Posts Tagged: discrimination

Corning Glass Works v. Brennan: EPA Law Requires Equal Pay for Equal Work

In Corning Glass Works v. Brennan, 417 U.S. 188 (1974), the Supreme Court addressed the allocation of proof in pay discrimination claims under the Equal Pay Act of 1963. This was the first Supreme Court decision applying the Equal Pay Act. The Court held that to prevail on an EPA claim, the plaintiff must prove that the employer pays an employee of the one sex more than it pays an employee of the other sex for substantially equal work. The opinion addressed what it meant for two employees to perform “substantially equal work” for the purposes of the Equal Pay Act, including what it means for work to be performed under “similar working conditions.” 

Facts

Corning was a glassworks company. It employed night shift inspectors and day shift inspectors at its plants. For many years, Corning allowed only men to work the night shift, and it paid night shift inspectors more than it paid the day shift inspectors, who were women. In June 1966, three years after the passage of the Equal Pay Act, Corning began opening the night shift jobs to women, allowing female employees to apply for the higher-paid night inspection jobs on an equal seniority basis with men.  

In January 1969, Corning implemented a new “job evaluation” system for setting wage rates. Under that pay system, all subsequently-hired inspectors were to receive the same base wage (which was higher than the previous night shift rate) regardless of sex or shift. With respect to employees hired before the new pay system went into effect, however, the pay plan provided that those employees who worked the night shift would continue to receive a higher (“red circle”) rate. Because of this “red circle” rate, the new pay system perpetuated the previous difference in base pay between day and night inspectors, thereby also perpetuating the previous disparity in pay between female (day) inspectors and male (night) inspectors. 

The Equal Pay Act prohibits an employer from paying different wages to employees of opposite sexes “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” except where the difference in payment is made pursuant to a seniority or merit system or one measuring earnings by quantity or quality of production, or where the differential is “based on any other factor other than sex.” 29 U.S.C. § 206(d)

The Secretary of Labor brought suit, asserting that Corning’s pay practices violated the EPA by paying male and female inspectors differently for equal work. 

The Court’s Decision

The Court addressed the question of whether Corning’s pay practices violated the EPA by paying different wages to employees of opposite sexes for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions[.]” The Court found that they did. 

First, the Court held that Corning’s pay practices from the passage of the EPA in 1963 to June 1966 violated the EPA, because during that period the night shift inspectors (all male) were paid more than the day shift inspectors (female) and the night shift and day shift inspectors performed equal work “under similar working conditions.” 29 U.S.C. § 206(d). Corning argued the difference between working at night and working at day meant the different positions did not entail similar working conditions. The Court rejected this argument, holding that the EPA’s legislative history established that the statutory term “working conditions,” as used in the EPA, encompasses only physical surroundings and hazards, and not the time of day worked. 417 U.S. 197-204.

Corning also argued that the pre-1966 pay disparity was lawful because the higher pay to (male) night inspectors was intended as additional compensation for the inconvenience of night work, and thus the pay disparity was based on a “factor other than sex[.]” 29 U.S.C. § 206(d). The Court rejected this argument, holding the evidence showed the pay disparity in fact arose because men would not work for the low rates paid to women inspectors. The pay disparity therefore “reflected a job market in which Corning could pay women less than men for the same work.” 417 U.S. 204-05.

Second, the Court held that Corning did not remedy its violation of the EPA in June 1966 simply by permitting women to work as night shift inspectors, because the violation could only be cured by increasing the base wages of female day inspectors to meet the higher rates paid to night inspectors. Corning’s action in allowing women to work the night shift did not accomplish this, as “Corning’s action still left the inspectors on the day shift — virtually all women — earning a lower base wage than the night shift inspectors because of a differential initially based on sex and still not justified by any other consideration[.]” 417 U.S. 207-08. In effect, “Corning was still taking advantage of the availability of female labor to fill its day shift at a differentially low wage rate not justified by any factor other than sex.” Id. Thus, Corning’s allowing women to work the night shift, without increasing base pay to the female day shift workers, did not remedy the EPA violation. 

Finally, the Court held the Corning did not remedy its violation of the EPA in January 1969 with its pay plan equalizing day and night inspector rates, because the plan’s higher “red circle” rate paid to employees who previously worked the night shift only perpetuated the previous unlawful pay disparity. This was because the previously-hired male night shift workers would receive the higher red circle rate based on their pre-1969 pay — before day and night wage rates were equalized. Thus, the pay plan had the unlawful effect of continuing the pay disparity between men and women for equal work. As the Court observed, “the company’s continued discrimination in base wages between night and day workers, though phrased in terms of a neutral factor other than sex, nevertheless operated to perpetuate the effects of the company’s prior illegal practice of paying women less than men for equal work.” 417 U.S. 209-10.

Analysis

This case was important because it marked the first time the Supreme Court addressed the requirements of the Equal Pay Act. The Court held that to prevail on an EPA claim, the plaintiff must prove that the employer pays an employee of one sex more than it pays an employee of the other sex for substantially equal work. The opinion addressed what it meant for two employees to perform “substantially equal work” for the purposes of the EPA, and held that the requirement for work to be performed under “similar working conditions” referred to physical surroundings and hazards, and not the time of day worked. If a male employee and a female employee perform equal work at different times of the day, they should therefore be given equal pay — unless the pay disparity is based on a seniority or merit system or one measuring earnings by quantity or quality of production, or where the differential is “based on any other factor other than sex.” 29 U.S.C. § 206(d). If an employer’s pay practices violate the EPA, the only way to cure the violation is to equalize wages between men and women — simply offering women the same job titles is not sufficient. And pay systems that have the effect of perpetuating prior discrimination may still violate the EPA — even if the pay system is neutrally-worded and made without intent to discriminate. 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Civil Rights Act of 1866: Racial Discrimination Unlawful

Congress enacted the Civil Rights Act of 1866 in the aftermath of the Civil War, when many southern states were passing laws restricting the legal rights of newly-freed slaves. The 1866 Act, among other things, conferred upon “all citizens” and “all persons” the same rights to own property and to make and enforce contracts, respectively. 

Since 1866, the Act has been re-enacted several times with some modifications. Of particular importance in the employment context, one portion of this law is now codified at 42 U.S.C. § 1981. In relevant part, Section 1981 provides that “All persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens[.]” Because the employer-employee relationship is a type of contractual relationship, Section 1981 prohibits racial discrimination in the employment context. 

In practice, Section 1981 functions similarly to Title VII of the Civil Rights Act of 1964, in that it prohibits employers from intentionally discriminating against employees on the basis of race. For example, the tests for proving a racially hostile work environment asserted under Section 1981 and Title VII are the same. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015). Under both laws, an employer is liable for a racially hostile workplace when the plaintiff can show “(1) unwelcome conduct; (2) that is based on the plaintiff’s … race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Id. at 277 (citing Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011)). 

Title VII and Section 1981 differ, however, in several important aspects.

Section 1981 Requires Intentional Discrimination

Title VII contains a provision that makes it unlawful for employers to implement practices that impact individuals of one race more than individuals of other races, even if this employer did not intend for the practice to be discriminatory. This “disparate impact” provision of Title VII prohibits an employer from “us[ing] a particular employment practice that causes a disparate impact on the basis of race [or other protected characteristics]” so long as the employer “fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity[.]” 42 U.S.C. § 2000e-2(k)(1)(A). Thus, an employer can violate Title VII’s prohibition on racial discrimination without intending to do so. 

Section 1981 does not have an analogous provision. Section 1981 claims, therefore, require evidence of intentional discrimination. The Supreme Court has rejected the argument “that a violation of § 1981 could be made out by proof of disparate impact….” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 383 n.8 (1982). In discussing the history of the statute and comparing it to Title VII, the Court explained Section 1981 was enacted to prevent purposeful discrimination and “did not include practices that were neutral on their face … but that had the incidental effect of disadvantaging blacks to a greater degree than whites.” Id. at 388. (quotation omitted).

Section 1981 Does Not Require an EEOC Charge

To bring a race discrimination claim under Title VII in court, a plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission. Before she can file a Title VII race discrimination claim in court, the plaintiff must then wait for the EEOC to complete its investigation and issue a Notice of Suit Rights. By contrast, a plaintiff may bring a lawsuit under Section 1981 for racial discrimination without first going through the EEOC process. 

Section 1981 Has a Longer Statute of Limitations than Title VII

Title VII claims have a relatively short statute of limitations — depending on the state, Title VII race discrimination claims generally must be reported to the EEOC within 180 or 300 days of the employer’s discriminatory actions, and a Title VII lawsuit must be filed in court within 90 days of the employee’s receipt of suit rights from the EEOC. By contrast, the text of Section 1981 does not specify a particular time limit within which claims must be filed. Section 1981 violations are therefore subject to the general four-year statute of limitations for civil actions arising under federal law. 28 U.S.C. § 1658. Section 1981 claims may therefore be brought in court within four years of the discriminatory action at issue. 

Title VII Covers More Types of Discrimination than Section 1981

Section 1981 only applies to discrimination based on race. Title VII, by contrast, outlaws race discrimination as well as discrimination based on “religion, sex, and national origin.” 42 U.S.C. § 2000e-2(a).

Section 1981 Applies to All Employers, Regardless of Size

Title VII only prohibits racial discrimination by employers with fifteen or more employees. 42 U.S.C. § 2000e(b). Section 1981, by contrast, contains no such limitation. Because the terms of Section 1981 apply to all forms of contracting, it applies to all employers regardless of size — including employers with fewer than fifteen employees.

Both Laws Allow Recovery of Compensatory and Punitive Damages, but Section 1981 Does Not Cap Damages

Title VII is subject to caps limiting the amount of compensatory and punitive damages an employer may be required to pay for violating the law. The applicable caps range from $50,000 to $300,000, depending on how many employees the employer has. 42 U.S.C. § 1981a(b)(3). The relevant statute authorizes compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses[.]” 42 U.S.C. § 1981a(b)(3). The same statute further allows punitive damages against private-sector employers for Title VII violations if the plaintiff shows the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).

Section 1981, by contrast, does not include a cap on damages. While the text of Section 1981 does not specifically discuss damages, courts have affirmed compensatory damages awards under Section 1981, Runyon v. McCrary, 427 U.S. 160 (1976), and held that a prevailing Section 1981 plaintiff is entitled under the common law to punitive damages “under certain circumstances,” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975). Specifically, punitive damages may be awarded “for conduct [by the defendant] exhibiting malice, an evil motive, or recklessness or callous indifference to a federally protected right,” Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir. 2000). This standard comes from the Supreme Court’s opinion in Smith v. Wade, 461 U.S. 30 (1983), in which the Court held that punitive damages are available under the common law in an action under the civil rights statute 42 U.S.C. § 1983 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith, 461 U.S. at 56. 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Meritor Savings Bank v. Vinson: Sexual Harassment is Unlawful Discrimination

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court recognized for the first time that sexual harassment is a violation of Title VII of the Civil Rights Act of 1964.. 

As discussed in an earlier post, Title VII protects employees from workplace discrimination “because of” sex. 42 U.S.C. § 2000e-2(a).

Meritor Savings Bank addressed the question of whether Title VII prohibits employers from creating a sexually “hostile environment” or only prohibited tangible economic discrimination, like terminations and demotions.

The Court held, inter alia, that “hostile environment” sexual harassment is a form of sex discrimination that is actionable under Title VII. Id. at 63-69. This is because the language of Title VII is not limited to “economic” or “tangible” discrimination, like a termination resulting in wage loss. Therefore, sexual harassment leading to purely non-economic injury (like emotional distress) can violate Title VII. 

Facts

In 1974, Meritor Savings Bank hired Vinson as a teller. Her supervisor was a man named Sidney Taylor. Vinson testified that Taylor subsequently invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sex. At first, she refused, but out of what she described as fear of losing her job she eventually agreed. According to Vinson, Taylor thereafter repeatedly demanded sexual favors from her, usually at the branch, both during and after business hours. She estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, Vinson testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and forcibly raped her on several occasions. Taylor denied all this. The District Court found that any sexual relationship between Vinson and Taylor was a voluntary one. 

In her suit against Taylor and the bank, Vinsom claimed that during her four years at the bank she had constantly been subjected to “sexual harassment” by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney’s fees.

The Court’s Decision

Meritor Savings Bank raised the question of whether Title VII’s prohibition on sex-based “discrimination” prohibits employers from creating a sexually “hostile environment” or was limited to a prohibition on tangible economic discrimination, like terminations and demotions.

The Court held that “hostile environment” sexual harassment is a form of sex discrimination that is actionable under Title VII. Id. at 63-69. This is because the language of Title VII is not limited to “economic” or “tangible” discrimination, like a termination resulting in wage loss. Therefore, consistent with EEOC’s interpretation of Title VII, sexual harassment leading to purely non-economic injury (like emotional distress) can violate Title VII.

In so holding, the Court emphasized the purpose of Title VII: “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult whether based on sex, race, religion, or national origin. 477 U.S. at 65. Citing the EEOC’s guidelines on sex discrimination, the Court held that an employee may establish a violation of Title VII “by proving that discrimination based on sex has created a hostile or abusive work environment.” Id

The Court quoted the Eleventh Circuit’s decision in Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982), which compared sex-based harassment to racial harassment:

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and made a living can be as demeaning and disconcerting as the harshest of racial epithets.

477 U.S. at 67. The Court went on to hold that for harassment to violate Title VII, it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” Id. (quoting Henson at 904).

The Court further held that “voluntariness” in the sense that an employee was not forced to participate in sexual conduct against her will, is no defense to a sexual harassment claim. The District Court had therefore erroneously focused on the “voluntariness” of Vinson’s participation in the claimed sexual episodes. In a sexual harassment case, the correct inquiry is whether the employee by her conduct indicated that the alleged sexual advances were unwelcome, not whether her participation in them was voluntary. 477 U.S. at 67-68. The Court further held that while evidence of an employee’s sexually provocative speech or dress may be relevant in determining whether she found particular advances unwelcome, such evidence should be admitted with caution in light of the potential for unfair prejudice. Id. at 69.

Analysis

Meritor Savings Bank marked the first time the Supreme Court recognized a cause of action for sexual harassment. The decision also clarified that sexual harassment creating a hostile work environment constitutes unlawful sex discrimination under Title VI. The case is also notable for questioning whether sexual conduct between a supervisor and a subordinate could truly be voluntary due to the power dynamics and hierarchical relationship between supervisors and subordinates.

Here’s a link to a contemporaneous 1986 New York Times article about the case and its significance.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Pregnancy Discrimination Act: Protections for Employees Relating to Childbirth

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. Specifically, the PDA prohibits employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Pregnancy discrimination therefore involves treating a worker unfavorably because of a pregnancy-related condition in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), and any other terms or conditions of employment. The PDA does not require employers to provide medical coverage for elective abortions, except where the mother’s life is endangered or medical complications have arisen from an abortion. As with the rest of Title VII, the PDA does not apply to employers with fewer than 15 employees (although such employers may be subject to similar requirements under state laws).

History

Congress enacted the Pregnancy Discrimination Act in response to the Supreme Court’s decision in General Electric Company v. Gilbert, 429 U.S. 125 (1976), which interpreted the original version of Title VII as not prohibiting discrimination on the basis of pregnancy. The PDA changed that by clarifying that the terms “because of sex” or “on the basis of sex” in Title VII’s section prohibiting sex discrimination included “because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e(k).The PDA further specified that  “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work[.]” Id.

As a result of the PDA, therefore, Title VII prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. This requires employers to treat women who are affected by pregnancy or related conditions the same way as any other employees or applicants who have a similar ability or inability to perform the job at issue.

The Equal Employment Opportunity Commission publishes helpful information about the PDA and the protections it provides.

Protections

The PDA (through Title VII) generally protects a female worker from employment discrimination because of pregnancy, childbirth, or any related medical conditions as long as she is able to perform the major functions of her job. For example, as a result of the PDA, an employer is prohibited from declining to hire or promote a pregnant worker because of her condition as long as she can do the job. This means an employer cannot refuse to hire or promote a pregnant woman based on stereotypes about pregnant workers, or because of any biases co-workers or customers may have against pregnant workers. The PDA further prohibits pregnancy discrimination in all other aspects of employment, such as pay, job assignments, layoffs, promotions, training, benefits, firing, or any other terms or conditions of employment.  

Under the PDA, pregnant employees who are able to work must be allowed to work. They cannot be held out from work just because they are pregnant, or have recently been pregnant. Nor can they be treated differently, on account of their pregnancy, from other employees with non-pregnancy-related medical conditions. For example, if an employee has to take pregnancy-related leave, her employer generally must hold her job for her for the same length of time that it holds jobs for other employees on sick or temporary disability leave. Similarly, an employer cannot require a pregnant employee able to work to take or remain on leave until giving birth. This means, for example, that if an employee has to miss work because of a pregnancy-related condition, and is later cleared to return to work before giving birth, the employer should allow her to return to work. The PDA also generally ensures that an employer cannot prohibit an employee from returning to work for some arbitrary length of time after giving birth. And just as Title VII prevents employers from denying job opportunities to or taking adverse actions against employees because of their sex, the PDA (through Title VII) prohibits employers from denying job opportunities to or terminating or demoting employees because of their pregnancies, childbirths, or related conditions.

 

If an employer provides health insurance to employees, the PDA generally requires that the insurance cover expenses incurred for treatment of pregnancy-related conditions on the same basis as expenses for other medical conditions. However, the PDA specifies that employers are not required to provide insurance coverage for expenses arising from abortion, “except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion[.]” 42 U.S.C. § 2000e(k). This generally means, for example, the PDA could require an employer to provide disability or sick leave for an employee who is recovering from an abortion, just as it would for women recovering from other pregnancy-related conditions.

 

Related Laws: ADA and FMLA

The protections of the PDA may sometimes overlap with the protections provided by Title I of the Americans with Disabilities Act. This is because impairments related to pregnancy or pregnancy-related conditions may qualify as temporary disabilities under the ADA, giving rise to the ADA’s protections and reasonable accommodation requirements. See 42 U.S.C. § 12112. Generally, under both the PDA and the ADA, employees who, due to pregnancy, are temporarily unable to perform their job tasks, should be treated the same as any other employee with temporary disabilities unrelated to pregnancy. Under the ADA, an employer might be required to provide an employee having pregnancy-related impairments with light duty work, modified tasks, alternative assignments, or temporary leave.  

 

Pregnant employees and new parents may also have additional rights under the Family and Medical Leave Act. The FMLA generally applies to eligible employees who have worked for their employer for at least 12 months and incurred at least 1,250 hours of service in the past 12 months. The FMLA allows an eligible employee to take up to 12 weeks of leave to care for a new child. 29 U.S.C § 2612(a)(1)(A). The Department of Labor’s Wage and Hour Division is a good resource for additional information about FMLA eligibility requirements, rights, and responsibilities.

 

Retaliation Prohibited

Because the PDA is part of Title VII, like Title VII, the PDA prohibits retaliation. This means it would be unlawful for an employer to punish an employee for opposing employment practices that allegedly discriminate based on pregnancy, or for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or litigation regarding alleged pregancy discrimination. See 42 U.S.C § 2000e–3.

 

Reporting Violations

As with Title VII’s broader rights regarding sex, race, national origin, and religious discrimination, an employee who believes she has been subjected to pregnancy discrimination must file a charge of discrimination with the EEOC in order to later pursue a PDA/Title VII pregnancy discrimination claim in court. Once the EEOC receives the charge, it has the power to investigate the allegations and require the employer to respond and give its side of the story. Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3, prohibits employers from treating workers or prospective workers unfavorably because they filed or participated in an EEOC charge or investigation.

 

If the EEOC, based on its investigation, determines the employer engaged in pregnancy-based discrimination, it may try to help the employee and employer resolve the matter by reach an agreement outside of court to remedy the discrimination. If settlement efforts do not succeed, in some circumstances the EEOC may consider filing a lawsuit to address the discrimination. However, due to the EEOC’s large caseload and limited resources, most EEOC charges do not result in lawsuits filed by EEOC. This is true even for charges that have a lot of merit. More commonly, after the EEOC concludes its investigation, it issues a notice giving the employee the right to pursue a lawsuit in court. After receiving the notice of suit rights, the employee has 90 days to bring a legal action in court regarding the discrimination referenced in the charge. Under the PDA, as with the rest of Title VII, federal workers and applicants have similar protections to those given to employees of private organizations and state or local governments. However, federal employees and applicants have a unique EEO complaint process.

 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Protections from Employment Discrimination Based on Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) protects employees and job applicants from employment discrimination based on genetic information. Title II of GINA prohibits employers (and various employer-like entities and programs) from using genetic information in making any employment decisions — such as firing, hiring, promotions, pay, and job assignments. This law also prohibits employers from requesting or requiring genetic information or genetic testing as a prerequisite for employment.

GINA went into effect on November 21, 2009. The Equal Employment Opportunity Commission (EEOC) enforces Title II of GINA, regarding protections from genetic discrimination in employment. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Genetic Information Defined

Under Title II of GINA, “genetic information” includes any information about an individual’s genetic tests and genetic testing of an individual’s family members. Critically, this definition encompasses an individual’s family medical history — i.e. information about diseases or disorders among members of the individual’s family. 42 U.S.C. §2000ff(4). EEOC regulations clarify that GINA’s use of the phrase “manifestation of a disease or disorder in family members” in its definition of “genetic information” refers to an employee’s “family medical history,” interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).

GINA’s definition of “genetic information” includes family medical history because this kind of information is often used to predict an individual’s risk of future diseases, disorders, or other medical conditions that might theoretically, in the future, impair her ability to work.

Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual. 42 U.S.C. §2000ff(4)(B). Genetic information under GINA also encompasses the genetic information of a fetus carried by an individual or a family member of the individual, and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. See 29 U.S.C. §1182(f).

Discrimination and Harassment on the Basis of Genetic Information

GINA’s basic intent is to prohibit employers from making a “predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.” H.R.Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. Congress therefore included family medical history in the definition of “genetic information” because it understood that employers could potentially use family medical history “as a surrogate for genetic traits.” H.R.Rep. No. 110–28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); see also the Final Rule implementing Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on November 9, 2010; and the Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on May 17, 2016.

To prevent employers from treating employees and applicants differently based on assumptions about their genetic traits, GINA prohibits employers from discriminating against an employee or job applicant on the basis of genetic information. This includes hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. 42 U.S.C. §2000ff(1)(a).

The rationale for this prohibition makes good sense. Just as Title VII prohibits discrimination on the basis of race, sex, or religion because these characteristics have no bearing on an individual’s ability to work, GINA prohibits employers from using of genetic information in making employment decisions because an individual’s genetic information has no bearing on her current ability to work.

Title II of GINA also prohibits harassment of the basis of genetic information. Harassment is a form of discrimination that does not necessarily involve an adverse employment decision (like a termination or demotion). For example, harassment can include offensive or derogatory remarks about an employee or applicant’s genetic information, or about the genetic information of a family member. A harasser might be a supervisor, a co-worker, or even a non-employee, such as a customer or client. To be considered illegal, the harassing conduct towards an employee or applicant must be either sufficiently pervasive or severe as to create an abusive work environment or must result in an adverse employment decision.

Six Exceptions to the Rule Against Obtaining or Requesting Employee Genetic Information

GINA prohibits employers from using an employee’s genetic information to make any employment decision and further prohibits employers from requesting, requiring, or purchasing genetic information about an applicant or employee. 42 U.S.C. § 2000ff–1(b). However, the law also provides six narrow exceptions to the rule prohibiting an employer from obtaining genetic information about employees. An employer may request, require or purchase genetic information if:

  • The information is acquired inadvertently, or accidentally;
  • The information is part of a health or genetic service provided by the employer on a voluntary basis, such as a wellness program;
  • The information is in the form of a family medical history to comply with the certification requirements of the Family Medical Leave Act (FMLA), state or local leaves laws, or specific employer leave policies;
  • The information is from sources that are commercially and publically available, including newspapers, books, magazines, and electronic sources;
  • The information is part of genetic monitoring that is either required by law or provided on a voluntary basis; or
  • The information can be requested, required, or purchased by employers who conduct DNA testing for law enforcement purposes as a forensic lab or for human remains identification.

See 42 U.S.C. § 2000ff–1(b).

Confidentiality and Disclosure of Genetic Information

If an employer obtains an employee’s genetic information under any of the exceptions, GINA requires that the information be kept confidential. If any of the genetic information is in written form, it must be stored apart from any other personal information in a separate medical file. 42 U.S.C. § 2000ff–5(a). An employer may, however, disclose employee genetic information to third parties under six limited circumstances:

  • If the employer is disclosing genetic information to the employee or family member about whom the information is regarding upon the written request of the employee or family member;
  • If the employer is disclosing genetic information to an occupational or another health researcher that is conducting research within federal regulations;
  • If the employer is disclosing genetic information in response to a court order, except that the covered entity may disclose only the genetic information that is authorized by the order;
  • If the employer is disclosing genetic information to government officials who are investigating compliance with Title II of GINA, provided the information is relevant to the investigation;
  • If the employer is disclosing genetic information in accordance with the certification process for FMLA leave or state family and medical leave laws; or
  • If the employer is disclosing genetic information to a public health agency in regard to information about the manifestation of a disease or a disorder that concerns a contagious illness that presents the imminent potential of death or life-threatening illness.

See 42 U.S.C. § 2000ff–5(b).

Retaliation

Similar to other employment laws, Title II of GINA prohibits any form of retaliation against an individual for opposing employment practices that discriminate on the basis of genetic information, or for participating in proceedings or investigations involving possible GINA violations. This means employers (and other people) may not fire, demote, harass, or otherwise retaliate against an applicant or employee for opposing genetic information discrimination or participating in a GINA proceeding. 42 U.S.C. § 2000ff–6(f).

Remedies

As with other employment and civil rights laws, if an employee prevails in court on a claim that her employer violated GINA, the employee may recover lost wages and other damages, as well as costs and reasonable attorney fees. 42 U.S.C. § 2000ff–6.

For additional information about this law and its history, the National Human Genome Research Institute is a solid resource.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

 

Originally published on timcoffieldattorney.net 

The Age Discrimination in Employment Act and the Older Workers Benefits Protection Act: Protections for Employees Over 40

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants age 40 and older from discrimination based on age in hiring, discharge, promotion, compensation, or other terms, conditions or privileges of employment. The Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, specifically prohibits employers from denying benefits to older employees, despite the increased costs of providing benefits to employees as they age.  

Prohibitions on Age Discrimination

Enforced by the Equal Employment Opportunity Commission, the ADEA applies to private employers with 20 or more employees, employment agencies, labor organizations, and state, local and federal governments. The purpose of the ADEA and the OWBPA is to promote employment of older workers based on their ability and skill, while protecting them from any form of discrimination or denial of benefits based on their age. As Congress observed in Section 2 of the ADEA, older workers often find themselves disadvantaged in their efforts to retain employment or to regain employment after being displaced from their jobs. 29 U.S.C. § 621. The ADEA sought to level the playing field for olders workers.

Under the ADEA, it is therefore unlawful to discriminate against a person over 40 because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

Specifically, Section 4 of the ADEA makes it unlawful for an employer unlawful to:

  • Fail or refuse to hire or discharge any person or otherwise discriminate against any individual with respect to terms, conditions, compensation, or privileges of employment due to the individual’s age;

  • Reduce the wage rate of any employee based on age; or

  • Limit or classify employees in a way that would deprive or potentially deprive them of employment opportunities.

See 29 U.S.C. § 623. The ADEA also applies to employment agencies, making it unlawful for them to:

  • Fail or refuse to refer for employment, or otherwise discriminate against any individual based on age, or classify or refer any individual for employment based on the individual’s age.

See 29 U.S.C. § 623(b). The ADEA also applies to labor organizations, making it unlawful for them to:

  • Exclude or expel from membership, or otherwise discriminated against due to an individual’s age; or

  • Limit, segregate, or classify its membership, or fail or refuse to refer employment in a way that would deprive or tend to deprive any individual of employment opportunities, because of the individual’s age.

See 42 U.S.C. § 623(c). It’s worth noting that the ADEA does allow employers and other applicable entities to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older. In other words, employers are allowed to discriminate against young employees based on their age.

Protection from Retaliation

Importantly, the ADEA also makes it unlawful to retaliate against an individual for opposing employment practices that discriminate based on age, or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. 29 U.S.C. § 623(d).

Specific Protections

The ADEA also includes a variety of specific protections for older workers in employment advertisements and job notices, apprenticeship programs, and pre-employment inquiries (although there is no prohibition on an employer asking an applicant’s age or date of birth as part of the application process).

Advertisements and Job Notices

The ADEA generally makes it unlawful for an employer to include age preferences, specifications or any limitations to job notices or advertisements. 29 U.S.C. § 623(e).

Apprenticeship Programs

The ADEA also generally makes it unlawful for apprenticeship programs to discriminate on the basis of age.

Pre-employment Inquiries

The ADEA does not specifically prohibit employers from asking an applicant’s date of birth or age. However, an employer’s inquiry about applicants’ ages may disparately impact older workers by discouraging them from applying, or may indicate a possible intent by the employer to discriminate based on age, inconsistent with the requirements of the ADEA.

Regulations interpreting the provisions of the ADEA are available here:

Benefits

Benefits for older workers are protected under the OWBPA amendment to the ADEA, which generally prohibits employers from denying benefits to older employees based on their age. This is a significant protection, as the cost of providing benefits to older employees is generally greater than the cost of providing the same benefits to younger employees. Congress recognized the financial implications of this protection, expressing a concern that the greater costs associated with older workers may create a disincentive for employers to hire older workers. Under limited circumstances, therefore, employers may be permitted to reduce certain benefits based on a worker’s age, provided the cost the employer incurs to provide those benefits to older workers is no less than the cost of providing the benefits to younger workers.   

Waivers of ADEA Claims or Rights

The ADEA and OWBPA also set out specific requirements that permit waivers of age discrimination claims or rights in certain circumstances. For example, employers sometimes offer to pay departing employees a severance payment if the employee will sign an agreement waiving any legal claims he or she might have against the employer, including age discrimination claims under the ADEA. Similarly, an employee might enter into a settlement agreement with her employer to resolve a potential age discrimination claim. Under the OWBPA, for an ADEA waiver to be valid, the waiver must meet minimum standards to be considered “knowing and voluntary.” Among other requirements, a valid ADEA waiver must:

 

  • Be in understandable writing;

 

  • Refer specifically to ADEA rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the employee was already entitled;

  • Not waive rights or claims that may arise in the future;

  • Advise the employee in writing to consult an attorney before signing the waiver;

  • Provide the employee with a certain amount of time to consider the agreement before signing — for individual agreements, at least 21 days, for “group” waiver agreements, at least 45 days, and for any settlements of ADEA discrimination claims, a “reasonable” amount of time.

 

See 29 U.S.C. § 626(f). If an employer requests an ADEA waiver in connection with a reduction in force — such as an exit incentive or other employment termination program involving a group, the minimum requirements for a valid waiver are more extensive. The EEOC has issued a detailed policy document describing the requirements for valid waivers under these circumstances, titled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements.”

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.