Chapter 11 Work-Life Conflicts and Other Diversity Issues.

Chapter 11

Work-Life Conflicts and

Other Diversity Issues

Work-Life Conflicts• A diverse workplace poses several

work-life conflicts and employment law issues.– Workers who are increasingly female,

older, or disabled may require leave for parenting and medical problems.

– Workers may leave to serve in the military.– Diverse workforces may have difficulty with

an English only language requirement.– Gays and lesbians in the workplace may

encounter difficulty.

Family Responsibilities Discrimination (FRD)• Jointly, some of these cases have

come to be known as FRD cases.

• 70% of families with children have all adults in the workforce.

• One in four families takes care of elderly relatives.

Family Responsibilities Discrimination (FRD)• A study by Cornell found

– When compared to nonmothers, similarly qualified mothers were 79% less likely to be recommended for hire, 100% less likely to be promoted, & offered an average of $11,000 less for the same position.

– Mothers were held to higher standards for both performance and punctuality than nonmothers

– But, fathers were advantaged over men without children.

Family Responsibilities Discrimination (FRD)• Other research has shown

– Fathers who took parental leave were recommended for fewer rewards and were viewed as less committed than women who did so.

– Fathers who had even a short absence due to family care giving were recommended for fewer rewards and had lower performance ratings than similar-situated women.

Family Responsibilities Discrimination (FRD)• The EEOC has issued

Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

Family and Medical Leave Act• The FMLA is the principal federal law

governing the provision of family and medical leave.

• It applies to – all governmental agencies– private employers of 50 or more

• Many states have their own leave laws.• The FMLA sets minimum standards for

the provision of leave.• Leave policies should be consistent with

the FMLA.

Who Is Entitled to FMLA Leave?• Employer has at least 50 employees on

site or within a 75 mile radius• Employee

– Works for a covered employer– Worked for that employer for at least 12

months– Worked at least 1,250 hours during that

12 months– Has a “qualifying event,” and provides

timely notification of need for leave

Just the Facts• A car salesman was fired after he missed 13

days of work to receive treatment for a ruptured disc in his back. The salesman had worked at this large dealership for five years and then left to work elsewhere. Five years later, he returned to the original dealership. After seven and a half months on the job, during which he worked full-time (averaging 48 hours per week), the employee suffered the back problem that led to his termination for missed work. He sued. Was the salesman eligible for FMLA leave?– Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir.

2006)

FMLA Qualifying Events

• Birth of a son or daughter• Placement of a son or daughter with the

employee by adoption or foster care• The serious health condition of an

employee’s spouse, son, daughter or parent

• The serious health condition of an employee that makes him unable to perform the functions of his job

• Note: “Serious health conditions” involve continuing treatment or inpatient care.

Just the Facts• A grocery store employee requested two weeks of unpaid

leave to be with her pregnant daughter when she gave birth. When she learned that the baby might come early, the employee requested to start her leave sooner. She was allowed to do so, but told that she would still have only a total of two weeks of leave, so that she would have to return earlier than planned. The woman then inquired about the availability of FMLA leave. She informed the employer that her need for leave was based not only on the imminent birth, but also on the fact that the daughter’s husband who was supposed to assist in the birth had broken his collar bone and could not be the daughter’s “labor coach.” The employee arranged for the daughter’s physician to fax a note to the employer verifying these facts. The store denied her request for FMLA leave. When she stayed with her daughter for longer than two weeks, the woman was terminated. Did the employee experience a qualifying event? Were her rights under the FMLA violated?– Cruz v. Publix Super Markets, 428 F.3d 1379 (11th Cir. 2005)

Stevenson v. Hyre Electric Co.• Facts: At work, Stevenson had an extreme

emotional and physical response to a stray dog entering her workspace. She left and stayed home for the next several days. The few times she tried to return to work, she was unable to function and behaved erratically, which was unusual. 3 weeks later, her employment was terminated.

• Issue: On the facts, could a trier-of-fact determine that Stevenson had a serious health problem, and Hyre had constructive notice of her need for FMLA leave?

• Held: Yes. Genuine issues of material fact were raised as to both questions; summary judgment for Hyre was inappropriate.

FMLA: Employers Must Provide • Up to 12 workweeks of leave over a

12 month period;• Maintenance of health insurance

under the same conditions as if the employee had not taken leave; and

• Restoration to the same position held before the leave, or an equivalent position with the same pay, benefits, and terms and conditions.

FMLA: Employer Notices of Leave 1

• A specific statement that the leave is FMLA leave and will be counted against employee’s leave entitlement

• Requirements for producing medical certification of a serious health condition, and the consequences of failing to do so

• A statement of the employee’s right to substitute paid leave for FMLA leave, whether employer will require that, and any conditions for the substitution

FMLA: Employer Notices of Leave 2

• Any requirements for payment of employee share of health insurance premiums, arrangements for making payments, and employer’s right to recover premiums if the employee does not return to work

• Any requirements for employee to present fitness for duty certification prior to return

• A statement of the employee’s right of restoration to the same or equivalent job

• Designation of key employee status if employee meets the criteria, and circumstances under which restoration might be denied

FMLA

• Fact Sheets

• http://www.dol.gov/whd/regs/compliance/whdfs28.htm

• Regulations (As of Nov., 2008)

• http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/toc.htm

• http://www.youtube.com/watch?v=JcvkMqq_ox0&feature=relmfu

Pregnancy Discrimination

• Supreme Court determined that pregnancy discrimination was not gender discrimination under Title VII

• 182 percent increase in the filing of pregnancy discrimination charges over the past 10 years

• Pregnancy Discrimination Act amended Title VII to include pregnancy discrimination– Includes pregnancy, childbirth, or related

medical conditions

Pregnancy Discrimination Act• The PDA provides that discrimination

based on pregnancy, childbirth and related conditions is prohibited by Title VII.

• It does not provide for leave for childbirth or related conditions.

• However, the PDA require employers to treat persons with pregnancy-related conditions in the same manner as persons with other medical conditions who are similar in their ability or inability to work, and provide similar leave.

USERRA• Uniformed Services Employment and

Reemployment Rights Act (USERRA) provides:– Employers may not discriminate

against members of military.– Employees who leave to serve for

periodic training must be treated as not absent.

– Returning veterans must be re-employed and reasonable efforts used to place them in the position they would have attained if not for military service.

English Fluency and Accents• Employment decisions based on

English fluency and accents may constitute national origin discrimination.

• May violate Title VII if denied employment opportunity due to foreign accent or inability to communicate well in English, unless position involves contact with the public

• However, an employee’s accent can be considered when communication is a significant part of the job, and the employee’s accent interferes with his ability to perform the job.

English-only Rules

• EEOC’s guidelines provide that broad English-only rules applied at all times are presumptively discriminatory.

• EEOC concerned with English-only rules unless there is a business necessity for the rule (Courts may not all agree.)

Affinity Orientation/Sexual Orientation Discrimination

• Definition: Sexual affinity describes whom one is attracted to for personal and intimate relationships

Discrimination Based on Sexual Orientation

• Title VII does not prohibit discrimination on the basis of sexual orientation.

• Title VII does not include same gender affinity orientation, bi-gender affinity orientation, transsexuals or effeminacy in males

• State and local laws may prohibit discrimination on the basis of sexual orientation and/or gender identity.

Statutory Basis

• Public employees who are victims of such discrimination may have a cause of action for a denial of equal protection under the U.S. Constitution.

• Gay and lesbian employees have also brought action under the 1st, 5th, or 14th amendment

• Employers may still be liable under gender discrimination and gender stereotyping

• May also bring tort actions– Intentional infliction of emotional

distress– Intentional interference with

contractual relations– Invasion of privacy– Defamation

Other Theories

• Courts have not upheld the position that those who change their gender from male to female are protected

• Same-Gender Sexual Harassment

– U.S. Supreme Court ruled that harassment of an employee by someone of the same gender is prohibited unless shown that the harassment was based on affinity orientation

Transsexual Discrimination

• One of the fastest growing issues related to affinity orientation

• Some state and local laws include transsexuals in their protection for gays and lesbians

• Suits for gender discrimination have been unsuccessful

• Suits filed under the Americans With Disabilities Act have been unsuccessful

• See Smith v. City of Salem, Ohio, 378 F.3d 566, 2004 U.S. App. LEXIS 16114 (6th Cir. 2004)

Just the Facts

• A lesbian public school teacher was hired under a one year contract, which was renewed twice. The principal informed her that he would recommend a new, three year contract. Shortly thereafter, the principal observed her giving a presentation on sexual orientation discrimination to two of her government classes. The principal became upset and said that the subject was “shaky ground.” Two days later, the principal told the teacher that he was withdrawing his recommendation, claiming that he was unsure if enrollment would be sufficient to justify continuation of her position, although her department head later testified that enrollment was sufficient. The school superintendent subsequently reviewed the teacher’s credentials and concluded that her teaching certificate – limited to teaching government and politics – did not give the school enough flexibility. He mentioned this in an e-mail to board of education members, but also noted that “the situation is tainted by the fact that [the teacher] presented a class on gay rights ... .” There was also evidence that a heterosexual teacher who had taught a lesson on gay rights issues was retained. The teacher’s contract was not renewed and she sued. Does she have a valid constitutional claim?

– Beall v. London City School Dist. Bd. of Education, 2006 U.S. Dist. LEXIS 37657 (S.D. Ohio)

What Would You Do?

• You are the HR Manager for your firm. One of your employees is bipolar, and takes medication for the condition. Recently, your firm’s prescription provider was changed, with the result that this employee’s medication was no longer available, and a generic was substituted. But you notice that the employee is having difficulty. Increasingly, he is subject to emotional outbursts, both high and low, which are affecting his work, and the work of those around him. What would you do?