Hunton Employment & Labor Perspectives

Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

According to recent federal court decisions, a shareholder, director, or other individual holding a similar position in a corporation may find his or her job status disqualifies him or her from legal relief under many state and federal anti-discrimination laws should such individual believe that he or she has been the subject of unfair treatment in the workplace. In Kirleis v. Dickie, McCamey & Chilcote, P.C., No. 09-4498 (3rd Circuit July 14, 2010), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a law firm shareholder was not an “employee” of the professional corporation protected by federal and state anti-discrimination laws.

An Indiana nursing home was found in violation of Title VII this month for acceding  to a resident’s request for white-only healthcare providers.  In Chaney v. Plainfield Healthcare Ctr., No. 09-3661 (7th Cir. July 20, 2010), a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit reversed a lower court’s ruling in favor of the nursing home and held that this was a clear violation of Title VII.

The nursing home, Plainfield Healthcare Center (“PHC”), housed a resident who did not want assistance from black nursing assistants.  PHC complied with this racial ...

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

Think you are doing your pregnant employee a favor by taking her off a big account to give her some time “for herself”?  Think again!  You may just be opening yourself up for a lawsuit.

Most employers have never heard of Family Responsibilities Discrimination (“FRD”).  FRD is an umbrella term for workplace discrimination based on stereotypes about how employees with family caregiving responsibilities will or should act.  For example, an employer may assume that a new mother will not be as committed to her career or as reliable as she was before she had a baby.  Or an employer might believe that a mother “should” be home with her children and may refuse to give her assignments that require travel or late hours. The discrimination arises because the employer’s actions are based on stereotypical beliefs, rather than on the individual employee’s performance or own desires.  And family caregiving is not just limited to childcare.  In fact, an increasing proportion of caregiving is devoted to the elderly and disabled. As with childcare, women are disproportionately responsible for caring for their relatives, including parents, spouses, and other relatives.

For those who thought the proposed Paycheck Fairness Act had faded away, here is a wake-up call.  After more than a year since the bill was passed by the House of Representatives and introduced in the Senate, the Senate Committee on Health, Education, Labor and Pensions is holding a new hearing on March 11 to focus on equal pay issues.

A new proposed rule by the Equal Employment Opportunity Commission provides new guidance in determining what constitutes a “reasonable factor other than age” in defending against a claim under the Age Discrimination in Employment Act.  The EEOC introduced the proposed rule on February 18, 2010 and is currently soliciting comments until Monday, April 19, 2010.

The Obama Administration announced on February 1, 2010, that it requested $385.3 million for the Equal Employment Opportunity Commission for fiscal year 2011.  In addition, the administration requested $162 million for the Civil Rights Division of the Department of Justice.  Significantly, the requests represent an $18 million dollar budget increase for the EEOC and a $17 million dollar budget increase for the DOJ Civil Rights Division.

The EEOC reported that workplace discrimination charges reached near-record highs in 2009.  According to the EEOC, there were 93,277 charges filed in fiscal year 2009 -- the second-highest level in its history. 

Earlier this year, the U.S. Supreme Court issued a decision in Ashcroft v. Iqbal that clarified and, indeed, amplified the pleading requirements in federal lawsuits.  Essentially, the decision held that a complaint is insufficient to state a claim if it merely states legal conclusions and does not include specific factual allegations supporting the claim.

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.

In August 2009, the Obama administration named Patricia A. Shiu the new Director of the Office of Federal Contract Compliance Programs (OFCCP).  The OFCCP, part of the Department of Labor (DOL), enforces the non-discrimination and affirmative action obligations of federal contractors under Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, and the Rehabilitation Act.

On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver ...

President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.