Category: Legal

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Avoiding Pregnancy Discrimination in the Workplace

pregnant employee

News broke in early 2018 that Walmart was facing a potential class-action lawsuit in New York for allegations of pregnancy discrimination.Pregnancy Discrimination in the Workplace

This lawsuit is one of several nationwide that claim that some of the nation’s largest businesses are systematically punishing pregnant employees with discriminatory policies.

Employers are facing increased exposure and liability for pregnancy discrimination in the workplace claims. The number of pregnancy discrimination claims filed annually with the Equal Employment Opportunity Commission has been steadily rising for two decades and is hovering near an all-time high. In 2017, more than 3,174 cases of pregnancy discrimination were filed with the EEOC.

The federal Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964, and it makes discrimination based on pregnancy, childbirth or related medical conditions unlawful. The act covers employers with 15 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. The law’s protections include:

Hiring and working conditions: An employer cannot refuse to hire a woman because of pregnancy, pregnancy-related conditions, or based on the prejudices of co-workers or customers. The act prohibits discrimination when it comes to working conditions, including pay, job assignments, promotions, layoffs, training, firing and any other condition of employment.

Pregnancy and maternity leave: An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. For example, if an employer does not require its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may not require employees affected by pregnancy to provide this documentation.

Pregnancy and temporary disability: An employee that is temporarily unable to perform her job due to pregnancy must be treated the same as any other temporarily disabled employee.

Health insurance: Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions.

Fringe benefits: Benefits must be the same for pregnancy as other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions, including accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.

Further, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under Title VII.

Although pregnancy itself is not considered a disability, some pregnant workers may be eligible for additional protection under the amended Americans with Disabilities Act Amendments Act due to conditions related to pregnancy. The ADAAA applies to employers with 15 or more workers.

Affordable Care Act

Under the Affordable Care Act, employers must provide two things to employees for one year after a child’s birth: (1) a reasonable amount of time to express milk each time that she needs to express milk; and (2) a location to express breast milk (not a bathroom) that is shielded from view and free from intrusion from co-workers and the public.

Employers are not required to compensate nursing mothers during breaks to express milk, but if an employee has compensated breaks and she uses them to express milk, then she must be compensated in a similar way.

The ACA provides an “undue hardship” exemption for certain employers that employ fewer than 50 employees. An undue hardship will be found if the requirement imposes on the small employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Importantly, the ACA provides a “floor” not a “ceiling” for regulation in this area. States remain free to adopt laws that provide additional protections beyond those provided in the ACA.

Best Practices

In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful due to a bona fide occupational qualification defense, or BFOQ. This defense, however, is extremely narrow and the employer must show that pregnancy actually interferes with an employee’s ability to perform the job based on objective, verifiable skills required by the job.

Employers have rarely been able to establish a pregnancy-based BFOQ. Liability under the federal and state laws can be avoided with the following best practices:

• Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.

• When complaints occur, respond promptly.

• Implement strong policies against pregnancy discrimination and harassment.

• Evaluate leave policies to ensure restrictive provisions or practices do not discriminate on the basis of pregnancy or related medical conditions.

• Evaluate any workplace accommodation policies and ensure they are available to workers with pregnancy-related impairments.

• Never require — explicitly or constructively — a pregnant employee to take leave, light duty or other work accommodations that she does not want or did not request.

• Make sure policies and facilities comply with breastfeeding requirements under the ACA.

• Check state and local laws for additional requirements.

Jay Starkman is the CEO of Engage PEO, a professional employer organization providing HR outsourcing to small and mid-sized businesses across the United States. Camille Cooper is the assistant general counsel and HR consultant for Engage PEO.

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Do You Know? Pre-employment Medical Exams

Jon Hyman The Practical Employer

A mayor in Ohio has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees.

How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a “fertile imagination” and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

Aside from the obvious sex discrimination (an employer cannot apply one set of policies to male employees a different set to female employees), it also violates the ADA’s requirements for pre-employment medical examinations.

The ADA applies a traffic-light approach to employer-mandated medical exams.

    • Red light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that are job related.
    • Yellow light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
    • Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

Because these exams fall in the “Green Light” category, the city is in the clear, right? Wrong. Pre-employment medical exams are permitted as long as the employer does so for all entering employees in the same job category. This employee alleges the females were singled out. Thus, unless she worked with all women in her job category (another legal red flag), the city violated the ADA by sending some, but not all, employees for pre-employment medical exams.

Also, pay attention to state laws when conducting medical exams. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”

As for this mayor, these allegations are just the tip of his legal iceberg. It’s also alleged that he uses the n-word to refer to African American residents, and sexually harasses female employees by talking about his private parts and how pistachios contribute to his sexual prowess. Sounds like a great place to work.

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Do You Know? English-only Workplace Policies

Jon Hyman The Practical Employer

White Americans, what?
Nothing better to do?
Why don’t you kick yourself out?
You’re an immigrant too!

– White Stripes, Icky Thump (2007).

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald’s restaurant in Grand Rapids, Michigan, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

In Martinez-Gonzalez v. Lakeshore Staffing (6th Cir. 11/9/18) [pdf], the appellate court disagreed.

Taking the record as a whole, no reasonable finder of fact could find that Lakeshore had a policy and culture of requiring its employees to speak only English. Lakeshore … filed seven declarations demonstrating that the so-called English-only policy could not exist because employees attested that they speak Spanish in the workplace or know of employees who openly speak Spanish in the workplace without reprimand. Martinez and Lopez do not contest either the factual veracity or the legal significance of the declarations. Instead, in support of their argument, Martinez and Lopez cite to two instances where Martinez stated she was told to speak English and one instance where Lopez testified she was told to speak English. Martinez and Lopez cite no disciplinary records in which they were reprimanded because they were speaking Spanish.

Thus, there was no evidence to support the existence of an English-only policy. That said, English-only policies certainly raise legal red flags. 

As immigration and immigration reform continue to be hot-button political issues, employers take a big risk when they require all of their employees to speak only English at work.

The EEOC’s position is that a “rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” According to the EEOC, an “employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”

The majority of federal courts, however, have shown slightly more tolerance of “English-only” rules. Generally, courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

  • Stemming hostility among employees.
  • Fostering politeness to customers.
  • Promoting communication with customers, coworkers, or supervisors who only speak English.
  • Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
  • Facilitating a supervisor’s ability monitor the performance of an employee.
  • Furthering interpersonal relations among employees.

Thus, employers should be careful to limit the reach of an English-only requirement only as far as is necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks and even private telephone conversations.

If you are considering an English-only requirement for your business, you should not do so without consulting with employment counsel to ensure that the policy is not discriminatory as written or as applied.

 

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The Benefits of Offering Backup Elder Care to Employees

elder care

As the population of the United States ages, millions of adult workers are already providing care for an elderly parent or family member.elder care

Providing such care while working a full-time job is both physically and mentally taxing for most employees, and studies even show that burnout from caregiving responsibilities cost companies nearly $13.4 billion each year in health care expenses.

To make matters worse, employees who care for their aging parents are more likely to be less productive, take more time off, and arrive to work late on a regular basis. This is troubling news for many companies, especially since lower productivity often equates to lower revenue. Some companies are beginning to offer a variety of support resources to employees doubling as caregivers.

Backup elder care is a benefit some organizations are considering for employees. In general, there are two primary types of elder care benefits:

  • Dependent care assistance plans. These plans deduct a certain portion of an employee’s paycheck (gross amount before taxes) to pay for elder care costs. According to Forbes, currently, 41 percent of employers offer this benefit.
  • Respite care. Offered by only 7 percent of companies, this benefit offers short-term care to family members when an employee needs to rest, take time off or go into work.

Some other types of elder care benefits include:

  • Flexible work options. These options include allowing caregiver employees to work from home, have flexible hours during the day, or providing paid time off.
  • Care subsidies. This benefit would help employees with the cost of elder care with subsidies covering either direct costs or backup care.
  • Support groups. Employers can create onsite caregiver support groups for employees. This will allow them to speak with fellow coworkers dealing with caregiving of senior parents and perhaps find some value in communicating. The employer may also provide online support group resources if onsite isn’t an option.

Respite care is the benefit most commonly referred to as backup elder care, and it is provided through the private insurance companies employers contract with. It is a voluntary benefit, so employees who do not need backup elder care do not have to enroll. If an employee does not know whether they have these benefits, they should speak with a human resources or benefits manager.

The Professional Impact of an Aging Population

 According to the U.S. census, nearly 70 million Americans will be over the age of 65 by 2030. This may sound like a shocking statistic to many, but as the baby boomer population ages and exits the workforce, their children and younger relatives might be required to act as caregivers in many situations.

Also read: Elder Care: You Can’t Buy, Pray or Prescribe Your Way Out of It

Backup elder care benefits helps employers reduce the amount of stress caregiving employees experience by allowing them to know that their loved ones will be cared for while they are at work.

Studies show that employees prefer to work for companies that offer a reasonable work-life balance. Companies should keep this in mind when deciding whether to provide backup elder care. Caregiving can be exhausting, even for the most dedicated individual and when paired with a demanding work schedule, employees become overwhelmed.

By providing elder care, caregiving employees will have more flexibility. This means limiting the choice of missing a workday or taking care of an infirm parent.

Scheduling Flexibility

According to a 2012 CareerBuilder study, nearly 40 percent of employees who voluntarily left the workplace did so because of a poor work-life balance. Few employees appreciate being called in at the last minute to work abnormal hours, but sometimes it is unavoidable. Most managers and supervisors are aware of this, but if their employees have outside caregiving obligations, they simply will not be able to depend on them to work outside of normal work hours.

Many employees also have difficulty balancing their caregiving responsibilities with regular work hours. Caregivers are more likely than other employees to leave work early and use paid time off to look after loved ones.

Also read: How to Confront the Elder Care Challenge

This can place a strain on the workplace when a valuable employee is not able to work their normal hours, especially if other workers are forced to pull their weight for them.

Millennials make up 35 percent of the American workforce, and as members of the baby boomer generation age millennials will have to accept the role of family caregiver. As of 2013, nearly 19 percent of caregiving employees were under the age of 40, and this percentage is only expected to increase in coming years. If a company fails to keep such statistics in mind when recruiting younger professionals, it may start to notice its talent pool shrinking because of its perceived lack of concern for its employees who double as caregivers.

Offering Backup Elder Care

As time continues to prove backup elder care should be a benefit offered by an employer, more companies are taking responsibility in offering these benefits. A main provider of backup elder care is Bright Horizons. They offer 24/7 backup elder care to employers. The organization is understanding of both the employer and employee’s needs and even provides an online self-service support for if the employee wants to choose and hire the caregivers themselves. Other providers include Care.com, LifeCare and Town + Country Resources.

Prices vary per provider, with some backup benefit providers estimating a minimum of $15,000 per year to be paid by the employer. The average amount of an employee paying for elder care services is estimated at $4 to $6 per day if the employer subsidizes the cost.

Offering backup elder care is not only beneficial for employees and their loved ones but a company’s bottom line as well. Caregiving employees cost companies millions of dollars in lost hours each year, and by offering backup elder care, you may be able to make up for these losses and retain your most valuable employees who want to work for a company that understands their needs and the importance of family.

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Sexual Harassment Prevention 101: No Strip Clubs

Jon Hyman The Practical Employer

Last month, the EEOC held a public meeting on preventing workplace harassment.

Titled Revamping Workplace Culture to Prevent Harassment, it’s the agency’s second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed “No strip clubs for employees” as one of its anti-sexual harassment talking points.

Under Armour did not get this #MeToo memo until very recently.

According to The Wall Street Journal, earlier this year Under Armour sent its employees an email advising that the company was ending its longstanding practice of employees charging visits to strip clubs on their corporate credit cards. It appears that over the years, executives and employees, including its CEO, took athletes or co-workers to strip clubs after some corporate and sporting events. Not surprisingly, according to the WSJ, “some top male executives violated company policy by behaving inappropriately with female subordinates,” and “women were invited to an annual company event based on their attractiveness to appeal to male guests.”

The Journal goes on to quote Under Armour Chairman and CEO Kevin Plank, “Our teammates deserve to work in a respectful and empowering environment.… We can and will do better.”

No kidding. 

Bravo, Under Armour, for taking such a brave stance on your anti-sexual harassment, pro-female culture. Prohibiting employees from using expense accounts at strip clubs is not something about which a company should need reminding. It’s something it should have been doing all along.

Employers, you better “do better,” because we are all watching.

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Managing Election Day at Work

Jon Hyman The Practical Employer

As tomorrow is Election Day, I thought I’d share a few tips for employers to keep in mind.

First: Please don’t tell your employees for whom to vote. It may or may not be illegal (depending on your state), but it is certainly a terrible HR practice.

Second: Ohio law requires that employers provide all employees a reasonable amount of time off to vote on Election Day. Deny employees that right, or punish them for exercising it, at your risk. Better yet, embrace the Time to Vote movement and implement policies (like paid time off) to encourage your employees to vote on Election Day.

Finally: After the election is over, think about how we heal at work. Some thoughts (care of The Wall Street Journal): providing meeting space for employees to talk after the election, offering supervisors and managers sample language for opening up a constructive dialogue with employees, and playing soothing music to distract employees from political headlines.

Watch the Video: Voting on the Clock Works as an Employee Engagement Tool

Bonus: While you’re voting on Election Day, don’t forget to cast your ballot for the Worst Employer of 2018.

End of public service announcement.

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When You Employ a Satanist

Jon Hyman The Practical Employer

“Rosemary’s Baby,” the classic 1968 horror film, tells the story of a pregnant woman who (spoiler alert: correctly) assumes that a satanic cult wants her baby.

What does “Rosemary’s Baby” have to do with employment law?

In honor of Halloween, I bring you the story of Irving Cortez-Hernandez, a “Catholic-Satanist” who prayed to the Devil for his pregnant co-worker to miscarry, and as a result lost both his job and his religious discrimination lawsuit.

Cortez worked as an inside sales representative for Centennial Puerto Rico, selling wireless and broadband telecommunications services to customers in one of its mall stores.

During his employment, Cortez complained to HR that one of his co-workers, Lymarie Torres, had skimmed commissions from his sales. During HR’s investigation of the theft allegations, Torres unloaded about behavior by Cortez that one could only describe as downright frightening.

  • He would speak in a weird language and, when questioned, would explain that he was praying to Satan, or that the Devil had ordered him to speak in tongues.
  • He would threaten Torres with satanic rituals, including during her pregnancy to induce a miscarriage.
  • He told employees that Satan protected him, and that they should not mess with him.
  • He threatened Torres with comments such as, “Today I feel like killing you,” and others with, “Today I [feel like/would/will] kill someone.”
  • He would tell co-workers that “when the Devil is inside of him, there is no stopping him.”

Not surprisingly, Centennial fired him. Slightly less surprisingly, Cortez sued for religious discrimination.

In Cortez-Hernandez v. Centennial Puerto Rico (D.P.R. 11/18/2010), the district had little difficulty dismissing Cortez’s lawsuit. He claimed that Centennial terminated him because of his satanic religious beliefs. The court didn’t buy it, concluding that Centennial fired him because of his offensive and threatening comments and behavior, not his religion.

That said, there is no rule that Title VII only protects traditional religions. Indeed, quite the opposite is true. According to the EEOC:

The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Thus, if Satanism is a “sincerely held religious belief” (and, by all accounts, it appears to be), then Title VII protects from workplace discrimination those who practice it. What Title VII does not protect, however, is using your religion as a justification for harassing or threatening others. Hence, Cortez’s lost-cause lawsuit.

Happy Halloween, y’all.

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Abortion Discrimination = Pregnancy Discrimination

Jon Hyman The Practical Employer

Is there a more controversial topic than abortion?

As controversial and divisive as it might be, the law is pretty clear that an employer cannot fire an employee for having one.

In the EEOC’s 2015 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the agency made its position clear:

Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.… Title VII protects women from being fired for having an abortion or contemplating having an abortion.

The courts universally support the EEOC’s position. It’s been the law of the 6th Circuit for nearly 20 years, and the 3rd Circuit for 10.

Yes, there are limited exceptions. The First Amendment, for example, might protect religious institutions that take adverse actions against an employee because of an abortion.

For the most part, you need understand that whether you agree with a woman’s right to have an abortion, abortion discrimination equals pregnancy discrimination, and firing an employee who has (or expresses an intent to have) an abortion is no different than firing that employee because of her pregnancy.

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Anti-Semitism at Work

The devastating events of this past weekend served as a sobering reminder that anti-Semitism not only still exists, but it’s thriving.

The reality is that anti-Semitism never went away. It has always been there, bubbling under the surface. The current climate in our country, however, has given it permission to boil over.

According to the Anti-Defamation League, anti-Semitic attacks have increased 60 percent since 2016. It’s the largest increase since the ADL starting tracking these statistics.

And, you can bet that if anti-Semitic attacks are on the rise in the country as a whole, they are also on the rise in your workplace.

Whether it’s debates among your employees about “the Jewish question” or George Soros, or more blatant attacks like images of swastikas or Adolph Hitler.

When I was in college I worked summers in a warehouse. There were only two Jews in the entire workplace — the company’s owner and me. One of my workers, upset that he had been denied a raise, hanged the owner in effigy on a giant swastika, with the message, “Cheap Jew.” My (not unfounded) fear is that these attacks will rise in frequency given the current state of our country.

What can you do?

Be aware.

Be open to complaints.

Be vigilant in treating any anti-Semitic message or attack the same as any other unlawful harassment in your workplace. Investigate, and take corrective action to ensure that it does not happen again.

 

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How Many N-bombs Does It Take to Create a Hostile Work Environment?

Jon Hyman The Practical Employer

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, “How many N-bombs does it take to create an unlawful hostile work environment?”

So as not to bury the lede, the answer is one.

Brenda Smelter was the only African American working in her office at Southern Home Care Services. During her two months of employment, she alleged that she endured racist statements on a daily basis by Connie Raleigh, the office manager, and Catherine Smallwood, a customer service supervisor.

  • Smallwood called black men “lazy” and “the scum of the earth.”
  • Smallwood said that “black women ha[d] babies on welfare.”
  • Smallwood said that President Obama’s “big ears” made him “look like a monkey.”
  • Smallwood told Smelter that her hair made her look like a “mixed monkey” from the movie Planet of the Apes.
  • Raleigh described black people exiting a bus at a Wal-Mart store as looking like they were “chained together.”
  • Raleigh said that she wished she could “send them all back … to Africa.”

On the day of Smelter’s termination, she and Smallwood engaged in a verbal altercation over a schedule change, which ended when Smallwood allegedly “jumped up … in a rage” and said “get out of my office … you dumb black nigger.”

The court of appeals reversed the district court’s dismissal of Smelter’s hostile work environment claim. It held that in the “two months during which Smelter had endured racist comments on a daily basis” was sufficient to create a jury issue over the existence of hostile work environment. “The … comments Smelter endured in the office involved obvious racial slurs conveying highly offensive derogatory stereotypes of black people.”

Yet Smallwood’s lone use of the N-word, directed at Smelter, in and of itself and without more, would have sufficed:

A reasonable jury could conclude that the harassment was severe. Most severe of all and addressed directly to Smelter herself was Smallwood’s calling her a “dumb black nigger.” Implicitly acknowledging the egregiousness of this epithet, Southern Home argues that Smallwood’s “one-time use” of it was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner. Here, Smallwood did not simply use the epithet in Smelter’s presence; instead, she directed it at Smelter as a means of insulting her in the midst of an argument.

Smelter demonstrates a hostile work environment that no employee should endure and no employer should tolerate, period.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.