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Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination. 

When Does Workplace Caregiver Discrimination Violate US Employment Laws? 

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera). 

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff. 

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes. 

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws. 

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures. 

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation. 

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws. 

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to: 

  • promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations. 
  • hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan. 
  • include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties. 

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes. 

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner. 

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status 

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers. 

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency. 

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases. 

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document. 

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Discrimination Based on Hair?: The CROWN Act 

July 5, 2022

Crown Act passes US House of Representatives

On March 18, 2022, the US house of representatives passed the CROWN ACT banning “discrimination based on an individual’s texture or style of hair.” The bill, first introduced to the house in 2021 by Representative Bonnie Watson Coleman, was passed in a vote of 235-189. It currently is being read in the US Senate.

While this is the first time the bill is getting approval at the federal level, it has already made its way into state legislation across several states in the US. In 2019, California became the first state to pass the CROWN ACT into law by a unanimous vote. Twelve other states, including New York, Washington, Nebraska, Delaware, Oregon, and Colorado, would eventually follow suit between 2019 and 2021. Here in Georgia, the CROWN ACT is not yet law.

What Is the Crown Act as Relates to Discrimination Based on Hair?

The CROWN ACT stands for Creating a Respectful and Open World for Natural Hair. According to the bill, “Routinely, people of African descent are deprived of educational and employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locks, cornrows, twists, braids, Bantu knots, or Afros.”

Black people have often faced racial discrimination across corporate America because of how they groom their natural hair. According to one study, employers perceive black women with natural hairstyles as less competent and professional (and less likely to be recommended for job interviews) than black or white women with straight hairstyles. In 2016, Sabrina Chiodo, assistant manager at Jack Astor’s Bar and Grill, sent home 20-year old Akua Agyemfra for wearing her hair in a bun (contrary to restaurant policy that all female staff wear their hair down). Elsewhere, in Louisiana, Imani Jackson lost her job at American Screening LLC within a month of wearing her natural hair in a bun instead of the wig she had worn during her interview and her first month working at the company. But it’s not only African-American women that suffer from racial discrimination because of their hair. In 2018, Andrew Johnson, a black high school wrestler, was told by a referee to cut his dreadlocks or forfeit a wrestling match. It is cases like these that the CROWN ACT seeks to address and outlaw. 

What Are the Effects of the CROWN ACT on Discrimination?

The CROWN ACT prohibits racial discrimination based on a person’s hair. This discrimination is often unspoken in US workplaces but ladened in employee handbooks that specify company policy. As such, the CROWN ACT would be a significant step to enabling a more diversified and inclusive corporate America. In the wake of the CROWN ACT, more companies will adopt new policies that allow women of color to groom their natural hair the way they deem fit without discrimination. Also, before the CROWN ACT, cases of race-based hair discrimination that have made it to US courts have failed to yield substantial results. For instance, in 2014, US District Court Judge Charles R. Butler Jr dismissed a race-based hair discrimination case involving Chastity Jones and Catastrophe Management Systems.  In 2016, a three-judge panel of the 11th Circuit Court of Appeals upheld the district court’s decision and further attempts to get the US Supreme Court to intervene failed to yield results. 

However, if the US Senate passes the CROWN ACT into law, it would provide the necessary legal protection for victims of race-based hair discrimination, especially since there’s currently no other federal legislation in the US that protects people of color from stigmatization because of their hair. 

Furthermore, since its inception in California in 2019, the CROWN ACT has created awareness and kick-started healthy conversations about racial discrimination based on a person’s hair. These conversations will only become more mainstream once the bill becomes federal law. 

Conclusion

Workplace discrimination based on hair is more common than we realize for people of color. The stigma behind natural hair for black people has often deprived them of educational and employment opportunities. However, the narrative should change once the CROWN ACT becomes federal law. If you’re a black person in the US facing race-based hair discrimination at your workplace or school, hiring legal help is the best course of action to protect your rights.

Or, if you are an employer seeking to create an inclusive dress policy or dress code with specifications about hair, contact us.If you want to review your company’s policy surrounding natural hair in the wake of the CROWN ACT, our expert team of lawyers can also assist you throughout the process and ensure there are no grey areas that could get you into a potential lawsuit.

At the Law Office of Sheri Oluyemi, we have the best legal hands in US employment law to handle workplace discrimination. Reach out to us today; let’s look at your case and begin proceedings to get you justice.

Storm Surges and Flash Flooding: A Few Employment Law Issues During Natural Disasters

September 17, 2018

You are an employer with a a goal set of each hour, day, week, month, quarter and year, maybe 5, 10, 50 years. But natural disasters such as hurricanes do not respect your goals; they are unpredictable and disruptive even to the most efficient workplaces. To minimize the havoc wreaked on your business by the strong storm, a well drafted human resource policy on issues relevant to bad weather is critical. This article addresses two key considerations to remain compliant with the law and to get back to business as soon as possible.

Wage and Hour

A natural disaster often forces a halt in business operations. However, the Federal Labor Standards Act (FLSA) does not relax or waive its rules during such a period. It requires employers to pay salaried exempt employees during a such a business closure if the employee worked at all during the relevant work week, no matter how briefly. To alleviate the cost to employers, the FLSA permits the employer to require employees to use their accrued and unused paid time off (PTO) during the shutdown. Non-exempt hourly employees on the other hand, may be paid for only the hours actually worked during a business shut down. The FLSA also expects that accurate records of employees’ time worked be persevered in a hurricane-proof format and continue to be kept as employees work through the event.

Employers should prepare clear policies governing this issue well in advance of having to apply its rules

Occupational Safety and Health

The Occupational Safety and Health Act requires employers to provide a safe workplace for their employees. Thus, employers must carefully assess the work space during and after natural disasters to ensure that buildings are structurally sound, hazardous materials are not exposed, amenities such a washrooms, air heating and cooling, first aid are fully functional, electrical wires are not damaged or exposed, mosquitoes and other pathogens are under control, among several other considerations.

OSHA permits employees to refuse dangerous work and to report dangerous working conditions. Dangerous conditions must be reported within thirty (30) days of its discovery and can be made via the OSHA website or over the telephone. Likewise an employee refusing dangerous work must do so promptly, and because OSHA does not recommend abandoning the worksite, the employee must work with management to address her concerns. 

Once again, clear policies on the issue drafted and provided to employees and managers in advance of a natural disaster is preferred.

At-Will Employee Cried “Breach of Contract”

March 20, 2017

The United States District Court for the Northern District of Georgia released a decision on March 20, 2017 declaring: “even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory”.

In Georgia, employees are hired “at-will” meaning that they can be terminated or fired without cause and without notice. At-will employees are protected from termination only when they are being terminated for reasons that are prohibited under other laws (such as that which would contravene Title VII of the Civil Rights Act or the Georgia Whistleblowers Act, etc.).

In Jamie Anthony et al v. Concrete Supply Company, the Plaintiffs were employed by CSC to haul sand, rocks, gravel and dirt to its customers. The Plaintiffs alleged that the employer breached their contract when contrary to representations made in pay stubs and the company handbook which promised that they would be paid 27% of the revenue generated from each haul, the employer in fact paid them 27% of a lesser amount, among other claims. The employer moved to dismiss the complaint for several reasons including the allegation that at-will employees are not entitled to the breach of contract cause of action in the absence of a written employment agreement.

The Court disagreed with the employer, ultimately denying its motion to dismiss the complaint. In part, the Court based its reasoning on the following tenets of employment law in Georgia:

“the employment relationship is contractual in nature, whether the contract is express or implied, oral or written.”

“courts are rightly loathe to find […] that no contract existed between the employer and employee.”

“nothing about the contractual nature of the employment relationship transforms it into anything other than an at-will relationship terminable at will by either party.”

“even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory.”

The significance of this decision is rooted in the conclusion that not only independent contractors have access to the breach of contract claim, rather, even at-will employees, who seemingly in Georgia employment law are of all men most miserable, do in fact have access to this claim.

Newest on Whistleblower Protection

March 9, 2017


 

Plaintiffs seeking protection under the anti-retaliation provisions of the Georgia Whistleblowers Act (“GWA”) will applaud the Georgia Court of Appeals’ recent decision in West v City of Albany wherein it removed a fatal procedural obstacle. 

In this case, Ms. West claimed damages, attorney fees and litigation costs against the City for its decision to terminate her employment when she reported what was deemed to be financial irregularities in the City’s utility department. The City responded with a motion of dismiss the claim due to West’s failure to provide pre-litigation notice (known in latin as “ante litem notice”) six (6) months prior to filing her claim in Court and after the discovery of the adverse employment decision, as is required by the municipal ante litem notice statute. The Court reviewed the specific text of the GWA and concluded mainly that retaliation under the GWA is defined as an intentional act while the municipal ante litem notice statute specifically pertains to negligent acts; therefore, the six (6) month notice period does NOT apply to claims made pursuant to the GWA. 

The GWA is a powerful statute in that it creates a wrongful termination cause of action, even in the employment “at-will” state of Georgia, it waives sovereign immunity for municipalities such as the City in this case and, as the Court concluded: it establises a statute of limitations of up to three (3) years for a negligence claim that would otherwise provide only one (1) year. The Court would not have these powers truncated by ante litem requirements.

This decision, issued on March 6, 2017, highlights once again the importance of timely claims. If you have a legal issue, it probably has timeliness considerations in tow; therefore, speak to legal counsel sooner rather than later in order to preserve your rights!

S.O.

Welcome!

March 8, 2017

“Employment…is the institution through which most of us secure much of our self-respect and self-esteem.” – Chief Justice Dickson, Supreme Court of Canada, 1980

I have always been fascinated by employment law because it exists at the intersection of the most intimate of personal beliefs, goals and ambitions while at the very same time bearing heavily on business realities, facts and legislative mandates. This fascination has birthed a deep respect for my clients both management-side and employee-side when they contact me with a dispute. I understand that, at that moment, it is the utmost priority.

Launching this Firm enables me to put my education, experiences, and expertise to your service in resolving disputes without compromising your dignity or business interests, every day. You have my undivided attention. It is a privilege.

Let’s get started. 

S.O.