ctemploymentlawyerblog.com

Pratt & Whitney Cannot Ship Jobs Out of CT

2010-07-08T14:16:18Z

A federal appeals court has rejected jet engine maker Pratt & Whitney's plan to move 1,000 jobs out of Connecticut.The 2nd U.S. Circuit Court of Appeals upheld a federal judge's ruling that said the subsidiary of United Technologies Corp. failed to make every reasonable effort to avoid shutting two engine repair plants in the state and failing to make every reasonable effort, the company breached the collective bargaining agreement.

FMLA Leave Extends to "Non-Traditional" Parents

2010-07-01T18:28:40Z

On June 22, 2010, the U.S. Department of Labor issued a clarification of definitions under Section 101(12) of the Family and Medical Leave Act (FMLA) designed to ensure all employees who care for children are eligible for parental rights to leave under the Act--even when the employee lacks a legal or biological relationship to the child. The change requires employers to provide FMLA leave to employees caring for children who were previously uncovered by the Act, particularly gay and lesbian parents and "non-traditional" parents who care for children but are not those children's legal stepparents or guardians.

Disabled Under The ADA For Conditions Caused By Medication?

2010-05-20T21:41:21Z

Is an employee considered disabled under the ADA for a condition caused by medication? Well, like most legal issues, there is no simple yes or no answer to that question.

In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. In the case, the plaintiff/employee needed more time than most employees for restroom breaks. He needed more time to use the bathroom because of weight loss medication.

The side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:

(1) the treatment is required "in the prudent judgment of the medical profession,"

(2) the treatment is not just an "attractive option," and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff's voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In this specific case, the court found that the plaintiff's medication was not "required in the prudent judgment of the medical profession" as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

Legislation Introduced to Override Gross v. FBL Financial Services

2010-05-06T16:14:48Z

In Gross v. FBL Financial Services Inc., the United States Supreme Court changed the standard of proof for workers who sue under the Age Discrimination in Employment Act of 1967. Under the Court's 5-4 opinion, a worker must prove that the employer would not have taken a certain action, such as a demotion, "but for" the worker's age, even if there's evidence that age was a factor in the decision. The change in the standard of proof makes it more difficult for a plaintiff' to prove his age discrimination case. The previous standard of proof was that age was a motivating factor in the adverse employer action. Congress is introducing legislation that would override the Supreme Court's interpretation of the age-discrimination law. Under the legislation, a plaintiff would have to show only that an "impermissible factor" such as age "was a motivating factor" in the employer's action.

Imposing a Sex-Stereotyped Stigma On Employees Violates Title VII

2010-04-17T17:53:55Z

The Eighth Circuit joins other U.S. Courts of Appeals that have ruled on claims that an employer violated Title VII by imposing a sex-stereotyped stigma on a protected employee. In the case of Lewis v. Heartland Inns of America, No. 08-3860 (8th Cir.2010), the defendant took away the plaintiff's front-desk clerk's daytime hours because she supposedly dressed like Ellen DeGeneres and lacked the "Midwestern girl look." The district court granted summary judgment in favor of the defendant and the Eight Circuit Court of Appeals reversed the summary judgment and remanded for trial.

Previously, the Ninth, Seventh, and Sixth Circuits and (most recently) the Third Circuit (Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009)) have ruled on claims that an employer discriminated against (or tolerated harassment of) employees whose dress and behavior did not conform to a gender stereotype of feminity or masculinity. All of these courts recognized such a claim under Title VII or parallel state laws.

EEOC'S Comments On ADA Amendments

2010-03-17T22:58:03Z

The EOOC has posted comments on the recent ADA amendments that went into effect on January 1, 2009. The comments read as follows:

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

directs EEOC to revise that portion of its regulations defining the term "substantially limits";
expands the definition of "major life activities" by including two non-exhaustive lists:
- the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
- the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

Why Mandatory Arbitration In Employment Cases Is Rotten

2010-02-05T18:29:57Z

If anyone had any doubts as to how harmful mandatory and binding arbitration is in employment cases, just watch this video. Not only does the arbitration deny the wronged employee's right to her day in court but it undermines the nation's employment laws designed to protect American workers. The undermining occurs when the arbitration is done in private with the result sealed, thereby preventing the public from knowing what happened and removing the incentive for the employer to take corrective action. Watch the video.

Young Workers and Sexual Harassment In The Workplace

2010-01-22T21:41:23Z

In a previous blog post, I commented on sexual harassment of young women in the workplace. It is a real and growing problem - confirmed by statistics kept by the EEOC. According to an EEOC representative, an "alarmingly high" number of high school students are reporting sexual advances from their adult bosses and other supervisors.
"It's an incredibly serious problem," said Bill Cash of the EEOC in an interview. Many teens are simply unaware that sexual advances in the workplace are unlawful or are too afraid to speak up. No one especially a young worker should be subjected to such unlawful conduct in the workplace. Anyone being subjected to sexual harassment needs to report it and contact an attorney.

Genetic Discrimination In The Workplace Now Prohibited Under Federal Law

2009-12-29T21:18:28Z

Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. The law became effective on November 21, 2009. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Definition of "Genetic Information"

Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about any disease, disorder, or condition of an individual's family members (i.e. an individual's family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

Discrimination Because of Genetic Information

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn't tell the employer anything about someone's current ability to work.

Harassment Because of Genetic Information

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee's genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.

Retaliation Because of Genetic Information Discrimination

Under GINA, it is illegal to fire, demote, harass, or otherwise "retaliate" against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

Bad News For Plaintiffs In Age Discrimination Cases

2009-12-05T00:03:19Z

The US Supreme Court handed down some bad news for plaintiffs in age discrimination cases brought under the federal Age Discrimination in Employment Act (ADEA). In a 5 to 4 decision, the Court held that a worker has to prove that age was the key factor in an employment decision even if there is some evidence that age played a role. In discrimination cases brought under Title VII, the worker needs to establish that discrimination on the basis of for example national origin was a motivating factor. There is a significant difference between proving discrimination was the key motivating factor versus a motivating factor and it makes the plaintiff's case more difficult to prove and win. For the plaintiff to now prove age discrimination, he or she must prove that "but for" age discrimination, the adverse employment action would not have occurred. The case is Gross v. FBL financial Services and the majority opinion was authored by Justice Thomas. In his dissenting opinion, Justice Stevens commented that the but for standard was previously rejected by the Court and by Congress and that the Court misinterpreted the statute and has engaged in unnecessary lawmaking. Unless and until Congress overrides the decision, plaintiffs pursuing federal age discrimination cases will have to deal with the but for causation standard.

EEOC Publishing Notice of Proposed Rulemaking That Will Revise EEOC Regulations To Conform With The ADA Amendments Act of 2008

2009-10-09T17:34:09Z

The U.S. Equal Employment Opportunity Commission (EEOC) will publish a proposed rule that would make several significant changes to the definition of the term "disability" under the Americans with Disabilities Act.

The proposal would revise the EEOC's regulations to conform with the ADA Amendments Act of 2008 (ADAAA), which makes it easier for individuals seeking protection under the ADA to establish that they have a disability. The proposed regulations include revised definitions of some key terms under the definition of "disability."

The EEOC will be publishing a Notice of Proposed Rulemaking this week and will be seeking public comment for 60 days.

In the NPRM, the EEOC will emphasize that:

The definition of disability--an impairment that poses a substantial limitation in a major life activity--must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis;
Major life activities include "major bodily functions";
That mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and
Impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would "substantially limit" major life activities when active.

The EEOC says the regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA's new standard for determining whether someone is "regarded as" having a disability.

In addiiton, the proposed regulation identifies impairments that consistently will meet the definition of "disability:

Deafness,
Blindness,
Intellectual disability
Partially or completely missing limbs,
Mobility impairments requiring use of a wheelchair (a mitigating measure),
Autism,
Cancer,
Cerebral palsy,
Diabetes,
Epilepsy,
HIV/AIDS,
Multiple sclerosis,
Muscular dystrophy,
Major depression,
Bipolar disorder,
Post-traumatic stress disorder,
Obsessive-compulsive disorder, and
Schizophrenia.

Note: The list isn't an exhaustive one, so examples not listed in the proposed regulation could still consistently meet the definition of disability.

Can You Be Legally Fired If Your Disability Requires More Than 12 Weeks Of Unpaid FMLA Leave?

2009-09-25T20:58:37Z

Can disabled workers be terminated after being away from work for more than the 12 weeks under the federal Family and Medical Leave Act (FMLA)? The answer is usually no. Often these workers have been informed by their company's HR department that if they cannot return to work after 12 weeks, they will be terminated. In most cases the extended unpaid leave will be considered a reasonable accommodation of a disability. Therefore, the failure to provide the accomodation and the resulting termination violates the Americans With Disabilities Act (ADA) and legal action should be taken.

Pregnancy Discrimination Act - An Overview

2009-08-07T21:00:30Z

The PDA amends Title VII to prohibit an employer from treating pregnancy, childbirth, or related medical conditions any differently than it treats other temporary disabilities for purposes of employment, including hiring, firing, promotion, seniority, leaves of absence, benefits, pay increases, and other terms or conditions of employment.

The PDA does not require employers to treat pregnant employees in any special manner with respect to employment-related matters, to establish any new programs where none currently exists, or to provide pregnancy-related disability leave to any employees.

Coverage

Employers with at least 15 employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year are covered by the PDA. In addition, an employer with a significant number of part-time employees might be covered, even though fewer than 15 individuals are scheduled to work on any one day.

Pregnancy Leave

An employer may not pre-establish the following.

A mandatory beginning date for maternity leave (e.g., beginning of third trimester). An employer cannot force an employee to take time off for pregnancy or a pregnancy-related condition, unless the condition prevents the employee from being able to do her job.
A length of time for maternity leave (e.g., at least four weeks after the birth). A woman who has given birth must be allowed to return to her job when she can perform it if other employees who have been absent because of a temporary disability are allowed to return to work as soon as they are able. If a doctor's statement is required to establish return dates for pregnant workers, a similar statement must be required for employees on disability leave for other reasons.

Reinstatement

Reinstatement rights of women on leave for pregnancy or pregnancy-related reasons are protected to the extent employees on other types of disability leave have such rights. Such rights include return to the same or an equivalent position, seniority, and retirement benefits.

Benefits

Any benefits provided to employees with temporary, long-term, or permanent disabilities must also be available to employees disabled by pregnancy-related conditions. Examples: paying disability benefits, health and life insurance premium payments, pension accrual, and profit-sharing plans.

If an employer offers different health plans for employees to choose from, each plan must cover pregnancy-related conditions and the deductible for such conditions must be the same.

If an employer's insured health plan denies coverage for pre-existing conditions, that plan may deny coverage for a pregnancy that exists at the time that the coverage became effective. However, an employer is prohibited from applying any such limit differently for pregnancy-related conditions than for other medical conditions.

The PDA does not require that an employer health plan provide dependent or spousal coverage. If a plan restricts coverage to employees, additional coverage is not required.

If the medical expenses of employees' spouses are covered under the employer's plan, pregnancy-related expenses of a male employee's wife must receive the same coverage. However, a pregnant spouse does not necessarily have to receive the same coverage as a pregnant employee.

Teen Sexual Harassment In The Workplace

2009-06-02T03:38:40Z

Every year hundreds of thousands of teen workers in the United States are subjected to unlawful sexual harassment. The teen employees are typically subjected to sexual harassment by their supervisors. They are subjected to harassment for numerous reasons including their age and relative inexperience in the workplace, low pay, and the threat of being easily replaced. Many teens simply do not know what legal protections they have in the workplace including the right to be free from sexual harassment and gender discrimination. A PBS recently aired a story on this subject featuring a young lady that was subjected to sexual harassment in the workplace. The video has been posted below.

Third Circuit Rules That Court Can Award Extra Compensation For Taxes

2009-04-25T16:20:56Z

The Third Circuit Court of Appeals has held that trial judges can increase a plaintiff's award to account for the increased taxes she would have to pay on a lump-sum back pay award. With the decision, the Third Circuit has joined the Tenth Circuit and rejecting the reasoning of the D.C. Circuit which ruled in 1994 that winning plaintiffs are never entitled to such an award. The Third Circuit in the case of Eshelman v. Agere Sys. Inc., 2009 WL 223858 (3d. Cir. Jan. 30, 2009) found that one of the main purposes of the employment discrimination statutes is to make whole those who have been injured as a result of illegal bias on the job. Back pay awards are taxable. Consequently, employees receiving back pay awards may be subject to higher taxes if they receive a lump sum back pay award in a given year. In other words, the lump sum back pay award can place the employee in a higher tax bracket for that year. In order to make the employee while, the defendant should be required to pay the increased tax burden. In addition, the defendant is responsible for prejudgment interest which compensates the plaintiff for the loss of the use of the money the employee would have earned.