EMPLOYMENT LAWS YOU NEED TO KNOW

This section is best described as a general overview of certain employment laws, which frequently arise in litigation

The statutes and employment laws mentioned below are commonly encountered in business, whether from the perspective of the employer or employee.

Older Workers Benefit Protection Act (OWBPA)

The purposes of the Older Workers Benefit Protection Act OWBPA) are to make it illegal for an employer to:

use an employee’s age as the basis for discrimination in benefits
target older workers for their staff-cutting programs, and
require older workers to waive their rights without observing certain safeguards

A primary reason Congress enacted OWBPA was to overrule the Supreme Court’s decision in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989), in which the Court “held that the ADEA permitted arbitrary age discrimination in employee benefit plans.” S. Rep. No. 101-263, at 5 (1990), as reprinted in 1990 U.S.C.C.A.N. 1509, 1510. Congress intended OWBPA to clarify that “discrimination on the basis of age in virtually all forms of employee benefits is unlawful.” Id. at 5, as reprinted in 1990 U.S.C.C.A.N. 1510. The Senate Report accompanying OWBPA emphasized that the justification of benefit reductions may only be due to corresponding cost increases to cover older workers. See id. at 5-16, as reprinted in 1990 U.S.C.C.A.N. 1515-21. Symposium: Second National People of Color Legal Scholarship Conference: You Are Not Quite as Old as You Think: Making the Case for Reverse Age Discrimination Under the ADEA, 26 Berkeley J. Emp. & Lab. L. 363, 369.

Requirements for Severance Agreements or Settlement Agreements – OWBPA

There are a number of key restrictions the Older Workers Benefit Protection Act places on severance agreements or other waivers or agreements not to sue:

The employer must make the waiver understandable to the average person eligible for the program in which the waiver or settlement agreement is being used.
The waiver may not cover any rights or claims that arise after the agreement is signed, and it must specify that it covers an employee’s rights under the ADEA.
The employer must offer the employee something of value—over and above what is already owed to the employee—in exchange for the employees signature on the waiver.
The employer must advise the employee, in writing, that the employee has the right to consult an attorney before signing the waiver.
If the offer is being made to a group of employees (as part of an early retirement incentive program, for example), the employer must inform the employees in writing how the class of employees is defined, the job titles and ages of all the individuals to whom the offer is being made, and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made.
The employee is given a period of at least 21 days within which to consider the agreement, or if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement.

The agreement provides that for a period of at least seven days following the execution of such agreement, the employee may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired. Family and Medical Leave Act (FMLA) [The following is taken from the US Department of Labor Fact Sheet on the FMLA].The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

COVERED EMPLOYERS (FMLA):

The FMLA only applies to employers that meet certain criteria. A covered employer is a:

Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
Public or private elementary or secondary school, regardless of the number of employees it employs.

ELIGIBLE EMPLOYEES (FMLA)

Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

Works for a covered employer
Has worked for the employer for at least 12 months;
Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and
Works at a location where the employer has at least 50 employees within 75 miles.
Special hours of service eligibility requirements apply to airline flight crew employees.

The 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service. See “FMLA Special Rules for Returning Reservists”.

LEAVE ENTITLEMENT (FMLA)

Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons:

The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care.
To care for a spouse, son, daughter, or parent who has a serious health condition;
For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

An eligible employee may also take up to 26 workweeks of leave during a “single 12-month period” to care for a covered servicemember with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. The “single 12-month period” for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.

Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis. That means an employee may take leave in separate blocks of time or by reducing the time he or she works each day or week for a single qualifying reason. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operations. If FMLA leave is for the birth, adoption, or foster placement of a child, use of intermittent or reduced schedule leave requires the employer’s approval.

NOTICE (FMLA)

Employees must comply with their employer’s usual and customary requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees generally must request leave 30 days in advance when the need for leave is foreseeable. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.

When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. If an employee later requests additional leave for the same qualifying condition, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

Covered employers must:

Post a notice explaining rights and responsibilities under the FMLA (and may be subject to a civil money penalty of up to $110 for willful failure to post)
Include information about the FMLA in their employee handbooks or provide information to new employees upon hire
When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA-qualifying reason, provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA
Notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee’s FMLA entitlement.

When an employee requests FMLA leave due to his or her own serious health condition or a covered family member’s serious health condition, the employer may require certification in support of the leave from a health care provider. An employer may also require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition.

JOB RESTORATION AND BENEFITS (FMLA)

Upon return from FMLA leave, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot be counted against the employee under a “no-fault” attendance policy. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

Age Discrimination and Employment Act (ADEA)

The ADEA prohibits employment discrimination nationwide based on age with respect to employees 40 years of age or older. The ADEA also addresses the difficulty older workers face in obtaining new employment after being displaced from their jobs, and arbitrary age limits.

FACTS ABOUT THE ADEA

Applies to employers in industries affecting commerce with 20 or more full-time employees. – 29 USC Section 630(b)

20 employees including overseas employees – Morelli v. Cedel (2nd Cir. 1998) 141 F3d 39, 45.
Protects US Citizens working for US employers operating abroad except where it would violate the laws of that country – 29 USC Section 623(f)(1) – Mahoney v. RFE/RL, Inc (DC Cir. 1994) 47 F3d 447, 449.
Foreign companies and their subsidiaries operating in the US are subject to the ADEA – Morelli v. Cedel (2nd Cir. 1998) 141 F3d 39, 45.

Applies to individual employees age 40 and older.

Three general types of age-related employment discrimination that may be alleged:

Discrimination by Disparate Treatment – less favorable treatment with a discriminatory motive Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 US 133, 141, 120 S.Ct. 2097, 2105
Discrimination by Disparate Impact – a facially neutral employment policy adversely affects the members of a protected group. Focuses on the consequences of an employment practice, not the purpose or motive. Griggs v. Duke Power Co. (1971) 401 US 424, 430-432, 91 S.Ct 849, 851-854.
Age-Based Harassment – refers to the creation of a hostile work environment that has the effect of unreasonably interfering with his or her work performance. Crawford v. Medina General Hospital (6th Cir. 1996) 96 F3d 830.

Defenses to ADEA claims.

Employers may enforce waivers of age discrimination claims made without EEOC or court approval if the waiver is “knowing or voluntary.” Blakeney v. Lomas Information Systems, Inc. (5th Cir. 1995) 65 F3d 482, 484.
Valid arbitration agreements between employers and employees covering the dispute are subject to compulsory arbitration and no court action can be brought. Gilmer v. Interstate/Johnson Lane Corporation (1991) 500 US 20, 26, 111 S.Ct. 1647, 1652.
Employers can discharge or discipline an employee for “good cause,” regardless of the employee’s age.
Employers can take an action based on “reasonable factors other than age.”
Bona fide occupational qualifications, seniority systems, employee benefit or early retirement plans.
Voluntary early retirement incentives.

Exceptions to the ADEA

Besides the exception for companies with fewer than 20 employees, other exceptions to the law apply, including:

Bona fide occupational qualification (BFOQ). Certain age limitations are allowable if there is a bona fide reason to implement them. The age limitation in question must be necessary in order for the worker to perform the functions of the job adequately. There must be a reasonable belief that workers over a certain age are unable to perform the job safely or it is highly impracticable or even impossible to assess each worker individually.
Bona fide seniority system. A seniority system determines benefits and wages. Reasonable factors other than age (RFOA). The employees experience, education, or skills justify different treatment.
Bona fide executive or high policymaker. Executives and people that occupy high policy making positions can be forced to retire at age 65 if they will receive a minimum annual pension benefit of at least $44,000.

ADEA Protection

ADEA protection from discriminatory practices includes:

Apprentice programs: Age limitations are only valid if an ADEA exception applies or if the Equal Employment Opportunity Commission (EEOC) grants an exemption.

Job notices and advertisements: The ADEA prohibits age specifications and limitations unless a bona fide occupational qualification exception applies.

Pre-Employment inquiries: The ADEA does allow for requests for age or date of birth information, but such requests give rise to scrutiny. These types of inquiries are not a good idea unless there is a good reason for doing so.

Benefits: The Older Workers Benefit Protection Act (29 U.S.C. 623, 626, and 630) prohibits an employer from using the age of a worker as a basis for denying benefits. In general, the employer must provide equal benefits to both younger and older workers. However, in some circumstances the law allows an employer to provide reduced benefits if the cost is the same as providing benefits to younger workers. In other cases, employers may give older workers less benefits than younger workers if they provide additional benefits that are equal to the difference.

Waiver of ADEA Rights and Claims

An employee can waive ADEA rights or claims in a settlement offer or when participating in an employment termination program or an exit incentive program (early retirement program). A valid waiver must meet certain minimum requirements, as described above.

Americans With Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 contains four titles: Title I provides the handicapped with protection from discrimination on the basis of disability of private sector employment. Title II addresses discrimination in the provision of public service by state and local governments. Title III prohibits discrimination in the provision of public services and accommodations operated by private entities. Title IV requires that telephone services be made available to persons with hearing or speech impairments.

A. Title I: Employment

Title I of the ADA prohibits covered entities from discriminating against qualified individuals with disabilities in the context of employment. Discrimination is prohibited in job application procedures, hiring, firing, training, compensation, or in “other terms, conditions, and privileges of employment.”

The definition of a covered entity under Title I is somewhat more narrowly drawn than the breadth of activities which are covered. Usually, the covered entity will be an employer, but the definition also extends to labor organizations, employment agencies, and joint labor-management committees. Employers are only subject to the anti-discrimination provisions of Title I if they are engaged in an industry which affects commerce and has at least fifteen employees. “Employers,” however, does not include Indian tribes, the United States, or tax-exempt private clubs, and “employees” does not include independent contractors.

Title I prohibits employers (or any covered entity) from denying otherwise qualified individuals with disabilities equal jobs or benefits because of their disabilities. The ADA also affirmatively requires employers to take an individual’s physical and mental limitations into consideration and imposes a duty to take steps to reasonably accommodate those limitations. Reasonable accommodations can include making alterations to the employer’s facilities or equipment, job restructuring, or providing interpreters or devices to aid the employee with a disability. Employers are relieved of this duty only by proving that the reasonable accommodations would impose an undue hardship.

What constitutes a “reasonable accommodation,” or when an accommodation will be deemed reasonable, and, therefore, required, is often vigorously litigated.

A reasonable accommodation might include providing reserved parking spaces, providing leave for medical treatment, or permitting an employee to use a guide dog at work. Accommodations must be tailored to match the individual with a disability and the specific requirements of the job.

However, even if a plaintiff establishes that the defendant knew of the plaintiff’s disability and failed to make a reasonable accommodation, the defendant can escape ADA liability by showing that the accommodation would impose an “undue hardship on the operation of the business” of the defendant. ARTICLE: THE ADA PRIMA FACIE PLAINTIFF: A CRITICAL OVERVIEW OF EIGHTH CIRCUIT CASE LAW, 47 Drake L. Rev. 761, 774-777.

B. Title II: Public Entities

Public entities, such as state or local governments, are prohibited from excluding or discriminating against qualified individuals with disabilities under Title II. Programs operated by public entities must be readily accessible to individuals with disabilities. Perhaps the most visible manifestation of Title II is the requirement that all newly constructed roads contain curb ramps at appropriate intervals. Id.

C. Title III: Public Accommodations

A public accommodation is a private entity which owns, leases, or operates a place of public accommodation such as a motel, restaurant, or service establishment. Title III prohibits discrimination on the basis of disability in “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Like Title I, Title III contains an expansive definition of discrimination which includes a failure to implement reasonable modifications or remove architectural barriers, a failure to take steps to ensure that no individual with a disability is excluded or treated differently, and the imposition of criteria which tend to screen out individuals with disabilities. For example, facilities must be designed in such a way as to be readily accessible by people with disabilities. Liability for violation of Title III may extend not only to the operator of the public accommodation, but also to architects and franchisors who retain substantial control over a facility. Id.

The ADA Amendments Act of 2008 passed the U.S. House of Representatives in June of 2008 by a 402-17 vote. The U.S. Senate approved its version of the ADAAA – a slightly different version than the House bill – by unanimous consent on September 11, 2008. Thereafter, the bill was signed into law by President Bush, who applauded the significantly expanded protections now secured for qualified disabled individuals as memorialized in the ADAAA.

The new legislation, which took effect January 1, 2009, expressly repeals the United States Supreme Court rulings of Sutton v. United Airlines Inc. and Toyota Motor Manufacturing Kentucky, Inc. v. Williams. The purpose of the repeal was to undo the narrowed definitions of the ADA and broaden its coverage through liberal expansion of the applicable definitions, particularly the definition of a disability.

Thus, the purpose of the ADA Amendments Act of 2008 was summarized as follows:

Providing a “clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” through broadening the scope of ADA protection;
Rejecting the Supreme Court decision in Sutton, which interpreted “substantially limits a major life activity” as being tied to the “ameliorating effects of mitigation measures”;
Overcoming the Supreme Court’s holding in Sutton by replacing the current ADA definition of disability with the definition of handicap spelled out under the Rehabilitation Act of 1973;
Rejecting the standards set out in the Supreme Court’s decision in Toyota Motor, where the Court held that the terms “substantially” and “major” in the definition of disability under the ADA “”need to be interpreted strictly to create a demanding standard for qualifying as disabled,'” and that “substantially limited” requires an individual to “”have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives'”;
Expressing “congressional intent” that the standard regarding “substantially limits” set forth by the Court in Toyota Motors has “created an inappropriately high level of limitation necessary to obtain coverage under the ADA”; establishing that “it is the intent of Congress that the primary object of attention in cases brought before the ADA should be whether entities covered under the ADA have complied with their obligations”; and explaining that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis”;
Conveying Congress’s expectation that the EEOC “will revise that portion of its current regulations that defines the term “substantially limits’ as “significantly restricted’ to be consistent” with the ADAAA, “including amendment made” by the ADAAA. ARTICLE: ADA AMENDMENTS ACT OF 2008: THE EFFECT ON EMPLOYERS AND EDUCATORS, 46 Willamette L. Rev. 357, 391-393

The elements of a claim under the ADA requires the following: the plaintiff must show that she: “(1) had a disability within the meaning of the ADA; (2) was qualified, with or without reasonable accommodation, to perform the essential job functions of the position in question; and (3) suffered an adverse employment action because of [her] disability.” Jenkins v. Medical Labs. of E. Iowa, Inc., 880 F. Supp. 2d 946, 959, 2012 U.S. Dist. LEXIS 101142, (N.D. Iowa 2012).

Title VII Civil Rights Act and Sexual Harassment.

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII of the Civil Rights Act makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

Title VII Claims:

As the Eighth Circuit Court of Appeals has repeatedly explained, to establish a prima facie case of sexual harassment (one form of Title VII discrimination), a plaintiff must show the following: (1) he or she was a member of a protected group, that is, male or female; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) there is a basis for imposing liability on the employer for harassment. Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir.), cert. denied, 126 S. Ct. 769, 163 L. Ed. 2d 576 (2005); Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004). In the case of co-worker harassment, the fifth element requires a showing that the employer “knew or should have known of the harassment and failed to take proper remedial action. Pedroza, 397 F.3d at 1068; Erenberg, 357 F.3d at 792. However, where the alleged harassment was by a supervisor, employer liability is analyzed under the standards set forth by the Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). McCurdy v. Ark. State Police, 375 F.3d 762, 770 (8th Cir. 2004), cert. denied, 543 U.S. 1121, 125 S. Ct. 1088, 160 L. Ed. 2d 1070 (2005). The Eighth Circuit recently explained the Ellerth/Faragher standards for employer liability for harassment by a supervisor as follows:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, which comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 764-65, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633; Faragher, 524 U.S. at 807, 118 S. Ct 2275. The Court stated that “no affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765, 118 S. Ct. 2257; Faragher, 524 U.S. at 808, 118 S. Ct. 2275; see also Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 2352, 159 L. Ed. 2d 204 (2004) (recognizing Ellerth and Faragher, which govern employer liability for supervisor sexual harassment, “delineated two categories of hostile work environment claims: (1) harassment that ‘culminates in a tangible employment action,’ for which employers are strictly liable, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense”) (citation omitted).

a. Actionable harassment

An element of the prima facie case often in dispute is the fourth one, whether the harassment affected a term, condition, or privilege of employment, i.e., whether the harassment is “actionable.”

The United States Court of Appeals for the Eighth Circuit has explained that this element requires “a twofold inquiry.” First, the harassment must be “sufficiently severe or pervasive to create an ‘objectively hostile’ work environment.” Kratzer, 398 F.3d at 1047 (citing Henthorn v. Capital Communications, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004)). Second, the victim must subjectively perceive the environment as abusive, otherwise the conduct has not altered the conditions of employment. Id. (citing Harris, 510 U.S. at 21-22). .

As to the first prong of the inquiry, whether or not the environment was “objectively hostile,” [the environment] must be more than merely offensive, immature or unprofessional; it must be extreme. Id. at 1027 (citing Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975, 980 (8th Cir. 2003)). Conduct that does not exceed the threshold of severity is insufficient to create a prima facie case of sexual harassment. “Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace.” Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 967 (8th Cir. 1999).

To put it another way, “Sexual harassment standards are demanding–to be actionable, conduct must be extreme and not merely rude or unpleasant.'” Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003) (quoting Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975, 980 (8th Cir. 2003)). “‘More than a few isolated incidents are required,’ and the alleged harassment must be ‘so intimidating, offensive, or hostile that it poisoned the work environment.'” Id. (quoting Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999)). The plaintiff must prove her workplace was “permeated with discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

LeGrand v. Area Res. for Cmty. and Human Servs., 394 F.3d 1098, 1101-02 (8th Cir.), cert. denied, 126 S. Ct. 335, 163 L. Ed. 2d 47 (2005).HN19 Determination of whether or not an environment was “objectively hostile” is “a fact-intensive inquiry.” See Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 456 (8th Cir. 2001) (citing Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1109 (8th Cir. 1998)). Although a single offensive utterance or exposure to distasteful conduct ordinarily does not rise to the level of a Title VII violation, see Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997), there is no “rule of law holding that a single incident can never be sufficiently severe to be hostile-work-environment sexual harassment.” Moring, 243 F.3d at 456. Thus, “whether an environment was objectively hostile or abusive must be judged by looking at the totality of the circumstances, including the frequency and severity of the discriminatory conduct, whether such conduct was physically threatening or humiliating, as opposed to a mere offensive utterance, and whether the conduct unreasonably interfered with the employee’s work performance.” Eliserio, 398 F.3d at 1076; LeGrand, 394 F.3d at 1102 (enunciating the same factors).

As to the second prong of the inquiry, whether or not the environment was “subjectively hostile,” “‘if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.'” Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002) (quoting Harris, 510 U.S. at 21); see Kratzer, 398 F.3d at 1047 (also citing Harris). “An employee’s admission that [the environment] was not abusive is fatal to the employee’s Title VII sexual harassment claim.” Kratzer, 398 F.3d at 1047 (citing Montandon v. Farmland Indus., Inc., 116 F.3d 355 (8th Cir. 1997); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001)). Lopez v. Aramark Unif. & Career Apparel, Inc. , 426 F. Supp. 2d 914, 944-946, 2006 U.S. Dist. LEXIS 20808, *67-73 (N.D. Iowa 2006).

Pregnancy Discrimination

WHAT IS PREGNANCY DISCRIMINATION?

Pregnancy discrimination occurs when an employer unlawfully treats an employee differently from other employees based upon the employee’s pregnancy or childbirth, or pregnancy-related conditions.

HOW DOES THE LAW PROTECT PREGNANT PERSONS?

The Pregnancy Discrimination Act states, in part, that “women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §2000e(k). This means that the employer must treat pregnant women the same as other employees — but does not require any special accommodations. It is absolutely clear that an employer may not fire an employee because she is pregnant, or force an employee to take maternity leave.

WHAT DOES IT TAKE TO PROVE PREGNANCY DISCRIMINATION?

To establish a “prima facie case” of pregnancy discrimination under Title VII, the employee must prove:

She was pregnant or indicated an intention to become pregnant;
She was qualified for the position or was performing her job at a level that met her employer’s true or legitimate expectations;
She suffered an adverse employment action like termination or demotion;
There is a nexus between the employee’s pregnancy and the adverse employment action that would permit a fact finder to infer unlawful discrimination.

G. WARN – The Worker Adjustment and Retraining Notification Act

NOTICE REQUIREMENT: Under the Worker Adjustment and Retraining Notification Act (WARN Act), an “employer” ( an employer is generally defined as having 100 or more employees) planning a “plant closing” or “mass layoff” must provide the “affected employees” (or their representatives) with at least sixty (60) days’ notice of the planned employment action. In addition to providing notice of the layoff to affected employees, an employer must also give notice to the state dislocated worker unit and the chief elected official of the unit of local government where the plant closing or mass layoff will occur.

EXCEPTIONS TO THE RULE: Like many laws, the WARN Act provides for exemptions. However, exemptions to the WARN Act are few in number and generally narrow in scope. There are two types of exemptions to the WARN Act: complete exemptions and partial exemptions.

In the following two instances, the employer is completely exempt from compliance with the WARN Act: (1) where the employer closes a temporary facility or conducts a plant closing or mass layoff due to completion of a project or undertaking, or (2) where the employer conducts a plant closing or mass layoff as a result of a strike or lockout and that is not intended to evade WARN requirements. The rationale for these complete exemptions is based on whether the employee has a reasonable expectation of continuing employment. In the complete exemption situations, it is reasoned that the employee has no reasonable basis for an expectation of continued employment. Accordingly, the WARN Act does not afford worker protection in such situations.

Partial exemptions are set forth in 20 CFR 639.9 (the Code of Federal Regulations) . Generally speaking, the exemptions exist in the following situations, all of which place the burden of proof on the employer to demonstrate: (1) the “faltering company” exception – where the company was seeking financing and had a good faith belief that issuing a notice would preclude financing; (2) the “unforeseen business circumstances” exemption- which applies when “the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.” ( whether the circumstance is caused by “some sudden, dramatic, and unexpected action or condition outside the employer’s control”); (3) the “natural disaster” exemption.

REMEDIES : If an employer violates the WARN Act by failing to give the required notice and does not qualify for an exemption, the company is liable to the aggrieved employees for (1) “back pay for each day of violation” and (2) benefits under any employee benefit plan, such as Employee Retirement Income Security Act (ERISA) health benefit plans. An employer’s liability for each may extend up to a maximum of sixty days. However, an employer’s liability for a WARN Act violation shall be reduced by (1) any wages paid by the employer to the employee during the violation period, (2) any voluntary and unconditional payment to the employee by the employer that is not made pursuant to a legal obligation, and (3) any payment the employer makes to a third party “on behalf of and attributable to the employee for the period of the violation.”

Interesting Analysis: The Circuit Courts have reached various conclusions and interpretations in what constitutes “back pay” for purposes of the statute. In interpreting what is meant by back pay for purposes of the WARN Act, courts have turned to the definition of back pay used in other federal statutes. Some have viewed the remedy as a “make whole” remedy, and others view the remedy as intended to be punitive for non-compliance. For example, the US District Court for the Eastern District of Arkansas held that the provision allowing for pay for each day of violation included non-working days such as weekends and holidays. See: Joshlin v. Gannett River States Pub. Corp., 840 F. Supp. 660 (E.D. Ark. 1993).NOTICE REQUIREMENT: Under the Worker Adjustment and Retraining Notification Act (WARN Act), an “employer” ( an employer is generally defined as having 100 or more employees) planning a “plant closing” or “mass layoff” must provide the “affected employees” (or their representatives) with at least sixty (60) days’ notice of the planned employment action. In addition to providing notice of the layoff to affected employees, an employer must also give notice to the state dislocated worker unit and the chief elected official of the unit of local government where the plant closing or mass layoff will occur.

EXCEPTIONS TO THE RULE: Like many laws, the WARN Act provides for exemptions. However, exemptions to the WARN Act are few in number and generally narrow in scope. There are two types of exemptions to the WARN Act: complete exemptions and partial exemptions.

REMEDIES : If an employer violates the WARN Act by failing to give the required notice and does not qualify for an exemption, the company is liable to the aggrieved employees for (1) “back pay for each day of violation” and (2) benefits under any employee benefit plan, such as Employee Retirement Income Security Act (ERISA) health benefit plans. An employer’s liability for each may extend up to a maximum of sixty days. However, an employer’s liability for a WARN Act violation shall be reduced by (1) any wages paid by the employer to the employee during the violation period, (2) any voluntary and unconditional payment to the employee by the employer that is not made pursuant to a legal obligation, and (3) any payment the employer makes to a third party “on behalf of and attributable to the employee for the period of the violation.”

WHAT ARE SOME UNLAWFUL EMPLOYMENT PRACTICES WHICH MAY BE ACTIONABLE?

Generally, under Title VII, it is unlawful for an employer to fail or refuse to hire, to discharge, or to demote, or harass, or otherwise discriminate against an individual with respect to the terms and conditions of employment because of: race, color, religion, sex, or pregnancy.

With respect to pregnancy issues, common complaints include the failure to rehire or place an employee back to work after their childbirth; terminating an employee soon after they learn of the pregnancy, or otherwise treat the employee differently after the employer learns of the pregnancy.

Child-rearing is not considered the same as “child bearing.” Therefore, men or women who desire to take “parental” leaves of absences to raise their children, or to stay home with the baby are generally not protected by the federal law. Also, under the Pregnancy Discrimination Act, an employer is generally not required to provide an accommodation to a pregnant employee, unless it provides the same accommodation to similarly situated nonpregnant employees. 42 U.S.C. §2000e.

HOW CAN WE HELP?

Joe Byars is willing to discuss unlawful discrimination or other potential violations of law arising in the workplace. The pursuit of a discrimination claim or the defense of the same can be complicated and challenging, but we enjoy the challenge and we are glad to help you. Let us evaluate your case or answer your questions free of charge.

In many situations, we are willing to represent persons who have been discriminated against on a contingency fee basis, which means that you will not owe us a fee unless we recover. While we primarily focus on the plaintiff’s side, we also have substantial experience representing employers. Feel free to call today for a consultation.