Pregnancy Discrimination – What You Need to Know

The Pregnancy Discrimination Act was passed by Congress in 1978 as an amendment to The Civil Rights Act of 1964. Despite this being in place for nearly 40 years now, women still continue to face workplace discrimination due to pregnancy, or pregnancy-related issues. PDA applies to all employees, regardless of their length of time at a specific employer, so long as the company employees at least 15 people.

If you are pregnant (or may become pregnant), you may be wondering what pregnancy discrimination looks like and how you can protect yourself from experiencing it. Here are some of the most important facts to know about pregnancy discrimination at work.

Employers may not (because of pregnancy):

  • Refuse to hire or promote an employee
  • Terminate an employee
  • Ask interview questions that they would not ask non-pregnant applicants
  • Require employees to give notice of pregnancy (unless it is for a legitimate business purpose)
  • Discriminate against those who may become pregnant
  • Stop a pregnant employee from working if they want to and are physically able
  • Discriminate against an employee that had or considered having an abortion
  • Demand medical notes from a pregnant employee’s doctor concerning work status if they do not require them from non-pregnant employees on short term disability leave

Additionally, employers may not retaliate against an employee/applicant that makes a complaint because they feel they may have been discriminated against. Retaliation could be termination, demotion, or lowering of pay to name a few examples. However, some courts have held that you can be treated differently depending on where you work if you are unmarried and pregnant. It has been stated that religious organizations or ones working with youth may discriminate against employees who violate the organization’s principles condemning pre-marital sex. These employers would have to demonstrate that they hold males to the same standards – and are not only punishing female employees. However, these circumstances are few and far between, and this exemption does not apply to most employers.

Employers must:

  • Hold open a job for pregnancy related absence as long as they would for non-pregnancy related sick/disability leave
  • Provide health coverage on same basis as costs for non-pregnancy related medical conditions
  • Provide the same level of benefits for spouses of male employees as they do for female employees
  • Grant pregnant women on leave the ability to accrue seniority, vacation, pay increases, and temporary disability benefits in the same way as those on leave not due to pregnancy
  • Allow appropriate time/place for lactation purposes, including a private area to pump breast milk

It is important to also consider that a woman may have additional rights under programs such as FMLA or CFRA (in California). Under FMLA (Family Medical Leave Act), a pregnant employee may be entitled to up to 12 weeks of unpaid leave so long as they have worked for the employer at least one year, during which time they worked at least 1,250 hours. Also, the company must employee at least 50 people in a 75 mile radius. This differs only slightly from CFRA (California Family Rights Act) which may allow an additional 12 weeks of unpaid leave after the birth of a child for bonding and care purposes. CFRA does not cover pregnancy as a “serious health condition” and therefore would have to be taken after the exhaustion of either FMLA or Pregnancy Disability Leave, which run concurrently. The eligibility requirements for CFRA and FMLA are the same. Both allow employees to take time off to care for either themselves or a family member. Each includes same-sex spouses in the eligibility, but only CFRA includes eligibility for Registered-Domestic Partners.

If you feel you may have been discriminated against because of your pregnancy or a pregnancy related issue, please call our firm for a free consultation. No woman should have to feel shame for being pregnant, especially not in the workplace.

 

Sources:

http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/pregnancy-discrimination-act/

http://employment.findlaw.com/employment-discrimination/pregnancy-discrimination-in-the-workplace.html

https://www.eeoc.gov/laws/types/pregnancy.cfm

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiadifferencecfrafmla.aspx

https://postdocs.ucsf.edu/fmla-and-cfra-comparison

 

What a Trump Presidency Might Mean for Family Leave Laws

With the Electoral College officially selecting Donald J. Trump as the next President of the United States, many are now wondering what changes may take place upon his inauguration. Particularly relating to employment, you can expect to see many changes including family leave time for workers.

Trump has proposed a plan which would give women who recently gave birth (note, not all new mothers) 6 weeks of partial paid leave through an expansion of unemployment. While this may initially sound great, upon inspection of the plan there is much to be desired. The first issue arises from the source of funding for the program, which is supposed to be unemployment. This is a social service which is grossly underfunded as is, without adding the element of maternity leave. Because of the lack of funding, it is estimated that women on this plan would only receive approximately 30% of their weekly wages.

Other glaring issues with the program include the length of time offered. Six weeks is far below the recommended minimum of 12 weeks for parental bonding time after a child is born/adopted. This brings us to the next issue – the coverage would only be available to women that just gave birth. This means that fathers and adoptive/foster parents are ineligible to the benefits.

There are alternatives to Trump’s proposed plan, including a bill sponsored by Connecticut Congresswoman Rosa DeLauro and New York State Senator Kirsten Gillibrand called the FAMILY Act. The acronym stands for Family and Medical Insurance Leave Act, and would require all employers (regardless of company size) to provide employees (regardless of age/duration of employment) with 12 weeks of paid leave for various reasons. It would not only provide coverage to women that just gave birth, but also to new fathers, adoptive parents, foster parents, or people needing to take time off for their own serious medical condition/to care for a family member with a serious medical condition. In contrast to Trump’s plan which would be through unemployment, FAMILY would be run by a new office of the Social Security Administration. It would be funded by small contributions by employees and employers as a payroll deduction. This may be a concern upon first hearing about the plan, but the deduction is extremely minimal – 2 cents for every $10 earned by the worker. It would enable participants in the program to make up to 66% of their regular weekly wages during their time away from work. Both insurance benefits and administrative costs would be covered by the contributions. In order for the plan to work, all employees would be required to participate in the contribution if the bill is passed (you can’t opt out). If people were able to opt-out, the structure of the funding would be changed drastically, making the deductions too great for those that want to participate.

The FAMILY Act had been gaining support in Congress, and was expected to pass under a Hillary Clinton administration. However, now that Republicans will be controlling both the White House and Congress, the bill will most likely be facing bigger impediments than it did previously.

In order to encourage opponents of paid family to support the policy, a non-profit organization called PL+US intends to put the pressure on nay-sayers. IN addition to a possible political action committee, PL+US will be launching a campaign highlighting companies with excellent paid leave policies – as well as highlighting companies with the worst leave policies.

Currently, the only national family leave program is The Family & Medical Leave Act of 1993, which provides up to 12 weeks of unpaid leave to certain employees to care for themselves or a family member in the event of serious illness. However, the fact that the leave is unpaid is not the only problem with the program. It also comes with many stipulations which leaves a majority of workers ineligible for the time off. The first requirement for an employee to be eligible for leave, is that they must work for a “covered employer”. Covered employers are those which a) employ at least 50 people for 20 or more workweeks in the current or preceding calendar year (private sector) or b) are a public agency (regardless of how many employees). The next qualification is that the employee must have worked for the employer for at least 12 months, and given at least 1,500 hours of service during the past 12 months. Finally, the employee must work at a location where the employer has at least 50 employees within a 75 mile radius. In some situations, the FMLA leave may be taken intermittently as needed.

While it is impossible to say at this point what may happen in the coming year, one thing is clear – big changes are coming to family leave laws. Hopefully, they will be for the better.

Sources:

https://www.dol.gov/general/topic/benefits-leave/fmla

http://www.nationalpartnership.org/research-library/work-family/paid-leave/family-act-fact-sheet.pdf

http://www.nationalpartnership.org/issues/work-family/family-act.html?referrer=https://www.google.com/?referrer=http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://thehill.com/blogs/pundits-blog/healthcare/309533-congressional-leaders-should-reject-trumps-maternity-leave

 

Discrimination

Discrimination vs. Disparagement in the Workplace

Does it seem like your boss is always picking on you? For some reason, you get written up for things that your co-workers do without consequence? Maybe your supervisor never approves your vacation time requests? Or do you feel like you were passed over for a promotion, though you were the most qualified candidate? Feeling singled out may lead you to believe you are being discriminated against. Discrimination is broadly defined as “the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex”. However, in a legal environment, discrimination is defined a bit differently. In order for the treatment you are experiencing to be considered bona fide discrimination, it MUST be based on your gender, race, religion, sexual orientation, or some other protected class. To say that your boss “just doesn’t like me” with no prior indication that their dislike is based on a protected attribute does not equal discrimination.

You may be asking, what is a protected class? “Protected class” refers to specific characteristics rather than all people with that characteristic. Per anti-discrimination laws, protected classes include race, color, religion, sex, national origin, disability, and age (40 and older). People sometimes make the mistake of thinking that because they possess a protected attribute, they are automatically protected from termination for any reason at all. This is not the case. For example, a lay-off of 50 employees includes someone that is 60 years old. They are not automatically protected from termination, though they are over 40 years old. However, if the employer terminated 50 people all over the age of 40, there may be cause to believe they were all let go due to their age, which would be age discrimination.

Another common scenario where one might think they have been “discriminated against”, is after being passed over for a promotion. You begin to search for answers – why didn’t you get the promotion? What could it possibly be? It can’t be your performance…you always receive great reviews. Nor can it be your experience level, as you have been with the company longer than most other employees. So what could it be? While the situation is unfortunate, and maybe unfair, it doesn’t necessarily mean it’s illegal. You would want to look back and think, do I have any real evidence to show that this was due to my (age, race, religion, etc.)? Have you ever heard any comments regarding the particular protected class you believe they are discriminating against? Whether the comments were aimed at you or someone else, whether it was serious or a “joke”, they can be very telling. Have you noticed a pattern of this happening to the same group of people in the past? If not, there probably were other factors that led to the decision of who received the promotion.

Often, people believe favoritism and discrimination are akin. Unfortunately, they usually aren’t. Favoritism is of course, frowned upon, and unquestionably bad management. But once again, unless the favoritism is based on certain characteristics, it isn’t discrimination. It’s one thing for an employer to show favor for employees that they, for example, find funny. They are always laughing with these employees and seem to give them better hours, duties, etc. because they just “like them more”, whether or not these employees are actually the hardest working or most deserving of praise. Sense of humor and ability for social interaction is not a protected class. Therefore, if your boss treats you differently because they don’t find you as humorous, it is not discrimination. However, it is entirely different for an employer to give all of the best shifts/promotions/benefits to only white employees. Because race is a protected class, this would be an example of legitimate discrimination. Another example of actual discrimination is if the boss asks everyone to pray out loud every morning. You refuse because it does not align with your religious beliefs. Afterwards, your boss seems to single you out or treat you punitively. As religion is in fact a protected class, this would be considered discrimination, and you may be able to file a claim against the employer.

If after reading this you believe you have been discriminated against in the workplace, contact our office. We can evaluate the situation and see if there is a potential case that we can assist you with.

 

 

 

 

Disability Discrimination

HIV+ Disability Discrimination case will proceed

HIV positive employee’s disability discrimination, failure to accommodate claims will proceed, court rules

A Washington court has ruled that an employee’s claims of disability discrimination, failure to accommodate, retaliation, and wage withholding will proceed. The Defendants in the case, Kindred Nursing Centers West, had filed for summary judgement on said claims in hopes of having them dismissed.

The case was originally filed in 2014 by David Edman. He began working for the employers in July 2011 as their Food Services Manager. He worked without incident from his hired through the receipt of a new direct supervisor, Sandra Hurd. She became the facility’s new Executive Director in November 2012, and Edman reported to her directly. It wasn’t until April of 2013 however that Edman disclosed to Hurd that he is HIV positive.

In summer of 2013, Edman’s health began to deteriorate. He began losing a significant amount of weight, and his co-workers grew concerned about his wellbeing. That July, he received a written warning from Hurd regarding two arguments he had with staff members – one with a nurse, and one with a vendor. Edman admitted he had raised his voice, but stated his disposition was being negatively affected by his illness.

On July 29th, Edman had the day off from work for a previously scheduled doctor’s appointment. He received a call from Hurd however, telling him that the Department of Health & Human Services dropped by unexpectedly to conduct their annual survey. Edman claims that he told her he was ill and on the way to the doctor’s, but she insisted that he come in to work anyway. Hurd however claims that she did call to tell him about the survey, but did not ask him to come in, and rather said that she could handle it without him. Regardless, Edman cancelled his doctor’s appointment and worked from that day through August 6th at the conclusion of the survey. During that time, one of the surveyors complained to Hurd that Edman seemed “focused only on the timing of the meals, and not the accuracy or quality”, and also that he was yelling at staff members. Despite this complaint and his illness, Edman’s area received only one mark of deficiency. Hurd admitted he had “worked long hours throughout the week of the survey without asking for time off or accommodations for his illness”.

With the survey concluded, Edman was able to finally see his doctor on August 8th. At this appointment, his doctor Thomas Smith suggested that he go on immediate medical leave. Edman’s request to his employers for leave was granted, and he began receiving short term disability benefits.

Edman returned to work on October 1st, 2013. He had previously requested to work part-time for the first two weeks he was back, which was granted. However, on his first day back he received a written warning and was put on a Performance Improvement Plan for his behavior during the survey. Edman did not object to the behavior, citing “multiple infections and lack of sleep” as the cause of the issues. Hurd responded allegedly by saying that his medical conditions were “not an excuse”. Edman was the only employee disciplined because of the survey, despite the fact that the manager of another area received nine citations.

Later that month, Edman’s health took another serious hit as he was diagnosed with Kaposi’s Sarcoma – a form of cancer. Though he qualified under social security as having a disability, he would still be able to work without accommodations. On October 29th, he requested temporary accommodations while he was being treated as well as intermittent FMLA (Family Medical Leave Act) leave. Upon hearing his requests, Hurd allegedly replied, “No, I can’t do this. You still have to do your job.” Two days later, Edman, Hurd, and HR Director Elaine Revelle met. There, they told Edman that they would not be able to provide the requested accommodations and he would instead be placed on unpaid leave while they discussed the situation. To add insult to injury, he was asked to leave the building thereafter.

During his leave, Edman sent several emails asking for the process to be sped up as he had no source of income. After providing additional information regarding his accommodations and an updated note from his doctor, some of Edman’s accommodations were finally granted on November 22nd. However, the acceptance came with the expectation for Edman to have cooking duties added to his work load. They stated this was necessary due to budget cuts. It wouldn’t be until December that more of his accomodations were granted, intended to allow him uninterrupted lunch in his office with the door closed and not having to interview residents. Other accommodations he had requested were denied, such as a temporary moratorium on changing dining services department operations, staffing, or duties, two weeks’ notice of any such changes, and his request to transfer to a position in the Central Supply Department, which would not require cooking. In place of the last request, the employers agreed to remove cooking from his duties.

On December 9th, Edman sent an email to his attorney describing the great stress the situation had caused him, and expressed an interest in “resolving his employment” with Kindred. The following day, an offer letter was sent to the company, requesting the possibility of his resignation “in exchange for certain compensation and fees”. This offer was rejected by the employers, and instead the parties continued communications about Edman returning to work.

In January 2014, Edman’s doctor released him to return to work with several accommodations, including:

  • Intermittent FMLA leave as needed
  • Uninterrupted 30 min lunch in his office with the door closed
  • 8 business days’ notice prior to deadline for any assessment, planned event, or staffing modification
  • An effort by all parties to keep stress levels low
  • Adequate rest between shifts

On January 6th, Edman returned to work full time but states that the accommodations outlined were not met, which caused his health to deteriorate once again. Despite this, he continued working for over another year before finally going on his last medical leave due to a work related injury. After his leave is when he initiated the lawsuit for claims of disability discrimination, failure to accommodate, retaliation, and wage withholding.

 

Sources:

http://hr.cch.com/eld/EdmanKindred112116.pdf

http://www.employmentlawdaily.com/index.php/news/hiv-positive-manager-put-on-pip-denied-accommodation-advances-disability-bias-claims/

FMLA

Superintendent’s wrongful discharge, FMLA retaliation claims valid

On November 14th, the United States District Court for the Southern District of Ohio Eastern Division granted and dismissed portions of the Defendant’s (CB&I Constructors) Motion for Summary Judgement, which aimed to throw out certain claims alleged by the Plaintiff (Lightner). The Defendants wished to dismiss his assertions of FMLA retaliation, wrongful discharge, and FMLA interference. Only the latter ended up being dismissed.

Evan J. Lightner was employed as a Site Superintendent by CB&I Constructors from July 2009, through June 2014. During most of that period, he was considered an exemplary employee, having received positive reviews of “meeting or exceeding expectations” annually. His job as a Site Superintendent was to ensure OSHA (Occupational Health and Safety Administration) compliance, as well as supervising solid waste and landfill development projects. Lightner had a great amount of experience in the field, having worked for years prior in similar supervisory positions and receiving special training/certification from OSHA.

Lightner was dealt a devastating blow when his wife was diagnosed with cancer in August 2011. His then supervisor and Operations Manager Mike Mehalic told him that the employers would be “more than happy” to help him care for his wife, and helped Lightner reach out to Human Resources. He was granted intermittent FMLA leave when needed, and stated he was “very happy” with the support he received from the company.

Then, things seemingly began to change in 2012 when Greg Cooper replaced Mehalic as the Operations Manager. It wasn’t until July or August of 2013 however that the situation started taking a turn for the worst. Lightner brought unsafe situations he had noticed to the attention of Cooper and another supervisor that acted as the Project Manager in the Solid Waste Group, Josh Broggi. Lightner stated that he noticed unsafe dump truck operations, as well as observing workers that were “unqualified and untrained” welding pipes. Despite his concern, Cooper and Broggi assured Lightner that the workers had enough prior experience to make up for their lack of formal training and certification.

In October 2013, Lightner and his co-workers began working on a project in Miami, Florida. Upon arrival at the site, Lightner noticed the same aforementioned “untrained and uncertified” employees completing welding tasks. Once again, he expressed his concerns about this to Broggi. Both Cooper and Broggi responded by telling Lightner that it was “too costly” to have the employees trained and certified. Lightner persevered in attempting to remedy the problems, having telephone and in-person conversations on the subject with the Division Safety Manager Greg McElroy. This supervisor assured Lightner that he had discussed the matter with Broggi and Cooper, and promised to have the employees appropriately trained “in the very near future”. However, that never happened.

Not only were the employees not trained, but their performance actually seemed to get worse as time went on. The environment became so dangerous in the eyes of Lightner that he believed the employees should either be dismissed, or the site should have been shut down entirely. Yet again, Lightner made desperate calls to Cooper and others. Cooper did fly to Miami in order to observe the situation for himself. Despite having observed several concerning things, such as employees not being able to properly operate an “off-road dump truck without causing damage”, he told Lightner that it would “be easier to hire five of the untrained employees and get rid of [him]”.

Cooper also commented that the employees were the “best the company could afford and still turn an adequate profit.” The reason for Cooper’s concern about profitability seems to stem from the fact that CB&I was in the process of acquiring another company at the time. This meant that, according to Cooper, they needed to “do whatever was possible” to ensure the transition period went smoothly. Apparently, this included not reporting safety incidents. Lightner’s job became blatantly threatened as Cooper instructed him not to report a particular incident involving a bulldozer, or else “be the person that left before the other employees did”.

Similar incidents continued to occur, then in May 2014, Lightner noticed a lump in his neck which seemed to be growing rapidly in size. As his doctors advised, he underwent a procedure to remove the mass so a biopsy could be performed. The lump turned out to be benign, but due to the nature of the procedure, Lightner and Cooper discussed him taking 3-4 weeks off. The very next day, Cooper called Lightner and told him that he was likely to be “furloughed” due to various business reasons. On June 2nd 2014, this indeed came to fruition and Lightner was let go allegedly as part of a reduction in force.

 

Sources:

http://www.employmentlawdaily.com/index.php/news/reduction-of-one-suggested-supervisor-was-fired-for-reporting-unsafe-conditions-seeking-fmla-leave/

http://hr.cch.com/eld/LightnerCB&I111416.pdf