Virginia Employment Law Blog
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file211246764163Lauren Greene, former New Media Director and later Communications Director for Blake Farenthold, a congressman from Texas and the owner of the domain name “www.blow-me.org” filed suit against her former boss in D.C. federal district court on Friday, December 12.

The complaint alleges that Congressman Farenthold created an “uncomfortable work environment,” according to the Washington Post, when he told another office worker that he had “sexual fantasies” and “wet dreams” about Ms. Greene. The complaint further alleges that the Congressman, on more than one occasion, made comments to Ms. Greene about her appearance and then said “he hoped his comment wouldn’t be taken for sexual harassment.” He told another office worker that Ms. Greene “could show her nipples whenever she wanted to” during a discussion of Ms. Greene’s attire.

The complaint goes on to allege that Acting Chief-of-Staff Bob Haueter treated Ms. Greene in a way that “was intended to, and did, belittle and humiliate Plaintiff” based on her gender. When Ms. Greene told Congressman Farenthold about her concerns, the Congressman said that Mr. Haueter “was known to be condescending toward women on the staff, then paid empty, lip service encouragement for [Ms. Greene] to stand up for herself.”

The situation that Ms. Greene describes in the allegations of her complaint may be reminiscent of something you’ve seen or experienced in your workplace. This seems like a good time to talk about hostile work environments, which we’ve covered in the past here. The first thing to keep in mind is that workplace bullying or harassment not based on protected class is, as a general matter, not illegal. The federally protected classes are race, gender, disability, national origin, age, genetic information, or religion.  Each state can expanded on those protected classes.  In Virginia, for example, marital status is also a protected class.  In some other states, although not in Virginia, sexual orientation is a protected class.

For lack of a better way to phrase it, your boss can be a terrible bully to you all he or she wants as long as the reason for their treatment isn’t your membership in a protected class.  The reasons can be as petty and trivial as them not liking the color of your shirt or just finding you personally annoying.

Beyond that, though, as we’ve said before, if you experience discriminatory treatment at work, you have rights, but not every case of racism or sexism will be seen as a violation of your civil rights under the law. How will you know if the conduct you experience was severe enough to give rise to a hostile work environment?

First, remember that your case is more likely to succeed if you have been subjected to multiple instances of discriminatory treatment. As the U.S. Equal Employment Opportunity Commission (“EEOC”) says, “harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” Furthermore, “[p]etty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.” Depending on the severity of the conduct, one incident or even incidents occurring over the course of two or three days might be enough to create a hostile work environment, but this is generally quite rare.  Broadly, though, this conduct has to be ongoing for long enough that your acceptance of such conduct is seen to be a term or condition of continued employment.

Second, as the EEOC says, offensive conduct may include, but is not limited to:

  • offensive jokes,
  • slurs,
  • epithets or name calling,
  • physical assaults or threats,
  • intimidation,
  • ridicule or mockery,
  • insults or put-downs,
  • offensive objects or pictures, and
  • interference with work performance.

Third, the harasser can include:

  • the victim’s supervisor,
  • a supervisor in another area,
  • an agent of the employer,
  • a co-worker,
  • or even a non-employee,

and the victim does not have to be the person harassed; the victim can be anyone affected by the offensive conduct.

Each situation requires individual analysis.  Contact us if you have been subject to discrimination or harassment based on race, gender, or other protected class status.

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The recent weeks have been busy ones in the world of employment law. In this post, we highlight some of the most interesting cases that have surfaced over the past weeks. We check in on how the Affordable Care Act has impacted small business and firms as well as a case being brought against Jimmy John’s (yes, the sandwich company) for attempting to bind it’s low-wage workers to a non-compete contract.

 

Small Firms Start to Drop Health Plans: Many View the Health Law’s Marketplace as Inviting and Affordable

Small companies are starting to turn away from offering health plans as they seek to reduce costs and increasingly view the health law’s marketplaces as an inviting and affordable option for workers.

In the latest sign of a possible shift, WellPoint Inc. said recently its small-business-plan membership is shrinking faster than expected and it has lost about 300,000 people since the start of the year, leaving a total of 1.56 million in small-group coverage.

 

Jimmy John’s under fire for worker contracts

It’s one thing for a high paid exec to be prohibited from working at a competitor. But Jimmy Johns actually imposes non compete clauses on its low-wage workers.

Now, lawmakers are calling for an investigation into the sandwich chain’s policy of making workers sign contracts that bar them from working for its competition.

Calling the practice a form of intimidation, House members Rep. Joseph Crowley and Rep. Linda Sánchez have drafted a letter calling on the Labor Department and the Federal Trade Commission to investigate “disturbing reports” of the chain’s contracts which are “inconsistent with trade and labor laws.”

 

Wal-Mart Stores East Will Pay $72,500 to Settle EEOC Disability Discrimination Lawsuit

Wal-Mart Stores East, L.P., will pay $72,500 and provide significant equitable relief to settle a federal disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced recently.

According to the EEOC’s suit, an assistant store manager at the Walmart store in Cockeysville, Md., offered Laura Jones a job as an evening sales associate, contingent on Jones passing a urinalysis test for illegal drugs. After Jones advised that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Walmart assistant store manager, but management refused to order an alternative drug test. Jones’s application was closed for failing to take a urinalysis within 24 hours.

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logoFrom Josh:

I haven’t issued a formal announcement yet, but I have joined the board of a great organization, Open Arms Housing.  A more formal announcement will be forthcoming, but there’s a bit of news I wanted to share.

We have been included in the Catalogue for Philanthropy: Greater Washington.  It’s a great endorsement of our organization as a worthy cause and it provides details on how you can donate and what your donation will provide.

The Bates Area Civic Association also shared a short post about the news of our inclusion in the Catalogue for Philanthropy.  You can find that post here.

Check out these links and look forward to more information about this great organization.  Please consider supporting us!

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We get a lot of phone calls and emails. On most days, we hear form eight to twelve potential clients asking about discrimination, harassment, non-compete clauses, severance agreements, failure to pay overtime, and other employment issues.  Those calls range from local issues in Arlington, Fairfax, Alexandria, and other areas in northern Virginia and the District, to calls from individuals whose employers are defense contractors often based in Reston or Herndon, but the individuals themselves are personally located in Iraq, Afghanistan, or another foreign nation.

Every call is unique, but there are some things that will help you hire an attorney regardless of your reason for calling. Here’s a list of the first five steps:

1. Talk About Money – Seriously, folks.  Don’t be afraid to talk about money.  You are calling to hire a firm such as ours to do a service.  We, in turn, have a business to run.  Our decisions are not exclusively about money, but we cannot enter into any agreement without discussing it.  There’s no point in trying to avoid it.

Let’s cover the basic economic structures under which our firm usually takes cases:

  • Hourly – You pay the firm a retainer against which the firm bills by the hour to do a project, big or small.
  • Contingency – You pay the firm with a percentage of the final outcome of your case.
  • Flat fee – You pay the firm a flat fee for a service, regardless of how man hours it takes.
  • Hybrid arrangements – Some combination of the above.

These structures can also be updated or changed  depending on how circumstances play out and your needs.  The most important thing to do when it comes to figuring out finances is communication.  The single biggest mistake that potential clients make when they contact our firm is that they try to avoid talking about money.  We understand that the conversation is awkward, but the conversation is also necessary.

2. Understand What You Want and Establish Goals – This can be the most complicated issue for clients. Sometimes, it’s simple: a client wants money and nothing else will do.  But other times, and most times, it’s not at all that simple.  A client will need a workplace accommodation, a transfer, or some unique solution that we work towards over time.  If a client has received a cease and desist letter because of a non-compete clause or has been sued, the client’s goals are structured around a proactive defense and avoiding future liability and costs.

Establishing goals is a critical part of the early process of hiring counsel because your goals will often dictate the fee agreement that works for your case.  Your lawyer can’t work for a contingency percentage of your transfer or accommodation.  Those are great goals, and often the best goals, but if that’s what you’re looking for, you are almost certainly going to have to pay your attorney on an hourly basis.

3. Just Say What Happened – We need to know what happened in your particular situation at your workplace. What is or was the problem?  What was said?  Were you touched?  What happened to you as a result?  Our cases range from contract litigation to workplace sexual assault.  We cannot assist you until we understand the facts.

4. Tell Us About Your Evidence – Do you have documents?  Recordings?  Emails?  Pictures?  Texts?  It’s very easy to get caught up in what happened to you and forget to tell us that you can actually prove it.  And as much as we might believe you, it can be very hard for us to take a case without evidence.

5. Don’t Say the Words ‘Hostile Work Environment’ – Although you may feel the environment in your workplace is hostile, ‘hostile work environment’ is a very specific, complicated, and technical legal term defined by statute.  A hostile work environment, as defined by the law, is pretty rare.  I’ll defer to this article to do a better job of explaining the problems with this term, but let’s just say this: when you call an employment lawyer, tell the lawyer about the sexual, racial, or other protected class discrimination you’ve experienced.  The lawyer will determine if you’ve experienced a hostile work environment, as defined by the law.

We’ll follow this entry up with more steps to hiring an employment lawyer, but please use this list as a guide.  Use the Contact Us form on this page or call us at (703) 791-9087 and one of our attorneys will discuss your situation with you.

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file5961270333740According to the Chicago Tribune, shoe retailer DSW, Inc. has agreed to settle an age discrimination suit brought by the Chicago District Office of the United States Equal Employment Opportunity Commission (EEOC) on behalf of seven managers and approximately 100 other employees, all of whom claimed to have been terminated in 2008-2009 in violation of the Age Discrimination in Employment Act (ADEA). DSW, based in Columbus, Ohio, has approximately 10,000 employees nationwide and over a dozen locations in the greater Washington, D.C. metropolitan area alone.

According to the EEOC, DSW conducted a “reduction in force” that resulted in the termination of employees and managers over 40. Furthermore, according to the EEOC, not only did DSW terminate employees based on their age, but it also retaliated against employees who refused to follow the force-reduction directive. The lawsuit, filed on September 15, settled for $900,000, to be given to the former employees, and the requirements that DSW report any employee complaints of age discrimination in the next three years to the EEOC and revise its anti-discrimination policy.

As is to be expected in this sort of situation, DSW denies it discriminated against these workers based on age and claims it decided to settle in order to mitigate the costs associated with litigating a class-action lawsuit such as this.

Charges of age discrimination filed with the EEOC have increased about 36 percent since 1997, which may be due to recession-induced downsizing (or use of the recession as a cover to terminate older workers). Here are some important things to keep in mind when considering whether you may have been the subject of age discrimination in your workplace.

  • The ADEA only prohibits age discrimination that disfavors older workers. If you were terminated, not hired, or not promoted simply because you are too young, you are not protected by the ADEA even if your employer directly tells you it is discriminating against you for being too young. Likewise, your employer may choose to favor older workers over younger workers without violating the ADEA.
  • The ADEA only prohibits age discrimination against workers who are over 40 years old. If you are not yet over 40, you are not protected by the ADEA even if your employer directly tells you it is discriminating against you for being too old.
  • The ADEA does not only apply to young people discriminating against older people. Supervisors and management who are over 40 can still discriminate against their over-40 subordinates.
  • Age discrimination is illegal with regard to any aspect of employment.  As the EEOC states, this include hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.
  • Age discrimination can extend beyond the aspects of employment noted previously.  Employers are also forbidden from engaging in age-based harassment, such as making offensive comments about a person’s age. It is important to remember that simple offhand remarks or non-serious isolated incidents do not rise to harassment under the law; rather, harassment becomes illegal when it is so severe or pervasive that it creates a hostile work environment or results in the victim being subject to an adverse employment action, such as those described previously.
  • An employment policy or practice that applies to everyone equally can still violate the ADEA if it is not based on a reasonable factor other than age and has a negative impact on ADEA-qualifying employees and applicants.

Do you feel like you’ve been the subject of age discrimination in your workplace? If so, contact one of the attorneys at The Erlich Law Office for a free consultation today.

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IMG_0432Jeff Wilpon, the Chief Operating Officer of the New York Mets and son of Mets owner Fred Wilpon, runs his front office department about like his father runs the baseball team: Leigh Castergine, former Vice President of Ticket Sales, recently filed a lawsuit in the Eastern District of New York alleging that Fred Wilpon and the ball club discriminated against her for being pregnant and unmarried.

Castergine is a graduate of the University of Pennsylvania. She has worked for the Philadelphia 76ers, Orlando Magic, and Boston Bruins and was hired by the Mets in 2010. Last December, the Mets promoted Castergine to Vice President of Ticket Sales, making her the first female to hold such a position in the ball club’s 52 years of existence. The team regularly awarded her five- and six-figure bonuses for her work.

Sounds pretty good. So how did things go wrong?

According to Castergine’s charge, problems at work started when announced that she was pregnant. She alleges that Wilpon reacted to the news by showing his disdain for her situation in several humiliating ways, including:

  • Pretending to see if she had an engagement ring on her finger;
  • Announcing to the Met’s all-male senior executives that he was “as morally opposed to putting an e-cigarette sign in [his] ballpark as [he was] to Leigh having this baby without being married.”
  • Telling Castergine to tell her boyfriend that when she gets a ring she will make more money and get a bigger bonus;
  • Warning other co-workers to not take any interest in the unborn child;
  • Telling Castergine she was different and “less aggressive” after she gave birth to her child; and
  • Telling one of Castergine’s colleagues that people would respect her more if she were married.

Finally, Castergine alleges that she was fired in retaliation for reporting Wilpon’s behavior to the Met’s Human Resources department, which she says did nothing to investigate her complaints. The lawsuit notes that Castergine’s termination came shortly after she spoke to human resources and that Wilpon had told her she could only stay through the season as long as she kept her mouth shut about her discrimination claims.

The Mets maintain that Castergine was fired because she failed to meet sales expectations.

So what happens now?

Typically, a plaintiff alleging discrimination must show four things: (1) that she is a member of a protected class; (2) that she was qualified for her position; (3) that the employer took an adverse action against her; and (4) that something about the employer’s actions raises an inference of discrimination. This test is flexible and recognizes that there are many different things employers can do to suggest discriminatory intent, including:

  • Regularly making rude or derogatory comments to members of a plaintiff’s protected class;
  • Having a history of showing a bias toward persons in a protected class;
  • Having noticeably few employees of a protected class in a workplace; and
  • Retaining less qualified, non-protected employees in the same job.

The District Court where Castergine sued is therefore likely to look at things like her qualifications and job performance, as well as Wilpon’s conduct and the adequacy of Mets’ investigation.  Next, the burden will shift to the Mets to show that it had a legitimate, non-discriminatory reason for firing Castergine.  She will then have the opportunity to show evidence that the Met’s purported reason for firing her was only pretext for unlawful discrimination.

The Erlich Law Office will continue to monitor this case as it develops.  Stay tuned for more information.

 

 

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file0001329734681Have you ever had to deal with an unpleasant person at work? When does the inappropriate conduct of someone at work rise to a civil rights violation by your employer? A recent decision by the Fourth Circuit may help answer these questions. The Fourth Circuit upheld racial and sexual hostile work environment claims in Freeman v. Dal-Tile Corporation on April 29, 2014.

Lori Freeman, former employee of Dal-Tile, sued her former employer after enduring months of mistreatment from a sales representative from one of the company’s main clients.

In June 2008, Dal-Tile bought a stone yard called Marble Point in Raleigh, North Carolina, formerly owned by Marco Izzi. The yard was incorporated into Dal-Tile as a sale-service organization, and Izzi purchased ownership in VoStone, Inc., a Raleigh kitchen/bath remodeling center that became a significant client of Dal-Tile and major source of revenue.

Freeman had worked for Marble Point as a receptionist and became a Dal-Tile employee after the acquisition. During her employment, right up until she quit after taking medical leave for anxiety and depression, an independent sales representative for VoStone named Timothy Koester made unwelcome sexist and racist comments toward Freeman.

Specifically, according to the record in this case, Koester referred to women as “black bitches,” used the word “nigger” on more than one occasion, shared unwelcome details of his sexual exploits, and made jokes that disparaged African Americans.

From the first incident onward, Freeman made several attempts to notify Dal-Tile of the harassment and requested that it deal with the misconduct. She frequently informed her supervisor about the behavior, and although it sometimes was acknowledged and frowned upon, the conduct was allowed to persist.

With such egregious conduct before the Court, it is may not come as surprising that the Fourth Circuit upheld Freeman’s claims of a racial and sexist hostile work environment against a motion for summary judgment.

Dal-Tile’s strongest defense was that it could not be held liable for the conduct of Koester because it did not know about nor should it have known about the discrimination. Even though both parties agreed that Freeman notified a supervisor about Koester’s behavior, Dal-Tile argued that she had never complained about the behavior – through either formal or informal channels.

The Fourth Circuit did not accept this argument. In doing so, it formally adopted a negligence standard for holding employers liable in race- and/or sex-based discrimination cases, meaning that employers will be found liable for their employees’ harassment if those employers knew or should have known about the harassment and failed to take prompt remedial measures.

Turning to the facts of the case, the Fourth Circuit found this requirement satisfied because Freeman notified her supervisor about Koester’s behavior several times; because that same manager was even present at some of the instances of his improper behavior; because Freeman complained to human resources; and because Freemen protested the behavior to Koester himself. In the Court’s own words:

 Not only did Dal–Tile fail to take any serious action for three years in spite of the long list of ongoing harassment by Koester, but particularly shocking to us is the fact Dal–Tile took absolutely no action when Koester passed gas on Freeman’s phone and made Freeman cry in Wrenn’s presence, nor when Freeman promptly complained to Wrenn that Koester had used the word “n****r” on the phone with her. Although the harassment eventually stopped after the communication ban was put into place, the harassment had continued unabated for three years prior to that. While a communication ban may have been an adequate response had it been put into place sooner, Dal–Tile’s failure was in not responding promptly to the harassment. Based on this evidence, we believe a reasonable jury could conclude that Dal–Tile failed to take “prompt remedial action reasonably calculated to end the harassment.”

How does this apply to you? You are protected from discrimination in the workplace that is based on race, color, gender, national origin, religion, age, disability, and genetic information. As the Fourth Circuit recognized in this case, unlawful workplace discrimination can come from a coworker or even a third party not employed within your company if your employer is negligent in allowing this behavior to continue.

We can advise you on how to deal with this type of situation. Contact the Erlich Law Office for a free consultation.

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Being terminated from your job almost always comes with a huge amount of stress and emotion.  There’s a lot to process, and people often want to do that processing very quickly in order to get back up and running.  Every day, we see people who have lost their jobs and are understandably having a tough time figuring out where to begin. We’re here to help, and in this particular situation we’re here to help you understand with some visual aids.  Here’s a guide to the firing process.

1. Be Professional: Nothing is gained by burning bridges on the way out.

Stay calm, act professionally.

 

2. What’s The Deal?: What are the terms of your separation?  Were you fired?  Did you get a chance to resign?  Is there a severance package?

Figure out the terms

 

3. Try Not to Be Angry at the Silence: In Virginia, and in most jurisdictions, you can be fired for any reason or no reason at all.  Because of that, most supervisors and human resources professionals won’t talk to you about why you just lost your job.  Whether or not the termination was valid, that silence from your former employer shouldn’t be taken personally.  It will, however, feel a lot like this:

Try not to be angry.  It'll be hard.

 

4. Then You Can Get Actually Angry: It just isn’t terribly productive, but it’ll probably feel pretty good.  Set off a few hours or a few days to just be mad.  Critically, this is not the time to communicate with your former employer.  Just, enjoy some time getting it all out of your system.  Like this:

You won't like me when I'm fired.

Seriously, do not call your old boss while you’re angry.

 

5. (Optional) Be Sad for a Day: You just lost your job.  You’re mostly angry, but if you were there for any length of time, you probably just lost an important set of relationships with people who you saw every day at a place where you spent forty or fifty hours per week.  Take a day and be sad.  It’s natural.

Be sad, you deserve it.

 

6. Now It’s Time to Get Up and Defend Yourself: Find an employment lawyer and get a consultation.  You may or may not have a case, but you won’t know until you get counsel.  Look to the National Employment Lawyers Association, the Metropolitan Washington Lawyers Association, or your local chapter of NELA.  Preferably not this guy:

I'm just a caveman.

 

7. Organize Your Paperwork: This isn’t just selfish from the attorney’s perspective.  It will save important time and legal fees if your paperwork and digital documents are in order, preferably in binders or in some other system, when you come to see us.  If not, we’ll put them in order, but do you really want to pay us for the 5 hours it takes to organize your 10 years worth of documents?  It helps everyone if you’re organized.  It’s like this:

Organization 101

 

8. Figure Out Your Claims: Now that you have counsel and your paperwork is in order, it’s time to figure out what’s going on.  Some firings are just firings.  It’s that simple.  But others are the basis for claims under the Civil Rights Act of 1964, the Americans with Disabilities Act, and any number of other employment laws designed to protect employee rights.  Your counsel will help you determine whether you have a case and, if so, what laws apply.  The laws are complicated, but employment lawyers handle these matters every day and we can help you navigate and evaluate your claim.  We help you understand if you have a valid claim, or if it’s more like this:

Risky strategy!

 

9. Make a Decision and Move Forward, If Necessary: Once we’ve decided that there’s a case to pursue, we will help you put that case together.  Sometimes it’s a soft approach that involves us simply helping you approach your company while we work in the background in an advisory capacity.

Don't let the haters stop you

 

 

 

 

 

 

Other times, we get involved, but we try to find middle ground with the opposing party before litigation to avoid the cost and burden of the litigation process.

Negotiation!

 

 

 

 

 

 

 

 

But, sometimes, we file and expect to go to court.  Sometimes that’s what our clients want.  Other times, it’s just what the case needs.

Trial by Combat

 

 

 

 

 

 

 

 

 

We’re here to help. If you were fired, demoted, or otherwise discriminated against in a job.  If you had your wages unfairly stolen from you.  If you have a contract, non-compete, or non-solicitation dispute, you may have a case. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

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file0001365683306In Part 1 of our 2 Part series on the EEOC’s new Guidelines on Pregnancy Discrimination, we discussed the first five things you should know about this recent and important guidance.  Here are tips six through eleven:

6) Title VII prohibits an employer from offering a health insurance plan that does not cover prescription contraceptives but provides other preventative health care.   To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives to the same extent it does prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy, such as medicine that lowers cholesterol levels.

This, of course, is particularly fascinating because it is in direct conflict with the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc. Nos. 13-354, 13-356, 2014 WL 2921709 (U.S. June 30, 2014).

This highlights the difference between guidance and law.  Guidance simply does not have the force of law until a court speaks to it, adopts it, and decides to make it law.  Guidance does have a substantial effect on the agency’s interpretation of issues.

This, however, is a different perspective on the contraception issue, and it may carry some weight when it gets into the courts.  For the moment, though, this guidance is pretty directly at odds with the precedent of the Supreme Court.

7) An employer’s concern about risks to an employee or her fetus will rarely, if ever, justify sex-specific job restrictions. The Supreme Court has held that a battery manufacturing company violated Title VII by excluding all fertile women but not similarly excluding all fertile men in jobs entailing exposure to high levels of lead (which can pose hazards to unborn children). In reasoning that such a policy constituted discrimination, the Court emphasized the fact that it denied fertile women a choice that was given to fertile men: whether they wished to risk their reproductive health for a particular job.

8) Title VII prohibits employers for taking adverse employment actions against employees on the basis of their desire to become pregnant. Therefore, if an employer overhears that a female worker is trying to get pregnant, reacts or comments negatively to that information, and then demotes or takes another adverse employment action against that employee despite her overwhelmingly positive performance evaluations, it is likely that the employer violated Title VII by impermissibly discriminating against the woman for wanting to be pregnant.

9) Title VII does not prohibit an employer from asking an applicant whether she is pregnant. However, the EEOC considers such an inquiry to be evidence of discrimination where an employer subsequently fires an employee or decides not to hire that applicant.

 10) A workplace policy that is not intentionally discriminatory violates Title VII if it has a disproportionate, negative effect on women ft odor a pregnancy-related reason and the policy and is not job related or consistent with a business necessity.

11) Section 4207 of the Affordable Care Act requires that employers provide “reasonable” break time and a private location for employee breastfeeding or breast pumping for up to one year after birth of the employee’s child.

Remember, employers may not discriminate against employees on the basis of pregnancy, childbirth or other related medical conditions. Women affected by pregnancy, childbirth or other related conditions must be treated the same as other persons similar in their ability or inability to work. The ADA’s pregnancy-related provisions mandate that employers must accommodate impairments caused by an employee’s pregnancy to the same extent they would other disabilities in the workplace.

Pregnancy discrimination is a real problem and it needs to be addressed.  If you were fired, demoted, or otherwise discriminated against in a job for reasons related to your pregnancy, childbirth, or the desire to become pregnant, you may have a case of discrimination under Title VII and the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

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ancsa 005On July 14, the United States Equal Employment Opportunity Commission (“EEOC”) published guidance on laws governing pregnancy-based discrimination for the first time since 1984. Charges of pregnancy discrimination are rising largely due to common and persistent misconceptions about pregnancy in the workplace.

The two of the main federal laws concerning pregnancy-related discrimination in the workplace are the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”). The PDA is an amendment to Title VII of the Civil Rights Act of 1964 (“Title VII”), which contains two fundamental restrictions on how employers may treat workers for pregnancy-related reasons.

First, employers may not discriminate against employees on the basis of pregnancy, childbirth or other related medical conditions. Second, women affected by pregnancy, childbirth or other related conditions must be treated the same as other persons similar in their ability or inability to work. The ADA’s pregnancy-related provisions mandate that employers must accommodate impairments caused by an employee’s pregnancy to the same extent they would other disabilities in the workplace.

While the laws may appear to be simple, applying them to the numerous contexts in which workplace discrimination may arise can be more complex. That’s where the EEOC guidelines come in to play.  We have reviewed the guidance and summarized eleven of its most critical points, to be posted in a two-part series. Here are the first five:

1) Title VII prohibits employment decisions based on stereotypes and assumptions about pregnancy and how it affects a woman’s ability to perform her job. For example, refusing to hire a pregnant woman based on the assumption that she will have attendance problems or leave her job after the child is born is unlawful, even when the employer is acting unconsciously or with the belief that it is furthering the employee’s best interest. As the Supreme Court has specifically stated: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with the group.”

 2) Lactation is a covered pregnancy-related medical condition. Title VII requires an employer to offer a woman who is lactating the same accommodations for addressing related health needs that it would provide her coworkers for other similarly limiting medical conditions.

3) Title VII forbids employers from requiring that pregnant workers who are able to do their jobs to take leave. As the EEOC’s guidance explains, such an action constitutes discrimination, even if the employer believes it is in the woman’s best interest, because it is almost certainly motivated by stereotypes about pregnancy.

4) Title VII requires that parental leave (which is different from medical leave associated with childbearing or recovering from childbirth) be provided to similarly-situated men and women on the same terms. An employee may have a valid claim for discrimination against her employer if she is treated differently from a man for taking parental leave, based on the employer’s mistaken assumption that a new mother would be less committed to her job.

5) The ADA requires that employers make reasonable accommodations to pregnancy-related impairments just as they would other qualified disabilities in the workplace. For example, an employer who has a policy of providing light duty for any employee who cannot perform one or more jobs for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA must provide those same accommodations to a women who is similarly affected due to pregnancy-related reasons.

If you were fired, demoted, or otherwise discriminated against in a job for reasons related to your pregnancy, childbirth, or the desire to become pregnant, you may have a case of discrimination under Title VII and the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

Please join us for Part 2 when we’ll discuss the second set of things you should know from the EEOC’s recent pregnancy discrimination guidelines.