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Family caregiver bias claims on the upswing
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Family caregiver bias claims have sharply risen in
recent years. This type of claim has increased by 400 percent over
the last decade.
A big reason why is that younger men and women
entering the workforce expect to spend more time with their families
and less time in the office.
The Equal Employment Opportunity Commission recently
issued guidelines addressing the issue. The agency emphasized it did
not intend to create a new category of protected workers, but it did
provide 20 different examples of caregiver (also known as family
responsibilities) discrimination. The examples address everything
from stereotyping during the hiring process to the hostile work
environment that can result from stereotyping mothers or fathers.
The guidelines signal the commission will be more
aggressive in investigating these claims.
The most common example of caregiver discrimination
occurs when a women either informs her employer she is pregnant or
gives birth to a child, and then finds her workload and
responsibilities decreased – commonly referred to as being put on
the “Mommy track.” This happens because employers wrongly assume a
pregnant woman or new mother is no longer devoted to her work.
Men who file these claims typically make the
opposite argument – that they are discriminated against for not
following gender stereotypes. For example, a father may take some
time off work to care for his children, and when he returns he is
put on rotating shifts so he can never set up regular child care,
forcing him to quit.
A caregiver or family responsibilities claim must be
tied to another form of |
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discrimination because being a caregiver is
not a protected class of worker.
Instead, workers must rely on laws such as the
Americans with Disabilities Act (needing time off to care for a
disabled child, for example) or Title VII (perhaps tying the claim
to gender discrimination).
Claimants can also use a variety of state law
claims, including state equivalents to the federal discrimination
statutes, and common law claims such as wrongful discharge, breach
of contract or intentional infliction of emotional distress.
A handful of states have enacted laws specifically
addressing caregiver discrimination. The District of Columbia, for
example, has an ordinance protecting workers from family
responsibilities discrimination and similar legislation is pending
in California. In Alaska, a more limited statute protects workers
from discrimination based on parental status. A similar executive
order covers federal workers and contractors.
Employer training is the key to reducing family
responsibilities discrimination and lawsuits. The commission’s new
guidelines make it clear employers must focus on the job, not family
or kids. Employers are advised to stay away from those issues and
stick to the job description, both in interviews and in
conversations.
Employers, for example, shouldn’t assume a female
employee can’t handle the demands of motherhood and a full-time job.
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U.S. Supreme Court limits disparate pay
claims |
Workers who think they’ve been discriminated against
in their paychecks must file claims within a much shorter time
period following a recent U.S. Supreme Court decision.
Prior to the ruling, workers could wait potentially
years before filing a claim that they were underpaid because of
discrimination. The rule was that each paycheck containing
inequitable pay was a “continuing violation” of federal law that
extended the deadline for filing claims.
But the Supreme Court rejected that rule, saying the
180-day filing deadline was triggered from when the alleged
discriminatory pay decision was initially made and “communicated” to
a worker. The deadline is 300 days under some state employment laws.
Companies are hailing the decision because it will
help avoid defending against “stale” claims.
But employees fear it will be much harder to
accumulate evidence of unequal pay within the shorter time period.
Sometimes it takes time before employees can reasonably suspect they
are not being fairly paid.
For example, a woman can be hired and then find out
a year later her starting salary was lower than a man’s starting
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salary doing the same job.
In the case before the court, Lily Ledbetter was a
manager at a Goodyear plant in Alabama. She sued the company under
Title VII, claiming it had paid her 15 to 40 percent less than her
male counterparts for 20 years. A federal jury awarded her $3.8
million.
On appeal, Goodyear claimed that Ledbetter’s
recovery should be limited to acts of discrimination within the
180-day period prior to her filing a charge with the Equal
Employment Opportunity Commission.
The Supreme Court agreed.
The court said a new violation of the law doesn’t
occur each time a paycheck is issued. The initial discriminatory
payment triggers the filing deadline, and subsequent discriminatory
payments are simply the effect of past discrimination, the court
reasoned.
Since salaries and wages are often kept secret from
other employees, claimants could argue the discriminatory nature of
their pay was not “communicated” to them until after the 180-day
deadline.
We are available to discuss your options in this
evolving area of law.
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Undocumented worker can sue for sex
harassment |
An undocumented alien can sue her employer for
sexual harassment on the job.
The worker, employed as a cook at a restaurant,
complained to her employer that a supervisor sexually harassed her.
In investigating the complaint, the employer discovered the woman’s
social security number did not match her name. Although the
harassing manager received a written warning, the woman was fired.
She then sued her employer, claiming sexual harassment. |
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The restaurant filed for summary judgment, arguing
the woman wasn’t allowed to sue because she was an undocumented
alien and her employment was prohibited under federal immigration
law.
But a Minnesota court disagreed, concluding that
undocumented workers can sue for sexual harassment. Undocumented
workers should be allowed to pursue civil rights claims on their own
behalf, the court said.
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Guardsman wins $1 million after Target
fired him |
A jury recently ordered Target Corp. to pay nearly
$1 million in damages for retaliating against a National Guardsman
who complained about being demoted when he returned from active
duty.
A graduate of West Point, James Patton served six
years in the Army before retiring as a captain in 2001. After the
Sept. 11, 2001 terrorist attacks he joined the Oregon National
Guard.
Patton had been working for Target since the summer
of 2000 and was employed as a group leader at the company’s
distribution center in Albany, Ore.
After returning from a two-week term of active
military duty with the National Guard in 2003, Patton was told he
had been demoted.
He sent an e-mail to co-workers at other Target
warehouses informing them of the demotion and directing them to
contact his successor. Patton also contacted an employer support
representative from the Oregon National Guard to help convince
Target to reinstate him to his prior position.
In mid-July 2003, Target fired Patton, |
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saying his e-mail to co-workers was disruptive
and violated company policy.
Patton testified at trial about his treatment, the
timing of his National Guard training and his demotion on the day he
returned from active duty. He told the jury that after his
supervisors demoted him, they told him to take a week off. He said
he was told by one human resources official that the company thought
he would quit after being demoted.
Target contended that it does not discriminate on
the basis of military service and has a strong history of supporting
employees who are veterans, reservists or members of the National
Guard. Several of Patton’s supervisors testified that both his
demotion and termination were based on legitimate personnel reasons.
But the jury ultimately found that Target officials
retaliated against Patton for asking the National Guard to
intervene. They awarded him $84,970 in lost wages, other economic
damages and non-economic damages. The jury also ordered Target to
pay $900,000 in punitive damages.
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Hourly wage suit for ‘donning’ safety
clothing denied |
Union employees for a poultry processing company
were not entitled to compensation under federal law for time spent
putting on and taking off protective clothing, according to a recent
federal appeals court ruling.
This topic continues to develop in court rulings
around the country. For example, a contrary ruling on this issue
came out earlier from another federal appeals court.
In the most recent case, the employer compensated
workers from the time chickens to be processed reached the
production line. Employees were paid |
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based on when the first and last chickens
reached the production line.
The workers had to wear various articles of
protective clothing, which they had to put on before working on the
production line. They had to remain after the production line time
ended to take off the protective gear.
The court said the federal Fair Labor Standards Act
did not include “hours worked” for time spent changing clothing at
the beginning and end of each workday, when that time was excluded
from measured working time under the collective bargaining
agreement.
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Should retirement pay put in IRA reduce
amount of disability benefits? |
An attorney stricken with cancer was fired by his
employer when he was unable to return to work.
The man, 64, received $790,440 in retirement
benefits, which he chose to roll over into an IRA. He then sued the
disability insurance carrier after he was denied disability
benefits. A trial court judge eventually awarded him $325,451.
The carrier argued the disability benefits awarded
should have been reduced by the retirement benefits, since the
disability plan required a deduction of benefits by the amount of
funds |
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“received” related to the disability.
But a federal appeals court ruled against the
insurance company. The court said funds “received” means money that
a recipient possesses – and money rolled over into an IRA doesn’t
actually come into the possession of the retiree since he didn’t
gain any additional authority over the funds.
The court noted that the switch of money into the
IRA did not enhance the man’s control over the retirement benefits.
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This newsletter is designed to keep you
up-to-date with changes in the law. For help with these or any other
legal issues, please call our firm today.
The information in this newsletter is intended
solely for your information. It does not constitute legal advice,
and it should not be relied on without a discussion of your specific
situation with an attorney.
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