Happy Belated Valentines Day: US Dept. of Labor Expands Definition of “Spouse”

The DOL announced today that it revised the definition of “spouse” under the FMLA. Under the revised definition, an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of whether the employee’s home state recognizes same-sex marriage. The change is consistent with the U.S. Supreme Court’s ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law. Under the updated rule, employees in legal, same-sex marriages, regardless of where they live, will now have the same rights to federal job-protected leave under the FMLA to care for a spouse with a serious health condition as employees in opposite-sex marriages.

Oregon Considers Unpaid Leave to Attend School Functions

House Bill 2646 proposes to require employers to provide 8 hours of unpaid leave per year to employees to attend teacher conferences and school related activities during school hours, volunteer at school, and attend school sponsored events. The proposed law also makes it an unlawful employment practice for an employer to terminate or discipline an employee for taking unpaid leave to attend school activities, for attending a school conference at the request of a school administrator, or if the employee is notified during work hours of an emergency involving a child.

HB 2646 is backed by the Oregon Labor Commissioner.  We will keep you posted on developments.

Sometimes It Makes Business Sense for Employers to Negotiate a Pre-Lawsuit Settlement

Why would an employer who denies wrongdoing enter into a settlement with the EEOC before a discrimination lawsuit was filed? Well, for employers, litigation is often expensive, time consuming, and distracting. Additionally, the outcome of litigation, even when very strong defenses are available, can be uncertain. Accordingly, in some cases, it makes good business sense for an employer to negotiate a reasonable settlement before a lawsuit is even filed. This week, the EEOC announced the resolution of discrimination claims in this very situation. Three female employees of defense contractor Defense Support Services LLC, a subsidiary of Pacific Architects and Engineers Incorporated notified EEOC’s Denver Field Office and Phoenix District Office that they believed their employer had subjected them to sex discrimination, sexual harassment and also retaliation for complaining about it. The employer denied wrongdoing and/or liability but agreed to conciliate all charges. The settlement reached requires the employer to comply with all requirements under the Equal Pay Act of 1963, to refrain from any discrimination or retaliation of any kind against complaining parties or any person because of opposition to any practice declared unlawful under Title VII of the Civil Rights Act of 1964, to conduct equal employment opportunity training, and to pay an unspecified monetary settlement to all parties. As for the requirement that the employer comply with the law and conduct compliance training, those are things that employers should do anyway.

DOL Q&A on Pregnancy Discrimination

A Q&A with the Women’s Bureau Director of the DOL about pregnancy discrimination was posted on the DOL’s Blog last week.  The post includes an interesting interactive map of laws regarding pregnancy discrimination. The Q&A is here: http://blog.dol.gov/2015/02/13/qa-with-womens-bureau-director-latifa-lyles-on-pregnancy-discrimination/

The map is here:  http://www.dol.gov/wb/maps/


Looking to Hire “Fresh” Employees?

If your answer is “yes,” then you better look for an attorney at the same time, because “fresh” is apparently a code word for young, and as a national restaurant chain just discovered, may be the basis of a claim for age discrimination.  According to the EEOC, Seasons 52 refused to hire older employees for front-of-house positions because they were seeking to project a youthful image.  Restaurant hiring officials are also alleged to have told applicants that they were not looking for “old white guys.”  Regardless of whether the EEOC prevails on its claims for age discrimination, the case is a reminder to employers to be very careful when hiring to create an “image” for their business.  http://www.eeoc.gov/eeoc/newsroom/release/2-12-15a.cfm


EEOC: Title VII Applies to Transgender Employees

The Equal Employment Opportunity Commission (“EEOC”) recently filed a brief in support of a wrongful termination and harassment lawsuit brought by a transgender former employee of Saks & Co.  The EEOC asserts that gender expression is a component of sex discrimination under Title VII.  The brief comes on the heels of a lawsuit filed by the EEOC in September 2014 on behalf of a transgender employee of an eye clinic in Florida.  Legal protections for transgender employees is an evolving area of the law.  Employers should ensure that they are aware of, and implement, best practices with respect to gender identity and expression.

EEOC 2014 Enforcement Data Released

The EEOC just released statistics on claims filed/settled in 2014.  The percentage of charges alleging retaliation reached its highest amount ever: 42.8%.  Also of note, on a national basis, the second most common charge filed was for race discrimination (including harassment), followed by sex discrimination (including pregnancy and sexual harassment).  In Oregon, 210 charges were filed in 2014.  Retaliation charges also lead in Oregon. However, in contrast to national statistics, more charges were filed based on sex discrimination in Oregon in 2014, than on race discrimination.

Oregon data is here: http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm#centercol

National data is here: http://www1.eeoc.gov/eeoc/statistics/enforcement/state_14.cfm

Blue Light Special on Discrimination in Aisle No. 102,048

A new workplace discrimination settlement shows just how costly discriminatory employment practices can be. The EEOC has announced that Kmart has agreed to pay over $102,048 to settle a disability discrimination lawsuit. According to EEOC’s lawsuit, Kmart offered a job at to Lorenzo Cook at one of its Maryland retail stores. Cook then informed the hiring manager that he could not provide a urine sample for the company’s mandatory pre-employment drug screening because of his kidney disease and dialysis. Cook requested Kmart allow him to instead take a blood test, hair test, or other drug test that did not require a urine sample.   Kmart refused to provide that alternative test and also withdrew its employment offer. According to the EEOC, Kmart did so because of Cook’s disability.

The EEOC’s lawsuit, and Kmart’s settlement, should remind employers that the Americans with Disabilities Act requires employers to provide reasonable accommodation not only to current disabled employees but also to disabled individuals during the application and hiring process, unless the employers can show it would be an undue hardship. In most circumstances providing an alternative drug test to accommodate a disability will not pose an undue hardship.