The “Intent” to Become Pregnant is Protected!

July 28, 2014

The EEOC has found that female employees can be discriminated against based merely upon their intent to become pregnant! Recently, a high-level female executive who has a two-year-old son, told her manager she was trying to get pregnant. The manager reacted with displeasure, stating that the pregnancy might interfere with her job responsibilities. Two weeks later, the employee was demoted to a lower paid position with no supervisory responsibilities. In response to the employee’s EEOC charge, the employer asserts it demoted the employee because of her inability to delegate tasks effectively. The employee’s performance evaluations were consistently outstanding, with no mention of such a concern. The timing of the demotion, the manager’s reaction to the employee’s disclosure, and the documentary evidence refuting the employer’s explanation made it clear that the employer had engaged in unlawful discrimination.

Employers have to understand (and use common sense) females will be protected under any circumstances surrounding pregnancy. They are eligible for these protections from day one of their employment if the employer has 15 or more employees. Some states offer the protection with only 5 employees. To avoid any misunderstanding, I have taken the following directly from
the EEOC website.

c. Discrimination Based on Infertility Treatment

Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure. In contrast, with respect to the exclusion of infertility from employer-provided health insurance, courts have generally held that exclusions of all infertility coverage for all employees is gender neutral and does not violate Title VII. Title VII may be implicated by exclusions of particular treatments that apply only to one gender.

d. Discrimination Based on Use of Contraception

Depending on the specific circumstances, employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives. For example, an employer could not discharge a female employee from her job because she uses contraceptives.
Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. Because prescription contraceptives are available only for women, a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventive dental care, then prescription contraceptives also must be covered.

4. Medical Condition Related to Pregnancy or Childbirth

a. In General
Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.

The above information is not commonly known. I would strongly recommend printing the above information and keeping it in the internal human resources file for reference should a circumstance present itself.

Supervisor Rapes Employee. Damages Reduced Because Employee Was Also a Prostitute!

July 21, 2014

This is wild! An employer was sued for sexual harassment. The allegation was based upon facts that included the supervisor telling the plaintiff that he could save her job if she “f****d” (I am quoting here!) him and then proceeded to rape her. As a result, the employee sued the company which is obviously not surprising. This case was not looking good in terms of damages. The employer initially did not have a lot of options, other than to hope their insurance company was going to write the check.

Then, out of the blue, the employer received information that the employee “might” have held a side job as a “prostitute.” Now, let’s understand that the information didn’t excuse or defend the supervisor’s actions (which are beyond deplorable) but it did provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, the employer served discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Do you think the court approved the discovery request? It did! The case was in federal court and the plaintiff had requested damages that included lost wages and damages for emotional distress. The court held that the evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages if the plaintiff were successful in her case.

As a result, the Court allowed limited discovery, through a reopened deposition and interrogatories, to review: (1) the general nature of the escort services Plaintiff had offered or performed in the past five years; (2) the frequency with which she had performed those services; (3) her income from those services; and (4) any medical or psychological treatment she had received related either to her sexual assault or to other sexual encounters.

The bad news is there are bad managers and supervisors who engaged in sexual harassment and the employer has to buy their way out of it. The issue of damages should always be considered. Be proactive to determine if there are any offsets. In this case, the settlement did not throw the employer into bankruptcy. The message here is simple, just remember it is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, the mitigation of the damages came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the face of difficult cases.

EEOC Actively Soliciting Claims Against Employers!

July 14, 2014

Since President Obama came into office we have been preaching to employers to be careful about their hiring and termination procedures because the EEOC made it very clear that now that they have a “friend” in the White House they will be diligently pursuing discrimination claims. As always, I visit the EEOC website to keep abreast of what is going on. Last night I made my usual visit. See below! This is directly from their website which reflects their continued effort to entice claimants to file against their current or former employer. As you will see, they even gave examples of the type of litigation to pursue.

“Are You Affected by an EEOC Lawsuit or Settlement?

The EEOC currently has a number of on-going lawsuits and settlements of lawsuits. We are looking for people who may have been affected by the unlawful discrimination alleged in these suits. Please read the list below for the name of the company, the type of discrimination, and the basis of the action, and follow the link for each case to learn more.
• Sedona Staffing of San Diego – settlement
Denial of job referral due to race, color, sex, national origin, age 40 or older, or disability.
• Performance Food Group – litigation
Failure to hire women at their Broadline distribution facilities.
• USPS – settlement, federal sector employees only
Disability discrimination against employees in permanent rehabilitation positions.
• Mavis Discount Tire – litigation
Failure to hire women for a number of job categories.
• Texas Roadhouse – litigation
Failure to hire people age 40 and older for front of house positions.
• Bass Pro – litigation
Failure to hire African-Americans and Hispanics/Latinos.”

Even more alarming, is the fact that we have also been informed from our sources that there are law firms sending applicants into businesses and if they are not hired they are looking for issues to bring because of the interviewing and hiring process. Remind your managers, supervisors, and anyone involved in the hiring process, to keep the interview on the requirements of the job, and the experience of the individual. In addition, be careful of small talk during the interview. It can also get you into trouble.

Employee Steals a $1.39 Bag of Chips is Fired and is Awarded $180,000

July 9, 2014

The EEOC filed a disability-discrimination lawsuit against Walgreens on behalf of a diabetic employee who had stolen a bag of chips. The employee alleged that she took the chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack. Walgreens considered it shoplifting and fired the employee. The EEOC considered the termination a failure to reasonably accommodate the employee’s disability and filed suit.

This is really not an issue of theft but an employer not accommodating a known disability. As many of you know I have been pushing employers to always be careful when they have knowledge that an employee has a disability. Well, last week, Walgreens settled the lawsuit, agreeing to pay the ex-employee $180,000, in addition to agreeing to implement revised policies and training.

Whether you think this is a fair settlement, or that Walgreens overpaid, depends on whether you view the termination an unfair discrimination against an employee trying to stop a medical episode, or a reasonable enforcement of a retailer’s anti-shoplifting policy.

Here, the misconduct alleged by Walgreens that formed the basis of the employee’s termination was the taking of the chips without paying for them first, an act the employee claims was caused by her disability. Walgreens failed to allege any misconduct that was unrelated to the employee’s disability.

Please use common sense. As an example, this employee was a valued 18-year employee, whom the company knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.

As for me, I don’t believe either interest trumps in this case. I firmly believe that employers like retailers (or casinos) must do everything they can to prevent and deter employee theft. These measures include terminations that, under other circumstances, might seem overly harsh. Yet, in this case, the company knew about this long-term employee’s medical history, and refused to let the employee pay for the chips after her recovery. This does not appear to be the case of an employee nefariously grazing on unpaid goods. Instead, it appears to be a case of employee making a snap judgment in response to a medical condition, and trying to make good on it after the fact. Given these facts, this case seems like an odd one for this employer to litigate for three years. It could have cut its losses, settled early, and saved itself three years of legal fees. Yet, I also see the import of the employer’s “zero tolerance” stance.

This case illustrates how difficult reasonable accommodate cases are. When the accommodation is so trivial (a $1.39 bag of chips, for example), employers should strongly consider making the accommodation for an employee’s medical situation regardless of the scenario. It is difficult to justify a claim of hardship based on a economically trivial accommodation. Even when the interest the employer is trying to protect is as strong as deterring theft, the cost of defending that interest may to be too high, especially in light of the uncertainty related to the potential outcome of very fact-specific litigation.