In a recent fact sheet, the EEOC discussed a set of questions that seem odd at first glance, and illustrate a broad trend of its expanding focus.
The agency, which has recently addressed employees’ and applicants’ credit reports, high school education (or lack thereof), sexual orientation, and arrest history, is now shifting gears yet again. This time it’s addressing how to apply Title VII (and the ADA) to victims of domestic violence, sexual assault, and stalking.
It notes that domestic violence or stalking victims are not a protected class under Title VII, but explains that adverse action based on sexual stereotypes regarding domestic violence can violate Title VII. For example:
- An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
- A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
- An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”
While these are obviously more blatant violations, it highlights a growing trend of the EEOC digging deeper to look at underlying factors in discrimination cases.
The latest ruling in a series of same-sex marriage cases was issued this week from the New-York based Second Circuit Court of Appeals, finding that the federal Defense of Marriage Act is unconstitutional. The act, DOMA, prohibits federal recognition of same-sex marriages. It’s the second federal appeals court to find it unconstitutional. Other courts have found state prohibitions on same-sex marriage unconstitutional as well. Many experts are predicting the issue will land before the Supreme Court during the current term, which runs from October through June.
The rulings, which are already impacting federal employees’ benefits, could have a similar impact on private-sector employee benefits if the Supreme Court invalidates laws prohibiting same-sex marriage. Some employers have started getting ready by extending benefits to same-sex partners, but others are adopting a wait-and-see approach given the uncertainty before a definitive ruling.
In any event, employers should expect to revisit this issue sometime soon.
A recent case from the Eighth Circuit Court of Appeals held that a company shifting its workweek from a typical Sunday-to-Saturday week to a Tuesday-to-Monday workweek to reduce overtime was okay under the Fair Labor Standards Act. The natural gas drilling company’s employees worked the same Tuesday-to-Monday seven-day shift, but the redefinition eliminated a substantial amount of overtime by splitting the seven-day shift into two separate workweeks.
The court said the shift didn’t violate the FLSA’s rule prohibiting shifting workweeks to “evade” the FLSA’s overtime requirements, saying there was no clear standard on what “evading” means in this context.
The company admitted it shifted the workweek to reduce overtime exposure, but that wasn’t enough for the court to find it “evaded” the overtime requirements. It still paid for all overtime its employees worked.
Bloomberg’s Businessweek offers some sound advice for small business owners facing legal threats by former employees. First, from a business owner, the delightful description of being on the receiving end of those threats:
For anybody who goes through the blood, sweat, and tears of starting a business, when someone comes along with an attorney whose No. 1 goal is to extract money, it produces stress and lack of sleep.
There is, however, some very good advice, including:
- Don’t ignore it
- Check if your insurance will cover you
- Call your attorney
- Save all documents that could be relevant
- Don’t try to settle the score personally
After a surprising announcement this week that Citigroup CEO Vikram Pandit was stepping down, talk turned to how much he would take with him. Turns out it may not be all that much.
Bloomberg reports that, depending on how he resigned and whether the board gives him something additional, Pandit could have walked away from $33 million in deferred compensation and unvested stock options.
But don’t feel too bad–including his payment from Citigroup to buy his hedge fund, he hauled in over $200 million since taking the job in 2007.
The EEOC reports that a federal judge in Utah was so overwhelmed in a recent case by a construction company’s hostility toward African-American employees that he didn’t even give the company a chance to defend itself.
Typically, employers can defend themselves by showing they had reasonable policies that employees failed to follow in reporting harassment or discrimination. In this case, though, the judge was so convinced by what he heard that he didn’t even let the company try. The worksite was so bad, he said, and the evidence of the company’s failure was so strong, that the worksite was a hostile work environment as a matter of law.
Needless to say, the judge also denied the company’s motion to sanction the plaintiffs for filing a frivolous case.
It’s no secret that employment law claims can add up, but just how high?
One group tried to find out, and ended up compiling the 25 most expensive employment-law settlements and verdicts over the past twelve months.
The ultimate verdict? Be very careful how you treat your employees.
- Mercy General Hospital (Sacramento, CA) will pay $168 million in a sexual harassment lawsuit judgment.
- ArcelorMittal (Buffalo, NY) will pay $25 million in a race discrimination lawsuit judgment.
- Dr Pepper Snapple Group (Chicago, IL) will pay $18.3 million in an age discrimination lawsuit judgment.
- YRC/Yellow Transportation (Chicago Ridge, IL) will pay $11 million to settle an EEOC race harassment and discrimination lawsuit.
- Tesoro Refining and Marketing Company (Los Angeles, CA) will pay $8.5 million in a disability discrimination lawsuit judgment.
- Cook County (Chicago, IL) will pay $7.6 million in a race discrimination lawsuit judgment.
- Lennox Industries (Richardson, TX) will pay $6.2 million to settle an age discrimination lawsuit.
- Aaron’s Inc. (Fairview Heights, IL) will pay $6 million to settle a sexual harassment lawsuit.
- Sears (Sacramento, CA) will pay $5.2 million in a race discrimination lawsuit judgment.
- AT&T (Kansas City, MO) will pay $5 million in a religious discrimination lawsuit judgment.
- Chrysler (Belvidere, IL) will pay $3.8 million in a race and religious discrimination lawsuit judgment.
- Passaic County (Passaic County, NJ) will pay $3.7 million in an age discrimination lawsuit judgment.
- D.C. Department of Parks and Recreation (Washington, DC) will pay $3.5 million in a sexual harassment lawsuit judgment.
- Rite Aid (Los Angeles, CA) will pay $3.5 million in a disability discrimination lawsuit judgment.
- Pepsi (Minneapolis, MN) will pay $3.13 million to settle an EEOC race discrimination lawsuit.
- CSX Transportation (Danville, WV) will pay $2.6 million in a sexual harassment lawsuit judgment.
- Qwest Communications (San Francisco, CA) will pay $2.3 million in a sexual harassment lawsuit judgment.
- Fry’s Electronics (Seattle, WA) will pay $2.3 million to settle a sexual harassment lawsuit.
- Hoffmann-La Roche (Las Vegas) will pay $1.9 million in an age discrimination lawsuit judgment.
- US Department of Veterans Affairs (Union Grove, WI) will pay $1.8 million in a retaliation lawsuit judgment.
- Mary Ann’s Mexican Restaurant (New York, NY) will pay $1.6 million in a sexual orientation and religious discrimination lawsuit judgment.
- Clallam County (Seattle, WA) will pay $1.6 million to settle an age discrimination lawsuit.
- City of Burbank (Burbank, CA) will pay $1.3 million in a retaliation lawsuit judgment.
- Henry’s Turkey Service (Goldthwaite, TX) will pay $1.3 million to compensate former employees in a disability discrimination lawsuit judgment.
- Ferguson Enterprises (Detroit, MI) will pay $1.2 million in a sexual harassment lawsuit judgment.