Monday, June 24, 2013

Fifth Circuit Holds Lactation Discrimination Amounts to Sex Discrimination Under Title VII

The Court of Appeals for the Fifth Circuit has overturned a lower district court in Texas holding that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  The case was filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Donnica Venters who claimed that she was fired after giving birth once she inquired as to whether she would be able to pump breast milk when she returned to her job.  The EEOC sued, alleging that the employer, Houston Funding II, LLC, engaged in sex discrimination. The district court dismissed the lawsuit (EEOC v. Houston Funding II LLC, No. 4:11-CV-2442) on a motion for summary judgment.  Following that decision, the EEOC appealed to the Fifth Circuit (EEOC v. Houston Funding II LLC, No. 12-20220).

The lower district court, in granting summary judgment, held "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination."  The district court suggested that "pregnancy-related conditions" ended on the day that a mother gives birth.  In overturning the lower district court and finding this amounted to sex discrimination under Title VII, the 5th Circuit stated that the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits. 

The EEOC's press release on the case can be found here

Wednesday, June 19, 2013

The June Employment Law Blog Carnival is Live!

Attorney Jon Hyman over at the Ohio Employer's Law Blog hosted this month's edition of the employment law blog carnival, which I was not fortunate enough to participate in due to a hectic work schedule, vacation and move into a new dwelling.  The title for this month's edition is: "Summer Blockbuster Edition."  Enjoy!

Tuesday, June 18, 2013

EEOC Files Suit Against BMW and Family Dollar for Use of Criminal Background Checks

In Wisconsin under the Wisconsin Fair Employment Act (WFEA), it is expressly unlawful for an employer to discriminate against a potential or current employee over their arrest and conviction record.  However, there is no comparable law at the federal level and the Equal Employment Opportunity Commission (EEOC) has been actively seeking to pursue this type of claim as they believe that employers that use criminal background checks to make employment decisions have a disparate impact that unlawfully discriminates under Title VII.  Toward that end, this month the EEOC announced two lawsuits, one against BMW and one against Family Dollar, alleging that they implemented and utilized criminal background policies that resulted in African American employees and applicants being discriminated against in violation of Title VII of the Civil Rights Act.


In the lawsuit against BMW, the EEOC claims that the company maintains a criminal conviction policy that denies facility access to BMW employees and employees of BMW contractors with certain criminal convictions.  The biggest problem with the policy, the EEOC found, is that it “is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.” As a result of this policy, the EEOC claims that BMW has engaged in unlawful conduct in violation of Title VII as it terminated numerous employees at a newly-contracted logistics company that had employees that violated their criminal background policy, many of which were African-American.

In the EEOC's lawsuit against Family Dollar,  the EEOC argues that “Dollar General conditions all of its job offers on criminal background checks, which result in a disparate impact against blacks.”

Like Wisconsin's "substantial relationship" defense used by employers who claim an applicant's prior conviction(s) are "substantially-related" to the position sought, the EEOC likewise subscribes to a defense against criminal background check discrimination: when doing so is consistent with business necessity.  However, the EEOC has only provided two examples of how "business necessity" would be met so far:
First, an employer could validate its criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedure Standards. Second, an employer could develop targeted screens considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the application of the policy is job related and consistent with business necessity.

Obviously the EEOC's policies and actions should serve as more of a deterrent for Wisconsin Employers as they could face not only state actions for criminal background check policies, but also federal action under Title VII.

Tuesday, June 4, 2013

Georgia Bus Driver Fired Over Facebook Post

We are several years into the advent of social media websites like Facebook and Twitter and also several years into the legal issues surrounding terminations of employees for the things they post on social media.  I have written about this topic numerous times over the years.  However, yet another Facebook firing has made national headlines over a bus driver, Johnny Cook, who was fired for a compassionate Facebook status he wrote about a student who told him he went one day without lunch because his parents forgot to give him lunch money.  CNN has the story here:





Obviously the segment is not long enough to fully-delve into whether Cook has a lawsuit but from the facts shared in the story, it does not appear that he will except to maybe attack the school's "strict social media policy" as the National Labor Relations Board (NLRB) has targeted such policies as violations of the National Labor Relations Act (NLRA).  It's a very odd thing to terminate an employee over and hopefully he is able to collect unemployment insurance as a consolation.  As they say, no good deed goes unpunished.