What should I do if I'm being retaliated against at work?

I get a lot of questions from readers on all kinds of topics. For a myriad of reasons, it would not be appropriate for me to answer a specific individual's question or to otherwise provide legal advice online. However, I can address general areas of concern in a general way. While I hope that this information is useful, be warned that you absolutely should NOT consider any information you read here to be legal advice as to your particular situation. Legal analysis is very fact and geographically specific. If you have a legal question, my best advice is that you contact an attorney who specializes in such matters in your area. 


After reporting to HR about my manager with the company groping me, the HR representative filed no report and called the offender in the office to have him apologize to me. No other action was taken. Now I am being investigated and harassed at work and I don't understand why. What should I do?

While not every employer handles internal reports of misconduct this way, situations such as this are, sadly, something I hear about all too frequently from employees who come to see me. An employee follows the rules and does what he/she is supposed to do by reporting discrimination or harassment to HR, only to then be further harassed and retaliated against in response to his/her report. Often this retaliation comes in the form of management "keeping book" or noting every error or perceived mistake made by the reporting employee in an effort to build a record for termination. Sometimes the retaliation is much more severe. I have had cases in which employees were moved to a less desirable office location, passed over for promotions, accused falsely of misconduct, etc. Such a situation can make going to work seem almost unbearable. And in fact, this is often the goal of the employer -  to make your work life so terrible that you feel you have no choice but to quit.

So what can an employee in this type of situation do? Here are some suggestions:

  1. Document Everything in Writing - Your boss or HR representative might be saying all the right things and telling you everything is fine but those oral statements are easily forgotten once you have been fired and you are later trying to prove what was said. Your best bet: document everything in a way that is at least somewhat verifiable. If you need to report misconduct, harassment, or retaliation do it via a written letter or email. In either case, print yourself a copy of what you sent and take it home for safekeeping. If you have an important phone call or meeting with HR or your boss in which you outline the harassment and they promise to take some action, document it in a follow-up email to the HR rep in which you thank the rep for meeting with you and restate your understanding of what was said by both parties. Again, print yourself a copy and take it home. 
    • But Chris...can't the HR Rep later deny that my email correctly summarizes what was said? -- Sure, I suppose they could try to say that. But everyone (including the jury) will wonder why they didn't reply to your email back when it happened to correct your summary.
  2. Don't Make Unforced Errors - You know they are watching every move you make just hoping you screw up so they can fire you. So don't help them. Don't be late to work. Do good work. Get your reports in on time. Don't gossip and tell co-workers what a big jerk your boss is. etc. These are unforced errors and they will come back to bite you in the end. 
    • What if your boss doubles your workload to make it impossible for you to meet quota?  -- This happens a lot so don't be surprised if it happens to you. Don't let it make you so angry that you start acting out and thereby give the boss a legitimate reason to fire you. That's playing into his/her hands. Instead, do the very best job you can and document the retaliation by emailing HR to let them know what is happening (don't forget to print a copy and take it home) and then do your best to comply with the new work requirements. Keep your boss informed on your status by regularly emailing (keep a copy). Remember, in addition to actually trying to be a good employee under difficult circumstances, you are building the paper trail you and your lawyer may need later to prove you were trying to be a good employee under the circumstances. 
  3. Consider Filing a Charge with the EEOC and/or Visiting with a Lawyer - Know this: Once retaliation starts, it rarely gets better on its own. If a boss is retaliating against an employee, it signifies a type of "line in the sand". That boss has declared (perhaps only to himself or herself) that you have got to go...period. So don't beat yourself up when nothing you do to placate your boss seems to work. It may just be time to go outside for help. One choice is filing what is called a "Charge" with the Equal Employment Opportunity Commission ("EEOC"). Note that the EEOC only deals with EEO types of issues (race, sex, religion, disability, national origin) and retaliation if (and only if) you are being retaliated against due to an internal complaint that you were harassed or discriminated against based on one of those EEO categories. Another option that you really should consider is visiting with a qualified employment lawyer. If you have not been fired yet then your case might not be one that an employment lawyer can agree to take on a contingent basis. However, most employment lawyers will agree to a fee-based consultation, during which you can explain your situation and the lawyer gives you advice regarding what protections you might have under applicable law and what steps you need to take to best protect your interests. While legal fees vary greatly based on geography, you should expect to pay between $100-$500 for an hour of the attorney's time. In the grand scheme of things, this is a good value for the information you will receive. 

 

The U.S. Constitution Wasn't Always For Everyone

228 years ago yesterday the delegates to the Constitutional Convention signed the U.S Constitution. The Constitution is a document that has been revered for over two centuries as a miracle in legal drafting. It has weathered the test of time through its ability to grow and change to fit the America's evolving cultural norms through amendment and through thoughtful interpretation. Yet, despite its changes over the years, it has remained steadfast in protecting the important principals at its core.

In fact, the Constitution has changed quite a bit more than many people think. Take for example, the right to vote -- a right that surely most would agree forms the very foundation of a strong democracy. Some would be surprised to learn that most voters today would not have had the right to vote under the original Constitution. Women, African-Americans, Catholics and white men without substantial property holdings could not vote under the Constitution as it was originally drafted. Addressing this issue, Abigail Adams wrote a charming, though pointed, letter to her husband John Adams on March 31, 1776 reminding him “To Remember the Ladies.” But it was not until the 15th Amendment that the Constitution gave black men the vote, and not until the 19th Amendment did it actually “remember the Ladies.”

So, celebrate the Constitution this week. Celebrate the great men who drafted it. And celebrate the men and women who have worked for the last 228 years to nurture and help the Constitution grow so that it continues to protect an ever-evolving United States of America.

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United Airlines to Pay over $1 Million To Settle Disability Lawsuit

Supreme Court Lets Stand 7th Circuit Ruling That Reassignment Is Reasonable Accommodation

In a case that garnered nationwide attention, air transportation giant United Airlines Inc. has agreed to pay more than $1 million and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC's lawsuit charged that United's competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company's practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said.

The consent decree settling the suit, signed by Hon. Judge Harry Leinenweber and entered June 11th, requires United to pay $1,000,040 to a small class of former United employees with disabilities and to make changes nationally. United will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process.

This resolution concludes a lengthy and complicated lawsuit. Although the EEOC originally filed the lawsuit on June 3, 2009 in U.S. District Court for the Northern District of California - San Francisco, United successfully moved for a change of venue to the Northern District of Illinois. Bound by an earlier precedent which held that a competitive transfer policy similar to United's policy did not violate the ADA, the lower court dismissed the EEOC's case in February 2011. However, in a decision reviewed by the full court, the Seventh Circuit agreed with the EEOC that EEOC v. Humiston Keeling, 227 F.3d 1024 (7th Cir. 2000) "did not survive" an intervening Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002).  The Seventh Circuit reversed the lower court's dismissal and found that "the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer." The Supreme Court refused United's subsequent request for review.

Labor Day 2015

As we enjoy another Labor Day weekend, here are some quick facts about a holiday that is near and dear to our hearts here at the firm:

How Labor Day Came About

"Labor Day differs in every essential from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those "who from rude nature have delved and carved all the grandeur we behold."

But Peter McGuire's place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states -- Colorado, Massachusetts, New Jersey, and New York -- created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.

Have a great Labor Day weekend everybody!

Texas Supreme Court Overturns Two Lower Courts to Take Away Workers' Compensation Benefits

I've recently written regarding what terrible shape Texas' workers' compensation system is in. Last week more bad news for comp claimants in the form of a Texas Supreme Court decision overturning the judgment of a district court judge and the lower court of appeals. Dallas Nat’l Ins. Co. v. De La Cruz (Per Curiam)

In 2004, the employee was working for her employer when she fell, injuring her left knee and back. In 2009, she filed a claim for lifetime income benefits (LIBs) pursuant to section 408.161 of the Texas Workers’ Compensation Act claiming that her 2004 injury caused the total loss of use of both her feet at or above the ankle and that the loss of use was permanent. A hearing officer with the Division of Workers’ Compensation determined that Employee was not entitled to LIBs. The district court reversed and awarded LIBs. The court of appeals affirmed. The Supreme Court reversed and rendered judgment denying employee’s claim for LIBs, concluding that the court of appeals erred in determining that the evidence was sufficient to support the trial court’s judgment.

The court's decision turns on its interpretation that LIBs are only available in the context of this case due to injury to the feet and ankles. In this case the injury was to the back and knee. While the injury may cause the feet and ankles to be unusable, there is no physical injury to those structures themselves and therefore income benefits are not proper. 

Thus, Ms. De La Cruz will not receive lifetime income benefits despite the total loss of the use of her feet. Such is the protection workers can expect to receive from the great State of Texas' workers compensation system.

 

Download the opinion.

Target in the EEOC's Crosshairs - Settles Case for $2.8 Million

The Wall Street Journal is reporting that Target Corporation has agreed to pay $2.8 million to resolve an EEOC Commissioner's charge of discrimination.  Based on the investigation, the EEOC determined hat three employment assessment tests formerly used by Target disproportionately screened out applicants for exempt-level professional positions based on race and sex.  

In addition, EEOC found that one of the assessments Target formerly used in its hiring process also violated the Americans with Disabilities Act (ADA).  The EEOC determined that this particular assessment performed by psychologists on behalf of Target was a pre-employment medical examination.  Employers are prohibited by the ADA from subjecting applicants to medical examinations prior to an offer of employment. 

The EEOC's investigation revealed that thousands were adversely affected when Target used these assessments in its hiring process.  The monetary settlement will be divided among these individuals as appropriate. Target will pay for a claims administrator to distribute the funds.   

During EEOC's investigation, Target discontinued the use of those tests that violated the law. Target has agreed that it will not use these assessments again as part of its exempt-level employment selection procedures.  In addition, Target has made changes to its applicant tracking systems to ensure that the collection of data is sufficient to assess adverse impact of any pre-employment assessments it conducts.

Read more: Wall Street Journal

 

 

Fifth Circuit Reinstates SOX Whistleblower Claim Against Tesoro Corp.

A unanimous panel of the Fifth Circuit U.S. Court of Appeals issued a decision last Friday reinstating Plaintiff Kevin Wallace’s Sarbanes-Oxley Act (SOX) whistleblower claim against Tesoro Corp. 

Wallace worked for the petroleum company Tesoro as Vice President of Pricing and Commercial Analysis. He discovered structural flaws in Tesoro’s accounting system that garbled important financial results and tax reporting used by management, the Board of Directors, and Tesoro’s public filings. Wallace confirmed his findings with company experts and reported them internally. On March 12, 2010, Wallace reported internally that he was being retaliated against by management. He was fired within hours of this report.

The district court had previously dismissed the case based on several procedural motions filed by Tesoro. Tesoro argued that the case needed to be plead pursuant to FRCP 9(b)'s strict fraud pleading requirements. Tesoro also argued that the lawsuit raised factual issues that had not been presented with particularity to OSHA (the administrative agency charged with conducting initial investigation into SOX charges).

The Fifth Circuit reversed the dismissal and remanded the case back to district court for further proceedings and discovery. In rejecting Tesoro's arguments, the Court stated:

The requirements of Rule 9(b) show how poorly it would work as a benchmark for reasonable belief that fraud is occurring. “At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003). But an employee who is providing information about potential fraud or assisting in a nascent fraud investigation might not know who is making the false representations or what that person is obtaining by the fraud; indeed, that may be the point of the investigation. Leaving those employees unprotected would have grave consequences for the statutory scheme of employee protection embodied in § 1514A and would do so in a way that appears completely unrelated to whether a belief actually is reasonable.

SOX was enacted as a reaction to a number of major corporate and accounting scandals, including Enron, and Worldcom. The law protects employees from retaliation for engaging in protected activity, which is defined as:

"any lawful act done by the employee to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders . . ." 


The undersigned is counsel for Mr. Wallace, co-counseling with San Antonio attorney Alex Katzman and Washington D.C. attorney Richard Renner. The U.S. Department of Labor, Office of the Solicitor of Labor, participated with an amicus brief asking the Fifth Circuit to reverse.


Download: Wallace v. Tesoro Corp., No. 13-51010 (5th Cir. 7-31-2015).

Texas' Workers Compensation System is Still Terribly Broken

Came across an article from the Texas Bar Journal this morning that was written a few years ago. The article did a masterful job of outlining the Texas workers compensation landscape and how it is utterly failing to help injured workers. I missed it when it was originally published but read it today and was saddened because, unfortunately, all of the terrible problems identified in the article still exist. 

From the article: 

[I]t would be hard to find [a state workers compensation system] that keeps legal fees as low, denials as high, and efforts of doctors and others to scam the system as plentiful as in Texas.

[Texas maintains a] claims system that critics charge is now wholly captive to the insurance companies that support it. It’s the result of a 20-year evolution larded with anti-tort politics. It wasn’t always so.

Here at my firm, we get calls from injured workers on a regular basis seeking help with their workers' compensation claim. We can't take those cases because changes to the law have made it virtually impossible for a lawyer to be paid anything for representing injured workers. We keep a list of the few area lawyers we know who do take such cases. More often than not the caller indicates he or she has already contacted those lawyers and they couldn't take the case either. 

In what began more than 20 years ago as an effort to curb what was seen as abuse by lawyers, doctors and claimants, the Texas workers' compensation system has become so hostile, so skewed toward delay and denial that lawyers, physicians and even legitimate claimants have been driven away.

This leaves Texas workers injured at work with literally no place to turn. Many of them can't work because they can't get any medical care. They can't get any medical care because the insurance companies paid to cover such claims can simply deny virtually all claims with impunity and keep the premiums as profit. And they can't hire a lawyer to help them because the laws have been structured in such as way as to make it impossible for their lawyer to be paid. Put simply, if you are injured at work in Texas you are pretty much on your own. 

For years, those who watch the workers compensation system in Texas have expected a public backlash to this state of affairs. It hasn't come yet. But it sure needs to. 

Read this article: Insult to Injury: Texas Workers' Comp System Denies, Delays Medical Help

 

 

Gay Marriage Ruling and Its Impact on Employees

PHOTO CREDIT: Ted Eytan

PHOTO CREDIT: Ted Eytan

The San Antonio Express News have coverage of the Supreme Court's gay marriage ruling and the impact it may have on the workplace. The good news is that employees in many larger employers will see no impact at all because their employers were already allowing for homosexual spouses in their benefit and leave plans. For others, new benefits and leave rights may be available now that every employer must consider them to be a spouse for all purposes.

Here is a clip from the story:

Texas employers not only will have to recognize their workers’ same-sex unions as a result of Friday’s landmark U.S. Supreme Court ruling legalizing gay marriage, they will have to provide those employees the same benefits that are extended to their heterosexual married workers, local lawyers say.
The state banned gay marriage in 2005 as an amendment to the Texas Constitution, so there were no requirements for companies to extend spousal benefits to gay employees. That will change now, though.
“It used to be three years ago you would grant same-sex benefits either because you felt like you had to or because you wanted to be politically correct,” said Bob Kilgore, an attorney in the San Antonio office of employment law firm Fisher & Phillips. “Now you have to do it because the law is going to require it.”
To be sure, many major local employers — including NuStar Energy LP, Rackspace Hosting Inc., Tesoro Corp., USAA and Valero Energy Corp. — already provide same-sex spousal benefits to both married and unmarried workers. Others, such as SWBC, have extended benefits to legally married same-sex partners.
About 66 percent of Fortune 500 companies extend health benefits to employees’ same-sex partners, according to CNNMoney.
So plenty of companies will have to make policy changes.
The Supreme Court’s ruling “is going to be far-reaching for employers,” said Cyndi Mergele, senior manager of human-resources consulting at Padgett Stratemann & Co. LLP, a San Antonio-based accounting and business advisory firm.
Mergele suspects some gay employees who have not disclosed they are married, perhaps because of concerns about job security, now will approach their employer.
“It’s safe to assume that for most employers, they’re going to have an immediate impact on their group health benefit plans,” Mergele said. “There may not be an impact until next enrollment session. But obviously, employees in a same-sex legal marriage will now be able to participate in group benefits that are offered to spouses.”
Chris McKinney, a San Antonio employment lawyer, said the Supreme Court ruling likely will simplify what has been a complicated issue for employers.
“Under this decision, gay couples are treated no better — but no worse, importantly — than heterosexual couples,” McKinney said. “They’ll have all the same rights and duties, but they’ll have to go get married.”

You can read the entire story here.

You can read the Supreme Court's Opinion here.

 

Texas Court Upholds New NLRB Union Election Rule

Union
Union

The NLRB's new rules designed to speed up union election cases were recently upheld by a district court judge from the U.S. District Court for the Western District of Texas. Judge Robert L. Pitman rejected the challenge to the new rules, which was filed by a collection of Texas business groups.

The new rules became effective in April of this year. They were designed to modernize the NLRB's old processes and eliminate unneeded litigation and delay in union election cases.  Among other changes, the rules:

  • Shorten the deadline for the employer to produce a voter eligibility list;
  • Shorten the deadline for conducting a hearing on any legal issues to a reasonable seven days after the Notice of Hearing is issued; and
  • Require that employee e-mail addresses and phone numbers be disclosed and electronically  transmitted to the Union to permit more efficient communication.

The business groups  challenged 10 different aspects of the new election rule.  They argued it should be invalidated because it invaded employees privacy, exceed the board's authority by restricting employers' ability to litigate, was arbitrary and capricious, etc. Basically the full-on, kitchen sink attack.

The attack failed. District Judge Robert Pitman rejected each of these arguments, citing repeatedly to the great deference that must be accorded to government agencies, as well as the flexibility and discretion that the NLRB had to make exceptions if the rules proved too burdensome in any particular instance.

The rules are being litigated in other venues as well and Judge Pitman's decision will undoubtedly be appealed.

Read More:

Communication is Key to Working With Your Employment Lawyer

Anthony Zaller over at California Employment Lawyer Blog put up a good article last week discussing some tips to make working with your employment lawyer easier and more effective. His five tips are:

  1. Ask a lot of questions.
  2. Respond quickly to your lawyer’s requests.
  3. Work with your lawyer before the need arises.
  4. Don’t kill the messenger.
  5. Be adaptable.

Click through to Anthony's blog to read his discussion of each of these points. It is an excellent article. But let me take just a moment to emphasize the importance of good communication. (See Nos. 1, 2 and 3). Communication with your attorney is probably the single most important thing you can do to make your case move more swiftly and arrive at a successful conclusion. As a client, the most important things you can do to help your lawyer are:

  • Make sure your lawyer has all relevant information - Don't hold anything back. If you have a criminal conviction, don't hide it. Got fired 20 years ago, make sure your lawyer knows. Thing there is a witness who has an axe to grind against you because of something unrelated? Tell your lawyer. Your lawyer can adjust and deal with almost anything...as long as he or she knows about it. Say it with me: Surprises kill cases!
  • Don't be difficult to contact - You are filing a lawsuit. If the matter is important enough to file suit over then it is important enough to stay involved and to be available to assist your lawyer in prosecuting. When your lawyer calls, take or return the call asap. If your lawyer requests information or documents, make it your highest priority to respond. If your lawyer needs to meet with you, take the time off from work and make the meeting. If your case isn't important enough for you to make it a high priority item then please don't waste everyone's time be hiring a lawyer in the first place.

Being available and communicating well will assist your attorney and greatly increase the chances of you getting the result you desire.

 

Mandatory Arbitration: How American Employers Opt Out of the Justice System

Mandatory forced arbitration is a nationwide problem in the employment context that needs to be addressed by lawmakers.  A recent study reported that roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms. And most Americans are unaware of the rights being taken away from them. Approximately two-thirds of those who have had an arbitration agreement enforced against them cannot remember seeing anything about forced arbitration in their Terms of Employment. This is because employers are not required to call arbitration language to employees' attention in any particular way or provide them with any specific information about the true meaning of the often legalistic language contained in an arbitration policy, clause, or handbook provision. So, many employers simply hide the provision in their large employment handbook that employees may or may not be given a copy of and have employees sign a written acknowledgement of having read it along with the 50 or so other documents that they rush new hires through on their first day. An excellent article came out this past week by Carmen Comsti, The Employee Rights Advocacy Institute's Paul H. Tobias Attorney Fellow, highlighting recent news stories of how employers are attempting to opt-out of complying with our nation's worker protection laws. Comsti writes:

"Forced arbitration compels workers to give up their rights to go to court and a trial by jury. It is imposed on workers by their employers requiring them to resolve workplace disputes before they arise in private arbitration rather than in a public court. Forced arbitration is anathema to our public justice system because it occurs in secret, private tribunals in the absence of accompanying legal safeguards such as a written record of the arbitration proceedings, the right to appeal the arbitrator's decision if the law is not applied correctly, or other guarantees that ensure a fair process. Workers often have no knowledge or understanding of forced arbitration provisions, but yet are required by employers to "agree" to it in order to get or keep a job. Forced arbitration reaches nearly every job sector in the country----from retail workers and restaurant employees to uniformed servicemembers and medical professionals. At least 27 percent of America's employers mandate their employees submit to forced arbitration, affecting more than 36 million people, or one-third of the non-union workforce. Despite the growing prevalence of forced arbitration, the injustices that workers suffer from it are only now being brought to the public's attention thanks to recent articles in the press. The following are some examples.

The Raiderettes Take On The Oakland Raiders

The Oakland Raiderettes filed a lawsuit last year against the Oakland Raiders alleging that it routinely violated California labor laws. This was the first in a series of lawsuits initiated by current and former National Football League (NFL) cheerleaders challenging the NFL's entrenched system of long hours, meager pay, and paternalistic work rules. In the Raiderettes' case, the Raiders paid the cheerleaders $125 per home game but required them to participate in practices, rehearsals, meetings, workouts, public events, uniform fittings, and photo shoots without compensation. Their contracts also imposed fines and discipline for minor deviations in physical appearance, such as weight gain and improper hair color.

The Raiderettes, however, may never have their day in court because their contracts force them to arbitrate their workplace disputes----believe it or not----before NFL Commissioner Roger Goodell. Commentators have cast doubt on whether the Raiderettes will receive a fair hearing under the circumstances. A California state court will decide later this year if the contract violates basic legal requirements of fairness and consent or if the Raiderettes will be forced into arbitration.

Federal Court Raises Concerns About Uber's Arbitration Clause Requiring Waiver Of Access To The Courts

In May, a federal court in California ordered Uber to change the wording of an arbitration clause in its contracts with drivers because it is potentially misleading and coercive. Uber drivers filed a lawsuit alleging the company cheated drivers out of their tips and misclassified them as independent contractors rather than employees. After Uber drivers filed similar lawsuits in Massachusetts and Illinois, but before the California case was filed, Uber surreptitiously changed its terms of service with its drivers by adding an arbitration provision requiring them to waive their right to participate in any lawsuit against the company pending in court. Recognizing Uber's unscrupulous attempt to interfere with current and potential drivers' access to the courts, the California federal court ordered Uber to send out corrective notices about the provision to Uber drivers. The federal court will consider the merits of the case once the drivers have been properly informed of their rights to participate in the lawsuit.

U.S. Servicemembers Forced To Arbitrate Workplace Claim

Forced arbitration also has been imposed on our nation's uniformed servicemembers, such as Captain Nicole Mitchell who was discriminated against in the workplace because of her military service. A U.S. Air Force Reserve Officer, Captain Mitchell was deployed for military service every few weeks with the elite "Hurricane Hunters" aircrew to track tropical storm patterns and developments. When she was not fulfilling her military duties, Captain Mitchell worked as a top rated on-air meteorologist for The Weather Channel. After The Weather Channel was purchased by NBC Universal in 2008, new management demoted and later terminated Captain Mitchell for taking time off to perform her duties as a Hurricane Hunter. Captain Mitchell filed a lawsuit against NBC Universal and The Weather Channel in federal court for violation of her rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but discovered that her employment contract contained a forced arbitration provision. The federal court enforced the forced arbitration clause and Captain Mitchell's case was sent to arbitration in 2012. Since then, Captain Mitchell has been unable to secure employment as an on-air meteorologist and has been waiting for the arbitrator to hear her case."

Defense Lawyers Seem to Agree

Most business-side employment lawyers I speak to seem to agree, although for different reasons. They point out that research shows arbitration is neither faster nor less expensive than litigation. Couple that with the lack of appellate opportunities when something goes wrong and it really doesn't come out as a better option for companies either.

More:

Updates:

  • Originally Published 5-27-14
  • Updated:  5-20-15

It's Time for Paid Family and Medical Leave

The United States is the only developed country that doesn’t have a national requirement that workers get access to paid sick leave. The lack of a law leaves nearly 40 percent of Americans without access to leave. But progress has been made at the state and local level: three states — California, Connecticut, and Massachusetts — and 16 cities have passed paid sick leave legislation, covering millions of workers. John Oliver recently had a humorous but thoughtful piece on the subject on his show, Last Week Tonight:

[embed]https://youtu.be/zIhKAQX5izw[/embed]

President Obama has proposed the passage of the Healthy Families Act, a bill that would require most employers to give workers paid sick leave. The legislation calls for businesses with 15 or more employees to let them accrue up to seven paid sick days a year to care for themselves or a family member who falls ill. The White House estimates that it would give 43 million workers access to leave who don’t already have it. The leave could also be used by victims of domestic violence, sexual assault, or stalking to recover or seek assistance.

Unfortunately, such a bill is unlikely to make it through our current congress. Until the political gridlock in Washington changes, U.S. employees will continue to have to struggle whenever a birth or family illness occurs.

Hat Tip: Jon Hyman

 

EEOC Begins a Rollout of New Online Charge-Handling System

EEOC140822ACT Digital Pilot Program Allows Online Interaction With Employers

Last week the EEOC announced that 11 of its 53 offices will begin a pilot program called ACT Digital to digitally transmit documents between the EEOC and employers regarding discrimination charges. This is the first step in the EEOC's move toward an online charge system that will streamline the submission of documents, notices and communications in the EEOC's charge system. This system applies to private and public employers, unions and employment agencies.

The EEOC receives about 90,000 charges per year, making its charge system the agency's most common interaction with the public. The EEOC's ACT Digital initiative aims to improve customer service, ease the administrative burden on staff, and reduce the use of paper submissions and files.

The first phase of ACT Digital allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form.

EEOC Chair Jenny R. Yang commended ACT Digital as an innovative first step in streamlining the agency's charge system.

"The EEOC's pilot of a digital charge system is an important step forward that will benefit the public and our staff," Chair Yang noted. "This will improve our responsiveness to the public, efficiently utilize our resources, and protect the security of documents in our online system. We encourage employers to provide candid feedback and suggestions during the pilots so we can make adjustments to strengthen the system."

The pilot begins May 6, 2015 in the following EEOC offices: Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco. The EEOC offices in Denver, Detroit, Indianapolis and Phoenix will also begin their pilots by the end of May 2015.

Follow-Up Links

 

 

 

File a Charge With the EEOC Immediately Or Risk Losing Your Case

EEOC140822Some prospective clients are surprised to learn that most of wrongful termination or sexual harassment matters than an employment lawyer handles cannot be taken straight to court. This is, unfortunately, true.

Most cases having to do with discrimination or wrongful termination relating to an EEO category (age, race, sex, disability, etc) must go through a required administrative process before a lawsuit can be filed. Even more confusing is the fact that you may have more than one administrative agency to choose from when deciding where to file. Does it matter where you file? Sometimes yes. This administrative process and the choices that must be made early on in your case is one of the best reasons to consider hiring a lawyer earlier rather than later. More on why that is later. Short of that, here are some answers to some of the more basic questions regarding administrative filings:

What Types Of Cases Must Be Filed Administratively?

If your case involves potential claims for discrimination or termination based on an EEO category (age, race, sex, disability, religion, etc) then you probably need to file administratively. Claims for sexual harassment or retaliation for making a complaint or participating in an investigation of an EEO-related matter also must be filed administratively.

When Do I Need To File? Short Answer: IMMEDIATELY.

No really. The limitation periods for these types of claims vary depending on numerous factors but they are all short. In many states you will lose your right to pursue an action if you don’t file a Charge with the EEOC within 180 days of the event or occurrence you are complaining about. If you are a federal worker the deadline can be as little as 45 days. These are hard, fixed deadlines. There is no extending them because you had a good reason for delay. In many states, you only have 180 days to file a charge with the EEOC or lose your right to sue FOREVER, no matter how blatant the discrimination.

Where Do I Need To File

The default place to file your discrimination, sexual harassment or retaliation Charge is with the Equal Employment Opportunity Commission. They have offices in most metropolitan areas. Learn more here: http://eeoc.gov/employees/charge.cfm. You can also file a Charge by contacting them by phone at (800) 669–4000 (be prepared to wait an hour or more). However, depending on where you live, it might be better to file with a state or city agency that has a work-sharing agreement with the EEOC. Contact an employment lawyer near you to help you decide what is the best course of action in your area.

What Is The Process?

Filing a Charge is relatively easy once you arrive at the agency’s offices. You fill out a short form and then meet with an investigator who will complete the Charge documents for your signature. Each field office has its own procedures for appointments or walk-ins so check the website or call ahead for best results. It is always helpful if you bring with you to the meeting any information or papers that will help the investigator understand your case. For example, if you were fired because of your performance, you might bring with you the letter or notice telling you that you were fired and your performance evaluations. You might also bring with you the names of people who know about what happened and information about how to contact them.

Important: Keep in mind that the EEOC (and similar state agencies) can only investigate issues having to do with terminations and/or discrimination relating to EEO issues or retaliation for having made a complaint regarding EEO issues. They don’t investigate overtime or other pay issues and cannot help you if your termination is just because “my boss was mean.” Your issue must be EEO-related.

What Happens Next?

Once you have filed a Charge you may be invited to mediation. This is a topic for another article but the short version is that mediation is a voluntary process where the two sides of the dispute (you and your employer) sit down with an EEOC mediator for free to see if you can work out your differences and reach a pre-suit settlement. It is an excellent free service that the EEOC provides and I highly recommend it for most cases. Keep in mind, however, that you will benefit from having a lawyer with you at a mediation unless your case is so small that you wish to settle it for very little money (typically less than $15,000.00. If your case is worth more than this baseline amount, having a good lawyer will typically enhance the value of your case by more than you will end up paying your lawyer in fees up front or in a contingent fee on the back end.

How Do I Find A Good Lawyer?

This can be a difficult task but it is worth your time to find the right lawyer for your case. Geography plays a big role here. In some parts of the country there will be many qualified lawyers to choose from. In other areas there will be few. To get started, review my article on How to Hire an Employment Lawyer.

Same-Sex Spouses Enjoy FMLA Protection In All But Four States - And Yep, Texas is One of the Four

FMLA Same SexThere has been a good deal of reporting over the last month or so about the Department of Labor's recently-implemented final FMLA rule that expanded the definition of “spouse” under the FMLA to include employees in legal same-sex marriages. Both employee-side and employer-side groups praised the new rule because it brought uniformity to FMLA regulations. Although this rule took effect on March 27, 2015, a federal district court ruling in Texas left the status of the new rule in limbo.

After the DOL issued its final rule, Attorneys General in Texas, Arkansas, Louisiana, and Nebraska filed suit in a federal district court in Texas asking the court to strike down the DOL’s final rule. The court granted an injunction and halted the DOL’s enforcement of its final rule. Given this ruling, it was uncertain what the DOL would do. The agency has since announced that it will not enforce the rule in the four states of Texas, Arkansas, Louisiana and Nebraska.

In a court filing, the DOL said: “[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .”

However, the DOL confirmed it will enforce the rule in the remaining 46 states.

A Win for Pregnant Workers at the Supreme Court

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Peggy Young, a UPS driver who was forced from her when she got pregnant because the company wouldn’t allow her to work light duty, was victorious late last month at the U.S. Supreme Court. You can read the entire opinion here. "Conservative" Supreme Court Justices John Roberts and Samuel Alito joined with the "liberal" justices on the Court in what most observers are characterizing as a big win, not just for pregnant women, but also for all women in the workplace. That is no small feat from a court that has in recent years narrowed interpretations of anti-discrimination law and been reluctant to impose any new burdens on businesses.

The case had brought together an unusual alliance of women’s rights activists and anti-abortion groups, who argued that women shouldn’t have to choose between her pregnancy and her job.

The 6-3 opinion, written by Justice Stephen Breyer, sends the Young case back to the Fourth Circuit of Appeals, which had previously ruled against Young, with a new set of rules that should make Young’s chances of prevailing “very strong.” The Fourth Circuit, Breyer wrote, should have asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia dissented. Young argued that because UPS accommodated other kinds of workers, such as injured ones or drivers who had lost their Department of Transportation licenses, it was discriminatory not to extend the same to pregnant women who also temporarily needed to be accommodated. The court’s majority didn’t entirely accept that argument, but it did say that pregnant workers could bring claims under the long-settled "McDonnell Douglass process for adjudicating other discriminatory claims under Title VII of the Civil Rights Act.

Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have to “consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to work.”

UPS has reportedly already changed its policy to explicitly include accommodations for pregnant workers, but the rules laid out by the case will impact working women at companies around the country, since they guide lower courts in future litigation.

Supreme Court Agrees to Decide Same-Sex Marriage Issue

On Friday, January 16, 2015, the Supreme Court agreed to hear four cases from the Sixth Circuit concerning whether under the Fourteenth Amendment a state can permissibly ban same-sex marriage.  The Court previously side-stepped this issue in its 2013 decision in United States v. Windsor.  In Windsor, the Court found that under the due process clause of the Fifth Amendment the Federal government must extend the Federal rights and benefits of marriage to legally married same-sex couples.   Windsor, however, did not address the underlying question of whether states are required to recognize and/or solemnize same-sex marriage. Subsequent to Windsor, over 40 courts at the state and Federal level have struck down state bans on same-sex marriage, holding that such bans violate the Fourteenth Amendment.  These decisions have caused the number of states that permit same-sex marriage to rise from eleven at Windsor’s issuance to thirty-six.  A large part of this increase was due to the Supreme Court’s decision on October 6, 2014 not to grant certiorari to the decisions of the Fourth, Seventh, and Tenth Circuit Courts striking down state marriage bans.  By not granting certiorari in October, the stays expired on the Circuit Court decisions, and same-sex marriage was legalized in eleven states.

In granting certiorari on the instant petition, the Court set briefing and argument on two issues. First, whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and second, whether the Fourteenth Amendment requires a state to recognize a same-sex marriage legally licensed in a different state.

Should the Court find that the Fourteenth Amendment requires states to license same-sex marriages, the fourteen remaining same-sex marriage bans will be nullified.  Employers operating in those states would need to conform certain employment policies (such as FMLA leave) to cover same-sex spouses in the manner that employers in the majority of states have had to in the wake of Windsor.

A ruling striking down marriage bans would also create a unique situation: all states would be required to permit same-sex marriage, but employers in the majority of states could still fire an employee for being gay or for being in a same-sex marriage.  Employees, emboldened by a ruling that legalizes same-sex marriage and frustrated by a Congress that has not expressly outlawed LGBT discrimination, are likely to increasingly use the Court to argue that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII.  The EEOC and the Obama administration already take this position.  Whether courts will be receptive to such a reading of the law, remains an open question.  However, language in a Supreme Court decision finding that LGBT individuals are a protected class under the Fourteenth Amendment, may give such an argument more persuasive effect.  An additional outcome of a legalization of same-sex marriage is that opponents of same-sex marriage will work to pass state legislation that allows individuals (including employers) to make decisions based on their religious faith.  Such laws, which are premised on the Supreme Court’s decision in Burwell v. Hobby Lobby, 573 U.S. ____ (2014), and on the Religious Freedom Restoration Act (“RFRA”), will allow employers to argue that they can lawfully deny benefits to same-sex spouses (such as spousal health benefits under an ERISA plan) even in the face of an expansive reading of Title VII.  In the Hobby Lobby ruling, the Court made a point of noting that a closely held corporation’s religious beliefs could not be used to justify race discrimination.  However, the Court did not address whether an employer’s religion rights can justify denying benefits to LGBT individuals.  The answer to this question will only be decided by clarifying Federal legislation or by a subsequent Supreme Court decision.

A ruling allowing states to ban same-sex marriage but requiring them to recognize legal marriages performed elsewhere would avoid many of these issues as it would be limited to the principle of comity (recognizing contracts performed in other states) under the Constitution’s Full Faith and Credit Clause. Such a narrow holding, would allow same-sex couples in all 50 states to obtain a marriage license recognized by the state and Federal government, so long as the marriage took place in a jurisdiction that recognized the union.  This outcome would create certain difficulties for employers as they would be required to examine the wedding licenses of their same-sex employees to ensure that the marriage took place in a state where the marriage was legal.  However, such a burden is likely de minimis, given that most employers already require proof of marriage before extending spousal benefits to an employee’s spouse.  Of course, such a ruling would also reverse the gains of the marriage equality movement.  Same-sex marriage bans would remain Constitutional, thereby allowing marriage bans to be revived in a majority of states (the fourteen states with in-effect bans, plus all states in which Courts have invalidated same-sex marriage bans post-Windsor).  Such an outcome would be a setback from those arguing for increased rights for LGBT individuals (including LGBT employees).

An even more crushing blow to the LGBT rights movement would occur if the Court found that the Constitution does not require states to license or recognize same-sex marriages.  Such an outcome would keep in effect the marriage bans in fourteen states, and allow over 20 states to argue that their marriage bans, which were struck down by lower courts, should be given full effect on a prospective basis.  Such a ruling would have ripple effects beyond the same-sex marriage context.  Just as pro-LGBT language from the Supreme Court will likely have an impact on lower court jurisprudence regarding issues surrounding LGBT individuals (including employment and employee benefit discrimination), so too would less positive or negative language from the Supreme Court make lower courts more wary of issuing rulings that increase LGBT rights.

EEOC Releases 2014 Statistics

eeocThe Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tablesproviding detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014. The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."

The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges ofRace Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Supreme Court Issues Opinion in Young v. UPS Pregnancy Discrimination Case

The US Supreme Court has issued an opinion in Young v. United Parcel Service, Inc. - holding that employers must provide accomodations for pregnant employees to the same degree that they provide accommodations to other employees. The opinion is fresh off the press so I'll post a lengthier analysis after I get time to read and digest the full opinion.

In the meantime, I've included the full text of the the Court's Syllabus (summary) of the decision and a copy of the full opinion can be downloaded here.


SUPREME COURT OF THE UNITED STATES

Syllabus

YOUNG v. UNITED PARCEL SERVICE, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12–1226. Argued December 3, 2014—Decided March 25, 2015

The Pregnancy Discrimination Act added new language to the defini­tions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “be­cause of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U. S. C §2000e(k). The Act’s second clause says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

 

Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, re­quired drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed this federal lawsuit, claiming that UPS act­ed unlawfully in refusing to accommodate her pregnancy-related lift­ing restriction. She brought only a disparate-treatment claim of dis­crimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protect­ed characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792. Under that framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination. Id., at 802. If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treat-

 

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Syllabus

ment. Ibid. If the employer articulates such reasons, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253.

After discovery, UPS sought summary judgment. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated work­ers who were injured on the job, had disabilities covered by the Amer­icans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.”

The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of dis­crimination under McDonnell Douglas. The court found that those with whom Young had compared herself—those falling within the on-the-job, DOT, or ADA categories—were too different to qualify as “similarly situated comparator[s].” The Fourth Circuit affirmed.

Held:

1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10–23.

(a) The parties’ interpretations of the Pregnancy Discrimination Act’s second clause are unpersuasive. Pp. 12–20.

(i) Young claims that as long as “an employer accommodates only a subset of workers with disabling conditions,” “pregnant work­ers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive ac­commodations.” Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irre­spective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the em­ployer must treat pregnant employees the “same” as “any other per-

 

Cite as: 575 U. S. ____ (2015)                                              3

Syllabus

sons” who are similar in their ability or inability to work, nor does it specify the particular “other persons” Congress had in mind as ap­propriate comparators for pregnant workers. Moreover, disparate-treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual rea­son for doing so. See, e.g., Burdine, supra, at 252–258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12–14.

(ii)  The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Op­portunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, “consistency,” and “thoroughness” of “consideration” nec­essary to “give it power to persuade.” Skidmorev. Swift & Co., 323 U. S. 134, 140. The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14–17.

(iii)UPS claims that the Act’s second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act’s second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key con­gressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gil­bert, 429 U. S. 125, which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit pay­ments for any absence due to pregnancy. Pp. 17–20.

(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not ac­commodate her, and that the employer did accommodate others “sim­ilar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it

 

4                       YOUNG v. UNITED PARCEL SERVICE, INC.

Syllabus

is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “le­gitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the bur­den imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while fail­ing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legiti­mate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.

2. Under this interpretation of the Act, the Fourth Circuit’s judg­ment must be vacated. Summary judgment is appropriate when there is “no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distin­guished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23–24.

707 F. 3d 437, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissent­ing opinion, in which KENNEDY and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion.