Thursday, February 26, 2015

Is Non-Pregnancy a BFOQ for Exotic Dancers?

Well, here's a sentence I never thought I'd read in a court opinion: "[T]here is a genuine issue of fact as to whether a dancer's pregnancy-status is sufficiently related to her sex appeal." Berry v. Great Am. Dream Inc., No. 1:13-CV-3297-TWT, 2015 WL 751650, at *2 (N.D. Ga. Feb. 23, 2015).

An "adult entertainment" facility fired a pregnant exotic dancer, who filed a discrimination claim under Title VII and the Pregnancy Discrimination Act amendments. The defendant argued that "sex appeal" was a bona fide occupation qualification (BFOQ), a defense to such claims, in a summary judgment motion.

Technically, a particular sex would be the BFOQ, not sex appeal. But, as the Court recognized: "although 'sex appeal' may not be a BFOQ, it may be a particular job requirement whose connection to a dancer's pregnancy-status renders the latter to be a BFOQ.

The employer ran into some problems with factual disputes (the enemy of any summary judgment motion). Apparently, some dancers were allowed to keep dancing (albeit on the floor instead of the stage) even after they became pregnant. There was testimony that one dancer continued until she was 8 months pregnant. Management testified that some customers preferred "thicker" bodies (I'm not sure "thicker" and "pregnant" are really synonymous . . . but the Court at least mentions the "thicker" comments).

Summary judgment DENIED! However, "sex appeal" may still serve as the employer's legitimate non-discriminatory reason for terminating the dancer, and I'm guessing they'll raise that argument soon.

Tuesday, February 24, 2015

New DOL Regs for Same-Sex "Spouse" Under FMLA

Tomorrow, the Department of Labor will publish a Final Rule to Revise the Definition of “Spouse” Under the FMLA (including links to additional information). Per the DOL, the "major features" are:

  • The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. 
  • The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.
Of course, this may become irrelevant in the not-too-distant future if the Supreme Court recognizes a right to same-sex marriage across all 50 states.


Thursday, February 19, 2015

How do pension payments affect Unemployment Compensation?

The bad news is that you were involuntarily terminated from your job through no fault of your own. But, the good news is that you're probably eligible for unemployment compensation benefits. Better yet, you're also eligible for a pension plan. But wait! Do the pension payments impact your UC benefits?

Pennsylvania has a statute directly on point. The short version is that the pension payments are generally deducted from your UC benefits but with a few exceptions. Here's DLI's guidance on the issue:
When filing for unemployment compensation (UC) benefits, you are required to report all pensions, including retirement, retired pay, annuities or other similar periodic payments and lump-sum pension payments. Pension and retirement payments are deducted from UC benefits if a base year employer maintained or contributed to the pension plan and if the base year employment affected your eligibility for, or increased the amount of, the pension. If the base year employer alone contributed to the pension, 100 percent of the prorated, weekly amount of the pension is deductible. If you contributed in any amount to the pension, 50 percent of the prorated, weekly pension amount is deductible. Pensions are deductible from weekly benefits on a dollar-for-dollar basis. The partial benefit credit is not applicable. 
A lump-sum pension payment is not deducted from UC, unless you had the option of taking a monthly pension. In addition, a lump-sum pension is not deductible if you "roll over" the lump sum into an eligible retirement plan such as an Individual Retirement Account (IRA) within 60 days of receipt. 
Social Security and Railroad Retirement pensions are not deducted from UC benefit payments
You can also check out the statute 43 P.S. § 804 and the regulations. Of course, if you want actual legal advice on your particular situation, contact a lawyer to assist you.

Monday, February 16, 2015

Third Circuit Okays Employee-to-Independent Contractor Release of Claims

The Third Circuit issued its opinion in EEOC v. Allstate Insurance Company on Friday.

Allstate changed its business model, effectively making its agents independent contractors instead of employees. So, technically, Allstate had to fire the employees. It then gave the terminated agents a choice: stay on as an agent but sign an independent contractor agreement; or choose from a few different severance agreements. The independent contractor "conversion" agreements included a release of any claims the no-longer-employee-agents had at the time.

The EEOC filed suit seeking to invalidate the agreements. The EEOC advanced two primary arguments. First, the agents did not receive adequate consideration because all they really got was an "opportunity to continue their Allstate careers." The Court rejected that argument, noting that the agents were not entitled to continue on as independent contractors, and that they chose the independent contractor agreements over severance packages that clearly included consideration (fairly substantial monetary value). In other words, they received something of significant value that they were not entitled to in exchange for signing the release.

The EEOC's second argument was that the employees who refused to sign the release were not allowed to continue their careers (in my words, not theirs: they were effectively fired for refusing to sign). The Court rejected this argument because the "inaction" of not signing a general release (encompassing claims beyond discrimination) was not protected activity. "[S]uch inaction does not communicate opposition sufficiently specific to qualify as protected employee activity"

Furthermore, the employees were all terminated regardless of whether they signed or not, so there was no causal connection. Further still, "the terminated agents were not entitled to convert to independent contractor status . . . . And the Commission has cited no legal authority for the proposition that an employer commits an adverse action by denying an employee an unearned benefit on the basis of the employee’s refusal to sign a release."

The Third Circuit affirmed the District Court's entry of judgment in favor of Allstate.

Endnote: Perhaps I'm reading too much into the decision, but in rejecting the EEOC's consideration argument the Court notes: "The agents were entitled to neither continued employment (because they were at-will employees under the R830 and R1500 contracts) nor severance pay." (emphasis added). Does that open the door to enforceable releases based on nothing more than continued employment? I haven't specifically researched the issue, but the Court's statement has piqued my interest.

Tuesday, February 10, 2015

The Supreme Court and the Men Who Lactate

How's that for a title? You can imagine my surprise when I saw a tweet:
How in the world did I miss that!? A friend also emailed me a similar story: Breast-Feeding Mom Loses Discrimination Case Because Men Can Lactate Too. There's some tiny little smidgen of truth to the stories, buried under a mountain of . . . I'll call it "questionable journalism."

We'll start with the tiny bit of truth. In Ames v. Nationwide, the district court noted in a footnote that:
A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered . . . .  Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.
The point being that lactation is not necessarily a "pregnancy-related condition" protected by the Pregnancy Discrimination Act - the plaintiff must provide evidence to establish that. This is not the same as holding that "firing a woman for breastfeeding isn’t sexist because men can lactate." More importantly, the plaintiff lost for entirely different reasons.

Despite the headline, the employer did not fire her. She resigned! She tried to argue constructive discharge, but the Court held:
Ames did not follow known internal grievance procedures to lodge her complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and surmised that her only reasonable option was to tender her resignation. Under existing law, Ames cannot prevail on her constructive discharge claim.
Well, that's just plain more boring than "firing a woman for breastfeeding isn’t sexist because men can lactate." And then there's this problem - the Court also found that the employer did not treat her in a discriminatory manner:
Providing a letter explaining the procedure for obtaining access to a lactation room is not an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead. Hallberg also sent an email requesting that Ames’s request for access to a lactation room be expedited. The Court cannot agree that these actions exhibit any of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.
Well, that's not gonna generate page clicks.

What happened on appeal? Well the Slate article claims that:"the Supreme Court . . . uph[eld] a federal appeals court ruling against a breast-feeding mother . . . . Part of the court's reasoning was, according to Galen Sherwin of the American Civil Liberties Union, 'that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.'"

Yeah, except that the Eighth Circuit did not address the male lactation issue at all. Not even a little. No mention whatsoever. Instead, the Eighth Circuit upheld the district court's decision that the employee was not constructively discharged.

And the Supreme Court? The Supreme Court decided not to hear an appeal from the Eighth Circuit. That means it did not in any way rule on the Eighth Circuit decision, which itself did not in any way address male lactation.

Occasionally, I wish that the media would spend more time covering employment law. When they take a footnote that is probably dicta from a trial court opinion and fabricate a Supreme Court ruling from it, I rethink that position. Although, we did learn something . . . men can lactate! . . . oh, and if you want to sue your employer for discrimination, don't resign unless you really have to.

End note: I should note that Donna Ballman was not the author of the article she tweeted, she was merely passing along coverage of this case to her Twitter followers. She provides her own, excellent coverage of employment law issues on her own blog and also on AOL Jobs.

Monday, February 9, 2015

New Chart: EEOC Charges vs. Unemployment Rate

First things first. The EEOC released its updated charge statistics through 2014. Behold, the updated EEOC charge statistics chart (click to enlarge):

Captain Obvious weighing in: The number of charges decreased in every category on that chart. Although they're not pictured in the chart, the number of retaliation claims also dropped (to 37,955). The only charges that actually increased were GINA charges (to a whopping 333).

On Twitter, I wondered aloud, "I'd like to see statistical regression analysis comparing EEOC charges to economic indicators. I bet there are some strong correlations." Well guess what? I crunched some numbers and found a pretty strong correlation.

I used the total charges per year as reported by the EEOC (linked above), and the unemployment rate from January 1 of the following year as reported by the Bureau of Labor Statistics (i.e. I used the unemployment rate on January 1, 2015 as the unemployment rate for 2014 - we could quibble about whether a mid-year or aggregate rate would be better, but I only have so much time to devote to a blog post, ya know?).

The results? Excel calculated a correlation of 0.895379655 (0.0 being no correlation and 1.0 being a perfect correlation - in other words, there exists a pretty darned strong correlation). I charted the numbers here (you can see the correlation easily with the naked eye - but note they are plotted on different scales):

Pretty interesting stuff if you ask me. Raw data below:

Year  Charges Unemployment Rate
1997 80680 4.6
1998 79591 4.3
1999 77444 4
2000 79896 4.2
2001 80840 5.7
2002 84442 5.8
2003 81293 5.7
2004 79432 5.3
2005 75428 4.7
2006 75768 4.6
2007 82792 5
2008 95402 7.8
2009 93277 9.8
2010 99922 9.2
2011 99947 8.3
2012 99412 8
2013 93727 6.6
2014 88778 5.7

Sunday, February 1, 2015

Commerce Clause Over the Past 100 Years

Great news! I started a Vimeo feed! So far it consists of... well, just one video. The video tracks the commerce clause cases that I cover in my employment law course at Penn State.

The first part of the course covers case law demonstrating the early restrictions on the government's power to regulate the employment relationship. Most notably, the "liberty of contract" and Commerce Clause cases. Feel free to enjoy the video in one 25-min. sitting, or break it up by watching it in parts (Part I - Pre-1937 (0:00) Part II - 1937, The "Switch in Time" (7:48) Part III - 1937-Present, Wickard to "Obamacare" (12:15)).


The Past 100 Years of the Commerce Clause from Philip Miles on Vimeo.