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.

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.

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.

6th Circuit affirms maternal profiling verdict

I've been writing lately about maternal profiling, which is employment discrimination against a woman who has, or will have, children. Last week, the 6th Circuit, in Lulaj v. The Wackenhut Corporation, provides us a good example of this type of stereotyping in action.

Lisa Lulaj worked at Chrysler as a fire security officer, first as a Chrysler employee and then as an employee of Wackenhut Corporation after Chrysler outsourced its security operations. Lulaj accepted the transition to Wackenhut solely because she was promised a promotion to a supervisor position. Shortly after the transition, Lulaj filled out forms notifying Wackenhut that she was pregnant and would need a larger uniform. Within a month, her immediate supervisor offered her a lesser promotion than she was originally promised, looking at her stomach and telling her, "You should consider this position considering your position." Within a month, Lulaj went out on maternity leave. When Wackenhut refused to promote her to the originally promised supervisor position at the end of her leave, she decided not to return to work. She sued to pregnancy discrimination under Michigan law, and the jury awarded her a total of $200,000, to which the judge added $49,500 in attorney's fees. The trial judge also took away $142,168 in lost wages because the jury found that Lulaj had voluntarily quit and had not been constructively discharged.

The 6th Circuit rejected Wackenhut's argument that there was no nexus between Lulaj's pregnancy and the promotion decision. The the contrary, the court considered three pieces of evidence critical to its decision that Lulaj was discriminated against:

1. Company managers were aware of her pregnancy long before she officially informed them.
2. The timing of the events suggests discrimination.
3. The way her superior glanced at her stomach suggested that pregnancy was a factor in denying the promotion.

This case is a good example of how maternal profiling can cause a bad result for an employer. At the same time, however, it sets a potentially dangerous precedent by allowing a discrimination claim to stand based in large part on subjective interpretations of glances and stares.

"Maternal Profiling" listed as buzzword of 2007

With the calender barely having turned to 2008, I'm still catching up reviewing year end lists for 2007. One list, the New York Time's Buzzwords of 2007, should be of particular interest to employment lawyers, employers, and HR personnel. It lists "maternal profiling" as one of the phrases that took its place in the national conversation for 2007. Maternal profiling is defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

A trip over to MomsRising.org reveals some frightening statistics about the workplace impact of maternal profiling. It cites one study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences. It cites another study that women without children make 90% as compared to a comparable man, as compared to 73% for women with children and 60% for single moms. It cites one final study that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more.

I've spent a lot of time this year writing about family responsibility discrimination in light of the EEOC's recent enforcement guidance on the subject, and the $2.1 million verdict against Kohl's Department Stores for repeatedly passing over a qualified mom for promotion. Maternal profiling may have been one of the buzzwords of 2007, but it certainly appears that family responsibility discrimination is going to be a key employment issue in 2008 and beyond. Depending on how the political winds blow after the November elections, FMLA expansion, paid sick and parental leave, and incentives for family-friendly work programs will all be in play in 2009.

I am not suggesting that everyone rewrite their leave policies, but those who can afford to be family-friendly will have an advantage in recruiting and retention of employees for whom it is an important benefit (i.e., most people between the ages of 25 and 50). At a minimum you should be building the concept of maternal profiling into your harassment and EEO/diversity training. Discrimination in largely subconscious, and education is the first step towards prevention.

Hat tip to Carrie Kurzon at the New York Employment Lawyer Blog.

BREAKING NEWS: State halts new maternity leave regulations

So I've been saying for the past few months that once the OCRC adopted its new maternity leave regulations, passage by the legislative Joint Committee on Agency Rule Review would be a mere formality. Boy do I have egg on my face.

In a 9-1 vote, the JCARR sent the new regulations back to the OCRC for a more complete fiscal analysis. The Committee was unhappy that the OCRC said there would be no fiscal impact on school districts or local governments from the rule change. Today's Plain Dealer quotes State Senator and JCARR member Tom Niehaus, who cited as an example a small township police department that would be forced to cover shifts for a pregnant employee and pay overtime costs. Sen. Niehaus also expressed concern as to whether the OCRC has the authority to enact these regulations, although the Committee as a whole sidestepped that issue. The OCRC must now wait at least 90 days before returning with an updated application for the rule change. One now has to question whether the JCARR will ever approve the new regulations.

The bottom line for employers is that for now the old rule remains, that women must given a "reasonable" amount of time off work for maternity leave. I caution, however, that courts that have looked at the current 4112-05-5(G) have interpreted 12 weeks as "reasonable" because it is what the FMLA provides.

OCRC rebukes Govenor's attenpt to stall new maternity leave rules

I was planning on taking the holiday weekend off, but then Governor Strickland had to publicly come out against the adoption of the new pregnancy leave regulations.

According to this morning's Cleveland Plain Dealer, Ohio's Governor has asked the Ohio Civil Rights Commission to indefinitely delay its implementation of new maternity leave rules. The Governor said Ohio's businesses need more time to study the proposed maternity-leave timeframe, which will grant up to 12 weeks of medically recommended leave for pregnancy, childbirth, and related medical conditions for every female employee of virtually all Ohio businesses. The OCRC politely rejected the Governor's plea, and will send its proposed rule to the legislative rule-making committee for consideration on December 3 as planned. The Commission Chairperson, Barbara Sykes, a Strickland appointee, said that the Commission has already granted a concession to businesses by making the duration of the leave tied to the employee's doctor's medical approval.

The adoption of these new rules get more bizarre with every turn. First, the "medically recommended" language was slipped in at the 11th hour with no fanfare. Now, the state's Democratic governor, swayed by business interests, is asking his appointee to delay adoption of a measure that is is largely lauded by members of his own party. While it is doubtful that the legislative rule-making body would block these regulations, nothing would surprise me at this point. Everyone should assume that the new rules will go into effect as planned, but continue to watch this blog for further updates on Ohio's new pregnancy leave regulations.

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.

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.

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.

Mandatory maternity leave does not qualify flight attendant for unemployment

Unemployment cases do not usually grab my attention. Continental Airlines v. Peters, however, did. April Peters was a flight attendant for Continental Airlines, a union employer. Continental's collective bargaining agreement has a provision under which a pregnant flight attendant is placed on mandatory maternity leave at the end of her 27th week of pregnancy. Apparently, that provision is consistent with FAA regulations forbidding flight attendants from flying past their 27th week of pregnancy. During that maternity leave, the flight attendant accrues all seniority, is eligible to use accumulated sick leave. The contract also permits the flight attendant to elect a one-time 12-month maternity leave following the birth. Peters became pregnant, and Continental, consistent with the collective bargaining agreement, placed her on maternity leave at the end of her 27th week of pregnancy. Once on the mandatory leave, Peters filed a claim for unemployment compensation benefits. Along with her application she submitted a doctor's note stating that she was able to work full-time and that she had not been advised to quit her job.

The unemployment commission awarded Peters benefits. The court of appeals, however, affirmed the trial court's reversal of that decision. The issue before the appellate court was whether Peters was "involuntarily" unemployed and whether she could waiver her right to unemployment benefits through the collective bargaining agreement. Peters argued that she was involuntarily unemployed because she was willing and able to continue her job beyond the 27th week and that she could have performed some other task for the remainder of her pregnancy. Continental, on the other hand, argued that Peters' union membership voluntarily subjected her to the terms of the collective bargaining agreement, including the maternity leave policy.

The court was unpersuaded by Peters' argument that her willingness and ability to work rendered her separation involuntary:

Peters' physical ability to continue working after her 27th week of pregnancy is immaterial to the question of whether she waived the right to unemployment benefits by virtue of a collective bargaining agreement. The terms of the maternity leave policy are clear.... Although Peters might have been physically capable of performing, and willing to perform, her duties as a flight attendant after the 27th week of pregnancy, her voluntary agreement, via the collective bargaining agreement, to the terms of the maternity leave policy makes these facts irrelevant.

Instead, the court believed that Peters', through her union, waiver her right to unemployment benefits:

As a union represented worker, Peters is a party to the collective bargaining agreement. As such, she agreed to stop flying after the 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of the maternity leave..... These contract terms were reached as a result of arms-length negotiations between Continental and Peters' union, so Peters validly waived the right to unemployment compensation benefits.

The court distinguished between an arms-length, bargained for collective bargaining agreement and a unilaterally imposed policy, such as a retirement plan. The latter, the court reasoned, might render the separation involuntary.

What I find most interesting in the opinion, however, is the following throwaway line by the majority: "While is is not an issue in this case, we share the dissent's concern that there may be legal questions relating to the interplay of the collective bargaining agreement and the Pregnancy Discrimination Act ... and other potentially applicable federal or state laws." While I appreciate the court's concern that a paternalistic maternity leave policy might violate the pregnancy discrimination laws, the issue has long been settled that employers can implement leave of absence policies for legitimate safety reasons. Moreover, it does not appear that the airline harbored any discriminatory intent -- it allowed the accrual of seniority during maternity leave, provided continued health insurance coverage, gave an option for the use of sick time, guaranteed full reinstatement, and offered a 12-month postpartum leave of absence. Any claim for pregnancy discrimination would have to test the veracity of the airline's lack of available light duty. Provided, though, that there genuinely was no light duty available for Peters, I do not see any viable discrimination claim based on the mandatory, bargained-for leave of absence.

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.

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.

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.

Jury hits Kohl's big in "family responsibility discrimination" case

To help drive home yesterday's post about family responsibility discrimination, a Cuyahoga County jury today awarded a former assistant manager for Kohl's Department Stores $2.1 million. The plaintiff, Teresa Lehman, claimed that she was discriminated against because of her parenting role for her two young children. According to the Cleveland Plain Dealer, the evidence at trial showed that in "two-month period, five store-manager jobs went to less-experienced and less qualified men than Lehman, or to women with no children or women who assured their bosses that they would have no more children." At the same time, Lehman, who had previously been told by her bosses that she was manager material and on track for a promotion, was passed over and transferred to less desirable stores. Witnesses testified at trial that Lehman's bosses asked her questions such as: "You're not going to get pregnant again, are you," "Did you get your tubes tied," "I thought you couldn't have any more kids," "Are you breast feeding," and "Are you having any more kids?"

In a lesson that all employers should take to heart, the Plain Dealer quotes juror Linh Duong's explanation of the panel's sentiments: "I think she was very poorly treated because she was pregnant, because she wanted to have a family."

This stunning success for Teresa Lehman will further underscore for employees and plaintiffs' lawyers that judges and juries will not give a free pass to employers whose decisions exhibit an intent to discriminate against women who want to work and have a family at the same time. I wrote yesterday that this type of discrimination should be a lesson in HR 101. Companies need to pay careful attention to verdicts such as this one. This issue bears close watching, as it appears it will be a hot button issue in employment law for the foreseeable future.

Is Failing to Promote a Work/Life Balance Actionable Discrimination?

If you scour Federal and Ohio anti-discrimination laws, you will not find “caregiving” as a protected characteristic. Yet, according to the EEOC’s May 23, 2007, Enforcement Guidance, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, employers that disparately treat employees who have caregiving responsibilities may be guilty of actionable discrimination. 

According to the EEOC, the Guidance is intended to address the connection between caregiving roles, such as motherhood, and employment discrimination. It does so, not by creating “a new protected category,” but by illustrating “circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The EEOC’s intention is to clarify “how the federal EEO laws apply to employees who struggle to balance work and family,” says EEOC Vice Chair Leslie E. Silverman. This form of discrimination is being referred to as “family responsibility discrimination” (or “FRD”).

As examples of family responsibility discrimination, the EEOC provides a 27-page laundry list that should be HR 101 for all but the most myopic of employers:

• Asking female applicants, but not male applicants, if they have children (sex discrimination); 
• Making derogatory comments about a female employee after she becomes pregnant (sex discrimination); 
• Quizzing a female job applicant on how she would handle her job and her family at the same time (sex discrimination); 
• Forcing pregnant employees to take unpaid leaves of absence (sex/pregnancy discrimination); 
• Refusing to permit a male employee to take permissible paternity leave, or denying a request for part-time status to enable one’s wife to return to work full-time, because it is not “masculine” (sex discrimination); 
• Permitting a white employee time off to care for an ill child, but not a black employee (race discrimination); 
• Failing to hire an employee who has to care for a disabled child (disability discrimination); 
• Repeated negative comments about breastfeeding, motherhood, or pregnancy (sexual harassment).

As a relatively new dad, I can personally report that caregiving is largely the mom’s role, (although we enlightened 21st century dads try to do our fair share). Be that as it may, companies that are not flexible in accounting for that caregiving role of their female employees are losing and will continue to lose good employees. For companies to retain those employees, they will have to become flexible so that working moms do not have an incentive to leave the workforce. One would think that businesses would self-correct to ensure against losing good employees. The fact that the EEOC was compelled to publish this Guidance suggests that the job market is doing the exact opposite to the detriment of many well qualified employees.

This Guidance will certainly spur more discrimination charges and lawsuits based on these issues, as they are now front and center for the plaintiffs’ bar. To avoid being subjected to such claims and to be able to effectively defend them, employers will have to adopt more flexible policies and a more open mind on the role of caregivers in the workplace.

Pregnancy discrimination claims on the rise

It certainly seems like we are in the midst of another baby boom. Everywhere you look there are either pregnant women or women pushing strollers or lugging infant car seats. So perhaps it is not surprising that given the fact that women are much more career oriented now than 20 years ago, pregnancy discrimination claims are on the rise. With $4 gasoline on the horizon and the cost of living getting more expensive every day, few families are afforded the luxury of living on one income.

Eve Tahmincioglu from msnbc.com succinctly summarizes the law against pregnancy discrimination in the workplace: "Pregnancy discrimination is indeed illegal.... You cannot refuse to hire a woman because she is pregnant. You cannot fire her because she is pregnant. You cannot demote her or dock her pay because she is pregnant. Even if you ask a woman about her child-rearing plans, and don’t do the same of your male job applicants or employees, that’s a no-no." And yet, despite the fact that every company knows it cannot discriminate because of pregnancy, according to David Grinberg, an EEOC spokesperson: “The increase in pregnancy discrimination charge filings and lawsuits is cause for concern.... [P]regnancy discrimination lawsuits by EEOC have increased about threefold from six or fewer per year in the early to late 1990s, to 16 or more per year since 2001." Pregnancy discrimination charges charges filed with the EEOC, state and local agencies jumped nearly 19 percent to a record 4,901 last year.

The Pregnancy Discrimination Act is not the only law employers must worry about when dealing with pregnant employees. The Family and Medical Leave Act mandates 12 weeks of unpaid leave for employees for childbirth and related care, and makes it illegal to terminate an employee during that leave or in retaliation for taking the leave. The FMLA, though, only applies to employers with 50 or more employees and to employees to worked at least 1,250 hours in the preceding 12 months.

Many Ohio small businesses are therefore under the mistaken impression that maternity leave is not required of them. Ohio law, however, begs to differ. Separate and distinct from the FMLA's 50 employee/1,250 hour prerequisites, section 4112-5-05(G) of the Ohio Administrative Code provides that a female employee must be granted a leave of absence for a reasonable period of time on account of childbearing. This requirement applies regardless of whether an employer has a maternity or leave of absence policy. According to the Ohio courts that have examined this provision, a "reasonable period of time" may exceed 12 weeks depending on the circumstances.

This area of the law is a minefield for the unwary employer. The federal PDA intersects with the FMLA, which then intersects with Ohio law, all creating a trap that can prove very costly for an employer that terminates a woman while pregnant or shortly after childbirth. These issues will continue to plague employers as more women return to work after childbirth. The safest course of action is to grant all women 12 weeks of maternity leave, regardless of their tenure and the size of your business, and not to terminate an employee following childbirth without consulting your attorney first.