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Family caregiver bias claims on the upswing


Family caregiver bias claims have sharply risen in recent years. This type of claim has increased by 400 percent over the last decade.

A big reason why is that younger men and women entering the workforce expect to spend more time with their families and less time in the office.

The Equal Employment Opportunity Commission recently issued guidelines addressing the issue. The agency emphasized it did not intend to create a new category of protected workers, but it did provide 20 different examples of caregiver (also known as family responsibilities) discrimination. The examples address everything from stereotyping during the hiring process to the hostile work environment that can result from stereotyping mothers or fathers.

The guidelines signal the commission will be more aggressive in investigating these claims.

The most common example of caregiver discrimination occurs when a women either informs her employer she is pregnant or gives birth to a child, and then finds her workload and responsibilities decreased – commonly referred to as being put on the “Mommy track.” This happens because employers wrongly assume a pregnant woman or new mother is no longer devoted to her work.

Men who file these claims typically make the opposite argument – that they are discriminated against for not following gender stereotypes. For example, a father may take some time off work to care for his children, and when he returns he is put on rotating shifts so he can never set up regular child care, forcing him to quit.

A caregiver or family responsibilities claim must be tied to another form of

 

discrimination because being a caregiver is not a protected class of worker.

Instead, workers must rely on laws such as the Americans with Disabilities Act (needing time off to care for a disabled child, for example) or Title VII (perhaps tying the claim to gender discrimination).

Claimants can also use a variety of state law claims, including state equivalents to the federal discrimination statutes, and common law claims such as wrongful discharge, breach of contract or intentional infliction of emotional distress.

A handful of states have enacted laws specifically addressing caregiver discrimination. The District of Columbia, for example, has an ordinance protecting workers from family responsibilities discrimination and similar legislation is pending in California. In Alaska, a more limited statute protects workers from discrimination based on parental status. A similar executive order covers federal workers and contractors.

Employer training is the key to reducing family responsibilities discrimination and lawsuits. The commission’s new guidelines make it clear employers must focus on the job, not family or kids. Employers are advised to stay away from those issues and stick to the job description, both in interviews and in conversations.

Employers, for example, shouldn’t assume a female employee can’t handle the demands of motherhood and a full-time job.


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U.S. Supreme Court limits disparate pay claims


Workers who think they’ve been discriminated against in their paychecks must file claims within a much shorter time period following a recent U.S. Supreme Court decision.

Prior to the ruling, workers could wait potentially years before filing a claim that they were underpaid because of discrimination. The rule was that each paycheck containing inequitable pay was a “continuing violation” of federal law that extended the deadline for filing claims.

But the Supreme Court rejected that rule, saying the 180-day filing deadline was triggered from when the alleged discriminatory pay decision was initially made and “communicated” to a worker. The deadline is 300 days under some state employment laws.

Companies are hailing the decision because it will help avoid defending against “stale” claims.

But employees fear it will be much harder to accumulate evidence of unequal pay within the shorter time period. Sometimes it takes time before employees can reasonably suspect they are not being fairly paid.

For example, a woman can be hired and then find out a year later her starting salary was lower than a man’s starting

 

salary doing the same job.

In the case before the court, Lily Ledbetter was a manager at a Goodyear plant in Alabama. She sued the company under Title VII, claiming it had paid her 15 to 40 percent less than her male counterparts for 20 years. A federal jury awarded her $3.8 million.

On appeal, Goodyear claimed that Ledbetter’s recovery should be limited to acts of discrimination within the 180-day period prior to her filing a charge with the Equal Employment Opportunity Commission.

The Supreme Court agreed.

The court said a new violation of the law doesn’t occur each time a paycheck is issued. The initial discriminatory payment triggers the filing deadline, and subsequent discriminatory payments are simply the effect of past discrimination, the court reasoned.

Since salaries and wages are often kept secret from other employees, claimants could argue the discriminatory nature of their pay was not “communicated” to them until after the 180-day deadline.

We are available to discuss your options in this evolving area of law.


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Undocumented worker can sue for sex harassment


An undocumented alien can sue her employer for sexual harassment on the job.

The worker, employed as a cook at a restaurant, complained to her employer that a supervisor sexually harassed her. In investigating the complaint, the employer discovered the woman’s social security number did not match her name. Although the harassing manager received a written warning, the woman was fired. She then sued her employer, claiming sexual harassment.

 

The restaurant filed for summary judgment, arguing the woman wasn’t allowed to sue because she was an undocumented alien and her employment was prohibited under federal immigration law.

But a Minnesota court disagreed, concluding that undocumented workers can sue for sexual harassment. Undocumented workers should be allowed to pursue civil rights claims on their own behalf, the court said.


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Guardsman wins $1 million after Target fired him


A jury recently ordered Target Corp. to pay nearly $1 million in damages for retaliating against a National Guardsman who complained about being demoted when he returned from active duty.

A graduate of West Point, James Patton served six years in the Army before retiring as a captain in 2001. After the Sept. 11, 2001 terrorist attacks he joined the Oregon National Guard.

Patton had been working for Target since the summer of 2000 and was employed as a group leader at the company’s distribution center in Albany, Ore.

After returning from a two-week term of active military duty with the National Guard in 2003, Patton was told he had been demoted.

He sent an e-mail to co-workers at other Target warehouses informing them of the demotion and directing them to contact his successor. Patton also contacted an employer support representative from the Oregon National Guard to help convince Target to reinstate him to his prior position.

In mid-July 2003, Target fired Patton,

 

saying his e-mail to co-workers was disruptive and violated company policy.

Patton testified at trial about his treatment, the timing of his National Guard training and his demotion on the day he returned from active duty. He told the jury that after his supervisors demoted him, they told him to take a week off. He said he was told by one human resources official that the company thought he would quit after being demoted.

Target contended that it does not discriminate on the basis of military service and has a strong history of supporting employees who are veterans, reservists or members of the National Guard. Several of Patton’s supervisors testified that both his demotion and termination were based on legitimate personnel reasons.

But the jury ultimately found that Target officials retaliated against Patton for asking the National Guard to intervene. They awarded him $84,970 in lost wages, other economic damages and non-economic damages. The jury also ordered Target to pay $900,000 in punitive damages.


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Hourly wage suit for ‘donning’ safety clothing denied


Union employees for a poultry processing company were not entitled to compensation under federal law for time spent putting on and taking off protective clothing, according to a recent federal appeals court ruling.

This topic continues to develop in court rulings around the country. For example, a contrary ruling on this issue came out earlier from another federal appeals court.

In the most recent case, the employer compensated workers from the time chickens to be processed reached the production line. Employees were paid

 

based on when the first and last chickens reached the production line.

The workers had to wear various articles of protective clothing, which they had to put on before working on the production line. They had to remain after the production line time ended to take off the protective gear.

The court said the federal Fair Labor Standards Act did not include “hours worked” for time spent changing clothing at the beginning and end of each workday, when that time was excluded from measured working time under the collective bargaining agreement.


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Should retirement pay put in IRA reduce amount of disability benefits?


An attorney stricken with cancer was fired by his employer when he was unable to return to work.

The man, 64, received $790,440 in retirement benefits, which he chose to roll over into an IRA. He then sued the disability insurance carrier after he was denied disability benefits. A trial court judge eventually awarded him $325,451.

The carrier argued the disability benefits awarded should have been reduced by the retirement benefits, since the disability plan required a deduction of benefits by the amount of funds

 

“received” related to the disability.

But a federal appeals court ruled against the insurance company. The court said funds “received” means money that a recipient possesses – and money rolled over into an IRA doesn’t actually come into the possession of the retiree since he didn’t gain any additional authority over the funds.

The court noted that the switch of money into the IRA did not enhance the man’s control over the retirement benefits.



This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.

The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.

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