Retaliation: According to the Equal Employment Opportunity Commission (EEOC), an employer (15 or more employees) may not fire, demote, harass or otherwise "retaliate" against people (applicants or employees) because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit) The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
The Americans with Disabilities Act (ADA) (20 or more employees) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.
Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity.
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Such as: termination, refusal to hire, and denial of promotion, other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.
Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history. Employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination. A protected activity can include requesting a reasonable accommodation based on religion or disability.
The Fair Labor Standard Act (FSLA) provides that it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.
To establish a cause of action for retaliation a plaintiff must prove the following elements: he or she engaged in a protected activity; his or her exercise of this right was known by the employer; thereafter, the employer took an employment action adverse to her; and there was a connection between the protected activity and the adverse employment action.
1. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity.
2. To establish a causal connection, a plaintiff must produce evidence from which a reasonable finder of fact could infer that the employer would not have taken the adverse action had the plaintiff not engaged in the protected activity. A plaintiff may satisfy this burden by offering evidence of the employer's knowledge that the plaintiff engaged in protected activity coupled with closeness in time between that knowledge and the adverse action.
Sunday, March 21, 2010
Pregnancy Discrimination Law
The Pregnancy Discrimination Act "PDA" prohibits discrimination against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” Any employer that’s subject to Title VII of the Civil Rights Act of 1964 must comply with the PDA. Under the law, an employer can not deny a woman a job or a promotion merely because she’s pregnant or has had an abortion. Nor can you fire her because of her condition or force her to go on leave as long as she’s physically capable of performing her job.
The law requires employers to treat pregnant employees the same as other employees on the basis of their ability or inability to work. Employers must provide the same accommodations for an expectant worker that they do for any employees unable to perform their regular duties. If an employer provides other work for an employee who can’t lift heavy boxes because of a bad back, you must make similar arrangements for a pregnant employee. A normal pregnancy is not considered a disability under the ADA. But if a woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and, therefore, entitled to reasonable accommodation to perform her job.
Employers with 15 or more employees are required to follow the Federal PDA. Ohio Revised Code makes it unlawful for employers to discriminate on the basis of pregnancy. Termination of an employee who is temporarily disabled due to pregnancy or a related medical condition that is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”
The Ohio Administrative Code indicates, “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. If the employer
has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.
An Ohio Appellate Court has held that an employer’s application of a minimum length of service requirement to qualify for maternity leave is unlawful. Female employees are entitled to reasonable leave for pregnancy or a related medical condition, regardless of length of service. Enforcement of a length-of service policy to deny pregnancy-related requests for leave exposes employers to liability for pregnancy discrimination, even if the employer applies its policy in the same way to other types of leave requests.
Employers may not apply light-duty programs haphazardly, allowing some employees to take light-duty jobs, but not others. If they do, it could be a cause of action for pregnancy discrimination. Employers are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave according to the PDA.
Employers are allowed to apply to pregnant employees the same requirements they impose on other employees such as requiring an employee to obtain a doctor’s note before allowing them to take sick leave and collect benefits. An employer can not exclude single women from maternity benefits, they must provide the same coverage for pregnancy-related conditions as they do for illnesses and disabilities. An employer can require a pregnant employee to use her vacation benefits before she can collect sick leave or disability pay as long as employers require other employees for absences for other types of disabiolities or illnesses.
Insurance coverage: insurance clauses excluding pre-existing conditions can include pregnancy if same restrictions apply to other conditions. An employer can not force an employee to purchase a family policy to be covered when she becomes pregnant, but employers can permit an employee to switch to a family plan after the birth of the child so the baby can be covered.
Family Medical Leave Act (FMLA): Any organization with 50 or more employees working within a 75-mile radius of the work site must comply with the FMLA. Employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.” (The FMLA defines a “serious health condition” as “an illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”)
Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition. To qualify for FMLA leave, an employee must have worked for the same employer for at least 12 months (not necessarily continuously) and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.
New parents (both mothers and fathers) can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends. Presumably, the idea is that if a working mother takes her 12 weeks and then returns to work, the father can care for the child for the next 12 weeks. If both parents work for the same company then their combined leave is only 12 weeks.
Pregnant employees can not be forced to take leave or remain on leave as long as they are able to perform their jobs. Employers must hold a job open for a pregnant employee for the same length of time it would hold open a job for employees on sick or disability leave. Employers can not have a rule that prohibits an employee from returning to work for a pre-determined period after childbirth. The PDA does not prohibit employment practices that favor pregnant women. The ADA does not cover normal pregnancy however, if the employee experiences substantial complications that limit a major life activity she is then considered disable and entitled to an accommodation.
The law requires employers to treat pregnant employees the same as other employees on the basis of their ability or inability to work. Employers must provide the same accommodations for an expectant worker that they do for any employees unable to perform their regular duties. If an employer provides other work for an employee who can’t lift heavy boxes because of a bad back, you must make similar arrangements for a pregnant employee. A normal pregnancy is not considered a disability under the ADA. But if a woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and, therefore, entitled to reasonable accommodation to perform her job.
Employers with 15 or more employees are required to follow the Federal PDA. Ohio Revised Code makes it unlawful for employers to discriminate on the basis of pregnancy. Termination of an employee who is temporarily disabled due to pregnancy or a related medical condition that is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”
The Ohio Administrative Code indicates, “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. If the employer
has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.
An Ohio Appellate Court has held that an employer’s application of a minimum length of service requirement to qualify for maternity leave is unlawful. Female employees are entitled to reasonable leave for pregnancy or a related medical condition, regardless of length of service. Enforcement of a length-of service policy to deny pregnancy-related requests for leave exposes employers to liability for pregnancy discrimination, even if the employer applies its policy in the same way to other types of leave requests.
Employers may not apply light-duty programs haphazardly, allowing some employees to take light-duty jobs, but not others. If they do, it could be a cause of action for pregnancy discrimination. Employers are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave according to the PDA.
Employers are allowed to apply to pregnant employees the same requirements they impose on other employees such as requiring an employee to obtain a doctor’s note before allowing them to take sick leave and collect benefits. An employer can not exclude single women from maternity benefits, they must provide the same coverage for pregnancy-related conditions as they do for illnesses and disabilities. An employer can require a pregnant employee to use her vacation benefits before she can collect sick leave or disability pay as long as employers require other employees for absences for other types of disabiolities or illnesses.
Insurance coverage: insurance clauses excluding pre-existing conditions can include pregnancy if same restrictions apply to other conditions. An employer can not force an employee to purchase a family policy to be covered when she becomes pregnant, but employers can permit an employee to switch to a family plan after the birth of the child so the baby can be covered.
Family Medical Leave Act (FMLA): Any organization with 50 or more employees working within a 75-mile radius of the work site must comply with the FMLA. Employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.” (The FMLA defines a “serious health condition” as “an illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”)
Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition. To qualify for FMLA leave, an employee must have worked for the same employer for at least 12 months (not necessarily continuously) and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave.
New parents (both mothers and fathers) can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends. Presumably, the idea is that if a working mother takes her 12 weeks and then returns to work, the father can care for the child for the next 12 weeks. If both parents work for the same company then their combined leave is only 12 weeks.
Pregnant employees can not be forced to take leave or remain on leave as long as they are able to perform their jobs. Employers must hold a job open for a pregnant employee for the same length of time it would hold open a job for employees on sick or disability leave. Employers can not have a rule that prohibits an employee from returning to work for a pre-determined period after childbirth. The PDA does not prohibit employment practices that favor pregnant women. The ADA does not cover normal pregnancy however, if the employee experiences substantial complications that limit a major life activity she is then considered disable and entitled to an accommodation.
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