological, cardiovascular, circulatory, endocrine, and reproductive functions. The term disability should be construed broadly, and the determination of whether someone has a disability should not demand extensive analysis. An impairment does not have to prevent, or severely or significantly restrict, performance of a major life activity to be considered substantially limiting, and impairments of short duration that are sufficiently limiting can be disabilities.

The ADA also covers pregnant workers who are regarded as having disabilities. An employer regards a pregnant worker as having a disability if it takes an adverse action against her (e.g., refuses to hire or terminates her) because of an actual or perceived pregnancy-related impairment, unless the employer can demonstrate that the impairment is transitory (lasting or expected to last for six months or less) and minor.

  • What are examples of pregnancy-related impairments that may be substantially limiting within the meaning of the ADA?

Examples of pregnancy-related impairments that may substantially limit major life activities include pelvic inflammation, which may substantially limit the ability to walk, or pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks. Impairments that may substantially limit reproductive functions include disorders of the uterus or cervix that may necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Pregnancy-related impairments that may substantially limit other major bodily functions include pregnancy-related sciatica limiting musculoskeletal functions; gestational diabetes limiting endocrine function; and preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.

  • When does an employer discriminate against a pregnant applicant or employee based on a record of a disability?

An employer discriminates against an applicant or employee on the basis of her record of a disability when it takes an adverse action against her because of a past substantially limiting impairment. For instance, an employer would violate the ADA by denying employment to a job applicant based on a history of gestational diabetes that resolved itself following the birth of her child three years earlier.

  • When does an employer regard someone who is pregnant as having a disability?

An employer regards a pregnant applicant or employee as having a disability if it takes a prohibited action because of an actual or perceived pregnancy-related impairment that is not both transitory (lasting or expected to last six months or less) and minor. For instance, if an employer makes an adverse employment decision such as involuntarily reassigning a pregnant employee to a lower paying, less physically demanding position because it believes that the employee is experiencing pregnancy-related “complications,” it regards the employee as having a disability. The employer would be liable for discrimination if the employee is able to do the essential functions of her job without posing a “direct threat” (i.e., a significant risk of substantial harm) to herself or others.

  • Does the ADA protect the parents of a newborn with a disability?

Yes. The ADA prohibits discrimination against individuals who have a known “association” with an individual with a disability. Thus, for example, an employer would violate the ADA by refusing to hire the mother or father of a newborn with a disability because it was concerned that the applicant would take a lot of time off to care for the child or that the child’s medical condition would impose high health care costs.

Pregnancy and Reasonable Accommodation

  • What is a reasonable accommodation?

A reasonable accommodation is a change in the workplace or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.

  • Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one?

Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense.

  • What are some accommodations a pregnant worker may need?

Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:

  • Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
  • Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
  • Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
  • Allowing a pregnant worker placed on bed rest to telework where feasible;
  • Granting leave in addition to what an employer would normally provide under a sick leave policy;
  • Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
  • Temporarily reassigning an employee to a light duty position.

THE FAMILY AND MEDICAL LEAVE ACT

  • Does the Family and Medical Leave Act (FMLA) provide additional protections for pregnant workers and parents?

Yes. Although Title VII does not require an employer to provide pregnancy-related or child care leave if it provides no leave for other temporary illness or family obligations, employers covered by the FMLA (those with 50 or more employees) must provide eligible employees with up to 12 weeks of leave in a 12-month period for the birth of a child and to care for a newborn child, for the placement with the employee of a child for adoption or foster care or to care for the newly placed child, for the employee’s own serious health condition, or for the employee to care for a spouse or child who has a serious health condition. Employees with such a need for family or medical leave are eligible if they worked for a covered employer for a year and for at least 1,250 hours during the immediately preceding year. The FMLA is enforced by the U.S. Department of Labor. For more information about the FMLA see http://www.dol.gov/whd.

A Win for Pregnant Workers at the Supreme Court

Peggy Young, a UPS driver who was forced from her when she got pregnant because the company wouldn’t allow her to work light duty, was victorious late last month at the U.S. Supreme Court. You can read the entire opinion here.

"Conservative" Supreme Court Justices John Roberts and Samuel Alito joined with the "liberal" justices on the Court in what most observers are characterizing as a big win, not just for pregnant women, but also for all women in the workplace. That is no small feat from a court that has in recent years narrowed interpretations of anti-discrimination law and been reluctant to impose any new burdens on businesses. 

The case had brought together an unusual alliance of women’s rights activists and anti-abortion groups, who argued that women shouldn’t have to choose between her pregnancy and her job.

The 6-3 opinion, written by Justice Stephen Breyer, sends the Young case back to the Fourth Circuit of Appeals, which had previously ruled against Young, with a new set of rules that should make Young’s chances of prevailing “very strong.” The Fourth Circuit, Breyer wrote, should have asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia dissented. Young argued that because UPS accommodated other kinds of workers, such as injured ones or drivers who had lost their Department of Transportation licenses, it was discriminatory not to extend the same to pregnant women who also temporarily needed to be accommodated. The court’s majority didn’t entirely accept that argument, but it did say that pregnant workers could bring claims under the long-settled "McDonnell Douglass process for adjudicating other discriminatory claims under Title VII of the Civil Rights Act.

Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have to “consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to work.”

UPS has reportedly already changed its policy to explicitly include accommodations for pregnant workers, but the rules laid out by the case will impact working women at companies around the country, since they guide lower courts in future litigation.  

EEOC Releases 2014 Statistics

The Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."

The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Supreme Court Issues Opinion in Young v. UPS Pregnancy Discrimination Case

The US Supreme Court has issued an opinion in Young v. United Parcel Service, Inc. - holding that employers must provide accomodations for pregnant employees to the same degree that they provide accommodations to other employees. The opinion is fresh off the press so I'll post a lengthier analysis after I get time to read and digest the full opinion.  

In the meantime, I've included the full text of the the Court's Syllabus (summary) of the decision and a copy of the full opinion can be downloaded here.


SUPREME COURT OF THE UNITED STATES

Syllabus

YOUNG v. UNITED PARCEL SERVICE, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12–1226. Argued December 3, 2014—Decided March 25, 2015

The Pregnancy Discrimination Act added new language to the defini­tions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “be­cause of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U. S. C §2000e(k). The Act’s second clause says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, re­quired drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed this federal lawsuit, claiming that UPS act­ed unlawfully in refusing to accommodate her pregnancy-related lift­ing restriction. She brought only a disparate-treatment claim of dis­crimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protect­ed characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792. Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. Id., at 802. If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treat-

 

2                       YOUNG v. UNITED PARCEL SERVICE, INC.

Syllabus

ment. Ibid. If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253.

After discovery, UPS sought summary judgment. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated work­ers who were injured on the job, had disabilities covered by the Amer­icans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.”

The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of dis­crimination under McDonnell Douglas. The court found that those with whom Young had compared herself—those falling within the on-the-job, DOT, or ADA categories—were too different to qualify as “similarly situated comparator[s].” The Fourth Circuit affirmed.

Held:

1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10–23.

(a) The parties’ interpretations of the Pregnancy Discrimination Act’s second clause are unpersuasive. Pp. 12–20.

(i) Young claims that as long as “an employer accommodates only a subset of workers with disabling conditions,” “pregnant work­ers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive ac­commodations.” Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irre­spective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the em­ployer must treat pregnant employees the “same” as “any other per-

 

Cite as: 575 U. S. ____ (2015)                                              3

Syllabus

sons” who are similar in their ability or inability to work, nor does it specify the particular “other persons” Congress had in mind as ap­propriate comparators for pregnant workers. Moreover, disparate-treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual rea­son for doing so. See, e.g., Burdine, supra, at 252–258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12–14.

(ii)  The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Op­portunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, “consistency,” and “thoroughness” of “consideration” nec­essary to “give it power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140. The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14–17.

(iii)UPS claims that the Act’s second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act’s second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key con­gressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gil­bert, 429 U. S. 125, which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit pay­ments for any absence due to pregnancy. Pp. 17–20.

(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not ac­commodate her, and that the employer did accommodate others “sim­ilar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it

 

4                       YOUNG v. UNITED PARCEL SERVICE, INC.

Syllabus

is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “le­gitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the bur­den imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while fail­ing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legiti­mate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.

2. Under this interpretation of the Act, the Fourth Circuit’s judg­ment must be vacated. Summary judgment is appropriate when there is “no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distin­guished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23–24.

707 F. 3d 437, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissent­ing opinion, in which KENNEDY and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion.


 

Non-Compete Agreements Are The New Black, Part 2

Last week I discussed the fact that non-compete agreements are becoming an ever-increasing threat to employees throughout the country. Recent statistical studies indicate that one in four workers have signed a non-compete in their lifetime and 12.3 percent all workers are bound by one right now. Those numbers might be even worse here in Texas, where non-compete agreements have become extremely enforceable in recent years.

So, given this state of affairs, what is an employee who is presented with non-compete do to protect himself or herself? Here are some thoughts on the subject:

  • Inquire About Non-Compete Agreements Before You Accept A Job

The time to talk to an employer about a non-compete agreement is BEFORE you take a job. Once you quit your current job, accept a new position, and possibly move your family to a new locale, your bargaining power as it relates to a non-compete agreement drops dramatically. Many employers wait until after you start working to bring you the proposed non-compete agreement for your signature. By then it may realistically be too late for you to refuse the agreement. 

During the interview process, you will be asked if you have any questions.  Most people say "no". You need to say "Yes. Will I be asked to enter into a non-compete agreement?" Get it out in the open early. The fact that one exists doesn't necessarily mean that you can't take the job. But by addressing it before you accept the position you will be able to review it and possibly seek modification of the terms to something that everyone can live with while you still have bargaining power with your prospective employer.

  • Don't Blindly Sign All Of That "New Employee" Paperwork

At the beginning of every new job, every employee is presented with many documents for their review and signature. Most employees don't really review them carefully. The HR officer handling the process seems to be in a hurry. As a new employee, you are eager to make a good impression. So you just flip through the documents and sign off on them. 

Let me be clear: Don't Do This. It is a very bad idea.

Take the time to actually read the documents that are put in front of you. These documents might be asking you to waive your right to a jury trial in the event of a wrongful termination. They might be indicate your agreement to draconian non-compete provisions. They are important. So, please read them carefully. If you have questions about what they mean then ask the person who is running the on board process what they mean. If you still have questions then respectfully ask for time to take them home and review them and bring them back. Will the busy HR rep be miffed?  Maybe. But who cares. This is your career and your family's welfare we are talking about here. NEVER sign anything you don't 100% understand and agree with. 

If you ignore this advice and them come to me after you get fired to try to help you get out of something you signed way back when, I won't be able to do near as much good as I could have before you signed the agreements.

  • Consult With An Employment Lawyer Before You Sign The Agreement

The time to consult an employment attorney about a non-compete agreement is before you sign it. Not after. I routinely am asked to represent employees regarding non-compete agreements and unfortunately 90% or more of these clients come to me after their employment has ended regarding a non-compete agreement they signed years ago without giving the matter enough thought. 

If you don't 100% understand what a proposed non-compete means, don't sign it. Call an employment lawyer and come in for a quick consultation.  Non-competes often are not a big deal given the situation but you need to know exactly what it means and just how enforceable it is before you lock yourself in.

  • When Possible, Negotiate As A Group

I recently handled a non-compete situation in which a company was purchased by a larger company and, following the purchase, all 30 employees in the local office were sent non-compete agreements and told (not asked) to sign them. Two of these employees came to see me and we quickly communicated to the rest of the 30 employees in the office. 

The non-compete agreement would have required employees to agree not to work in the industry for a full year if they quit or were fired for any reason. This is not an unusual restriction but can be very hard on an employee if they later leave or are let go by the company. 

The two employees didn't want to sign the agreement but were worried that if they didn't then they would likely be terminated. I told them they were likely correct about that. Fortunately we were able to get with the rest of the employees in the local office and the entire group decided as a unit that they would all refuse to sign the agreement. 

Guess what happened when all 30 employees in the local office refused the non-compete. That's right: the company backed off. 

There is strength in numbers. Use it. Even if you don't have a union at your workplace (and most employees in Texas unfortunately do not) there is nothing stopping you from discussing workplace terms and conditions and working together as a group. As Ben Franklin said, "[w]e must hang together or we shall surely hang separately."

  • Don't Be Afraid To Walk Away

Lastly, don't be afraid to refuse to take a job or to quit an existing job if the employer is demanding you sign an unfair and overly restrictive non-compete. Walking away from a job or potential job feels risky, I know. But believe me, signing an overly restrictive non-compete without adequate severance payment protection is even riskier. 

Non-Compete Agreements Are The New Black, Part 1

As employment lawyer Eric Meyer put it last week in his article on the subject, "orange non-competes are the new black." They are increasingly being used by employers everywhere against all types of employees - from "tech workers to sandwich makers." Recent statistical studies indicate that one in four workers have signed a non-compete in their lifetime and 12.3 percent all workers are bound by one right now.

These numbers will understandably vary widely from state to state and from industry to industry. From my own experience working with hundreds of Texas employees in non-compete cases, it would not surprise me if the numbers are even higher for Texas workers.

 

In his article, Meyer indicates his surprise that so many employees who are presented with a non-compete agreement simply sign it without protest. He was also surprised by the relatively small percentage of employees who try to argue with their employer about the issue.  The Washington Post article to which he refers notes the following:

“And overall, only about 10 percent of workers who’ve signed a non-compete ever try to argue over it, with most assuming that it’s either not negotiable or that doing so would cause tension with an employer.”

In my personal opinion, non-compete agreements are morally justifiable only in the most extreme cases -- situations in which employees truly will be given access to real trade secret information that would obviously cause serious harm to an employer if it got into the hands of a competitor (think secret recipe of eleven herbs and spices). This is a very small percentage of workers. And yet we see that more and more employees are being asked and are agreeing to sign such agreements and thereby damage their ability to work in their chosen field should they be fired or choose to leave their employer.  Why?

I think there are a few reasons for this phenomena:

  • An actual or perceived weak bargaining position. -- A majority of the time non-competes are presented at or just after the point of a job offer being made. Employees believe that if they want the job then they have no choice but to sign the agreement.
  • Employees don't realize what they are signing. -- Many times employers slip non-compete agreements in along with the 30 other documents that a new employee must sign on his or her first day. They then rush them through the process and absolutely do not encourage the new employee to actually take the time to read and consider the documents they are signing. I would estimate that 30%-40% of those who consult with me because they have been sued or threatened with a lawsuit relating to a non-compete state they were not even aware that they had signed such an agreement.
  • An incorrect belief that such agreements are not enforceable. -- The enforceability of non-compete agreements is largely a creature of statute and varies dramatically from state to state but here in Texas such agreements are, generally speaking, very enforceable. But this wasn't always the case. As big business interests have increased their stranglehold of Texas' legislature and its courts over the last 20 years, the law regarding non-competes has done nearly a full 180. Non-compete agreements - once considered to be not worth the paper they were written on - are now as good as gold. Yet people's perceptions of such agreements have been slow to catch up.

So, given this state of affairs, what should an employee who is presented with a non-compete do to protect himself or herself? I'll address this in a follow-up post next week.

Employment Litigation is Too Expensive

Sticker Shock

Sources I trust say that defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which much more often than not is the case), the employer can expect to spend a total of $175,000 to $250,000 in legal fees just to take a case to a trial. (Source) Obviously this will vary somewhat based on geography but, even adjusting for that issue, this is a crazy amount of money to spend defending your average employment discrimination case.  The average employment case settles out of court for about $40,000. (Source)

Simply put, defending employment lawsuits costs too much. Why on earth are companies paying $75,000 to $250,000 to defend cases that, on average, can be settled for $40,000?

The answer is...you guessed it...complicated. From my viewpoint as an attorney who has practiced on both sides of the docket for both individuals and large corporations, the cause of this strange phenomena involves the interplay of several factors, including modern American law firm business structure, client emotional issues, and the way the courts have developed their procedures for handling employment cases. 

 1) Defense Firm Structure and Billing Pressure

Any law firm that wants to advertise itself as "full service" to its business-side clients needs to have lawyers who can defend employment-related cases. So they do. The problem is that there simply aren't enough employment-related cases to keep this many lawyers legitimately busy. In my city there are probably 3-5 times as many employment defense lawyers as there are plaintiff's side employment lawyers. As a result, defense lawyers' dockets have far fewer cases than the average plaintiff lawyer's docket.

But even though they have fewer cases to manage and the average settlement value of their cases may be relatively low (as compared to the commercial litigation partner down the hall), they still face the relentless pressure to bill fees for the firm. This results in a natural motivation for defense lawyers to be extremely thorough in the defense of such cases. File discovery motion after discovery motion, subpoena the plaintiff's employment records from 10 years ago whether there is any realistic belief they will gather relevant information or not, file a motion for summary judgment in nearly every single case, etc. You get the idea.

Is there anything unethical about thoroughly developing a case file? No, of course not. Does it make sense to advise a client to spend three times more to fight a case than it could have been settled for the week it was filed?  Perhaps not.

 2) Emotions

Employment-related cases can be very emotional for both sides of the docket. When an employment lawsuit is filed against a company, the managers who are alleged to have acted wrongfully understandably take the allegations very personally. They feel personally and professionally threatened. They often lock into a "flight or fight" emotional state that makes it nearly impossible for them to use sound business judgment in dealing with the claim.

Strong emotions are something that employment lawyers on both sides of the docket have to deal with. Getting clients to get past their emotions and to make a "business decision" about their case based on the realities of the law, the court, and the potential outcome of a trial is something about which I often commiserate with opposing counsel.

But defendants have a potential advantage in this regard. Usually, the defendant is a corporate entity. This means that often the manager who is accused of wrongdoing can be removed and protected from the decision-making process when it comes to directing the course of the litigation and settlement negotiations. Surprisingly, however, many defendants leave the manager involved. Almost without exception this makes the process longer and more expensive for all involved.

3) The Law

The law in the area of employment-related disputes has developed quite differently than the law governing say, personal injury or commercial disputes. From its inception, employment law has taken a fairly straight forward question, "Was the plaintiff terminated because of ______?" and obscured it in layer after layer of complicated abstraction. A lengthy required pre-litigation administrative process, tricky jurisdictional issues, multi-step prima facie standards, shifting burdens of proof, and the improper treatment of many fact questions as something that can be decided by a judge as a matter of law have combined to make employment law one of the most complex areas in which to practice.

The overly-complicated nature of the law applicable to employment disputes greatly increases the time and money spent litigating issues that are, fundamentally, pretty straight forward and easy to understand. This has led to a practice of Defendants filing complex and lengthy motions for summary judgment in nearly every single case. If the motion is successful and the case is dismissed then the plaintiff will likely file an appeal - a process that adds another year's worth of work and expense to the case. If the motion for summary judgment fails then, typically, the case will settle. Note that the case may settle not necessarily because the defendant believes it would certainly lose at trial but because it simply can no longer justify spending more time and expense on a case that can settle for less than has already been spent. And often the case settles for at or near an amount that it could have been settled for before the motion for summary judgment was filed.

The law applicable to employment cases (and more specifically summary judgment practice in such cases) desperately needs to be reformed to curb the wasteful and abusive overuse of dispositive motions. Summary judgment was originally designed to only be available in cases in which there is truly no genuine question of fact to be determined by a jury. Instead they are abused an filed be defendants in nearly ever single case. Until this practice is reformed, both sides of the docket will spend more time and money than they should resolving employment-related disputes.

Is There a Solution?

The current system really isn't working terribly well for either plaintiffs or defendants. It doesn't serve anyone's interest to drag out these disputes for years and spend tens of thousands of dollars on attorney's fees and expenses when a very high percentage of such disputes could be resolved relatively early for far less money than most defendants end up paying in combined attorney's fees, expenses and settlement funds. I certainly don't claim to have all the answers but I do have a few thoughts from my time spent both as a plaintiff's lawyer and as a defense lawyer at a large international firm. I will discuss these ideas in an upcoming post. (And in case you were wondering -- No, binding arbitration is not the answer. It is actually more expensive and time consuming than litigation.)

 

 

What is a "Right to Work" law?

In meeting with employees, I often am asked about so-called "Right to Work" laws. What are they? When do they apply? Is it the same as "Employment at Will"? Here's the answer:

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

"Right to Work" is a concept that has to do with union membership. A "right-to-work" law is a state statute that prohibits union security agreements, or agreements between labor unions and employers. Generally speaking, they forbid union "closed shops". A closed shop is one in which union membership is required for employment if your job is covered by an existing collective bargaining agreement between the employer and employee. In a right to work state, a union can be elected to represent the workers but the workers cannot be required to join the union or pay union dues.

The sounds pretty good to many employees at first and right-to-work laws have gained some traction as a result. Right-to-work laws exist in 24 U.S. states, mostly in the southern and western United States, but also including, as of 2012, the midwestern states of Michigan and Indiana. The downside of such laws is that they dramatically weaken unions buy effectively starving them of the funds they need to operate and organize. As a result, union membership in right to work states has dropped dramatically. Lower union membership in these states has led to a drop in workers's wages and severe damage to job protections for workers in those states.

Not surprisingly, right-to-work laws have been strongly championed by anti-worker political action groups, such as U.S. Chamber of Commerce. Such groups have spent millions on running misleading advertising and purchasing politicians who will support their efforts to curtail workers' rights and suppress wages.

Read more...

What is "Employment At Will"?

In meeting with employees, I often am asked about "Employment at Will". What does it mean? When does it apply? Is it the same as "Right to Work"? Here's the answer:

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

"Employment at Will" means that an employee can be terminated at any time, for any reason or for no reason at all. If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination. If you are employed "at will", your employer does not need good cause to fire you. In every state but Montana (at last check), employers are free to adopt at-will employment policies, and virtually all do. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

Even "at will" employees, however, cannot be terminated for an illegal reason.

Read more...

 

 

Preparing for Your Initial Consultation with an Employment Lawyer

Yesterday we discussed some basic tips to help you search for an employment attorney for your case.  So now you have an initial consultation set up with a lawyer who has been recommended to you by a trusted source or who you have found from doing your own research. How do you make sure you make the most of this initial meeting?

In a word: Preparation.

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm’s docket.

Here are some important tips to keep in mind as you prepare for the meeting:

  • Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don’t expect the attorney to be your copy service and don’t leave your originals with the attorney.
  • Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple “Date — Fact” format will work fine in most cases. If at all possible it should be typed and not hand-written.
  • Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney’s time literally is their money. Don’t waste it.
  • Pay the requested consultation fee on time or have it ready when you walk in the door — If the matter is not important enough for a consultation fee then don’t make the appointment to begin with. But if you do make the appointment, don’t put the lawyer in the position of trying to collect a fee from you at your first meeting. It’s not the way to get off to a good start.
  • Dress appropriately — How you dress communicates the level of seriousness you give the issue. You don't have to wear a suit. But showing up in a dirty T-shirt and flip-flops won't help convince the attorney that you are serious about your case. During the meeting the attorney is considering what a jury will think and whether they will take your testimony seriously. How you present yourself plays into this analysis.
  • Don’t bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer’s office, don’t expect them or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Dealing with this issue at the time of the meeting uses up valuable meeting time while the lawyer tries to assess whether they should be allowed into the meeting or not. Also, keep in mind that the lawyer wants to hear YOUR story and is less interested in your husband/wife, girlfriend/boyfriend or mother’s version of the story.
  • Don’t bring children — I love children. But they should not be brought to your attorney consultation. They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you.

Following these steps should help you have a productive initial consultation and hopefully find a qualified attorney to handle your employment-related legal matter.

How to Hire An Employment Lawyer

So you need to hire an employment lawyer but you don’t know how to get started? This article is for you.

Hiring a lawyer to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren’t hundreds of employment lawyers running TV advertisements in an attempt to get you to “Call now!” Quite the opposite is true in fact.

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are Board Certified to represent employees in employment-related disputes. The few who are qualified and have the years’ of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls.

To get you started, I've prepared a handy guide outlining some of the basic steps you need to take.

Step 1 - Do A Little Research Online. 

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Many good employment lawyers will have a website and/or a blog that will provide you with a lot of quality information about employment law issues. Take a look at what practice areas in which the lawyer claims he or she practices. You don’t want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues. You could also search legal directory avvo.com to help you find local lawyers who represent employees. It isn’t a perfect system but it will give you a good list to start your research.

Step 2 - Check For Board Certification

Lawyers are not required to be Board Certified in employment law to practice it in Texas. Some states don’t even provide for board certifications. But in Texas, the State Bar of Texas does provide Board Certification to those lawyers who practice employment law for a sufficient period of time, provide recommendations from lawyers and judges who they have practiced with and who pass a lengthy examination process. You can learn more about Board Certification here.

Step 3 - Expect To Fill Out A Questionnaire And Pay A Fee For A Consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. Some attorneys use short electronic forms as an initial screening tool for the many potential client contacts they receive each day. Sometimes, the form indicates a simple question for which a quick answer can be provided. Other times, the type of case being described would be better handled by another lawyer who specializes in that specific niche — you can usually get that referral set up at no cost. Then, if the form indicates an issue on which a lawyer believes he or she can provide meaningful assistance, a full, in-person consultation can be scheduled.

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 - Prepare For Your Consultation

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Tomorrow I will post an article discussing the initial consultation in more detail, including tips on what to bring and how to prepare for this important meeting.

Pregnancy Discrimination at the Supreme Court - Oral Argument in Young v. UPS

While it has been illegal to discriminate against pregnant workers for many years, this fact has been little help to many women who have been denied accommodation of their pregnancy by their employer. That's right, there has never been a clear decision from the Supreme Court on the issue of whether the Pregnancy Discrimination Act actually requires companies to provide reasonable accommodations to an employee based solely on her pregnancy. Many employers, including UPS, have refused women any help or accommodation due to pregnancy. Last week the Supreme Court finally heard argument on the issue.

Oral argument was held December 3, 2014.  The Pregnancy Discrimination Act ("PDA") provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. §2000e(k). In this case the Court will decide 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."  Below the district court and Fourth Circuit ruled in favor UPS.

Facts of the Case

Peggy Young was employed as a delivery driver for the United Parcel Service (UPS). In 2006, she requested a leave of absence in order to undergo in vitro fertilization. The procedure was successful and Young became pregnant. During her pregnancy, Young’s medical practitioners advised her to not lift more than twenty pounds while working. UPS’s employee policy requires their employees to be able to lift up to seventy pounds. Due to Young’s inability to fulfill this work requirement, as well as the fact that she had used all her available family/medical leave, UPS forced Young to take an extended, unpaid leave of absence. During this time she eventually lost her medical coverage. Young gave birth in April 2007 and resumed working at UPS thereafter.

Young sued UPS and claimed she had been the victim of gender- and disability-based discrimination under the Americans with Disabilities Act and the Pregnancy Discrimination Act. UPS moved for summary judgment and argued that Young could not show that UPS’s decision was based on her pregnancy or that she was treated differently than a similarly situated co-worker. Furthermore, UPS argued it had no obligation to offer Young accommodations under the Americans with Disabilities Act because Young’s pregnancy did not constitute a disability. The district court dismissed Young’s claim. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Playing Field Changes while Case is Pending

While this case has been ongoing, the U.S. Equal Employment Opportunity Commission (EEOC) issued new pregnancy accommodation guidelines stating that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities and a growing number of states have passed laws mandating reasonable accommodations of pregnant workers.

Predictions

Most legal commentators (including this one) appear to believe the court should find in favor of pregnant employees in this case and require employers to provide reasonable accommodations to pregnant employees. The question then becomes a case-by-case analysis on the nature and degree of accommodation required. This is a similar analysis to what is required in other accommodation-related cases.

Related Links:

Link to Supreme Court Oral Argument in Case

 

 

 

 

 

 

Wage Theft Costs American Workers as Much as $50 Billion a Year

Wage theft is a nationwide epidemic that costs American workers as much as $50 billion a year, a new Economic Policy Institute report finds. In An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year, EPI Vice President Ross Eisenbrey and EPI intern Brady Meixell examine incidences of wage theft—employers’ failure to pay workers money they are legally entitled to—across the country. The total amount of money recovered for the victims of wage theft who retained private lawyers or complained to federal or state agencies was at least $933 million in 2012, almost three times greater than all the money stolen in robberies that year. However, since most victims never report wage theft and never sue, the real cost of wage theft to workers is much greater, and could be closer to $50 billion a year.

“Wage theft affects far more people than more well-known crimes such as bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined, and can be absolutely devastating for workers living from paycheck to paycheck,” said Eisenbrey. “For low-wage workers, the wages lost from wage theft can total nearly 10 percent of their annual earnings.”

The authors also conducted a study of workers in low-wage industries in New York, Chicago, and Los Angeles and found that in any given week, two-thirds experienced at least one pay-related violation.  They estimate that the average loss per worker over the course of a year was $2,634, out of total earnings of $17,616. The total annual wage theft from front-line workers in low-wage industries in the three cities approached $3 billion. If these findings are generalizable to the rest of the U.S. low-wage workforce of 30 million, wage theft is costing workers more than $50 billion a year.

Read More:

Click here for a copy of the entire report.

Theoretically related posts:

Courts Make it More Difficult for Employees to Pursue Tip Theft by Employers

Wal-Mart Sued for Wage Theft

“Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means - From Daniel Schwartz's always excellent Connecticut Employment Law Blog

Wage Theft and Misclassification Report - Contains state by state grades.

 

Bad Bosses - You ARE the Weakest Link!

Robin Shea posted a great article yesterday titled “Weakest link” is no way to run your workplace. In it she discusses the problems related to bosses who like to stir the pot and keep employees feeling distrustful and uncertain. Not surprisingly, she thinks its a bad idea. She writes:

Manufactured workplace rivalry can cause morale to plummet and teamwork to become nonexistent. Which in turn results in high turnover, including the loss a lot of people you probably didn’t think were “weak links.”

From a legal standpoint, a hyper-competitive workplace environment dramatically increases the odds that the employer will become a defendant in a lawsuit, the subject of an EEOC charge or other administrative complaint, or the target of a union organizing campaign. It can also result in increased rates of workers’ comp and disability-related claims because employees are too stressed out to be able to face Lord of the Flies each day.

As someone who talks to 5-10 unhappy current or former employees a week, I can tell you that this is a big, big problem in the American workplace that is commonly overlooked by corporate HR departments. Too many HR departments seem to have a type of tunnel vision centered around whether they can determine if bad behavior is illegal or not. They miss the point.

If you have a boss who is so bad that your employees are seeking advices from a lawyer, you have a big problem - regardless of whether I end up telling them the issue is legally actionable or not.

Read Robin's excellent article here.

$185 Million Dollar Verdict Against AutoZone in Pregnancy Discrimination Case

A federal jury in San Diego has rendered a verdict against AutoZone for $872,000 in compensatory damages and $185 million in punitive damages after determining that AutoZone retaliated against against a manager for being pregnant, eventually resulting in her demotion and later termination.

According to the lawsuit, the philosophy was summed up by the vice president for western operations during a visit to a store staffed by a female manager and other women. He allegedly took the district manager aside and said: “What are we running here, a boutique? Get rid of these women,” the lawsuit states.

U-T San Diego reported the verdict.  The newspaper says it is believed to be one of the largest employment law verdicts for an individual in U.S. history.

AutoZone is an auto-parts retailer that operates about 4,000 stores across the U.S. and abroad.

Readers should keep in mind that a "verdict" is not the same as a "judgment". The verdict will likely be significantly reduced by the court's application of applicable statutory caps on damages. Even so the verdict is large enough that an appeal by the company is a virtual certainly.

Read more: U-T San Diego

 

 

Flexible Working Arrangements Aren't Just for Women

For years, conventional wisdom held that women far more than men took advantage of flexible working arrangements to balance work/life responsibilities. Now comes a new study revealing that male employees feel equally empowered to use programs that allow flexibility in how, when and where work happens.

The Working Mother Research Institute found that 77% of men have some degree of flexibility in their work schedules, and that 79% of those men feel comfortable using flex benefits.

The study, titled “How Men Flex: The Working Mother Report,” found that 59% of working dads would choose part-time work if they could still have a meaningful career. However, 36% of them believe their organization’s leaders would look down on men making that choice.

A different study, by the Society for Human Resource Management, found that about half of U.S. employers formally offer part-time and reduced-hours schedules. Flex-time—in which employees can vary their schedules as long as they’re at their workstations during core hours—is an option for 54% of employees. Telecommuting is available in 39% of organizations.

Click through to read the entire article.

 

 

Ebola in the Workplace Followup

The news about Ebola and its effect on the workplace continues. Employers are struggling to understand the potential workplace implications of the disease and how to deal with employees who may have been exposed or who are reluctant to travel to parts of the world that might expose them to Ebola.  I've posted on the topic here:

Some of my fellow law bloggers have been busy covering the situation:

 

Developing.

EEOC is Challenging Some Corporate Wellness Programs as Violating the ADA

Marc Herman, writing for the Connecticut Employment Law Blog:

"94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs....'The EEOC contends that the biometric testing and health risk assessment [in some wellness programs] constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.'"

Remember, voluntary medical examinations as a part of a wellness program are fine. But if employees are penalized for not participating in the medical examinations, they are likely to be found to be involuntary.

Read Herman's entire article here.

 

Video Interview: Discussing Ebola-Related Terminations with LXBN TV

Following up on my recent post on the subject, I had the opportunity to speak with Colin O'Keefe of LXBN on employees being terminated over Ebola. In the brief video interview, I share what I've been hearing on these firings and offer a bit of guidance to employers and employees on dealing with Ebola concerns.


Fired Over Fears of Ebola: What you need to know.

Well, it has happened already. My firm is getting calls from employees who have been terminated or fear termination because their employers are afraid they may have contracted Ebola during recent trips to the African continent.

I was interviewed this week on WOAI-TV regarding this issue. Here's the video:

I think the most important points to take away on this issue are these:

  • Employers should keep in the mind that the chances one of their employees actually has Ebola is incredibly low. Don't make decisions based on fear and ignorance.
  • Employers should keep in mind that if an employee actually does have Ebola, that employee is likely protected from discharge by the Americans with Disabilities act. Employers have a duty to accommodate conditions such as this. In the case of Ebola, a short leave of absence is the obvious accommodation of choice. Whatever an employer does, it should be done thoughtfully and with the assistance of competent employment law counsel.
  • Employees should understand that people's fears of Ebola right now are disproportionately high and in some cases completely irrational. If you suspect that your employer is afraid you may have contracted the disease because you recently traveled to Africa or were near someone who did, open a dialogue with your employer. Employers are forbidden under the ADA from asking you about your health without solid evidence that you have contracted the disease but employees have no such restriction. Let cool heads and dialogue be the rule, not the exception.

In the case of Ebola, let's not let fear of the disease become more of a problem than the disease itself.