Category Archives: Discrimination

Sexual Harassment for all Ages

Discrimination, Termination,

Texas courts have considered sexual harassment at both ends of the age spectrum lately. One case involved a teenager as a victim and the other involved a 62-year old harasser who claimed age discrimination when he was fired. Both cases have lessons to teach employers about sexual harassment, still one of the most common employment claims that companies face.

The case involving the teenager was tried in Houston last year. The EEOC filed the case on behalf of a 19-year-old who was hit upon by the owner of the dry cleaners in which she worked. The evidence showed that the owner inappropriately touched his young female employee, made many offensive comments, and held her against his will in her car while he graphically related his sexual desires and threatened her with sex against her will. The jury found that the owner had harassed the employee and awarded her $105,000.

A couple of things need to be learned from this case: Continue reading Sexual Harassment for all Ages →

Ledbetter Fair Pay Act Is Now Law

Compensation, Discrimination

As predicted in this blog and by most employment law pundits, President Obama is expected today to sign bill favoring employees as his first piece of major legislation. The Lilly Ledbetter Fair Pay Act overturns a U.S. Supreme Court decision from 2007, which restricted the statute of limitations on Equal Pay Act claims.

Lilly Ledbetter worked for Goodyear Tire & Rubber Co for 19 years before she found out that she was the lowest paid supervisor there, even though she had more experience than some of her male counterparts. She sued for pay discrimination based on gender, and the jury agreed with her. But the case was appealed all the way to the Supreme Court, which decided that the 180-day statute of limitations for complaining about discrimination had run out when 19 years before, when the pay inequity first occurred, regardless of when she found out.

The new law, which will go into effect tomorrow, clarifies that each new paycheck is a discriminatory act that starts the 180-day clock running again if an employee is being paid less because of her gender, race, age, disability, or national origin. An employee can now claim discrimination on the basis of pay when he discovers the inequity and seek two years of back pay for the amount he should have been paid.

What can you do as an employer to prevent an Equal Pay Act suit? Senator Barbara Mikulski, who sponsored the bill, had a point: “If you don’t want to be sued, don’t discriminate,” she said.

The Equal Pay Act has been around since 1963, enacted even before Title VII of the Civil Rights Act of 1964 outlawed other types of discrimination. It has helped women go from earning $.62 for every dollar a man earned for the same job to earning $.80 for his dollar. But there is still obviously some subtle discrimination or women and men would both earn the same amount for performing the same job. Since the law has been around since most of us who are business owners and managers were in elementary school or even diapers, maybe it is time that we learned to comply with it.

How do you do that? Look at what every employee performing the same job is earning. For example, if you have five engineers working for you, pull out your payroll and figure out if you really could justify their salary discrepancies and the demographics. If Engineer Bill has 30 years experience and Engineer Tiffany has 10, that is a pretty convincing justification for Tiffany making less than Bill. But if they both have about 10 years of experience and he is still paid more, you may have some explaining to do. He may actually perform much better than Tiffany, but you better have lots of paper to back that theory up.

I know this evaluation will take some time ( probably a day) and will be a PITA (as my teenage son says). But as I always say, you can either spend a day now to prevent a suit, or spend weeks or months in investigations, discovery, depositions, mediations and trial with a disgruntled employee, her lawyer and me later.

Bush’s Employment Law Legacy

Compensation, Discrimination, Documentation

Since this is the last day of President George W. Bush’s presidency, I thought it appropriate to look back and see what employment laws have been passed while he has been in office. While generally considered lax on enforcement of employment laws (except with regard to employing illegal immigrants), there have been several sweeping changes that affected the employee/employer relationship in the last eight years.

The Americans with Disabilities Act was amended drastically in 2008. I have written extensively about the amendments on this blog, which you can read by clicking here. Surprisingly for an administration that was considered pro-business, these amendments that Bush signed were very favorable to employees and could mean a substantial increase in the number of lawsuits against companies for alleged disability discrimination.

The Family and Medical Leave Act was also amended to expand the act to cover military families, not only when a servicemember is wounded and needs care, but also to allow family members to take 12 weeks off whenever a servicemember is called up. In addition to this law, signed by Pres. Bush in January 2008, his Department of Labor finalized substantial changes to the regulations affecting the FMLA. Most of the changes were applauded by businesses for making the complicated FMLA easier to administer.

Pres. Bush signed legislation requiring Incremental increases to the minimum wage, which increased to $5.85 in the summer of 2007, $6.55 in July 2008, and will be finalized at $7.25 on July 24, 2009. Traditionally, businesses have protested minimum wage increases, saying that the economic impact on small businesses is too great to be passed on and negatively drags down profits. I have seen no study linking the current economic crisis to the minimum wage increases that began in the summer of 2007, but the timing of the increases and the economy going into the toilet is worth considering. Continue reading Bush’s Employment Law Legacy →

Brief Updates

Attendence, Compensation, Discrimination, Hiring,

The Department of Labor has released new notification forms to be used with Family and Medical Leave. If you have more than 50 employees (names on the payroll, whether full or part time), you should have an FMLA policy in your handbook and the FMLA poster on your employee bulletin board. Once an employee has requested any absence from work that might qualify as family or medical leave, then it is up to the employer to notify the employee of the employee’s eligibility for federally mandated family and medical leave, to ask for medical certification of the condition necessitating the leave and to make a final determination of eligibility. Also the employer must provide leave to military families under certain circumstances. The necessary forms to use for all of these determinations are available on the Department of Labor’s website, which you can access by clicking here.

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The wage discrimination laws that I discussed in my January 6 blog post were unsurprisingly passed by the U. S. House of Representatives last week. If they clear the Senate, you can be assured that President Obama will promptly sign them. As I stated in that post, you can get ready for this law by deleting any policy still in your employee manual that prohibits employees from discussing their salaries. You can also review the salaries of any employees performing the same jobs and make sure that you have a rock-solid (meaning something in writing from the time the salary was determined) explanation relating to tenure or extra educational or licensing qualifications to explain why a male employee is making more than a female employee.

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The Texas Legislature started its biennial circus last week in Austin. Once the drama of the Texas Speaker’s race subsided, it was time to look at the proposed legislation that could affect employers. Some of the ones I will be watching include a bill to require all employers to pay an employee her regular wages while she serves on jury duty, lots of bills penalizing employers who don’t carry worker’s compensation insurance, and family leave bills to allow parents time off to attend school activities involving their children. If any of these or other employment-related bills pass during this legislative session, I’ll keep you posted.

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Somehow, the last tidbit on giving time off to parents for school activities reminded me of this joke about an employer’s reply to an employee’s request for time off:

“So you want a day off? Let’s take a look at what you are asking for!

There are 365 days this year.

There are 52 weeks per year in which you already have 2 days off per week, leaving 261 days available for work.

Since you spend 16 hours each day away from work, you have used up 170 days, leaving only 91 days available.

You spend 30 minutes each day on coffee break. That accounts for 23 days each year, leaving only 68 days available.

With a one hour lunch period each day, you have used up another 46 days, leaving only 22 days available for work.

You normally spend 2 days per year on sick leave. This leaves you only 20 days available for work.

We are off for 5 holidays per year, so your available working time is down to 15 days.

We generously give you 14 days vacation per year which leaves only one day available for work and I’ll be damned if you’re going to take that day off!”

Understanding Changes in Disability Discrimination Law

Discrimination, Hiring, Training

2009 is going to be remembered as the year that the Americans with Disabilities Act (“ADA”) became the full employment act for employees’ lawyers. That’s because dramatic changes to the ADA went into effect on January 1, 2009. No longer can an employer assume that the ADA is an concern only if an applicant shows up in a wheelchair or with a seeing eye dog. The ADA now will significantly affect every workplace (except those small businesses with less than 15 employees) and employers need to be educated and ready to respond appropriately.

Briefly, the ADA protects mentally or physically impaired individuals who are qualified to perform a job from discrimination because of their disability. Sounds good, and it is. But for employers, the devil is in the details. The ADA Amendments Act (“ADAAA”) passed last year by the 110th Congress expanded the definition of disability in a way that I believe makes virtually every Baby Boomer a potential plaintiff in a disability discrimination lawsuit. Why? Because most of us born between 1946 and 1964 are starting to feel some of the aches and pains of middle age and that is about all that is required to claim a disability under the ADA. In addition to the 70 million Baby Boomers in the workforce, there are many younger workers who are also physically or mentally disabled.

You are disabled under the ADAAA if you have an impairment that substantially limits one or more major life activities.  “Major life activities” now include walking, seeing, hearing, and breathing, as you would expect, but also sleeping, bending, learning, reading, concentrating, thinking, communicating and working. The term also includes the operation of any major bodily function, such as respiratory and circulatory, as you would expect, but also, reproductive, digestive, and immune system.

If an employee is disabled or even regarded as disabled because of past problems (such as drug addiction that is now under control), you as an employer must provide reasonable accommodation of that employee’s disability if necessary to allow the employee to perform the essential functions of his/her job. Some employment lawyers believe that the “regarded as” component could mean that any employee who ever had a serious medical condition will always be regarded as disabled and protected by the ADA, even if the disease is now in remission.

You can expect to deal with the ADA when an infertile female employee wants to take time off as an accommodation so that she can receive fertility treatments. An employee who needs a 25-inch computer monitor because his poor vision makes it hard for him to read even with his eyeglasses may now need to be accommodated. An employee who is bi-polar may be able to request moving away from an annoying coworker if she says the coworker is a depression trigger. The fact that the employee could take mitigating measures to fix or control the problem, such as taking her medications to prevent depressive episodes, can no longer be considered to determine whether the employee is actually disabled.

What can you as an employer do to keep your company out of legal hot water with the ADA? Continue reading Understanding Changes in Disability Discrimination Law →

Lessons from NASCAR’s Discrimination Suit

Discrimination, Management

Six years ago, I had never watched a NASCAR race and would have laughed if you had suggested I ever would. Aaahhh, what love will do to an otherwise rational person! Enter Rohn Butterfield into my life, and I can now tell you that there are 36 races in a season, the Daytona 500 (the start of the season) will be run in February, Jimmy Johnson has won the last three Chases for the Sprint Cup (boo!) and back-flipping Carl Edwards is “my boy”. Okay, I’m apparently an over-educated redneck.

While watching 43 cars go round and round a two-mile track for three hours can get boring at times (even if they are going 200 miles per hour), one of the things that keeps me interested is the fascinating business side of NASCAR. The NASCAR sanctioning body that puts on and officiates the races is privately owned by the France family, yet there are more corporate sponsorship dollars flowing into NASCAR than any other sport (hence the cars and drivers covered in decals). If you ever go to a race, you will marvel that the track is completely ringed by semis filled with NASCAR and driver merchandise.  NASCAR has 75 million fans who purchase over $3 billion in licensed products annually.

So NASCAR is big business. And like any business, it is subject to employee lawsuits. NASCAR just settled the latest claim for a confidential amount with no admission of any liability. The suit alleged that Mauricia Grant, who worked as a technical inspector certifying cars in the Nationwide Series, was subject to racial discrimination and sexual harassment.

NASCAR claimed in its response to the suit that it had a zero tolerance policy against discrimination and harassment in the workplace, that Grant had received and acknowledged that policy, that NASCAR had provided mandatory training annually on these subjects, a training that Grant had attended, and that NASCAR’s policy required Grant to immediately report any violations of its policies but she had failed to do so. In addition, NASCAR claimed that it conducted its own investigation when Grant’s allegations became known and had fired two officials accused of exposing themselves to Grant.

Grant said she was fired for reporting her complaint, which, if true, would be illegal retaliation. NASCAR, however, said Grant was fired for an altercation with a track security guard who asked to see her credentials. Ultimately, because the case was settled confidentially, we won’t know what really happened. But there are still lessons here that any business owner should learn from NASCAR’s experience. Ask yourself these questions to determine if you are protected should similar allegations be made against your company: Continue reading Lessons from NASCAR’s Discrimination Suit →

Smoking as a Hiring Disqualification

Discrimination, Hiring,

The latest employment controversy in Amarillo is Baptist St. Anthony hospital’s new policy of refusing to hire new employees whose pre-employment drug test shows the presence of nicotine. BSA is straightforward about its refusal to hire any new smokers for its non-smoking campus, in part because its sole mission is healthcare. Click here to read the original story from the Amarillo Globe-News. From the number of comments this story has generated on the Globe-News website, the KVII website and the letters to the editor it appears that many people have strong opinions on this subject, many believing that BSA’s policy is discriminatory.

The advantages of the policy for BSA are obvious: adherence to its mission of promoting health, improved morale of persons bothered by the smell of smoke, less absenteeism and eventually decreased health insurance premiums and claims. While the policy may also shrink the pool of qualified job applicants, I would bet that in the current economic crisis BSA is not too concerned about that problem.

But can BSA legally enforce this policy? In the Globe-News story, I was quoted as saying that there is no federal or state discrimination law that is violated by BSA’s new policy. I stand by that quote. Jeff Blackburn, another local attorney who tends to take the employee’s side of things, apparently disagrees with me and says that it is a violation of a person’s civil rights to deny a smoker employment. Click here for his comments on KVII TV’s website. I don’t know of any Texas or federal law that supports Jeff’s argument, so Jeff and I will just have to agree to disagree on this point. It might be different if smoking were like race or age, a protected characteristic that you can’t change and which should not put you at an employment disadvantage. However, smoking is a choice, and one of the consequences of that choice now will be that you cannot be hired at BSA.

Other states handle this issue differently.

According to the National Workrights Institute, 30 states and the District of Columbia currently have some form of smokers’ rights laws on the books. These so-called “lifestyle antidiscrimination” laws protect employees and applicants from discipline or other adverse employment actions either specifically because they smoke or generally because the persons use a lawful product, such as tobacco, outside of work.

Legal Trends: Smelling Smoke, HR Magazine (December 2006).

Since there is no lifestyle antidiscrimination law on the books in Texas and since Texas courts generally uphold the “at will” employment rights of businesses to fire someone for good reason, bad reason or no reason at all, I think Texas courts would support BSA on this one. Texas employers, in my opinion, are free to screen for nicotine just like any other drug at the pre-employment stage and free to refuse to hire anyone who fails that drug test.

I am interested in your opinion on this matter, so feel free to click the word “comment” below and tell me what you think.

Preparing for Possible Changes in Employment Laws

Discrimination, Personnel Policies

The elections are over and it is clear that with the Democrats in charge of the White House and Congress, things are going to change. Whether you celebrate or mourn that fact, if you are a business owner or manager, you need to prepare your business for some of those changes.

There are a number of laws affecting employers that have a good chance of passing after the new government takes office in January. These include:

  • The Employment Nondiscrimination Act, which would amend Title VII to add sexual orientation as a protected class, much like religion, age, national origin, race, disability and gender. President-Elect Obama’s transition team has already added sexual orientation as a protected class in their hiring, along with gender identity.
  • The Fair Pay Act, which will negate a 2007 U.S. Supreme Court decision that substantially crippled the filing of any Equal Pay Act claims by imposing a draconian statute of limitations. The Fair Pay Act would again ensure that women are paid the same rate as a man for performing a job that requires the same skill, effort, responsibility and working conditions.
  • The Healthy Families Act, which will require employers with 15 or more names on the payroll to provide full-time employees with 7 or more days of paid sick leave per year. This would be the first paid leave ever required of employers by the federal government. Obama and Vice-President-Elect Joe Biden cosponsored this bill while they were in the Senate, so passage of this act or a similar one is likely.
  • The Equal Remedies Act and Civil Rights Act, which could remove the current caps on damages in discrimination cases and prohibit the employer from making the employee agree to arbitrate these claims before the dispute arises.
  • The Employee Misclassification Prevention Act, which would raise the penalties for employers who call their employees “contract labor” or “independent contractors” to avoid paying taxes and benefits on their workers.
  • The Occupational Safety and Health Administration is expected begin enforcing ergonomic regulations that were written during the Clinton years. These regulations would affect white-collar workplaces that have seldom had OSHA on their radars at all.

Many other laws affecting employers are expected to be introduced and passed while the Democrats are in power for at least the next two years. That information should light a fire under you to audit your employment practices now to make sure that they are currently compliant and as forward-thinking as possible.

For example, take a look at your pay policies. Are women in your workplace paid less than similarly qualified men? Do you pay anyone on a “contract labor” basis?

Do you shy away from hiring anyone that “seems gay”? Do you fire in haste or anger without clearly documenting all of the nondiscriminatory reasons? Do you rely on an arbitration agreement that you force all of your employees to sign and think that agreement will protect you from a runaway jury?

If you answered any of these questions “yes” or if you suspect any of your other employment practices may be questionable, this is the time to have someone knowledgeable about employment law conduct an audit of your practices and policies to correct the mistakes you are making now and to prepare for the changes to come.

Managing Those Pesky Females (Yesterday)

Discrimination

The following is an excerpt from the July 1943 issue of Mass Transportation Magazine. This was written for male supervisors of women joining the work force during World War II. My best friend Christi Key sent this to me. Snopes.com says it is authentic and has posted the original magazine in a pdf format to compare.

Eleven Tips on Getting More Efficiency Out of Women Employees: There’s no longer any question whether transit companies should hire women for jobs formerly held by men. The draft and manpower shortage has settled that point. The important things now are to select the most efficient women available and how to use them to the best advantage.

Here are eleven helpful tips on the subject from Western Properties:

1. Pick young married women. They usually have more of a sense of responsibility than their unmarried sisters, they’re less likely to be flirtatious, they need the work or they wouldn’t be doing it, they still have the pep and interest to work hard and to deal with the public efficiently.

2. When you have to use older women, try to get ones who have worked outside the home at some time in their lives. Older women who have never contacted the public have a hard time adapting themselves and are inclined to be cantankerous and fussy. It’s always well to impress upon older women the importance of friendliness and courtesy.

3. General experience indicates that “husky” girls – those who are just a little on the heavy side – are more even tempered and efficient than their underweight sisters. Continue reading Managing Those Pesky Females (Yesterday) →

Employees Who Lie

Discrimination, Documentation, Termination,

Have you ever discovered that an employee lied about something important at work? For example, what would you do if an employee called in sick on two scheduled workdays and then you found out she had really been in Las Vegas during her sick leave?

The Third U.S. Circuit Court of Appeals ruled that a city’s discharge of a worker for dishonesty about her sick leave was a valid reason for discharge even though she produced a doctor’s note confirming her illness. Hughes v. City of Bethlehem (October 2, 2008). The city suspended her without pay while they investigated her sick leave excuse and confirmed her little gambling jaunt. Since the investigation confirmed the employer’s suspicions of dishonesty, the city terminated her job.

She, of course, sued for everything but the kitchen sink, including gender discrimination, disability discrimination, unlawful retaliation for seeking accommodation under the Americans with Disabilities Act, violation of Family and Medical Leave, and deprivation of procedural due process, since she was employed by a governmental agency.

Fortunately, the Third Circuit was able to see through all the allegations to the main point: Continue reading Employees Who Lie →