Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And MoreWednesday, May 4th, 2011
Here are a few employee rights Short Takes worth noting:
It’s A First: Major League Baseball Player Takes Paternity Leave
National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.
New Rules For The Americans With Disabilities Act
New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 (“ADAAA”). The law made significant changes with respect to the interpretation of the term “disability” under the Americans with Disabilities Act.
Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage. As legal commentator noted:
The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.
The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.
The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.
Discrimination Lawsuit Raises Issue Of Who Is A Man
I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male.
The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden. His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.
Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.
New Jersey is one of 12 states that ban discrimination based on transgender status. The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.
In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances. (for more about the BFOQ exception, see here)
This groundbreaking case will certainly be an interesting one to follow.
Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day
Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.
Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.
Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.
Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit. After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.
Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.
The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.
It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today. For more, read here.
This blog originally appeared in Employee Rights Post on May 2, 2011. Reprinted with permission from the author.
About the Author: Ellen Simon is recognized as one of the leading employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.