Showing posts with label family responsibility discrimination. Show all posts
Showing posts with label family responsibility discrimination. Show all posts

Thursday, December 4, 2008

Governor’s gaffe and family responsibilities

I’m a huge fan of Pennsylvania Governor Ed Rendell. We share a common passion – Philadelphia sports teams. Although, I’ve never been involved in beaning Jimmy Johnson with a snowball.

Earlier this week at the National Governors Conference, he made a huge gaffe when a microphone picked up the following comment about President-elect Obama's choice for Secretary of Homeland Security, Arizona Gov. Janet Napolitano:

Janet's perfect for that job. Because for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19-20 hours a day to it.

On, Campbell Brown correctly points out that if a man had been Obama’s choice, family responsibilities would never have been raised by anyone as an issue.

Gov. Rendell’s off-the-cuff comment runs in stark opposition to President-elect Obama’s own goals. The following comes from the President-elect's website, as one of the key policy points for his administration:

Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.

For employers, Gov. Rendell’s comment illustrates that we still have a long way to go to eliminate unconscious biases that form the maternal wall. To combat these biases, decisionmakers need to ensure that all employment decisions are based on ability and performance, free from preconceptions about an employee’s outside responsibilities.

Tuesday, November 4, 2008

Do you know? The Pregnancy Discrimination Act at 30

Do you know? The Pregnancy Discrimination Act turned 30 years old last week. The PDA outlawed employment discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as unlawful sex discrimination. It does not require that employers give pregnant women preferential treatment (that, after all, would discriminate against men), but it does mandate that pregnant women be treated as would any employee with a similarly disabling temporary condition. Yet, despite being ingrained into our way of thinking that pregnancy discrimination is wrong, the number of claims filed with the EEOC continue to rise. In 2007, pregnancy discrimination filings with the EEOC hit an all-time high of 5,587 (source: Time Magazine).

According to a study published by the National Partnership for Women & Families, the number of claims might actually be higher, as women may under-report pregnancy discrimination out of fear of causing long-term career damage. Who knows if this conjecture is true. What is true, however, is that employees, regardless of gender, have the right to have a career and a family and not be punished for the choice. The sooner businesses recognize this undercurrent of potential bias the sooner they can put measures in place to prevent pregnancy discrimination from becoming a potential problem area.

Thursday, September 11, 2008

If you could ask each Presidential candidate one question...

Dan Schwartz at the Connecticut Employment Law Blog asks, "What one question would you like the debate moderators to ask each of the major party candidates?" Here's mine.

In May 2007, the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. As part of Sen. Obama's plan to strengthen families, he has vowed to protect against caregiver discrimination by committing the government to enforce those EEOC guidelines.

For Sens. Obama and Biden:

Gov. Palin could be a heartbeat away from assuming the presidency. Do you believe that a mother of a child with special needs can effectively balance her job as a mother and being the leader of the free world?

For Sen. McCain and Gov. Palin:

Since Gov. Palin's nomination, your campaign has gotten a lot of traction out of her life story. You have accused the media and the Democratic party of sexism in their treatment of Gov. Palin and her dual role as a politician and mother to a special needs child. In light of Gov. Palin's caregiving role, if elected, will you make the same commitment as Sen. Obama to combat workplace discrimination against people with caregiving responsibilities?

UPDATE: Coincidentally, posted an article this morning about the potential Palin effect on working moms. From the article: "A spokeswoman for the McCain-Palin campaign said she was unable to say at this time what Palin’s position is on federal policies relating to job protections and benefits for working mothers." All the more reason to ask this question.

Wednesday, July 30, 2008

All hail dads

Being a new dad myself, the following headline from the National Law Journal caught my eye: More Men Filing Workplace Lawsuits - Lawyers are calling this a byproduct of the father's rights movement.

According to the article, more men than ever before are filing employment claims. The EEOC saw a record number of sexual harassment complaints filed by men in 2007, and more men are filing FMLA claims based on family responsibilities.

As more and more men assert their right to strike a balance between their jobs and their families, what steps can companies take to avoid claims being brought by disgruntled men?

  1. Incorporate harassment against men into general harassment policies and training.
  2. Ensure that all leave policies are gender-neutral.
  3. Discipline anyone who makes derogatory comments about an employee's paternity leave.
  4. Foster a work environment in which no one, male or female, is discouraged or scared from taking time off.
  5. Reward actual performance, and not merely hours spent working.

Adopting some these measures in your workplace can help avoid the following, which is believed to be the largest verdict ever entered in favor of a man in a caregiver discrimination lawsuit:

Tuesday, July 29, 2008

Is the glass ceiling self-imposed?

One blogger has theorized that the glass ceiling and the disparity in pay between men and women is self-imposed by women who prioritize motherhood over their careers. Tracy Coenen, on her Fraud Flies Blog, writes that workplace discrimination against women is largely a myth:

The problem here is clear, and it’s not a case of discrimination. It’s that women make choices which put them behind on the career path. I don’t begrudge any woman her right or her choice to have children. However, if she’s going to leave the workforce or reduce her role at work after having children, she can’t expect to keep up with her peer group.

Many say the choices women must make are difficult, as most don’t have a husband who is willing to stay home and perform the traditional role that a “housewife” used to in order that his wife may focus completely on her career. I don’t doubt that’s the case, but women still must be accountable for their own choices in partners, careers, and family life.

These false cries of “discrimination” upset me because when there are legitimate cases of discrimination, I think they are likely to be viewed more skeptically. Let’s use the word discrimination only when it’s really appropriate.

And for women in corporate America, let’s just acknowledge that not being paid as much as men or not attaining as many high-level positions as many is really related to career and family choices. I think our market is efficient, and works well to award pay at a level that is earned by the employee, regardless of gender.

I have to admit, It's an interesting theory, albeit one without any hard data to back it up. I'd like to think that in 2008, we have gotten beyond stereotyping women, minorities, the disabled, etc., and that all employment decisions are based on ability. Of course, that perception would be hopelessly naive. There are still lots of examples of women being passed over because of the family choices they have made.

Employees, regardless of gender, have the right to have a career and a family and not be punished for it. The balance for employers is not to confuse ability with dedication to job over all else. It's when businesses begin to equate performance deficiencies with an employee's family life that the specter of family responsibility discrimination begins to raise its troublesome head.

Friday, July 18, 2008

Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim

Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.
Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.
Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:
Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.
The lessons to take away from this case are several:
  1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
  2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
  3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Wednesday, May 14, 2008

Is mommy bias real?

The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:
Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that on the job, they're viewed in opposite terms. They say employers see them as less reliable, focused and committed than their co-workers, and weed them out of job interviews or bypass them for promotions. 

The practice has been labeled maternal profiling, and it is the source of a growing body of discrimination lawsuits being filed against employers. 

According to the Center for WorkLife Law at the University of California's Hastings College of Law, family-related discrimination cases increased by 400 percent from 1996 to 2005. Some workers sued because they were questioned about their marital status, family plans or child-care provisions during job interviews, then promptly dismissed. Other mothers say they were taken out of contention for jobs that required travel, long hours or physical labor.
But, does the empirical data support the popular notion of maternal profiling. HR World reports on a survey done by Adecco, the staffing firm, which suggests that mommy bias might be more fiction than reality:
Think what you want about parents in the workplace, but a new survey from Adecco found that 71 percent of working moms are likely to work late and respond to emails. That’s only two points below non-parents. However, 32 percent of workers would be less likely to ask working parents to stay late or answer emails after hours. 

Nonetheless, 49 percent of moms believe their companies should do better at helping achieve work/life balance. 

According to the survey:
  • Do Moms Have It Better When It Comes to Access to Work/Life Balance?: Depends on who you ask! 60% of working moms think they have the same level of access to work/life benefits as non-parents. Less than half of non-parents (44%) agree with the statement and one in four (25%) non-parents think they have less access.
  • Which is Harder to Manage?: According to working moms, managing career is a piece of cake next to managing family: 71% of working mothers find it more difficult to manage their family vs. career (29%).
  • Career & Motherhood Can Go Hand-in-Hand: A majority of working mothers (59%) say becoming a mother has not impacted their career path, while 15% say its actually had negative impact on their career.
So, what's the answer? It mommy bias real, fiction, or somewhere in between? It's hard to ignore the realities of maternal profiling when companies are hit with multi-million dollar verdicts. At the same time, it is only a small minority or working moms (15%) who report that motherhood had a negative impact on their careers. At the end of the day, maternal profiling is real, but simply may not be as big of a problem as the Kohl's case makes it seem. Yet, 49% of moms still believe their companies should do better at helping them achieve work/life balance.

The takeaway for employers is that regardless of whether maternal profiling is as prevalent and widespread as some claim, it is still illegal sex discrimination. Separate and apart from the legalities of mommy bias, promoting a strong work/life balance is becoming increasingly important in the recruiting and retention of quality employees. Purposing screening out parents (moms and dads) from hiring or promotions needlessly removes a significant portion of the population of the workforce from a company. After all, today's young go-getter is tomorrow parent. Mommy tracking employees will result in a revolving door of younger, less qualified employees. And, it's illegal.

Thursday, March 27, 2008

Wall Street Journal on the surge of pregnancy discrimination claims

This morning's Wall Street Journal has a piece on the growth of EEOC pregnancy discrimination charges. According to the Journal:

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.... The groundswell reflects both changing demographics and a new activism among mothers. It also shows that even now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"

While employers can indeed fire, lay off or refuse to hire pregnant women, they can't single them out for worse treatment -- and they must be able to prove they held men to the same standards or asked male job candidates comparable questions.... Many women who bring complaints are surprised to learn that they don't have special protection from adverse treatment. One manager for a publishing company thought she was being discriminated against when her employer fired her for poor performance while pregnant, says Kimberlie Ryan, a Denver employment attorney. In fact, the manager couldn't prove her bosses knew she was pregnant when they decided to fire her, says Ms. Ryan. To succeed in a claim, a woman generally must be able to prove an adverse action was motivated by her pregnancy or her status as a mother.

Let me suggest that if you decide to fire an employee for poor performance while that employee is on maternity leave, you have a well-documented paper trail of issues, and that the first the employee will be hearing about these issues is not during the termination. Otherwise, it will be difficult to overcome a claim that the performance problems were invented as a pretext to terminate a pregnant employee.

Wednesday, March 5, 2008

The uselessness of the Working Families Flexibility Act

WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families Flexibility Act.

This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsideration and require the employer and the employee to meet to again discuss the request. The Act covers employees who work at least 20 hours per week and 1,000 hours per year, and employers with 15 or more employees.

The Act also would make it unlawful for an employer to interfere with an employee's attempt to exercise his or her rights under the Act or to retaliate against an employee. Aggrieved individuals could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. Violations could result in civil fines of up to $5,000 per violation and equitable relief such as reinstatement, promotion, back pay, and changes to terms and conditions of employment.

Last I checked, the employer sets the terms and conditions of employment, especially on the core issues of work hours, schedules, and locations. Do employees really need federal legislation to go to a supervisor and ask for such an accommodation? Will this legislation change employers' responses to reasonable requests? Won't employers still guide their responses by the specific needs of their businesses? Further, as long as an employer goes through this interactive process, where is the harm to the employee, who is granted no right to any modification? However, every time an employee's request is rejected, he or she will scream interference or retaliation to the DOL, creating an administrative nightmare. Talk about worthless legislation. This bill is currently sitting in the Senate Committee on Health, Education, Labor, and Pensions, where I hope it dies a quick death.

Thursday, February 28, 2008

High medical costs as direct evidence of disability discrimination

Federal courts of appeals continue to make family responsibility discrimination a hot button issue. Typically, we've seen family responsibility issues arise in the context of childcare. Today, we'll examine a family responsibility case that deals with associational disability discrimination, Dewitt v. Proctor Hospital, which permitted an employee with a terminally ill husband to pursue her ADA claim.

Phillis Dewitt worked at Proctor Hospital as a clinical manager, and by all accounts was a valued employee. Dewitt and her husband, Anthony, were covered under Proctor's medical plan. Proctor was partially self-insured for its medical coverage. It paid the first $250,000 of annual covered medical costs, and anything above that "stop-loss" figure rolled into an insurance policy. Because it was self-insured, Proctor kept quarterly reports of all employees with claims over $25,000.

Throughout Dewitt's tenure at Proctor, her husband suffered from prostate cancer, and the high medical costs that went along with it. In September 2004, Dewitt's supervisor, Mary Jane Davis, confronted her about her husband's medical claims, specifically asking what treatment he was receiving and why his doctor hadn't put him in hospice yet. Davis repeated her inquiry in February 2005. In May 2005, Davis organized a meeting of Proctor's clinical managers and advised them that because of the hospital's financial troubles it required a "creative" effort to cut costs. Three months later, Proctor fired Dewitt and designated her "ineligible to be rehired in the future." Dewitt's husband died a year later.

In her lawsuit, Dewitt claimed "associational discrimination" under the ADA, that Proctor fired her to avoid having to pay for the substantial self-insured medical costs it incurred because of her husband. The 7th Circuit pointed out the associational discrimination plaintiffs fall into 3 categories: expense, disabled by association, and distraction. Dewitt's claim falls into the "expense" category, an employee fired because a family member has a "disability" costly to the company.

The Court found that Dewitt had presented a jury question on her disability claim and reversed the trial court's dismissal of her claim. Specifically, the Court found that she had presented "direct evidence" of discrimination. Proctor fired Dewitt 5 months after Davis' last conversation with her about her husband's medical treatment and costs, and 3 months after Proctor warned employees about "creative" cost-cutting measures. In the Court's words:

[T]he timing of Dewitt’s termination suggests that the financial albatross of Anthony's continued cancer treatment was an important factor in Proctor's decision.... One could reasonably infer that Dewitt was terminated after Proctor conducted its latest periodic analysis of medical claim "outliers" and, this time around, decided that its "wait and see" strategy with the Dewitts was costing the hospital tens of thousands of dollars every year. A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.... Because Dewitt has established that direct evidence of "association discrimination" may have motivated Proctor in its decision to fire her, a jury should be allowed to consider her claim.

This case is an example of an employer who did just about everything wrong. It repeatedly grilled an employee about her husband's medical condition, and then clearly fired her because of the high cost of his medical care. From the employer's point of view, this case would be scary to present to a jury. It's difficult to think of a more sympathetic plaintiff in an employment case, which presents a real big problem for Proctor at trial.

While I don't mean to sound heartless, the concurring opinion makes a good point as to what is and is not "disability" discrimination. The ADA makes discrimination based on "disability" illegal; discrimination based solely on medical costs simply is not illegal. [ERISA discrimination is another issue entirely, which the court did not reach].

An employer's most likely concern about an employee who has a disabled relative, especially a spouse or child, is that the relative's medical expenses may be covered by the employer's employee health plan. There is a positive correlation between being disabled and having abnormally high medical expenses, just as there is a positive correlation between the age of an employee and his salary because most employees receive regular raises as long as they perform satisfactorily. Suppose a company encounters rough waters and decides to retrench by firing its most expensive employees. They are likely to be older on average than the employees who are retained, but as we said many years ago, "nothing in the Age Discrimination in Employment Act forbids an employer to vary employee benefits according to the cost to the employer; and if, because older workers cost more, the result of the employer's economizing efforts is disadvantageous to older workers, that is simply how the cookie crumbles." ...

[A]n employer who discriminates against an employee because of the latter's association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It's as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case. So far as the record reveals, the defendant fired the plaintiff not because her husband was disabled but because his medical expenses—which might not have been any lower had they been due to a condition that did not meet the statutory definition of a disability—were costing the defendant an amount of money that it was unwilling to spend. All the evidence recited in the majority opinion concerns costs ("cutting costs," "high cost of Anthony's medical treatment," "financial albatross," etc.) that a person who had a nondisabling medical condition could equally incur. If cost was indeed, as appears to be the case, the defendant's only motive for the action complained of, the defendant was not guilty of disability discrimination.

I am no way suggesting, from either a legal, HR, or human perspective, that companies should do what Proctor did. However, I do think that Judge Posner's concurrence makes a compelling argument on whether an employment decision based solely on medical costs constitutes "disability" discrimination. Proctor's job at trial is to convince the jury that medical costs were its only reason for the discharge, and that the disability itself played no role, a difficult argument to make and difficult distinction for a jury to draw.

Tuesday, February 5, 2008

Don't confuse "family status" for "family responsibility discrimination"

I've blogged a lot on "family responsibility discrimination," which is discrimination against parents or caregivers because of their status as such. "Family responsibility" or "caregiver status", however, are not protected classes in and of themselves. They are only illegal if the alleged conduct otherwise violates Title VII or the ADA. In other words, the law prohibits discrimination on the basis of race, sex, religion, national origin, ancestry, color, age, and disability. Thus, for example, it is not illegal to discriminate against all parents because of their parental status, but only if you treat moms differently than dads, or black parents differently than white parents, or parents of disabled children different than parents of non-disabled children.

Adamson v. Multi Cmty. Diversified Servs., Inc. clarifies this important distinction. In that case, decided last week by the 10th Circuit, the plaintiffs, a husband, wife, and daughter who were terminated by a non-profit organization, claimed that "familial status" is a protected classification under Title VII. The Court rejected that argument:

Title VII protects neither the family unit nor individual family members from discrimination based on their "familial status" alone…. "Familial status" is not a classification based on sex any more than is being a "sibling" or "relative" generally. It is, by definition, gender neutral. The use of gender to parse those classifications into subcategories of "husbands, wives and daughters" is a social and linguistic convention that neither alters this fact nor elevates those subcategories to protected status. Mr. Adamson’s claim that he was terminated in violation of Title VII based on his status as Patricia's "husband" (and Jessica's "father"), and Patricia and Jessica's claims that they were terminated by virtue of being Barry's "wife" and "daughter," respectively, fall outside the scope of Title VII and its purpose in protecting employees against invidious discrimination on the basis of sex, and we reject those claims….

Thus, an employer that discriminates against an individual solely on the basis of his or her "familial status" violates no law, unless the discrimination is tied to some specific protected class.

Monday, November 26, 2007

The downside of family-friendly workplaces

Over the Thanksgiving holiday, Dilbert ran a small arc on family responsibility discrimination. The company decides to become "family friendly", and to compensate for the lost productivity, openly hostile to single people at the same time. So as not to run afoul of any potential copyright issues, you can go here to read the 11/22 strip and here to read the 11/23 strip.

While eating my leftovers, I got to thinking about what exactly it means to be "family friendly," and whether we are creating a new marginalized class of employees -- the young, the single, the childless -- all of whom are presumed to have the disposable time to work extra hours and pick of the slack for those who are the beneficiaries of family-friendly policies and the EEOC's new regulations against family responsibility discrimination. But, just because they are presumed to have disposable time, does that mean that they should necessarily bear the burden?

There are two ways to look at this issue. On the one hand, those without family responsibilities will in all likelihood some day have a family, and will need the same family-friendly policies about which they may now grumble and complain. On the other hand, managing a "family friendly" workplace is not just managing employees who have families and their attendant responsibilities, but also managing the employees without families, upon whom the added burden of picking up the slack for their co-workers often falls.

I have no answers as to the right approach. How to handle the problems posed by the Dilbert strips is largely an organizational issue. I am curious, though, to find out if my readers think that this is even a problem, and if so, how it should best be handled. Please post your thoughts below.

Sunday, November 4, 2007

OCRC backtracks on new maternity leave regulations

In a stunning turn of events that will surely please small business owners, the version of Ohio's new maternity leave regulations that the Ohio Civil Rights Commission will present to the Joint Committee on Agency Rule Review does not contain a blanket right to 12 weeks of pregnancy and childbirth leave. Instead, 12 weeks of leave is only to be mandated "when medically necessary."
Where an adverse employment action taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition is based upon an employment policy or practice under which less than twelve weeks of paid or unpaid pregnancy, childbirth or maternity leave is available when medically recommended, such policy shall be presumed to have a disparate impact on women and constitutes unlawful sex discrimination unless justified by business necessity. OAC 4112-5-05-(G)(4).

The "medically recommended" language did not appear in the originally published version of the approved regulations, and appears to have been slipped in by the Commission at the last minute.

Thus, the new regulation, which this morning's Plain Dealer reports would most likely be in effect by mid-December, will now require companies with four or more employees, including new and part-time employees, to offer three months' unpaid maternity leave, when recommended medically. In other words, businesses will only have to provide as much leave as certified by an employees' physician. The PD quotes one local attorney as being skeptical that doctors would honestly represent their patients' needs for leave, and may certify on request 12 weeks even though not necessarily medically necessary. I can only speak from experience that when my wife gave birth, her doctor would only certify her medically necessary leave for 8 weeks, and he told us it would have been 6 weeks if she hadn't had a C-section. My guess is that more often than not, doctors will stick to these generally accepted guidelines.

The Plain Dealer article quotes OCRC General Counsel Matthew Miko on the Commission's intent to always require a medical certification for maternity leave:

The Ohio commission says it is merely trying to clarify existing regulations that are confusing because they call for giving pregnant women "reasonable" time off, without spelling out what that is. The commission also said it always intended that women would have to get a doctor's recommendation for the leave. Language stating that was added to address business owners' worries that the plan was for a carte blanche benefit, said Matthew Miko, the commission's general counsel. The commission is not defining what form or document women will need from their doctors -- if any at all. Rather, companies will be expected to follow the same practices they use with other employees who are absent because of illness.

The regulations do not define "medically recommended," and omit any discussion of what rights a company has if it disagrees with a doctor's certification. These and many other issues will be hashed out in the courts over the next many years.

All companies should work with their employment counsel to update leave policies to include these new pregnancy leave rules, and should put in place appropriate medical leave forms for employees' doctors to use to certify the medical necessity for maternity leave.

Friday, October 26, 2007

OCRC approves new maternity leave regulations

As predicted, today's Cleveland Plain Dealer reports that the Ohio Civil Rights Commission approved its new maternity rules that guarantee 12 weeks of leave for all pregnant employees of companies with 4 or more employees. 1 of the OCRC's 5 members voted against the new regulations. The proposal will now go the legislature's Joint Committee on Agency Rule Review, which will consider whether the OCRC overstepped its authority in enacting the new regulations. That Committee has no power to approve or reject the rules, but can merely recommend to the legislature that it invalidate improperly enacted rules. The new rules could go into effect by year's end, although business groups vow to lobby the legislature to invalidate them. Interestingly, yesterday's Plain Dealer reported that the rules did not spark much response from businesses prior to its approval.

For prior posts on this issue, see OCRC to vote on new maternity leave regulations, OCRC to vote on new maternity leave regulations - part 2, and The more things change the more they stay the same.

Thursday, October 25, 2007

OCRC to vote on new maternity leave regulations - part 2

One short follow-up to this morning's post on the new OCRC maternity leave regulations. The USA Today article I linked to this morning talked about the rise of the "sandwich generation" — people who care both for children and an aging relative. This notion will have even greater meaning in Ohio if all employers have to provide 12 weeks of maternity leave to all employees. Take for example a pregnant employee who lawfully takes 12 weeks of FMLA leave during a year to care for a sick parent, and then in the same year gives birth. That employee would be entitled to an additional 12 weeks of leave under Ohio's new proposed regulations. Thus, pregnant women would receive double benefits. One modification to the hypothetical, however, illustrates the potential fundamental unfairness in the new regulations. Instead of the employee being a pregnant woman, let's suppose the employee is a man with a pregnant wife. If that man takes 12 weeks of leave to care for a sick parent, he would not be able to take even 1 day of extra leave for the birth of his child, and his employer would coldly have the right to terminate him in that situation. Everyone should be concerned about the potential disparities in implementing OAC 4112-5-05(G), both in its current and amended forms, and the potential for sex discrimination claims brought by male employees who are denied the same benefits as their female counterparts.

OCRC to vote on new maternity leave regulations

Over the summer I reported on the Ohio Civil Rights Commission's proposed amendments to its pregnancy discrimination regulations, Ohio Administrative Code 4112-5-05(G), which would extend 12 weeks of guaranteed unpaid maternity leave virtually to all employees, not just those covered by the FMLA. See The more things change the more they stay the same, and OCRC appears to bend on pregnancy leave regulations. Now, after three months of inactivity on this issue, it appears that the OCRC is finally ready to act on these regulations. Today's Cleveland Plain Dealer is reporting that the OCRC will consider the new regulations today (see Ohio may expand maternity leave rights to all moms. As reported, the change would supersede the federal FMLA by extending guaranteed pregnancy leave to Ohio employees no matter how long they've worked at a company, to part-time workers, and to anyone at a company with at least four employees. As revealed by the text of the proposed amendment, the OCRC resisted lobbying by business groups to lessen the amount of available leave from 12 weeks to 8 weeks. It is expected that the OCRC will approve these regulations. The final step before they would go into effect is approval by a legislative subcommittee, which would probably happen fairly quickly. Once enacted, Ohio would join 18 other states that have granted maternity leave beyond that guaranteed by the FMLA.

Coincidentally, today's USA Today has an article on the growth of family responsibility discrimination ("FRD") lawsuits. While I still believe that the OCRC's new regulations do not substantively change the law, they will increase awareness about the rights of employees of small business to pregnancy-related leaves of absence. That awareness certainly will not do anything to slow down the trend of FRD lawsuits against Ohio businesses. Now is as good a time as any for all companies to review their maternity leave policies to ensure that they provide for 12 weeks of leave, so that new policies can be put in place if needed.

Monday, August 13, 2007

OCRC appears to bend on pregnancy leave regulations

Sunday's New York Times is reporting that Ohio business groups have successfully lobbied the Ohio Civil Rights Commission to revise its proposed maternity leave regulations. The article quotes various business organization leaders, in addition to the OCRC's Chairperson, in discussing the merits or lack thereof of the proposed regulations:

Jeanine P. Donaldson, who this year became the first woman to lead the commission, said the law on maternity leave needed to ensure that more women were protected against discrimination.

Ms. Donaldson said she was willing to bend on the number of weeks of guaranteed leave but hoped to preserve the stipulation that length of service would not affect eligibility.

“I don’t think a woman can decide when to get pregnant,” Ms. Donaldson said. “To choose motherhood over livelihood, I don’t think that is what the legislators had in mind.”

Business groups say the expanded leave would damage the economy. “There’s really no reason to change the current law,” said Tony Fiore, director of labor and human resources policy for the Ohio Chamber of Commerce.

Requiring small businesses to hold open positions would be a hardship, he said, as would the immediate eligibility for new workers at large corporations.

Ty Pine, legislative director for the Ohio branch of the National Federation of Independent Businesses, said the market was doing a good job of establishing reasonable maternity leaves for workers and businesses.

“We would like to maintain the current practice of reasonable time off without mandating specifically,” Mr. Pine said.

It now appears that some modified form of the revised OAC 4112-5-05(G) will go the legislature for approval. A revision to the amount of the guaranteed leave entitlement would take away rights that are already available to nearly all Ohio employees under judicial interpretations of the current 4412-5-05(G). I am amazed that the OCRC would bend so easily from a little bit of pressure from business lobbies. If the OCRC actually agrees to bend on the issue of the amount of available guaranteed leave, it will represent a genuine victory for small businesses. I will continue to post updates on this issue as the revised regulations are published.

Tuesday, July 31, 2007

The more things change the more they stay the same

According to today's Columbus Dispatch, the Ohio Civil Rights Commission is considering adopting new regulations under which pregnant employees would be entitled to 12 weeks of unpaid maternity leave immediately upon their date of hire. These new rules would apply to any employer with 4 or more employees, as opposed to the federal FMLA's 50-employee limit. Finally, these new state rules would require employers to offer a pregnant employee a light-duty assignment where practical and to reinstate a worker to her former position or an equivalent post when she returns to work. Before any changes can take effect, they must be approved by the Joint Committee on Agency Rule Review, a legislative panel. If the panel approves the changes, they could take effect in September. A copy of the proposed regulations, which amends OAC 4112-5-05(G), are available from the OCRC here, and redlined here.

It is unclear why the OCRC feels these new rules are necessary. It is true that the FMLA only applies to companies with 50 or more employees and to employees with at least one year of employment who have worked a minimum 1,250 hours in the previous 12 months. As this May 22, 2007, post makes clear, Ohio law already requires at least 12 weeks of maternity leave for all pregnant employees. Further, the federal Pregnancy Discrimination Act and its Ohio counterpart already require that employers treat pregnant employees the same as other employees with similarly disabling medical conditions. In other words, if a pregnant employee requests light duty to accommodate pregnancy symptoms, the company must treat that employee's request the same as it would any other similarly disabled employee's request. Similarly, an employer that terminates a pregnant employee during maternity leave does so at its own peril regardless of whether she is FMLA-eligible or not. Such disparate treatment is pregnancy discrimination under current laws.

These proposed new rules do nothing more than codify the status quo. They seem to simply jump on the "family responsibility discrimination" bandwagon. If any good is to come from of these new rules it is that employers will be further educated about maternity leave rights of Ohio employees, which will still remain a minefield for the unwary HR professional. These new rules, however, are not groundbreaking, and should not cause any change in the law or how companies administer maternity leaves.

Monday, July 30, 2007

Family Responsibility Discrimination gains more coverage

Family responsibility discrimination continues to gain traction. It was front and center in a featured piece in yesterday's New York Times Magazine available here, (free online registration required). Aside from providing a nice summary of the legal landscape in this evolving amalgam of discrimination, the article makes five interesting point:

  • The U.S. lags behind the rest of the developed world, most of which has much more flexible family leave laws.
  • More than 50% of family responsibility discrimination claims are successful, which is significantly higher than the less than 20% success rate for other types of discrimination.
  • These lawsuits result in six and seven figure verdicts.
  • Even conservative courts are embracing these claims, under the umbrella of "family values."

These points are intertwined, and warrant serious attention from companies. Almost all judges and jurors can relate to caregiving. Even former Chief Justice Rehquist, not known for his liberal viewpoints, in Nevada Dep't of Human Resources v. Hibbs, wrote, "The fault line between work and family [is] precisely where sex-based overgeneralizations has been and remains strongest." The New York Times article makes the point that until either Congress amends the FMLA to extend family leave, other laws are passed, the aggrieved will continue to push reform via discrimination lawsuits, a potentially costly prospect for companies.