Thursday, January 29, 2015

OFCCP Proposes Revisions to Sex Discrimination Guidelines

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) yesterday issued a Notice of Proposed Rulemaking that would revise the existing Sex Discrimination Guidelines. The revision would set forth the requirements for covered federal contractors and subcontractors to prevent sex discrimination in employment.  The notice will be published in the Federal Register tomorrow, and the comment period will be open until March 31, 2015.

The text of the NPRM is here

Of particular interest to readers of this blog, the proposed revision to the Guidelines discusses pregnancy and pregnancy accommodation, and family responsibilities discrimination.  First, the proposed revision clarifies that discrimination based on pregnancy, childbirth, or related medical conditions is sex discrimination. (Yes, the original Guidelines were so old that they pre-dated the Pregnancy Discrimination Act.) Section 60-20.5 provides more detail, providing that “related medical conditions” include, but are not limited to, “lactation; disorders directly related to pregnancy, such as preeclampsia (pregnancy-induced high blood pressure), placenta previa, and gestational diabetes; symptoms such as back pain; complications requiring bed rest; and the after-effects of a delivery.” This list may seem startling, but it is in line with recent court rulings, the amendments to the Americans with Disabilities Act, and recent interpretations by the EEOC (including its Enforcement Guidance on PregnancyDiscrimination and Related Issues).

Next, the proposed revision provides a list of illustrative examples of workplace practices that could be considered pregnancy discrimination. These include employment decisions made based on childbearing capacity as well as pregnancy; forced leave during pregnancy; termination because of pregnancy; and requiring a pregnant woman to obtain a doctor’s note to continue to work when similarly situated employees are not required to obtain a note.

Importantly, the list also includes denying job accommodations to pregnant women. The OFCCP notes that this section may change, based on the Supreme Court’s decision in the Young case. The proposed revision states that an example of unlawful pregnancy discrimination would be “[d]enying an alternative job assignment, modified duties, or other accommodations to a pregnant employee who is temporarily unable to perform some of her job duties because of pregnancy, childbirth, or related medical conditions when such assignments, modifications, or other accommodations are provided, or are required to be provided by a contractor’s policy or by other relevant laws, to other employees whose abilities or inabilities to perform their job duties are similarly affected.” For many contractors, this will not be a huge change because they are covered by state laws requiring accommodation, or because they comply with the ADA’s mandate to accommodate disabilities even if those disabilities arise from pregnancy.

The proposed revision echoes the EEOC’s recent guidance on pregnancy discrimination by reminding contractors that family leave must be provided to male employees on the same terms that it is provided to female employees.

Turning to family responsibilities discrimination, the proposed revision states that employment decisions made on the basis of sex-based stereotypes is sex discrimination – and this includes decisions made on the basis of sex-based stereotypes about caregiver responsibilities. The proposed revision provides several examples, including adverse treatment of a female employee based on the sex-based assumption that her family responsibilities will interfere with her work, adverse treatment of a male employee because he has taken or plans to take paternity leave, denying opportunities to mothers based on the assumption – whether hostile or benevolent – that she should not or will not work long hours, and evaluating female employees who have caregiving responsibilities adversely based on a sex-based stereotype that they are less capable or less skilled that noncaregivers.

Like the other provisions, the FRD provision is based on case and statutory law and is consistent with the EEOC’s interpretations (including its Enforcement Guidance on Unlawful Disparate Treatment of Workers withCaregiving Responsibilities), and thus should not be particularly surprising.  Sex-based assumptions are the foundation of most FRD claims, and the proposed revision will make it even more important for contractors to implement an FRD prevention program to avoid liability. 

Thursday, October 30, 2014

New Legal Treatise on Family Responsibilities Discrimination

Employment lawyers and HR professionals now have a go-to reference for issues involving employees with family caregiving obligations: Family Responsibilities Discrimination by Cynthia Thomas Calvert, Joan C. Williams, and Gary Phelan (Bloomberg BNA 2014).

Just published, this first-of-its-kind legal treatise provides a comprehensive explanation of the rights and obligations of employers and employees when employees are pregnant, have young children, or act as caregivers for aging parents. Here are some of the topics covered by the treatise:

  • Federal laws prohibiting FRD. The treatise covers the federal laws used by plaintiffs' lawyers to bring FRD claims, including Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act, ERISA, and the Equal Pay Act. The use of each law is described in detail, with practice pointers for both plaintiffs' and management-side lawyers and a collection of relevant case law by jurisdiction.
  • State-by-state overview of laws. In addition to the federal laws that govern FRD, many states, counties, and cities have laws that cover family caregivers. Here are just a few of the jurisdictions that have FRD laws: Minnesota, Alaska, District of Columbia, Chicago, Boston, San Francisco, Philadelphia, and Milwaukee.  There are more than 90 additional jurisdictions.
  • Maternity and paternity leave. In addition to covering leave for new parents under the Family and Medical Leave Act, the treatise answers such questions as: Do employees have a right to maternity leave under the Pregnancy Discrimination Act? Which states require employers to give maternity leave? Does an employer break the law if it refuses to give new fathers the same amount of leave as new mothers? How much leave can an employee take and still have his or her job held open? Can employers ask employees to work while they are on leave? When does an employer have to extend the employee's leave?
  • Pregnancy Accommodation.  The treatise discusses the various sources of employers' obligations to provide accommodations to pregnant employees, including newly-enacted state laws. It provides guidelines from case law, regulations, and medical professionals for determining appropriate accommodations.
  • Discrimination based on association with a family member who has a disability. An employer who allows employees to change their schedules to attend classes or participate in sports may face a discrimination lawsuit if it does not similarly allow employees to change their schedules to care for a family member with a disability. This is just one example of how the Americans with Disabilities Act and similar state laws play a role in FRD.
  • Investigation of FRD complaints. The treatise provides a roadmap for HR professionals to use in handling complaints of discrimination from employees.
  • FRD Prevention Program. Employers can reduce their likelihood of being sued for FRD and improve their ability to manage caregiving employees, and this treatise shows how.
Employment lawyers and HR professionals have to understand FRD to provide competent advice to their clients. This treatise makes it easy to grasp the core concepts and ensures that relevant information will be at hand when a claim arises. It is available from Bloomberg BNA

Tuesday, October 21, 2014

Most Men Work Flexibly, And Their Employers Support It

Getting and keeping the best male employees requires not only providing flexibility but also supporting it, a new study by the Working Mother Research Institute says. Most men surveyed are working flexibly (77%), and most said their employers encourage flexible work (62%).

The 1000 men surveyed were mostly white, college-educated, breadwinners who were dads, but a significant number were single and child-free. Of the respondents who work flexibly, 66% do so as needed, and 35% have regular flex schedules. Telecommuting was the most common form of flexibility, and more than half would choose to work part-time if they could do so and still have a meaningful career. Those who worked flexibly reported greater work satisfaction, more loyalty, higher morale, better productivity, more collegiality, and better communications with their teams.

In the past, employers offered flexible work programs with finger crossed behind their backs: all savvy employees knew that they better not use the programs if they wanted to get ahead. That no longer appears to be the case for the employers of most of the male respondents. A little more than a quarter of the men said, however, that their employers could encourage flex but do not. Compared to men whose employers encouraged flex, men whose employers did not encourage flex reported being less satisfied with: compensation, respect, opportunity to develop skills, job security, relationships with co-workers, support from managers, and career prospects. The differences were not small – it is worth reading the report just to see the dramatic impact that an employer’s attitude toward flexibility can have on employees.

So, just what should an employer do to encourage flexibility? The report suggests that a key step is for employers to eliminate stigma against those who work flexibly, particularly those who work part-time.

Eliminating flexibility stigma requires serious effort, and usually involves: identifying the types of stigma present in a company, how it is expressed, and where its effects are felt; developing the company’s unique business case for eliminating flexibility stigma; creating awareness about flexibility bias and educating supervisors and employees about how they can reduce it; communicating support for flexible work verbally and nonverbally throughout the company; and putting in place systems for monitoring stigma. Like any change initiative, it requires the leadership of top management, and the sustained commitment of HR. As shown by the study, companies that undertake the effort will be amply rewarded.

Monday, July 14, 2014

10 Key Takeaways for Employers from the EEOC’s New Pregnancy Discrimination Enforcement Guidance

The EEOC issued a lengthy and detailed enforcement guidance today that summarizes the changes over the past30 years in the laws that affect pregnant employees. Here are 10 key things the EEOC said employers need to know now to make sure they treat pregnant employees lawfully:

1.  The fundamental rule of the Pregnancy Discrimination Act (PDA) remains the same:  Pregnant employees are to be treated like other workers who are similar in their ability or inability to work. 

2.  “Same treatment” means that pregnant employees are entitled to light duty work if the employer provides light duty work to other employees – and this also means that policies that limit light duty work to on-the-job injuries are discriminatory.  Essentially, the EEOC’s view is that a pregnant employee and a nonpregnant employee who have lifting restrictions must be treated the same under the PDA regardless of how the nonpregnant employee came to have the lifting restriction (football game, disability, on the job injury).

 The courts are split on this issue, and the Supreme Court has granted cert in a light duty case to be heard next term.  Until that decision comes out, employers may want to err on the side of caution and grant light duty to pregnant employees who need it.  Note, however, that the EEOC recognizes that employers can apply light duty rules – such as limitations on the number of employees who can work light duty or limitations on the duration of light duty assignments – to pregnant employees as long as the same rules are applied the same way to nonpregnant employees.

3.  “Same treatment” also means that pregnant employees with pregnancy-related conditions that meet the definition of “disability” under the Americans with Disabilities Act (ADA) must be given reasonable accommodations so they can continue to work, unless providing the accommodations would create an undue hardship for the employer.  The ADA was amended to broaden the definition of “disability,” and employers are now providing accommodations to more employees.  In practical terms, the change in the law means that employers who provide lifting assistance, a seat to sit on, or an extra unpaid break to employees with disabilities must provide similar accommodations to pregnant employees who have medical conditions that necessitate such accommodations.

4.  Employers cannot force pregnant workers out on leave if they are able to do their jobs.

5.  Lactation is a pregnancy-related medical condition for the purposes of the PDA, meaning that employers cannot discriminate against an employee because she is breastfeeding or needs breaks to express milk.

6.  Fathers must be given the same amount of child care and child bonding leave as mothers. Employers can give birth mothers longer leave, whether paid or unpaid, as long as the difference is attributable to the time the mothers need for childbirth and recovery.  So, giving birth mothers 12 weeks of paid leave and giving fathers six weeks of paid leave would pass muster under the EEOC’s analysis, but giving mothers 12 weeks of paid leave and fathers two weeks would not.

7.  Employers cannot discriminate against women because they might become pregnant at some point in the future.  Asking about family plans, refusing to hire women of child bearing age, and terminating women who are trying to become pregnant are all illegal.

8.  Waiting until a woman gives birth to fire her for becoming pregnant is also a no-no.  The PDA also covers recent past pregnancies.

9.  Leave and attendance policies have to be applied consistently.  If a pregnant employee takes leave in accordance with her employer’s sick leave policy, for example, she cannot be fired for doing so.  Similarly, if a nonpregnant employee is not fired for being late or absent, a similarly situated pregnant employee who is similarly late or absent cannot be fired.

10.  Employment decisions that are based on stereotypes and assumptions about pregnant employees (and employees who have caregiving responsibilities such as new mothers and fathers) are illegal.  This means that an employer cannot refuse to promote a pregnant employee because the employer assumes she will not want the increased responsibilities of the new position due to her pregnancy or because it views her as less committed to her job.  It also means an employer cannot refuse to hire a pregnant employee because she will need to take maternity leave. 

The EEOC also provided best practices for employers.  Here are a few:  train managers and employees about their rights and responsibilities related to pregnancy and caregiving; focus on employees’ and applicants’ qualifications and performance, rather than allowing assumptions to rule; document and explain personnel decisions; protect against harassment; investigate complaints promptly; and have a process in place for determining requests for reasonable accommodation.

Workforce 21C provides training for HR, managers and supervisors about pregnancy and caregiver discrimination.  Contact Cynthia Calvert at 410-480-4882 for more information, or visit our website at

Monday, January 7, 2013

FRD and the EEOC’s Strategic Enforcement Plan: What Employers Need to Know and Do

Failing to accommodate pregnant employees, paying mothers less and harassing men who take family leave are going to draw the attention of the EEOC over the next several years.  Here’s what employers can do now to avoid the agency’s spotlight.

The EEOC approved a Strategic Enforcement Plan last month, laying out for employers the areas where it will concentrate its investigatory and prosecutorial resources.  Several of the priorities indicate continued scrutiny of family responsibilities discrimination, known as caregiver discrimination to the EEOC.  Employers are beginning to take steps to protect themselves from FRD claims, but many still need to train their employees and get their policies and practices in order.  A good place to start is with the agency’s areas of focus.
  • Accommodation of Pregnant Workers.  The SEP sets out the EEOC’s National Priorities, which include addressing “emerging and developing issues” such as pregnancy accommodation.  Many employers think that they do not need to give pregnant employees additional breaks or chairs or help with lifting, but recent changes to the Americans with Disabilities Act suggests that they do.  Employers wanting to avoid becoming a test case for the EEOC can begin by reviewing the types of accommodations they have made for workers with non-pregnancy-related disabilities, injuries, and illnesses and making similar accommodations for pregnant workers if it would help them to continue to work.  Additional preventative steps include educating supervisors about the business benefits of retaining pregnant workers and encouraging them to be creative in crafting reasonable accommodations as necessary. 
  • Equal Pay.  The EEOC also intends to prioritize enforcement of Equal Pay laws.  Caregivers are often paid less than other workers, typically because of unexamined assumptions about their competence, commitment and value.  Stuart Ishimaru, when he was acting Chair of the EEOC, highlighted this as an area of concern for the Commission. This should be an area of concern for employers, who may want to undertake a review of compensation with caregiving status in mind.  Training HR and supervisors to recognize and eliminate the biases that give rise to unequal pay for caregivers would be an effective prevention step. 
  • Harassment of caregivers.  In addition, the EEOC plans to step up its enforcement of anti-harassment laws.  Complaints by employees with family caregiving obligations often include allegations of sex-based harassment, such as men being ridiculed and ostracized for taking time off to care for family members because caregiving is “women’s work” and mothers of young children being yelled at, disciplined unfairly, and being given undesirable work in an effort to make them quit because supervisors assume that they will not be good workers. The EEOC has already recognized such harassment  in its Enforcement Guidance on caregiver discrimination. Employers would be well advised to make sure that supervisors understand that harassment based on caregiving is illegal.  Ensuring that HR is prepared to investigate and address harassment complaints from caregivers would also be a wise prevention step.

Finally, the EEOC has warned that it is going to step up enforcement in two ways that could affect employers of caregivers.  First, it is going to partner more frequently with private lawyers in prosecuting employee lawsuits.  This is significant because family responsibilities discrimination cases typically involve statutes and common law theories that are beyond the EEOC’s purview.  Involving private counsel will allow, for example, claims to be brought under the FMLA and state anti-discrimination laws and for wrongful discharge, along with claims for violation of Title VII, the Equal Pay Act, and the Americans with Disabilities Act.  The action step for employers is obvious: make preventing FRD a priority.  For starters, implement an anti-FRD policy, train supervisors about what FRD is and why it arises, equip HR to recognize trigger situations and to respond to complaints, and institute a system for measuring key indicators of FRD.

Second, the EEOC will prioritize systemic cases, which are those based on pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area. This is bad news for companies that have a dearth of mothers and other caregivers in upper management, because practices in the areas of work assignment, training, promotion, etc. that affect representation in upper management are not hard to document. Employers can begin to right their ships by looking not only at the terms of their personnel policies and how they are applied, but also at the results produced by the policies.  Are mothers clustered around the lower rungs?  Do fathers largely forgo their right to take paternity leave? What are the career paths of caregivers after they have taken family leave or after they have begun working a flexible schedule?  Looking at the evidence the way an EEOC investigator is likely to will show where improvements are needed.

Wednesday, May 9, 2012

Do We Need the Pregnant Workers Fairness Act?

Most employers treat pregnant women fairly.  Bathroom breaks, seated work, water and snacks, help with lifting and the like are made available as needed not only as a matter of human decency but also as a matter of good human resources management.  After all, keeping good employees and enabling their productivity accrues directly to the bottom line.

So do we need new federal legislation to treat pregnant workers fairly? Yesterday, Representatives Jerrold Nadler, Carolyn Maloney, and others  introduced a bill known as the “Pregnant Workers Fairness Act”  that would require employers to make reasonable accommodations that pregnant workers need to be able to keep working and would prevent employers from forcing pregnant workers to take leave that they do not want or need when a reasonable accommodation would make it possible for them to continue to work.  “Reasonable accommodation” would have the same meaning as under the Americans with Disabilities Act, and the bill contains a provision like the ADA’s that would protect employers from having to provide accommodations that would create an undue hardship.  The employers and employees covered would be the same as those covered by Title VII.

Unfortunately, this legislation is very much needed.  Too many employers force pregnant women to choose between health and a paycheck by refusing to let them do small things that would make it possible for them to work.  The WorkLife Law FRD Case Database that I maintain has hundreds of examples of pregnant women who were terminated when small, reasonable, temporary changes in their jobs were denied – sometimes by employers who expressly refused accommodation because no law required it. Examples include a pregnant retail worker who was fired for carrying a water bottle, pregnant women who were fired when they needed help lifting, a pregnant worker who was denied a stool to sit on, a pregnant hospital technician who was denied a sedentary position and then fired, a pregnant cable technician who could do buried cable work and requested the assistance of a bucket truck to do aerial work was terminated, and a pregnant Latina cashier who was forced to quit when she was not transferred to suitable position even though a position was open and pregnant white women had been transferred to similar positions in the past.

There are numerous reasons to pass the legislation, including that it will save jobs, prevent financial hardship for families, and decrease employee turnover.  There is little in the bill for employers to fear.  As noted, most already comply, and employers in several states already operate under statutes that require accommodation for pregnant workers.  Moreover, the proposed statutory framework is familiar: workers with disabilities are accommodated in the workplace and the bill requires only that pregnant workers be similarly accommodated.
There is another good reason to pass the bill: plaintiffs’ lawyers are bringing an increasing number of cases against employers for failing to accommodate pregnant workers, and the number is likely to grow as courts interpret the Americans with Disabilities Amendments Act to require more accommodation.  EEOC Commissioner Chai Feldblum asked at the February EEOC meeting if failing to accommodate pregnant workers is risky business – a question witnesses at the meeting clearly answered “yes.”  The proposed legislation would reduce employer’s litigation risk by clarifying employers’ obligations with respect to accommodation of pregnancy and ultimately reducing the number of failure-to-accommodate cases. 

As the best employers know, treating workers fairly is a surefire way to boost productivity, reduce costs, and provide great service and products – regardless of whether the workers are pregnant.

Thursday, March 8, 2012

3 FRD Mistakes Good Supervisors Make

Family responsibilities discrimination rarely springs from spite and malice.  Almost always, as I point out in FRD prevention trainings, supervisors are trying to do the right thing for their companies and even for their employees when they cross the line into discriminatory action.  Unfortunately, the road to the courthouse is paved with supervisors’ good intentions. Here are three mistakes well-meaning supervisors make:

1) Trying to hire the “best” employees by rejecting caregivers:  Employers need employees who can get the job done.  Supervisors have to hire employees who are able to do the work, do it well, and do it on time.  They often make stereotypical assumptions about which types of employees will best fit the bill, which includes trying not to hire applicants who have or will have distracting family obligations. This leads to illegally sex-based interview questions about family planning, childcare, travel capability, and availability for overtime – and also to illegal sex-based hiring decisions.  Hiring women who are single and child-free does not insulate the employer from liability for sex discrimination, and the supervisor’s pattern of hiring decisions will be exhibit A at trial. (Solution:  train supervisors about the business reasons for avoiding FRD and on how to recognize and stop stereotyped assumptions; create protocols and implement monitoring to ensure legal hiring.)

2) Trying to be supportive of caregivers:  Supporting caregivers and all employees is good management that can increase employee loyalty and productivity.  Done incorrectly, however, it leads to lawsuits.  When supervisors make decisions for caregivers based on assumptions about what they can or should do, they are on thin ice.  For example, taking a new mother off assignments that require long hours or passing a mother over for a promotion that would involve travel may be motivated by a desire to do the right thing, but may lead to dead end careers (think: mommy track) when mothers are frozen out of the experiences they need to advance.  (Solution: ask the caregiver if he or she would like the assignment or promotion, rather than assuming or deciding for him or her.)

3) Trying to teach caregivers how to juggle work and family:  Good supervisors help employees develop their abilities using a variety of techniques such as goal setting, counseling, modeling and coaching.  Supervisors run into trouble, however, when their objectives stray into the personal and family arenas.  Counseling fathers that childcare should be their wives’ responsibility, advising new mothers that they should stay home with their babies, questioning the medical needs of an aging parent, setting attendance or performance goals for caregivers but not other employees, limiting talk in the workplace about children but not other topics like sports and disciplining caregivers but not others for personal phone calls are a few of the ways supervisors have erred.  (Solution: train supervisors on good management techniques, company policy, elimination of caregiver and sex stereotypes, and FRD legal liability.)