A transsexual is someone who identifies with a gender other than his or her biological sex.  The term applies both to those who have had sex reassignment surgery and those who have not.  It is not the same as sexual orientation, which refers to a person’s sexual preference.  A number of other terms, such as “transgender,” describe similar concepts.

The EEOC’s decision, and some of the court decisions on the subject, extends coverage under Title VII only to transsexuals.  While some argue that similar logic should be used to extend coverage to gay, lesbian, and bisexual employees, few courts have done so.   Most employment protection for gay, lesbian, and bisexual employees comes from state statutes.

 Now What?

Even if federal courts ultimately chip away at the EEOC’s decision, for now employers who discriminate against transsexuals are subject to the EEOC’s enforcement powers.  To protect yourself, you should review your policies and practices to be sure they are not discriminatory.  Consider not only hiring, firing, and promotion decisions, but also workplace harassment and the provision of workplace facilities – lockers and bathrooms, all of which fall within the purview of the EEOC.

If your sexual harassment training does not already cover gender identity and sexual orientation, it is probably time for an update.  Workplace harassment and retaliation are among the hottest areas of discrimination, and transgender claims of discrimination fit into these issues perfectly.  Even if your state does not prohibit discrimination on the basis of sexual orientation, the shifting tide of federal decisions under Title VII suggests employers should not ignore sexual orientation when dealing with harassment issues.

While the EEOC’s decision does not directly address restroom use policies, this is a common concern for employers and employees.  Many people are uncomfortable with sharing restrooms with members of the opposite sex, and a transsexual employee’s choice of restroom may cause discomfort for co-workers or customers.  To manage this concern, many employers choose to designate one or more single-stall restrooms as unisex.  Consider implementing such an option, even if you have no transsexual employees, to avoid potential problems down the road.

The EEOC’s decision is characteristic of the Obama Administration’s propensity to expand the scope and enforcement of existing laws, rather than enacting new legislation.  The words of Title VII are unchanged, but how employers need to view their obligations to gay, lesbian, bisexual, and transsexual employees under the law is rapidly changing.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

Hiring should focus on the applicant’s qualifications, not pregnancy, child care, or other family issues.

Assumptions and stereotypes are dangerous.  Not all women take on caregiving roles at home.  Nor do men necessarily lack caregiving responsibilities.  Avoid sex discrimination claims by recognizing the individual needs of your employees.

Parental status is a protected class under many state laws.  Have you checked yours?

Pregnancy is a protected status under federal law and many state laws.  Pregnancy-related disabilities are covered by the Americans with Disabilities Act.

You should be aware of all the state and federal laws that deal with caregiving responsibilities, often indirectly.  For example, Connecticut’s new medical marijuana law prohibits discrimination against certain caregivers and its new sick leave law allows time off to care for a parent, spouse, or child.  The Americans with Disabilities Act prohibits discrimination against individuals who are associated with a person with a disability.

Men can bring sex discrimination claims when they do not receive the same benefits as women for caregiving issues.

Over half of married mothers with children under age 6 are employed.

The Fair Labor Standards Act was recently amended to provide breastfeeding breaks for nursing mothers.

HR Audits should be used to reveal disparities you did not realize existed.  Consider whether employees with caregiving responsibilities are being hired, promoted, and paid on par with other employees.

Employees who have sued for issues related to family responsibilities have a higher success rate in court than employees who sue for most other employment issues.

Review your employee handbook with an eye toward disability and leave policies.  Make sure they are written and implemented in a non-discriminatory manner.

Single people have complained about the scheduling flexibility employers have given to married workers to handle family responsibilities, but this has not evolved into a significant legal concern for employers.  Nonetheless, to boost morale among all employees, consider that single people may have caregiving responsibilities not covered by your policies (e.g. for an elderly aunt or a disabled neighbor) or that they may be resentful of being asked to take on extra responsibilities due to family responsibilities of others. 

Daycare costs are one of the top reasons parents choose not to return to work after the birth of a child.  Some companies provide on-site daycare or discount vouchers as a way to retain their employees.

Assessing employees by results rather than “face time” helps provide flexibility, while holding all employees accountable for their output.

Your obligation under the Family and Medical Leave Act to allow leave to care for a child extends to employees who act as parents, even if they are not the child’s actual parents.  Examples are grandparents caring for grandchildren or Opie’s Aunt Bee from The Andy Griffith Show.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Thanks to a provision buried in the Patient Protection and Affordable Care Act (commonly known as the “Healthcare Bill”), employers must provide reasonable breaks for mothers to express milk for up to one year after the child’s birth.   These breaks do not need to be paid unless you compensate employees for breaks of a similar duration.  Under this law, employees who are exempt from the overtime requirements of the Fair Labor Standards Act are not entitled to these breaks, but state law may vary.  (In fact, 24 states have laws mandating opportunities for expressing milk.)

In addition to allowing breaks for expressing milk, employers must provide a place where the mother can express milk.  It must be shielded from view, free from intrusion, and it cannot be a bathroom.  The employer does not need to create a separate room for this purpose.  An office with a locked door would be acceptable.  While the law does not expressly require these features, a suitable location would have an electrical outlet, a door that locks, a chair, and access to a refrigerator where the milk can be stored.  If an employer would suffer an undue hardship in providing the breaks or the nursing location and the employer has fewer than 50 employees, it is exempt from these requirements. 

It is an unsettled question whether an employer is guilty of sex discrimination under the Pregnancy Discrimination Act by discriminating against employees for expressing milk.  A federal judge in Houston recently ruled that “lactation discrimination” is not prohibited by that law because lactation is not “pregnancy, childbirth or a related medical condition.”  The Equal Employment Opportunity Commission and many commentators believe otherwise, arguing that lactation is a medical condition related to pregnancy and childbirth.  This decision was a reactionary ruling by a judge who seems to be very much in the minority on this matter.  Employers who discriminate against an employee for breastfeeding are taking a big risk.

Breastfeeding advocates suggest supporting employees who choose to breastfeed is a good business decision.  Breastfed babies are generally healthier, reducing parents’ absenteeism.  Supporting breastfeeding also increases morale and makes it more likely the employee will return to work after childbirth.  A great deal of media attention has recently been devoted to breastfeeding, particularly companies that have asked breastfeeding patrons to leave or cover up.  Hindering an employee in her decision to breastfeed can lead to such unwanted media attention.  We know the federal government is supporting breastfeeding, but will it become commonplace?  Only time will tell.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

As seen in the January, 30 2012 CT Law Tribune

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Do you want to hold a company holiday party, but worry about being sued?  In the past, employers have faced worker’s compensation claims for holiday party injuries as well as lawsuits for sexual harassment, drunk driving by employees, and religious discrimination.  Some companies are asking employees to sign holiday party waivers, but they won’t be effective if a third-party is injured, not to mention that a court is unlikely to enforce a waiver of a sexual harassment claim signed before the offensive conduct occurred.  Instead, focus on prevention.  Following these tips can help you protect your business from costly litigation without putting the kibosh on holiday cheer.

First, make it clear that participation in the party is entirely voluntary.  This simple step may protect your company from a worker’s compensation suit if an employee is injured.  Also, some employees may be uncomfortable attending a holiday party for any number of reasons, so keep it optional.

Second, many of the sexual harassment, worker’s compensation, and drunk driving matters can be prevented if alcohol consumption is reduced or eliminated.  Surveys show that alcohol-free workplace holiday parties are about as common as those with alcohol.  If you decide to provide alcohol, consider limiting consumption through drink tickets or a cash bar.  Inviting spouses and significant others is a good idea.  Their presence can temper drinking and inappropriate conduct toward coworkers.  Holding the event at a restaurant where bartenders serve the drinks can also help limit your liability in the event of injury to third-parties.  Also, encourage designated drivers or provide taxi vouchers to keep impaired drivers off the road.

Finally, remember to respect the diversity of your workplace.  Many companies employ workers of different faiths, and a holiday party should not make some employees feel excluded.  A “winter celebration” or “New Years’ party” is likely to make everyone feel comfortable.  Neutral decorations keep the party festive but non-religious.

Office holiday parties provide a great opportunity to reward employees, build camaraderie, and celebrate the season.  Considering and addressing the risks can keep the holidays fun and joyous for you and your employees.

We wish everyone a happy holiday season.  We offer assistance to management on these and all types of employment-related issues.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In this case, a female employee was fired while on maternity leave.  She brought claims for pregnancy discrimination under the federal Pregnancy Discrimination Act and the Connecticut Fair Employment Practices Act.  In order to prove her discrimination claim, the plaintiff must first show she 1) is a member of a protected class; 2) was a satisfactory employee; 3) was fired; and 4) was replaced by someone outside her protected class or the circumstances surrounding her discharge give rise to an inference of discrimination.   

The employer in this case moved for Summary Judgment claiming the plaintiff failed to satisfy the first element of the test: that she was pregnant.  The employer argued the law protects pregnant employees, but the plaintiff was not pregnant when she was fired.  The court disagreed finding the laws protect women affected by pregnancy, not women who are pregnant.  Therefore, the plaintiff, having given birth only one month before her discharge, was affected by pregnancy and therefore covered.

The case will now continue to trial.  It will be interesting to see whether the plaintiff ultimately prevails.  For now, employers in New York, Connecticut, and Vermont need to be aware that there is a trend in the Second Circuit towards protecting women on maternity leave against discrimination.  Employers everywhere should always document all instances of employee misconduct especially those leading to discharge.  This is every employer’s best defense to a claim of discrimination.    

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Shannon Mandel began working for M&Q Packaging Corp. in 1996.  She claimed that on a daily basis she was called names such as “toots,” “missy,” “woman” and “bitch.”  In addition male coworkers and supervisors made various comments to her such as commenting on her legs when she wore skirts, saying her shoes were “beat me, bite me” shoes, telling her she should use her “assets” to her advantage, and asking her to make them coffee.  She also claimed pay disparities between herself and her male counterparts.  

However, there is one important difference here than in most sexual harassment cases.  Mandel herself regularly participated in sexual jokes.  She often emailed sexually explicit jokes to her coworkers, she called the plant manager “gay” as an ongoing joke with coworkers, and regularly used the “f” word. 

Mandel said she complained once to a manager in 1996 when a male coworker asked her to make him coffee, and complained once to a female coworker about her supervisor’s comments.  Finally, in 2007, Mandel quit, but claims she was constructively discharged because of the hostile work environment which was created by the male employees.  She filed a lawsuit claiming constructive discharge, sex bias in pay and sexual harassment. 

The District Court said there were no facts to show these sexual comments and jokes caused her any distress.  Mandel was not distressed to the point of being unable to perform her job duties, and suffered no psychological harm.  She failed to show the conduct was subjectively offensive.  The sexual jokes were commonplace in the office and the facts showed she had a casual attitude towards the situation.  Mandel never made any formal complaints to M&Q officials besides the one time in 1996, and worked under these conditions for over ten years before quitting. 

The Company was lucky in this case to have avoided liability.  Once harassment claims are made, it is unusual for that allegation to be proven, but the company was exonerated because the conduct was “welcome.”  Needless to say, M&Q should not tolerate such a work environment.  Comments and jokes such as those taking place at M&Q should be immediately reported and the offenders disciplined.  It is also important to remember that sexual harassers are not always male.  Mandel’s sexually explicit emails and name calling could constitute sexual harassment to her coworkers. 

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.