Cincinnati (513) 721-1975  
Dayton (937) 228-3731  
Denver (303) 357-2355  

Archives for June 2014


George Reul

The Equal Employment Opportunity Commission (“EEOC”) recently issued new and updated enforcement guidance on pregnancy discrimination for the first time since 1983.   Congress enacted the Pregnancy Discrimination Act (“PDA”) in 1978 as amendment to Title VII of the Civil Rights Act of 1964.  The PDA clarified that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.  According to the EEOC, there has been a substantial increase in charges alleging pregnancy discrimination since the PDA was enacted, disproportionate to the rate of women in the workplace.  The EEOC has included pregnancy discrimination as a national enforcement priority through 2016 and has filed more than 260 pregnancy discrimination cases between 2002 and 2012.
The new guidance was issued to update prior guidance in light of legal developments over the past 30 years.  A potentially significant development with application to the PDA, according to the EEOC guidance, are the 2008 amendments to the Americans with Disabilities Act.  The amendments made it much easier for employees to show that an impairment is a disability even for temporary conditions.  Pregnancy is not a disability, but pregnancy related conditions, such as gestational diabetes, may be covered disabilities, even if temporary according to the guidance.
Interestingly, just days before issuing the guidance, the United States Supreme Court declared it will review a pregnancy and disability case out of United States Court of Appeals for the Fourth Circuit. In Young v United Parcel Service, Inc., Young argued and the Fourth Circuit Court rejected that UPS’ enforcement of a policy of denying light duty to all employees except for those with an on-the-job injury or a disability under the ADA, violated the PDA.  This conclusion appears to be at odds with EEOC’s guidance which states an employer “may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries.”  Some observers even thought that the Supreme Court’s decision to review the Young case might cause the EEOC to delay issuing its guidance.



Randy Freking

Employees are increasingly being asked to sign agreements that prohibit them from working for a company’s rivals, according to a June 8, 2014 column in the New York Times.The particular situation highlighted in the article illustrates this problem.

Colette Buser is a 19 year old college student who worked as a counselor the three previous summers at a camp in Wellesley, Massachusetts. When she applied for another summer camp job this year, the summer camp withdrew an offer of employment to her because it feared that her previous summer camp would sue to enforce a noncompete clause tucked into Ms. Buser’s 2013 summer employment contract.

Noncompete clauses now appear in far more employment fields beyond the traditional worlds of technology, sales, and major corporations with tightly held secrets. The clauses appear to be extending to nearly every field of employment, from event planners to chefs to yoga instructors. Ironically, they are often required by employers who hail “competition” as a bedrock of our economic system of course, when it benefits them.

Prospective employees being asked to sign noncompete agreements should recognize that noncompete agreements are governed by state law. Courts in Ohio, Indiana, and Kentucky have differing rules regarding the enforcement of noncompete agreements and employees should understand those restrictions before signing noncompete agreements.

The good news is that some courts are becoming increasingly hostile to full enforcement
of noncompete agreements because employers often overreach by including unreasonable geographic and time limitations in the clauses. Any employee who has a noncompete agreement and wishes to seek other employment should fully understand their rights and the laws governing the noncompete agreements, depending upon the particular jurisdiction.