Archive for category U.S. Equal Employment Opportunity Commission (“EEOC”)

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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Discrimination in the Workplace Continued….

Following up on our blog post from Wednesday, Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace, the topic really isn’t so far removed from what is going on right in our own community.  In late July the Fayette County Board of Education updated the language of their anti-discrimination policy to include gender identity and sexual orientation as protected classes.  The decision was approved unanimously and applies to students, teachers and school district employees. This adds Fayette County to the list of approximately six other public school districts that have specific prohibitions for these protected classes.  Gender discrimination is banned by all 174 public school districts in Kentucky.

In 1966 Kentucky was on the cutting edge of discrimination legislation, passing the South’s first civil rights law – prohibiting discrimination in employment and public accommodations based on race, national origin, color and religion. Establishing The Kentucky Commission on Human Rights as the enforcement arm was also a first for the South.  In 1968 Kentucky became the first State in the South to enact fair housing laws, prohibiting these same discriminations.  More recently, the City of Louisville was one of the first in the country to pass a fairness ordinance that included gender identity.

Although Kentucky prohibits discrimination based on sexual orientation and gender identity, it only applies to the public employment sector.  There are revealing trends, like the action taken by the Fayette County Board of Education, which point to the mainstream moving ever-closer toward the inclusion of these two classes (gender identity and sexual orientation) in all areas of discrimination protection.  The Senate Committee on Health, Education, Labor and Pensions (“HELP”) heard testimony June 12, 2012 on the Employment Non-Discrimination Act (“ENDA”) – legislation aimed at creating comprehensive employment and anti-discrimination protection for individuals based on sexual orientation or gender identity.  ENDA is has been circulating in Congress since last year and has bipartisan and Presidential support.   With more issues regarding sexual orientation, preferences and gender identity being played out on the national stage, such as the Chick-Fil-A marriage equality debate, and locally the Richmond, Kentucky Fairness Ordinance debate, it seems logical that every employer should consider updating their discrimination policies and practices.  As attorney, Benjamin Riddle pointed out in his recent blog post, The Slippery Slope of Social Media in Hiring, it is always necessary for employers to be aware of and address quickly developing law on both the federal and state levels.  It is your company’s best protection.

Given our State’s history with civil rights, and being a pioneer in that area of the law, we will be watching this issue closely, eager to see if our state’s history holds true.  We are always prepared to update you on how you can stay ahead of the legal curve.

 

 

 

 

 

 

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 newly enacted federal law and does not constitute legal advice.

 

 

 

 

 

 

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Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace

Kentucky currently has no laws prohibiting discrimination on the basis of sexual orientation or gender identity.  However, since 1999 Louisville-Jefferson County and Lexington-Fayette County and Covington (in 2003) have had local ordinances banning discrimination in employment, housing and public accommodations due to sexual orientation.  In June 2008, Governor Steve Beshear reinstated an Executive Order banning discrimination of state employees based on sexual orientation and gender identity.  On April 23, 2012 the EEOC delivered a landmark ruling, in favor of protection against discrimination for transgender people working for the federal government.  With the introduction of HB 188/ SB 69 Statewide Fairness Act and the federal Employment Non-Discrimination Act on the horizon, we are prompted to encourage every employer to give fairness policies and procedures a serious review.

First on our list of Non-Discrimination Best Practices, is to modify all organizational documents addressing issues of non-discrimination to include “gender identity or expression” in the list of protected classes.  The company non-discrimination policy, anti-harassment policy, equal employment opportunity policy, application form, and job postings should all be included.

The second step to ensuring fairness in your workplace is to allow employees and candidates to self-identify their preferred name, and pronoun. A great way to accomplish this is to develop a system that uses the employees’ or candidates preferred name and pronoun on all personnel records, internal and external documents and communications, business cards, websites and other written and electronic records.

Third, incorporate the concept of gender identity into all training programs and materials related to discrimination, harassment, diversity, supervision, leadership and company policy.  Educate employees – particularly HR staff, management, supervisors, decision-makers, security, and reception staff – about transgendered people and the policies that are in place to protect against discrimination for all current and potential employees.

Rewriting your organizations policies and procedures is generally an annual process.  However, when monumental markers are presented in the form of EEOC rulings, legislation or Executive Orders, we should all take a moment to make sure our company has the proper protections in place for both the employee and the employer.

As always, you should have a lawyer review each step in this process, every document, and training presentation, and we are here to assist you, making sure you and your employees are protected against discrimination claims. This is an ever-changing area of the law that moves with the shifting views in our culture environment, and is definitely one to watch.

 

 

 

 

 

 

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 newly enacted federal law and does not constitute legal advice.

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High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Informal Discussion Letter (“EEOC Letter”)[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, may be in violation of the Americans with Disabilities Act, because they screening out individuals who are unable to graduate because of a learning disability.  Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills.

The Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (“ADA”), is applicable to employers who employ more than fifteen (15) employees, and prohibits employers from discriminating against a qualified individual – those who can perform the essential functions of the employment position with or without reasonable accommodation — on the basis of his or her disability, during all stages of the employment relationship, including throughout “job application procedures;” during the “the hiring, advancement, or discharge of employees;” and with regard to “employee compensation, job training, and other terms, conditions, and privileges of employment.”  42 U.S. C. 12111(8) and 12112.  A disability is defined with the ADA as a “physical or mental impairment that substantially limits one or more major life activities of such individual” [generally including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working]; or “a record of such an impairment; or “being regarded as having such an impairment”.  42 U.S.C. 12102.

According to the recent EEOC Letter, an employer may still apply the high school diploma requirement (and presumably other degree or certification requirements) if it can demonstrate that such a requirement is “job related and consistent with business necessity,” which essentially requires a showing that the functions of the particularly job position cannot be easily be performed by someone who does not have a high school diploma.  For example, for a legal secretary, who must possess significant reading, writing, word processing, and math skills to perform such a job, a high school diploma requirement may be deemed “job related and consistent with business necessity,” but the same may not be true for a grocery bagger, hair stylist or delivery driver, who may not utilize the same skills taught in high school as a part of his or her job functions.

In light of this letter, and the reality that the EEOC may soon be inclined to apply this new position in the right case, it is prudent for employers to take another look at its job advertisements and applications to determine: (1) whether a high school diploma is actually essential to the job position; (2) what skills taught in high school are actually required for the position; and (3) how they can revise their job advertisements and applications to reflect the skill requirements necessary to the particular job, rather than a threshold diploma requirement.  It is also advisable to re-train management to ensure that they are not discriminating against applicants with learning disabilities who can perform the essential job requirements with or without reasonable accommodation, but who have not been able to achieve a high school diploma.  While an employer is not required to prefer the learning disabled applicant over other better qualified applicant, it must consider the applicants true ability to perform essential job functions through demonstration of skills, work history considerations, etc., in lieu of a strict high school diploma requirement.

 

 

 

 

 

 

 

Ryan Colleen Daugherty is an associate and member of the firm’s Litigation and Planning & Zoning groups. She focuses on employment, real estate and other commercial litigation, as well as other estate administration and family law matters. She joined the firm in 2008 after graduating from the University of Kentucky College of Law and the University of Georgia College of Environmental Design. In addition to her law practice, she is a LEED Accredited Professional, and a member of the Board of Directors of the U.S. Green Building Council’s Kentucky Chapter, serving as its Legislative Task Force Chair. She is also a LFUCG Greenspace Commissioner and volunteers on various civic organizations such as Bluegrass Tomorrow, Race for Education and Girls on the Run. She recently was selected as one of the Lexington Young Professionals Association’s 2010 Rising Stars, and as one of five Emerging Leaders chosen to attend the 2010 Louisville and Lexington Chamber’s joint Leadership Expedition. Ms. Daugherty can be reached at rdaugherty@mmlk.com or at (859) 231-8780, ext. 197.

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