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    EEOC Sues M&T Bank, Alleging Disability Discrimination

    Posted by Nicole Prysby on Tue, Sep 27, 2016 @ 11:09 AM

         The EEOC alleges that M&T Bank failed to provide a reasonable accommodation and fired a bank manager after she returned from pregnancy leave. The woman had worked as a branch manager in Baltimore for several years when she became pregnant and informed upper management that she would need surgery to prevent a miscarriage. She then went on FMLA leave. While she was on leave, M&T told her that the bank would fill her position unless she returned to work within 10 days. She was unable to return to work until after the birth, at which time she applied for vacant positions. M&T failed to reassign her to a vacant position, including 24 vacant branch manager or assistant branch manager jobs for which she was qualified. For additional information, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-23-16.cfm.


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    Topics: disability discrimination, EEOC, FMLA

    EEOC Sues Wynn Las Vegas for Disability Discrimination

    Posted by Nicole Prysby on Tue, Sep 20, 2016 @ 16:09 PM

         EEOC has announced a lawsuit filed against the Wynn Las Vegas for disability discrimination. The charge alleges that the Wynn failed to engage in the interactive process required to identify a reasonable accommodation. The accommodation was requested by one of its security guards, a veteran who was disabled with PTSD. EEOC also alleges that in addition to denying the employee a reasonable accommodation, the Wynn retaliated against him by suspending him after he filed a complaint with the EEOC. For additional details, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-16-16.cfm

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    Topics: disability discrimination, retaliation, EEOC

    School District Resolves Equal Pay Act Claim

    Posted by Nicole Prysby on Tue, Sep 13, 2016 @ 12:09 PM

         The Montevideo School District in Minnesota has signed a conciliation agreement under which it agrees to pay $50,000 to a female employee who was classified as a custodial aid but performed the duties of a custodian. Her male co-worker was classified as a custodian and received pay at almost double the female’s hourly rate. For additional details of the agreement, see the EEOC news release at https://www.eeoc.gov/eeoc/newsroom/release/9-7-16b.cfm.

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    Topics: employment, EEOC, equal pay

    Final EEOC Guidance on Retaliation

    Posted by Nicole Prysby on Thu, Sep 1, 2016 @ 09:09 AM

         On August 29, the EEOC issued final Enforcement Guidance on Retaliation and Related Issues. The new guidance is part of the EEOC Compliance Manual and is available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The guidance provides detailed examples to help employers understand what types of actions may constitute retaliation. Retaliation is now the most frequently alleged form of discrimination and in FY2015, accounted for almost 40,000 filings, or approximately 45% of discrimination charges filed.

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    Topics: employment law, retaliation, EEOC

    State Equal Pay Act Changes

    Posted by Nicole Prysby on Tue, Aug 30, 2016 @ 14:08 PM

        Several states have recently modified their Equal Pay Acts, increasing the scope of those laws. For example, California eliminated its requirements that to be actionable, the wage differential must be within the “same establishment” and the work must be “equal.” Rather than being “equal” the work must now be “substantially similar” and the modified establishment language means that the prohibition could potentially apply across an entire business, not merely to a single physical location.  (Cal. Laws 2015, Ch. 546). Similarly, New York modified its law so that the term “same establishment” is now defined as workplaces in the same geographic region no larger than a county. (N.Y. Laws 2016, Ch. 362). In Massachusetts, a recent change to the law (effective 1/1/2018) will prohibit employers from requesting salary history during the job interview process. The new legislation also updates the definition of “comparable work” to clarify that it means work that is substantially similar in skill, effort, and responsibility. (Mass. Laws 2016, Ch. 177).

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    Topics: employment law, equal pay, Equal Pay Act

    PUBLIC EMPLOYMENT: "A Law" Does Not Include an Agency Regulation

    Posted by John M. Stone on Thu, Aug 18, 2016 @ 10:08 AM

    John Stone, Senior Attorney, National Legal Research Group

         It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa.  The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).

         A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

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    Topics: public employment, John M Stone, Department of Homeland Security v. MacLean, agency regulations, right-to-disobey provision

    Recent Equal Pay Developments

    Posted by Anne B. Hemenway on Wed, Jun 22, 2016 @ 10:06 AM

    The Lawletter Vol 41 No 5

    Anne Hemenway, Senior Attorney, National Legal Research Group

         Under the Equal Pay Act, 29 U.S.C. § 206(d), no covered employer shall discriminate on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. In Hesterberg v. Tyson Foods, Inc., Case No. 5:14-CV-05382, 2016 WL 483017 (W.D. Ark. signed Feb. 5, 2016), the court held that to establish a prima facie claim for damages under the Equal Pay Act, the complaining party must show by a preponderance of the evidence that "(1) she was paid less than a male employed in the same establishment, (2) for work on jobs requiring skill, effort and responsibility, (3) which were performed under similar working conditions." Id. at *5. The employer will be entitled to summary judgment and dismissal of the equal pay suit if it can show that any pay differential between the plaintiff and her male counterpart is explained by a statutory defense such as a merit system or some excuse other than sex.

         The plaintiff in the case alleged that her immediate supervisor, who was male, had total discretionary authority over the amount of bonuses paid and percentage raises given to her and her male counterparts and that his decisions regarding these forms of compensation were largely subjective. She argued that her comparatively lower bonuses and percentage raises in the years in question were the result of the males' being treated more favorably. Recognizing that employers can "easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees," id. at *6, the court denied the employer's motion for summary judgment. Genuine issues of material fact existed as to whether the employer's merit system, on which the employer relied to justify the pay differential in this case, had been implemented at the company in a truly nondiscriminatory way.

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    Topics: employment law, Anne Hemenway, bonuses, 29 U.S.C. § 206, equal pay, Equal Pay Act

    FMLA: Individual Liability and the Need for Clear Communication

    Posted by Suzanne L. Bailey on Tue, Jun 21, 2016 @ 17:06 PM

    The Lawletter Vol 41 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).

         The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time. On July 9, Graziadio responded to her supervisor's request for an update, stating that she would need to work a reduced, three-day-week schedule until mid-to-late August and could return on Thursday, July 12, if that schedule were approved. She also asked, as she had in prior emails, if there was "any further documentation that [the CIA] may need from me." Id. at *1. At this point, the supervisor reached out to the CIA's Director of Human Resources, and matters got complicated.

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    Topics: employment law, Americans with Disabilities Act, Suzanne Bailey, Family and Medical Leave Act

    CIVIL RIGHTS: Exhaustion of Administrative Remedies for Retaliation Claims

    Posted by Dora S. Vivaz on Tue, May 3, 2016 @ 12:05 PM

    The Lawletter Vol 41 No 4

    Dora Vivaz, Senior Attorney, National Legal Research Group

         It has long been settled law that plaintiffs who seek redress for employment discrimination under Title VII must exhaust the administrative remedies provided under that law before bringing their claims in court. Title VII, of course, not only prohibits the initial unlawful status/class discrimination, but also prohibits retaliation for complaining about such discrimination. The interplay of those two prohibitions has seemingly muddied the waters on the exhaustion issue.

         In a recent case, a federal district court within the Fifth Circuit was faced with the question of that interplay. Mitchell v. Univ. of La. Sys., Civ. Act. No. 13-820-JWD-RLB, 2015 WL 9581823 (M.D. La. signed Dec. 30, 2015). In the case before it, the plaintiff had filed an Equal Employment Opportunity Commission ("EEOC") charge in June 2013, claiming discrimination. She was transferred in July 2013. Although she never filed a second EEOC charge, she included both a claim for unlawful discrimination and a claim for retaliation in her action in the federal court. The defendant argued that the retaliation claim was barred for failure to exhaust administrative remedies, but the court disagreed.

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    Topics: employment discrimination, administrative remedies, retaliation claim, civil rights, Dora S. Vivaz

    CIVIL RIGHTS: Pregnancy Discrimination Under PDA—Supreme Court's Interpretation of Same-Treatment Clause in Young v. United Parcel Service, Inc.

    Posted by John Buckley on Wed, Feb 24, 2016 @ 12:02 PM

    The Lawletter Vol. 41, No. 2

    John Buckley, Senior Attorney, National Legal Research Group

         Title VII of the Civil Rights Act of 1964 was amended by the Pregnancy Discrimination Act ("PDA") in 1978, which added the following language to Title VII's definitions subsection:

         The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes[.]

    42 U.S.C. § 2000e(k). It is generally agreed that the first clause specifies that Title VII's prohibition against sex discrimination also applies to discrimination based on "pregnancy, childbirth, or related medical conditions." The meaning of the second clause, "or related medical conditions," has been the subject of debate and was directly addressed by the Supreme Court in this most recent case.

         In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the petitioner, Peggy Young, was a part-time driver for the respondent, United Parcel Service ("UPS"). Young became pregnant in 2006 and was placed on a 20-pound lifting restriction by her doctor. (UPS policy required drivers to be able to lift parcels weighing up to 70 pounds.) UPS failed to provide suitable accommodations, and as a result, Young was forced to take an unpaid leave of absence during most of the time she was pregnant, resulting in the loss of her employee medical coverage.

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    Topics: John Buckley, civil rights, related medical conditions, pregnancy discrimination

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