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.

Racial harassment lawsuits on the rise

It seems like every day I'm reporting on another class of employment lawsuits that are multiplying in number. Today's victim is the racial harassment suit. Today's USA Today (Racial harassment lawsuits at work go up) is reporting that the EEOC has seen the number of racial harassment complaints filed with it more than double in the past 17 years, from 3,075 in 1991 to about 7,000 in 2007. Thursday, the EEOC settled for $290,000 a racial harassment complaint brought against a Gulf of Mexico oil driller stemming from the display of nooses (Global Drilling Company to pay $290,000 for Racial Harassment, Including Nooses). The USA Today article also discusses EEOC settlements involving allegations of the display of racial graffiti and the use of racial epithets. Hangman's nooses is also a popular allegation in these cases. Indeed, since 2001, the EEOC has filed more than 30 lawsuits involving the display of nooses at work, some of which resulting in 7-figure settlements.

While workplace harassment is typically thought of in terms of sexual harassment, a hostile work environment on the basis of any protected characteristic is just as unlawful. Racial harassment, national origin harassment, age-based harassment, disability harassment, religious harassment, and harassment based on any other protected class are all equally as unlawful as sexual harassment. All workplace harassment policies should make clear that all of these forms of harassment are illegal, and will be treated the same by management. Companies' annual or semiannual harassment training should not just be limited to sexual harassment, but should include all forms of unlawful harassment. This EEOC serves as a good tickler to remind all companies to check their harassment policies to ensure that it covers all types of harassment, and to update where necessary.

What else I'm reading this week #2

For those of you who've been with me for some time, you'll notice that the blog went under a bit of a redesign this week. I've not only made it a little more reader friendly, but I've also added some new functionality to the site. On the sidebar to the right you'll see a box that lists all of the items I've shared this week from my Google Reader account. Each Friday, I'm going to archive each week's links in a post. So without further fanfare, here's what I've been reading this week (in no particular order):

Please stop annoying me, from The Evil HR Lady, giving advice on the issue of unpaid time as a wage and hour violation.

CBO estimates minimal costs necessary to enforce ENDA, from Workplace Horizons, reporting that the Congressional Budget Office estimates a 5% increase in EEOC filings if the current version of the Employment Non-Discrimination Act of 2007 (which excludes gender identity as a protected class) in enacted.

Family friendly, also from The Evil HR Lady, discussing the difficult choices employees must make between job and family.

AT&T to pay $756,000 for religious bias against Jehovah's Witnesses, from the EEOC, reporting on a failure to accommodate religious discrimination case.

In-house counsel's biggest headache, from Gruntled Employees, noting that labor and employment cases are the biggest worry for in-house counsel.

Facebook, Employees and HR - You Can't Handle the Truth..., from The HR Capitalist, discussing the need for companies to be careful before fully embracing social networking sites for employee communication.

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.

Ohio pushes to be on the forefront of paid sick leave

This morning's Columbus Dispatch reports that supporters of the proposed Ohio Healthy Families Act (a union-led, statewide coalition) have collected the required 140,000 signatures to put the statute before the General Assembly when it begins its 2008 session in January. If the legislature fails to act within 120 days, supporters could collect another 120,683 signatures to submit the issue to voters in the November election.

The proposed law would require all companies with at least 25 employees to give employees who work at least 30 hours a week 7 paid sick days a year. Part-time workers would receive a prorated number of paid days off. Employees would be able to use the sick days for themselves or to care for a child, parent, or spouse, and for physical and mental illnesses, injuries, other medical conditions, and preventative care. Employees would also be able to carry over a maximum of 7 unused sick days from year to year. The proposed law mirrors the FMLA on issues such as notice, medical certifications, and anti-retaliation.

While this law will clearly impact those small businesses that currently do not provide for any paid leave, even those employers who already provide paid sick leave should be concerned about this proposal. It will make it harder to monitor and enforce attendance policies, provide a potential disincentive for employees to return from sick leaves, and create a new cause of action employers will have to defend against. Additionally, the potential of a November 2008 ballot initiative adds intrigue to this issue. Will a liberal issue such as paid sick leave draw more Democrats to the polls and help carry Ohio for that party in the Presidential election? Does that risk create an incentive for the Republicans to act on this initiative in January? This law would put Ohio out in front of the curve on this issue, as it would be only the 4th state to enact a paid leave of absence law, fairly progressive for a state that is not known as such.

Click here for the full text of the Ohio Healthy Families Act.

Tepper v. Potter sets potentially narrow standard for religious accommodations

The Sixth Circuit this week handed down a significant decision that requires a job loss or some actual discipline before the denial of a religious accommodation can be actionable.
After several years of working for the U.S. Postal Service as a full-time letter carrier, Martin Tepper became a Messianic Jew, strictly observing the Sabbath every Saturday. From April 1992 through January 2003, the USPS accommodated his religion and did not require him to work Saturday's or Jewish holidays. At the time, its staffing levels enabled that accommodation without disrupting the rotating day-off schedule of other employees. It is estimated that the accommodation cost the USPS between $7,000 and $9,000 per year in overtime payments to covering employees. By 2003, however, Tepper's branch suffered a decrease in staffing levels, from 36 employees to 32 employees. Management found it more difficult to accommodate Tepper's day off, and had to assign co-workers to work more days than the rotating schedule allowed. While no co-worker formally complained about the arrangement, enough grumbled for their union to hold a meeting, to which Tepper was not invited and at which his co-workers unanimously voted to recommend ending the Saturday accommodation. Shortly thereafter, the Post Office ended the accommodation. Instead, it permitted Tepper to use annual leave and leave without pay on Saturdays, and encouraged him to reserve some of his vacation time for the Saturday absences.
While continuing to work at the Post Office, Tepper sued, contesting the removal of the Sabbath accommodation and claiming that the use of leave without pay reduced his annual pay and future retirement benefits. The District Court and the Sixth Circuit disagreed and found that the discontinuing of the accommodation did not discriminate against Tepper. The Court narrowly read the required elements of a failure to accommodate claim, and required Tepper to prove that he was either "disciplined or discharged" for failing to comply with an employment requirement that conflicted with his religious practice. Because a loss of pay does not amount to "discipline or discharge" Tepper could not prove his case.
As I wrote a couple of months ago (click here for my post on religious accommodation claims), common examples of reasonable accommodations for an employee's sincerely held religious beliefs are flexible scheduling, voluntary substitutions or job swaps, and job reassignments. The Tepper Court suggests, if not impliedly holds, that the denial of an accommodation, no matter how reasonable the request might be, is not actionable unless the affected employee suffers actual discipline or a job loss as a result of the denial. Thus, Tepper might have had a viable claim if he had quit the Post Office claiming religious intolerance, or if he observed his faith, did not show for scheduled Saturdays, and was terminated for attendance violations. I'm not sure that we want to force a job loss on a devout employee before that employee can claim a failure to accommodate. The Tepper decision seems to be much too narrow a ruling of the conduct Title VII is supposed to protect.
While Tepper is now the law in Ohio, Michigan, Kentucky, and Tennessee, I caution that all companies tread very lightly before denying or rescinding a religious accommodation in its wake. The next employee might not be as proactive as Mr. Tepper, instead opting to resign or force a termination before suing for the failure to accommodate.
Click for a copy of Tepper v. Potter.