Case on Point

13th Annual Labor and Employment Law Update

Kristin Case — Wed, 27 Jan 2010 16:03:00 GMT

13th Annual Labor and Employment Law Update

March 19, 2009 Chicago, UBS Conference Center

Kristin Case of The Case Law Firm is scheduled to speak at the Illinois Institute for Continuing Legal Education's 13th Annual Employment Law Update on March 19, 2010.

Ms. Case will be speaking about the benefits and risks to employees who are using social media in the workplace.

Fortune: Annual 100 Best Companies to Work For

Kristin Case — Thu, 21 Jan 2010 18:37:00 GMT

Fortune just published its annual 100 Best Companies to Work for. Reading this article is a breath of fresh air in the midst of layoffs and the callous elimination of severance, pension and health benefits that we are seeing. There is one thing stands out that seem to make almost all of these companies great places to work: they make their employees feel valued.

For instance, SAS, the top rated company, provides high-quality child care at only $410 a month, 90% coverage of the health insurance premium, unlimited sick days, a medical center staffed by four physicians and 10 nurse practitioners (at no cost to employees), a free 66,000-square-foot fitness center and natatorium, a lending library, and a summer camp for children. The company’s founder is quoted as saying the foundation of his business is "trust between our employees and the company.” How often do you hear that? Hardly ever.

Far too many employer operate from an immediate suspicion and distrust of their employees. And, in the era of company’s hacking away at employee benefits supposedly to “save money,” it is worth noting that SAS remains highly profitable and ranks as the world’s largest privately owned software company. Turnover is the industry’s lowest at 2%. Google, the 4th best employer, allows its employees to devote 20% of their time to the project of their choosing, thereby instilling an unusual level of trust in their employees. And Starbucks, who is number 93 on the list, provides part-time employees with health benefits. I have always believed that maintaining loyal employees and eliminating turnover is the best economic decision a company could make. Imagine if all employers could be like these 100…

To read the full list CLICK HERE.

Super Lawyers Rising Star 2010

Kristin Case — Tue, 19 Jan 2010 00:42:00 GMT

Kristin Case has been selected as an Illinois Rising Star by Superlawyers Magazine. Click Here to read more.

The Journal of the DuPage County Bar Association

Kristin Case — Tue, 19 Jan 2010 00:36:00 GMT

Kristin Case is featured in The Journal of the DuPage County Bar Association writing about the Family and Medical Leave Act.

Go to http://www.dcbabrief.org/vol220110art3.html to read her article.

Paycheck Fairness Act

Kristin Case — Thu, 15 Oct 2009 20:32:00 GMT

Quick Pop Quiz for you: Is the following statement True or False?

"With equal job experiences and resumes mothers are hired 79% less of the time than non-mothers."

Wait a minute.... Think about the answer for a moment... Could it possibly be true? Mothers a whole 79% less likely to be hired???

ANSWER: Sadly, the answer to this Pop Quiz question is True.1 No kidding. I even called up the researcher myself to see if she was missing a decimal point somewhere. No such luck.

Speaking of out-of-luck, moms in the workplace are getting a double whammy: You see, in addition to being discriminated against in hiring (79% less likely to be hired can definitely be categorized as discrimination!), mothers are also discriminated against in pay. One study found that mothers are paid only 73 cents to a man's dollar, while single mothers are paid even less at about 60 cents to a man's dollar.2 Given that the U.S. Census reports over 80% of women in our nation become mothers by the time they're 44 years old, quite a lot of us are in deep trouble.

*Let's do something about it! Click here to send a letter via one-click email to your U.S. Senators now urging them to pass the Paycheck Fairness Act:
http://momsrising.democracyinaction.org/o/1768/t/9251/campaign.jsp?campaign_KEY=27310

Clicked yet? (We're hoping so!) Now please take a moment to forward this Mama Pop Quiz to your friends, family, and everyone you know. Some good old-fashioned consciousness raising is in order here. With three-quarters of moms in the labor force now, and an increasing number of families relying on mom as the main breadwinner in this economic downturn, it's time to spread the word and raise the roof about our unfair pay. After all, our children are counting on our paychecks so we can feed, clothe, and help keep the roof over their heads.

So, spread the word far and wide. Forward the quiz to all you know. And invite folks to take action along with you.

What's the Paycheck Fairness Act (S. 182) do anyway? While it doesn't fix all problems with hiring and pay discrimination, it definitely moves the ball forward by doing a much-needed update to the Equal Pay Act which has not been updated since it was enacted more than 40 years ago. As you may recall, the Lilly Ledbetter Fair Pay Act, which was signed into law on Jan. 29, 2009, restored the protection against pay discrimination that was stripped away by the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. This bill, the Paycheck Fairness Act, strengthens the Equal Pay Act by giving both employers and the Equal Employment Opportunity Commission (EEOC) the tools they need to ensure fair pay for women. The bill helps today's families by:

Closing the loophole in affirmative action defenses: Employers would be required to clarify acceptable reasons for differences in pay between men and women; employers must demonstrate wage gap is justifiable.

Prohibiting employer retaliation: The legislation would deter wage discrimination by prohibiting retaliation against workers who inquire about employers' wage practice or disclose their own wages.

Improving equal pay remedies: The bill would deter wage discrimination by strengthening penalties for equal pay violations by providing women with a fair option to proceed in an opt-out class action suit under the Equal Pay Act, and allowing women to receive punitive and compensatory damages for wage discrimination.

Authorizing additional training for EEOC staff to better identify and handle wage disputes: It would also aid in the enforcement of federal anti-pay discriminations laws by requiring EEOC to develop regulations directing employers to collect wage data.
The House has already passed the Paycheck Fairness Act, and the Senate must act to help women and families. MOMentum is on our side (Particularly if we moms raise a ruckus).

So please don't forget to contact your U.S. Senators now in one easy click: http://momsrising.democracyinaction.org/o/1768/t/9251/campaign.jsp?campaign_KEY=27310. It take just one minute, but your emailed letter, combined with the letters of mothers across the nation, can move mountains.

Let's turn the Mama Pop Quiz answer above from True to False.

Thanks for all you do,

Kristin, Dionna, Joan, Mary, Donna, Sarah, Katie, Nanette, Ashley, Ariana, Anita & theMomsRising.org team

[1] Shelley Correll, Stephen Benard & In Paik, Getting a Job: Is there a Motherhood Penalty, 112 The Am. J. of Soc. 1297 (2007).

[2]Jane Waldfogel, "Understanding the 'Family Gap' in Pay for Women with Children,"Journal of Economic Perspectives 12, no. 1 (1998): 137-56.

President Obama & Gay Rights

Kristin Case — Thu, 08 Oct 2009 17:13:00 GMT

As a Plaintiff’s employment lawyer I am generally over the moon with Barack Obama’s presidency. However, one area in which I am disappointed, along with many others, is President Obama’s inaction in the area of gay and lesbian rights. In our practice we work a lot with gay and lesbian as well as transgendered issues in the workplace and it is glaringly clear how few protections these groups have compared to other minority groups.

The Washington Post published an article today discussing President Obama’s action and what we may expect to see in the future. Let’s hope we see some progress. Click here to read article.

One way that the President and individuals could support better protections for these groups is by supporting the Employment Non Discrimination Act (“ENDA”) which is pending before Congress now.

Kristin M. Case

The Case Law Firm, LLC

150 N. Michigan Ave., Suite 800

Chicago, Illinois 60601

312-920-0400

kcase@thecaselawfirm.com

www.thecaselawfirm.com

The Case Law Firm defeats summary judgment in Salas v. 3M & Sedgwick.

Kristin Case — Mon, 31 Aug 2009 21:27:00 GMT

On August 25, 2009, Judge Blanche Manning of the Northern District of Illinois denied Defendant’s Motion for Summary Judgment, finding that a number of issues of fact precluded the dismissal of the case prior to trial.

At issue in this case is whether or not the Plaintiff (who is represented by The Case Law Firm) was entitled to Family Medical Leave in order to care for her adult disabled daughter. Defendant 3M terminated the Plaintiff after her absences to care for her daughter caused her to exceed 3M’s absentee policy. The Court also held that there were issues of fact as to whether Plaintiff’s termination was in retaliation for requesting the FMLA leave.

The case will now be set for trial.

The Case Law Firm, LLC.
Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com

Congress Moving to Protect Sexual Orientation and Gender Identity in the Workplace

Kristin Case — Sun, 16 Aug 2009 14:22:00 GMT

Four senators—two Democrat, two Republican—introduced the Employment Non Discrimination Act of 2009 (“ENDA”) in Congress on August 5, 2009. This is an important bill in that it would provide anti-discrimination protection for gay or transgendered employees or those that are perceived to be gay or transgendered. The perceived part of this Act is what is interesting to me in that while most people know or assume that openly gay individuals face discrimination in the workplace what many don’t know (unless of course you’re a plaintiff’s employment lawyer) is that employees regularly face termination or harassment in the workplace simply because a manager or co-worker (incorrectly) assumes they are gay when they really are not, i.e. the “butch” female stereotype or “overly-sensitive” male stereotype.

This bill has not only bi-partisanship support but also bi-partisan sponsorship with two female Republican senators joining as co-sponsors.

Currently 39 states still allow the discriminatory hiring or firing of gay or transgendered individuals. This bill, of course, would change that.

If ever there was a year when a bill like this had a chance of passing this is it. If you are interested in supporting this bill contact your representatives and encourage their support.

Kristin Case
The Case Law Firm,LLC.
Chicago, Illinois
(312) 920-0400
kcase@thecaselawfirm.com
www.thecaselawfirm.com

Pregnant Workers Discriminated Against Before Pregnancy Discrimination Act Out of Luck

Kristin Case — Wed, 01 Jul 2009 21:59:00 GMT

On May 18, 2009, the Supreme Court, in AT&T v. Hulteen, ruled against a small class of female workers on their pregnancy discrimination claim. Four AT&T employees took maternity leave, and the company would not credit this time for pension eligibility. The problem was that the women took leave and the company decided not awarded the time occurred before Congress enacted the Pregnancy Discrimination Act in 1979 to amend Title VII. We consider this an unfortunate ruling and one that does not comply with the Spirit of the Act. While the Court accepted Supplemental Briefing on whether the Lilly Ledbetter Fair Pay Act would support Plaintiff’s claim that each time a pension benefit was paid out, there was a “fresh act of discrimination,” the Court ultimately rejected the argument because AT&T’s plan was not intentionally discriminatory (such that Title VII would apply retroactively).

Lilly Ledbetter Fair Pay Act Passes

Kristin Case — Fri, 05 Jun 2009 18:51:00 GMT

President Obama’s first law that he signed as President was the Lilly Ledbetter Fair Pay Act on January 29, 2009. The Ledbetter Fair Pay Act reinstates the "paycheck accrual rule" in effect prior to the Supreme Court’s disastrous Ledbetter ruling in 2007. The legislation would clarify that each paycheck constitutes a new violation for purposes of the statute of limitations under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. Lilly Ledbetter Fair Pay Act.

At the signing, President Obama stated, “it is fitting that with the very first bill I sign – the Lilly Ledbetter Fair Pay Restoration Act – we are upholding one of this nation's first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.” He continued, “This bill is an important step – a simple fix to ensure fundamental fairness to American workers – and I want to thank this remarkable and bi-partisan group of legislators who worked so hard to get it passed. And this is only the beginning. I know that if we stay focused, as Lilly did – and keep standing for what's right, as Lilly did – we will close that pay gap and ensure that our daughters have the same rights, the same chances, and the same freedom to pursue their dreams as our sons.” Read more of Obama's signing of Lilly Ledbetter Fair Pay Act here.

Illinois Equal Pay Amendments Extend Time Requirements

Kristin Case — Thu, 04 Jun 2009 22:02:00 GMT

Amendments to the Illinois Equal Pay Act have been passed by the Illinois House and Senate expanding protection for equal pay and are beneficial to employees who have been paid unequal wages. The Illinois Equal Pay Act of 2003, which applies to employers that have 4 or more employees, prohibits employers from paying unequal wages to men and women for doing the same or substantially similar work under similar working conditions in the same county. However, there are exceptions and a wage differential is okay if it is based upon: (1) a seniority system; (2) a merit system; (3) a system measuring earnings by quantity or quality of production; or (4) a differential based upon factors other than gender. The 2003 Act provided that employers must keep Payroll records for three years, and provided a three year statute of limitations for filing a complaint from the date the employee learned of the underpayment. Illinois Equal Pay Act of 2003 820 ILCS 112/1-90.

Legislation (HB 3634) was introduced in 2009 by Representative Barbara Flynn Currie to further expand the Illinois Equal Pay Act by extending the statute of limitations for pursuing legal action in state court and requiring employers to keep records longer. On March, 31, 2009, the House passed it by a vote of 86-26 after which it arrived at the Senate for consideration. On May 18, 2009, the Senate passed it 51-2, and the law becomes effective immediately. Click here to see how your representative voted. The new law requires that employers keep Payroll records for five years. Once the records are involved in an ongoing investigation or action, the records must be maintained until destruction is authorized by the Department or Court order. Moreover, the Legislation expands that time that an employee may bring an action in state court for violating the Equal Pay Act; an action can be brought within 5 years from the date of the underpayment. The Legislation clarifies that this “date of underpayment” is the time the wages are underpaid. Amendments to Illinois Equal Pay Act (HB 3634)

Employees do not have to resort only to legal actions to complain about unequal wages. The Legislation also adds to Section 15 Enforcement and provides that “an employee or former employee may file a complaint with the Department [of Labor] alleging a violation of this Act by submitting a signed, completed complaint form. All complaints shall be filed with the Department within one year from the date of underpayment.”

The Legislation made the language of Sec 35 of the Act, which penalizes employers who refuse to pay wages or final compensation, more clear. The Legislation inserted a mandatory provision for employers who refuse to pay wages 15 days after being ordered by either a Court Order or the Director of Labor. Those employers are subjected to a 1% penalty for each calendar day they delay payment. This Legislation is an example of how Illinois is keeping up with pay reform that has swept the nation since the enactment of the Lilly Ledbetter Fair Pay Act.

The Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12) are headed for a vote on the House floor tomorrow, January 9.

Kristin Case — Thu, 08 Jan 2009 22:02:00 GMT

Ledbetter decision discussed in 'The New York Times'

Kristin Case — Tue, 06 Jan 2009 23:43:00 GMT

The New York Times has a very informative article which discussed the detrimental effects of the Supreme Court’s Ledbetter decision has had on employment cases. This is yet another reason to support the Ledbetter Fair Pay Act.

http://www.nytimes.com/2009/01/05/us/politics/05rights.html?_r=1&ref=politics

NEW FMLA REGULATIONS EXPAND EMPLOYEE PROTECTIONS; CLARIFY LAW

Kristin Case — Sun, 04 Jan 2009 19:57:00 GMT

This past year the United States Congress amended the Family & Medical Leave Act (FMLA), and on January 16, 2009 the Department of Labor’s regulations reflecting those amendments become effective.

Attorneys representing employees have fretted for some time worrying that these new regulations could undercut some important protections. We are happy to note that, overall, the changes appear to be quite positive and employee friendly.

Among some of the most significant changes to the regulations are provisions creating military family leave entitlements. First, the Military Care Giver provision allows an employee to take up to 26 weeks of protected “military caregiver leave” during a twelve month period to care for a spouse, child parent or next of kin who incurred a serious illness or injury in the line of duty in the armed forces, National Guard or Reserves. Only current members of the military or individuals on the temporary disability retired list are considered covered service members, so there is no protected leave for retired servicemembers. The twenty-six weeks of protected leave can, however, extend to care for more than one member of the military or subsequent serious illnesses or injuries to the same member of the military. 29 C.F.R. § 825.127.

Additionally, the “Qualifying Exigency Leave” provision allows employees to take up to twelve weeks of leave for circumstances relating to family members in the National Guard or Reserves but not relating to any serious illness or injury. Qualifying exigency leave may be taken in any of eight specific circumstances including, for example, (1) to provide emergency childcare or attend school activities which would otherwise be taken care of by a family member who has been called to active duty, (2) to spend up to seven days with a covered military member who has been notified of a call to duty only seven or fewer day before s/he will be deployed, or (3) to attend various post-deployment activities including arrival ceremonies, reintegration briefings, or to address issues arising from the death of a covered military member. 29 C.F.R. § 825.126.

In addition to the military provisions, the new amendments clarified many previously existing provisions of the FMLA. The changes that affect employees are as follows:

If an employee accepts “light duty” assignments while recovering from a serious health condition that does not count against his/her FMLA leave. 29 C.F.R. § 825.220.
Where a workforce consists of a “significant portion” of workers who are not literate in English, the employer must provide FMLA notices in the language which the workforce can understand. 29 C.F.R. § 825.300(a)(4).
Where an employer awards bonuses or other benefits for achieving perfect attendance or other such goals regarding hours worked, the employer cannot deny an employee that bonus or benefit based on taking FMLA leave unless the employer would also deny an employee who had taken non-FMLA leave, such as scheduled vacation. 29 C.F.R. § 825.215(c)(2).
The definition of “serious health condition” has been clarified by 29 C.F.R. § 825.115 as follows:

o The “three consecutive calendar days of incapacity plus two visits to a healthcare provider” definition requires that the two visits occur within thirty days of the period of initial incapacity, absent extenuating circumstances.

o The “three consecutive calendar days of incapacity plus a regimen of continuing treatment” definition requires that the first visit to a healthcare professional must occur within seven days of the initial incapacity.

o “Periodic visits to a healthcare provider” for chronic serious health conditions requires at least two visits to a healthcare provider per year.

This is a sampling of the revised regulations which we believe will be most beneficial to employees.

To view a full list of the amended and revised regulations visit: http://www.federalregister.gov/page2.aspx#reg_W

Kristin Case
The Case Law Firm, LLC.
www.thecaselawfirm.com

MANDATORY ARBITRATION PROVISIONS IN EMPLOYMENT CONTRACTS

Kristin Case — Fri, 07 Nov 2008 19:15:00 GMT

THE HIDDEN CATCH: MANDATORY ARBITRATION PROVISIONS IN EMPLOYMENT CONTRACTS

As an employment lawyer I am always saddened by the many clients who come to me and have no idea that, as a condition to their employment, they have signed away their right to remedy employment-related grievances in court. Equally as sad are those employees who knew what they were signing but felt as if they had to in order to obtain work.

Many employment contracts these days contain mandatory arbitration clauses. These are clauses or agreements often included in pre-hire paperwork and often overlooked by employees who are happy to be obtaining a new job and just sign whatever is put in front of them. But these clauses, which require an employee to sign away their right to pursue any claims arising out of their employment in federal or state court and instead arbitrate those claims, are debilitating to employees’ rights. Many employers make the signing of these agreements a condition to employment and, thus, employees are left with a Hobson’s choice: sign the agreement and risk losing important remedial avenues should something go wrong or don’t sign it and don’t get the job. Most employees, for obvious reasons, take the risk and sign the agreements. Unfortunately, except for in limited circumstances, courts routinely uphold these agreements as bargained for exchanges between and employee and employer. Despite what the courts have been holding, because employment is hinged upon the signing of these agreements, the bargaining power between employee and employee is simply not equal and not at all fair.

There is a multitude of problems with arbitration. In arbitration, there are no juries and, at times and within the arbitrators’ discretion, discovery can be quite limited. Moreover, concern has been raised, including by the National Employment Lawyers Association, that arbitrators have a built-in conflicts of interest because they are hired by employers and generally want to obtain repeat business from those employers.
The Arbitration Fairness Act (AFA), S. 1782 and H.R. 3010, aims at correcting this problem. The Act would make mandatory arbitration clauses in employment, consumer, and franchise contracts unenforceable. Early support for this bill was strong across both lines but, of course, it has not yet been passed.
I would suggest that you contact your Senators and Representative to ask them to become cosponsors or supports of the AFA.

Kristin Case
The Case Law Firm, LLC.
www.thecaselawfirm.com

At Long Last, the ADA Has Been Amended!

Kristin Case — Thu, 30 Oct 2008 21:25:00 GMT

At Long Last, the ADA Has Been Amended!

In my practice I represent a lot of individuals with disabilities.

The Americans with Disabilities Act (“ADA”), among other things, protects individuals with conditions that substantially limit them in one or more major life activities. Individuals falling under that definition are entitled to workplace accommodations and protections from discrimination and retaliation in the workplace.

The ADA, as it was originally drafted and passed in 1990, was intended to ensure equality in pursuing jobs, goods, services and other opportunities. Since then, and in a relatively short time, federal courts, including the Supreme Court, have hacked away at the ADA’s protections to the point that individuals with cancer, mental retardation and diabetes (just to name a few) were regularly being found by courts to not be disabled and, thus, not entitled to protection under the Act.

The National Employment Lawyers Association, of which I am a proud member, has long advocated and lobbied for changes to Act to restore the ADA to its original intention. After much effort, at long last, on September 25, 2008, the ADA Amendments Act of 2008 was signed into law. These substantial revisions clearly set forth what was intended by Congress back in 1990--that the Act’s protections are to be broadly interpreted to provide broad coverage to individuals with substantial limitations. While the Act’s revisions are too numerous to be listed here, the substantive changes clearly exhibit that the federal courts and the Supreme Court have had it wrong for some time now and that the threshold to prove a “substantial limitation” should be broadly defined as should what constitutes a major life activity.

If these changes have the effect on the judiciary that we are thinking and hoping they will, individuals in the workplace who are struggling to perform their positions and/or maintain their jobs are going to enjoy far greater protections that what we have seen in recent years.

As a plaintiff’s attorney who is committed to representing individuals struggling with medical conditions, I could not be more thrilled with the passage of this Act.

The Act becomes effective January 1, 2009.

Kristin Case
The Case Law Firm, LLC.
www.thecaselawfirm.com
kcase@thecaselawfirm.com

Two surprisingly favorable Supreme Court decisions

Kristin Case — Tue, 08 Jul 2008 20:00:00 GMT

www.thecaselawfirm.com

The United States Supreme Court recently issued two very favorable decisions for employees. On May 27, 2008, the Court held that employers cannot retaliate against employees who assert their rights under two federal anti-discrimination statutes. These decisions came as a welcome surprise to plaintiff’s employment attorneys, many of whom worried that over the next few terms partisan lines in our judiciary may work to erode employee rights.

First, in Gomez-Perez v. Potter, the Court reversed a Ninth Circuit decision and held that the Age Discrimination in Employment Act (“ADEA”) prohibits retaliation against a federal employee who asserts his rights under the act. Although the ADEA provision protecting private employees explicitly protects those employees from retaliation, the provision protecting public employees is silent on the issue. In holding in favor of employee rights, the Court relied on its own precedent. The Court had twice prior held that federal anti-discrimination statutes protected citizens from retaliation, first with regard to 42 USC § 1982, which prohibits race discrimination in property ownership, and next with regard to Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education. Because all three of these statutes are in essence “remedial provisions aimed at prohibiting discrimination,” the Court held that they must be interpreted similarly. Thus an anti-retaliation provision was read into the ADEA’s provision prohibiting age discrimination against federal employees.

Next, in CBOCS West, Inc. v. Humphries, the Court applied the same reasoning in upholding a Seventh Circuit decision interpreting 42 USC § 1981 to include protection against retaliation. The Plaintiff in CBOCS West, Hedrick Humphries, was an African-American assistant manager for Cracker Barrel. Mr. Humphries alleged that after complaining to his manager that he had witnessed race discrimination by another assistant manager, he was terminated. Mr. Humphries brought suit under § 1981, a federal statute prohibiting race discrimination in contract. By inferring an anti-retaliation provision into § 1981, the Court upheld every Federal Circuit Court’s reading of the statute, and extended the reasoning of Gomez-Perez.

Justices Alito and Thomas joined Chief Justice Roberts in dissenting to these two opinions. They argued that the precedent upon which the Court relied was incorrectly decided in the first place. They protested against judicial interpretation of statutes which reads language into a statute that is not explicitly included by Congress. However, these inferred anti-retaliation provisions simply make sense. A statute prohibiting discrimination has no teeth if an employer may intimidate, harass or terminate an employee who seeks that statute’s protection. By reading in an employee’s privilege not to be retaliated against for standing up for his or her workplace rights, the Supreme Court reminds employers that those rights are not to be taken lightly.

The Case Law Firm, LLC.
Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com

Associational Discrimination Claims

Kristin Case — Wed, 02 Jul 2008 15:25:00 GMT

www.thecaselawfirm.com
I was recently interviewed by the online newswire Employment Law 360 about associational discrimination claims. These are claims in which a party suffers discrimination by virtue of being associated with someone within a protected category (whether by familial relations, friendship or work-related interactions). These claims are different from retaliation claims in that they do not require the party to have engaged in protected activity; instead all that is required is evidence that race/gender/disability etc. was a factor in the employment decision.

A recent 7th Circuit case assessed these claims in the disability context and handed down what I believe to be a very favorable decision. Our firm handles a lot of disability claims and we have found that federal courts, too often, openly disfavor these types of cases. Seeing a decision like this does my heart good.

The heartening decision is Dewitt v. Proctor Hospital, 07-1957. In that case, the Plaintiff-employee brought claims against the Hospital-employer for terminating her after she rejected numerous suggestions that her husband employ less expensive means of treating his prostate cancer. Proctor, no surprise, was partially self-insured and, thus, had a vested interest in cheapening the husband’s care. Soon after the Plaintiff refused to downgrade her husband’s care, she was fired.

The court, in reversing the lower court’s grant of summary judgment, found that the Plaintiff had supplied ample evidence from which a jury could infer that her husband’s condition was, indeed, the reason for her termination. The court seemed to focus its decision almost entirely on the evidence of the rather heartless discussions Hospital administrators had with Plaintiff about her husband’s care. The court held that the evidence of those discussions constituted direct evidence by which Plaintiff could prove her claim.

Kristin M. Case is the founding Member of The Case Law Firm. The Case Law Firm, LLC is a Chicago-based civil rights employment law firm committed to representing employees throughout their employment relationships.

The Case Law Firm, LLC.
Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com

Family Responsibility Discrimination

Kristin Case — Sat, 07 Jun 2008 05:00:00 GMT

When an employee’s family responsibilities change, i.e. marriage, the birth of a child or the illness of a spouse or parent, employers can make and/or act upon any number of discriminatory assumptions. For instance, in our practice we see employers, time and again, assume that once a woman starts a family that she will no longer be dedicated to her job or available for her employer’s needs.

These discriminatory assumptions and action have given rise to a new category of discrimination: Family responsibility discrimination (also known as family status discrimination).

While the prevalence of this type of discrimination has been noted by academics and government officials alike, there is not yet any comprehensive federal anti-discrimination statute protecting family caregivers as a class. Significantly, many state and local governments have created their own protections for family caregivers. Indeed, the Illinois Human Rights Act protects employees from discrimination based on the narrower category of marital status, and both the Cook County and Chicago Human Rights Acts protect for both marital and parental status discrimination. One would hope that the federal government would take note of this trend and enact similar legislation however, given our current political climate, that may be a ways off.

In the absence of specific federal protection, the United States Equal Employment Opportunity Commission has recently issued guidance to employers on the ways that discrimination against family caregivers may violate already existing laws which protect against gender and disability discrimination. http://www.eeoc.gov/policy/docs/caregiving.html. For instance, discrimination against pregnant women has long been prohibited under the gender discrimination provisions of Title VII of the Civil Rights Act of 1964. Similarly, workplace policies based on stereotypes regarding family care which disparately impact men and women will be illegal under that same provision. For example, if an employer allows for leave to care for children or parents to its female employees but not its male employees, this will be a violation of Title VII. In addition to Title VII, the Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination against employees who have a relationship or association with a disabled person. Thus, if an employer were to discriminate against an employee for his need to care for a disabled child, spouse, or parent, this would be a violation of the ADA.

In addition to the EEOC, several courts have also begun to use the existing civil rights statutes to chip away at family responsibility discrimination. For instance, in Santiago-Ramos v. Centennial P.R. Wireless Corp., the U.S. Court of Appeals for the First Circuit held that comments by decisionmakers reflecting concern that a plaintiff might not be able to balance work and family responsibilities after she had a second child could lead a jury to conclude that the plaintiff was fired because of sex, in violation of Title VII. 217 F.3d 46, 55 (1st Cir. 2000). Additionally, the Seventh Circuit, our local court of appeals, also explained that an employer cannot consider parenthood status in making employment decisions because “….the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics. Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

Decisions such as these, as well as the EEOC’s new guidance, serves as useful reminders to employment attorneys that creative legal arguments can be used to protect the role of family caregivers in the workplace. But perhaps more importantly, they encourage employers to craft family-friendly policies which will help them in avoiding family responsibility discrimination in the workplace.

Terms of Site Use

Case on Point is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. Neither The Case Law Firm, LLC., nor any specific contributing attorney intends to create an attorney-client relationship by offering this information, and anyone's review of the information shall not be deemed to create such a relationship. You should consult a Case Law Firm lawyer if you have legal matter requiring attention. Also, nothing on this site creates an express or implied contract.

Kristin M. Case is the founding Member of The Case Law Firm. The Case Law Firm is a Chicago-based civil rights employment law firm committed to representing employees throughout their employment relationships.

The Case Law Firm, LLC.
Chicago, Illinois
(312) 920-0400
www.thecaselawfirm.com