Pregnancy Bias Is Form of Sex Discrimination Under State Law, Florida Supreme Court Holds

Finally there’s some good news about pregnancy discrimination in employment: The Florida Supreme Court just declared it to be an illegal practice in that state. Sometimes it takes judges to fill in an omission in the law that the legislature may or may have not left there intentionally.

According to the state’s highest court, the Florida Civil Rights Act, which makes it an unlawful employment practice for an employer to discriminate based on an individual’s sex, includes discrimination based on pregnancy, which is “a natural condition and primary characteristic unique to the female sex.”

So the former employee in this case, who worked for a company called Continental Group Inc. gets a renewed chance to press her claim of pregnancy discrimination.

If you are an employer in Florida, you’re now on notice that you can’t discriminate on the basis of pregnancy either under the state civil rights act or Title VII of the 1964 Civil Rights Act.

Regular Telecommute Might Be Reasonable Accommodation, U.S. Sixth Circuit Holds

The requirement of regular attendance at the workplace may go down the toilet–so to speak–as a result of a federal appeals court ruling today in the case of a Ford Motor Company employee who suffers from irritable bowel syndrome.

Positions that require a great deal work of teamwork are not inherently unsuitable to telecommuting arrangements, the Sixth Circuit said, reinstating the EEOC’s ADA lawsuit against the car company brought on the employee’s behalf.

Ford fired the employee from her job as a resale steel buyer after denying her request to be allowed to work from home four days a week as an accommodation for her IBS. The company argued that it was justified in firing her because she couldn’t satisfy the job’s attendance requirements.

What’s interesting about the case is that the Sixth Circuit had previously ruled, as have most U.S. appeals courts, that regular attendance generally is an essential job function.

But in a 2-1 ruling, the court’s majority said that the world has changed since those earlier opinions, and teleconferencing technologies unconceived of two decades are now commonplace. All the ruling means for now is that the EEOC gets to go to trial in the case.

But if the EEOC prevails on the merits, it could have ripple effects on telecommuting policies generally, causing employers to rein in them in so that employees don’t think they have a “blank check” to request work from home regardless of their jobs.

The case is EEOC v. Ford Motor Co., No. 12-2484.

New Fitness-for-Duty Exam Consistent With Returning Employee’s FMLA Rights, Court Says

There’s no interference with FMLA rights when an employee returning from FMLA leave is required to submit to a fitness-for-duty examination, as long as the requirements for such an examination under the Americans With Disabilities Act are met, according to an appeals court in California.

In this case a senior district attorney investigator returned to her job with the County of Los Angeles following FMLA leave for treatment of depression. Four months after her return, the county’s district attorney’s office ordered her to undergo a second fitness-for-duty examination.

The investigator sought an injunction from the court barring the county attorney from requiring her to undergo the re-exam or face discipline, arguing that the order violated her rights under the FMLA to be restored to her job.

But the appeals court wasn’t buying that argument. Because the investigator carries a weapon, the county can force her to submit to a re-exam to evaluate her mental health without showing that her job performance suffered,  it said.

Consistent with the ADA, the county has to pay for the re-examination and it must be job related and consistent with business necessity, the court held.

The case is White v. County of Los Angeles. Information on the case and link to the opinion is here.


Office Supply Co. Settles Pregnancy Bias Case

If I never have to write about another case of pregnancy discrimination…then my blog will be a lot shorter.  Like a late night comic who’s always finding new material in the day’s events, cases of pregnancy discrimination keep a steady flow of blog material for me. It’s my duty to warn employers and HR staff of the dangers that lurk in this arena of the law.

Repeat after me: Title VII forbids denying a woman a job because she is pregnant! You must judge her qualifications as you would anyone else’s. If she is qualified for the job, you can only not hire her if someone else is more qualified. Otherwise, you’re likely to face a lawsuit.

Latest case in point: In January, the Equal Employment Opportunity Commission sued Benhar Office Interiors LLC, a New York-based office furnishing and architectural store in Manhattan, after learning that it had rejected a qualified applicant for a controller position shortly after finding out she was pregnant. “Benhar had interviewed the applicant multiple times, gave her positive feedback and extended a job offer through a staffing company. Soon after the staffing company informed Benhar’s president of the applicant’s pregnancy, however, Benhar refused to hire the applicant and later hired a non-pregnant applicant instead.”

Wrap it up and tie it all in a neat bow and you have a rather blatant instance of pregnancy discrimination, which the company to its credit settled for $90,000.

But it shouldn’t have gotten even that far, because as every employer should know, Title VII requires that pregnant applicants be given equal consideration to all other applicants, and that pregnancy must not factor into the employment decision.

If you need a refresher on pregnancy discrimination, the EEOC is happy to provide it for you, at this web address.

Read more about the case here.

Unpaid Interns Get Protection Under NYC Law

Each year thousands of impressionable young people flock to major cities across the U.S. in search of that internship that they hope will open career doors for them. But, as free labor, many are outside the protections of employment discrimination laws.

That’s about to change in New York City. Mayor Bill de Blasio this week signed a law expanding the protections of the city’s human rights law to give unpaid interns the right to sue their employers for sexual harassment and other discriminatory treatment.

The push for expanding the law was prompted in part by a federal district court’s ruling last year barring an unpaid intern from suing the TV station where she worked.

I wrote about the case last October.

So this new law brings unpaid interns some parity under the law with traditional, paid employees.

Maybe other cities will emulate New York City so that these young people who provide valuable services to a company are treated with respect in return.

EEOC Says School District’s Early Incentive Plan Violated ADEA By Disadvantaging Older Retirees

Early retirement incentives are allowed under the Age Discrimination in Employment Act, but as with any other policy affecting employment they have to be age-neutral. You cannot use these incentives to deny employees benefits because of their age.

According to the EEOC, that’s what a school district in Phoenix was guilty of. The commission said it recently filed suit against Murphy School District No. 21, which it said had “unlawfully used an early retirement incentive plan which grants greater economic benefits to younger retirees based upon their age.”

The lawsuit charges that the early retirement incentive plan–which the school district adopted in the 1980s–is discriminatory on its face because it grants more favorable benefits to younger early retirees based on their age.

Facial discrimination means you can see it visibly–the violation is obvious.

Early retirement incentive plans like this which are facially age-discriminatory need to be changed,” said EEOC Regional Attorney Mary Jo O’Neill.   “People in their 60s should not be penalized merely because they want to continue working.”

Read more about the case.

Down on the Farm: DOL Recovers $428K Against Hawaiian Grower for Wage Hour, OT Violations

Without farm hands to plow the field and pick the crops, often under the hot sun, our tables wouldn’t be as plentiful. So as a nation we’ve rightly insisted that the companies that hire these workers comply with all applicable laws on fair treatment and wages.

When companies don’t respect those rights, they must be brought to account.

That’s what the U.S. Department of Labor did this week in announcing it had settled a wage and hour lawsuit against Fat Law Farm’s Inc., a grower in Hawaii. According to DOL, the farm violated the Fair Labor Standards Act’s minimum wage, overtime and recordkeeping provisions. Specifically, the DOL said that the Oahu-based company and its owners, members of the Law family,  did not pay employees overtime at time and one-half their regular rates of pay for all hours beyond 40 in a workweek, as required by the FLSA.

The DOL said that a federal district court in Hawaii had ordered the company to pay $428,800 to the victims of these violations.

The company employed two primary groups of workers. Filipino workers were predominantly paid at $7.25 per hour, with overtime compensation. However, other workers, mainly from Laos, were paid $5 per hour in cash, without overtime, for 70 hours per week on average.

“The department made use of a search warrant to get an honest snapshot of the pay practices and working conditions established by the employer and the documented effort to hide evidence and witnesses from inspection,” said Juan Coria, acting regional administrator for the Wage and Hour Division in the Western Region. “With the warrant, we obtained unhindered access to employee and payroll documents reflecting names and payment disbursements to workers employed at the farm, including employees paid only in cash. We will continue to protect workers, prevent abuse and enforce labor laws, particularly where workers are vulnerable and violations are so egregious, as in this case.”

You can read more about the case and settlement here.


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