A recent court ruling highlights the danger of employers claiming an employee was “laid off” when, in fact, the employee was terminated for another reason.
Historically, many employers have made the mistake of claiming that they were merely “laying off” a troublesome employee. However, with today’s prevalence of lawsuits for wrongful termination, that tactic can backfire.
In a recent case before the 8th Circuit Court of Appeals, a rental car company branch manager, Terri Wallace, was laid off 15 days after she complained that her supervisor was sexually harassing her.
Wallace dropped the sexual harassment suit before it reached the jury.
However, under Title VII of the Civil Rights Act of 1964, it is illegal to retaliate against an employee who files a sexual harassment complaint in good faith. In this case, “good faith” means without the intention of fraud.
The BNSF Railway recently paid $800,000 to settle an age discrimination lawsuit brought by the EEOC. The EEOC alleged that BNSF denied older employees certain benefits brought under an exit incentive plan.
According to the EEOC, 137 current and former employees were denied benefits under an exit incentive program, because they were already eligible to retire. The Burlington, Northern and Santa Fe Railroad, or BNSF, offered exit incentives to clerical employees in an effort to reduce staff. However, it illegally failed to offer those same incentives to older employees who became eligible to retire at age 60.
BNSF Railway Company operates one of the largest North American rail networks, with about 32,000 route miles in 28 states and two Canadian provinces.
The exit offer included employees in Kansas City, Fort Worth, and Alliance, Nebraska. However, it excluded any employee old enough to qualify for retirement. Employees may retire from GNSF when they reach the age of 60 with 30 years of service with the company. The employees were eligible for a pension from the federal Railroad Retirement plan.
Under the exit incentive plan, employees who stopped work early received $2,500 per month for three years, or a lump sum of $90,000. However, no employee over the age of 60 was offered the exit incentive.
When the clerical jobs were abolished, many of the workers were “bumped” into lower-paying jobs and retired as a result. The EEOC identified several of the 102 employees who were involved.
Erma Gossage was 63 when she was denied the opportunity to participate in the exit incentive plan offered to younger workers. Because the three years of exit incentive pay qualified as employment, Gossage would have qualified for a higher pension with the plan.
Ellen Foste was a 72-year-old clerical employee who was offered a choice. She could retire, or take a job driving a van at night. Foste had 27 years of employment with the BNSF. If she had been offered the exit incentive, she would have qualified for a full pension under the federal Railroad Retirement plan.
The railroad argued that the exit incentives were designed to motivate employees who were not eligible for a federal Railroad Retirement plan pension to retire early. The amount offered by the company was equivalent to the payments under the Railroad Retirement plan. BNSF also argued that more than 100 people over 60 who were not eligible for retirement were offered exit incentives.
Barbara Seely, Attorney in the St. Louis EEOC District Office, and lead counsel on the case, said, “Under Railroad Retirement Board rules, retirement eligibility is directly tied to age. Denying employees benefits because they are eligible to retire is age discrimination. Employees who are old enough to retire don’t necessarily want to stop working; they are entitled to receive the same benefits as younger workers.”
Donald Munro, lead counsel for BNSF, responded by stating, “BNSF is committed to a discrimination-free workplace and has always maintained that its voluntary early retirement programs do not discriminate in any way on the basis of age. The railroad decided to settle to avoid the substantial cost of further litigation, but in doing so insisted on an express statement that there is no admission of liability.”
BNSF denies any wrongdoing in the matter, and insists that it is simply settling the claim in an effort to avoid a lengthy, expensive lawsuit with the EEOC – the U.S. Equal Employment Opportunity Commission.
This finding underscores the fact that early retirement or exit incentives must be uniformly offered to all employees, regardless of age. Since only older employees are qualified for retirement, by definition, any policy that excludes those qualified for retirement is discrimination under the law.
As a citizen you are afforded basic rights and liberties and these rights should be enforced in the workplace as well. You should be free to seek employment or to work in an environment absent of harassment or discrimination based on certain characteristics. There are federal laws in place which protect such rights and many states have their own laws as well. Many states establish an agency or department specifically to deal with harassment and discrimination. Missouri is one of these states. The Missouri Commission on Human Rights (MCHR) is the state agency charged with enforcing the Missouri Human Rights Act. The basic powers and duties of the MCHR are to educate and try to prevent and through enforcement, eliminate discrimination. The MCHR is only authorized to investigate complaints in employment, public accommodations and housing.
According to Missouri (MO) job discrimination law in the workplace, under the Missouri Human Rights Act, it shall be unlawful for an employer, employment agency or labor organization to discriminate against an individual based on their race, color, religion, national origin, sex, ancestry, age (40 to 69) or disability. Practices covered under these laws include failing or refusing to hire or discharging an individual, limiting opportunities or giving unequal compensation, on any of these basis is a violation. If you feel that you have been unlawfully discriminated against you have 180 days to file a complaint with the Missouri Commission on Human Rights.
Sometimes, though they may seem unfair, certain practices or actions taken by employers are not considered unlawful or punishable under Missouri (MO) job discrimination law in the workplace. Different standards of compensation, or different terms, conditions or privileges of employment based on a merit system or on a measure of quantity or quality of work are acceptable. It is also alright to test individuals on ability and take action based on the results as long as the test itself is not biased toward or against a particular group.
The Missouri Human Rights Act (MHRA) dictates the Missouri sexual discrimination law in the workplace. The MHRA applies to all employers who have six or more employees, so it differs from federal law which only applies to employers who have fifteen or more employees. Additionally, the MHRA applies to those acting in the interest of the employer as well as labor organizations. Employees are anyone who works for the employers as defined in the MHRA except for independent contractors.
Under the MHRA, employers cannot make certain types of decisions based on sex. This includes hiring, firing, classifying or training. All job conditions, terms and compensation must be determined by factors other than the employee’s sex. It’s also important to note that sexual discrimination can be overt or can simply be differential treatment.
Of course, there are occasions when employers can treat men and women differently. One of these occasions is when the employee’s sex is substantially job-related and necessary for normal business operation.
Anyone who wants to file a claim must do so with the Missouri Human Rights Commission (MHRC) within 180 days of the incident. You can call, email or send a letter to the MHRC.
The MHRC will then investigate your claims. Before they do so, you’ll have to provide them information about the people involved in the incident and a description of what happened as well as any supporting documentation that can help (emails, phone conversations, records, etc). If the Commission determines that there is reasonable cause to believe that your rights have been violated, the Commission will try to resolve the conflict. If that is unsuccessful your case may go to a hearing. You can also request a Right to Sue letter at this point to take your case to the state court system.
Make note that in Missouri, you cannot sue your employer without first going through the MHRA investigation process.
To help prevent problems, employers and employees need to be aware of their rights and responsibilities. Employers also should always have an up-to-date Missouri Labor Law Poster available.
I’m sure that everyone has heard of the Americans with Disabilities Act of 1990. Often referred to as the ADA, one section of this law states that people can’t be discriminated against in public places because of their disabilities. Missouri most recently addressed this discrimination in senate bill 323, which was first read to the assembly in January 2003. I’m glad to say that at that time the wording was adjusted to make the rules more clear for everyone involved. Basically, Missouri law states that businesses must make accommodations so that everyone is easily able to access their services. Private clubs and religious organizations are exempt from that provision.
In Missouri, OSHA requires that businesses place posters within sight of their customers stating the anti-discrimination notice in “places of public accommodation.” That is defined as all places or businesses offering the general public goods, services, privileges, facilities, advantages or accommodations. Some examples of those are hotels, restaurants, gas stations, theaters, stadiums, and all state-owned agencies. It also includes doctors’ offices, stores, museums, parks libraries, and health clubs.
|Government offices, businesses and public facilities like those mentioned above must make reasonable changes to avoid discrimination and provide full and equal access to disabled persons. It is my understanding that this means they must either remove physical barriers or make changes like redesigning seating and parking spaces, building special ramps or bus lifts, enlarging doors and hallways for wheelchair use, enlarging bathroom stalls, and placing grab bars within easy reach.
The Missouri Commission on Human Rights (MCHR) is the state agency charged with enforcing the Missouri Human Rights Act. The duty of the MCHR is to prevent and eliminate discrimination. So if you believe that you have been discriminated against, you can file a complaint with the Commission within 180 days of the latest date of discrimination.