Posts Tagged: legal

Smith v. City of Jackson: ADEA Authorizes Employee Disparate Impact Claims

In Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), the Supreme Court recognized that the Age Discrimination in Employment Act, like Title VII of the Civil Rights Act, authorizes disparate impact claims. This means that an employee, to prevail on an age discrimination claim, does not necessarily have to prove her employer intended to discriminate against her because of her age. Under a disparate impact approach, an employee may prove age discrimination by showing the employer took an adverse action against her based on a standard or test that has the effect of adversely impacting older workers — regardless of whether the employer intended to adversely impact older workers. Unlike Title VII, however, § 4(f)(1) of the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” 544 U.S. at 233 (citing 29 U.S.C. § 623(f)(1)). The scope of disparate-impact liability under ADEA is therefore arguably narrower than disparate-impact liability under Title VII. Id. at 240.

As discussed in an earlier post, the Age Discrimination in Employment Act protects employees over age 40 from discrimination based on age in hiring, discharge, promotion, compensation, or other terms, conditions or privileges of employment

Title VII of the Civil Rights Act contains similar provisions outlawing discrimination because of race, sex, or religion. As discussed in an earlier post, the Supreme Court in in Griggs v. Duke Power Company, 401 U.S. 424 (1971), addressed the Title VII issues created by employer policies that are facially neutral, and which the employer does not intend as discriminatory, but which adversely impact employees on the basis of race, sex, or religion. Griggs decided that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately impacts minorities or women in an adverse manner, then the neutral rule or test violates Title VII unless the employer proves it is justified by “business necessity.”

City of Jackson addressed the question of whether the ADEA, like Title VII, allows disparate impact claims by prohibiting facially neutral employer practices that disparately impact older workers.

Facts

City of Jackson involved a challenge to a city’s pay plan for police officers that was relatively less favorable to older workers than to younger workers.

The Jackson plan divided the officers into five basic positions — police officer, master police officer, police sergeant, police lieutenant, and deputy police chief — and divided the pay scale for those positions into a series of steps and half-steps. The few officers in the two highest ranks were all over age 40. The raises they received under the plan, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries. These officers in the two highest ranks were the members of the class arguing that the pay plan had a “disparate impact” against older workers.

The Jackson plaintiffs’ evidence established two main facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did. Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority. Because the older officers tended to occupy more senior positions, on average they therefore received smaller increases when measured as a percentage of their salary. Jackson, 544 U.S. 228, 241–42.

The older officers in the two highest ranks filed suit against the City under the ADEA, on the grounds that the pay plan violated the law by having a disproportionate impact on workers over age 40.

The Court’s Decision

Addressing these facts, the Supreme Court held, that like Title VII, the ADEA authorizes disparate-impact claims. The Court also pointed out, however, that unlike Title VII, § 4(f)(1) of the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” Jackson, 544 U.S. at 233. The scope of disparate-impact liability under ADEA is therefore narrower than disparate-impact liability under Title VII. Id. At 240.

To make out an ADEA disparate-impact claim, the Court held that plaintiffs must do more than show a pay plan generally has the effect of being less generous to older workers. They must establish a “specific test, requirement, or practice within the pay plan that has an adverse impact on older workers.” 544 U.S. at 241. In Jackson, while plaintiff employees had proved that the plan was relatively less generous to older workers, they had not identified any specific test, requirement, or practice “within the plan” that had an adverse impact on older workers. Id.

The Court also discussed the provision of the ADEA that permits differentiation based on “reasonable factors other than age,” as applied to the factors underlying the pay plan at issue. See 29 U.S.C. § 623(f)(1). The Court observed that the basic explanation for the differential in the Jackson pay plan was the City’s perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market. The Court held that the disparate impact was attributable to the City’s decision to give raises based on seniority and position. “Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities… [Therefore] the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a “reasonable facto[r] other than age” that responded to the City’s legitimate goal of retaining police officers. Jackson, 544 U.S. at 242.

The Court therefore (1) held that the ADEA authorizes disparate impact claims, although the scope of such claims is somewhat narrower than the scope of disparate impact claims under Title VII, and (2) affirmed summary judgment for the employer city on the particular facts of that case.

Analysis

Under City of Jackson, employees may bring ADEA claims on the grounds that facially neutral employer practices or plans have a disparate impact on older workers. However, at least with respect to employer pay plans, it is probably not enough to just show that the end result of the pay plan was relatively less favorable to older workers than to younger workers. Employees would also need to identify a specific practice “within the plan” that adversely affected older workers. 544 U.S. at 241. In the trial court decisions applying City of Jackson under different factual circumstances, however, the practical difference between pointing out that a pay plan “is relatively less generous to older workers” and identifying a “specific test, requirement, or practice within the pay plan that has an adverse impact on older workers” is sometimes a little blurry. Id. For example, the Norfolk division of the Eastern District of Virginia denied an employer’s motion to dismiss an ADEA disparate impact claim, where the complaint alleged the employer “implemented a screening and evaluation process [that] did not evaluate applicants fairly[,] but instead discriminated against candidates based on age”; “employees who were substantially older and with vastly more experience in the position and field were systematically passed over for the ITS positions in favor of younger, less-qualified applicants”; and “support[ed] the allegations with statistical data highlighting the respective ages of the applicants and those selected.” Andreana v. Virginia Beach City Pub. Sch., No. 2:17-CV-574, 2018 WL 2182297, *6 (E.D. Va. May 9, 2018). Similarly, in Merritt v. WellPoint, Inc., 615 F. Supp. 2d 440, 446 (E.D. Va. 2009), the court denied a motion to dismiss where the plaintiffs identified several alleged “arrangements” made by the employer that had a disparate impact on older workers, including: “analytical models,” a “selection process which considered age, and age-related characteristics, as negative factors” including medical care or leave, the use of “metrics,” which disproportionately evaluated and/or impacted older employees, and a consideration of “age and/or age-related characteristics in the ‘cost’ of maintaining an older workforce.”)

The main takeaway is this. City of Jackson held that the ADEA, like Title VII, authorizes disparate impact claims. This means that an employee, to prevail on an age discrimination claim, does not necessarily have to prove her employer intended to discriminate against her because of her age. Under a disparate impact approach, an employee can prove age discrimination by showing the employer took an adverse action against her based on a standard or test that had the effect of adversely impacting older workers — regardless of whether the employer intended to adversely impact older workers. Unlike Title VII, however, the ADEA narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age[.]” ADEA § 4(f)(1). The scope of disparate-impact liability under ADEA is therefore arguably narrower than disparate-impact liability under Title VII.

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.

Employee Retirement Income Security Act: Protections for Employee Retirement and Health Plans

The federal Employee Retirement Income Security Act of 1974 (ERISA) sets requirements for most voluntarily created retirement and health plans in the private sector. ERISA’s rules are intended to protect the employees in these plans.

Among other things, ERISA (1) requires plans to provide participating employees with information about plan features and funding, and other plan information; (2) imposes fiduciary responsibilities on those who manage and control plan assets; (3) requires plans to establish a grievance and appeals process for participating employees to get benefits from their plans; and (4) gives participants the right to file lawsuits for unpaid benefits and breaches of fiduciary duty.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) is responsible for administering various provisions of ERISA. The DOL website, cited throughout this post, provides helpful information about ERISA rights and responsibilities. Here is a link to the text of the law.

ERISA Requires Plans to Provide Employees with Important Plan Information.

Under ERISA, plan administrators must provide participating employees with certain important facts about their health benefits and retirement plans. Plan administrators are the people who implement ERISA-covered plans and manage the assets that fund them. The information they must disclose to participating employees includes plan rules, financial information, and documentation about plan operation and management. ERISA requires plan administrators to automatically provide some categories of information to the plan holder. Other information, the administrator should provide upon written request.

Among the documents an ERISA plan administrator must provide is the plan’s Summary Plan Description. The SPD informs participating employees about the benefits their health or retirement plan provides and how the plan operates. The SPD also generally explains when an employee can start participating in the plan and how the employee should go about filing a claim for benefits under the plan. Participating employees must also be informed about changes to the plan, either through a revised SPD, or in a separate document, called a Summary of Material Modifications.

Required ERISA plan information also includes a Summary of Benefits and Coverage (SBC).  The SBC is a template document that should clearly summarize key features of the plan, including covered benefits, cost-sharing provisions, and coverage limitations. Plans and issuers must provide the SBC to participants and beneficiaries at certain times (including with written application materials, at renewal, at special enrollment, and on request). If a participating employee has trouble obtaining the annual report of a plan from the plan administrator, she or he can submit a written request to EBSA.

ERISA Imposes Fiduciary Responsibilities on Plan Managers.

ERISA also imposes fiduciary responsibilities on people or entities with discretionary control over plan assets or management, responsibility for the administration of a plan, or entities who provide investment advice for compensation or have the authority or responsibility to do so. For example, a plan fiduciary would generally include plan trustees, administrators, and investment committee members.

A plan fiduciary is primarily responsible for running the plan in the best interests of the plan participants and beneficiaries for the purpose of providing benefits and paying plan expenses. This entails, among other things, acting prudently and diversifying the plan’s assets to minimize the risk of large losses, while following the plan terms to the extent those terms comply with ERISA’s requirements.  

Plan fiduciaries must also take care to avoid conflicts of interest. This means they may not engage in transactions on behalf of the plan that benefit parties related to the plan, such as other fiduciaries, services providers, or the plan sponsor. If a plan fiduciary does not adhere to these principles of conduct, courts may take appropriate action to address the situation, such as removing the fiduciary and holding the fiduciary personally liable to restore losses to the plan, or to restore any profits obtained by improperly using plan assets.

ERISA Can Preempt State Law Breach of Contract Claims.

ERISA plans often look a lot like contracts — an agreement between an employer and an employee regarding pensions or other employment benefits. When a party to a contract fails to comply with its terms, the other party typically can file a lawsuit under state law for breach of contract. But when a plan administrator violates the terms of an ERISA plan, ERISA generally preempts a claim for breach of contract. See 29 U.S.C. § 1144(a) (“the provisions of [ERISA] shall supersede any and all State laws insofar as they now or hereafter relate to any employee benefit plan.” This generally means that an employee whose ERISA rights are violated must seek a remedy using ERISA’s private cause of action provisions (typically in federal court), rather than bringing a state law claim for breach of contract.

Considering ERISA’s objectives set forth in 29 U.S.C. § 1001(b), the U.S. Supreme Court has further explained Congress intended ERISA to preempt at least three categories of state law: (1) laws that “mandate[ ] employee benefit structures or their administration”; (2) laws that bind employers or plan administrators to particular choices or preclude uniform administrative practice; and (3) “laws providing alternate enforcement mechanisms” for employees to obtain ERISA plan benefits. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995).

In Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004), the Supreme Court described the test for preemption in the context of claims to recover employee plan benefits. “[I]f an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely preempted by ERISA § 502(a)(1)(B).” Davila, 542 U.S. at 210.

In other words, under Davila, ERISA preemption applies when two circumstances coincide. First, the employee’s claim must fall within the scope of ERISA, meaning that the claim has to be related to an employee benefit plan. Section 502(a) of ERISA authorizes an employee to bring a civil suit to recover these kinds of benefits. That section of ERISA authorizes a participating employee to file suit “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Second, there must be no other independent legal duty (aside from breach of the plan) implicated by the employer’s failure to provide the benefits at issue. If both criteria are met, ERISA preempts state law claims for recovery of the benefits.

The power of ERISA to convert claims under the laws of various states into a single kind of federal claim makes it easier for employers to have one uniform benefit plan, regardless of how many different states the employer operates in. In this sense, ERISA was designed to help larger employers and unions that operate in multiple states. ERISA’s preemption provision provides these organizations with uniformity, by allowing employers to focus on complying with the terms of ERISA throughout the country, at least to the extent that those terms preempt the various laws of 50 different states.

ERISA Does Not Preempt Federal Claims.

While ERISA preempts state laws, it does not preempt other federal laws. For example, ERISA preemption does not apply a claim under a federal law like the Americans with Disabilities Act. See 29 U.S.C. § 1144(d) (“Nothing in [ERISA] shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States (except as provided in sections 1031 and 1137(b) of this title) or any rule or regulation issued under any such law.”)

COBRA, HIPAA, and Other ERISA Amendments

Congress has amended ERISA many times. One of these amendments, the Consolidated Omnibus Budget Reconciliation Act (COBRA), provides some employees and their families with the right to continue their group health coverage (at their expense) for a limited time after certain events, such as voluntary or involuntary job loss, a transition between jobs, reduction in hours worked, divorce, death, and other major life events.

Another ERISA amendment, the Health Insurance Portability and Accountability Act (HIPAA) contains provisions aimed at protecting employees and their families from potential discrimination in health coverage based on factors that relate to an individual’s health. Among other things, HIPAA includes protections for coverage under group health plans that prohibit discrimination against employees and dependents based on their health status.

Other ERISA amendments include the Newborns’ and Mothers’ Health Protection Act, the Women’s Health and Cancer Rights Act (DOL fact sheet here), the Affordable Care Act, and the Mental Health Parity and Addiction Equity Act.

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.

Price Waterhouse v. Hopkins: The Law of Stereotyping

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court recognized Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The female employee in Price Waterhouse was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain gender stereotypes related to women. Id. at 235, 250-53. Six members of the Court held that adverse employment action like this, rooted in “sex stereotyping” or “gender stereotyping,” was actionable sex discrimination.

Facts

Hopkins worked for an accounting firm, Price Waterhouse, at its Office of Government Services in Washington, D.C. Despite several years of strong performance, she was denied partnership in the firm.

Price Waterhouse denied Hopkins partnership, in essence, because of her aggressive personality, which sometimes bordered on abrasiveness. For example, partners evaluating her work had counseled her to improve her relations with staff members. And although Hopkins’ evaluations later noted improvement, her perceived shortcomings in this area ultimately doomed her bid for partnership. In the firm’s consideration of Hopkins for a promotion to partner, virtually all of the firm’s partners’ negative remarks about her had to do with her “interpersonal skills.” Id. at 234-35. Both “[s]upporters and opponents of her candidacy … indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.” Id.

The Court observed that there were “clear signs” that some of the partners reacted negatively to Hopkins’ personality because she was a woman. Id. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Id. Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Id. Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Id. But the male supervisor who bore responsibility for explaining to Hopkins the reasons for the firm’s decision to not grant her partnership described her purported failings in terms of stereotypes about how women should behave: in order to improve her chances for partnership, the firm advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235.

In short, the record indicated Price Waterhouse denied Hopkins partnership because she did not behave the way Price Waterhouse believed women should behave.

Hopkins filed suit against Price Waterhouse under Title VII of the Civil Rights Act of 1964, on the grounds that she was unlawfully denied partnership because of her sex.

Applicable Law

As discussed in an earlier post, Title VII makes it unlawful for an employer to “discharge any individual, or otherwise discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Sex need only be a motivating factor, and not the only reason for the discharge or other discrimination. “[A]n unlawful employment practice is established when … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

This section clearly prohibits an employer from refusing to hire or promote a female because she is female and the employer would prefer a male. Price Waterhouse addressed the question of whether Title VII also prohibits an employer from discriminating against an individual because she or he does not conform to the employer’s (or society’s) stereotypes about how the different sexes should behave.

The Court’s Decision

Addressing the facts in Price Waterhouse, the Supreme Court held, inter alia, that Title VII’s prohibition on sex discrimination necessarily includes a prohibition on gender stereotyping. The Court noted that Hopkins was denied a promotion because she was “macho,” “tough-talking,” and used “foul language,” and therefore failed to conform to certain stereotypes related to women. Id at 235, 250-53. Six members of the Court held that adverse employment action rooted in such “sex stereotyping” or “gender stereotyping” was actionable sex discrimination. Id. at 250–52 (plurality; “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender”); see also id. at 258 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).

Analysis

This case is important in the context of developing and understanding Title VII’s prohibition against employment discrimination “because of sex.” Under Price Waterhouse, a discharge (or other adverse employment action) based at least partly on gender stereotyping is unlawful sex discrimination under Title VII. As the Fourth Circuit Court of Appeals explained in G.G. ex rel. Grimm (Grimm II), “the Supreme Court has expressly recognized that claims based on an individual’s failure to conform to societal expectations based on that person’s gender constitute discrimination ‘because of sex’ under Title VII[.]” 654 Fed. Appx. 606, 606–07 (4th Cir. 2016) (Davis, J., concurring) (internal citations omitted).

As the American Psychological Association explained in its amicus brief in Price Waterhouse, sex stereotyping can create discriminatory consequences for stereotyped groups — for example, where they shape perceptions about women’s typical and acceptable roles in society. The APA further explained, as seen in the circumstances surrounding Hopkins’ partnership denial, how sex stereoptyping can have negative effects on women in work settings. The Supreme Court’s decision in Price Waterhouse allowed Title VII to be applied in a manner that seeks to address and remedy these issues.

Following the reasoning in Price Waterhouse, courts around the country have consistently held that an employer violates Title VII when it takes adverse action against an employee because she or he does not behave the way the employer believes the different sexes should behave. For example, Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir. 2003), as amended (Jan. 6, 2004) characterized employer complaints about “assertive, strong women” as “difficult,” “having a negative attitude,” “not a team player,” and “problematic” as sex stereotypes that show discrimination. For similar reasons, in Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017) (en banc) the Seventh Circuit held that a female plaintiff could state a Title VII claim under a sex stereotyping theory. In Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam) the Second Circuit likewise held that the plaintiff employee stated a plausible Title VII claim based on a gender stereotyping theory. As did the Third Circuit, in Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (collecting cases, noting “the Supreme Court held that Title VII prohibits discrimination against women for failing to conform to a traditionally feminine demeanor and appearance”). In Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874–75 (9th Cir. 2001), the Ninth Circuit applied Price Waterhouse in the context of sex discrimination against a male employee, observing that “the holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.” Similarly, in Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000), the court noted that Title VII forbids “[d]iscrimination because one fails to act in the way expected of a man or woman”). The First Circuit applied Price Waterhouse in Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999), observing that “a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity.”

For some additional examples of stereotyping discrimination in the trial courts, see Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 746 (E.D. Va. 2018) (discussing the gender-stereotyping theory of Price Waterhouse, collecting cases, and concluding claims of discrimination on the basis of failure to conform with gender-based societal expectations are “per se sex discrimination under Title VII[.]”); and Klings v. New York State Office of Court Admin., 2010 WL 1292256, *11, *15-16 (E.D.N.Y. Apr. 5, 2010) (complaints that the female plaintiff had an “abrasive personality” and was “condescending” could reflect a “gender bias: that women do not have leadership and motivational skills, [and] cannot manage aggressively[.]”).

In summary, Price Waterhouse was an important case because, among other things, it confirmed that Title VII’s language prohibiting discrimination “because of sex” includes a prohibition on gender stereotyping.

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.

Anderson v. Mt. Clemens Pottery Co.: Burden of Proving Off-the-Clock Work

The Supreme Court classic Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),  concerned the extent to which employees’ pre-work activities are compensable working time under the Fair Labor Standards Act (for the text of the FLSA, go here). The case also addressed which party has the burden of proving how much time employees spend engaged in compensable working time. In short, the Supreme Court held that preliminary work activities, like putting on uniforms or preparing tools, were controlled by the employer and performed for the employer’s benefit, are properly included as working time under the FLSA. The Court further held that under the FLSA employees must be compensated for significant time spent preparing to work at the job site. The Court also decided the employer has the burden of proof for determining the exact wages owed to employees who perform off-the-clock work.

As discussed in an earlier post, Section 7(a) of the FLSA defines working time, and requires employers to pay overtime wages under certain circumstances. 29 U.S.C. § 207(a). Section 11(c) of the FLSA requires employers to keep accurate records regarding time on the job. 29 U.S.C. § 211(c). Section 16(b) of the FLSA enables employees to sue to recover lost wages. 29 U.S.C. § 216(b).

Facts

Mt. Clemens Pottery Company employed 1,200 workers at an 8-acre Michigan facility. The plant was about 400 meters long. The employees entered the plant on one side, and worked on the other side. 328 U.S. 682-83.

A time clock was located near the entrance. The employer gave employees 14 minutes between each shift to punch the time clock, walk to their respective workbench and prepare for work. It took a minimum of eight minutes for all the employees to get by the time clock. The estimated walking time for employees ranged from 30 seconds to three minutes, but some workers needed as many as eight minutes to reach their workbenches. Upon arriving at their workbenches, employees were required to put on aprons or overalls, remove shirts, tape or grease arms, put on finger cots, prepare equipment, turn on switches, open windows, and/or assemble or sharpen tools. These kinds of “preparatory activities” took three to four minutes. Id.

The employer calculated working time under the FLSA based on the time cards punched by the clocks. The employer then deducted walking and preparatory time from the time cards based on the punched time and assumptions about how long prep work and walking would take on average. 328 U.S. 683-84.

Seven employees and their labor union brought a collective action under Section 16(b) of the FLSA, on behalf of themselves and other similarly situated workers. The suit alleged that the employer’s calculations did not accurately reflect the time actually worked and that they were deprived of the proper amount of overtime compensation. In short, the employees claimed that the employer’s method of computation (i.e. deducting time from their recorded time at the worksite to eliminate time spent on preliminary activities) did not accurately reflect all the time actually worked. Therefore, the employees argued, they were thereby deprived of the proper overtime compensation guaranteed them by Section 7(a) of the FLSA. The employees claimed, among other things, that all employees worked approximately 56 minutes more per day than the employer gave them credit for and that, in any event, all the time between the hours punched on their time cards constituted compensable working time. 328 U.S.C. 684.

The Court’s Decision

The Court held that when an employee sues her employer under the FLSA for unpaid minimum wages or unpaid overtime pay, claiming the employer has kept inadequate records of the employee’s time actually worked, and the employee produces sufficient evidence to show the amount of work for which the employee was not properly compensated as a matter of “just and reasonable inference,” the burden shifts to the employer to produce evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference favoring the employee. 328 U.S.C. § 687. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may only be approximate, based on a reasonable estimate of amount of time the employee worked without compensation. Id. In other words, where the employer has not kept accurate records of all the time an employee works, the employer cannot complain that the unpaid minimum wages or overtime pay awarded to the employee lack the exactness that would have been possible had the employer kept accurate records. Id.

In reaching this conclusion, the Court reasoned that Section 11(c) of the FLSA imposed upon the employer, not the worker, the duty to keep proper records of wages, hours and other conditions and practices of employment. Where an employer fails to keep accurate records of time worked (i.e. including time worked off the clock, or time spent conducting preliminary activities before clocking in), the law does not deny recovery on the ground that the employee is unable to prove the precise extent of her uncompensated work. That approach, the Court reasoned, would create a strong disincentive for employers to keep any records at all and shift the burden of time-keeping back onto the employee. The Court therefore concluded that “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687.

The Court remanded the case to the trial court to determine how much time (on average) was spent walking and how much time doing preparatory activities and to enter an award of lost wages based only the amount of time engaged in preparatory activity.

Analysis

In practical terms, the Court’s decision in Mt. Clemens Pottery meant that once an employee testifies she has not been fully compensated for all the time she worked, the employer has the burden of proof for determining the exact wages owed to the employee for performing off-the-clock work. If the employer has not kept complete records of all time worked, including off-the-clock work, the employee may be awarded unpaid minimum wages or overtime pay based on a just and reasonable estimate of the uncompensated time she worked.

In light of the Court’s ruling in Mt. Clemens Pottery, in 1947 Congress amended the FLSA by enacting the Portal to Portal Act of 1947. 29 U.S.C. § 251, et seq. Among other things, the Portal to Portal Act sought to impose some limits on employer liability for time employees spent in “preliminary and postliminary” activity. 29 U.S.C. § 254(a).

The Supreme Court reaffirmed Mt. Clemens Pottery in the 2016 case Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016). In so holding, the Court reiterated that “where an employer violated its statutory duty to keep proper records, the [Mt. Clemens Pottery] Court concluded the employees could meet their burden by proving that they in fact ‘performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’” 136 S. Ct. 1036, 1040 (2016) (quoting Mt. Clemens Pottery, 328 U.S. at 687.)

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.

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.