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WVXU Cincinnati Commemorates 50th Anniversary of The Civil Rights Act

Carrie Barron

Freking & Betz attorneys Jon Allison and Carrie Atkins Barron will join Judge Nathaniel R. Jones, retired judge of the United States Court of Appeals for the Sixth Circuit and former General Counsel of the NAACP, for a panel discussion to commemorate the 50th anniversary of the Civil Rights Act of 1964 on WVXU’s Cincinnati Edition Wednesday, December 3, 2014 at 1:00 p.m.

Fifty years ago this past July, President Lyndon B. Johnson signed the Civil Rights Act of 1964 to outlaw discrimination on the basis of race, color, religion, sex or national origin. During the signing ceremony the president called it a way for America to honor its promise of liberty: “This Civil Rights Act is a challenge to all of us to go to work in our communities and our states, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.”

Tune into 91.7 WVXU at 1:00 p.m. on Wednesday, December 3rd to hear about the history of the Civil Rights Act, its road to passage, its impact on public accommodations, education, and employment, among other areas, as well as a discussion of where we are today in light of the Act. If you can’t tune in for the live conversation, go to WVXU’s home page at wvxu.org for a link to the podcast.

 

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Exxon Mobil Resists Protections for Employees Based on Sexual Orientation

Carrie Barron

In May, Freedom to Work filed a complaint with the Illinois Human Rights Commission alleging that Exxon Mobil violated the state’s law prohibiting discrimination against employees based upon their sexual orientation.  According to the complaint, Exxon Mobil was sent two resumes in response to a job posting in Illinois. One fictional applicant identified herself as gay, but had higher high school and college grades than the other. Exxon Mobil attempted to contact the less qualified job applicant several times,  but never contacted the gay candidate.  Freedom to Work, an organization committed to rights of gay, lesbian, bi-sexual, and trans-gendered people, teamed with a Washington, DC based law firm that works with many advocacy groups.

The filing of this complaint, perhaps not coincidentally, was two weeks prior to Exxon Mobil’s annual shareholder meeting where the issue of adding sexual orientation to the company’s official equal employment opportunity statement is on the agenda for the 14th consecutive year. The first time Exxon shareholders were asked to vote on this issue was in 1999 when the military instituted “Don’t Ask-Don’t Tell” policy and Matthew Shepard’s murderer was convicted.

Exxon Mobil takes a minority position amongst other Fortune 500 companies on the issue of protecting employees from discrimination on the basis of sexual orientation.  According to the Human Rights Campaign, 88% of Fortune 500 companies have adopted such policies.

Only 21 states, the District of Columbia, and 160 cities have laws prohibiting employment discrimination based on sexual orientation.  Neither Cincinnati nor Ohio has such laws.  No federal law offers that type of protection.

Trillium Asset Management, a company devoted to sustainable responsible investments, has submitted shareholder resolutions requesting that Exxon Mobil broaden its anti-discrimination policies to include sexual orientation and gender identity.

Prior to its acquisition by Exxon, Mobil Oil had policies protecting gay and lesbian employees from discrimination and extended benefits to same-sex couples.  Exxon rescinded those protections when it acquired Mobil in 1999.

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GINA Enforcement

Carrie Barron

The Equal Employment Opportunity Commission recently announced the filing of a class action lawsuit against The Founders Pavilion, Inc., a Corning, NY, nursing and rehabilitation center, for, violations of the Genetic Information Nondiscrimination Act (GINA), by asking for genetic information during the hiring process. This is the EEOC’s second such lawsuit ever.  The first, against Fabricut, Inc., in Tulsa, OK, was settled via consent decree earlier this month.

Title II of GINA, which is enforced by the EEOC, prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.  (Title I, which addresses the use of genetic information in health insurance, is regulated by the Departments of Labor and Health and Human Services, and the Treasury.) Genetic information includes information about an individual’s genetic tests and family medical history.  An employer may not use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work. It is also illegal to harass a person because of his or her genetic information or retaliate against a person for opposing discriminatory conduct.

In Founders Pavilion, the nursing home conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired.  As part of this exam, Founders requested family medical history. The EEOC also charged the nursing home with discriminating against women because they were pregnant or had perceived disabilities.

In Fabricut, the EEOC accused the company of using genetic information gathered post-offer, pre-employment in the hiring process.  The parties reached a consent decree soon after the suit was filed.  In a statement issued by Fabricut, the human resources denied that it engaged in any discriminatory conduct and asserted that the genetic information in question had been obtained by a third party. However, employers are prohibited from using genetic information in the employment process even it is gathered by a third party, even if the employer is not aware that information is being gathered since employers are responsible for hiring third parties who abide by the law.

Although GINA was signed into law by President George W. Bush in 2008, the EEOC’s Strategic Enforcement Plan for 2013-2016 recently identified six national priorities, which includes genetic discrimination.

 

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Breastfeeding or Working – A Mother Shouldn’t Have to Choose

Carrie Barron

In celebration of Mother’s Day 2013, 3rd Army headquarters, located at Shaw Air Force Base, S.C. announced that it was opening a lactation room for mothers who were breastfeeding babies.  The Dallas County District Attorney’s Office celebrated Mother’s Day 2013 similarly—by designating a room in the DA’s office for use by lactating mothers.   More than three years earlier, on March 23, 2010, President Obama signed into law the Patient Care and Affordable Care Act, known as the Affordable Care Act, or simply “ACA.”  One of the ACA’s lesser known provisions requires employers to provide break time for nursing mothers. Under this provision, employers must provide a reasonable amount of break time for nursing mothers to express milk as frequently as needed, for up to a year.  Employers must also provide a “place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

The break time for nursing mothers provision contained within ACA specifically amends Section 7 of the Fair Labor Standards Act (“FLSA”).   Its protections are therefore limited to those employees covered by the FLSA, primarily non-exempt employees.  Furthermore, employers with fewer than 50 employees may avoid compliance if it can demonstrate that providing the benefits would impose an undue hardship.  In addition, employers are not required to compensate employees who take breaks to express milk, unless employers already provide compensated breaks, in which case an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.   Although the FLSA does not require employers to allow employees to extend their workday (i.e., begin work earlier or end work later) to make up for unpaid break time used for expressing milk, the DOL encourages employers to provide flexible scheduling for those employees who choose to make up for any unpaid break time.

How can a nursing mother require her employer to comply with the law?   Nursing mothers can file a complaint with the Wage and Hour Division of the Department of Labor.  The DOL has assured the public that it will give priority to those claims since time is of the essence in maintaining a milk supply.   However, there are no monetary penalties built into the statute. And since employers are not required to compensate employees for break time spent expressing milk, DOL cannot seek reimbursement of back pay when an employee has been deprived of that right.   Its authority is limited to seeking injunctive relief in federal court.  There is not private right of action.

The ACA does not preempt state laws which may offer additional protections to nursing mothers.  But state laws vary dramatically in their treatment of breastfeeding women.   In Ohio, for example, nursing mothers are entitled to breastfeed their babies in any location where the mother is otherwise permitted and cannot be prosecuted for indecent exposure.  In New York,  employers are required to allow breastfeeding mothers reasonable, unpaid breaks for expressing milk, provide a private location for that to occur, and are prohibited from discriminating against breastfeeding women.

The American Academy of Pediatrics recommends that babies be breast fed exclusively for the first 6 months of life and in combination with other foods until at least 12 months of age.  Mothers should be able to choose both work and breastfeeding.

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Workplace Bully?

Carrie Barron

There is a lot of discussion in the media about workplace bullying–how to identify a bully; how to contend with his or her unpleasant behavior; when to contact a lawyer, etc.  As a consequence, potential clients contact our office nearly everyday who wish to take legal action against their employers to fix the unpleasant work environment caused by the difficult person, oftentimes their supervisor.  These potential clients complain that they are being belittled, criticized unfairly, and in general being treated poorly.  Even though they have complained to management about the person’s behavior, nothing has changed.  Being immersed in the unpleasantness all day every day causes stress, anxiety, depression, sleeplessness, etc. By the time they get to our office, many have already sought medical attention.

Generally speaking, treating co-workers or subordinates badly is not unlawful (unless, of course, that conduct is discriminatory on account of a protected characteristic.) The clients hoping that legal action will bring justice to the situation feel deflated and powerless upon learning this.  They want to know how can this type of behavior be allowed in the workplace? Why isn’t someone going to do something about it? What do I do now?

Here’s what you should do now.  Can you control the offending person’s behavior? Of course not. So, short of finding another job, what can you control about the situation? You can control how you respond to the behavior.

Don Miguel Ruiz, in his book entitled The Four Agreements teaches: “Don’t take anything personally. Nothing other people do is because of you. It is because of themselves. There is a huge amount of freedom that comes to you when you take nothing personally.” How to incorporate that at work?

As an example: your supervisor unfairly criticizes your work, scrutinizes your daily activity, belittles you in front of colleagues, and is generally unpleasant.  Why is he treating you like this? What did you do to deserve this type of treatment?  Objectively speaking, you aren’t giving him any reason to criticize you. You are doing your best work, completing tasks timely and efficiently, and maintaining good attendance.  But you sit at your desk in fear that he will come out of his office and start unfairly criticizing your most recent project. When you get home, you toss and turn all night trying to figure out why this is happening and how to stop it.  The daily stress, coupled with sleepless nights, is causing anxiety and depression, and the next thing you know, your doctor has prescribed anti-depressants and you’re on your way to meet with a lawyer to get advice on how to change the situation.

You wish you could adopt the existential philosophy of Johnny Paycheck, but you have bills to pay.  You cannot simply refuse your supervisor’s suggestions since working in a hierarchical organization requires following instructions from those above you.  Emotionally coping with this situation is going to require you to look inside yourself.  You are going to need to reprogram your emotional reaction to his behavior and don’t assume that his behavior has anything to do with you.  His own reality drives his behavior. He may be driven by his own fear or anxiety or low self-esteem. You cannot control his reality or his behavior.  If you take to heart his criticisms, then you are adopting his reality as yours–if he doesn’t think you’re doing a good job, you aren’t. If he treats you unpleasantly, you must have done something to deserve the unpleasant treatment.  Don’t drink his poison.

Reaffirm your reality. Your reality is that you are doing your best work. Stay strong in your belief in yourself.  Build a shield around your reality so it cannot be damaged by his.  Ruiz counsels, “When you are immune to the opinions and actions of others, you won’t be the victim of needless suffering.”  Take control of your emotional responses to your supervisor’s behavior.  So, instead of asking yourself what you can do differently to change your supervisor’s behavior, make peace with yourself that you can’t.  Make peace with your reality that you are doing your best work.  Go home feeling satisfied with your personal accomplishments rather than stressed by your supervisor’s conduct.  Having a strong emotional foundation is paramount to living a healthy life.

 

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