Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Here are a few employee rights Short Takes worth noting:

It's A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 ("ADAAA"). The law made significant changes with respect to the interpretation of  the term "disability" under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed "disability" and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times  about a recently filed discrimination case and it's worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau's second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 -- Equal Pay Day -- to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 -- because it held that the case was filed too late -- Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009  by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: blogs.orlandosentinel.com  image.spreadshirt.com www.glbtq.comf

Employee Rights Short Takes: New Evidence Of Gender Pay Gap, Race Discrimination, Disability Discrimination And More

Here are a few short takes about employment discrimination stories that made the news this past week:

New Evidence Of Gender Pay Gap And Discrimination Against Mothers In Management

Women made little progress in climbing into management positions according to a new report by the Government Accountability Office yesterday.

As of 2007, the last year for which the data was available, women made up only 40% of managers in the United States work force compared to 39% in 2000. In all but 13 industries covered by the report, women had a significantly smaller share of management positions than men when compared to the overall workforce.

In addition, managers who were mothers earned 79 cents of every dollar paid to managers who were fathers.

The report was prepared at the request of Representative Carolyn Maloney, Democrat of New York, and chairwoman of the Joint Economic Committee for a hearing before that committee on Tuesday -- where witnesses  talked about the  "shockingly slow rate of progress"  for women in corporate management positions and the "motherhood wage penalty."

Several individuals who testified urged the passage of the Paycheck Fairness Act as a partial remedy to the issues surrounding gender discrimination in the workforce.

For more about the report read the NY Times article here.  For a copy of the report from Rep. Maloney’s website and more about the hearing read and watch here.

Employee With Multiple Sclerosis Settles Discrimination Case For $1.2 Million

An ex-employee of the Madison New Jersey Board of Education with multiple sclerosis settled her disability discrimination case for $1,200,000, including attorney fees, as reported yesterday by DailyRecord.com and Lawyers USA.  Disability discrimination is prohibited by the Americans with Disabilities Act.

Joan Briel, a former accounts payable secretary, was diagnosed with MS in 2002. She claimed that her employer retaliated against her by inappropriately increasing her workload, repeatedly harassing her and failing to take action on her requests for reasonable accommodation -- including her request to work on the first floor instead of the third floor.

Briel also claimed that the stress of the work environment caused her to relapse and that she was fired while she was on medical leave.

The case was heading for a jury trial when the settlement was reached. Ms. Briel will receive $412,000 in the settlement. Her attorneys will receive $877,303 for the work they did on the case. The court also awarded Briel over $43,000 in costs.

Plaintiffs in civil rights cases may recover attorneys’ fees – if they prevail -- in addition to their individual award in most cases. These legal provisions are intended to encourage attorneys to represent individuals who are unable to invoke the protection of civil rights laws because they can not afford a lawyer.

Discrimination cases are difficult to litigate and are often complex and protracted. Therefore, it’s not unusual for the attorneys’ fees ( on both sides) to be larger than the award, or greater than the amount in controversy.

This newly reported case is but one example of the potentially high costs to employers when employment discrimination cases are not resolved early.

EEOC Settles Race Discrimination And Retaliation Case For $400,000

The Cleveland office of the EEOC announced a $400,00 settlement of a class action race discrimination and retaliation case against Mineral Met Inc., a division of Chemalloy Company.

Evidence in the case showed that black employees were disciplined for trivial matters – such as having facial hair or using a cell phone -- while white employees were not disciplined for the same conduct. When one of the supervisors complained, it resulted in intensified racially discriminatory treatment and retaliation according to the EEOC.

The EEOC also charged that African-American employees were also subjected to other forms of racial harassment, including evidence that a white supervisor placed a hangman’s noose on a piece of machinery. (once again shocking that this is still going on)

Race discrimination in employment and retaliation for complaining about discrimination violate Title VII of the Civil Rights Act of 1964.

 images: www.house.gov  www.window.state.tx.us

It's Equal Pay Day And Time To Pass The Paycheck Fairness Act

Wage Discrimination Needs Attention And A Legislative Fix

April 20, 2010 is Equal Pay Day. It was established in 1996 to illuminate the gap between men’s and women’s wages. The date symbolizes how far into 2010 women must work to earn what men earned in 2009.

This year, with the support of President Obama, Equal Pay Day should also bring attention to pending legislation intended to address lingering issues of pay disparity in the American workforce.

Here are some facts about pay equity from the National Organization for Women:

  • In 2007, women's median annual paychecks reflected only 78 cents for every $1.00 earned by men. Specifically for women of color, the gap is even wider: In comparison to a man's dollar, African American women earn only 69 cents and Latinas just 59 cents. 
  • In 1963, when the Equal Pay Act was passed, full-time working women were paid 59 cents on average for every dollar paid to men. This means it took 44 years for the wage gap to close just 19 cents -- a rate of less than half a penny a year.
  • The narrowing of this gap has slowed down over the last six years, with women gaining a mere two cents since 2001. 
  • Women's median pay was less than men's in each and every one of the 20 industries and 25 occupation groups surveyed by the U.S. Census Bureau in 2007. Even men working in female-dominated occupations earn more than women working in those same occupations.
  • According to the Institute for Women's Policy Research,  if equal pay for women were instituted immediately, across the board, it would result in an annual $319 billion gain nationally for women and their families (in 2008 dollars).
  • When The WAGE Project looked exclusively at full-time workers, they estimated that women with a high school diploma lose as much as $700,000 over a lifetime of work, women with a college degree lose $1.2 million and professional school graduates may lose up to $2 million because of pay disparity.
  • As a result, these inequities follow women into their retirement years, reducing their Social Security benefits, pensions, savings and other financial resources.
  • A study by the American Association of University Women examined how the wage gap affects college graduates. Wage disparities kick in shortly after college graduation, when women and men should, absent discrimination, be on a level playing field.
  • One year after graduating college, women are paid on average only 80 percent of their male counterparts' wages, and during the next 10 years, women's wages fall even further behind, dropping to only 69 percent of men's earnings ten years after college

I have represented women in discrimination cases for many years.  From my vantage point it's clear that while the pay equity issues are not as blatant as they once were, wage discrimination is still a prevalent concern for women of all socio-economic groups.

It's also true that the Equal Pay Act of 1963, while well intentioned, has not come close to fulfilling its goal due to a whole host of reasons.

The good news is that there is a bill pending in Congress aimed at correcting unlawful wage disparities and which offers a legislative fix for some of the problems with the Equal Pay Act.

The Paycheck Fairness Act (H.R.12 and S.182) was introduced January 2009 by then-Senator Hillary Clinton and Rep. Rosa DeLauro to strengthen the Equal Pay Act of 1963. The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense which will be a real help to victims of pay discrimination.

The Paycheck Fairness Act also prohibits retaliation against inquiring about or disclosing wage information  and proposes voluntary EEOC guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities. The bill was passed by the House in January of 2009 and is pending in the Senate. It's lead sponsor is Sen. Christopher Dodd.

There were hearings about the bill in March of this year with lots of illuminating testimony, including the remarks of Stuart Ishimaru, acting Chariman of the EEOC, which you can read here if you are interested in more detail about the subject.

The bottom line is if you care about equal rights for women and want to make a difference, please call or write your Senator and urge passage of the Paycheck Fairness Act. Here's a link that will help you send the message. We know that the President  supports it -- we just need to get it on his desk.

images: www.evetahmincioglu.com