NLRB Poster Rule Down for the Count

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Employers may have won the battle to keep American workers ignorant of rights they have held for 70 years ago under the National Labor Relations Act (NLRA).

The U.S. Court of Appeals for the Fourth Circuit in South Carolina recently ruled the National Labor Relations Board lacks the authority to require employers to post notices either electronically or physically “in a conspicuous place” informing workers of their rights under the NLRA.

This holding follows an earlier ruling by the U.S. Court of Appeals for the D.C. Circuit that the poster rule violated employers free speech rights.

The NLRB contends that American workers are largely ignorant of their rights under the NLRA, adding that the poster rule is particularly important for non-union workers who lack a designated bargaining representative. The NLRA can come into play for non-union employees when, for example, an employer fires a non-union worker for discussing a safety concern or other concerns about working conditions.

The poster informed employees that they have a right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Interestingly, 21 Republican members of the U.S. House of Representatives joined with the chamber to oppose the poster rule, including John Kline (R-Minn.), chairman of the House Committee on Education and the Workforce.

The South Carolina appeals court ruled the NLRB is not charged with informing employees of their rights under the NLRA and “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

Earlier, the U.S. Court of Appeals for the D.C. Circuit held the notice-posting rule violated Section 8(c) of the NLRA, which prohibits the board from finding employer speech that is not coercive to be an unfair labor practice.

In addition to Kline, the following members of the U.S. Congress House of Representatives signed on to an amicus brief opposing the NLRB rule requiring that employers post a notice advising workers of their rights:

JOE WILSON, R-SC.;
RODNEY ALEXANDER, R- LA;
STEVE PEARCE, R-NM;
GREGG HARPER, R-MS;
PHIL ROE, R-TN;
GLENN THOMPSON, R-PA;
TIM WALBERG, R-MI;
LOU BARLETTA, R-PA;
LARRY BUCSHON, R-IN;
SCOTT DESJARLAIS, R-TN;
TREY GOWDY, R-SC;
JOE HECK, R-NV;
BILL HUIZENGA, R-MI;
MIKE KELLY, R-PA;
JAMES LANKFORD, R-OK;
; KRISTI NOEM, R-SD;
; ALAN NUNNELEE, R-Miss;
; REID RIBBLE, R-WS;
TODD ROKITA, R-IN;
and DANIEL WEBSTER, R-FL.

Oregon Interns Get Harrassment/Discrimination Protection

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Unpaid interns are especially vulnerable to predatory behavior in the workplace because they are young and inexperienced.

However, many courts have ruled that unpaid interns are not protected by state and federal harassment and discrimination laws.

This week the Oregon legislature agreed to extend workplace protections against harassment and discrimination to unpaid interns. These protections formerly were reserved only for employees.

The Oregon Senate unanimously passed HB 2669, sending it to Gov. John Kitzhaber for signature. The Oregon house unanimously passed the bill last month. Kitzhaber has indicated that he will sign the bill.

The new law will give unpaid interns legal recourse against employers for workplace violations including sexual harassment; discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age; and retaliation for whistleblowing, among other things.

With no protection in state law, you might think that unpaid interns could turn to federal law. You’d be wrong.

The Equal Employment Opportunity Commission has issued guidelines that provide coverage to volunteers under Title VII of the Civil Rights Act of 1964 “if the volunteer work is required for regular employment or regularly leads to employment with the same entity.” However, unpaid interns have been unable to bring sexual harassment or civil rights complaints under Title VII because judges have not found them to be “employees” to whom protections are explicitly afforded.

According to a 2010 study by the Economic Policy Institute (EPI), federal courts have consistently found that the question of whether an individual is compensated for his or her work by an employer is the first test for determining employee status. Accordingly, unpaid interns, or even interns paid by an entity other than an employer, do not receive workplace discrimination protection.

The EPI study reports that the leading precedent for the failure to protect unpaid interns is the case of O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997).Bridget O’Connor was required to complete an internship for her college degree and chose to work at a local psychiatric center. There, O’Connor allegedly was subject to repeated sexual harassment by one of her supervisors, Dr. James Davis. The district court summarily dismissed O’Connor’s complaint because the plaintiff, as an unpaid intern, did not receive compensation from the center, and thus did not qualify as an employee protected under Title VII. The decision was upheld on appeal.

Oregon Labor Commissioner Brad Avakian told the Associated Press that interns had contacted his office looking for help in the past and “we had to tell them that the law did not protect them.”

Under the measure, an intern who alleges workplace harassment or discrimination, among other violations, can bring a lawsuit against the employer or file a formal complaint with the Oregon Bureau of Labor and Industries.

Avakian said the idea for the bill came from a legislative intern at the Bureau of Labor and Industries. He said the intern discovered the loophole and brought it to his attention. In 2011, a similar bill failed to gain traction. This year, however, the bill passed with broad support from civil rights groups and a student advocacy group.

The Oregon law does not create an employment relationship and does not affect wage or workers’ compensation laws.

Photo by: John Amis

Lactation is Pregnancy-Related After All

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Judge Lynn D. Hughes

A federal appeals court panel has unanimously ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

The decision by the U.S. Court of Appeals for the Fifth Circuit in Houston, TX, overturns a somewhat notorious ruling last year by U.S. District Judge Lynn N. Hughes, also of Houston.

Judge Hughes ruled that federal law did not prevent Houston Funding II, L.L.C., from firing a new mother because she asked for permission to pump breast milk in a back office after she returned to the job. He concluded that “lactation is not pregnancy, childbirth, or a related medical condition”. and thus “firing someone because of lactation or breast-pumping is not sex discrimination.”

Houston Funding had argued Title VII does not cover “breast pump discrimination” and filed a motion for summary judgment, which was granted by Judge Hughes.

The dismissal was appealed by the U.S. Equal Employment Opportunity Commission (EEOC), which had filed the lawsuit on behalf of the employee, Donnicia Venters, who gave birth to a baby girl in 2008.

The Fifth Circuit ruled that Title VII (as amended by the Pregnancy Discrimination Act of 1978) protects working women against discrimination on the basis of pregnancy, childbirth or a related medical condition. The appeals court ruled:

“Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth … It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child.”

The court reasoned that firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.

The case was remanded back to the lower court for a trial on the merits.

David Lopez, General Counsel of the EEOC, said, “We are gratified that the Fifth Circuit gave plain meaning to the words of the Pregnancy Discrimination Act and ruled in our favor that discrimination on the basis of lactation is discrimination on the basis of sex.”

The EEOC looks forward to trying the case, according to Jim Sacher, regional attorney in the EEOC’s Houston District Office, which brought the initial litigation. “We hope this litigation sends a message to other women that discrimination based on pregnancy, childbirth and related conditions is against the law and that the EEOC is here to help,” he said.

One of the six national priorities identified by the Commission’s Strategic Enforcement Plan is to address emerging and developing issues in equal employment law, including issues involving pregnancy-related limitations.

According to the website www.houstonfunding.com, Houston Funding “is a company which purchases charged-off debt portfolios nationwide from most large institutions.”

Fed Cts Eschew SM

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Are federal courts out of touch?

The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business and that federal judges disproportionately dismiss employment cases. But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
Social media offers the potential for timely dissemination of useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods? Where do pro-se litigants sit in a courtroom and how do they present their case to a judge?
Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

Perhaps most importantly, social media offers the federal court system the opportunity to build trust in the institution and to counteract common negative stereotypes about federal courts - remote, insular, obtuse, elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes affect the public’s understanding of the important issue of judicial independence. Enhanced trust also could come in handy when the federal court asked taxpayers for money to operate.

One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are most in use by the general public? And, the last time I looked, Facebook, YouTube and Twitter were free.

Most Widely Flouted Law Since Prohibition?

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A high school student spoke recently at a public event and said he was forced to work three jobs to support his family after his undocumented father was “detained” by immigration authorities.

Is this student a candidate for a non-paying summer internship – the kind that gives students an advantage in college admissions or, if they’re already in college, educational credits or better job prospects?

Of course not.

And that’s just one of the problems with non-paying internships.

The other problem is that many of these internships are a complete sham. Technically, the Fair Labor Standards Act requires a company that does not pay interns to provide skills and opportunities that clearly benefit the interns. The company can’t gain anything from the interns’ work. However, this provision of the FLSA is perhaps the most widely flouted law since America banned alcohol during prohibition.

A check of an internet job board this week found hundreds of unpaid internship “opportunities” from such employers as The National Republican Senatorial Committee and The Pittsburg Penguins hockey team.

Even the American Civil Liberties Union (ACLU), which says it has been “at the forefront of virtually every major battle for civil liberties and equal justice in this country” for 92 years, uses unpaid interns.

Interestingly, the ACLU’s Summer 2013 Internship program seeks students to work in “graphic design and multimedia.” Applicants should, among other things, have digital design experience and be proficient in Adobe InDesign, Photoshop and Illustrator.

According to the ACLU ad:

“The Graphic Design Internship offers the opportunity to gain exposure to the digital design aspect of Communications and its use to support the ACLU’s work. Interns can expect to work on a variety of branding and key issue projects including the production of printed materials and graphics and design for the ACLU web site(s), multimedia and social media channels.”

Is the ACLU just trying to get hot young talent to work for free?

You decide.

Several interns have filed lawsuits in recent years claiming they were assigned to do substantive but unpaid work for the organization and/or menial tasks like doing errands and getting coffee that conferred benefit on the organization but had no educational value.

Last year, former intern Lucy Bickerton filed a class action lawsuit against TV talk show host Charlie Rose. The lawsuit said Ms. Bickerton, a 2008 graduate of Wesleyan University, had various responsibilities at the show, including providing background research for Mr. Rose about interview guests, assembling press packets, escorting guests through the studio, breaking down the interview set after daily filming and cleaning up the green room. Rose and his production company settled the case by paying 190 ex-interns between 2006 and 2012 a total of up to $250,000 in unpaid wages.

(Obviously, Ms. Bickerton was not represented by the ACLU. )

Test for unpaid internship
A for-profit institution does not have to pay an employee whose work serves only his or her own interests. Here is the test used by the U.S. Department of Labor to determine whether a worker is a bona fide intern:

The internship is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

NOTE: Although the ACLU calls their “interns” interns, there is an FLSA exemption for those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and individuals who volunteer to perform services for a state or local government agency..

Michigan Bill Links Bullying & Crime

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A lawmaker has introduced a proposed bill in Michigan that would make bullying and cyberbullying a misdemeanor criminal offense punishable by a fine of up to $1,000 and a jail term of up to 93 days.

Republican State Rep. Dale W. Zorn’s bill also would permit a judge to require an individual who is convicted of or found responsible for violating the anti-bullying law to “undergo an evaluation by a mental health professional at his or her own expense and to receive counseling or other treatment at his or her own expense if determined appropriate by the court.”

Rep. Zorn’s proposal is one of the first if not the first proposed bill in the United States to link bullying with crime and mental health. Other proposed legislation in the U.S. is civil (non-criminal) in nature and seeks monetary damages and/or injunctive relief.

Zorn’s proposed bill addresses both school and workplace bullying.

There is precedent elsewhere for treating workplace bullying as a crime. Lawmakers in Victoria, Australia adopted an anti-bullying law known as “Brodie’s Law “that took effect in June 2011 and makes stalking related to bullying a crime punishable by up to 10 years in jail.

Brodie’s Law was passed after the suicide of Brodie Panlock, 19, a waitress who was subjected to relentless bullying in the workplace. Four co-workers were fined a total of $355,000 (Australian) in 2010 but Ms. Panlock’s parents felt the fine was a slap on the wrist and lobbied for criminal sanctions.

Zorn says Michigan House bill No. 4746 is intended to encourage the rehabilitation of bullies by offering an option for mental health counseling at the judge’s discretion and the bully’s expense. The criminal charge could be expunged or wiped from the defendant’s criminal record upon successful completion of treatment.

“The behavior of bullying has become a societal problem that may need to be eradicated through professional counseling,” he said.

The bill likely would face challenges with respect to the First Amendment to the U.S. Constitution, even though it specifically exempts speech that is protected by federal and state law.

The bill defines “bully” to mean engaging in one or more of the following behaviors on two or more separate occasions with the intent to frighten, intimidate or harass another person:

(i) Assaulting or battering that other person.

(ii) Referring to that other person while in his or her presence with a derogatory or offensive nickname or label.

(iii) Disseminating false or misleading information about that other person.

It is not clear why the bill prohibits derogatory or offensive speech in the presence of the individual, but not in the individual’s absence.

In a press release, Zorn said he arrived a the definition of bullying after meeting with school administrators, students, parents, prosecutors and judges.

The bill was immediately referred to the Michigan House Judiciary Committee.

Monsanto Protest: A Lesson for Labor?

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In a world that is increasingly influenced by wealthy multi-national corporations, change can seem unattainable.

But the tools for change are changing too. And that was apparent on Saturday when the power of social media sent tens of thousands of protesters in 44 countries to the streets in a “March Against Monsanto.”

(Hmmm … Could the labor movement effectively use the power of social medial strategy to achieve positive change in the workplace?)

Monsanto Co., based in St. Louis, is a leading global provider of seeds, herbicides and ”biotechnology trait products” or GMOs. The protest focused on the lack of labeling of genetically modified organisms, including crops and animals whose DNA has been altered. Most corn, soybean and cotton crops grown in the United States today have been genetically modified.

Organizers said it was the first global, unified protect for this cause but it would seem to be the first or one of the first global protests targeting a multi-national corporation and its products.

In my own big/little city of Reno, NV, a couple of hundred protesters, several wearing honey-bee costumes, lined the streets with signs that said “It’s Our Right to Know” and “Why Won’t You Label Your GMOs?”

On Thursday, the U.S. Senate rejected – by a vote of 71 to 27 — an amendment to let states require labels on food or beverages made with genetically modified ingredients.

Meanwhile,, state legislatures in Vermont and Connecticut moved ahead this month with a vote to make food companies declare genetically modified ingredients on their packages. The supermarket retailer Whole Foods Markets Inc. has said that all products in its North American stores that contain genetically modified ingredients will be labeled as such by 2018.

A Monsanto spokesperson told the Associated Press on Saturday that the seeds it sells help farmers produce more from their land while conserving resources such as water and energy.

The debate over genetically engineered food has been going on since the crops became widespread in the mid-1990s. The U.S. Food and Drug Administration concluded in 1992 that there was no difference between genetically engineered and non-engineered plants.

In its annual report, Monsanto tells investors:

“The degree of public acceptance or perceived public acceptance of our biotechnology products can affect our sales and results of operations by affecting planting approvals, regulatory requirements and customer purchase decisions.”

It doesn’t seem like a stretch to conclude that global protests such as the one on Saturday could very well influence public acceptance of GMOs.

Few Consequences for Sexual Harassment

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Sexual harassment in the military underscores a much bigger problem in American society.

Sexual harassment is a major problem in all workplaces but it is extremely difficult - if not impossible – for victims to hold abusers accountable for their illegal conduct. Surveys show that third of American women say they have experienced sexual harassment on the job.

For years, women in the military complained that the military did little or nothing about complaints of sexual abuse. Then two military officers whose duties include preventing sexual harassment and assault were arrested for alleged sexual assaults and the military was forced to confront the issue.

Defense Secretary Chuck Hagel recently offered a solution that seems oddly misdirected. Hagel said that all of the Pentagon’s sexual assault prevention coordinators and military recruiters will be retrained, re-credentialed and rescreened. But there is no evidence that this is a problem of training; the evidence points to a problem of lack of consequences.

Members of the military who commit sexual harassment and assault have not been held to account by the “employer” and so it continues. And this is also the problem in the wider society. There is a yawning lack of accountability for perpetrators of sexual abuse and the employers who tolerate this behavior.

Complaints

Victims in non-military workplaces also complain to supervisors and human resource officers who often do little or nothing to hold the perpetrator accountable.

At that point, the victim’s only recourse is to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) – which is a necessary precursor to filing lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964. The EEOC receives about 30,000 sex discrimination complaints a year and, of these, the agency targets systemic cases involving numerous victims. If the victim’s case doesn’t fit its parameters, the EEOC likely will do nothing but issue a “Right to Sue” letter. That can take 180 days.

Now the victim’s only recourse is to file a lawsuit. The first hurdle is finding a private attorney willing to take the case. This can be very difficult for mid- to –low wage earners because there are more than enough high-earner victims with potentially higher damages. The victim also must pay the attorney’s up-front retainer – which in some areas is $25,000 or more.. People like to blame money-grubbing lawyers but legislatures and judges have made these cases very difficult to win and very costly.

If the case ever gets to court it may be there for only a short time. Federal judges dismiss discrimination cases in the early stages at a much higher rate than other types of cases. If that happens, the victim’s only option is to file a costly appeal. But if the case is not dismissed, it will take years to wind it way through the system.

Occasionally one hears of a particularly egregious case of sexual assault that results in a spectacular jury verdict. These are rare.

In short, it is extremely difficult for victims of sexual abuse in the workplace to hold perpetrators accountable for sexual abuse, not to mention the employers that tolerate abusive work environments. The system screens out all but the most dedicated victims and the most egregious cases. It’s like a lottery that few will win. And that’s a huge part of the problem.

It could get worse
If that’s not bad enough – the situation could get worse.

The U.S. Supreme Court, the most pro-business Court since WWII, heard arguments last year on a case that involves who qualifies as a “supervisor” under a federal employment discrimination law. This question is important because it goes to the issue of damages and whether the employer – rather than the individual abuser – is liable for the conduct of the abuser.

The 7th U.S. Circuit Court of Appeals has ruled that only a person with the ability to fire or hire employees can be considered a supervisor, not managers who supervise workers but cannot fire them. Other federal appeals courts and the EEOC define a supervisor as a person with authority to direct daily work activities and can undertake or recommend “tangible employment decision affecting employees.”

The case was brought by Maetta Vance, an African-American catering specialist at Ball State University, who accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. She claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that Davis was not her supervisor because she could not fire Vance. The judge also ruled the university was not liable because it took corrective action. The 7th Circuit of Appeals upheld that decision, and Vance appealed to the Supreme Court.

U.S. Supreme Court Decidedly Pro-Business

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This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946.

And three other current conservative justices are in the top ten of most pro-business justices since 1946. They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift in violation of the Fair Labor Standards Act. The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class action lawsuit..
In Wal-Mart v. Dukes, the Court in 2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
In Knox v. Service Employees International Union, Local 1000, the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that that non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
In Gross vs. FBL Financial Service, Inc., a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a significantly higher rate than non-employment cases before they ever to get a jury.

1st Genetic Discrimination Class Action

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Imagine that an employer could ask applicants about their family’s medical history: “Do you have a parent or grandparent who suffered from epilepsy. sickle-cell anemia Huntington’s Disease, etc.?”

Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively.

So-called “genetic discrimination” has been illegal since the Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush on May 21, 2008. However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it. Until now.

One of the six national priorities identified in the EEOC’s strategic plan is to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.

The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company, Fabicut, Inc. Now the EEOC has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.

Violations

The EEOC alleges that Founder’s Pavilion, Inc., a Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period, all in violation of the ADA.

Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.

The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders.

GINA

GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.

“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”

GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.

Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans. In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.

Furthermore, genetic history does not always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit or be incapacitated by a genetic disease.

* Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.