Archive for category Employment Discrimination Laws

“Sex-Plus” Discrimination Equals Possible Liability, Part II

On Monday, we discussed the Shazor v. Prof’l Transit Mgmt., Ltd. case. The Sixth Circuit held that an African American woman had triable race and sex discrimination claims under Title VII even though she was replaced with a Hispanic female. In other words, in a “sex-plus” case such as Shazor’s, an employer is not permitted to undermine a black female’s prima facie case by showing that “white women and African American men received the same treatment” as the plaintiff.

Once the court found Shazor had established a prima facie case of discrimination, PTM argued that it had a legitimate, nondiscriminatory reason for firing Shazor based on the alleged lies she made.  The court ruled that Shazor raised a material factual dispute about whether this reason was pretextual (meaning, that the nondiscriminatory reason offered by PTM was really just given to cover up their true motives), and that the company could not avail itself of the “honest belief” doctrine because it failed to adequately investigate Shazor’s alleged lies.

There are several lessons to be learned from Shazor. First, discrimination claims can be based on an intersection of two or more protected categories.  For employers, this means that they should take precautions to ensure employment decisions are based on legitimate reasons – not discriminatory intentions..

Second, employment decisions should always be well-supported by reasonable investigation. Shazor’s supervisor, Tom Hock, spoke to only one person about Shazor’s alleged lies, and this single conversation did not establish sufficient facts about the truth (or lack of it) behind her statements. Had Hock conducted, and documented, a more thorough investigation, PTM may have been able to prove a legitimate, nondiscriminatory reason for firing Shazor.

Lastly, and this should really go without saying by now, but watch what you put in emails! Shazor successfully argued that the emails referring to her as a “helluva bitch” and a “prima donna” were really code for “angry black woman” or “uppity black woman.” Although workplace emails are increasingly replacing face-to-face conversations, management should never put something in writing that they would not want to be introduced as evidence in court. Keep employee-related discussions private and, better yet, never use derogatory or discriminatory language when referring to employees.

Shazor signifies that intersectional “sex-plus” claims are viable in the Sixth Circuit and that employers can never be too careful when it comes to making adverse employment decisions.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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“Sex-Plus” Discrimination Equals Possible Liability

The Sixth Circuit recently addressed whether a “sex-plus” claim of discrimination can be made under Title VII of the 1964 Civil Rights Act. “Sex plus” refers to policies or practices by which an employer classifies employees on the basis of sex plus another characteristic, such as race or age. The case, Shazor v. Prof’l Transit Mgmt., Ltd., 2014 BL 42520, 6th Cir., No. 13-3253, 2/19/14, reinforces the concept that employers must consider employees’ protected traits as an “intersectional” whole, rather than separate, individual aspects.

The plaintiff, Marilyn Shazor, is an African American woman assigned by her employer, Professional Transit Management (PTM), to serve as the CEO of a regional transit authority (SORTA). After assuming the role, senior management officials began to question Shazor’s allegiance to PTM – rumors spread that she might be trying to get directly hired by SORTA.  Two PTM officials (Setzor and Scott) exchanged emails wherein they referred to Shazor as a “prima donna” and “one helluva bitch,” as well as disloyal and disrespectful.

Setzer was Shazor’s direct supervisor until August 2009, when he was replaced by Tom Hock.  In 2010, Shazor was fired by Hock for allegedly dishonest statements she had made to the SORTA board. PTM replaced Shazor with a Latina woman. Shazor then filed suit asserting race and gender discrimination. The District Court granted PTM summary judgment. On appeal, the Sixth Circuit reversed the lower court’s ruling.

The Sixth Circuit found that Shazor had established a prima facie case of discrimination necessary to survive summary judgment because she had shown that she was replaced by someone outside of her statutorily protected class with respect to her race discrimination claim. Although her replacement was of the same sex, Shazor’s sex bias claim “cannot be untangled from her claim of race discrimination.”

According to the Court, the protected classifications of race and sex “do not exist in isolation.” Rather, “African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.”

There is more to learn from this case – check back on Wednesday for a continued discussion of its implications.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice

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All in the Family: What You Need to Know about Hiring Relatives

Recently, a business owner asked me if it is illegal to hire relatives to work in his company.  I replied, “No, but sometimes it is.” Confused, he continued, “A few of the people who already work here are related to other employees, but should I establish a policy prohibiting nepotism?”  My response was, “Yes, but maybe not in the way you think.”  There is no easy answer to the question of how to handle nepotism in the workplace.  Employers must strike a balance in their policies and practices to avoid pitfalls on both sides of the issue.

During these tough economic times, many employers understandably want to help struggling family members by offering them employment opportunities.  Generally, in the private sector, nepotism – which most people understand to mean favoritism directed toward relatives regardless of merit – is not illegal.  Therefore, no one has a legal cause of action against a private employer simply for engaging in such hiring or promotion practices.  Nevertheless, there are limited circumstances where nepotism in the workplace can cause trouble for an employer.  By the same token, however, absolutely prohibiting nepotism in the workplace can also be discriminatory.

The Kentucky Civil Rights Act (KRS Chapter 344), the commonwealth’s law adopting the protections set out in Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of race, color, religion, national origin, sex, age (40 years and older), disability (as long as the person is otherwise qualified), or smoking status (as long as the employee complies with any workplace smoking policy).  The law covers employers with eight or more employees, except for the provision prohibiting disability discrimination, which applies to employers with 15 or more workers (the same as in the American with Disabilities Act).  The Kentucky Equal Opportunities Act also prohibits employment discrimination based on physical disability, including acquired immunodeficiency syndrome (AIDS), ARC (AIDS-related complex), and human immunodeficiency virus (HIV) infection.  That law covers employers with eight or more employees.

No Kentucky law specifically addresses the employment of related individuals in the private sector.  (Some states do regulate nepotism in private workplaces).  Even so, if an employer hires relatives and fails to consider people with disabilities or those of other races, creeds, genders, or ages, he or she may be discriminating against such groups.  Likewise, if an employer forces out an existing employee to make room to hire a relative, the employer may be liable.  Further, some employers prohibit nepotism altogether. Depending upon how they are written or applied, policies and practices which prohibit the employment or restrict the advancement of spouses or relatives may also be discriminatory.

The best practice for an employer is to strive to hire or promote the best qualified person for a position.  To that end, he or she should establish a policy which neither restricts nor favors  any individual in matters of hiring, pay, promotion, assignment, or other working conditions on account of a familial relationship with another company employee.  Also, procedures should be in place to ensure, to the extent possible, that company managers do not supervise relatives.  A well-crafted and evenly-applied policy will reduce the perception of nepotism by providing that individuals cannot influence the hiring, promotion, or discipline of a close relative.

 

Kembra Sexton Taylor

 

 

 

 

 

 

 

 

Kembra Sexton Taylor, partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Varying Maternity Leave Policies, cont.

On Monday, it was discussed that it is typically acceptable to offer different maternity leave benefits for employees at separate employer locations (such as a corporate office versus store locations). Further, it was noted that it is generally acceptable to have varying policies amongst employees, so far as the policies are applied within the parameters of the law (i.e., not discriminatory).

If as an employer you are going to structure a different policy for different employees, it makes sense to do so based upon a clear distinction such as full/part time status, exempt/nonexempt, job group or even department.  Also, when approached by an employee who is inquiring about maternity leave, it is generally best to have the employee set up a meeting with your company’s HR Director or personnel to discuss privately all options and to make sure there is clear understanding of the pending leave.  If there is language in the employee policy handbook related to the matter, the employee should of course be directed to it.

Employers should additionally be open to negotiations in this respect.  Can the employee work from home for a period of time? Is she willing to train a new employee before leaving? There are some aspects of maternity leave that can be negotiated just the same as any other benefits. However in taking any steps, care should be taken to make sure the employee’s privacy is respected. When preparing for a pending maternity leave an employee should not become the topic of office gossip.

As always, employers must adopt policies not only in compliance with federal law (such as the FMLA, if applicable), but also state law.  Maternity leave is a complicated concern for every employer and those who fail to handle it properly can be subject to unwanted litigation and legal expense.  If you are an employer, and unsure how to address maternity leave or other pregnancy-related issues at your business, please feel free to contact the employment law attorneys at McBrayer.

Luke Wingfield

 

 

 

 

 

 

 

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Fighting the Flu (and Liability) in the Workplace

As summer draws to an end, flu season is lurking right around the corner. Last year’s flu season was especially hard-hitting. Many employers have taken proactive steps in recent years to protect their workforce by offering free flu vaccines or encouraging employees to get one on their own. But, can employers go one step further and require their at-will employees to receive flu shots?

It is axiomatic that, with limited exceptions, “at-will” employees (which comprise the majority of America’s workforce), can be terminated for any reason, or no reason, at all.  Just as an employer does not need a reason to implement a vaccine policy, it usually does not need a reason to fire an employee for choosing to violate the policy. Indeed, requiring a flu shot makes good sense in many situations – especially where employees regularly engage with customers. Likewise, the case for health care workers’ immunization is especially strong, as the CDC highly recommends annual flu vaccinations for employees in this industry every October.

Mandatory vaccination policies are not, however, without controversy, as employees and advocacy groups have regularly opposed mandatory vaccinations, arguing that such policies are a violation of privacy rights.  On its face, this argument appears to lack merit. Although employees do have a basic privacy right over their own body, they do not have a right to at-will employment. Thus, while the employee is free to refuse a vaccination, an employer is, ostensibly, just as free to terminate the employee for his or her refusal.

Despite the seemingly straightforward analysis for at-will employees, a recent case has examined mandatory vaccinations in light of certain protected rights and classifications, such as religion and disability accommodation. This case could provide guidance on the limits of an employer’s right to  require vaccinations. Check back on Wednesday for a specific analysis of this issue based on Chenzira v. Cincinnati Children’s Hospital Medical Center, S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). 

Chad Hopkins

 

 

 

 

 

 

 

 

W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal and state law and does not constitute legal advice.

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Weight For It: How Will The AMA’s New Decision Affect Employers?

In a press release issued on June 18, 2013, the American Medical Association (“AMA”) declared obesity as a “disease.” The decision was met with sharp controversy, as it automatically classified millions of overweight Americans as diseased. Critics of the classification believe that obesity is not a disease and that there is no way to determine one’s health based on a number on the scale. The AMA hopes the new label will lead to better coverage and treatment for those who suffer from obesity.

Obesity affects approximately one in three Americans. And the AMA’s decision may be affecting 100% of employers, as it once again raises the question of what should be considered as a disability under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination against a qualified employee or applicant with a disability, provided that he can perform essential functions of the job with or without reasonable accommodation. A person is considered “disabled” if he:

  • Has a physical or mental condition that substantially limits a major life activity (such was walking, talking, learning, seeing); or,
  • Has a history of a disability; or,
  • Is perceived to have a physical or mental impairment that is not transitory and minor.

The ADA Amendments Act of 2008 (“ADAAA”) specifically provided that “disability” for purposes of the Act “shall be construed in favor of broad coverage of individuals under [the ADA] to the maximum extent permitted by the terms of [the ADA].”

In 2010, the Equal Employment Opportunity Commission (“EEOC”) filed its first-ever lawsuit on an employee’s behalf asserting that “severe” obesity was a protectable disability under the ADA. The case, EEOC v. Resources for Human Development, Inc., provided no clear guidance on what level of obesity is severe enough to warrant ADA-protected disability status. In 2012, The EEOC publicly stated that “the law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity.” (emphasis added). The EEOC defines morbidly obese as weighing twice the normal body weight. This came after the case EEOC v. BAE Systems, Inc., wherein BAE Systems, a global security and defense company, fired an employee who weighed over 600 lbs. The EEOC claimed the employee was able to perform the essential duties of his job and received good performance reviews and was only terminated because of his size. The case settled, with BAE paying the employee $55,000 in damages.

While it is obvious that morbidly obese employees may require reasonable accommodations, it is harder to know at what point a mildly obese person will require the same. Additionally, under the ADAAA, it does not matter if a person is actually limited by their disability; if an employer perceives impairment (and the impairment is not minor nor transitory), any adverse action on the basis of the impairment can be grounds for a discrimination claim.

The AMA’s new position on obesity illustrates the current cultural shift in viewing obesity as more than just a sign of weak willpower; a “disease” is something beyond an individual’s control. There may be legitimate reasons why an employer is wary to hire or promote an obese person, such as increased insurance premiums, the business’s image, or the heightened possibility for a severely overweight person to have other serious health problems. However, employers must be careful not act on this conscious (or sometimes unconscious) bias. The “obesity as a disease” announcement can only work to bolster an employee’s weight-based discrimination claim. With one in three Americans being obese, the potential for these claims is exponentially high.

B. Johnson

 

 

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

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Victories for Employers at the Supreme Court Level, cont.

On June 25, 2013, the Supreme Court, in the second big win for employers, clarified what standard employees must meet to successfully pursue a retaliation claim under Title VII of the Civil Rights Act of 1964. No longer will employees be able to prevail on retaliation claims just by demonstrating that retaliation was a “motivating factor” in an employer’s adverse employment action towards the employee.

The case decided was styled University of Texas Southwestern Medical Center v. Nassar. The plaintiff, Nassar, was hired by the University of Texas Southwestern Medical Center (“UTSW”), but resigned after one of his supervisors allegedly made remarks about his productivity and national origin.  He then sought a job at another hospital, but that hospital withdrew its job offer to Nassar after one of his former UTSW supervisors opposed the hire.  Nassar then sued UTSW, alleging discrimination and retaliation.

A jury found for Nassar on both claims, but UTSW appealed to the U.S. Court of Appeals for the Fifth Circuit. At the appellate level, it was concluded that the evidence of discrimination was insufficient, but that there was enough evidence to prove retaliation was a “motivating factor” for UTSW’s alleged action of discouraging another hospital from hiring Nassar.

The question presented to the U.S. Supreme Court was what standard of proof applies in Title VII retaliation cases.  In the Civil Rights Act of 1991, Congress had amended Title VII to say that an employee could establish a discrimination claim by merely demonstrating that race, color, religions, sex or national origin was a “motivating factor” in any adverse employment action.  However, the Supreme Court held in Nassar that said standard only applied to claims of discrimination, not retaliation claims. Thus, retaliation claims are still subject to the traditional “but for” causation standard, a tougher burden of proof for plaintiffs. In other words, a plaintiff must prove that “but for” the fact that he or she alleged harassment/discrimination (by filing a claim, lodging a complaint, etc.), his or her employer would not have taken an adverse employment action. 

In its Opinion, the Court explained that retaliation claims are being filed with an “ever-increasing frequency” and that their decision to implement the “but for” standard makes practical sense. For employers, it makes practical sense to always document any reasons that certain actions are being taken against employees so that they can be presented in the event a discrimination or retaliation case arises.

The employment law attorneys at McBrayer have extensive experience in defending employers across the Commonwealth against claims filed by current and former employees, and in advising employers on what steps it can take to minimize its risk of such claims and maximize its ability to defend the same. If you are an employer and would like to speak with an attorney or have questions about these recent Supreme Court decisions, give us a call.

Ryan Daugherty

 

 

 

 

 

Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reached at rdaugherty@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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Employers Win In Recent 6th Circuit Pregnancy Wrongful Termination Claims

As has been addressed previously in this blog, the Equal Employment Opportunity Commission (“EEOC”) has placed an emphasis on pursuing complaints of pregnancy discrimination as announced in its Strategic Enforcement Plan (see the post here).  Recently the EEOC and the plaintiffs’ bar have filed cases at an increased rate against employers who have allegedly discriminated against pregnant women in the workplace.  It goes without saying that such suits can be costly to defend and to ultimately pay if they are successful.

In the wake of this increased litigation, employers may feel that they cannot take warranted adverse employment action against an employee who has announced she is pregnant for fear of litigation and judgment.  However, two recent cases originating in the 6th Circuit Court of Appeals serve to confirm that they law has not changed and that employers can prevail against claims of discrimination when they can prove that their actions are based on valid, non-discriminatory reasons.

In Madry v. Gibraltar National Corporation[1], Madry (the employee-plaintiff) took FMLA leave from October 2008 to February 2009 for her pregnancy. When she inquired about returning, she was informed that she was being laid off because of a lack of work. She then sued claiming that she was terminated in violation of federal law.  Gibraltar was granted summary judgment at the district court level and the U.S. Court of Appeals for the Sixth Circuit affirmed the decision on May 16, 2013.  According to the Court, Gibraltar “offered evidence that its legitimate, nondiscriminatory reason for failing to restore Madry’s employment was a lack of work caused by a downturn in business. Gibraltar has provided economic, production, and labor data to support its position.”  The Court further stated that, pursuant to the FMLA, no employee is entitled to “any right, benefit, or position of employment other than…[that] to which the employee would have been entitled had the employee not taken the leave.” Simply put, an employee returning from FMLA leave is not entitled to restoration unless he or she would have continued to be employed if they had not taken FMLA leave.  Thus, the Court confirmed the state of the law in the pregnancy context.

In Megivern v. Glacier Hills Incorporated[2], an employee of a nonprofit senior living facility sued her employer alleging her employment was unlawfully terminated on the basis of her pregnancy. Two weeks after announcing her pregnancy, Megivern was placed on a performance improvement plan. Five weeks after that, she was fired for failing to improve her performance status. The district court found that the only evidence that weighed in Megivern’s favor was the temporal proximity of her dismissal to the announcement of her pregnancy and that the employer had documented ongoing problems with Megivern’s work.  Again, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s summary judgment.  In both instances the employer had well-documented evidence to support their termination actions.  In conclusion, despite the increased emphasis on claims of pregnancy discrimination, the law is clear that an employer can take adverse employment action against a pregnant or recently pregnant employee provided the reason for that action is non-discriminatory can be proven so.


[1] Madry v. Gibraltar National Corporation, 2013 WL 2097357 (6th Cir. (Mich.)).

[2] Megivern v. Glacier Hills Incorporated, 2013 WL 2097373 (6th Cir. (Mich.)).

 

Luke Wingfield

 

 

 

 

 

 

 

 

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal law and does not constitute legal advice.

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“Why Does She Get To Do That?” Handling Questions about Employee ADA Accommodations

The Americans with Disabilities Act (“ADA”) requires any employer with fifteen or more employees to provide reasonable accommodations to individuals with disabilities, as long as doing so does not result in “undue hardship” to the employer. A reasonable accommodation can be any change in the work place that helps a person with a disability to enjoy equal employment opportunities. The ADA has very strict guidelines about when and how an employer may inquire about an employee’s disability. What happens, though, when a non-ADA employee asks you, the employer, why another employee is receiving perceived preferential treatment?

The ADA strictly prohibits employers from disclosing medical information about employees, but even if privacy rules are adhered to, some accommodations will be obvious to others. For example, consider these situations:

  • A diabetic employee takes more scheduled breaks than others so that he can eat small meals.
  • An employee with temperature sensitivity is allowed to wear a modified dress code.
  • An employee who experiences seizures is receiving a service dog and, as a result, she must leave work to train with the animal for two weeks.

Obvious accommodations that are incorrectly viewed as “special treatment” can lead to an uncomfortable work environment. An ADA-employee may choose to disclose their disability and accommodation(s) with their co-workers, but if they do not, an employer needs to know how to handle the situation.

If confronted with a question about an ADA accommodation, you should generally inform the inquiring employee that you have policies in place for those who may face difficulties in the office. You should not disclose who the person experiencing the disability is (even if it is obvious) or what the disability is. Emphasize that the business, and employees, must respect the privacy of every employee.

In addition, consider what you can do before inquiries start. Although employers are not under an obligation to explain the ADA to employees, it could be beneficial to outline the Act in your employee manual. By doing so, you will help employees become familiar with its rules and regulations. Training is another way to educate your work force. If employees know disability information is confidential, they will be less likely to ask.

You can also designate in your handbook who an employee should speak with in the event an accommodation is needed. Employees may feel as though they have to share their need with the boss, but it is a smart policy to have employees instead discuss the issue with an HR manager or department. HR personnel should be more familiar with the ADA and its requirements. If needed, the HR personnel can then share the information with necessary parties.

The ADA safeguards fairness for all in the work place. By knowing how to discuss the topic appropriately and lawfully, you will ensure that no employee feels slighted by another’s reasonable accommodation, as well as protecting the privacy of the employee requiring the accommodation. As with all employment issues, if a question arises which you or your HR professional is unsure how to answer, contact legal counsel before you act.

Preston Worley

 

 

 

 

 

 

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached atpworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

 

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The Equal Pay Act—Is Your Business Helping or Hurting the Cause?

In 1963, when the Equal Pay Act (“Act”) was signed by President Kennedy, women were earning an average of 59 cents on the dollar when compared to men.[1] Today, women earn about 80 cents on the dollar.[2] President Obama addressed the issue of equal pay in his second inaugural address, “[O]ur journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts.” Where does your business stand on the journey to equal pay? Equal pay may not be something that is high on your radar as an employer, but you should always be assessing if your business is compliant with applicable laws and whether employees are being treated fairly.

The Act generally requires covered employers to provide equal pay to persons (both men and women) who are performing the same job. It is important to know that job titles are irrelevant in the ‘same job’ assessment; it is the content that determines whether jobs are substantially similar. All forms of pay are subject to the Act—salary, overtime pay, bonuses, benefits, etc. The Act is an amendment to the Fair Labor Standards Act, thus employers are prohibited from retaliating against an employee who files a claim pursuant to the Act.

An employee does not have to show that the employer’s pay disparity is intentional or based on gender; the fact of a pay disparity for substantially similar jobs is enough. Interestingly, an individual alleging a violation of the Act can go directly to court and is not required to file a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) beforehand. It is the only law enforced by the EEOC which allows for this course. An individual can bring a claim within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years.

In addition to the Act, there are other federal and state laws that prohibit employers from discriminating on the basis of gender in employment decisions. Title VII of the Civil Rights Act of 1964, for example, makes it illegal to discriminate based on sex in pay and benefits, too. If you are an employer and have questions about the Equal Pay Act or other federal or state law, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC for answers.

 

Ryan Daugherty

 

 

 

 

 

Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reached at rdaugherty@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

 

 

 

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