Archive for March, 2015

Obama Vetoes Congressional Resolution to Block NLRB Rule Speeding Up Union Elections

The National Labor Relations Board can go ahead with its rule shortening the time between union recognition petitions and elections, following today’s veto by President Obama of a congressional resolution to block the rule.

The rule, which opponents dub the “ambush rule,” would shorten the time in which a union certification election is held from the current median of 38 days to as little as 11.

Congressional Republicans were having nothing of that, charging that this would too little time to mount campaigns to convince employees not to unionize.

“Workers deserve a level playing field that lets them freely choose to make their voices heard, and this requires fair and streamlined procedures for determining whether to have unions as their bargaining representative.” Obama said in his veto message. “Because this resolution seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard, I cannot support it.”

The Senate voted down the rule earlier this month.

DOJ: University Denied Professor Tenured Position Because She Is Transgender Woman

The U.S. Department of Justice is coming to aid of a university professor who it claims was denied promotion to a tenured position because she is a transgender woman. DOJ announced today that it is suing Southeastern Oklahoma State University on behalf of Rachel Tudor, who originally presented as a man, but three years into her job as an assistant professor, presented as a woman.

According to the lawsuit, Tudor performed her job well, and in 2009, she applied for a promotion to the tenured position of Associate Professor. Southeastern’s administration denied her application, overruling the recommendations of her department chair and other tenured faculty from her department. The lawsuit alleges that Southeastern discriminated against Tudor when it denied her application because of her gender identity, gender transition and non-conformance with gender stereotypes.

The action is another reminder that the DOJ considers sex discrimination under Title VII of the 1964 Civil Rights Act to include discrimination against an individual because of his or her transgender status and refusing to confirm to stereotypes about how men and women should appear and act.

And lest we forget, the Equal Employment Opportunity Commission shares in that interpretation of Title VII’s ban on sex discrimination. So this lawsuit should also be a wake-up call for private sector employers that the EEOC will come after them for the same alleged violations of Title VII as this university stands accused.

Read more about the lawsuit.

Despite Verdict, Hi Tech Industry Has Ways to Go to Give Women Equal Opportunity to Advance

The news that a jury found a Silicon Valley company not liable in a sex discrimination case brought by a former partner shouldn’t lull the high tech industry into complacency.

The case of Ellen Pao v. Kleiner Perkins Caufield  & Byers send shockwaves through the industry, amid accusations that the firm fostered a “boys club” atmosphere in which women such as her were denied employment opportunities because of their gender.

The gender disparity in the tech industry is not a figment of someone’s imagination. Women held just 15 percent to 20 percent of the jobs at Google, Apple, Facebook and Yahoo.

Whether that’s the product of intentional discrimination–or just a male-dominated culture that puts women at a disadvantage and saves all the best positions for men–the hi tech industry needs to become more welcoming toward women.

And the glass ceiling may be starting to break apart. A diversity consultant in the San Francisco area reports that she has been contacted by more than a dozen companies in recent weeks as the Pao trial unfolded.


DOL Extends Sex Bias Rule Comment Period

The public will have until April 14 to comment on the Labor Department’s proposed rule on the obligation of federal contractors and subcontractors not to discriminate on the basis of sex in their employment practices, DOL announced today.

The original deadline for comments was March 31–next Tuesday–but that date was set before the U.S. Supreme Court ruled a few days ago that a former UPS employee could pursue a pregnancy bias claim against the company for denying her a light-duty job during her pregnancy.

In response to that ruling, DOL’s Office of Federal Contract Compliance Programs, which enforces those contractor obligations, decided another two weeks was necessary  to take into account the high court’s decision.

The DOL noted that the ruling in Young v. UPS involved Title VII’s application to sex discrimination in the workplace, and that DOL follows Title VII principles when enforcing the law against employment discrimination by contractors and subcontractors.

Here’s the announcement.

EEOC Sues on Behalf of Female Job Applicant Allegedly Fired For Deceipt Over Her Pregnancy

Is it a legitimate defense to a claim of pregnancy discrimination that the alleged victim lied about her pregnancy when applying for the job? That could be a point of contention in a Title VII lawsuit that the EEOC filed today against CFS Health Management Inc., d/b/a Shefa Wellness Center, a Canton, Ga., medical practice specializing in cosmetic skin care treatments.

According to the EEOC’s suit, the company fired April Raines, a newly-hired  licensed skin care therapist just two days after she told the owner about her pregnancy. At the time, Raines had only worked for the company for approximately two weeks. The agency alleges that when Raines questioned why she was terminated, the employer told her that she had deceived the company by not disclosing her pregnancy during the interview.

Title VII doesn’t precisely prohibit pre-employment questions about pregnancy, but if you’re going to ask a woman about whether she is pregnant or wants to become pregnant, you should be prepared to ask a man whether he is about to become a father or expects to be. So the best advice is don’t ask these questions of applicants of either gender.

Anyway, I suspect that the employer’s asserted defense in this case is a steep climb, because it shouldn’t have asked the question in the first place.

Here’s more on the lawsuit.

Supreme Court: Denying Accommodation to Pregnant Worker Could Be Title VII Violation

Employers that accommodate workers with temporary disabilities may also have to do so for pregnant employees or risk being found liable under Title VII of the 1964 Civil Rights Act for not doing so, the U.S. Supreme Court ruled today.

The case in which the justices ruled was brought by Peggy Young, a former delivery driver for United Parcel Service. She alleged that by refusing her a light-duty accommodation during her pregnancy UPS was in effect giving her the choice of unpaid leave or losing her job during her pregnancy.

The company defended its actions arguing that its policy did not violate the federal Pregnancy Discrimination Act because it made accommodations and light-duty assignments available to employees injured on the job, while treating pregnant employees no worse than workers injured off the job who received no accommodations.

In today’s 6-3 ruling, the justices held that if a pregnant employee can show that the employer did not accommodate her but employer did accommodate others “similar in their ability or inability to work,” the burden will shift to the employer to  show it had  “legitimate, nondiscriminatory” reasons for denying her accommodation.  But that reason can’t simply be that it would have been costly or inconvenient to accommodate the woman.

If the woman can then show that the employer’s policy places a “significant burden” on pregnant employees–for example, it accommodate large percentage of nonpregnant employees but only a small percentage of pregnant employees, that could toss the question back to the jury to decide whether the employer’s conduct was discriminatory.

The court’s ruling in Young v. UPS is available here.

Utah Passes Breastfeeding Protection Law

It’s now illegal under Utah’s antidiscrimination law to discriminate against a female employee because she breastfeeds or has a medical condition related to breastfeeding.  The amendment to the law modifies the definition of pregnancy, childbirth, or pregnancy-related conditions to include breastfeeding and related medical conditions.

Governor Gary R. Herbert signed the law last Friday, March 20. This followed by just a few weeks his signing of legislation protecting gays and lesbians from workplace discrimination.

This makes Utah the 26th state in the country to pass a law protecting breastfeeding at work. The National Conference of State Legislatures keeps track of these laws.

For the text of the law, H.B. 105, click here.