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Investigating Pregnancy-Related Discrimination Complaints by Seena Foster

Friday, November 2nd, 2018

This is an informational paper to assist equal opportunity professionals, and human resource professionals, better understand the differences in disability-based and gender-based discrimination complaints. Given the length of the paper, you may find it useful to download and save in your resource library.

TABLE OF CONTENTS:

An overview

I. Federal laws and pregnancy

A. Disability-related laws

1. In federally-assisted programs and in the workplace

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

B. Gender-related laws

1. In federally-assisted programs

2. In the workplace

II. When to apply disability laws

A. In federally-assisted programs

B. In the workplace

III. When to apply gender laws

A. In federally-assisted programs

B. In the workplace

IV. About Seena Foster

________________________________________________________________

An overview

As the HR/EEO professional for your organization, you receive a complaint from an employee alleging that she was denied access to a workplace training program because she took sick leave, and requested leave under the Family Medical Leave Act (FMLA), for pregnancy-related complications. Or, she was denied access to the training program because her supervisor overheard her say she wanted to “start a family soon.”

Or, you serve as the EO professional for an organization operating federally-assisted programs and activities, and a woman files a discrimination complaint alleging that her application to enroll in an educational program was wrongfully denied because she has medical complications from her pregnancy. Or, she alleges her enrollment application was denied because she’s been pregnant twice over the past three years.

How do you investigate these complaints? Depending on the circumstances giving rise to the adverse action at issue, you’ll investigate the complaint as either a disability-based discrimination complaint, or as a gender-based complaint. How you decide this will, in turn, dictate the information you gather and the remedies (if any) you offer.

This paper is designed to help you understand how to identify the type of complaint you have, and what information you’ll need to gather during the investigation.

I. Federal laws and pregnancy

A. Disability-related rights laws

1. In federally-assisted programs and in the workplace

When we talk about disability-related civil rights laws, we are referring to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (ADA), and the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Importantly, these laws apply both to workplace discrimination complaints as well as to discrimination complaints arising in federally-assisted programs and activities.

Generally speaking, under these laws, “disability” is defined as a mental or physical condition that “substantially limits” one or more major life activities. Disabilities that are both (1) minor, and (2) transient or temporary (such as having a cold), do not meet the definition of “disability” for purposes of the Rehabilitation Act, ADA, and ADAAA.

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

In addition to the Rehabilitation Act, and the ADA, the Family and Medical Leave Act applies to the workplace. Often, this law is mistakenly thought of as a civil rights law. The FMLA is not a civil rights law, but it was enacted in response to civil rights concerns in the workplace.

Generally speaking, the FMLA provides that, for certain family or medical reasons, an employee of at least one years’ duration may take up to 12 weeks of unpaid, job-protected leave in a 12 month period. These reasons include birth and care of a newborn child, absence due to pregnancy complications, adopting a child or becoming a foster care parent, caring for an immediate family member with a serious health condition, or taking medical leave due to the employee’s inability to work because of a serious health condition.

As noted by the United States Supreme Court in Coleman v. Court of Appeals of Maryland (Mar. 20, 2012):

In enacting the FMLA, Congress relied on evidence of a well-documented pattern of sex-based discrimination in family-leave policies that granted longer periods of leave to women than to men.

Therefore, the FMLA is designed to provide a consistent set of unpaid leave policies to be applied to employees across the board, regardless of gender.

And, the Equal Economic Opportunities Commission offers the following guidance:

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Turning to your organization’s leave policies and procedures, it is important to understand these policies are in place for a reason.

As we see from the history behind Congress’ enactments of the FMLA and the PDA, employers must establish leave policies and procedures (sick, annual, FMLA, and so on) that apply to employees across the board, and managers and supervisors must be consistent in their application of these policies and procedures. So, while these policies are not civil rights laws, deviation from established policies and procedures, or discriminatory policies and procedures established by the employer, renders an organization vulnerable to civil rights discrimination complaints on any covered basis (race, color, national origin, gender, religion, disability, age).

B. Gender-related laws

Sometimes, a pregnancy-related discrimination complaint does not involve disabling physical complications or medical restrictions related to the pregnancy. These complaints would be investigated as gender-based discrimination complaints. Why?

The answer is only women are capable of pregnancy and childbirth. So, let’s take a look at the gender-based civil rights laws that may apply to the complaint filed with you.

1. In federally-assisted programs and activities

There are a number of federal laws that prohibit gender-based discrimination in the delivery of federally-assisted aid, training, benefits, and services. As an example, Section 188 of the Workforce Investment Act prohibits discrimination on the basis of gender in federally-assisted operations, such as job referral activities at our Nation’s job banks, delivery of unemployment insurance benefits, and selection of individuals for training, apprenticeship, and certification programs.

As another example, Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in educational programs and activities, regardless of which federal agency provides the funding. And, the U.S. Department of Education (Education) provides excellent guidance for handling pregnancy-related discrimination issues under Title IX. Notably, unless a complaint alleges discrimination based on disabling medical or physical complications, a pregnancy-related discrimination complaint is a complaint alleging discrimination on the basis of gender. Education’s guidance states the following:

[T]he Title IX regulation at 34 C.F.R. § 106.40(a) prohibits recipients from applying ‘any rule concerning a student’s actual or potential parental, family or marital status which treats students differently on the basis of sex.’ The regulation also states, in part, the following:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 34 C.F.R. § 106.40(b)(l).
In addition, the Title IX regulation states that, in providing financial assistance to any of its students, a recipient shall not ‘apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.’ (See 34 C.F.R. § 106.37(a)(3)).

This differs from Education’s disability-related guidance:

Although pregnant students may be required to obtain a physician’s certification of fitness to continue in the regular education program or activity, a recipient may do so only if it requires such a certification from all students for other physical or emotional conditions requiring the attention of a physician. (See 34 C.F.R. § 106.40(b)(2)). In fact, the Title IX regulation instructs recipients to treat pregnancy or childbirth in the same manner and under the same policies as any temporary disability. (See 34 C.F.R. § 106.40(b)(4)).

This is consistent with how pregnancy-related complaints should be approached in other federally-assisted programs and activities. So, unless the complaint alleges discrimination based on disabling medical complications or restrictions, the pregnancy-related complaint is investigated as alleged gender-based discrimination.

2. In the workplace

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits gender-based discrimination. However, confusion arose regarding how to process pregnancy-related complaints. As a result, Congress sought to clarify that pregnancy-related discrimination complaints in the workplace generally are investigated as alleging discrimination on the basis of gender. To that end, the Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act to include pregnancy-related complaints under the penumbra of gender-based discrimination.

As noted by the United States Supreme Court in California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 692 (1987), leading up to enactment of the PDA, “Congress had before it extensive evidence of discrimination against pregnancy,” particularly in the administration of leave policies and procedures by employers. To see the text of the PDA, to go 42 U.S.C. § 2000e.

II. When to apply disability laws

A. In federally-assisted programs and activities

Jane seeks to participate in an on-the-job training program funded by the U.S. Department of Labor. The program begins in 30 days and requires that participants be able to bend, lift, and stand for most of an eight hour day, five days a week. Jane wants to participate in the program, but provides medical documentation from her physician stating, for the next three months, she will be unable to stand for more than ten minutes, and will be unable to bend or lift anything at all. Her application to participate in the program is denied because her pregnancy-related complications prevent her from being able to start the program in 30 days. She files a complaint with you.

You will process Jane’s complaint as a disability-based discrimination complaint. Here, Jane is unable to bend or lift anything for the next three months, and can stand for only ten minutes at a time, due to her pregnancy. She has a “disability” in that her condition “substantially limits” the major life activities of bending, lifting, and standing. To that end, you will determine whether Jane meets the essential eligibility requirements to participate in the program, and whether any accommodations may be offered to Jane to allow her to participate. With regard to accommodations, you would look at the accommodations available for similarly-situated program applicants with temporary disabilities (such as a broken foot, or temporary back condition). The questions you will ask during your investigation would include:

● What are the essential eligibility requirements for participation in the program?

● Assuming, for purposes of this exercise, you find that the essential eligibility requirements include starting the program in 30 days and being able to lift, bend, and stand, you’ll need to ask, “Was Jane treated differently than anyone else (man or woman) with similar temporary limitations, such as a broken leg or the flu, seeking to participate in the training program?”

For questions in a particular complaint involving allegations of pregnancy-related discrimination, you should check with your EO leadership, or with the civil rights office of your federal funding agency for guidance.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of actual or perceived physical limitations or restrictions leading to the view that the person is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an applicant’s training or apprenticeship opportunities because you believe these positions could result in a miscarriage)

Focus on the essential eligibility requirements for the program or activity at issue, and ensure that the applicant/participant is not denied access to these programs if she meets the essential eligibility requirements. Look for accommodations that may be provided to allow participation where the applicant/participant has a temporary disability.

B. In the workplace

In the workplace, figuring out the proper way to investigate discrimination complaints often is complicated by allegations that leave requests (such as sick leave or FMLA leave) were improperly denied, or that these requests adversely affected an employment decision related to the employee. So, let’s sort out these issues in the context of pregnancy-related complaints.

The U.S. Equal Employment Opportunities Commission (EEOC) provides the following guidance:

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

We’ll illustrate this point with Joan. Joan suffers from “morning sickness,” and has asked for permission to take sick leave or FMLA leave on days she feels particularly bad. Her supervisor denies both of her requests, and she files a complaint with you.

Joan has asked for sick leave or FMLA leave, and she has let you know she suffers from “morning sickness,” you will investigate this as a disabiity-based discrimination complaint. You will look at the policies and procedures pertaining to employees’ requests for the types of leave at issue here, sick and FMLA. You will ask how those policies and procedures have been applied to other employees with temporary disabilities, and whether Joan is being treated differently from any other employee in your organization, male or female, with similar temporary or transient limitations.

Let’s say that Joan directs your attention to one of her co-workers, Jane who requested, and received approval for, sick leave and FMLA leave when she broke her arm last year. Here, you are looking to see whether Joan and Jane, and any other similarly-situated co-workers with transient or temporary limitations, were treated differently with regard to consideration of their leave requests.

Determinations as to whether folks are “similarly-situated” are made on a case-by-case basis; there are no “bright line” rules. In making such determinations, you want to ensure that your leave policies and procedures are not discriminatory either in favor of, or against, pregnancy-related limitations, and that these policies and procedures are being applied consistently to all employees.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of actual or perceived physical limitations or restrictions leading to the view that the employee is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice before you engage in an adverse employment action because the employee:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an employee’s promotion opportunity because you believe the duties required in the position could result in a miscarriage)

Focus on the bona fide occupational requirements, and the essential job duties, and allow the employee to participate if she meets these requirements. Look for accommodations where the employee has a temporary disability due to childbirth or pregnancy, as you would for someone with a broken foot or the like.

III. When to apply gender-based laws

A. In federally-assisted programs and activities

Denial of a service, aid, benefit, or training on the basis of prior pregnancies is a violation of federal civil rights laws. For example, the case of Pegues et al. v. Mississippi State Employment Service et al., 699 F.2d 760 (5th Cir. 1983) involved denial of an employment referral in a federally-assisted workforce development program. The Mississippi State Employment Service (MSES) reviewed applications of individuals who sought employment referrals to available, higher paying jobs at a local factory. One of the female applicants (Plaintiff) alleged disparate treatment in MSES’ classification, and referral, of her and other women to lower paying positions at the local factory as compared to similarly qualified male applicants.

The court stated, to demonstrate disparate treatment in employment referral, the Plaintiff must prove: (1) she is a member of a protected group; (2) she applied for an occupation for which MSES was making referrals; (3) she failed to secure a referral; and (4) MSES later referred a non-member of the protected group.

On examination of the evidence of record, the court found: (1) the Plaintiff was a member of a protected group (women), (2) she applied for a higher paying position with the local factory, (3) her application was denied, and, (4) based on her education and experience, she “was passed over in favor of other, similarly qualified (male) applicants.” Id. at 775. The court then noted:

By way of rebuttal, Defendants elicited testimony from (Plaintiff) as to her five full term pregnancies between 1970 and 1975, and various benefits in the form of training and referral that Defendants had conferred upon her between 1968 and 1970.
Id. at 775 (emphasis added). The court rejected Defendants’ proffer of rebuttal:
Given her factory experience and enhanced education, we do not believe the reasons articulated constitute a legitimate rationale for Defendants’ failure to reconsider her service classification and provide an opportunity for employment at Travenol. She is entitled to relief.

Id. at 775. The court concluded that Plaintiff successfully established gender-based discrimination.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of the views of the agency, organization, or company involved regarding prior, current, or potential pregnancies?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to gender-based discrimination in the delivery of federally-assisted programs and activities. Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other applicants/participants with similar temporary limitations)

B. In the workplace

An example of gender-based discrimination in the workplace is found in International Union, et al v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196 (1991). Here, the employer had a policy that excluded women of “childbearing capacity” from holding certain “lead-exposed jobs.” Specifically at issue were certain jobs making batteries. Among the class action plaintiffs were (1) a woman “who had chosen to be sterilized in order to avoid losing her job,” and (2) a woman “who had suffered loss in compensation when she was transferred out of her job where she was exposed to lead.”

Concluding that the employer’s policy was “facially discriminatory” in violation of Title VII’s ban on gender-based discrimination, the Court noted the policy improperly “requires only a female employee to produce proof that she is not capable of reproducing.” As a result, the Court noted that the burden shifted to the employer to demonstrate that this discriminatory requirement constituted a bona fide occupational qualification (BFOQ), which the Court found was not present in the case.

Citing to the PDA, the Court stated, “Unless pregnant employees differ from others in their ability to work, they must be treated the same as other employees for all employment-related purposes.” Said differently, women who are as capable of doing their jobs as their male counterparts may not be forced “to choose between having a child and having a job.” Based on the record before it, the Supreme Court in Johnson Controls found that “[f]ertile women . . . participate in the manufacture of batteries as efficiently as anyone else” such that the employer’s policy violated Title VII’s ban on sex discrimination.

The Court made a point of stating that sex discrimination in the workplace has been allowed only under very narrow circumstances, such as definitive danger to others. The Court stressed, under these circumstances, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”

    The “safety exception” explained.

The Johnson Controls Court cited its prior opinion in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977) to illustrate the “safety exception” to gender-based discrimination. In Dothard, it was the employer’s policy to hire only male guards at a maximum-security male penitentiary. The Court held this was permissible as “employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman.” Under the facts of that case, the Court found that “sex was related to the guard’s ability to do the job-maintaining prison security.” In Johnson Controls, the Court emphasized, “in order to qualify as a BFOQ, a job qualification must relate to the ‘essence’ . . . or to the ‘central mission of the employer’s business.’”

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of the views of the supervisor, agency, organization, or company regarding prior, current, or potential pregnancies, and the “safety exception” does not apply?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to based discrimination in the workplace in violation of Title VII. Think twice if you seek to engage in an adverse employment action because the employee:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● is taking pregnancy or parental leave
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other employees with similar temporary limitations)

IV. About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development and educational programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews.

Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.”

And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster’s series of on-demand webcasts for equal opportunity professionals has received rave reviews, and she offers training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws.

Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “very relevant,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” Ms. Foster is certified in “Federal Workplace Mediation” through the Northern Virginia Mediation Service.

She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

NOTICE: This paper is for informational purposes only. We do not offer legal advice. Specific questions should be directed to your legal counsel, or to the civil rights experts within your organization, agency, or company.

Employee Misconduct During Mediation of Discrimination Complaint Not Protected under Title VII of the Civil Rights Act

Tuesday, July 30th, 2013

In Benes v. A.B. Data, Ltd., ___ F.3d ___, Case No. 13-1166 (7th Cir. July 26, 2013), the court upheld termination of an employee stemming from his misconduct during mediation of a sex discrimination complaint.  The court described the circumstances of the misconduct as follows:

The EEOC arranged for mediation in which, after initial joint session, the parties separated and a go-between relayed offers.  In a separate room mediation, each side (including attorneys and assistants) stays in its own room.  The intermediary shuffles between rooms.  Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise.  But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly:  ‘You can take this proposal and shove it up your ass and fire me and I’ll see you in court.’
The court then noted, “Within an hour A.B. Data accepted Benes’s counterproposal:  it fired him.”
        Benes claimed the termination constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964.  However, the circuit court upheld the termination stating:
It was Benes who sabotaged the mediation session by barging into the other side’s room.  Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.
. . .
We cannot see why misconduct during mediation should be consequence free.  Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.
The court concluded Title VII “covers investigation and litigation in the same breath” and, since it does not “create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation.”

OFCCP Directive: Properly Calculating Back-Pay in Employment Discrimination Cases

Tuesday, July 30th, 2013
By ADM Notice Number 310 dated July 17, 2013, OFCCP provides valuable guidance for calculating back-pay for victims of employment discrimination. OFCCP explains the two models of calculating such relief—the formula model and the individual model—and it sets forth when it is appropriate to use a particular model and how wages are calculated under that model.
In a nutshell, the formula method is less precise and is utilized to approximate losses in a variety of circumstances, such as where (1) documentation isn’t available, or (2) the matter involves a large class action, and it would be too time-consuming or unduly burdensome to calculate wages for each class member.  The individual relief model, on the other hand, is properly used (1) for small class actions, (2) where documentation to support back wages is available, and/or (3) the liability period is of short duration.
The OFCCP directive further explains how back-pay is calculated under each of these models.  For the details, go towww.dol.gov/ofccp/regs/compliance/directives.

The Meaning of “Disability”

Sunday, February 5th, 2012

Federal civil rights laws prohibit disability-based discrimination in federally-funded programs and activities as well as in your employment practices. Disability-based discrimination complaints generally fall into one of three legal theories—disparate treatment, disparate impact, or reasonable accommodation. In order to prevent discrimination on the basis of disability under any of these legal theories, we must understand how “disability” is defined. In this paper, we will focus on the definition of “disability” in the civil rights context. Other issues pertaining to disability-based discrimination, such as reasonable accommodation, will be handled in a separate paper.

Our understanding of the concept of “disability” is guided by the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Amendments Act of 2008 (ADAAA).

“Disability” defined

Under these federal civil rights laws, “disability” is broadly defined as (1) a physical or mental impairment that substantially limits one or more major life activities, or (2) a record of such impairment, or (3) being regarded as having such an impairment.

“Physical or mental impairment” defined

The types of conditions that may give rise to a physical or mental impairment include, but are not limited to, the following:

√ physiological disorder or condition
√ cosmetic disfigurement
√ anatomical loss affecting one or more body systems, including neurological, muscoskeletal, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine
√ mental disability
√ organic brain syndrome
√ emotional or mental illness
√ specific learning disabilities
√ contagious and noncontagious diseases
√ visual, speech, or hearing impairments
√ cerebral palsy
√ epilepsy
√ HIV disease (symptomatic or asymptomatic)
√ tuberculosis
√ illegal drug addiction (prior or perceived)
√ alcoholism (prior or perceived)
√ cancer
√ heart disease
√ diabetes
√ muscular dystrophy

It is important to keep in mind the ADAAA provides that a temporary or transient condition of six months or less (i.e. a broken arm) does not constitute a “disability” for purposes of the federal civil rights laws.

With regard to illegal drug use, generally an individual who is currently engaged in illegal drug use will not be deemed an “individual with a disability” when a recipient operating a federally funded program or activity acts on the basis of such use. On the other hand, if the person successfully completed a drug rehabilitation program, or is participating in such a program and is no longer using illegal drugs, s/he may meet the definition of and “individual with a disability.” Similarly, if the individual is erroneously regarded as using illegal drugs (when, in fact, the individual is not), then that individual also may meet the definition of an “individual with a disability”; namely, the individual is “perceived” to have impairment where none exists.

However, even if state law permits the use of certain drugs but their use is illegal under federal laws, then the person will not be deemed an “individual with a disability” under the ADA and the statute’s nondiscrimination provisions do not apply. In James, et al v. City of Costa Mesa, ___ F.3d ___, Case No. 10-55769 (9th Cir. May 21, 2012), plaintiffs sought to prevent the shutdown of marijuana dispensing locations by the City of Costa Mesa, California through filing a discrimination complaint under the ADA. The circuit court held that even though the State of California permits the use of marijuana for medicinal purposes, under federal law, this constitutes “illegal drug use” and the ADA does not apply. The court stated:

We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.

If you have questions regarding whether a person is an “individual with a disability”, check with the civil rights office of your federal funding agency, or with your EO leadership.

“Substantially limits a major life activity” defined

It is important to keep in mind that a mere “physical or mental impairment” is insufficient to invoke the protections of federal civil rights laws; rather, the “physical or mental impairment” also must “substantially limit one or more major life activities.” “Major life activities” are commonly understood as including the following:

√ Caring for one’s self;
√ Performing manual tasks;
√ Walking;
√ Seeing;
√ Hearing;
√ Speaking;
√ Breathing;
√ Learning; and
√ Working.

Types of adverse actions at issue

Disability-based discrimination may take a variety of forms. In federally funded programs and activities, a person with a disability may be subjected to illegal discrimination under the following circumstances:

√ outright intentional exclusion from the program or activity;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ exclusion from participation based on certain qualification standards or criteria;
√ segregation from others in participating in a program or activity;
√ failure to address a request for accommodation or modification; and
√ being channeled to lesser programs or activities.

Similarly, in your employment practices, disability-based discrimination may arise from the following:

√ refusal to hire or promote because of the disability;
√ use of exclusionary occupational criteria or standards;
√ being subjected to the discriminatory effects of architectural, transportation, or communication barriers;
√ failure to address a request for accommodation or modification; and
√ segregation from others at workplace events or meetings.

These lists are not exhaustive; rather, they are intended to give you an idea of the types of discriminatory acts that are encountered by persons with disabilities.

Past, Present, and Perceived Disability

Illegal disability-based discrimination may occur based on an individual’s present or past disability, or your “perception” that the individual has a disablity. Let’s start with examples of discrimination based on a “present” disability.

√ In a federally funded program or activity. Jane is blind. She has a master’s degree in business administration and comes to your One Stop Career Center seeking employment in this field with a company. Your employment counselor, however, refers Jane to a position as an entry level clerk for a company. Although this position requires only an associate’s degree and it pays much less, the counselor explains that he has successfully referred other blind people to these positions with the company. Here, Jane has been given a job referral to a lesser position because of her “present” disability (blindness).

√ In the workplace. Again, we’ll use Jane for purposes of our example. She has been working as a project manager for your company for ten years and has received excellent reviews by her supervisors. She has applied for a promotion to a position that involves supervising staff. Although Jane is an excellent candidate, you are concerned with how she would interact with subordinate staff because she is blind. As a result, you decline to promote her. In this example, Jane has been denied a promotion because of her “present” disability.

Illegal discrimination also may occur on the basis of a person’s “past” disability. Here, the person, at one time, suffered from a disability that limited one or more major life activities. And, even though the person no longer suffers from the disability, s/he suffers from discrimination because of the “past” disability. Let’s take a look at a couple of examples.

√ In a federally funded program or activity. Three years ago, John was diagnosed with an aggressive form of cancer. For 12 months, he was treated with chemotherapy. For the past two years, he has received check-ups from his physician every six months and the cancer is in remission. John seeks to enroll in an on-the-job training program in the construction industry. He meets the essential eligibility requirements for the program because he has a bachelor’s degree and five years of experience. However, you deny his application to enroll. You state that the program is expensive and requires a commitment of four years. You are concerned that the cancer will reappear in that time period. Here, you have discriminated against John on the basis of a “past” disability, i.e. you denied enrollment in the training program because he suffered from cancer in the past.

√ In the workplace. Again, we’ll use John as our example. This time, he applies to be hired by your company for a supervisory position. Your company is expanding and you need someone who can “hit the ground running” and get results from the team of folks assigned to him or her. You believe John’s recent bout with cancer constitutes too much of a risk to place him in such a critical position with your company even though he meets all of the occupational qualifications for the position. You decide not to hire him. Here, John has suffered illegal discrimination on the basis of a “past” disability.

Finally, we’ll take a look at discrimination on the basis of a “perceived” disability. Here, the person may have a disability, but it does not substantially limit any major life activities. Or, the person does not have any disability at all. Yet, the person is treated as if s/he does have a disability.

√ In a federally funded program or activity. In this example, Joan seeks training as a construction project manager. When she arrives at your One Stop Center, she accidentally catches her foot on the corner of a desk. You did not see this and, as Joan approaches your desk, she is walking with a limp. Because the training program requires considerable walking, lifting, and bending, you decide that Joan would not be able to complete the training given her limp. Here, you have denied training to Joan based on your “perception” that she suffers from a disability, which is illegal.

√ In the workplace. Again, we’ll use Joan as our example. Here, you are a bank manager seeking to hire tellers. Joan arrives at your bank to interview for the position. She was referred by one of your existing tellers. However, a different teller whispers to you that he thinks Joan has an “illegal drug problem” and would pose a risk if hired. You proceed to interview Joan. Even though she meets your educational and experience requirements for the bank teller position, you decline to hire her. You are concerned about her “illegal drug problem.” In reality, Joan has never used illegal drugs. In this example, you have discriminated against Joan on the basis of a “perceived” disability.

Conclusion

In sum, discrimination may occur on the basis of a present, past, or perceived disability. To avoid disability-based discrimination in federally funded programs and activities, you should focus on the essential eligibility requirements for the service, aid, training, or benefit and whether a person meets those requirements regardless of any past, present, or perceived disability. Similarly, in the workplace, focus on the bona fide occupational requirements and essential job duties for a position or promotion. And, whether in federally funded programs or activities, or in the workplace, you must have policies and procedures in place to handle requests for accommodation and/or modification.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, Virginia. You may visit her website at www.titleviconsulting.com.