At Work: Solutions for Employers & Employees

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" »

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By Tiffanie Benfer

In 2007, the Equal Employment Opportunity Commission (“EEOC”) filed a record number of lawsuits over caregiver bias in the work place. See http://www.eeoc.gov/stats/pregnanc.html The EEOC also obtained 30 million dollars in monetary benefits, which is a significant increase from the prior year’s monetary recovery of 10.4 million dollars. (This monetary recovery also includes pregnancy discrimination claims.) (Note the 2008 EEOC statistics are not yet available.)

Caregiver discrimination claims have been successfully litigated in the recent years under the “sex-plus” theory. This theory prohibits employers from treating employees differently than other workers on the basis of their sex “plus” a facially neutral characteristic such as having young children.

One way employees have successfully challenged “sex-plus” discrimination is through the disparate impact theory. For example: A female asserted that her employer’s sick leave policy, which provided that sick leave could only be used when the employee was sick had a disparate impact on female employees because female employees were more likely to stay home with a sick child. Consequently, the policy forced women to resign more frequently than their male counterparts because of their caregiver role.

Continue reading "Navigating the Tricky Waters of Caregiver Discrimination" »

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Sometimes it can be penny wise and pound foolish to take action against an employee without a clear understanding of the law.

In Brown v. Nutrition Management Services Co., a decision of the Eastern District of Pennsylvania released on January 30, the court found that the company’s failure to have an attorney research the requirements of the Family and Medical Leave Act (“FMLA”) meant that the company had not acted in “good faith.” This finding cost Nutrition Management Services over $80,000 in additional liquidated damages.

Continue reading "Don’t Tell Me You Didn’t Check with a Lawyer!" »

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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?" »

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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" »

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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)

What does pregnancy do to your chances of success at work? If you are Amy Poehler, it seems not to hurt a bit. One week before giving birth she had us howling while she performed her Sarah Palin rap on Saturday Night Live. Check it out if you haven’t seen it yet.

http://www.nbc.com/Saturday_Night_Live/video/clips/update-palin-rap/773781/

OK, Amy Poehler is a super-talented, hilarious woman who apparently has an unending stock of energy. For the rest of us mere mortals, it doesn’t always go so smoothly. I’m not just talking about morning sickness and aching backs.

A study released last week indicates that discrimination against pregnant workers persists thirty years after the passage of the Pregnancy Discrimination Act. The PDA makes it unlawful to discriminate against an employee (or job applicant) on the basis of pregnancy. The law is clear, but putting it into practice has not gone so smoothly.

Continue reading "The Rap on Pregnancy Discrimination" »

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