Pregnancy Discrimination Act: 35 Years Later

No Accommodation Requirement

Thirty five years ago this week, President Jimmy Carter signed into law the Pregnancy Discrimination Act of 1978 (PDA).

The PDA,  an amendment of Title VII of the Civil Rights Act, has proven to be a weak tool to combat  a major societal problem;  It  requires employers to treat pregnant women like others in the workplace but  it does not require employers to make even minimal accommEEOCodation for pregnancy-related conditions  (such as difficulties standing for long period, lifting restrictions, insufficient bathroom breaks, etc.).

Efforts last year to address the PDA’s shortcomings died in the U.S. Congress but the U.S. Equal Opportunity Employment Commission (EEOC) in its 2013-2016 strategic plan  identified combating pregnancy discrimination as a top priority. The EEOC, which is responsible for enforcing the PDA, characterizes the problem as an “emerging and developing” issue. Specifically, the EEOC said it would address the problem of “accommodating pregnancy-related limitations” under the Americans with Disabilities Act Amendments Act and the PDA.

The EEOC and Fair Employment Practice Agencies around the country reported 5,797 complaints of pregnancy discrimination in 2011.

True to its word, the EEOC has filed a spate of lawsuits this year to combat pregnancy discrimination. Most, if not all,  of these lawsuits involve individual defendants and somewhat minor settlements but the EEOC’s effort raises awareness of the problem and, hopefully, puts employers on notice that they are being watched.

 Lawsuits Filed

Here is a sampling of the lawsuits filed this year by the EEOC involving the PDA:

  •  EEOC v. Reed Pierce’s Sportsman’ Grille:  A woman who was four months pregnant with her first child was fired because, her supervisor allegedly said, “The baby is taking its toll on you.”  The EEOC  filed suit in the U.S. District Court for the Southern District of Mississippi.  After the defendant lost two motions to dismiss the case, it settled for $20,000.
  • EEOC v. Ramin, Inc.:   Ramin Inc., the owner of a Comfort Inn & Suites, allegedly fired a  housekeeper after she reported her pregnancy because of supposed concerns about potential harm that her job could cause the baby.  The EEOC filed suit in U.S. District Court for the Eastern District of Michigan. The defendant agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages.
  • EEOC v. Engineering Documentation Systems, Inc.:  A management official allegedly made derogatory remarks about a pregnant worker and  refused her request to move her office closer to the restroom to accommodate her nausea.  While she was out on leave, the company changed her job description and then terminated her.  The EEOC filed suit in the U.S. District Court for the District of Nevada. The defendant agreed to pay $70,000 to settle the case.
  • EEOC v. James E. Brown & Associates, PLLC:  A  Washington based law firm offered Zorayda J. Moreira-Smith a position as an associate attorney in January 2011.  The firm allegedly rescinded its job offer  the same day after when Moreira-Smith told them she was six months pregnant and asked the firm about its maternity leave policies.  The EEOC filed suit in the U.S. District Court for the District of Columbia. The defendant agreed to pay an $18,000 settlement,  to implement a non-discrimination policy and  to provide training to the firm’s personnel.
  • EEOC v. Platinum P.T.S. Inc. D/B/A/ Platinum Production Testing Services:  A clerk  requested time off for medical treatment relating to her miscarriage.  After she missed five days of work,  the defendant fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Texas. The defendant agreed to pay $100,000 to settle the pregnancy discrimination suit.

U.S. Sen. Robert Casey, Jr., of Pennsylvania proposed the Pregnant Workers Fairness Act (PWFA) in 2012 to guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer. The bill died in committee.

EEOC Whacked Again on Background Checks

Ct Rejects Race Discrimination Initiative

Another court has rejected the U.S. Equal Employment Opportunity Commission’s initiative to combat race discrimination by limiting the use of criminal background checks in hiring.

The U.S. Court of Appeals for the Sixth Circuit in Michigan this week upheld a lower court ruling requiring the EEOC to pay $751,942.48 in fees and costs to Peoplemark, a temporary-employment agency with offices in Michigan, Tennessee, Kentucky and Florida.

The award includes $526,172 in fees to Peoplemark’s in-house expert, an amount the EEOC  called astounding, inappropriate and poorly documented.

 EEOC Director Jacqueline Berrien recently maintained that the EEOC does not challenge an employers’ decision to conduct criminal background checks but instead challenges screening processes that are not job related and consistent with business necessity and which have a disproportionate impact on African-Americans.

The EEOC filed a complaint in 2008 alleging that Peoplemark had a blanket policy of denying employment opportunities to persons with felony records and that this policy had a disparate impact on African Americans.

Obvious?

Initially, it appeared obvious that Peoplemark had a policy of denying employment to applicants with felony records. Peoplemark used  an application form that asked applicants if they have a felony record and conducted independent investigations into the criminal records of all applicants. Most importantly, Peoplemark’s Associate General Counsel Judd F. Olsten actually admitted to the EEOC that Peoplemark had a company-wide policy of rejecting felon applicants

Peoplemark did not did not deny the existence of a company-wide policy against hiring felons until July 2009 – almost two years after the EEOC began investigating and a year after the  EEOC’ filed its complaint.

The appeals court notes that Peoplemark had  turned over 178,888 discovery documents to the EEOC by Oct. 1, 2010 which showed that Peoplemark had referred felons to job opportunities.  The fee award  dates October 2010.

According to the appeals court: “When discovery clearly indicated (Peoplemark’s Chief Counsel’s) statements belied the facts, the Commission should have reassessed its claim.”

The appeals court also noted the EEOC identified a class of 286 individuals that included applicants that did not have felony convictions and applicants who obtained employment through Peoplemark despite their criminal records.

The EEOC and Peoplemark agreed by joint motion to dismiss the case in March, 2010, with Peoplemark held to he prevailing party for fee purposes.  The EEOC argued it could have filed an amended complaint stating a valid claim against e at that time, an argument the court found to be irrelevant.

The award includes  $219,350.70 in attorney’s fees, $526,172 in expert witness fees (for 123.55 hours of work) and $6,419 in other expenses.

The case involved a complaint by Sherri Scott, an African-American with a felony conviction, submitted an application and was not referred for employment.  She filed a discrimination complaint under Title VII of the Civil Rights Act and the EEOC began an investigation.

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.

The Attorney Generals  of West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah have complained about the EEOC background check policy.

The EEOC last summer filed lawsuits against BMW and Dollar General Store for refusing to hire individuals with felony records. In the Dollar Store case, the individual was incorrectly reported as having a felony record when she did not.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

Courts Scrutinize Employer “Look” Policies

Dreadlocks and Hijabs

An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.

Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe  Management Solutions, a Mobile, Alabama catastrophic  insurance claims company, for alleged discrimination against a  black applicant for employment because she wore dreadlocks.

In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics  of race or religious identity.  Other employers run afoul of  Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups,  older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

Dreadlocks

Chastity Jones was among a group of  applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010.  Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.”  Jones was offered a position as a customer service  representative.

According to the EEOC, Jones’s offer of employment was rescinded later that day when  human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones  the company did not allow dreadlocks and that she would have to cut  them off to obtain employment.  Jones  refused to cut her hair.

The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based  on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M).

“This litigation is not about policies  that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Third time’s the Charm?

The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.

Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” –  an internal dress code that included a prohibition against head coverings.

The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.

Khan, 19, started working in  2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif.  As an “impact associate,” she worked primarily in the stockroom.  At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work.  Khan refused and was fired on Feb. 23, 2010.

Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.”  That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”

Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.

The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training.  The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan.  Khan and Banafa will also receive $71,000 under the terms of the settlement.

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.

EEOC Defends Criminal Background Checks

They’re Permitted Unless …

The EEOC has been slammed in recent weeks for filing discrimination lawsuits against employers who used criminal background checks to assess job applicants that resulted in the disproportionate exclusion of minority group members.

A feEEOCderal judge ridiculed the EEOC in August for a seeming double standard, noting the EEOC itself uses criminal background checks with respect to hiring employees at the EEOC.

Jacqueline A. Berrien, chairperson of the EEOC, recently responded to a July 24,2013 letter from nine state Attorney Generals asking the EEOC to reconsider its April 25, 2012 Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

She said the Guidance merely clarifies and updates a longstanding EEOC policy and does not prohibit employers from using criminal background checks in hiring.

She said an employer can be held liable for discrimination if it “uniformly administers a criminal background check that disproportionately excludes people of a particular race, national origin, or other protected characteristic, and is not ‘job related for the position(s) in question and consistent with business necessity’ within the meaning of Title VII. However, she said employers can avoid liability by using the EEOC’s recommended two-step process when evaluating criminal history checks of applicants. The EEOC recommends that employers:

1. Use a ‘targeted’ screen of criminal records that considers such factors as the nature of the crime, the time elapsed and the nature of the job.

2. Use a follow-up individualized assessment of employees who are screened out to ensure the employer is “not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information.” The second step also gives individuals a chance to correct errors in their records.

Berrien said the EEOC’s proposed individualized assessment process does not add significant additional costs for employers.

She said an employer does not have to conduct an individualized assessment “if it can demonstrate that its targeted screen is always job related and consistent with business necessity.”  She called the individualized assessment “a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.”

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013).

Titus notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. He acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential.

Berrien did not address the issue of background checks conducted by the EEOC on its job applicants.

Earlier, Berrien said recent EEOC lawsuits against BMW and Dollar General did not challenge the employers’ decisions to conduct criminal background checks but instead challenged screening processes that have a disproportionate impact on African-Americans that the commission believes are not job related and consistent with business necessity.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

The Attorney Generals who complained about the EEOC policy are from West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah.