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“Childbearing capacity” discrimination

March 20th, 2014  |  Kathy Kapusta  |  Add a Comment

While, as the saying goes, you can’t be “just a little bit pregnant,” a federal district court in Michigan recently stated that adverse employment actions taken on account of “childbearing capacity,” are valid claims under Title VII. Although the court was not willing “to go as far as to conclude that a non-pregnant plaintiff” could bring a Pregnancy Discrimination Act claim if in-vitro fertilization was being used, it refused to dismiss an employee’s allegations that she was targeted for her intent to become pregnant after announcing that she would be undergoing IVF. In the court’s opinion, the employee properly characterized her claim as one for “childbearing capacity” discrimination.

In this case, the employee, a lead dental instructor, told her supervisor that she would be undergoing IVF in an effort to become pregnant. While receiving the treatment, her supervisor allegedly told her she had to work as a “teaching assistant” instead of a lead instructor to accommodate the procedure and allow her to sit and told her to work sitting down “because you are being pumped with so many hormones.” After completing the procedure, the employee took a week off. On the day she returned to work, she suffered a miscarriage.

Too focused on babies. The employee alleged that she was demoted the next day, her job title was officially changed the next week, and her job status changed from full-time to part-time. She claimed that her supervisor told her shortly thereafter that she was “not a good cheerleader in the classroom” and was “more focused on babies.” The supervisor also allegedly asked her if she intended to have additional medical procedures “regarding her desire to bear children.” Not surprisingly, the employee sued, asserting gender discrimination claims under Title VII, Michigan’s Elliot-Larsen Civil Rights Act, and the PDA.

Use of IVF. The court initially observed that the majority of lower courts agree with the Sixth Circuit that pregnancy is a necessary prerequisite to a PDA claim. As to the specific issue of whether the PDA applies to women who are receiving IVF, however, the court pointed out that only the Seventh Circuit has ruled that it does. Unwilling to find that a non-pregnant plaintiff who is using IVF falls under the PDA’s protections, the court agreed that adverse employment actions taken on account of childbearing capacity affect only women and are therefore valid claims under Title VII.

PDA claim. As to her PDA claim, the court noted that she alleged that she was pregnant and suffered a miscarriage; that she was qualified for the lead dental instructor position; and that she was an excellent employee who received good performance reviews and merit increases. Although the employer argued that she was demoted because she had not yet received a required certification, the court found that her allegations were sufficient to make an initial showing that she was qualified for her job.

Moreover, her allegation that she had a miscarriage implied that she was pregnant; thus, she suffered a pregnancy-related condition. Because she alleged that she was demoted the day after her miscarriage, there was a sufficient inference that her demotion was caused by her miscarriage. Thus, she stated a plausible claim under the PDA.

Gender discrimination. The employee also alleged that she was demoted and phased out of a job for which she was qualified because of gender discrimination based on her desire and ability to become pregnant. Here, the court observed that the U.S. Supreme Court, in Int’l Union v Johnson, has held that gender discrimination claims based on childbearing capacity fall under Title VII’s protection. Noting that the employee’s particular method of trying to become pregnant was through IVF, the court pointed out that courts are split as to whether firing an employee who has taken time off to undergo IVF is permissible under Title VII.

Childbearing capacity discrimination. Declining to reach this issue, the court stated that the employee did not claim that was why she was fired. Rather, she contended that she was specifically targeted because of her desire to become pregnant and bear children. Childbearing capacity discrimination, which is gender-based, is exactly the type of discrimination that Title VII was designed to cover in order to combat the view of women as marginal workers, the court stated.

Noting that the reasoning behind Title VII supports the employee’s claim, the court observed that she was a member of a protected class by virtue of being a woman. She also alleged that she was qualified for her job, that she was an excellent employee who received good performance reviews and merit increases, and that other similarly situated employees who were not seeking to become pregnant were treated more favorably.

In addition, she alleged that after she made it known that she was attempting to become pregnant through the use of IVF, and after her miscarriage, her employer became concerned about “future endeavors into child bearing.” Moreover, other similarly-situated employees, who were not seeking to become pregnant and had similar records and positions, were not demoted or terminated. Further, the employee contended that her employer’s reasons for demoting her and terminating her were pretextual. Although the employer disputed the employee’s qualifications for the position, the court pointed out that factual disputes were not before it on a motion to dismiss. Accordingly, the employee was able to advance her claim.

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Blogs identify legal gaps and foster a sense of community

March 13th, 2014  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Okay, I admit it, when I first started writing blogs for Employment Law Daily I thought that most blogs are only written for two reasons: marketing and pumping up one’s ego. No doubt marketing actually is one main reason, as evidenced by the proliferation of ghostwriting bloggers who post for firms. And there is a certain ego boost when a blog you have written is well received. But what has truly surprised me is the other value I have seen in both reading and writing legal blogs, including the comment section.

Blogs identify trends and gaps in the law for the unwary. Bloggers hale from all over the U.S. and when a similarity of headlines crops up, it signals that either the issue is just emerging (making it interesting fodder for discussion) or that it is something the legal community is struggling with. For example, there were a slew of blogs on:

  • The EEOC’s questionable litigation tactics and its overstepping during the conciliation process.
  • Ownership of social media accounts given the lack of precedent and legislation on the issue.
  • Whether obesity should be a disability under the ADA.

This list could go on and on. Plus, if you want a big picture of main trends, just take a look at the many “top ten” (or “recap”) blogs for the year. The point is this: Blogs have real substantive value. Good blogs can provide legal summaries on key issues, links to primary sources, and practical advice. In many ways, there is as much value to be gained from reading blogs as there is by attending continuing education, though you won’t get course credit for it.

If you are lucky, someone will disagree. For many years my Dad wrote a column for a local newspaper in a small community. He was always tickled when a column sparked a debate among neighbors and he loved getting responses from those who strongly disagreed because it gave him new ways of looking at an issue. To me, legal blogging and commenting also foster the exchange of ideas. For the blogger, instead of discussing an issue with a coworker who has a reason to not offend you, you are putting your thoughts to a large professional community. If you are lucky, someone will disagree with you.

Blogs foster a sense of community. Let’s assume for a moment that: not everyone enjoys “networking” with total strangers at conferences or professional events; many professionals are too busy to regularly attend such functions; and many do most communicating electronically, perhaps because it saves time, avoids “telephone tag,” or because they are telecommuting from a remote location. From my point of view, blogs enable such individuals to more fully enjoy the exchange of ideas and the sense of society that they might otherwise miss. Even for individuals who do regularly make time for conferences, social sites with their blogs and comments provide a way to glean additional insight on issues of particular interest. For my part, I have found a few blogs and comments intriguing enough to reach out and ask the writer to consider submitting an article for the daily news report published by my employer.

Free advertising, but only if you are good. The question of whether a blog is free advertising turns on who your readers are. For example, I doubt a potential client is going to do an Internet search and choose an attorney based on a blog. It would have to be a blog on the individual’s legal issue, written by an attorney in the same geographic area, and the client would have to be a layperson with enough legal knowledge to understand the substance of the blog. That said, I do believe blogs are free advertising – but only if they are good. Good blogs will be noticed by others in the legal community and it is from them that an attorney might possibly garner a referral. And posting good blogs on a regular basis can help distinguish one professional from the rest.

Blogs are fun. The last thing I will say about blogs is that they are fun both to read and write. Blogs are where attorneys and other professional often go beyond plain old analysis and say what they really think about a particular court decision, agency action, or proposed legislation. That sense of irreverence is just the kind of fun you get at happy hour with coworkers – but who has much time for that?

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Employees find Facebook postings not entirely their own

March 11th, 2014  |  Ron Miller  |  Add a Comment

It’s an open secret that human resource professional regularly examine the Facebook and other Internet postings of job applicants to determine if an individual has some issue that make him or her an unsuitable job candidate. It has been suggested that younger generations even have a diminished expectation of privacy in their personal lives than past generations came to expect. Facebook and other forms of social media have become ubiquitous in the lives of a large segment of our population. For some individuals such postings provide not only a means of keeping in touch with friends, but also offer an outlet for frustrations. However, recent cases once again illustrate that in the employment context employee Facebook postings are not just their own.

Confidentiality agreement breach. A discharged headmaster violated the confidentiality clause in his age discrimination settlement agreement by telling his daughter his case had settled, which she then trumpeted to approximately 1200 Facebook friends, many of whom were either current or past students at the school. As a consequence, the headmaster was precluded from enforcing the settlement agreement, ruled a Florida state court of appeal in Gulliver Schools Inc v Snay.

The parties signed the agreement to settle the age discrimination and retaliation claims of the school’s former headmaster based on the nonrenewal of his contract. Only four days after the agreement was signed, the school contacted its former employee to let him know that he had breached the confidentiality clause of the agreement based on the Facebook posting of his college-age daughter, which said “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

“Before the ink was dry,” commented the court, the headmaster “violated the agreement by doing exactly what he had promised not to do.” Moreover, his daughter then did precisely what the confidentiality agreement was designed to avoid, broadcasting to the school community that the headmaster had been successful in his age discrimination and retaliation case.

Confederate flag posted. A deputy police chief at a public university, who was demoted after posting the image of a Confederate flag on his Facebook page was barred from proceeding with his First Amendment retaliation claims, a federal district court in Georgia ruled in Duke v Hamil.

Days after the 2012 presidential election, the officer posted on Facebook an image of the Confederate flag with an accompanying phrase, “It’s time for the second revolution.” Although he intended the image only to be shared with those people with direct access to his Facebook page, someone provided the image to a local television station, which ran a story on the evening news. The story identified his position as a deputy chief with the university police department. Thereafter, the police department received anonymous complaints, and a subsequent investigation by the university resulted in his demotion, and a $15,000 pay cut.

The officer claimed he was expressing his dissatisfaction with Washington politicians. However, the court noted that employers deserved wide latitude in management and needed to be able to take action against employees who disrupted the efficient operation of government. This interest in efficient public service was particularly strong in the context of police departments, which have a particular need to maintain a favorable public reputation. Here, the court determined that the employer had an interest in maintaining its reputation, and good working relationships outweighed the officer’s First Amendment interest.

Facebook rant. Facebook comments by a child protective services caseworker that disparaged clients irreparably impaired her workplace effectiveness, her credibility, and her impartiality as a witness and provided a legitimate basis for her termination, a federal court in Oregon in Shephard v McGee. Applying the five-part Pickering balancing test, the court determined that the employer had a legitimate administrative interest in terminating the employee that outweighed her First Amendment rights.

As a child protective services caseworker who worked closely with attorneys from the district attorney’s office, the employee acknowledged that every case had the potential to end up in court. Her job was “to be a neutral appraiser of the settings in which the children live.” On her Facebook page, she identified her job and her employer, and she had hundreds of friends — including a judge, several district attorneys and defense attorneys, and over a dozen law enforcement officers. She posted Facebook comments complaining about clients with expensive cars, flat screen TVs, etc., who were receiving public assistance. In addition, she posted her own rules for society. Someone forwarded her comments to the department’s HR manager and after an investigation she was fired.

According to her own testimony, the employee had to testify in juvenile court hearing six to eight times per month. Moreover, the attorneys with whom she worked most closely agreed that the caseworker’s bias would have to be disclosed to opposing counsel in all cases. Because the attorneys relied heavily on her ability to present her information in a clear and impartial manner; they feared that as a result of the content of the Facebook posts, they would never be able to call her to the stand due to her credibility being terminally and irrevocably compromised. That these attorneys doubted her was itself a disruption to working relationships and evidence that her ability to perform her job already was impaired, said the court.

Internet posts a “gamble.” Even though these Facebook postings were intended to be viewed by close friends and family, they illustrate the “gamble individuals take in posting content on the Internet.” As the cases illustrate, it is not necessary that the employee’s comments directly impugn an employer to be regarded as against the employer’s interest so as to justify action on its part.

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Bill requiring employers to accommodate pregnant workers passed by West Virginia Senate

March 7th, 2014  |  Deborah Hammonds  |  Add a Comment

The West Virginia Senate has passed legislation requiring employers to provide reasonable accommodations related to pregnancy and childbirth. The Pregnant Workers Fairness Act, HB 4284, was overwhelmingly approved on March 6.

Introduced in the House on January 24, 2014, by Delegate Don Perdue, HB 4284 would amend the Code of West Virginia to make it an unlawful employment practice for covered entities to:

  • Fail to make reasonable accommodations to an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions, following written documentation from a health care provider specifying the limitations and suggesting what accommodations would address those limitations, unless the covered entity can demonstrate the accommodation would impose an undue hardship on the operation of the business;
  • Deny employment opportunities, if the denial is based on the covered entity’s refusal to make reasonable accommodations to known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant;
  • Require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the applicant or employee chooses not to accept; or
  • Require an employee to take leave under any leave law or covered entity policy if another reasonable accommodation can be provided for the employee’s known limitations related to the pregnancy, childbirth, or related medical conditions.

“Reasonable accommodation” and “undue hardship” would have the same meaning and be construed in the same manner as in Section 101 of the ADA.

HB 4284 also includes protections against retaliation for those who exercise their rights under the new law.

The legislation now moves to the Governor’s desk.

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Federal magistrate recommends court grant DOL/OFCCP’s motion to remand Frito-Lay, Inc’s challenge to ARB ruling

March 5th, 2014  |  Cynthia L. Hackerott  |  Add a Comment

A federal magistrate has issued an order recommending that a district court in Texas grant the U.S. Department of Labor’s (DOL) and OFCCP’s motion to remand back to the department’s Administrative Review Board (ARB) a case in which federal contractor Frito-Lay, Inc is challenging a 2012 ARB ruling in favor of the OFCCP on the contractor’s objection to an OFCCP data request. The magistrate also recommended that the DOL/OFCCP’s pending motion to dismiss and that Frito-Lay’s pending motion for summary judgment be denied without prejudice as moot. (Frito-Lay, Inc v US Dep’t of Labor, NDTex, No 3:12-cv-1747-B-BN, February 11, 2014, released March 3, 2014)

Those closely following OFCCP developments may have noticed that the ARB decision at issue in this case was cited in the preamble portions of the OFCCP’s final rules revising the agency’s regulations on protected veterans and workers with disabilities as part of the justification behind revising the sections of those regulations regarding compliance reviews.

Frito-Lay’s complaint. On June 5, 2012, Frito-Lay, Inc filed a complaint in the U.S. District Court for the Northern District of Texas challenging the ARB’s ruling that the temporal scope of the desk audit phase of an OFCCP compliance review could be extended beyond the date that the contractor received its audit scheduling letter. Specifically, the ARB found that the temporal scope could be extended because a deficiency in Frito-Lay’s data motivated the OFCCP’s request for more information. The challenged ruling, a “Final Administrative Order” issued by the ARB on May 8, 2012 (OFCCP v Frito-Lay, Inc, ARB Case No 2010-132), reversed a 2010 ruling by an Administrative Law Judge (ALJ Case No 2010-OFC-002) in favor of Frito-Lay. The contractor’s complaint asserts that the ARB’s decision ordering the company to comply with the OFCCP’s data requests violated the Administrative Procedure Act (APA) and the Fourth and Fifth Amendments to the U.S. Constitution. The case was referred to the magistrate judge for pretrial management.

Motions. The defendants — the DOL and the OFCCP — filed a motion to dismiss or, in the alternative, for summary judgment based on the administrative record. Frito-Lay then filed a motion for leave to obtain discovery, which the court granted in part. The parties then resumed briefing on the DOL/OFCCP’s motion to dismiss, and the contractor filed its own motion for summary judgment. Shortly thereafter, the DOL/OFCCP filed their motion for remand based on errors in the ARB record.

DOL’s remand request. Both sides agreed that the ARB decision at issue was made based on a record that contained an error in the description of an alleged disparity in hiring of male and female candidates at Frito-Lay’s “Dallas Baked” facility in Dallas, Texas. However, the DOL/OFCCP and the contractor disagreed on the extent of errors in the record.

In their memorandum in support of the remand motion, the defendants explained that the challenged ARB decision was based on the ARB’s reliance on an allegation in the OFCCP’s administrative complaint that an initial analysis of certain “full-time entry-level” positions at one of Frito-Lay’s facilities “showed a disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations with a shortfall of 9 females.” However, in a declaration filed with the federal court, Aida Collins, Acting Deputy Regional Director of the Southwest and Rocky Mountain Region of OFCCP, stated that the 3.26 standard deviations applied to a combined analysis of both full-time and part time positions, not just full-time positions. This error was also identified in Frito-Lay’s motion for summary judgment.

The contractor further contended there were other errors in the initial analysis, including the scope of the analysis – it represented two warehouses, not one as the agency claimed – and the job titles – both material handlers and packers were covered. In addition, Frito-Lay asserted that the OFCCP miscounted the total number of applicants, the number of male and female applicants, and the number of new hires for the full-time material handler position at the Dallas Baked Snack facility.

In any event, the DOL/OFCCP argued that the case must be remanded to the ARB to give the OFCCP the opportunity to correct the record and to determine whether the corrected record alters the ARB’s decision.

Frito-Lay’s response. The contractor responded that the DOL/OFCCP did not articulate any legally-supportable grounds for remand. In addition, Frito-Lay argued that the ARB’s decision should be vacated due to the undisputed deficiencies contained therein, that a court-ordered remand would be either arbitrary and capricious or futile, and that a remand at this stage would be premature.

Remand standards. After reviewing applicable case law, the magistrate concluded that “the true issue with respect to remand is whether voluntary remand is appropriate under the circumstances” and that “there are no hard and fast rules as to when voluntary remand is appropriate.” Nevertheless, “it is somewhat clear that granting a voluntary remand is only appropriate when such an action would not be arbitrary and capricious and occurs within a reasonable time,” the magistrate observed.

Arbitrary and capricious? With respect to whether a voluntary remand would be arbitrary, capricious, or an abuse of discretion, courts appear to focus on whether the agency’s request for remand has been made in bad faith, the magistrate noted. In this case, the ARB relied on admittedly incorrect evidentiary allegations. Although the corrected evidence was not new, it appears that the ARB did not consider it for a variety of reasons that did not involve bad faith on the part of the DOL/OFCCP. The department and the agency did not stall in recognizing the merits of Frito-Lay’s challenges and admitted the alleged errors once they were discovered, the magistrate pointed out, adding that there has been no evidence of a pattern of legal tactics to avoid judicial review on the DOL/OFCCP’s part. As such, there was nothing to suggest that the DOL’s remand request was made in bad faith, the magistrate found. Moreover, as explained in more detail below, even if Frito-Lay prevailed on its summary judgment motion, it is likely the case would be remanded, even taking into consideration the contractor’s constitutional and other claims, he reasoned.

Reasonable time frame? Further review of the relevant case law led the magistrate to conclude that “apparently no true rules exist” as to what constitutes a reasonable time frame in which a remand is appropriate. Federal court rulings on this issue have been inconstant, he noted, citing various examples. “The only guideline to be gleaned from the cases is that courts analyze the facts of each case in an effort to reach an equitable outcome,” he wrote.

Here, the magistrate found that the amount of time that has passed – 20 months – was reasonable in light of the circumstances. While the period of time that elapsed between the ARB’s findings and the magistrate’s recommendations was “substantial,” it was not unreasonable because, once the DOL/OFCCP became aware of the error, they moved to remand the case and there was no indication that the defendants failed, or delayed, to inform Frito-Lay of the potential error, or their intention to seek remand, once it became known to them.

Vacatur not appropriate. The magistrate also recommended that the DOL/OFCCP’s motion for voluntary remand should be granted, without the court addressing the merits of the ARB’s ruling. In the absence of a finding that the ARB’s decision was arbitrary and capricious, or otherwise unlawful, a ruling vacating or setting aside the ARB’s final order would premature. Further, because the DOL/OFCCP conceded that the foundation of the ARB’s ruling must be reexamined, the court should not consider how it would rule if the record that was before the ARB were different from what it actually was, the magistrate reasoned. As such, the ARB’s ruling should not be set aside or vacated at this juncture.

Thus, he recommended that the court remand the case “for the limited purpose of examining the alleged error related to the allegation that the ‘disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations.’”  The ARB relied on that allegation in deciding to order Frito-Lay to produce the contested information, and the parties agree that the allegation, as stated, is incorrect. Accordingly, the court should order that, on remand, the ARB is only to reconsider this allegation and surrounding facts, the magistrate concluded.

He also disagreed with Frito-Lay’s assertion that any finding on remand would be arbitrary and capricious as a matter of law because a raw data analysis can never support a finding of discrimination. Such a finding would be premature, the magistrate explained, because the ARB’s ruling related only to whether additional discovery was permissible, rather than any ultimate determination regarding discrimination that may be rendered by the OFCCP. If the agency should ultimately determine that the contractor has discriminated, that determination could be challenged by Frito-Lay if it is not supported by substantial evidence, including the raw data analysis.

Remand not premature. Finally, the magistrate rejected Frito-Lay’s assertion that a remand at this stage would be premature. To begin with, to the extent that the constitutional claims alleged by the contractor relate to the ARB’s reliance on the error which is the subject of remand, any such claims will be mooted by the remand, he pointed out.

Further, Frito-Lay’s constitutional challenge is unripe for judicial review because, in light of the recommended remand, any claims that the procedure undertaken by the DOL/OFCCP was unconstitutional will not yet be ripe because the agency ruling is not yet final insofar as it is remanded for reconsideration of a limited portion of the ARB’s final order. Moreover, future uncertainties exist because there is no guarantee what the OFCCP’s and the DOL’s decisions will ultimately be. It is possible that the OFCCP could decide not to pursue their investigation on remand, the magistrate noted.

Therefore, the magistrate recommended that: (1) the DOL/OFCCP’s motion for voluntary remand be granted for the limited purpose articulated in his recommendation, (2) the remaining motions should be denied without prejudice in light of the administrative remand, (3) Frito-Lay’s claims should be dismissed without prejudice to them being refiled, if appropriate, at a later date, and (4) the case should be closed.

ARB ruling cited in newly revised regulations. Notably, the ruling at issue in this case the ARB’s May 8, 2012 decision was cited by the OFCCP in the preamble portions of the September 24, 2013 Federal Register notices on the agency’s final rules revising its regulations that implement the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 (Section 503). The preambles of both notices (78 FR 58614–58679 at 58641 and 78 FR 58682-58752 at 58711- 58712) state the OFCCP’s position that the ARB’s ruling in Frito-Lay, Inc, which applied to the regulations that implement Executive Order 1126, is equally applicable to desk audits conducted under VEVRAA and Section 503 authority. Accordingly, the provisions of both regulations that cover compliance reviews (41 CFR Parts 60-300.60(a)(1) and 60–741.60(a)(1)) have been revised to reflect the “OFCCP’s longstanding position that the agency has authority to obtain information pertinent to the review for periods after the date of the letter scheduling the review, including during the desk audit,” the agency writes in both preambles.

In a September 13, 2013 webinar, Naomi Levin, who serves in the OFCCP’s Division of Policy, Planning and Program Development as the Branch Chief for Policy Development and Procedures, said that the revised VEVRAA and Section 503 regulations now “clarify” that the OFCCP may need to examine information after the date of the audit scheduling letter. Levin echoed the assertion made in the preambles that these provisions are not a new policy, but rather clarify existing policy.

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