Delaware Employment Law Blog

Pregnancy discrimination complaints have been on the rise for a very long time.  In 2007, working women in the United States filed 65 percent more complaints of pregnancy discrimination with the Equal Employment Opportunity Commission (EEOC) than they filed in 1992.  A new study analyzing pregnancy discrimination claims (pdf) was released today by the National Partnership for Women & Families at a symposium to commemorate the 30th anniversary of the Pregnancy Discrimination Act (PDA), enacted on October 31, 1978.

To conduct the study, the National Partnership for Women & Families analyzed the most recent pregnancy discrimination charge data, as well as detailed pregnancy discrimination charge data from a ten-year period – FY1996 to FY2005. They also reviewed recent demographic data on women’s labor force participation and childbearing trends, and data about stereotypes and attitudes confronting pregnant women on the job.

The study reaches some interesting conclusions:

1. The growth in pregnancy discrimination claims during the time period was fueled largely by charges filed by women of color. Claims by by women of color jumped 76 percent, while claims overall increased by 25 percent.

2. Female-dominated industries may be no less likely to have discriminatory practices than industries with women in non-traditional jobs. More than half the claims filed with the EEOC during that period (53 percent) were filed in service, retail trade and the financial services, insurance and real estate industries – where some seven in ten women work.

3. Pregnancy discrimination charge filings increased in almost three-quarters of the states, with 38 states recording an increase in charges.

4. There is no single cause for the rise in pregnancy discrimination suits. The study posits that longstanding stereotypes and attitudes about gender, coupled with increasing numbers of women in the workplace, are among the key reasons for the rising numbers.

Flexible work schedules are continually becoming one of the most demanded employment benefits.  Life Meets Work is an organization that promotes flexible work schedules and alternative work arrangements. The organization is currently conducting its first annual survey on the topic of work-life balance.

The goal of the survey, called Flexing, Floundering, or 'Just Fine Thanks': Work/Life Issues in America, is to capture the opinions of Americans challenges in balancing work and life, the role of government in work-life initiatives, and flexible work programs. Life Meets Work also wants to hear about the flex programs, and work-life initiatives from an employer's perspective.

Whether you're working parent, stay-at-home mom, business owner or human resources executive, Life Meets Work want to hear from you. The survey takes less than 10 minutes to complete. Your responses are confidential.

The results of the study, along with a corresponding white paper, will be presented on a free Webinar, appropriately titled after the survey,  on October 28, 2008.

With the ever-increasing interest in alternative work schedules, Americans are curious how the candidates in this year's election feel about work-life issues, particularly our first woman (and mother)  Vice Presidential nominee.  MomsRising.org is an advocacy organization lobbying for the need of a more family-friendly America. They have drafted the following letter they encourage you to sign and submit to Governor Palin. The letter reads as follows:

Dear Governor Palin,

It was dazzling to see a mom on the stage at the Republican convention accepting  the Vice Presidential nomination.  There are too few mothers in the boardrooms and high levels of political office.  As members of MomsRising.org we celebrate your path from PTA to Vice Presidential candidate, but we didn't hear much in your speech about what you and your party will do for mothers and families. 

Due to the economic downturn, mothers and families are struggling more than before.  A quarter of families with children under age six are living in poverty, and having a baby is a leading cause of a “poverty spell” in our nation--a time when income dips below what’s needed for food and rent.  Women get a huge wage hit when they have children: mothers make only 73 cents to a man’s dollar, and single moms make only about 60cents.  Countries with family-friendly policies and programs in place--like paid family leave and affordable childcare--have smaller wage gaps for mothers, healthier children, and spend less funds later on the criminal justice system, grade repetitions, healthcare, and much more.

Our nation can’t afford to ignore the issues of mothers and families any longer.  We want to know where you stand on the issues which are critical to mothers like healthcare, fair pay, paid family and medical leave, afterschool programs, childcare/early learning, paid sick days, and flexible work options.
With now three-quarters of American mothers in the labor force, but a societal structure which hasn’t caught up to that modern reality, we, as a nation, are at a crisis point for our families.  Bottom Line: Mothers want to ensure the well-being of their families.  No mother should have to choose between taking care of a sick child and feeding her child. And no mother should have to choose between taking her child to the doctor and paying rent.

Governor Palin, if elected Vice President of the United States, how will you support mothers and families? Mothers across the nation look forward to hearing where you stand on our issues.

To submit this letter, visit MomsRising.org , and simply sign your name electronically to the letter, which will then be submitted by the organization to Palin.

In time for National Work and Family Month, Families and Work Institute (FWI) released today full notes from conference calls it convened in September with policy leaders from Senator Obama's and Senator McCain’s campaigns.  

The calls focused on how, if elected, the two candidates would address work life issues ranging from sick leave to health care to early education and child care. “This is the first ever Presidential campaign in which both nominees have formally articulated their positions in this arena,” according to Ellen Galinski, President of FWI. While much has been written about how Vice Presidential candidates Biden and Palin manage their own work and family lives, and where Palin and Biden have been affected by work-life issues in the past, these calls move us from their personal to their policy stands on these issues. 

Among the questions addressed by the campaigns during the calls were:

• What are the work and family life issues the candidate feels are most important to address?

• What is the candidate’s position on workplace flexibility? What are the roles of the government, employers and employees in providing workplace flexibility?

• Should the Family and Medical Leave Act (FMLA) be changed? In what ways? Should it be paid? By whom? Should sick leave be established and paid? By whom and for whom?

• How would the candidate address issues of the time famine that so many employees experience?

• How does each candidate plan to address the impact of the gas crisis on commuting employees?  

• How can work life issues help address the spiraling cost of health care?

• What would each candidate do to help the low-wage working family? And how would your candidate address narrowing the gap between men and women’s pay for all workers, especially for older workers?

• What is the candidate’s position on education and care for the first three years of life for those families who need and want to work- and on universal pre-K?  What proposals does each candidate have for after-school care?

• What if anything, does either party plan to do to support the 45% of employees taking care of our growing elderly population?  

The full notes from the call with Senator Obama's campaign and with Senator McCain's campaign are linked here in pdf format.  These notes provide great insight into the positions of the candidates on work-life and work-family issues. 

October is National Work and Family month. The Alliance for Work-Life Progress (AWLP) , sponsored the work-life-balance initiative, which was passed by Congress in 2003. National Work and Family month recognizes the importance of employer-sponsored work-life programs in attracting, motivating and retaining top talent.

Though employers may scoff at such perceived “perks” in the current economic environment, organizations that incorporate work-life programs report that such programs help to create more effective workplaces. Flexible work arrangements provide enhanced employee performance and show that employers care about the well-being of their workforce.

With an increase in single-parent households and homes where both parents are wage earners, businesses must proactively incorporate work-life initiatives into their business models.  The Families & Work Institute released a study last Spring, the 2008 National Study of Employers, which showed that employers are rapidly adjusting to the demands of the family-oriented employee. Proponents of work-life programs say that such initiatives reduce turnover, absenteeism, and stress-related illnesses, as well as contribute to increased productivity.

  Moreover, work-life balance is critical to attracting Gen Y workers, who don’t understand the rigidity of the 9-to-5 work week created by Baby Boomers. Study after study have shown that Millennial employees work best when they can set their own hours to get work accomplished. Our department  has written numerous posts on recruiting, managing, and retaining Millenials.

If your company is already implementing such a program, you can nominate it for AWLP’s Work-Life Innovative Excellence Award – nominations are being accepted until November 15, 2008. If you think your company could do better, take AWLP’s self-audit, help you identify ways in which you can help your workplace balance the work-life dynamic and enjoy all of the benefits of an engaged workforce.

For more information on Work-Life balance, Alternative Work Schedules, the pros and cons, and implementation please read:

1. Feds Take a Cue from the States and Consider the 4-Day Workweek
2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
3. Positive Benefits of a Four-Day Work Week
4. 5 Steps Toward a More Flexible Workplace
5. Should a Four-Day Work Week Be Mandatory*
6. It's Saturday Today in Utah: 4 Day Work Week
7. Alternatives to the Four Day Work Week
8. Popularity of the 4-day Week Continues to Grow
9. Will Four-Day School Week Push the Four-Day Work Week Trend?
10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
11. Alternative Work Arrangement May Soon Become Mandatory
12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
13. How the Current Economy Could Affect the Future of Flextime
14. New Employer & Workplace Study on Flexible Schedules
15. The Pros and Cons of a 4-Day Workweek: Cons
16. New Survey on Workplace Lateness Supports Flextime Initiatives?

In a prior post, Senator Biden on Work-Life Issues, I wrote on Biden’s stand on work-life issues. What about other matters of interest to Delaware employers? Is his possible ascension to the Vice Presidential role a good or bad thing for Delaware employers?

Friend or Foe?

It should come as no surprise that Biden has taken the “employee”-side on several important pieces of pending employment legislation. Biden supported the Paycheck Fairness Act (S. 766), which is intended to prevent pay discrimination by strengthening penalties should it occur. Biden’s support for the Fair Pay Restoration Act (S. 1843), should also be no surprise. The Fair Pay Restoration Act seeks to address the 2007 U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber.

In the Ledbetter decision, the Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination (300 days under Delaware’s statute), even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid. If this Act is passed, employers could be exposed to lawsuits based on decisions made decades ago.

Biden also supported amendments to the Americans with Disabilities Act (ADA) (S. 3406), which has been placed on the Senate’s legislative calendar. The Act promotes changes to the ADA which purport to override several U.S. Supreme Court decisions which apply a strict standard for individuals to meet in order to show that they are disabled or regarded as being disabled under the ADA. The Obama-Biden platform includes goals of appointing judges who respect laws designed to protect people with disabilities, increasing funding for enforcement, and garnering support for the Genetic Information Nondiscrimination Act (S. 358). However, Delaware has long protected against discrimination on the basis of genetic information, so passage of GINA would not mean anything new for Delaware employers.

Finally, Biden is a co-sponsor of the Employee Free Choice Act (S. 1041). If passed, that act would enable workers to form unions when a majority sign union authorization cards, establish mediation and binding arbitration when the employers and workers cannot agree on a first contract, and strengthen penalties for companies the coerce or intimidate workers.

Bank on Biden?

At the same time Biden has taken “pro-employee” stances on employment legislation, he has put his full weight behind, and achieved great success on behalf of, at least two significant segments of Delaware employers: banks and the legal system. He supported the 2005 bankruptcy reform law, which made it harder for consumers to rid themselves of debt, but benefited banks such as MBNA (since acquired by Bank of America).

Also as part of the 2005 law, the U.S. Bankruptcy Court for the District of Delaware got four new judges. Once the new judges were assigned, Delaware regained its top position for bankruptcy filings, with nearly 80% of companies seeking bankruptcy protection filing in Delaware in 2007. Biden has thus endeared himself to Delaware’s legal employers, by ensuring Delaware’s prominence in the bankruptcy field.

Joe – We Hardly Knew Ye

So what will it mean if Biden moves from his leadership position in the U.S. Senate to one in the executive office? As Vice President, Biden would also become the President of the U.S. Senate. As President of the Senate he has the primary duty to cast a vote in the event of a Senate deadlock. However, his constituency has changed from Delaware, to the entire nation.

One would expect Biden to use his vote to support Obama’s platform, not Delaware’s interests. Obama has strongly criticized the bankruptcy reform act, and has taken aim at the same financial services industries Biden has supported. Even if Biden were inclined to support Delaware’s interests, there is a strong convention within the U.S. Senate that the Vice President should not use his position as President of the Senate to influence the passage of legislation or act in a partisan manner, except in the case of breaking tie votes. For these reasons, Biden is unlikely to use his position to advocate for Delaware employers, as in the past.

America's workforce cares very deeply about the work-life positions of political candidates.  Shortly after Delaware's incumbent senator was named Democratic VP-nominee, I posted on Joe Biden’s track record on work-life issues affecting employers. And now that the Republican candidate has been announced, what does Sarah Palin, Biden’s republican counterpart, have to say?

We know that, like Biden, her personal life has forced her to experience first-hand work-life balance struggles. Some might say she’s managed the ultimate juggler, rising to governor, and potential Vice President, all while simultaneously raising a family of five, including an infant with Downs’ Syndrome. The Wall Street Journal noted that she’s “been portrayed as the very model of a working mother: She answers her BlackBerry while pumping breast milk for her infant; keeps a playpen by her desk; and manages a state while cooking caribou hot dogs for her family.”

But not all reports have portrayed her in such a positive light. Many have questioned her choices for returning back to work 3 days’ after the birth of her youngest. That scrutiny has only intensified following the reports that Palin’s 17-year old daughter is 5 months’ pregnant. There has been much questioning of whether she’s balancing her government and family duties well, in light of the recent news she’s soon to be a grandmother. Interestingly, Biden has been widely hailed as the ultimate family man for making some very similar choices: to continue his political career in spite of family struggles and tragedies.

Beyond her personal life, however, little can be found on her position on relevant issues or pending legislation. As reported by the Wall Street Journal blog, “The Juggle,”  Palin's official Web site offers little information on her position on work-life balance issues, nor did an issues statement compiled during her gubernatorial campaign by the Anchorage Daily News.

An Associated Press article noted Democratic presidential candidate Sen. Barack Obama’s statement that Ms. Palin, like Mr. McCain, opposes the Fair Pay Restoration Act (Senate version of the House Bill known as Ledbetter Fair Pay Act).  That failed Senate bill would have reversed a Supreme Court ruling that a woman had only 180 days to file a formal complaint of gender-based wage discrimination. The McCain campaign told the AP that Mr. McCain and Ms. Palin support equal pay for women but want the 180-day filing period to remain in place.

As her role in the campaign evolves, I’ll be listening carefully to hear her position on other work-life issues such as: extended and/or paid FMLA leave, the EEOC’s Guidance on Caregiver Discrimination, and flexible leave polices, for starters.

Delaware is all a-frenzy with the announcement of our very own Senator Joe Biden as the presumptive Democratic nominee for vice president. If you’ve seen The News Journal over the several days, you’ve seen the almost front-to-back coverage of Joe. With Barack Obama still fighting to win over many Hillary Clinton’s women supporters, there’s been considerable focus in the media already as to Joe Biden’s record on women’s and work-life balance issues.

We’ve previously posted on Barack Obama’s position on women’s and work-life balance issues. What kind of work-and-family experience has Joe Biden had, both in his personal life and as a policy maker?

The Wall Street Journal’s blog “The Juggle” noted Biden’s personal family tragedy: the 1972 car accident which killed his wife and infant daughter and left his two sons badly injured. To care for them while continuing his political career, he commuted daily by train between Wilmington, Del., and Washington, never securing a Washington residence.

As Chair of the Senate Judiciary Committee in 1991, some alleged that he was too easy on Supreme Court nominee Clarence Thomas and too hard on Anita Hill, a former co-worker of Thomas' who had accused the federal judge of sexual harassment. Some even maintain that "he very self-consciously tried to shore up his support from women voters after the Anita Hill episode."

Although Biden is perhaps best known for his focus on foreign policy, he has also had a hand in legislation targeting work-and-family issues. According to a cached version of Biden’s senatorial campaign Website (which since this weekend has automatically referred visitors to the Obama-Biden campaign site), the Senator is a co-sponsor of the Healthy Families Act, which would require employers with more than 15 employees to offer seven paid sick days a year. In the 1990s, he was the primary sponsor of the Violence Against Women Act and supported the Family and Medical Leave Act, which guarantees workers up to 12 weeks of unpaid leave to care for a family member.

Working families, especially women who work outside the home, want to know what the presidential candidates have on their respective agendas that will affect the workplace.  Barack Obama has begun to address some of the employment-related portions of his campaign platform.

On July 28, 2008, Barack Obama unveiled the blueprint for his Plan to Support Working Women and Families. In it, Barack promises many changes to improve the lives of working women in America – among them include:

• Expand FMLA coverage to cover employers with 25 or more employees (currently it only covers employers with 50 or more employees) and to cover additional purposes including participation in children’s school-related activities
• Encourage states to adopt paid leave with fund to assist states with start-up costs
• Protect against caregiver discrimination by enforcing the recently enacted guidelines on Caregiver Discrimination
• Expand flexible work arrangements with the federal government leading by example on flexible work arrangements and telecommuting.

If Barack wins the presidency, it will be interesting to see how many of these agenda items he follows through with. Obviously, it could mean big changes for American employers. Stay tuned!

Courts continue to expand what is protected under the Pregnancy Discrimination Act (PDA). The Third Circuit Court of Appeals, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, recently ruled that abortion is an activity protected by the PDA. Then, on Wednesday, the Seventh Circuit Court of Appeals ruled that in vitro fertilization (IVF) treatments were also covered under the Act.

The lower court had ruled that in vitro fertility treatments were not covered under the PDA on the ground that infertility affects both men and women. On July 16, the Appeals Court overturned that decision. The Appeals Court ruled that the plaintiff's in vitro fertilization — like many fertility treatments — was gender-specific because it was related to childbearing, which affects only women.
“Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women,” the ruling said.

Facts of the Case
The plaintiff took a leave of absence for IVF, a complicated procedure wherein eggs are extracted, fertilized and then surgically implanted in the womb.

She took one three-week leave of absence for the procedure and then applied for another three-week leave after learning that the first in vitro was unsuccessful. Meanwhile, the company had been reorganizing and decided to eliminate a sales secretary position: hers.

Her supervisor told her that termination was in her own best interest due to her “health condition,” according to the Seventh Circuit decision. He had consulted with an employee relations manager over eliminating the position, who took note of the plaintiff’s “absenteeism — fertility treatments.”
The employer argued that a regional sales manager unaware of the in vitro treatment had made the decision to eliminate the plaintiff’s position in favor of keeping the other, more qualified sales secretary.

Protection Under Other Federal Employment Laws

Fertility treatments may also be covered under the ADA and the FMLA. The U.S. Supreme Court has held that inability to procreate is a “major life activity,” therefore treatment to combat infertility is most likely protected and you must “accommodate” the employee as you would any other qualifying disability (such as cancer). Also, fertility treatments probably qualify as a “serious health condition” under the FMLA.

Bottom Line

This case continues to expand the definition of “pregnancy and related medical conditions” under the PDA. Given the likely coverage of fertility treatments by a number of federal laws, tread carefully when making employment decisions related to employees undergoing such treatments.

In addition, the facts serve to remind us of some basic employment law tenets:

(1) Focus on the performance, not the reason - there is no reason anyone (an HR person, no less!) needed to note “fertility treatments” in documentation related to performance;

(2) A “downsizing of one” is always tough to defend – if a termination is due to performance, make it about performance and make sure you have the documentation to support it; don’t call it a “downsizing” when only one person is affected;  and

(3) Beware of “benevolent intent” – many managers get into hot water making employment decisions based on their opinion of “what is best” for the employee. Remember the decision about “what is best” should be made only by the employee.