labor lawAdivision of labor law center

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 8^th 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 employer, DTG Operations, Inc., initially claimed that Wallace was part of a company-wide lay off due to economic reasons. (more…)

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.

Because so many states lean toward broadening the coverage of employment discrimination laws in the workplace, you tend to notice those that don’t really do much more than those of the federal government. Missouri is one of these states. The biggest broadening they have in coverage is that they cover small businesses (6 or more employees) as well as large ones. In Missouri, it is illegal to discriminate on the basis of age (40-70), ancestry, color, national origin, physical or mental disability, race, religion, or sex.

Claims in Missouri can be filed with one of two agencies: the state agency, the Missouri Commission on Human Rights (MCHR), or the federal agency, the Equal Employment Opportunity Commission (EEOC). These agencies will work together to resolve you claim as long as you file in one agency and request that your claim be cross-filed with the other. The MCHR can be contacted at Voice: (800) 735-2466 or TDD: (800) 735-2966 and the EEOC can be contacted at one of two offices: Kansas City, 913-551-5655 or TY: 913-551-5657 or St. Louis, 314-539-7800 or TTY: 314-539-7803.

Claims through the MCHR must be filed within 180 days of the date of the discriminatory act while you have 300 days of this act to file with the EEOC. Because of the difference in deadlines it is best to first file through the MCHR and then have them cross-file your claim with the EEOC. File early to avoid delays due to legalities in the filing process as these delays can push your past the deadline. Retaining an attorney is a big help, but is not required.

If your claim is not resolved by these agencies, you may need to pursue it in court. In both state and federal cases, you must first file with the appropriate agency and receive a release from that agency. The EEOC will release your claim by giving you one of two documents: “Dismissal and Notice of Rights,” or “Right to Sue.” A claim filed in federal court must be filed within 90 days of receiving either of the above documents. If the release document from the MCHR gives a ‘no cause’ finding, you will not be allowed to pursuer the case in court. Lawsuits filed in Missouri’s state court system have either a 90 day deadline from receipt of your claim release, or a 2 year time limit from the time the discriminatory act occurred.

Basically, employees in Missouri don’t have much more coverage according to the Missouri employment discrimination laws in the workplace. However, this is not unheard of. Missouri shares this practice with a few other states. I do wonder how long the laws in these states will remain unchanged as workers often see what is happening in other places and push to get the same protection.