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Supreme Court’s “Blind Spot” On Women’s Issues Disappearing?

Jon Allison

Last week the Supreme Court in a 6-3 decision ruled in favor of former UPS driver Peggy Young and remanded her case to the lower court allowing her to proceed with her pregnancy discrimination claim.  Young became pregnant in 2006 and was advised by her doctors to request light duty work involving not lifting more than 20 pounds.  UPS routinely offered light duty work to employees who were injured on the job as well as employees who had physical limitations related to a disability.  UPS, however, refused Young’s request for light duty work.  Instead, UPS told her its policy was to treat pregnant women like employees who were injured outside of the workplace and not provide light duty work.  Young was forced to take unpaid leave and ultimately lost her health insurance before giving birth.
Justice Breyer wrote the majority opinion and was joined by Justices Ginsburg, Kagan, Sotomayor and Chief Justice Roberts.  In deciding to allow Young to pursue her case, Justice Breyer wrote “[w]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?”  Justice Alito wrote his own concurring opinion, questioning the rationale for “treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing.”
This decision is important because it will likely prompt employers to accommodate pregnant employees more readily than in the past.  Employers will now have to grant pregnant employees accommodations if they have previously granted the same accommodations to groups of other employees with similar physical limitations.
While Young had a lot of support, many worried about what Justice Ginsburg has called the Court’s “blind spot” on women’s issues following a number of recent decisions, including rejecting an equal pay lawsuit and holding that corporations could decide when female employees should have access to contraception.
Justices Scalia, Thomas and Kennedy dissented from the majority opinion.
This case has received a lot of coverage.  For more, read articles in Reuters, Time, Politico, and Forbes.

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Let’s Just Call It A RIF

Jon Allison

Monday Blog

Doug Johnson worked for Paloma Blanca Health Care Associates, a health and rehabilitation center in Albuquerque, New Mexico, driving a van and transporting nursing home patients to medical appointments.  After approximately 3 years of employment, he suffered a heart attack and was diagnosed with a number of cardiovascular conditions.  He requested and was granted leave under the Family and Medical Leave Act (“FMLA”).  However, after 5 weeks on leave he was terminated.  He was told that the termination was part of a reduction-in-force (“RIF”).  Persons on medical leave don’t have any special protection from being included in a legitimate reduction-in-force.  If, for example, a company lays off 10% of its workforce and the selection criteria for each job category is seniority, it would be legal to terminate the least senior van driver whether or not he was on FMLA leave.  What is problematic is when employers terminate employees for discriminatory reasons and then claim there was a reduction-in-force when there really wasn’t to cover up the illegal termination.  In this case the employer got caught and settled.  As it turns out, there was no evidence to support any RIF.  Johnson was the only employee terminated at the time of the alleged RIF.  For more, read . . .

Reasonable Beliefs And Direct Threats
Last week the Court of Appeals for the Tenth Circuit reversed a jury’s verdict in favor of a disabled employee finding that the Colorado District Court Judge incorrectly instructed the jury that the employer had to prove a threat of harm actually existed rather than that the employer reasonably believed so.  The case involved a warehouse employee with impaired vision who was seeking a promotion, but required an accommodation.  The employer refused the accommodation and promotion and asserted what is known as a “direct threat” defense, arguing that the employee’s impaired vision would create significant risk of harm to the employee and his coworkers and could not be reasonably accommodated.  The District Court Judge instructed the jury that, to establish the direct threat defense, the employer had to prove that the employee’s “employment in a night warehouse position posed a significant risk of substantial harm to the health or safety of [the employee] and/or other employees” and that “[s]uch a risk could not have been eliminated or reduced by reasonable accommodation.”  The Tenth Circuit reversed and held that the employer should not be liable if it “reasonably believed the job would entail a direct threat.”  The case has been remanded for a new trial where the focus of the defense will surely be its belief in the risk while the employee will focus on the reasonableness of that belief.  For more, read this article. . .

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Jon Allison’s Monday Blog

Jon Allison

First Of Its Kind Maternity Leave Policy
Earlier this month Vodafone Group, a global telecommunications company, announced that, by the end of 2015, all of its 30 operating companies around the globe will be offering a minimum of 16 weeks of paid maternity leave.  Additionally, for the first six months after returning from leave, new mothers will be required to work just 30 hours per week while earning their full salaries.  The policy may be the first of its kind.  The rationale is assisting women in transitioning back to work after maternity leave will improve recruitment and retention of talented female employees.  Vodafone found that 65 percent of women who left the company after a maternity leave did so in the first year.  It also found that in countries where mandates were in place for companies to help women transition back to work after a maternity leave retention rates were higher.  Vodafone’s 16 weeks of paid leave puts it at the high end of what companies offer in the U.S.  Compared to other countries, however, the U.S. lags behind.  For more read this article.

Medical Inquiries Must Be Job-Related And Consistent With Business Necessity
The trucking company PAM Transport Inc. was ordered last month to pay approximately half a million dollars to 12 former truck drivers in a disability discrimination lawsuit.  PAM was utilizing a medical clearance policy requiring all drivers to notify it of any contact with medical professionals.  Under federal disability law, employers are not permitted to make medical inquiries of employees unless they are job-related and consistent with business necessity.  PAM was also ordered to change its medical clearance policy.   Read more here . . .

Wisconsin The 25th Right-to-Work State
Last week Wisconsin became the 25th right-to-work state.  Right-to-work laws allow workers to opt out of paying union fees even if their workplace is represented by a union.  Workers who opt out would still benefit from bargaining the union does with the company to increase wages and benefits even without giving money to the union to support those efforts.  Less money means less resources for the union and reduced union power.  Studies have found that right-to-work laws result in reduced wages and benefits.  Right-to-work laws until recently were hard to pass outside the South and Mountain West.  That has changed with numerous Republican victories in statehouses across the country.  Michigan, Indiana and Wisconsin are now all right-to-work states.  This article goes in to greater detail.

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Where you live makes a difference.

Katherine Neff

Each state has its own laws impacting workers’ rights.  In the Tri-state, Ohio and Kentucky allow employees to pursue state law discrimination claims in court in front of a jury, while Indiana employees must pursue their state law discrimination claims through the civil and human rights commissions created by statute and are not afforded a jury trial.  However, most employees may still pursue discrimination claims in federal court under the federal anti-discrimination statutes.  Because federal laws do not exist to protect workers who suffer workplace injuries, these workers’ rights will vary based on where they live.

Employees who suffer workplace injuries cannot pursue claims against their employers outside of workers’ compensation benefit programs.  Because Congress permits each state to determine its own workers’ compensation benefits, with no federal minimums, workers who live across state lines can experience vastly different outcomes for the same injury.  For example, in the Tri-state, a worker who loses an arm in Kentucky may recover $402,277 in benefits, but workers in Indiana and Ohio can recover only $202,050 and $193,950 respectively.  Although these states are above the national average, many states are outrageously low.  Benefits in Alabama, for example, max out at just $48,840.

States use a “schedule of benefits,” to determine how much a worker can recover following a work-place injury.  More often than not, these “schedules” are based on political bargains struck decades ago, instead of on medical wisdom and economic analysis.

ProPublica and NPR found that employers are paying the lowest rates for workers’ compensation benefits than at any time since the 1970s, yet, states continue to reduce benefits, often citing the need to compete with neighboring states and be more attractive to business.  As a result, taxpayers (through programs like Social Security and Medicaid) and the injured workers are forced to subsidize the lost income and medical costs.

Read more in this article.

 

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Jon Allison’s Monday Blog

Jon Allison

A Second Chance
Last week “The New Jersey Opportunity to Compete Act” took effect.  It forbids employers with 15 or more employees from asking job applicants about criminal histories on job applications and during initial interviews.  The rationale is that employers ought to be objectively evaluating candidates before potentially being swayed by any criminal history.
According to a recent New York Times/CBS News/Kaiser Family Foundation poll, men with criminal records account for about 34 percent of all nonworking men ages 25 to 54.  70 million Americans have arrests or criminal convictions.  Employers have easier access to criminal records than ever before afforded by modern technology and many use the available information to screen out applicants on that basis alone.  Even individuals with arrests or minor convictions that occurred in the distant past have trouble finding work.  Unemployment rates for persons with criminal records has become a problem not just for those persons, but for the labor market as a whole.
Hawaii was the first state to pass legislation to address this issue back in 1998.  Recently, the “ban the box” movement has gained momentum.  14 states and nearly 100 cities have adopted the policy.  Big companies like Walmart and Target have removed the conviction question from their initial job applications.
New Jersey Governor Chris Christie when signing “The New Jersey Opportunity to Complete Act” said “everyone deserves a second chance.”
For more on the “ban the box” movement see the articles below . . .
New York Times, On Point, New York Times.

 

Retaliation Claims Still The Most Common
Retaliation is still the claim most often made in charges filed with the Equal Employment Opportunity Commission.  42.8 % of the charges filed in 2014 contained a charge of retaliation.  Retaliation occurs when an employee engages in protected activity (for example making a sexual harassment complaint), the employer takes some adverse job action against the complaining employee, and there is a causal connection between the protected activity and the adverse job action.  It is generally easier for an employee to recognize retaliation versus discrimination when it occurs.  Retaliation claims are typically easier to prove as well.  This article goes into greater detail on retaliation.

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