labor lawAdivision of labor law center

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

Caregiver responsibilities can include (more…)

Employers implementing layoffs and staff reductions need to be especially cautious that they do not commit age discrimination.

According to a recent report, state and federal age discrimination claims were up 29% in 2008. This is almost double the increase in overall discrimination complaints, up 15%. And that number is not just complaints filed by workers – it is actual lawsuits filed by the EEOC or state agencies.

The federal ADEA or Age Discrimination in Employment Act, prohibits employers from discriminating against workers between the ages of 40 and 70 in any employment decision, including hiring, firing, promotions, salary, benefits, training, etc.

According to the EEOC, age should not be a factor in determining which employees are laid off. It is fairly common for an employer to thin, “Joe is eligible for retirement in a few years anyway, we’ll lay him off.” However, it is illegal discrimination based on age. Some employers take such actions because they think older employees will be impacted less by a layoff. Others do it to save potential pension and medical expenses. Either way, it is illegal.

According to a recent article in the AARP magazine, age discrimination claims may be even higher this year than in 2008, due to the many layoffs.

The AARP, of course, is the international association of people over the age of 50.

 “The wave is still building,” says Gerald L. Maatman, Jr. of Seyfarth Shaw,  a Chicago law firm that analyzes both state and federal discrimination suits against employers. It is expected to peak in the 3^rd quarter of 2009.

Employers should always base decisions on which employees to lay off on objective criteria that do not include age. Acceptable criteria include job performance, seniority, diverse skills or a combination of those factors. Employers should justify that decision in writing, and keep careful written records of the basis for the decision.

It is also illegal for an employer to discriminate against one older worker in favor of another older worker. A recent trend has been for employers to lay off workers in their 50s, in favor of workers in their 40s, based partly on age. Although both workers are covered by the ADEA, this is still age discrimination.

Employees on light duty or with physical restrictions must be permitted to work overtime on the same basis as other employees. In a recent settlement between United Airlines and the EEOC, the agency questioned an employer limiting overtime for employees who are on medical restrictions or limited to light duty.

Many employers would think that when a worker is under physical limitations, or has a disability, it would be obvious that the employee should not work overtime. However, the EEOC disagrees.

Under the ADA, or Americans with Disabilities Act, employees on light duty are entitled to work overtime if they are physically able to do so, the EEOC ruled.

In the case against United Airlines, employees on light duty were not permitted to work overtime, even when there was plenty of overtime work and it was being offered to employees who were not on light duty. The court ruled that this was a form of discrimination based on the employee’s physical disability under ADA.

United Airlines, based in Chicago, is one of the largest U.S. air carriers with nearly 3,000 flights per day to more than 200 domestic and international destinations from hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.

The United Airlines case involved Samuel Chetcuti, a “storekeeper” working for the airline in San Francisco. The EEOC argued that the airline’s policy of not offering overtime to workers who were on light duty had a disparate effect on the income of disabled workers, because they were more likely to be on light duty.

For example, Chetcuti had epilepsy, which prevented him from operating heavy machinery and working at heights. However, it did not restrict the number of hours that he could work. But because Chetcuti was on light duty for his regular work schedule, he was barred from working lucrative overtime offered to others in the same job. The EEOC ruled that this was illegal employment discrimination based on disability.  

EEOC San Francisco Regional Attorney William R. Tamayo said, (more…)

Companies will have to add yet another step in their due diligence when buying or merging with a new company, because of the Ledbetter Fair Pay Act. That law permits employees to sue for wage discrimination, even many years after the fact.

Twenty years after going to work for Goodyear Tire and Rubber Company, a woman by the name of Lilly Ledbetter learned through an anonymous tipster that she was making less money for doing the same job as her male coworkers.

Lilly Ledbetter calculated that she had lost $200,000 in pay compared to the men, not to mention the lost Social Security benefits and pension funds. Ledbetter sued over the issue, but was blocked by rulings that she had not met the 180-day deadline for filing her petition. She took the matter to the Supreme Court, which upheld lower court rulings in a split decision.

Now, as a way of rectifying situations like hers, the U.S. Senate has passed, and President Obama  has signed into law, the Lilly Ledbetter Fair Pay Act of 2009. The new Act allows for discrimination suits beyond the old 180-day deadline. The Senate vote was 61 in favor and 36 against.

This means that employers must retain records on the basis of compensation decisions far longer, to defend against a possible lawsuit.

When a company is bought out by another, the new owners also purchase any liability for discrimination or other unfair labor practices. Prospective owners need to assess the risk of the company’s employee compensation packages and compensation system, before making a final purchase decision. 

The President, in signing it one week later, said Ledbetter had not planned to become a household name when she took on Goodyear. “She was just a good hard worker who did her job – and she did it well – for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work,” President Obama said.

He added that he intended (more…)

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The fact that this act was Obama’s first bill signed into law, may signal a busy year ahead for labor legislation.

In a statement before the signing, President Obama said, “Lilly Ledbetter did not set out to be a trailblazer or a household name. She was just a good hard worker who did her job — and she did it well — for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work. Over the course of her career, she lost more than $200,000 in salary, and even more in pension and Social Security benefits — losses that she still feels today.”

Lilly Ledbetter worked at Goodyear Tire and Rubber Company for two decades before learning that she had consistently been paid less than her male colleagues for the identical job. She filed suit (more…)