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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.

It’s Not What It Looks Like: Retaliation 101

July 31, 2019

With the inclusion of anti-retaliation provisions, Congress protected the rights granted in several employment related statues. An anti-retaliation provision prohibits any adverse employment action taken against an employee because that employee either opposed a practice prohibited by law or participated in the enforcement of a right provided by law. Some statutes provide both “opposition” and “participation” protections such as the Americans with Disabilities Act (ADA) 42 U.S.C. § 12203(a), 42 U.S.C § 1981, USERRA 38 USC § 4311(b), American Discrimination in Employment Act (ADEA), Federal Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. Some statutes include only a “participation” protection such as the Family Medical Leave Act 29 U.S.C. § 2615(a)(1)-(2).

To prove retaliation, an employee can either present overt (also known as direct) evidence of the employer’s intent to retaliate. Or, the employee can provide circumstantial (also known as indirect) evidence, which can then be rebutted by the employer. In order to establish the basis or “prima facie” circumstances, an employee must prove the following: (1) that she engaged in statutorily protected conduct, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two.

The ADEA, ADA, FMLA and Title VII require a “but for” causal connection not just the lesser “motivating factor”. For FMLA claims, the employee must first prove that he was eligible and entitled to FMLA leave before proving the remaining parts of the prima facie case.

Once the employee has established a prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the employee to demonstrate that the employer’s proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.

An “adverse employment action” is any type of action that would have made a reasonable employee reluctant oppose the practice or participate in the enforcement of the law. Adverse actions take many forms. These include, but are not limited to, termination of employment, demotion, failure to hire or rehire, failure to promote, reduction or denial of benefits, etc. While valid business decisions will necessarily require some of these adverse actions, the employer must demonstrate that its reasons are indeed valid and not pretext for retaliation.

The devil is really in the details when it comes to pretext. Some of the most common tell-tale signs are: suspicious timing, inconsistent reasons, comments that call stated reason into question, conflicting evidence such as citing poor performance but having no record of discipline, among others.

Remedies available to an employee who is successful on a claim of retaliation would be entitled to extensive damages.

Perilous Pitfalls of Performance Appraisals

December 31, 2018

John Doe is a manager who attempts to be efficient at his job. He understands that personnel management requires a certain diplomacy and finesse. But when he speaks to in-house counsel Jane Smith about a recent EEOC charge filed against their company she is quick to give him several rigid rules to avoid the perilous pitfalls of performance appraisals:

  1. If it’s bad, say so

A performance appraisal is immediately evidence in an employment law case. Thus, whenever, and I mean each and every time that a performance appraisal is being conducted, managers must give their honest assessment. If performance is bad, then managers must make that clear in writing during the appraisal. This writing should state the standard to be attained, should delineate how the employee has failed to meet the requisite standard and lastly, what the employee must do to cure the error.

For instance, during unemployment insurance benefit appeals before the Georgia Department of Labor, where misconduct is alleged, the evaluations if done properly could demonstrate that the employee was aware of the standard to be met, did not meet the standard, was given an opportunity to cure the deficiency and did not do so. 

2. Don’t ignore a litigation hold notice 

A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Performance appraisals are frequently relevant in wrongful termination cases, especially those cases in which the employer alleges poor performance as the non-discriminatory or non-retaliatory reason for termination of employment. These evaluations are thus frequently the subject of discovery requests. Medical records are another class of usually relevant documents especially in a disability discrimination case. Several types of documents fit the bill depending on the issues raised in the suit.

Once an employer receives notice of a potential legal claim, it does have a duty to preserve the relevant documents, failing to do so could trigger an adverse inference that the documents would have favored the employee. Also, sanctions could be levied against the employer and its legal counsel. 

3. Educate managers to apply objective standards uniformly

Performance appraisals are generally governed by employer policies; there are no federal or state laws determining how or when a performance appraisal must be conducted. However, there are laws implicated by the manner in which employers carry out performance appraisals. For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, national origin, sex, etc., the Age Discrimination in Employment Act prohibits discrimination on the basis of age, the Americans with Disabilities Act prohibits discrimination on the basis of a real or perceived disability. Each of these laws could be violated if the employer scores the employee negatively because of one or more of these protected categories.

All told, employers need good counsel to create performance appraisal templates, to educate supervisors and managers on its use and to maintain compliance in the event of a dispute.

10 Steps to FMLA Compliance

October 26, 2018

         Employer requirements for the Family Medical Leave Act (FMLA) may seem straightforward, but managing them, including keeping up with current government regulations and handling all the necessary administration is challenging and overwhelming. The FMLA is filled with legal implications that companies must completely understand. The paperwork alone can be overwhelming for the human resources and benefits departments. Moreover, federal and state laws often overlap, which further complicates the administration of the FMLA. A company that fails to comply with the FMLA subjects itself to costly litigation. Furthermore, there have been cases in which a direct supervisor was personally sued by an employee for failing to comply with FMLA laws. 

         Therefore, it is important to have the knowledge and resources to monitor and understand the applicable laws to ensure that the company is in compliance with the FMLA. The following ten best practices will help your company ensure compliance with the FMLA.

1.   Stay updated on the laws.If a company operates in more than one state, the company must ensure that in addition to being in compliance with the federal version of the FMLA, the company must also be in compliance with the state law version of the FMLA.

2.   Establish FMLA procedures and consistently apply them.One of the biggest mistakes companies make is delegate several people within the company to administer the company’s family medical leave practices. Therefore, ongoing training and having specific procedures in place for how your company will manage the FMLA can help alleviate these issues. 

3.   Require medical certification from the health care provider to validate that the leave is necessary. Under the FMLA laws, employers have the right to require that the employee secure a medical certification. Employers must allow employees at least 15 days to obtain the proper medical certification and provide it to the employer. Without a completed medical certificate, FMLA requested leave can be denied.

4.   Document everything.Every interaction, including every telephone call with the employee who is out on leave should be documented. This practice reduces confusion as to policies and sets forth what information has been shared with the employee.

5.   Educate management.The company supervisors must understand their role when one of their employees’ requests leave under the FMLA. Companies should also consider “just in time knowledge.” This just in time practice requires that supervisors immediately notify the benefits manager when an employee requests FMLA. 

6.   Consider allowing supervisors to directly communicate with employees while they are on leave.Allowing a supervisor to reach out to an employee who is out on FMLA has huge benefits. For example, it builds morale as this practice demonstrates that the manger cares about the well being of the employee and their situation. Consequently, this sets up the employee to feel good about returning to work. 

7.   Gather the stakeholders. The company is responsible for following FMLA laws. Although the responsibility primarily falls within the duties of the human resources and legal teams, payroll, finance and benefits also have an important role and all of these teams should meet periodically to assess how the program is being administered. 

8.   Review your company’s leave policies regularly. At least once per year, the company needs to review their policies and the relevant paperwork associated with the administration of the FMLA. 

9.   Maintain confidentiality. It is illegal for employers to share any information about the employee’s medical condition. 

10. Consider outsourcing. An outside firm can assist your company determine employee eligibility and to review the associated paperwork.

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.