Tag Archives: Discrimination

Congress Considers Bill to Amend Burden of Proof in Age Discrimination Claims

In June, the United States Supreme Court issued an opinion in the case of Gross v. FBL Financial Services, Inc., in which the Court clarified the standard for showing age discrimination under the Age Discrimination in Employment Act (ADEA).  In short, the Court said that a plaintiff that claims age discrimination must show that but for the employee’s age, there was no other reason the employer would have taken the adverse action complained of.

This “but for” standard is more difficult for a plaintiff to show than the “substantial and motivating factor” standard other discrimination plaintiffs must show in claims brought under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of gender, race, religion, national origin, etc.  Under the “substantial and motivating factor” test, a plaintiff need only show that the protected class was a substantial and motivating factor – even if not the only factor – that led to the adverse action.

To address the different standards found in Title VII and in the ADEA, some Members of Congress have introduced HR 3721, which would be known as the “Protecting Older Workers Against Discrimination Act” (POWADA).  This bill, if passed, would amend the ADEA to provide that a plaintiff can recover in an age discrimination claim if he or she can show that age was a “motivating factor for the practice complained of, even if other factors also motivated that practice.”

President Obama made it clear that his legislative agenda included amending various employment laws to assist plaintiffs in making these types of claims, and the Administration already can take credit for one new law that overturns recent Supreme Court precedent in the area of discrimination, so it would make sense that this bill could see some support.  It is too early to tell right now, though, so I will continue to keep you posted.


Pennsylvania Legislature Considers Expansion of Human Relations Act

The PA State House currently is considering legislation to expand the coverage of Pennsylvania’s Human Relations Act.  The Act, originally adopted in 1955, prohibits certain types of discrimination that is based on a person’s race, color, religious creed, ancestry, age or national origin.

The new Bill, PA House Bill 300, would add sexual orientation and gender identity or expression to the protected classes.  Currently, neither PA state law nor federal anti-discrimination law prohibit discrimination on these bases.  Just under half of the states, however, include some protection for sexual orientation and/or gender identity.

The new law defines the term “sexual orientation” as “actual or perceived heterosexuality, homesexuality or bisexuality.”  The term “gender identity or expression” is then defined as “actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.”

Just like the rest of protected classes already addressed by the law, this change would apply to discrimination in employment, housing and public accommodations.  It would not have any formal impact on other types of rights, such as the right to marry, etc.

The definitions are obviously rather broad, however, and could serve to expand significantly the scope of the Act.  Time will tell whether there will be support for the legislation, which was narrowly approved by the House State Government Committee and now is before the Appropriations Committee.  Stay tuned for more updates, as this bill moves its way through the General Assembly.

Obama Signs First Bill – An Employment Law Change Already

I previously wrote about the impact that an Obama Administration would have on employment law.  In that article, I mentioned that Obama had vowed to sign legislation that in effect would overturn a recent Supreme Court decision that precluded a female employee from bringing an equal pay claim, since she did not bring the claim within the requisite time limit from the initial decision by the employer to begin allegedly discriminating against her with respect to her pay.

President Obama kept that promise, when he signed his first piece of legislation this week, the Lilly Ledbetter Fair Pay Act of 2009 (named for the plaintiff in the case he sought to overturn).  The new law declares that discriminatory pay arrangements are to be considered continuing violations that occur each time the employee receives his or her pay.  This makes it much easier for plaintiffs to meet the statute of limitations.

In her case against her former employer, Ms. Ledbetter claimed that, some time ago, she was given an unfairly low salary.  She alleged that the violation occurred each time she got a paycheck that was lower than what she claimed it should have been, meaning that she could file a claim any time within 180 days of receiving one of the paychecks.  Instead, the Court found that the alleged discrimination occurred when she originally was given a lower salary, meaning that her claim had to be filed within 180 days of that original event or was lost forever.

The fact that this was President Obama’s first bill signing means little or nothing from a legal perspective, but it does perhaps signal the new administration’s focus on expanding worker rights.  Only time will tell whether or not the next four years will continue in that direction.

Did Your Employees Call In Gay Today?

Today was the “Day Without a Gay” protest organized by gay rights activists, in an attempt to show how many gay workers there are in the American workforce.

As part of the protest, gay workers were encouraged to stay home and to refrain from spending money, also to show the collective impact gays can have in the economy.

Obviously, being gay is not generally a valid excuse for an absence, though employees could be free to utilize vacation or other leave time, assuming they comply with other applicable employer policies. Additionally, an employer is permitted to enforce attendance policies with respect to employees who do not comply with such policies in attempting to “call in gay.”

I do presume that the organizers of this event believe that “calling in gay” would be a valid excuse for missing scheduled work, like calling in sick would be. However, employers certainly are free to recognize the absence if they so desire. On the other hand, if an employer does not wish to support the cause, he or she may be nervous about enforcing attendance policies with employees who clearly are in violation, for fear of a discrimination claim.

Sexual orientation is not a protected class under any federal anti-discrimination statute, though. Some states do protect sexual orientation (PA does not), and among the various employment law changes suggested by President-elect Obama is the amendment of the Civil Rights Act to include this type of protection.

I do not anticipate a significant amount of fireworks to be caused by employers attempting to figure out how to handle employees who do literally “call in gay,” but it will be interesting to see what impact, if any, the protest has on American workplaces.

What Impact Will The Tough Economic Times Have On Labor & Employment Law

Last week, I looked at the impact that an Obama Presidency would have on labor and employment law.  Now, Reuters reports that the tough economic times also are likely to have an impact on this area of the law.

According to the report, with more and more employees losing jobs, there are bound to be more and more lawsuits for wrongful termination.  Additionally, as the article rightly points out, when people do not have a lot of options they tend to look to courts for a remedy.  This is unfortunate, because it can lead to an increase in the number of frivolous lawsuits by employees claiming that they were terminated for unlawfully discriminatory reasons.

What this means for employers is that you must be very careful when making employment decisions, even when the decisions are designed as cost savings measures.  You need to prepare for the possible suit before making or implementing your employment decisions – not after the fact when the employee files a discrimination charge.

Before taking any action, make sure to get good counsel, so that you can – as we say in our office – stay in the board room and out of the courtroom.

What Impact Will An Obama Administration Have On Labor & Employment Law

With the historic victory by Barack Obama in last week’s Presidential Election, there is sure to be an impact on the labor and employment law landscape.

Obama has made labor and employment issues important parts of his campaign platform, and with his party controlling both Congress and the White House he should have every opportunity to implement at least some of his plan.  Following is a look at just a few of the major labor and employment issues we can expect to see addressed in the coming years.

Employment Discrimination

According to the Obama-Biden campaign website, an Obama Administration will work to expand employee rights under various anti-discrimination statutes.  According to the website, “Obama and Biden will work to overturn the Supreme Court’s recent ruling that curtails women’s and racial minorities’ ability to challenge pay discrimination.”  Although the site does not mention any case by name, it is likely that Obama is referring to the Court’s May, 2007, decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

In Ledbetter, the Court ruled 5 to 4 that an equal pay claim must be brought within 180 days (the applicable statute of limitations period) of the events that initially caused the discriminatory pay.  As a result, Ledbetter, who had worked for Goodyear since 1979, was unable to pursue her claim based on the inequality of raises given throughout her employment.  Ledbetter had argued unsuccessfully that each paycheck she received was evidence of a continuing violation of the Equal Pay Act.

According to Obama, then, his administration will work to overturn this decision and, in turn, greatly expand the ability of an employee to reach back to violations that occurred years and even decades ago.

Additionally, the Obama campaign site says, “[Obama and Biden] will also pass the Fair Pay Act to ensure that women receive equal pay for equal work and the Employment Non-Discrimination Act to prohibit discrimination based on sexual orientation or gender identity or expression.”

While current federal law already requires that women be paid equal pay for equal work, the proposed Employment Non-Discrimination Act would expand the scope of the current collection of federal anti-discrimination laws to add additional protections.  While some state anti-discrimination laws protect employees from discrimination on the basis of sexual orientation or gender expression, no federal law includes those protected classes.

Organized Labor

Although the campaign website does not seem to include any reference to it, Obama was a co-sponsor of, and has promised that as President he would sign, the ironically named Employee Free Choice Act.  I have previously written about this proposed law that would – despite the clever name – eliminate employees’ free choice and the right to a secret ballot election in some union organizing campaigns.

The law, which would make it easier  for unions to organize various workplaces, would be huge win for labor unions, whose membership has been declining for decades.  It’s no wonder the AFL-CIO spent so much money on their Anti-McCain effort.  Despite the fact that there is little information on the official Obama-Biden campaign site, the AFL-CIO also has put together a summary of Obama’s position with respect to the bill.  It appears that Obama either does not understand the current law or is intentionally misleading in an attempt to build support the bill, but that is probably another topic for another day.

In short, the passage of this new law would make it much easier for unions to organize, which would mean many new unionized workplaces.  Sources tell me that there may not be enough political support to allow the passage of this bill, but it appears to remain at least a goal of the new administration.


Clearly, there will be other changes in a new administration.  These few examples show pretty clearly, though, that President-elect Obama intends to expand employee rights both through new legislation and through the broader and more vigilant enforcement of current law.

EDIT: View Part 2 of this story

ADA Amendments Adopted

Recently, President Bush signed the ADA Amendments Act (ADAA Act), which clarifies and broadens the protections afforded by the Americans with Disabilities Act of 1990.  Recent US Supreme Court cases have favored employers in the interpretation of the law, but the recent amendments attempt to make clear that Congress wants Courts to interpret the law in a manner that provides more protection to workers.

The People Wise blog has a nice summary of the changes as found in the law.  As with all other important employment decisions, you should contact an attorney to assist in making decision that have ADA implications.

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