Employment Discrimination

question-markSo I was trolling through the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law (because, yes, I am that much of an employment law nerd), and came across an article that I thought was of particular interest: “Stating a Claim in the EEO Process: Determining One’s Status as Either an Agency Employee or Independent Contractor.” Now this article is supposed to apply only to the federal government agencies as the employer – but I think the principles set forth in it provide guidance to what the EEOC’s position would be for private employers as well. (This is important because employees are covered by federal anti-discrimination and other employment laws; independent contractors are not). Continue Reading The EEOC on Independent Contractor Status

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

yoga-1159968Employers (hopefully) know that you can’t fire someone based on a legally protected personal characteristic, like race, sex, religion, age or disability (among many other things). But apparently, being “too cute” is not one of them!

In this case, Edwards v. Nicolai, a yoga instructor, Dilek Edwards, worked at a chiropractic and wellness clinic owned by Charles Nicolai and his wife, Stephanie Adams. (Ms. Adams, by the way, is the first openly lesbian Playboy Playmate (Miss November 1992), as reported by the U.K.’s Daily Mail. Isn’t that intriguing?) According to Ms. Edwards, her relationship with Dr. Nicolai was strictly professional. At one point, however, he told Ms. Edwards that his wife might become jealous of her because she was “too cute.” Ms. Edwards only met Ms. Adams once, at the office, and the meeting was cordial. Continue Reading Fired for Being “Too Cute”

That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.vienna-2-1552451

Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.

But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks. Continue Reading Sex Shop Workers Unionize

male-709687_640This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity.  Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity. Continue Reading The EEOC’s Fact Sheet on Transgender Access to Bathrooms

The Maryland 2016 legislative session endedshadow-dollar-sign-1239535 on Monday.  A friend of mine mentioned that she heard the General Assembly passed an equal pay law in Maryland. But guess what? There is already an Equal Pay for Equal Work law in Maryland – it’s been in place for almost 25 years!! The current law already prohibits employers from discriminating against employees of one sex who work in the “same establishment” and perform work of comparable character or work in the same operation, in the same business, or of the same type by paying a lesser wage than an employee of another sex.

The equal pay bill mentioned, House Bill 1003, expands the prohibitions on discriminatory pay practices. It also adds an entirely new pay transparency provision. Specifically: Continue Reading “New” Equal Pay Bill for Maryland

Last week, I heard about a British company, Coexist, that is planning to develop a “period policy” to provide menstrual leave to its female employees. As a female employment attorney, I’m a strong believer in equal rights for women, but this notion struck me as so very … odd. Initially, I wasn’t quite sure what to make of it, but intuitively it just seemed like a bad idea to me.

So I did a little research, and it turns out that menstrual leave is actually a legal right in certain Asian countries. In 1947, Japan was the first to pass a menstrual leave law. Since then, Indonesia, the Philippines, South Korea and, most recently in 2013, Taiwan, have also enacted such laws. The laws vary as to whether the leave is paid, half-paid, or unpaid, and how much time off may be taken (e.g. as needed each month, X days per month, X days per year). These laws, however, have proven to be controversial, and their effectiveness has been questioned.red-dot

Many argue that the laws perpetuate stereotypes of women as the weaker sex. Some male rights activists (yes, they exist) argue that these laws discriminate against men. One commentator, Tim Worstall at Forbes.com, noted that a new type of paid leave will increase employer costs – and the fact that the paid leave is only available to female employees will likely exacerbate the gender pay gap. Many employers in those countries ignore the laws. And, frankly, it seems that most women are afraid to come forward to ask for menstrual leave, for various reasons – embarrassment, not wanting to burden fellow employees, fear of discrimination or retaliation, etc.

Continue Reading Menstrual Leave – Really?

Well, regardless of your political leanings, it’s definitely been an interesting political season. I have witnessed several heated political discussions among my acquaintances, and even in my family (let’s just say that my crazy teenagers don’t share my political views). Although physical violence has not yet been involved, there has been some nasty name-calling. And these conversations can and do occur in the workplace. So what can a private employer do about political discussions in the workplace?

There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation.  (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because he supports a particular political party.

Regardless of whether political affiliation protections exist, however, a private employer can prohibit political discussions in the workplace. “But what about the First Amendment right to free speech?” some may ask. The First Amendment prohibits the federal government from limiting citizens’ free speech rights – but it doesn’t apply to private employers! So employees do not have a right to free speech in a private workplace, and the employer can choose to restrict speech on any topic – including politics.

Of course there are caveats. At least two states – South Carolina and Connecticut – protect freedom of expression. But even there, employers can prohibit political speech if it is disruptive. Of course the employer needs to ensure that it is being consistent in enforcing any speech prohibitions, as political discussions can sometimes implicate other protected characteristics – like race, gender and religion.

In addition, the National Labor Relations Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. So if the political discussion involves which  political candidate may be better with regard to wages or benefits, for example, that specific discussion may be protected under the NLRA.

So bottom line – employers can generally prohibit political discussions in the workplace – but if you do so, make sure you’re being consistent and careful!

 

Equal pay has become a hot topic on both the state and federal levels. As a woman who is a management-side employment attorney, I sometimes find myself puzzled as to how this topic came to be such a hot button issue, especially since there are already many laws on the books that address equal pay.

On the federal level, we have the Equal Pay Act, Title VII, and the Lily Ledbetter Fair Pay Act, which are enforced by the Equal Employment Opportunity Commission (EEOC). For federal contractors, there are Executive Orders 11246 (affirmative action for women and minorities), 13665 (pay transparency), 13673 (fair pay and safe workplaces), and a Presidential Memorandum on equal pay, all of which are enforced by the Office of Contract Compliance Programs. In Maryland, we have the Maryland Civil Rights Act (the equivalent of Title VII) and the Equal Pay for Equal Work Act. All of these are designed to address and enforce equal pay, regardless of sex or other protected characteristics.

However, just last month, on the 7th anniversary of the signing of his very first law while in office (the Lily Ledbetter Fair Pay Act), President Obama announced that the EEOC was issuing a new rule that would change the EEO-1 reporting requirements for employers with 100 or more employees and for government contractors with more than 50 employees and more than $50,000 in federal contracts or subcontracts. Under the proposed rule, these employers would need to report aggregated data on pay and hours worked by pay bands. A summary of the proposed rule can be found here.

Here in Maryland, there are currently a number of bills pending in the Maryland General Assembly that either amend the Equal Pay for Equal Work Act (to the detriment of employers by either instituting treble damages or other fines and penalties) or create an entirely new Equal Pay Commission, both of which seek to impose more reporting requirements on employers.

While I understand and support the underlying principles of the proposed legislation and regulations, issues arise in instituting these reporting obligations on employers. In addition to the effort and time required for collecting and reporting the data, such reported data does not fully capture the non-discriminatory differences between two individuals. A true assessment of equivalent jobs and the people in those jobs requires a thoughtful and detailed analysis of a multitude factors, including – but certainly not limited to – the following:

  • Performance;
  • Skills;
  • Responsibilities;
  • Seniority;
  • Job knowledge;
  • Industry knowledge;
  • Certifications or licenses;
  • Prior experience;
  • Level of education;
  • Negotiation of starting salary;
  • Salary at prior jobs;
  • The choices individuals make with respect to child rearing or other responsibilities (e.g. choosing to work part time, or not to work overtime, or flexible careers with less earning potential);
  • Market competitiveness;
  • Geographic location.

This nuanced and individual-specific analysis isn’t readily apparent from cold, limited data. I am apprehensive that mandatory reporting will only create more issues for employers when any of these established or potential enforcement agencies come knocking on employers’ doors seeking explanations for what appears to be facially discriminatory – but is not, in fact.

Aside from the significant effort and resulting headaches associated with compiling and reporting the data, another major concern stems from what will happen with this data after it is submitted. The EEOC says that it will use the data to assess complaints of discrimination, focus agency investigations, and identify pay disparities, as well as encourage companies to engage in self-assessment and correction. But questions still remain as to what the EEOC’s evaluation of this data will truly look like. Will it take into account differences in geographic locations, such as cities versus rural areas? Northeast v. Midwest? What about industry distinctions, or non-profit v. for profit institutions? Company size?

And frankly, the data being sought is very similar to what was required by the Equal Opportunity Survey, which was used by the OFCCP from 2000-2005 to collect personnel data, including compensation information, from federal contractors. The EO Survey was abandoned in 2006, after an independent consulting group found that it was ineffective in identifying systemic discrimination!

I am also concerned about the security of this data. We all know that the government isn’t immune from being hacked, so how will the data be submitted in a secure fashion? What will be the fate of this data after it is submitted? Will competitors learn of your wage rates and then attempt to lure away your best employees with an offer of higher pay?

It’s not that I am against equal pay. Indeed, as a woman, that would be just plain ridiculous (of course I want to be paid the same as my equally situated counterparts!). Similarly, I support equal pay for minorities. The point I’m making as a management-side employment attorney is that there are already laws and agencies in place to address equal pay issues. Enacting more laws (with more obligations on employers) and creating even more governmental agencies tasked with investigating discrimination in pay (to no actual effect!), when there are already agencies that do that, is redundant and unnecessarily burdensome on employers.

Mark of the BeastBack around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!

Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally. Continue Reading Return of the Beast: Religious Accommodation Redux