Staples and ‘Lactation Chambers’

Next time you need to pick up a pack of pencils or some office paper, think about Tom Stemberg, co-founder of mega-office supply chain Staples, who complained recently that President  Obama’s Affordable Health Care Act will discourage job creation by making employers funnel their capital into “lactation chambers” for new mothers.

Stemberg said on Feb. 6, 2012 that if a Republican is elected president his first order of business to help the U.S. economy should be to repeal so-called Obamacare.

Why would any parent want to support Stemberg or Staples for that matter?

CBS quotes Stemberg as stating: “Do you want [farming retailer] Tractor Supply to open stores or would you rather they take their capital and do what Obamacare and its 2,700 pages dictates – which is to open a lactation chamber at every single store that they have?”

(Since he asked, I would rather the U.S. Congress repealed  tax breaks granted during the GOP Bush administration that made the top one percent of the country obscenely rich at the expense of the rest of us.)

Stemberg says he supports breastfeeding and that his wife breastfed their children but that employers should not have to accommodate working women who realistically cannot breastfeed their children without the minimal level of support that most good employers now provide.

The Affordable Care Act does not require what Stemberg calls “lactation chambers” but merely would require employers to provide a private space other than a bathroom for employees to express breast milk. If these requirements impose undue hardship, an employer that employs fewer than 50 employees is not subject to these requirements.

Meanwhile, the EEOC last month held a hearing on the issue of pregnancy discrimination  which is rampant.  According to the EEOC:

Although pregnancy discrimination has been illegal for decades, many women are fired when they tell their employers that they are pregnant, according to Sharon Terman, a senior staff attorney with the Gender Equity Program at The Legal Aid Society Employment Law Center in San Francisco. She noted one recent case where an employer told a pregnant worker, “That’s not going to work” when it was informed about her pregnancy. The employer maintained that as a small company it couldn’t afford to grant her pregnancy leave.

Another common discriminatory response is to place an employee on forced unpaid leave as soon as the employer learns about the pregnancy. Pregnant employees are often forced to take leave early in their pregnancy when they do not need the leave; they have exhausted their leave by the time they do need it, Terman remarked.

Sometimes pregnant workers are denied accommodations that are provided to employees with disabilities, such as sitting on a stool rather than having to stand all day, taking frequent bathroom breaks and being excused from lifting heavy objects, she added.

Terman said that in one recent case a pregnant worker asked to not be exposed to toxic fumes during her pregnancy, but the manager refused and forced her to take leave. Two days before her child’s birth, her leave was exhausted.

There have been 52,000 pregnancy discrimination charges since 2001; the EEOC has recovered $150.5 million in relief for plaintiffs, testified Peggy Mastroianni, EEOC legal counsel. The plaintiffs have come from all walks of life, from janitors to teachers to senior executives, she added.

Mastroianni remarked that most pregnancy discrimination claims arise after a discharge, followed by challenges to terms and conditions of employment, followed next by harassment.

David Lopez, EEOC’s general counsel, said that many employers do not have policies against pregnancy discrimination and commented that there is “more direct evidence in this area than any other.”

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

Great Policy; No Follow-Through

The best policy in the world won’t protect you without follow-through.

That’s the lesson of a decision by the Seventh Circuit  Court of Appeals  in a Wisconsin sexual harassment case, Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., et al., No. 10-3247 (Jan. 9, 2012,).

The defendant, a company owned by Salauddin Janmohammed  which operates 21 International House of Pancakes restaurants, had a “zero-tolerance”  anti-harassment policy in place, anti-harassment training, and a policy of investigations of complaints.

What it didn’t have was follow-through. Or, in the words of the Court, “the policy and complaint mechanism were not reasonably effective in practice.”

According to the Court:  “the presence of a sexual harassment policy is encouraged by Title VII [but] the mere creation of a sexual harassment policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace.”

The Court upheld an award of $105,000 to two teenage servers at an IHOP operated by the defendant in Racine.  Katrina Shisler and Michelle Powell said they were sexually harassed in 2004 and 2005 by an IHOP assistant manager in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

Normally, an employer can advance the so-called Faragher/Ellerth affirmative defense in a Title VII case sexual harassment claim involving a hostile work environment. This allows the employer to escape liability for damages if:

 (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

 (b) “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”

The Court said the  Faragher/Ellerth affirmative defense was not available to the Management Hospitality because both teens had complained to managers about sexual harassment  and the managers did nothing.  The company did not begin investigating until a private investigator hired by an attorney for one of the teenager began asking questions.

The Court said a rational jury could have found that the sexual harassment occurred “every shift,”  was “highly offensive,” and included “physical touching.”

The Court said a rational jury also could conclude that the employer failed to follow its own policies by discouraging  employees from reporting complaints, providing inadequate anti-harassment training to supervisors, and failing to “promptly” investigate the complaints.

The EEOC filed suit on behalf of the two teenaged servers. A jury awarded one of the servers $1,000 in compensatory damages and the other $4,000 in compensatory damages and $100,000 in punitive damages.

New Record for Discrimination Claims

Employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) reached an all-time high in 2011.

A total of 99,947 charges of employment discrimination were filed with the EEOC in Fiscal 2011, compared to  99,922 in Fiscal 2010. This sets a new record for discrimination claims.

Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, followed by charges of race discrimination ( 35,395) and sex discrimination (28,534).

Other allegations include:

  • Disability discrimination–25,742
  • Age discrimination—23,465
  • National Origin  discrimination – 11,833
  • Religious discrimination – 4,151
  • Color discrimination – 2,832
  • Equal Pay Act – 919
  • Genetic Discrimination Act – 245

The EEOC filed 300 lawsuits in 2011, which resulted in $91 million of relief.  Twenty-three of the lawsuits involved systemic allegations involving large numbers of people.

Through its combined litigation, enforcement, mediation programs, the EEOC obtained  $455.6 million in relief for private sector, state, and local employees and applicants,  an increase of more than $51 million from the 2010 fiscal year and a new record for the agency.

Of possible interest to workplace anti-bully advocates, the EEOC’s enforcement of the Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes the EEOC enforces: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million.  Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes. Many of these ADA claims could be stress related – targets of workplace bullying suffer high levels of stress that are blamed for short-and long-term physical impairment.

The EEOC enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.

The fiscal year 2011 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm

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