Say it ain’t so: court holds an employer does not have to accommodate a pregnant employee

Last year, I railed against the Pregnant Workers Fairness Act, a bill that, if passed, would require employers to make a reasonable accommodation for an employee’s pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through the Pregnancy Discrimination Act, already requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition.

Last week, in Young v. UPS, the 4th Circuit Court of Appeals held that Title VII does not require employers to provide pregnant women a “reasonable accommodation” when, as a result of pregnancy, they are limited in their ability to perform work duties. Was my musing about the evils of the Pregnant Workers Fairness Act off-base?

The facts of Young are simple. UPS required Ms. Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree the employer accommodated a disabled employee. The 4th Circuit rejected her argument, finding that where an employer’s policies treat pregnant workers and non-pregnant workers alike, it has complied with Title VII:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA.

Reading this decision, you might be thinking to yourself, “Hyman, you’re wrong. Title VII does need to be amended to grant accommodation rights to pregnant women.” You, however, would be jumping the gun.

As Robin Shea astutely observed at her Employment & Labor Insider, because of 2009’s ADA Amendments Act, today’s ADA is very different than the statute in effect during Ms. Young’s 2006 pregnancy:

In 2007, the “old” Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered “disabled.” Not only was a 20-pound lifting restriction generally not considered “disabling,” but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a “disability” in itself because the ADA says so. Accordingly, Ms. Young was out of luck.

The ADAAA, of course, greatly expanded the definition of “disability,” and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered “disabling.” Ditto for a 20-pound lifting restriction.

In other words, today an employer could be required to provide a reasonable accommodation to a pregnant employee to the same extent it provides a non-pregnant disabled employee an accommodation, or face the possibility of a pregnancy discrimination lawsuit.

Handling accommodation requests by pregnant employees is a thorny area of the law. My recommendation is instead of trying to sort through these issues for yourself, you contact your employment counsel before denying an accommodation request made a pregnant employee.

---

Thanks to Justine Konicki for her help on this post.

Firing of “irresistible” employee does not equal sex discrimination?

She’s unavoidable, I’m backed against the wall
She gives me feelings like I never felt before
I’m breaking promises, she’s breaking every law
She used to look good to me, but now I find her
Simply irresistible

Robert Palmer. “Simply Irresistible.” Heavy Nova. EMI Records, 1988.

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for ten-and-a-half years. Dr. Knight terminated Nelson at his wife’s request. Nelson never flirted with Dr. Knight or sought an intimate or sexual relationship with him. Dr. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Dr. Knight replaced her with another female. In fact, every hygienist who ever worked for Dr. Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight's unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Dr. Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if  she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards. 

EEOC opines on domestic violence, sexual assault, or stalking as Title VII and ADA violations

There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. That omission, however, does not unchain employers to discriminate against employees who find themselves in these unfortunate circumstances.

Earlier this month, the EEOC issued a Q&A entitled, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking [pdf].

While Title VII and the ADA do not expressly protect victims from discrimination, they do protect against employers’ use of stereotypes rooted in protected classes (e.g., sex or mental illness) to treat these employees differently.

The EEOC is kind enough to provide some examples of these stereotypes in action:

Title VII—Disparate Treatment Based on Sex

• An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.” 

Title VII—Sexual Harassment

• An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

ADA—Disparate Treatment Based on Actual or Perceived Disability

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA—Denial of Reasonable Accommodation

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

Retaliation

• An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

The Q&A contains many more examples. It is worth reading, and incorporating into your harassment/EEO training so that managers and supervisors are aware of these issues.

Hat tip to the Workplace Prof Blog for brining this to my attention.

The right way to use subjective criteria in layoffs

Reductions-in-force present a unique issue for an employer defending its decision in a subsequent discrimination case. The employer already has its legitimate, non-discriminatory reason baked into the termination—the economics of a layoff, which often causes qualified employees to lose their jobs. For this reason, reduction-in-force cases are often singularly focused on the issue of pretext.

In Beck v. Buckeye Pipeline Services Co. (6th Cir. 9/28/12) [pdf], the plaintiff claimed that the employer’s use of subjective criteria to select her for inclusion in the layoff created an inference that the employer singled her out because of her age or gender.

While agreeing the subjective decision-making can prove problematic in some cases, the court disagreed that its use is per se discriminatory.

Subjective criteria, it is true, sometimes make it difficult to distinguish between lawful and unlawful employment actions, and they deserve careful scrutiny…. When all is said and done, the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case. 

What factors did the court rely upon to conclude that this employer’s use of subjective criteria in this layoff did not create an inference of discrimination?

• There was no evidence that a disproportionately high rate of women or older workers were included in the layoff.
• There was no evidence that the employer’s use of subjective evaluation procedures was a deviation from its normal decision-making process.
• There was no evidence of dishonesty in the subjective decision-making process.

What lessons does this case teach hold for employers considering the use of subjective criteria in determining which employees to include in a workforce reduction?

1. What do your workforce demographics look like before and after the RIF, company-wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria.
2. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm, an explanation that may be enough for the employee to survive summary judgment and get his or her case to a jury.
3. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Are their objective criteria (sales numbers, for example) that could contradict a subjective evaluation? 

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

EEOC pronounces protections for transgender workers

Title VII does not, on its face, protect transgender workers from discrimination. Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of transgender as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort….

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in the year 2012 there are still minority groups against whom it remains facially legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

[Hat tip: The Proactive Employer / Stephanie Thomas]

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Let’s try not to over-react to the breastfeeding discrimination case

Last month, I wrote that employers denying lactation rights to employees was not problem that needed remedial legislation. Wouldn’t you know it, news broke last week of a federal judge in Houston who dismissed a sex discrimination case—EEOC v. Houston Funding [pdf]—in which the employee alleged that she was fired because she asked to pump breast milk at work.

Here’s the court’s entire analysis dismissing the lawsuit:

The commission says that the company fired her because she wanted to pump breast milk. Discrimination because of pregnancy, childbirth, or a related medical condition is illegal….

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she wanted to pump breast milk — lactation is not pregnancy, childbirth, or a related medical condition.

She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination.

Before I put on my employer-advocate hat, let me go on record and say that the last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination.

This decision has people angry. As of this morning, the case’s online docket reflects that 12 private non-parties have emailed the judge calling her ruling “shameful” and “absurd” (among other similar pejoratives).

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that 1) Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate; and 2) we do not need any additional legislation (on top of the Patient Protection and Affordable Care Act) to further to protect this right (EEOC v. Houston Funding notwithstanding).

For additional analysis of this case, I suggest checking out the thoughts of some of my fellow bloggers from last week:

• Does Federal Law Prohibit Lactation Retaliation? — from the Delaware Employment Law Blog
• Lactation and Nursing Is a Civil Rights Issue — from Outten & Golden Employment Law Blog
• Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge — from Screw You Guys, I'm Going Home
• Lactation not Related to Pregnancy, Says Federal Judge — from San Antonio Employment Law Blog
• Expressing Milk Under Title VII and the PPACA — from LaborRelated
• Lactation is Not a Condition Related to Pregnancy Says S.D. Tex. — from Workplace Prof Blog

The word of the day is “systemic”

The EEOC has published its draft strategic plan for fiscal years 2012 – 2016. A quick Ctrl-F for the word “systemic” reveals 16 different hits in this relatively short document.

“Systemic” cases, according to the EEOC, are those that “address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The identification, investigation, and litigation of this category of cases remains a “top priority” of the agency. When the EEOC publishes the final version of its strategic plan, expect to see a target percentage of systemic cases in the agency’s litigation pipeline.

What does this mean for employers? It means that company-wide policies that have the potential affect certain groups more than others very much remain on the EEOC’s enforcement radar. What are some of these issues for employers to heed:

• Arrest and conviction records
• Work-life balance and the plight of working moms
• Religious accommodations and “look” policies
• Leave of absence policies
• Credit histories
• Employment status 
• Age 

Keep an eye on these issues, because you can bet the EEOC will be (at least for the foreseeable future).

Statistics show that lactation breaks are not a workplace problem

Before you read further, make sure you are sitting down, and that there is nothing blunt nearby for you to bump your head on if you pass out from the shock. Okay, here we go. According to the Huffington Post, since Obamacare mandated that employers provide space in the workplace for mothers to lactate, the Department of Labor has cited a whopping 23 companies for not providing adequate lactation breaks or spaces.

According to the U.S. Census Bureau’s latest statistics, there are 5,767,306 American employers, and yet only 23 have been cited for a violation of this mandate. In other words, the Department of Labor has cited .0004% of all American employers. If we only consider employers with 20 or more employees, the DOL has cited .0038%—still an infinitesimally small number. If we only consider the largest of employers—those with 100 or more employees—the percentage of citations drops to a still-miniscule .023%.

What does this mean? Either that the lactation mandate is not yet widely known, and as public knowledge catches up with the law’s requirements complaints (and citations) will rise. Or, the lack of lactation space in American workplaces is a myth that does not need need a legislative solution.

Are there employers that violate women’s rights (already protected by Title VII) to lactate in the workplace? Absolutely. Do enough trample these rights such that we need legislation to address this issues? Likely not.

[Hat tip: ABA Journal]

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

We’ve come a long way, baby

1943 was only 68 years ago, which, in the grand scheme of things, was not far off. Yet, consider how far we’ve come, not the least of which in the area of personal liberties and civil rights.

Case in point? The Walt Disney Family Museum recently released the 1943 Disney employee handbook, entitled “The Ropes at Disney.” The handbook included this pre-Title VII gem:

My legal tip of the day—do not have a workplace policy that makes benefits available only to men (or whites, or Americans, or Christians, or, well, you get the point).

Other highlights include various nods to World War II, such as a selective service policy, and the inclusion of a violation of the United States Espionage Act among the grounds for termination. The company’s military severance pay policy strikes me as particularly progressive, but I’ll admit my ignorance on whether that type of policy was prevalent during the war.

Huge thanks to Tim Eavenson, who first posted about this on his Current Employment blog.

Update: Phil Miles, on his Lawffice Space blog, shares his thoughts as well,

Federal court takes EEOC to task for its work-life-balance agenda

In a 64-page opinion, a New York federal court issued a scathing indictment of the EEOC’s sue-first-ask-questions-later litigation tactics. In EEOC v. Bloomberg L.P., the agency accused the financial news giant of engaging in a pattern and practice of discriminating against pregnant women and mothers. The court strongly disagreed:

“J’accuse!” is not enough in court. Evidence is required.

The court also lobbed a grenade against those who pursue a work-life-balance agenda in the name of sex discrimination:

At bottom, the EEOC’s theory of this case is about so-called “work-life balance.” Absent evidence of a pattern of discriminatory conduct—i.e., a pattern that women or mothers were discriminated against because of their pregnancy as compared with others who worked similar schedules—the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance…. The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs—and they are tradeoffs—when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward-thinking.” But they are not required by law. The law simply requires fair treatment of all employees. It requires holding employees to the same standards.

In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers…. Bloomberg’s standard operating procedure was to treat pregnant employees who took leave similarly to any employee who took significant time away from work for whatever reason. The law does not create liability for making that business decision.

In other words, family responsibility discrimination is only unlawful if it treats genders differently. It is not unlawfully discriminatory for a company to discriminate against those who chose family over their jobs, so long as men and women suffer the same consequences. The failure to provide what makes business-sense (promoting a family-friendly work environment) does not, in an of itself, equate to sex discrimination (despite what the EEOC may tell you).

---

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Is it discriminatory for a hospital to require the same-sex treatment of patients?

According to the EEOC, a Missouri hospital discriminated against its male nurses by preferring to have female nurses treat female patients. But, is this really unlawful sex discrimination?

A “bona fide occupational qualification” defense permits discrimination based on sex, age, religion, or national origin (but not race) where the protected class is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. One example of a BFOQ is a safety-based mandatory retirement age for airline pilots.

Is the sex of the person providing medical treatment another example of a BFOQ? Or, is this the type of sex-based stereotype that Title VII is supposed to eradicate? Or, does it depend on the type of treatment being provided? Readers, what do you think?

---

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Apparently it’s a short trip from Wal-Mart to breast feeding

Last Friday, Labor Secretary Hilda Solis released the following statement about the Dukes v. Wal-Mart decision on the DOL’s Work in Progress blog:

The Court’s decision in the Walmart lawsuit made no ruling on whether America’s largest employer engaged in unlawful pay discrimination…. As Labor Secretary, I believe it is my responsibility to use my authority to close the pay gap so women can earn their fair share and provide the income support their families rely upon….
We also need to create more flexible workplaces so women don’t have to choose between motherhood and a fulfilling career. To that end, my Wage & Hour division has begun enforcing a new provision in the Affordable Care Act that guarantees break time for nursing mothers.

Let me get this straight. The Supreme Court simply decided that 1.5 million women, managed by thousands, if not tens of thousands, of different supervisors, lacked enough in common to bring their claims in one unified class action. From this holding, Secretary Solis makes the jump to conclude that breastfeeding working moms need more workplace flexibility. Am I missing something?
Secretary Solis concluded her comments by stating, “We’re living in the year 2011—not 1911.”

Madam Secretary, let me repeat what I said a few weeks ago, since apparently not everyone had the chance to read it:

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s [or 1911]. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

Wal-Mart v. Dukes does not equal barefoot and pregnant

I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of the commentary on the decision. For example, this clip from MSNBC argued that the Wal-Mart case marks the end of women’s equality in the workplace:



Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:

The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners—women.

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

Writing for the majority, Justice Scalia said, “[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.” Justice Scalia might be three decades removed from the workplace, but he’s not off base. In 2011, the overwhelming majority of companies do not intentionally discriminate. Companies may have rogue supervisors, managers, and even executives, who discriminate, for which their companies can be held responsible. Indeed, in a company as big as Wal-Mart, it would be surprising if there weren’t employees who suffered discrimination. As an institutional matter, though, most companies try to do right by their employees by combating workplace discrimination, even Wal-Mart.

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion

Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.

Class actions: the smaller you are, the bigger the risk

At some point in the next several weeks, the Supreme Court will deliver its long-awaited opinion in Dukes v. Wal-Mart. Recall that Dukes will decide the propriety of the class certification of the largest sex-discrimination case ever (1.5 million employees seeking billions in damages).

As we wait for the Dukes decision, plaintiffs continue to file large discrimination class actions. The latest was filed against accounting giant KPMG. From Law360:

A former senior manager at KPMG LLP filed a putative class action Thursday in New York that claims the accounting giant shuts out women and working mothers from its upper ranks, seeking $350 million in damages.

Plaintiff Donna Kassman argues that KPMG elbows women out from the partnership track and frowns on those who use maternity leave or flexible schedule benefits, capping the number of women in management positions at well below industry standards.

Your workplace may not large enough and your employees may not earn enough for you ever to be exposed to $350 million in risk. Risk, however, is proportional to size. KMPG reported $20.6 billion in revenue in 2010. $350 million is a mere 1.7% of its annual revenue. Consider, however, that the average retail and service small business has $6,000,000 in annual revenue. You better believe that a class action would place your small business at risk to lose more than $101,400 (or 1.7%). In other words, the smaller your business, the more at risk you are from potential class actions.

While $350,000,000 is an astronomical number, it is a number that a $20 billion business can absorb. On the other hand, a class action against a small business is often “bet the company” litigation. A $1,000,000 judgment against a $6,000,000 company could easily put that company out of business.

As we wait for the Supreme Court’s Dukes opinion, consider what proactive steps you can take in your business to help insulate you from potential class actions that could put the continued viability your business in jeopardy.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Does GINA cover sexual orientation discrimination?

Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Reading the tea leaves: The Dukes v. Wal-Mart oral argument

Today, the Supreme Court heard oral argument in Dukes v. Wal-Mart (transcript available here). Dukes will determine the propriety the certification of the largest sex-discrimination class action ever—a nationwide class of 1.5 million employees. I've previously covered the background of this case. If you have any doubts about the potential significance of Dukes, consider that 66 uninvolved businesses and lobbying groups filed 28 different briefs with the Court advocating for one side or the other. I’m not sure of the record for these filings, but Dukes has to be close.

According to Bloomberg Businessweek, “The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour.” According to Wal-Mart, however, the certified class “includes too many women with too many different positions in its 3,400 stores across the country. [I]ts policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.”

In pre-gaming today’s oral argument, the Los Angeles Times not only framed the issues but also the importance of this case:

The court’s ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for [the plaintiffs] could open the door for the broader use of statistics to prove job discrimination—and not just on behalf of women, but also for minorities or persons with disabilities.

However, a win for Wal-Mart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.

Reading the tea leaves, I predict a resounding Wal-Mart victory at the Supreme Court. It is no surprise that given the political makeup of the Court, Justice Kennedy is the swing vote in close cases. As Justice Kennedy goes, so goes the majority. Thus, the following exchange between Justice Kennedy and the plaintiff’s lawyer signals that employees’ string of victories in employment cases may be coming to an end:

   Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

   A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

   Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

Suffice it to say that if the key vote on the Court does not fully understand the plainitffs’ argument, Wal-Mart is feeling pretty good about its chances right now.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.