Posts Tagged: legal

Family and Medical Leave Act: Job-Protected Leave for Family and Medical Reasons

The Family and Medical Leave Act (FMLA) is a federal law that gives “eligible” employees of covered employers the right to take a limited amount of unpaid, job-protected leave for specified family and medical reasons. The FMLA entitles an employee on qualified leave to continued group health insurance coverage under the same terms and conditions as if she had not taken leave. Read the law at 29 U.S.C. § 2601, et seq.

Employee Eligibility Requirements

Subject to a pair of relatively uncommon exclusions, 29 U.S.C. § 2611(2)(B), and the employer coverage requirements, 29 U.S.C. § 2611(4), an employee is generally “eligible” for FMLA rights if the employee has (i) been employed by her employer for at least 12 months and (ii) worked at least 1,250 hours during the previous 12 months. 29 U.S.C. § 2611(2)(A). The employee also has to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. 29 U.S.C. § 2611(2)(B).

Covered Employer Requirements

The FMLA applies to covered “employers” — that is, the law only requires employers who meet certain specified criteria to comply with its job-protected leave provisions. Under the FMLA, a covered “employer” is generally any person or entity engaged in any activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(4)(A). This includes any “public agency”, as that term is defined in section 203(x) of the Fair Labor Standards Act, as well as the Government Accountability Office and the Library of Congress. 29 U.S.C. § 2611(4)(A)(iii), (iv). See also the covered employer regulations at 29 C.F.R. § 825.104.

FMLA Rights of Eligible Employees

The FMLA entitles eligible employees of covered employers to:

  • Twelve workweeks of leave in a 12-month period for any of the following, or any combination of the following:

 

A) the birth of a child and to care for the newborn child within one year of birth;

 

B) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

 

C) to care for the employee’s spouse, child, or parent who has a serious health condition;

 

D) a serious health condition that makes the employee unable to perform the essential functions of his or her job;

 

E) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty” under 29 U.S.C. § 2611(14); or

  • Twenty-six workweeks of leave during a single 12-month period to care for a “covered servicemember,” 29 U.S.C. § 2611(15), with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin. This form of leave is commonly known as military caregiver leave.

29 U.S.C. § 2612(a)(1); §§ 2612(a)(3) & 2613 (military caregiver leave).

The law generally entitles an employee, upon returning from bona fide FMLA leave, to return to (A) the position she held when the leave commenced, or (B) an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614(a)(1).

Maintenance of Employee Benefits During Leave

During any FMLA leave, an employer must generally maintain the employee’s coverage under any group health plan (as defined in the IRS Code at 26 U.S.C. § 5000(b)(1)) on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. 29 C.F.R. § 825.209(a); 29 U.S.C. § 2614(a)(2).

Serious Health Condition Defined

In order to qualify for FMLA leave for a “serious health condition” under section 2612(a)(1)(D), the employee must have an illness, injury, impairment, or physical or mental condition that involves either (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

The FMLA’s implementing regulations, located at 29 C.F.R. § 825, discuss the law’s “serious health condition,” “inpatient” care,” “continuing treatment,” “health care provider,” and other requirements in detail.  

Employer Notice Requirements

The FMLA requires employers to inform eligible employees about their rights and responsibilities under the law. See 29 C.F.R. § 825.300. For example, employers must post conspicuous notices explaining the FMLA’s provisions and providing information concerning the procedures for employees to filing complaints of violations of this law with the Department of Labor’s Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. 29 C.F.R. § 825.300(a).

In addition to providing the general notice, employers must also notify employees about their eligibility status, rights, and responsibilities under the FMLA. Employers must also inform employees whether their specific leave is designated as FMLA leave and explain the amount of time that will count against their FMLA leave entitlement. See 29 C.F.R. § 825.300.

The FMLA also generally requires employees to timely notify employers in advance when they need to take FMLA leave. The law’s implementing regulations at 29 C.F.R. §§ 825.302, 303, and 304 discuss the employee notice requirements in detail. Here is a fact sheet from WHD with some general guidance about employee notice responsibilities.

Interference Prohibited

The FMLA prohibits employers from interfering with employees’ FMLA rights. This means an employer cannot interfere with, restrain, or deny an employee from exercising or attempting to exercise the rights provided by this law. 29 U.S.C. § 2615(a)(1).

Retaliation Prohibited

The FMLA also prohibits employers from retaliating against employees because they exercise or try to exercise FMLA rights. In other words, an employer cannot discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the FMLA, or for participating in any proceedings or inquiries under this law. 29 U.S.C. § 2615(a)(2) & (b).

For example, the law’s anti-interference and anti-retaliation provisions generally prohibit employers from refusing to authorize FMLA leave for an eligible employee; discouraging an employee from using FMLA leave; manipulating an employee’s work hours to avoid responsibilities under the FMLA; using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; or counting FMLA leave under “no fault” attendance policies.

Enforcement

Unlike many employment laws, the FMLA is not enforced by the Equal Employment Opportunity Commission. Employees may, therefore, seek to vindicate their FMLA rights in court without first filing administrative charges with EEOC. However, in some cases employees whose FMLA rights have been violated may also have viable claims under the Americans with Disabilities Act (ADA). The EEOC enforces the ADA, and therefore employees must submit their ADA claims to the EEOC and receive suit rights before taking those claims to court.

The Department of Labor’s Wage and Hour Division administers and enforces the FMLA for all private, state and local government employees, and some federal employees. The Wage and Hour Division investigates complaints, and also publishes resources, general guidance, and helpful fact sheets about various aspects of this law. In general, an FMLA action must be brought within two years from the date of the alleged violation. See 29 U.S.C. §2617(c).

Remedies

An employer who violates an employee’s FMLA rights may be required to compensate the employee for lost wages, benefits, or other compensation, or other actual monetary losses, caused by the violation, plus interest on that amount. 29 U.S.C § 2617(a)(1)(A). The employer may also have to pay the employee additional “liquidated damages” in an amount equal to the sum of the economic losses and interest recovered. Id. In other words, the employer could have to pay the employee twice what the employee lost. The FMLA also authorizes courts to order equitable relief, such as employment, reinstatement, or promotion, to remedy violations. 29 U.S.C. § 2617(a)(1)(B). The law also provides that an employee who obtains a judgment may recover from the employer her litigation costs, reasonable attorney’s fees, and reasonable expert witness fees. 29 U.S.C. § 2617(a)(3).

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 

Vance v. Ball State, 133 S.Ct. 2434 (2013): Vicarious Liability for Workplace Harassment

Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.

The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.

In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.

Co-Worker Harassment: Negligence

Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.

Supervisor Defined

Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim. A tangible employment action means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

In so defining “supervisor,” the Court rejected various colloquial meanings of the term, and determined the concept was best understood by looking to the employer / employee framework set out in Title VII and the Court’s prior decisions in Ellerth and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

Supervisor Harassment I: Strict Liability for Harassment Resulting in a Tangible Employment Action

The Vance Court further decided that if a supervisor’s harassment culminates in a “tangible employment action”, then the employer is strictly liable for the harassment. For example, if a supervisor demoted or fired a subordinate because she refused his sexual advances, the employer is responsible for that harassment — regardless of whether anyone at the company other than the harassing supervisor and the victim knew about the harassment.

Supervisor Harassment II: In the Absence of a Tangible Employment Action, Employer May Escape Liability with Faragher / Ellerth Defense

The Vance Court also discussed the standard for holding an employer liable for supervisor harassment when the harassment does not result in a tangible employment action. Under those circumstances, the Court explained , the employer may escape liability for the harassment if it can establish, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. This affirmative defense was described at length in previous Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 765 (1998). This is significant, because when the harasser is a supervisor the burden of proof is on the employer to prove this defense, as opposed to the situation where the harasser was a co-worker, in which case the victim has the burden of proving the employer was negligent in controlling working conditions. If the employer cannot prove the Faragher / Ellerth defense or another defense, it will generally be liable for the supervisor’s harassment.

As noted above, if the harassing employee does not qualify as a supervisor and is instead just a rank-and-file co-worker, Vance says that to hold the employer liable, the harassment victim can show that the employer was negligent in controlling working conditions and allowing a work environment where harassment could take place. But as explained Vance, it is generally easier for the victim of harassment to prevail against an employer if the harasser  is considered a “supervisor” rather than a just “co-worker.” This is because the employer is strictly liable for a supervisor’s harassment — liable without proof of negligence — if the harassment results in a tangible employment action, or if the employer is unable to meet its burden of proof to establish the Faragher / Ellerth defense.

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.

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.

Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)

 

Oncale v. Sundowner Offshore Services is an important case in the development of employee protections from sexual harassment, same-sex discrimination, sexual orientation discrimination, and sexual identity discrimination. Specifically, Title VII of the Civil Rights Act of 1964 — the primary federal law barring sex-based discrimination in employment — prohibits workplace discrimination and harassment that is “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). This language plainly bars an employer from treating male employees better than female employees, or vice versa, and plainly bars employers from making sexual activities a condition of employment. But the text of Title VII does not specifically explain whether this “because of … sex” language also bars sexualized harassment by a straight employee against another straight employee of the same sex, or whether it bars discrimination against an employee because of his/her/their sexual orientation or gender identity.

Summary

Oncale specifically concerns the meaning of the phrase “because of…sex” in the context of same-sex harassment among straight male employees. The central decision in Oncale was that Title VII’s rule against discrimination “because of… sex” applied to sexualized harassment in the workplace between members of the same sex, even when the conduct at issue is not motivated by sexual desire. This decision was a precursor to later cases applying that same “because of … sex” language in the context of discrimination based on sexual orientation and gender identity.

Facts and Procedural Background

Oncale worked for Sundowner on an oil rig in the Gulf of Mexico. He was part of a crew of eight men. On several occasions, certain crew members subjected Oncale to “sex-related, humiliating actions … in the presence of the rest of the crew … physically assaulted Oncale in a sexual manner, and … threatened him with rape.” 523 U.S. at 77. Oncale complained to his supervisors about the behavior, but they allowed it to continue. Oncale eventually quit, and requested that his personnel file reflect that he left “due to sexual harassment and verbal abuse.” Id. Apparently all the crew members were straight, so presumably their actions were not motivated by sexual desire. Id. at 79.

Oncale sued Sundowner, claimed that the harassing behaviors directed against him by his straight male co-workers constituted discrimination “because of … sex” under Title VII. The District Court granted summary judgment for Sundowner, dismissing the case on the grounds that Oncale, being male, had no cause of action under Title VII for harassment by male co-workers. The Fifth Circuit affirmed. 83 F.3d 118 (1996).

Supreme Court Decision: Same-Sex Discrimination is Action Under Title VII

In a 9-0 decision written by Scalia, the Supreme Court reversed, holding that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court’s reasoning here was that (1) under Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682 (1983), Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, and (2) under Castaneda v. Partida, 430 U. S. 482, 499 (1977), in the related context of racial discrimination in the workplace, the Court had rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Castaneda, 430 U.S. at 499. It therefore follows that males might discriminate against other males.

The Court’s Rationale

The Court further explained there was no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of … sex” just because the victim and the harasser are of the same sex. Scalia explained that while male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII … Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

The Court therefore held that same-sex harassment is actionable under Title VII, so long as the conduct meets the well-established elements of a sexual harassment claim: (1) that the conduct at issue was “not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex’ and (2) that the conduct “severe or pervasive enough to create an objectively hostile or abusive work environment[.]” Id. at 81.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Scalia further pointed out that in all harassment cases, including same-sex cases, the “severe or pervasive” inquiry requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale at 81. For example, “[a] professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Id. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 81-82.

The Court therefore rejected Sundowner’s argument that recognizing liability for same-sex harassment would transform Title VII into a “general civility code” for the American workplace. Scalia explained that Title VII is directed at discrimination “because of” sex, not merely “conduct tinged with offensive sexual connotations.” Id. at 81. The Court also pointed out that Title VII does not reach “genuine but innocuous differences” in the ways men and women routinely interact with members of the same, and the opposite, sex. Id.

Analysis and Significance

In short, Oncale is important because it held that Title VII’s protection against workplace discrimination “because of… sex” applies to sex-based conduct between members of the same sex, even in the absence of sexual desire. This was an important early decision in the development of the rights of employees to be free from workplace discrimination because of their sexual orientation or gender identity. For example, in 2015 the EEOC cited Oncale as part of its rationale for issuing an agency decision that Title VII bars sexual orientation-based employment discrimination. Oncale therefore laid the foundation for analyzing same-sex harassment and sex-based harassment without “sexual desire” by indicating that any discrimination based on sex is actionable if it places the victim in an objectively hostile or abusive work environment, regardless of the victim’s or harasser’s gender or sexual preference.

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.  

Equal Pay Act of 1963: Equal Pay for Equal Work

The Equal Pay Act (EPA) prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. 29 U.S.C. § 206(d). Enacted in 1963, the EPA was an amendment to the Fair Labor Standards Act of 1938 (FLSA) and (under certain circumstances) is enforced by the Equal Employment Opportunity Commission (EEOC). Here’s a link to the EEOC Compliance Manual on compensation discrimination. The forms of compensation in which the EPA requires equality include all payments made to or on behalf of employees as remuneration for employment. This ultimately covers all forms of compensation including:

  • Salary
  • Overtime pay
  • Stock options
  • Profit sharing and bonus plans
  • Bonuses
  • Vacation and holiday pay
  • Life insurance
  • Hotel accommodations
  • Cleaning or gasoline allowances
  • Reimbursement for travel expenses
  • Benefits

Substantially Equal Work

In short, the EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Determination of job equality is based on the content and requirements of the job itself, not the job title. Under the EPA, job factors and requirements are measured by looking to whether the job roles being compared entail substantially equal amounts of skill, effort, responsibility, and working conditions within the same establishment. The comparative skills of job roles are measured by looking to the experience, ability, education and training required to perform their respective daily job requirements. This means the skills required to complete the job, not what skills an individual employee has prior to taking the job. Therefore, two jobs could be considered equal under the EPA even if one of the employees holds a higher degree in another field. If the degree is not specific to the job requirements, it does not need to be considered under the EPA.  

Under the the EPA, a comparison of job effort looks to the amount of physical or mental exertion it takes to perform the necessary job requirements. If there is are two jobs within the same department, and one requires more effort (physically or mentally) than another, then lower payment for the job requiring less exertion may not violate the EPA or its regulations, regardless of whether that job is held by a female or male employee.

Similarly, under the EPA, a comparison of job responsibility turns on the degree of accountability required to perform the respective positions. If a corporate representative holds a position that requires more accountability and responsibility than another position, this may justify difference in pay between the two positions. Additionally, a comparison of jobs under the EPA may entail an evaluation of working conditions, such as physical surroundings or hazards.

Pursuing Claims for Pay Discrimination Under the EPA

If an employee believes her or his employer has run afoul of the EPA by failing to provide equal compensation for equal work, the employee can either file a charge with the EEOC or a lawsuit in court. Importantly, however, under the EPA, an employee is generally required to file a lawsuit within two years of when she received the discriminatory pay. It is important to understand that, unlike some other laws, the filing of a charge with the EEOC does not toll or extend the two-year limitations period for filing an EPA lawsuit.

Compliance Entails Increasing Pay

If an employer needs to correct a pay differential to comply with the EPA, the law requires the employer to increase the pay of the lower paid employee. The EPA specifically prohibits employers from creating pay “equality” by reducing the pay of the higher paid employee. 29 U.S.C. § 206(d)(1).

Exceptions to the EPA

The are four main exceptions to the EPA — situations in which a difference in pay between men and women who perform substantially equal work does necessarily not violate the law. These exceptions arise when the difference in pay results from (i) a seniority system; (ii) a merit system; (iii) an incentive system, i.e. a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. § 206(d)(1).

These exceptions are affirmative defenses, meaning the employer has the burden of proving them. To use one or more of these exceptions in defending against a claim of unequal pay between men and women, the employer must establish that the difference in pay was the result of a real (“bona fide”) merit, seniority, or incentive system. The employer must therefore prove that the systems were bona fide, meaning they were not put in place for discriminatory purposes. To determine whether a merit, seniority, or incentive system is “bona fide”, courts may look to a variety of factors, including whether the employer used predetermined criteria to measure merit, seniority, or productivity; whether the criteria were communicated to all employees; whether the criteria were consistently applied to all employees; and whether those criteria truly were the basis for any disparity in the compensation received by male and female employees.  

The Lilly Ledbetter Act

The Lilly Ledbetter Fair Pay Act of 2009 made it easier for many employees to bring claims to recover for violations of the EPA. The Ledbetter Act was the first bill that Obama signed into law as president. The Ledbetter Act responded to a 2007 Supreme Court decision (Ledbetter v. Goodyear, 550 U.S. 618 (2007), link to decision here), which made it harder for certain workers to pursue pay discrimination claims because it interpreted the statute of limitations of pay disparity claims to run from the date the employer decided on a pay rate (often the date of hire).

In the Ledbetter case, a former longtime Goodyear employee alleged that she received poor evaluations based on her sex. Consequently, Ledbetter claimed, her pay did not increase as it should have if she had been evaluated fairly, and that by the end of her employment she was earning a significantly lower wage than her male colleagues. The jury found for Ledbetter, and awarded her back pay and damages; however, the Supreme Court ultimately threw out that verdict, on the grounds that Ledbetter’s pay discrimination claim was time-barred as to any pay decisions made more than 180 days before Ledbetter filed her charge of discrimination with the EEOC. In short, the Court held that a pay discrimination claim under Title VII could not be based on alleged events, such as the issuance of paychecks that paid women less than men for substantially equal work, that took place after the last pay decision. As a practical matter, this holding made it more difficult for workers to pursue claims of pay discrimination — particularly when the wage at issue was decided upon several years in the past — outside the applicable limitations period.

The Ledbetter Act changed that by clarifying that in pay discrimination cases, the relevant statute of limitations restarts each time the employer issues a discriminatory paycheck. The intended result of the Ledbetter Act was to make it easier for the victims of pay discrimination to recover lost wages.

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.  

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013): Different Standards for Proving Causation in Title VII Discrimination and Retaliation Claims

In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), the Supreme Court clarified the appropriate standards for proving causation in claims brought under Title VII of the Civil Rights Act of 1964. In short, the Court held that to prevail on a retaliation claim under Title VII, an employee must prove retaliation was a “but-for” cause of the adverse employment action at issue. This is arguably a more stringent causation standard than that available in Title VII claims for status-based discrimination, where an employee may prevail by showing her race, sex, religion, or national origin was a “motivating factor” behind the adverse employment action. But-for causation, however, does not require employees to prove retaliation was the sole cause of an adverse employment decision. Just like any event, a termination or other adverse action can (and often does) have multiple but-for causes.

Title VII protects employees and prospective employees from discrimination based on their race, color, sex, religion, or national origin. Under Title VII, an employer may not treat employees or job applicants differently based on such factors. 42 U.S.C. §2000e–2(a). In addition to those status-based discrimination protections, Title VII also prohibits employers from retaliating against any employees who oppose employment practices made unlawful by the statute, or who participate in filing complaints or investigations of discrimination. 42 U.S.C. §2000e–3(a).

Nassar highlights the differing standards for proving causation in Title VII retaliation claims and status-based discrimination claims, respectively.

Background

Nassar was a physician of Middle Eastern descent. His employer, University of Texas Southwestern Medical Center, held an affiliation agreement with a hospital, Parkland Memorial, that required the hospital to offer any vacant staff physician posts to University of Texas faculty members. Nassar held a position as a university faculty member and a hospital staff physician. During his employment, Nassar claimed a Dr. Levine, a supervisor, discriminated against him on account of his religion and ethnic heritage. Nassar brought this complaint to the attention of Dr. Fitz, the supervisor of Levine. After he arranged to continue working at the hospital without remaining on the university faculty, Nassar resigned from his university teaching position and circulated a letter explaining that he was resigning because of Levine’s harassment. Upset by the Levine’s public humiliation, Fitz objected to Nassar’s hospital job offer, and the offer was then withdrawn.  

Nassar filed suit, alleging two discrete violations of Title VII. First, Nassar claimed Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the university, in violation of 42 U.S.C §2000e-2(a), which prohibits an employer from discriminating against an employee “because of such individual’s race, color, religion, sex, or national origin.” This was, therefore, a claim of status-based discrimination. Second, Nassar claimed Fitz’s efforts to prevent the hospital from hiring him were in retaliation for his complaints about Levine’s discrimination and harassment, in violation of 42 U.S.C. §2000e-3(a), which prohibits employers from retaliating “because an employee has opposed… an unlawful employment practice… or… made a Title VII charge. The jury found for Nassar on both claims. The Fifth Circuit vacated the constructive discharge claim, but affirmed as to the retaliation claim, on the theory that retaliation claims brought under §2000e–3(a) —like §2000e–2(a) status-based claims— require only a showing that retaliation was a “motivating factor” for the adverse employment action, not its but-for cause. See 42 U.S.C. §2000e–2(m). And the Fifth Circuit found sufficient evidence to support the jury’s finding that Fitz was motivated, at least in part, to retaliate against Nassar for his complaints about Levine.

The Court’s Decision

The Supreme Court reversed, holding that Title VII retaliation claims require evidence of “but-for” causation, and could not be proved using the “motivating factor” standard of §2000e—2(m).

As the Court explained, an employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. In those claims, it is sufficient if the employee only shows that the motive to discriminate (because of race, color, sex, religion, or national origin) was one of the employer’s motives in taking an adverse employment action (like a termination or promotion denial), even if the employer also had other, lawful motives for the decision. This principle arose from the Civil Rights Act of 1991, which substituted a new Title VII burden-shifting framework for the one previously endorsed by the Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The 1991 Act added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000e–2(m). Significantly, the text of §2000e—2(m) does not mention the causation standard for retaliation claims.

Rather, Title VII’s anti-retaliation provision appears in a different part of the law from the ban on status-based discrimination. The Court noted that like 29 U.S.C. §623(a)(1), the Age Discrimination in Employment Act provision at issue in Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), §2000e–3(a) (Title VII’s anti-retaliation provision) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Finding a “lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1)”, the Court concluded that Title VII retaliation claims require proof that the desire to retaliate was a but-for cause of the challenged employment action.

In so holding, the Court rejected Nassar’s arguments that §2000e–2(m)’s motivating-factor test applied to retaliation claims. First, the Court noted that such a reading was inconsistent with the plain language of the motivating-factor section, which discusses only race, color, religion, sex, and national origin discrimination — i.e., status-based claims. The section says nothing about retaliation claims. 570 U.S. at 339, 352-53.

Second, the Court determined Nassar’s reading was inconsistent with the statute’s “design and structure.”  570 U.S. at 339, 353. This was because Congress made the motivating-factor provision a subsection within §2000e–2, which deals only with status-based discrimination. By contrast, another part of the 1991 Act, §109, expressly refers to all unlawful employment actions. The Court reasoned that if Congress had intended the motivating-factor section to apply to retaliation, it would have included similar language — addressing all unlawful employment actions, instead of just status-based actions — in the motivating-factor section. Congress did not do this. The Court, therefore, concluded that Congress deliberately omitted retaliation claims from the motivating-factor provision set out in §2000–2(m).

Third, the Court rejected Nassar’s proposition that Congress’ enactment of a “broadly phrased antidiscrimination statute”, like Title VII, may signal an accompanying intent to also ban retaliation against individuals who oppose that discrimination. 570 U.S. at 339, 354-55. Some cases seemed to support this argument. For example, in CBOCS West, Inc. v. Humphries, 553 U. S. 442 (2008), the Court held that 42 U.S.C. §1981 — which ensures that all persons “shall have the same right … to make and enforce contracts … as is enjoyed by white citizens” — prohibits not only racial discrimination but also retaliation against those who oppose it. Id. at 445, 452–453. Similarly, the Court has interpreted the broad wording of the ADEA’s federal-employee provisions (“All personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age”) as including a bar on retaliation. Gómez–Pérez v. Potter, 553 U.S. 474, 479, 487 (2008); 29 U.S.C. § 633a(a). But the Court found that these cases did not support the “quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for retaliation, especially in a precise, complex, and exhaustive statute like Title VII.”  570 U.S. at 339, 355. For example, the Court pointed out that the Americans with Disabilities Act of 1990, which contained detailed descriptions of the practices constituting prohibited discrimination, as well as an express, separate anti-retaliation provision, was passed only a year before §2000e–2(m) was passed. The Court found this shows that “when Congress elected to address retaliation as part of a detailed statutory scheme, it did so clearly.” Id. at 339, 357.

The Court also expressed concerns that applying a motivating-factor standard to retaliation claims would stress administrative and judicial resources, by potentially leading to an increase in claims where the employer had acted without retaliatory intent. 570 U.S. at 358-59.

Finally, the Court rejected Nassar’s last-resort argument that retaliation claims should be allowed to proceed under a motivating-factor framework because that approach would be consistent with the views of the Equal Employment Opportunity Commission, as expressed in its guidance manual. The Court determined that the EEOC’s explanations for its views “lack[ed] the persuasive force that is a necessary precondition to deference” under Skidmore v. Swift & Co., 323 U.S. 134 (1944). 570 U.S. at 361.

The Court therefore held that Title VII retaliation claims must be proved according to the traditional principles of but-for causation, not the more lenient motivating factor standard that § 2000e-2(m) applies to status-based discrimination claims.

Analysis

It is worth noting that while but-for causation is often viewed as a higher standard of causation than motivating-factor, it does not require employees to prove that retaliation was the sole cause of an adverse employment decision. A termination or other adverse action, just like any event, can (and often does) have multiple but-for causes. For example, a car might run off the road because the driver was speeding, the road was wet, and the tires were bald. If the road were dry, or if the driver had not been speeding, or if the tires had not been bald, the car would have stayed on the road. In that situation, the driver’s speed, the road conditions, and the tires were all but-for causes of the car leaving the road. Similarly, an employer might terminate an employee partly because the employee was not a top performer, and partly in retaliation because the employee had complained about sexual harassment. Under Nassar, the key question in these cases is simply whether the employer would have taken the adverse action in absence of a retaliatory motive. If the answer to that question is “no,” the but-for standard is satisfied.


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 VII of the Civil Rights Act of 1964: Protecting Employees from Race, Sex, Religion, and National Origin Discrimination

The Civil Rights Act of 1964 is a federal law enacted to prevent discrimination based on an individual’s race, color, sex, religion, or national origin. Title VII of the Civil Rights Act of the 1964 protects individuals against discrimination in employment. Under Title VII, an employer may not discriminate against employees or job applicants based on characteristics such as race, color, sex, religion, or national origin. Title VII also prohibits employers from retaliating against employees who participate in complaints or investigations of discrimination, or who otherwise oppose various kinds of discrimination. These provisions apply to all employers in both the private and public sectors, including federal, state, and local governments, that employ 15 or more individuals. In general, Title VII protects employees from discrimination or retaliation in a wide variety of employment processes and circumstances, including:

Recruiting
Hiring
Promoting
Training
Transferring
Disciplining
Discharging
Assigning work
Measuring performance
Providing benefits

Under Title VII, covered employees or job applicants cannot cannot be treated differently based on their race, religion, sex, or national origin. Additionally, the law provides that employers cannot discriminate against other employees because of their association with co-workers who may be discriminated against based on these protected characteristics. An employer’s policies and practices may be considered discriminatory under Title VII based on disparate treatment or disparate impact. Disparate treatment typically involves an employer’s intentional discrimination against an employee based on his or her protected characteristics. Disparate impact, by contrast, does not necessarily require discriminatory intent. Rather, under a disparate impact theory, an employer’s policy or practice might run afoul of Title VII if it disproportionately harms employees of certain gender or race (for example) as compared to other employees of a different gender or race — regardless of whether the employer intended the policy or practice to have a discriminatory effect.

Title VII is one of several laws enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC is a government agency responsible for enforcing and investigating potential violations of federal laws against discrimination in the workplace. These laws include not only Title VII of the Civil Rights Act, but also the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act of 1963 (EPA), Sections 501 and 505 of the Rehabilitation Act of 1973, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), and Titles I and V of the Americans with Disabilities Act of 1990 (ADA). In general, laws enforced by the EEOC make it illegal for an employer to harass or discriminate against an employee or applicant based on race, color, sex, pregnancy, religion, national origin, age, disability, or genetic information. Additionally, these laws prohibit employers from discriminating against employees who file charges of discrimination with the EEOC or who participate in a discrimination lawsuit or investigation.

An employee who believes his or her rights under Title VII have been violated must file a charge of discrimination with the EEOC in order to later pursue a Title VII claim in court. Once a charge is filed with the EEOC, the agency is authorized to investigate the complaint against the employer. As noted above, Title VII prohibits employers from retaliating against employees or applicants because they have filed a charge with the EEOC, participated in the investigation of a charge, or otherwise opposed conduct made unlawful by Title VII. If after its investigation the agency finds the employer engaged in illegal discrimination, it may attempt to settle the charge between the employee and employer. If unable to settle such a charge, the EEOC, in an effort to vindicate and protect the rights of the employee or employees, may consider filing a lawsuit in court on their behalf. However, given the agency’s large workload and limited resources, most charges of discrimination — regardless of their merit — do not result in lawsuits filed by EEOC. More frequently, after an investigation, the EEOC terminates its investigation and 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 within which to file a lawsuit against his or her employer regarding the discrimination at issue in the charge. While Federal employees and job applicants have similar protections to the protections afforded private and state or local government employees, federal employees and applicants have a different complaint process.

 

This article was originally published on timcoffieldattorney.net 

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 I of the Americans with Disabilities Act: Protections for Employees with Disabilities

Enacted in 1990, the Americans with Disabilities Act is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life. This includes jobs, schools, transportation, and all public and private places that are open to the general public. Similar to laws that prohibit discrimination based on race, gender, or religion, the ADA’s purpose is to ensure that people with disabilities have the same rights and opportunities as those who do not. This protects disabled individuals by guaranteeing equal opportunities in public accommodations, transportation, state and local government services, telecommunications, and employment. The ADA is divided into five titles. The first four titles each address a different sphere of public life, and the fifth section contains laws that apply generally to the first four, including protections against retaliation for people who seek to exercise their rights under the ADA:

Title I: Equal Employment Opportunities for Individuals With Disabilities;
Title II: Nondiscrimination on the Basis of Disability in State and Local Government Services;
Title III: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities;
Title IV: Telecommunications;
Title V: Miscellaneous, including protections against retaliation.

Title I of the ADA is intended to ensure disabled individuals have access to the same employment opportunities as people without disabilities. This part of the law is enforced by the Equal Employment Opportunity Commission. Among other things, this part of the law requires employers to provide reasonable accommodations to assist employees that qualify as disabled under the ADA. For example, an employer may need to provide a deaf employee with access to sign language interpreters, provide ramps for employees who use wheelchairs, or under some circumstances provide disabled employees with ergonomic desks or modified workstations. An employer should engage in an interactive process with its employees who have disabilities, to work together to identify and implement effective accommodations for their respective disabilities. The interactive process is ongoing. It may involve a series of meetings over time and oftentimes includes considering input from an employee’s physician. Employees should be able to perform the essential functions of their jobs with the required modifications or adjustments.

Title I of the ADA also prohibits employers from discharging, demoting, or denying advancement opportunities to disabled employees on the basis of their disabilities. An employee who believes they have been subjected to this form of disability discrimination may bring a lawsuit against his or her employer for not complying with the ADA (after first filing a charge of discrimination with the proper EEOC field office). Employees who seek to enforce in court their rights under the ADA to be free from disability-based employment discrimination generally must prove three elements:

The individual’s impairment must qualify as a “disability” within the meaning of the ADA. The ADA defines “disability” to include (1) any physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. To establish if an individual’s particular impairment substantially limits major life activities, a court will consider a variety of factors, including the nature of impairment and its severity, how long the individual has been dealing with the impairment, and the actual or expected long-term impact.

The individual is qualified and able to perform the essential functions of his or her job with or without reasonable accommodations. This simply means the individual needs to be able to do his or her job, and perform the duties that job entails, once the employer has made the necessary reasonable accommodations for the employee’s disability.

The individual has suffered an adverse employment action on the basis of his or her disability. An adverse employment action can include a termination, a demotion, the denial of a promotion, or other similar action by the employer that denies the employee advancement opportunities in the company. An adverse employment action “on the basis of disability” can mean a variety of things, depending on the circumstances. For example, it can mean the employer at least partly did not want to keep or advance the employee because of his or her disability, record of disabilities, or perceive disability. Under certain circumstances, it can also mean the employer failed to provide reasonable accommodations for an employee’s known disability, then terminated or denied opportunities to the employee because of perceived performance deficiencies that could have been avoided if the employer had reasonably accommodated the employee’s disability. For example, if an employer fails to provide a deaf employee with reasonable access to sign language interpreters, then fires the employee for not communicating effectively with others at work who do not know sign language, that might constitute a wrongful termination under the ADA.

In short, Title I of the ADA seeks to ensure that individuals with disabilities have equal access to employment opportunities as employees without disabilities. Under certain circumstances, employees who feel they have been denied reasonable accommodations at work, or otherwise mistreated by an employer due to a disability, may take legal action to address the issue and improve the equality of employment opportunities for themselves and other employees with disabilities.

This article was originally published on timcoffieldattorney.net

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.