Family Rights Discrimination Continues to be a Hot Button Issue

Family rights discrimination (FRD) — discrimination against an employee who serves as a caregiver to a family member — continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies — even those recognized by Fortune as “Best Companies to Work For” — have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it’s a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it’s a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you’re getting. First, go to your boss and ask if there’s a problem with the quality of your work. If it doesn’t improve, bring all the examples to human resources. Discriminating against someone because they’re pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

Being called “Nappy Headed Mo” and “Queen Sheba” by her co-workers
Being told she worked on “colored people time”
Enduring references to the Ku Klux Klan made by one particular race official
Being asked, “Does your workout include an urban obstacle course with a flat-screen TV on your back?”
Being forced to work outside more often than white male officials because her supervisors believed she couldn’t sunburn because she was black
Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, “I don’t want to start a riot when these fans see a black woman in my car”
Being told, “Keep smiling and pop your eyes out ’cause we can’t see you.”
Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR allegedly terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

upreme Court Deprives Public Employees of Constitutional Rights

The Supreme Court in Engquist v. Oregon Department of Agriculture rejected a class-of-one equal protection theory in the public employment context. The case involved a public employee’s claim that she had been treated arbitrarily compared to similarly situated employees, arguing that such treatment gives rise to a class-of-one equal protection claim.

In 1992, Anup Engquist began working as an international food standard specialist for the Export Service Center, a laboratory within the Oregon Department of Agriculture. During her employment, Engquist experienced difficulty working with a colleague, Joseph Hyatt, alleging that he had made false statements about her. Engquist reported Corristan’s conduct to her boss, who required that both employees attend diversity and anger management training. In 2001, John Szczepanski assumed supervisory status over Corristan, Engquist, and Hyatt. Thereafter, Szczepanski passed up Engquist in favor of Corristan for a position for which Engquist was more qualified. Enguist’s position was later eliminated.

A jury ruled in Engquist’s favor, which the Ninth Circuit reversed. In an opinion authored by Chief Justice John G. Roberts Jr., the Supreme Court ultimately agreed with the Ninth Circuit. In doing so, Justice Roberts perceived practical problems with Engquist’s class-of-one equal protection theory:

We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governmentswill be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through themin a search for the proverbial needle in a haystack.

The dissent, led by Justice John Stevens, addressed these practical concerns:

Presumably the concern that actually motivates today’s decision is fear that governments will be forced to defendagainst a multitude of “class of one” claims unless theCourt wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently, that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental, power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus.

Overall, the Engquist decision deprives public employees of constitutional rights.

For more information, please visit the New York Times article entitled, Justices Reject ‘Class of One’ Argument.

Massachusetts Maternity Leave Act Applies to Men

The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that “an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA” (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

The MCAD’s long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman’s career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million

The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York’s landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were allegedly forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees also allegedly experienced racial epithets and ridicule for their accents.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC’s EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times’ article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.