Reality v. The Pregnancy Discrimination Act

Despite the Pregnancy Discrimination Act being passed in 1978 and the Florida Supreme Court holding that the Florida Civil Rights Act of 1992 includes protection from pregnancy discrimination, women of childbearing age still have to face major hurdles in the workplace.  Women find themselves wondering whether they will be able to find a job when they are pregnant or if their potential employer believes they may become pregnant.  Many women are passed over for promotions either due to intentional stereotypes about a woman's ability or desire to work hard after having a child, or subconscious beliefs that women won't be able to pull their weight at the office once they have children.  Truthfully, many women find themselves spread thin and riddled with guilt--compelled to give 100% to their families while also giving 100% to their careers.  

The Family and Medical Leave Act of 1993 provides that covered employers (those with 50 or more employees within a 75-mile radius) must provide up to 12 weeks of unpaid leave to covered employees due to the birth or adoption of a child.  This is a summary of the law, but the key point is this: even if you are a covered employee working for a covered employer, you may be entitled to 12 weeks of leave, but that leave is unpaid.  That is, unless the employer voluntarily chooses to pay for the leave time or allows employees to substitute out sick or vacation time for FMLA leave.  For many women, taking 12 weeks off to bond and care for their newborn is highly desireable, but simply unattainable.  In a nation where the vast majority of families live paycheck-to-pacheck, 12 weeks without pay is just not an option.  

I've said it before, and I'll say it again--we claim to be a nation that supports "family values."  But when it comes time to back those values up with money and programs to support mothers and fathers, we fall woefully short.  Mothers either lose their jobs, return to work mere days after giving birth to keep their jobs, or go weeks without pay, only to return to jobs where they will forevermore earn less than their male counterparts because they missed out on key stepping stones to promotions.  Fathers who want to take time to bond with their babies also lose out on pay and benefits during leave, and may even suffer from stigma and ridicule from co-workers and management.  As a society, we should be coming together to encourage men to be active fathers and providing support for mothers who are healing physically while caring for one or more newborns.

And, employers, you are missing out, too.  Parents of young children can be huge assets to companies, using their mutitasking skills to bring fresh perspective to the workplace.  And, let's not forget, just because somebody has had a baby, that does not mean that all of their education, training, and experience has evaporated.  Flexible work schedules and supportive paid time off policies may not be mandatory, but such programs may save companies more money in the long run, since the companies will not have to hire and train new employees to fill the roles of departed parents.

If you believe you have been discriminated against because of a pregnancy or pregnancy-related condition, use our website to set up a phone consultation.  Meanwhile, you can check out this article which gives some interesting information on declining birthrates in the U.S. and employment law. 

Appellate Arguments

Potential clients should be wary of a lawyer who says that your case is a "guaranteed winner."  In the law, there is no such thing as a "sure thing."  Judges rule against even the best advocates and juries can be highly unpredictable.  Fortunately, our system of justice allows for an appellate court to review decisions by judges and verdicts by juries.  This process helps ensure that judges are following the law and jury verdicts have not been the result of errors at trial.  

Not all lawyers are litigators.  Even those lawyers who litigate cases on paper are not always the best trial lawyers.  And even fewer lawyers have the opportunity or desire to argue their cases in front of an appellate court.  Litigating, trying cases, and handling appeals are distinct skills.  

Today, May 16, 2018, Thorpe & Thorpe, P.A. attorney Shaina Thorpe will be presenting an oral argument on behalf of one of our clients.  We have already presented our arguments on paper  and today we get the chance to talk with three appellate court judges in Tallahassee about why the judge's decision should be reversed and our client should have her day in court.  While we do not know when the First District Court of Appeal will issue its opinion on the case, we remain hopeful that the appellate court will send the case back for trial.  

In the meantime, you can watch Ms. Thorpe in action via the court's live streaming website.  There are three cases set for argument today, with the first beginning at 10 am.  So click on the link below, select the Third Floor Courtroom option, and keep an eye out for our attorneys.  We work hard for you--through trial and appeal!

http://www.1dca.org/ustream.html    

 

Florida Minimum Wage Law Change

Under Florida Law, the state minimum wage can increase on an annual basis.  Any increases take effect January 1st.  Therefore, it is critical for employers to know that as of January 1, 2018, Florida's Minimum Wage was increased to $8.25 per hour, up from $8.10 per hour in 2017.  This means that employers will be required to change their minimum wage postings, as well as increase the wages for workers whose hourly rate of pay does not meet the new threshold.  The federal minimum wage remains at $7.25 per hour, but simply meeting that requirement will not shield employers from liability under the Florida Minimum Wage Act and Florida's constitutional minimum wage protections.  So don't wait!  Change those rates of pay and posters today!!! 

Court Temporarily Halts Salary Increase Requirement

Employers who were scrambling to comply with the December 1, 2016 increase to the salary requirement for exempt employees can breathe a little easier, at least for a while.

Earlier this year, the Department of Labor issued regulations which would have increased the minimum weekly salary required for an employee to be exempt from the overtime requirements of the Fair Labor Standards Act of 1938.  Generally speaking, employees are required to be paid time and a half of their regular rate of pay for all hours worked beyond 40 in a workweek.  However, there are exceptions to this general rule.

Three of these are the executive, managerial, and professional exceptions.  They are commonly referred to as the "white collar" exemptions.  People who meet the exemption's requirements are not entitled to overtime pay.  There are three requirements for the exemption: (1) the employee must be paid on a salary basis; (2) the weekly salary must meet the minimum amount set by the Department of Labor (this is currently $455 per week); and (3) the employee must perform exempt duties.

The Department of Labor changed the second prong of that test, requiring the minimum salary amount to go from $455 per week to $913 per week.  The regulation also would have caused that minimum salary requirement to automatically increase every three years.  This change was supposed to take effect December 1, 2016.  

Suffice it to say, many employers, including governmental employers, became concerned about how they would be able to meet the new salary requirement.  Some employers considered paying otherwise exempt employees on an hourly basis and simply paying them overtime.  Other employers, like the states that filed suit in the United States District Court in Texas, realized that the dramatic increase in salary amount would result in budget increases that the states could not fund.  These states argued that the salary increase could cost millions of dollars.  This could result in layoffs and a reduction in services.

The District Court agreed that the states and commonwealths that filed suit (Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah, and Wisconsin), had provided sufficient proof to justify a temporary injunction against the increase.  

In short, at this time, employers are not required to increase the salaries of their exempt employees on December 1, 2016.  Of course, employers are free to set the salaries of their exempt employees above the $455 weekly minimum if they choose to do so.  However, as of right now, employers are not required to increase the salary rate to the $913 per week on December 1, 2016.  

Employers should note that this injunction is temporary.  This means that the injunction could be lifted and the requirement of the increase could return.  However, based on the logic used by the Court and the dramatic impact of the temporary injunction, it would not be surprising to see extensive challenges of the decision, likely all the way up the United States Supreme Court.  You can read the decision of the court here.

Keep tuned in to blog updates from Thorpe & Thorpe, P.A. to learn more about this ongoing issue. 

Defending the Sexually Harassed

Thorpe & Thorpe, P.A. attorney Shaina Thorpe stands up for victims of sexual harassment, even against individuals who threaten to use their standing in the community to undermine the victim.  Ms. Thorpe has filed a lawsuit under Leon County's Human Rights Ordinance and will not be deterred from helping the victim of sexual harassment.  The story will be in tomorrow's Tallahassee Democrat, but can be found online here.

Sexual Harassment at Texas Roadhouse Costs Management Company $1.4 Million

As we know, gender discrimination and harassment draws a concern for not only the employed adults in the workplace but also for the minors. Nonetheless, these situations are critical should be properly treated by high-level authority, but according to a recent case filed by the EEOC against Texas Roadhouse Restaurants, that was not so.

According to the EEOC's lawsuit, a manager of a restaurant in Columbus had harassed women and even teen girls working in the front-of-the-house positions. The underlying issue is that although the incidents were reported to high-level authority, they were not addressed. It was not until video surveillance providing evidence of the harassment taking place on one high school girl that action was taken.

Therefore, for months the harassed teenager could only rely on her manager to fix the situation.  The problem was the manager was the individual responsible for the harassment.  Ultimately, the employees had the courage to go to the EEOC to file a charge of discrimination and pursue their legal rights.

As a result of the employees' decision to stand up for themselves, the company was required to provide 1.4 million in monetary relief to the harassment victims. Additionally, the company cannot rehire the offending manager. To better ensure that these offensive acts do not occur in the future, the decree also requires that the company must provide training to all employees on discrimination and retaliation. You can read more on this matter here.

If you are a victim of sexual harassment, do not be afraid to report the offender. It is your right to work in a safe environment. If you decide you want to take action against retaliation, our attorneys at Thorpe & Thorpe, P.A. will work to protect your rights.

Key Change to Mixed Motive Claims

Years ago, the Supreme Court acknowledged the existence of "mixed motive" claims of discrimination.  These are claims where although a discriminatory motive may be one reason for an employer's actions, there are other, nondiscriminatory motives at play.  For example, the evidence could show that an employee's gender played a role in an employer's decision to terminate the employee, but the employer could win the case on the theory that it had three other non-gender-related reasons for firing the employee. 

However, on February 22nd, the Eleventh Circuit Court of Appeals ruled that in these "mixed motive" cases, if the employee can show that she or he experienced an adverse employment action (such as termination) and that a protected characteristic (such as race or religion) was a motivating factor for the decision, the case can survive summary judgment.  Because the Eleventh Circuit is the federal appellate court whose decisions are binding on Florida's district courts, this decision will have an impact on employees and employers in Florida.

In short, it is no longer sufficient for an employer to identify one or two neutral reasons for its actions to avoid a possible jury trial in a "mixed motive" case based on circumstantial evidence.  Practitioners would be wise to familiarize themselves with the decision in Quigg v. Thomas County School District et al., Case No. 14-14530 (11th Cir. Feb. 22, 2016)(available here), as it may make the difference between choosing to settle a case and proceeding with litigation.

Does your employee handbook comply with the changing laws and the needs of your business?

Although annual handbook auditing is not required, it may be a good idea to have legal counsel review your employee handbook if it has not been done in a while.  2016 may be a good year to have your employee handbook reviewed for compliance due to several changes in the law.  These changes are discussed in this article.  

If your employee handbook has not been reviewed for compliance in at least 2 years, if the size of your workforce or the amount of your sales has changed significantly in the last year, or if you just have some employment law questions, give us a call to set up an appointment.  

EEOC Sees Discrimination at Lakeland Eye Clinic

Title VII, the federal anti-discrimination, harassment, and retaliation law in employment, does not explicitly name gender identity or homosexuality as protected classes, but broadly prohibits sex discrimination.  Over the years, sex discrimination has been interpreted to include pregnancy-based discrimination, as well as sex stereotyping.  However, sexual orientation discrimination has typically not been held to be prohibited by Title VII, but that may be changing with the help of the EEOC.  

The EEOC is the federal administrative agency responsible for the investigation and enforcement of the provisions of Title VII and other anti-discrimination laws.  In 2012, the EEOC announced that one of its objectives over the next few years would be to address "emerging and developing issues" including "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply."  

The critical phrase is "as they may apply" because the EEOC must recognize that the statuses of being transgendered or homosexual are not directly covered by the language of Title VII.  Thus, what the EEOC has done to effectuate its policy goal is take the position that discrimination on the basis of one's transgender or homosexual status violates Title VII because the traits affiliated with such individuals fall into the category of gender stereotyping.

 Gender stereotyping has been recognized as covered by Title VII since the United States Supreme Court's 1989 holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   In the Hopkins case, a female employee suffered discrimination due to management's perception that she did not fit the "traditional" profile of femininity in her appearance and attitude.  The Court held that discrimination on the basis of such sex stereotyping was prohibited under Title VII.  The interpretation of Title VII in the Hopkins case is critical to the EEOC's move to enforce the rights of LGBT individuals in the workplace. 

In 2014, the EEOC filed suit on behalf of a transgender woman who worked for a Lakeland, Florida eye clinic.  The employee was transitioning from male to female, and began to present at the workplace as a female.  Although her work product remained satisfactory, she was fired.  The EEOC alleged that the employee was unlawfully fired on the basis of sex, in that she did not conform to the employer's sex-based stereotypes.  

A settlement was approved in April 2015, with Lakeland Eye Clinic agreeing to pay $150,000 to the terminated employee. According to the EEOC, this case was one of the first two to be filed where the employee's transgender status was the protected class.  

While the EEOC does not make law, employers should definitely take note that the EEOC is actively pursuing the rights of LGBT employees.  Although a strict reading of Title VII does not indicate homosexuality or transgender status as protected classes, there is court precedent that could support such claims under the umbrella of gender stereotyping.  Therefore, as with any employees, employers are best served by making employment decisions on the merits of the employee's work and not on the employee's gender-based attributes.