Man Claims “Pregnancy Discrimination!”

September 26, 2017

Yes, a man claimed “pregnancy discrimination”! The facts in Estate of Andrew Tyler Pennington v. Southern Motion, Inc. are rather straightforward. Mr. Pennington worked for Southern Motion, Inc. According to the plaintiff, shortly before Mr. Pennington’s employment with Southern Motion began, Mr. Pennington learned that his wife was pregnant and considered a high-risk pregnancy. A few months into his employment, Mr. Pennington took a day off from work to accompany his wife to a “pregnancy-related appointment.” According to the plaintiff, when Mr. Pennington tried to return to work, the company terminated his employment.

The plaintiff sued for “discrimination based on sex and pregnancy” in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The defendant answered the complaint and immediately moved for judgment on the pleadings. Judgment on the pleadings is where the defendant argues that the plaintiff’s complaint discloses that there are no material issues of fact to be resolved and that defendant is entitled to judgment as a matter of law.

Ok, how about sex discrimination?

Southern Motion argued that “Title VII, as amended by the PDA … simply does not provide a claim based on the pregnancy of an employee’s spouse in the absence of proof that the employee was discriminated against because of his or her sex.”

The plaintiff countered that “discrimination against a male employee because of the pregnancy of his spouse is sex discrimination. Pennington was therefore discriminated against based on his sex when he was terminated because of his wife’s pregnancy.”

So, who won? Defendant wins. Here’s why according to the court:

[I]n order for a male to properly bring a claim of discrimination based on pregnancy, the male must allege that he was discriminated against because of his sex…The discrimination would have to, in this case, be based on Pennington’s association with his pregnant spouse and must have been based on Pennington’s sex. Put differently, the Estate must allege not only that Pennington was terminated because of his partner’s pregnancy but that a female employee would not have been terminated because of her partner’s pregnancy. No such allegations have been made here. Accordingly, construing the complaint in the Estate’s favor, the Court finds the Estate has failed to assert sufficient facts to plausibly suggest that Pennington was treated less favorably than those outside his protected class. The Estate’s claim of sex discrimination, therefore, fails as a matter of law.

So, there you have it! While a pregnancy discrimination claim is untenable, it’s conceivable that a man could plead a sex-based associational-discrimination claim. And, if you think that sounds difficult, it is. According to this court, you’d need to involve a lesbian co-worker and her pregnant spouse. But, who knows what the future may hold! If this scenario happens I will let you know.

New Laws Awaiting Signature!

September 17, 2017

This past Friday, was the last day for the California Legislature to pass bills and send them to the Governor for approval.  Here is the list of key labor and employment bills that passed and will either be vetoed or signed into law by the Governor:

AB 168 (Salary Inquiries):  This bill would prohibit employers from inquiring about, or considering, information concerning an applicant’s prior salary history in determining whether to offer employment to the applicant and/or the amount to pay the applicant.  It also requires employers to provide the pay scale for a position upon request by an applicant.  An applicant may, however, voluntarily (without prompting by the employer) disclose information concerning prior salary history, in which case the employer may consider it in determining the employee’s compensation.

AB 450 (Immigration Worksite Enforcement Actions):  This bill would prohibit California employers from complying with requests of federal immigration enforcement officials to enter non-public areas of the employer’s premises or to inspect the employer’s records in the absence of a judicial warrant or subpoena.  It would also require the employer to give written notice to employees of any official inspection of the employer’s I-9 records, along with the results of any such inspection.  Finally, this bill would prohibit employers from re-verifying the employment eligibility of a current employee in a manner not required by federal law.  The bill would impose penalties of between $2,000 to $10,000 per violation.

AB 1008 (Ban the Box):  This bill would prohibit employers from including criminal history questions on their employment applications and from inquiring into an applicant’s criminal history at any time prior to a conditional offer of employment being made.  This bill would also require an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment.  The bill would require an employer who makes a preliminary decision to deny employment based on that individualized assessment to provide the applicant written notification of the decision.  The bill would require the notification to contain specified information.  The bill would grant an applicant 5 business days to respond to that notification before the employer may make a final decision.  If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the bill would grant the applicant an additional 5 business days to respond to the notice.  The bill would require an employer to consider information submitted by the applicant before making a final decision.  The bill would require an employer who has made a final decision to deny employment to the applicant to notify the applicant in writing of specified topics.

AB 1209 (Gender Pay Data Reporting):  This bill would require employers with 500 or more California employees to, beginning July 1, 2019, collect the following information concerning gender pay differentials:

(A) The difference between the mean wages of male exempt employees and female exempt employees located in California, by each job classification or title.

(B) The difference between the median wages of male exempt employees and female exempt employees located in California, by each job classification or title.

(C) The difference between the mean wages of male board members and female board members located in California.

(D) The difference between the median wages of male board members and female board members located in California.

(E) The number of employees used for the determination of subparagraphs (A) and (B).

For purposes of this paragraph, “exempt” means not subject to overtime requirements as an administrative, executive, or professional employee.  The bill would further require covered employers, beginning July 1, 2020 and biennially thereafter, to provide the data collected to the Secretary of State, who would then publish it on an Internet site available to the public.

AB 46 (Gender Pay Equality):  This bill would provide that California’s Equal Pay Act applies to public employers as well as private employers.

AB 568 (School Districts/Community Colleges Paid Maternity Leave):  This bill would require school districts and community colleges to provide at least 6 weeks of paid leave for pregnancy, childbirth and related conditions.

AB 569 (Discrimination/Reproductive Health):  This bill would prohibit employers from taking adverse action against an employee based on the employee’s (or employee’s family members’) reproductive health care decisions, including but not limited to the use of any device, drug, or medical service.   An aggrieved employee would be entitled to recover a penalty pursuant to Labor Code section 98.6, as well as reinstatement, lost wages, interest, and other compensation or equitable relief appropriate to the circumstances.  Employers with employee handbooks would be required to include notice of these rights and remedies in the handbook.

AB 978 (OSHA IIPPs):  This bill would require an employer who receives a written request for a paper or electronic copy of its written injury prevention program from a current employee, or his or her authorized representative, to comply with the request as soon as practicable, but no later than 10 business days from the date the employer receives the request.  The bill would require the employer to provide the copy of the written injury prevention program free of charge.

AB 1701 (Contractor Liability/Wages):  This bill would provide that for contracts entered into on or after January 1, 2018, a direct contractor making or taking a contract in the state for the erection, construction, alteration, or repair of a building, structure, or other private work, shall assume, and is liable for, any debt owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the contract between the direct contractor and the owner.  The direct contractor’s liability would extend only to any unpaid wage, fringe or other benefit payment or contribution, including interest owed, but would not extend to penalties or liquidated damages.  The bill would allow either the Labor Commissioner or a wage claimant to bring a civil action against a direct contractor to collect wages owed.

SB 63 (Expansion of Parental Leave Rights):  This bill would provide that an employee who has at least 12 months of service and 1250 hours of service within the prior 12 months, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, is entitled to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.  The employer would also be required to maintain the employee’s group health coverage during such leave, on the same terms as if the employee was actively reporting to work.

SB 306 (Retaliation Claims; Labor Commissioner):  This bill would expand the Labor Commissioner’s authority by allowing the Labor Commissioner’s office to investigate suspected instances of retaliation even where no employee complaint has been filed, where the Labor Commissioner’s suspicion arises during the course of a field inspection or wage adjudication. The bill would also authorize the Labor Commissioner’s office to petition a court (prior to any actual finding of retaliation) for temporary or preliminary injunctive relief to protect an employee who the Labor Commissioner reasonably believes is the victim of retaliation.

SB 396 (Expansion of Harassment Training):  California’s Fair Employment and Housing Act already requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years thereafter.  This bill would require covered employers to include information on harassment based on gender identity, gender expression, and sexual orientation as a component of that prescribed training.

The Governor has until October 15, 2017 to consider whether to sign these bills into law or to veto them.  Bills that are signed into law generally take effect January 1 of the following year, unless otherwise specified in the text of the legislation.  Of note, AB 1565, which would have increased the minimum salary to qualify for exempt status under California’s white collar exemptions to $3,956 per month ($47,472 per year), was placed on the Legislature’s inactive file, which means it did not pass this session but could be taken up again next year.


Leave Laws as Applied to Fathers!

September 11, 2017

An issue that comes up from time to time is whether new Dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder. Estée Lauder’s parental leave program provides eligible new mothers six weeks of paid parental leave for child bonding (plus six additional paid weeks for childbirth recovery). Under the same policy, however, Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.

EEOC Washington Field Office Acting Director Mindy Weinstein says about this lawsuit, “It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women.” Adds EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”

What does this mean for your policies? If you provide unequal post-childbirth baby-bonding benefits to male employees as compared to female employees, you might be putting yourself in the EEOC’s spotlight.

Indeed, men and women are physiologically different (women give birth; men do not), and this key difference justifies some policy differences. It should be lawful to differentiate gender-based post-childbirth leave based on the medical need to recover from the trauma of childbirth. Bonding, however, is totally different. Indeed, I see no reason, other than an archaic view of the role of men versus the role of women in raising children, why mom is entitled to six paid weeks but dad only two. How could a company of this magnitude, with all of their resources, make a mistake like this?

A few points to remember:

  • Men and women can both be the primary parent. While you can certainly say only one parent can fill that role if both parents work for your company, you should otherwise take the employee’s word for it.
  • Legally, you have to allow up to 12 weeks of unpaid leave for any parent to take care of new baby, a new foster child, or newly adopted older child. Don’t ever assume that the dad will not be the one to take this leave that is guaranteed under FMLA. Again, if both parents work for you, you can limit this to 12 weeks total.
  • Don’t limit leave to married couples, or heterosexual couples. Babies need care, period.
  • Take a page out of Facebook’s manual, and don’t require employees to use parental leave in one lump.
  • Double check with your attorney before implementing the policy. Employment law is complex and varies from state to state. It’s always cheaper to pay an attorney before than it is to pay an attorney to defend you.

On another note, for the California employers, there will be some announcements regarding pending laws within the next week.



Pay Day Reporting: Federal & State Requirements!

September 5, 2017

Larger employers (100+ employees) have long been required to file annual Employer Information Reports (known as EEO-1 reports) with the federal government, disclosing the number of their employees by job category, race, sex, and ethnicity.  Last year, the EEOC sought to substantially expand the information required to be disclosed to include pay data and hours worked data.  The stated purpose of requiring this information was to aid the EEOC in identifying discriminatory pay practices.  The expanded, revised EEO-1 report was due to be submitted by March 31, 2018.  Not anymore.  Last week, the Office of Management and Budget (OMB) announced that it was issuing an immediate stay of the revised EEO-1 form.  In doing so, the Office explained, “Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”   So, for now, employers are relieved of the obligation of complying with the pay data reporting requirements called for by last year’s revised EEO-1 report form.  Keep in mind, this does not change the former requirements that covered employers must file EEO-1 reports using the old forms.

Now the bad news for California employers. There is pending legislation (AB 1209) that would require employers with more than 500 employees in California to collect (beginning July 2019) and report to the Secretary of State (beginning July 2020) the following information concerning gender pay differentials:

(A) The difference between the mean salary of male exempt employees and female exempt employees, by each job classification or title. (B) The difference between the median salary of male exempt employees and female exempt employees, by each job classification or title. (C) The difference between the mean compensation of male board members and female board members. (D) The difference between the median compensation of male board members and female board members. (E) The number of employees used for the determination of subparagraphs (A) and (B).

The Secretary of State’s Office would then be required to publish this information on a website available to the public.  This bill has already passed the assembly and is pending before the state Senate.  I will keep you posted on this bill, and others, as the last day (September 15th) for the Legislature to pass bills approaches.