At Work: Solutions for Employers & Employees

By Tiffanie C. Benfer

While other states are raising the bar on equality and recognizing marriages of same-sex couples, Pennsylvania still fails to provide basic equal right to approximately a million Pennsylvanians.

Pennsylvania civil rights laws provide no protection to Lesbian, Gay, Bi-Sexual, and Transgender people (LGBT). The Pennsylvania Human Relations Act (PHRA), provides protection against discrimination in housing, employment, and public accommodations on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and use of a guide dog, but completely fails to provide any protection for sexual orientation, gender identity, or gender expression.

Continue reading "Pennsylvania Civil Rights Laws Still Does Not Protect Against Discrimination Based on Sexual Orientation" »

Posted by Tiffanie Benfer at 01:10 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie C. Benfer

In the past year the Equal Employment Opportunity Commission (EEOC) experienced a record number of pregnancy discrimination filings. Women with child bearing responsibilities have typically reported experiencing discrimination when they informed their employers that they were pregnant. The EEOC has also received a surge in claims from women who have experienced discrimination simply because they are mothers. Women report they are not being considered by prospective employers and not being awarded promotions because they have children. This type of discrimination has nothing to do with any perceived notion of a pregnant woman’s ability to work. Rather, women are being discriminated against based on stereotyped sex roles. Women are responsible for family care giving and therefore, are often seen as incapable of performing at the same level as their male peers in the workplace.

Continue reading "THE EEOC WARNS EMPLOYERS: STEREOTYPING FEMALE EMPLOYEES CONSTITUTES GENDER DISCRIMINATION" »

Posted by Tiffanie Benfer at 10:10 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

In 2008, the Third Circuit Court of Appeals, in a case of first impression, considered whether the Pregnancy Discrimination Act (PDA) recognizes a claim for discrimination based on having an abortion. The Court concluded in Doe v. CARS Protection Plus Inc. that the PDA prohibits employers from discriminating against women who have had an abortion. http://law.lexisnexis.com/practiceareas/Featured-Content/Labor--Employment/Free-Download-Mealeys-Litigation-Report-Employment-Law

Continue reading "Pregnancy Discrimination Act Forbids Firing an Employee Because She Had an Abortion" »

Posted by Tiffanie Benfer at 09:41 AM | Permalink | Comments (0) | TrackBacks (0)

It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html

This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and -- most importantly -- to frame the issues for an overworked investigator.

Continue reading "EEOC Backlog Swells. What Does This Mean for Your Case In the EEOC?" »

Posted by Tiffanie Benfer at 03:34 PM | Permalink | Comments (0) | TrackBacks (0)

Barack Obama signed the Lilly Ledbetter Fair Pay Act yesterday. I've written about this legislation before, and won't repeat it today, except to say that this is a sign that the current Congress is willing to take action to protect employees' rights, and a sign that Congress is willing to overrule the Supreme Court when it will not fully implement Congressional intent.

Here is an excerpt from President Obama's remarks:

"Equal pay is by no means just a women's issue -- it's a family issue. It's about parents who find themselves with less money for tuition and child care; couples who wind up with less to retire on; households where one breadwinner is paid less than she deserves; that's the difference between affording the mortgage -- or not; between keeping the heat on, or paying the doctor bills -- or not. And in this economy, when so many folks are already working harder for less and struggling to get by, the last thing they can afford is losing part of each month's paycheck to simple and plain discrimination.

"So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

"Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time."

-- Pres. Barack H. Obama, in remarks at signing ceremony for the Lilly Ledbetter Fair Pay Act of 2009, Jan. 29, 2009

Posted by Tiffanie Benfer at 11:28 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

Continue reading "The Supreme Court Recognizes a Broad Interpretation of the Anti-retaliation Provision of Title VII " »

Posted by Tiffanie Benfer at 12:44 PM | Permalink | Comments (0) | TrackBacks (0)

Late yesterday afternoon, the U.S. Senate passed the Lilly Ledbetter Fair Pay Act by a vote of 61 to 36. I’ve written about this legislation several times. This bill reverses the Supreme Court decision in Goodyear v. Ledbetter, which strictly limited the timeframe for employees to file a claim for pay discrimination. Under the Supreme Court decision those claims would be barred by the narrow statute of limitations in Title VII.

It looks as if this will be the first bill signed into by President Obama.

Here’s a link to a news story about the vote.

http://www.bloomberg.com/apps/news?pid=20601103&sid=awK1FNtOsAVI&refer=us

Posted by Tiffanie Benfer at 09:56 AM | Permalink | Comments (0) | TrackBacks (0)

Yesterday the Supreme Court unanimously held that students who are sexually harassed in school may bring a claim under Title IX and under Section 1983 of the civil rights laws. Thus, the Supreme Court resolved a split in the circuits (the intermediate appellate courts) in favor of allowing civil rights suits to go forward. This pro-plaintiff decision was a surprise from the current Supreme Court.

In Fitzgerald v. Barnstable School Committee, 2009 WL 128173 (U.S. 2009), the parents of a kindergarten student reported to the school that their daughter was bullied and sexually harassed by a third grader on the school bus. They told the school that the older child made their daughter pull up her dress, pull down her underpants and spread her legs. The parents were not satisfied when the school suggested transferring their daughter to a different bus, feeling that the proposed solution would punish the wrong child.

Continue reading "Unanimous Supreme Court Allows Suit Against School for Its Failure to Properly Respond to Student-on-Student Sexual Harassment" »

Posted by Tiffanie Benfer at 12:03 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.

Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”

Continue reading "The Supreme Court Considers Again the Scope of Title VII's Anti-Retaliation Provision" »

Posted by Tiffanie Benfer at 10:24 AM | Permalink | Comments (0) | TrackBacks (0)

TWO, FOUR, SIX, EIGHT, WOMEN SAY THE HOUSE IS REALLY GREAT!

The House of Representatives, that is… Two hours ago, the House of Representatives passed two bills that will help prevent gender based pay discrimination. The Lilly Ledbetter Fair Pay Act reverses the decision of the Supreme Court, which I wrote about in my first ever entry on this blog. The decision had interpreted the statute of limitations for Title VII so narrowly that it made it impossible in practical terms for those who suffered pay discrimination to seek recourse.

The Paycheck Fairness Act stiffens penalties for gender based pay discrimination. It also addresses a related problem, protecting workers who share pay information with their colleagues from retribution by the employer. This protection is necessary because employers who forbid employees from sharing pay information are effectively preventing the employees from learning about pay discrimination.

These were just the second and third pieces of legislation voted on by the House since it resumed sessions on Tuesday. Last year, the Senate struck down the Lilly Ledbetter Fair Pay Act. It should pass handily in the newly elected Senate.

This looks like a signal for sea change in direction after the conservative Bush years. The conservative majority of the Supreme Court may continue to try to narrowly interpret civil rights legislation, but Congress has sent a strong message – through the ADA Amendments Act (which I previously wrote about) and these new laws – that it will take swift action to undo the damage done by the Court. It will be interesting to see if Congressional action to overturn Supreme Court decisions tempers the "conservative activism" of this Supreme Court the next time it is called on to interpret civil rights legislation.

Here's a link about the vote: http://money.cnn.com/2009/01/09/news/economy/pay_equity/

Posted by Tiffanie Benfer at 05:53 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

Alexander McPherson is a professor of molecular biology and biochemistry at UC Irvine. He was a recently stripped of his responsibilities and placed on unpaid leave because, as he described in his column “The Sham of Sex Harassment Training” Los Angeles Times, (11/28/08) “I have consistently refused, on principle, to participate in the sexual harassment training that the state and [his] employers seem to think is so important.
See http://www.latimes.com/news/opinion/la-oe-mcpherson21-2008nov21,0,4090949.story

Well, McPherson’s employer is not the only employer to realize that sexual harassment training is important. In fact most public and private sector employers provide sexual harassment training.

Continue reading "Professor Placed on Unpaid Leave for Refusing to Take Part in Sexual Harassment Training " »

Posted by Tiffanie Benfer at 11:33 AM | Permalink | Comments (0) | TrackBacks (0)

The New York Times reports that 533,000 jobs were lost in November, the largest one-month decline since December 1974.

http://www.nytimes.com/2008/12/06/business/economy/06jobs.html?_r=1&adxnnl=1&adxnnlx=1228507331-YNAOQpjUJ8LVr45LIZgrIg

No doubt that this is a difficult time for both employers and employees. For employees facing layoffs, emotions are obviously running high. For employers, a reduction in force brings many possible pitfalls. An ounce of prevention in the form of careful planning and review of the decisions of managers may prevent many pounds of damage in the form of lawsuits and liability. Here are some suggestions for employers:

1. Take a careful look at the demographics of the people who will be laid off. Consider having someone independent of the managers who made the layoff decisions conduct this analysis. Make sure that employees in a protected class – older workers, women, or any particular racial group – are not being targeted disproportionately. Imagine that you will have to explain any disproportionate impact to a jury.

Continue reading "Layoffs: Top 10 Tips for Employers Who Would Rather Not Land in Court" »

Posted by Tiffanie Benfer at 04:45 PM | Permalink | Comments (0) | TrackBacks (0)

A western Pennsylvania jury yesterday awarded a verdict of 1.8 million dollars to a woman whose employer fired her three weeks into her six-week maternity leave. Carole Smith’s baby spent the first two weeks of his life in neonatal intensive care; the week after she brought him home, she was fired by her employer Normandy Properties LLC.

After only two and a half hours of deliberation, the jury awarded her $600,000 in compensatory damages and 1.2 million in punitive damages. Additional damages, such as backpay and attorneys fees, are not presented to a jury and may be awarded by the judge.

Although Congress has not specifically outlawed “caregiver discrimination,” the EEOC issued guidelines last year about the treatment of workers who have caregiving responsibilities. Here's the link:

http://www.eeoc.gov/policy/docs/caregiving.html

Continue reading "Oh baby . . . 1.8 Million Dollar Jury Verdict: Pregnancy and Caregiver Discrimination" »

Posted by Tiffanie Benfer at 01:15 PM | Permalink | Comments (0) | TrackBacks (0)

http://online.wsj.com/article/SB122486400199366913.html

Today’s Wall Street Journal reports that the International Monetary Fund’s governing board cleared its chief Dominique Strauss-Kahn of wrongdoing over an affair with a subordinate because the affair was consensual and he showed not favoritism or retribution toward her. Nevertheless, the WSJ reported that the board called the incident a “serious error in judgment.”

It is a not-surprising commentary on human nature that office romances are common, and that they are commonly perceived to be problematic.

Putting aside the question of whether an office affair is a benefit or a problem for productivity or morale, what are the consequences from an employment law point of view?

Continue reading "After the Affair" »

Posted by Tiffanie Benfer at 01:21 PM | Permalink | Comments (0) | TrackBacks (0)

At the last Presidential debate John McCain talked about Joe the Plumber and the media swooned. The anecdote was simple, easily understood, and appealing. So what if the real Joe isn't really a plumber? Never let the truth get in the way of a good story...

Barack Obama countered with the true story of Lilly Ledbetter, but nobody swooned. "Huh?" was the more common response. Ledbetter's story doesn’t fit nicely into a sound bite, and it's got all that darn complexity that comes with the truth, so why should we take the trouble to understand it?

It is worth knowing Lilly Ledbetter’s story because it says something important about employment law and something profound about the Supreme Court. Here’s the Ledbetter story, in a nutshell:

Continue reading "Joe the Plumber and Lilly ... who?" »

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)