Written by Ronda Higgins Thornton on October 23rd, 2011
A recent Sixth Circuit Court of Appeals decision could signal a change in the law that extends federal civil rights and discrimination protection to volunteers. For many years the law has largely excluded these individuals as they do not fit the definition of an employee under the Title VII law. Courts have previously focused on remuneration or compensation as being the key distinction in determining employment status. However, the Court’s recent decision in Bryson v. Middlefield, held that a volunteer firefighter could be considered an employee under the statute. Bryson was a volunteer firefighter and administrative assistant in the Middlefield, Ohio Fire Department. She alleged that she was subjected to unwanted sexual advances and harassment by her supervisor and eventually filed a charge with the EEOC and later filed a civil lawsuit. The District Court dismissed her complaint on the basis that as a volunteer, she was not an employee of the Middlefield Fire Department and thus not covered by Title VII.
Bryson appealed the decision to the Court of Appeals. Rather than rely on compensation alone, the Appellate Court chose to consider other benefits that Bryson received as a volunteer firefighter, such as “worker’s compensation coverage, insurance coverage, gift cards, travel reimbursement, personal use of the Department’s facilities and assets, training, and access to an emergency fund.” The Court of Appeals reversed the District Court’s dismissal and the case will now back to the District Court for a determination as to whether Bryson was actually sexually harassed under Title VII.
This new analysis could significantly broaden the scope of Title VII’s protection of discrimination on the basis of race, gender, national origin, and religion; expanding to potentially include volunteers, interns, graduate students and in some circumstances even prisoners based on the work and compensation conditions present. For more information on the scope of Title VII legislation, please visit EEO Consulations.
Posted in News & Information | No Responses »
Tags: 6th Circuit, Employee, Title VII, Volunteers
Written by Ronda Higgins Thornton on June 22nd, 2011
Like most large corporations, Walmart has a corporate policy that forbids discrimination on the basis of sex, race, age, disability and national origin. However, more than 1.5 million women filed a lawsuit against the employer alleging that its policy of allowing local managers and supervisors to make employment decisions related to hiring, compensation and promotion has led to consistent employment decisions that largely favored men.
This Dukes case is monumental for several reasons. The first being its sheer size. Walmart is the nation’s largest private employer and the Plaintiffs in the case consist of a class of more than 1.5 million women, ranging from hourly workers to company VPs within the company. The women claimed to have strong statistical evidence that supports that claims that men were paid more and promoted more frequently throughout the company. This case has been more than a decade in the making and only seems to continue to grow.
But the case is also monumental because the Supreme Court’s 5-4 ruling on Monday will likely affect future employment law cases. The court stated that because the decisions are made by local management, the Plaintiffs couldn’t allege that there was a uniform policy by Walmart against promoting women. Despite the result, the court seems to indicate that the result. There is a concern that large corporations may be tempted to decentralize policies and allow more employment decisions to be made at the local or supervisory level.
Although the extent is unclear, the Court’s decision could likely affect future class action lawsuits, making it more difficult for plaintiffs to create a class action suit in both employment cases and non-employment cases. The longstanding requirement for a class action suit was that there had to be common questions of law or fact affecting the parties. However, the court’s decision, delivered by Justice Scalia, seems to indicate a higher threshold for establishing a class. While the court has not specifically changed the class action requirement, it has indicated that there must be a “glue” holding the claims of the women together. The effect of this seems to indicate that class members will need to demonstrate that they suffered the same versus a similar injury. If this is the case, smaller class action suits will likely result, where there is more commonality amongst the class members. The Dukes case will likely continue with a significantly smaller class as limited by the Supreme Court’s most recent ruling. How the high court’s decision will affect the result of the Dukes case specifically, the women of Walmart and future class action suits remains to be seen.
Posted in Gender, News & Information | No Responses »
Tags: Class Action, Dukes, sex discrimination, Supreme Court, Walmart
Written by Ronda Higgins Thornton on September 16th, 2010
In July 2009, the Equal Employment for All Act was introduced into the House of Representatives. The bill seeks to prohibit the use of credit reports in making adverse employment decisions against current and prospective employees. In several industries, credit checks have become standard personnel procedures, similar to drug testing and background checks. However, many have argued that unlike, drug and background checks, a person’s credit report has no bearing on the type of employee they will be. However, employers in support of the use of consumer reports, argue that credit reports give an indication into how responsible the employee is and others even say that financial trouble could reveal a propensity for fraud or theft in the workplace.
With foreclosures and unemployment rates at record highs, many Americans have taken a significant hit to their personal credit. Even those with once perfect credit are facing declining credit scores. This bill seeks to prohibit the use of recession damaged credit reports in making employment decisions. Similar laws have been introduced by state legislators across the US. The state of Oregon recently successfully passed a law prohibiting the use of credit reports by employers. However, the Congressional bill, known as H.R. 3149, is being met with significant opposition by the three major credit bureaus, the US Chamber of Commerce and certain interest groups.
On the other side, many argue that there are little to know statistical evidence to support that people living above their means or with a poor credit history are more likely to commit fraud or theft on their company. A TransUnion VP actually admitted during sworn testimony that the company has no statistical evidence that employees with bad credit are more likely to steal or commit fraud in comparison to workers with perfect credit. In addition, many argue that it raises significant privacy concerns and that employers should not have the right to extensive personal information including medical and financial information. There have also been arguments that the use of credit reports in making employment decisions, unfairly and disproportionately impacts minority groups. Perhaps the greatest concern with using consumer reports is their accuracy. The large majority of Americans indicate that their credit report is rarely an accurate assessment of their credit history. Some information is outdated and inaccurately reported and correction is contingent upon the consumer regularly reviewing their report and going through the process for the removal and correction.
The bill, which seeks to amend the Fair Credit Reporting Act, was introduced by Rep. Steve Cohen (D) of Tennessee and co-sponsored by fifty-five legislators and is in the first step of the legislative process. However, it remains one to watch because it could have significant impact on the employment process.
For more information on employment law, please visit EEO Consultations.
Posted in News & Information | 1 Response »
Tags: Credit Report, Credit Score, employment, Equal Employment for All, financial, HR 3149, Job Application, privacy
Written by Ronda Higgins Thornton on May 25th, 2010
Cassandra Smith, a waitress in Roseville, Michigan recently filed a lawsuit alleging weight discrimination by her former employer, the popular Hooters Restaurant chain. According to details of the complaint, she was placed on a 30 day probation period and told that she had to lose weight in order to fit into the company’s extra-small sized uniform. According to Ms. Smith, despite joining a gym and losing 10 pounds, she was discharged via phone by the company’s HR representatives. Ms. Smith was 132 lbs and 5’8” at the time of her dismissal.
While there isn’t a federal law that currently prohibits weight discrimination, some weightdiscrimination lawsuits have been crafted based on disability (obesity or other health related claims) or gender (height/weight standards are discriminatory to a particular sex). Michigan’s Elliot-Larsen Civil Rights Act prohibits both employment and housing discrimination on the basis of weight. Currently Michigan is the only state with a law prohibiting discrimination on the basis of weight. However, there are local ordinances in the following municipalities:
- Santa Cruz, CA prohibits discrimination on the basis of height, weight or physical characteristics
- The District of Columbia prohibits discrimination on the basis of personal appearance
- San Francisco prohibits discrimination on the basis of weight
Did the company make the wrong decision in the wrong state? Quite possibly. Hooters is an Atlanta based corporation with franchises throughout the U.S. The company denies that it has weight restrictions, a weight probation policy and that it terminated Ms. Smith on the basis of her weight. Weight discrimination claims are rare and usually brought by individuals alleging discrimination on the basis of obesity. Ms. Smith is seeking $25,000 in damages from her former employer. Whatever, the outcome, this should be an interesting one to watch.
Posted in News & Information | No Responses »
Tags: Discrimiantion, Hooters, Michigan, Weight
Written by Ronda Higgins Thornton on May 10th, 2010
We are introducing a new Q&A series to share answers to many of the common questions that we regularly receive. One of our most frequent is about lunch and break periods.
There is not a federal law that requires an employer provide lunch or break periods for employees. Although they are not required to do so, many employers offer their employees one or two 5 to 15 minute breaks during the workday. If the employer chooses to offer breaks, federal guidelines require that the employer compensate the employees during the break period. Therefore, employees should be paid as if they are still working if they are on a company approved break. In contrast, employers are never required to pay an employee for lunch periods.
Depending upon the state in which you work, your employer may be required to provide regular meal and break periods. There following states have laws that require meal breaks ranging from 20 minutes to up to an hour and usually require the employee to work a minimum of 5 consecutive hours before being entitled to a lunch: California, Colorado, Connecticut, Delaware, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Rhode Island, Vermont, Washington, West Virginia, Guam and Puerto Rico. The rules for how long and when a meal period can be taken vary by sate. Also keep in mind that that each state may have exemptions for various industries. For instance, Illinois has an exhaustive law that provides for two 15-minute paid rest breaks and one 30 minute meal period for each workday and requires that employers provide a clean and comfortable area equipped with seating, tables and free clean drinking water for employees. However, the statute only applies to individuals working within the hotel industry in a county with a population greater than three million.
Each state is different, and you should consult a qualified attorney on the laws in your jurisdiction. Even if you reside in a state with no statutory protections, an attorney may be able assist you further if you are a member of a union, under a collective bargaining agreement or an employment contract.
If you have a question that you would like to see featured in our Q&A series, please email us at or visit our website by clicking here.
Posted in Fair Pay, News & Information | 2 Responses »
Tags: Breaks, Lunch, Meal, pay
Written by Ronda Higgins Thornton on April 29th, 2010
The Genetic Information Nondiscrimination Act (GINA) was enacted to prohibit employers from considering applicant or employee genetic information in making employment decisions. The idea is to encourage individuals to participate in genetic testing which can assist in the early identification and treatment of illnesses without fear that the information will be adversely used by employers or insurance companies. Although the law has been in effect just over six months, to date the Equal Employment Opportunity Commission (EEOC) has received more than 80 complaints nationwide alleging discrimination on the basis of genetic testing. One of the most recent was by a Connecticut woman who claimed that she was terminated after she informed her employer that a genetic test revealed that she carried the BRCA2 gene, which can increase risk for breast cancer.
For more information on GINA, please visit EEO Consultations.
Posted in GINA, News & Information | 1 Response »
Tags: EEOC, Genetic Information Nondiscrimination Act, GINA, testing
Written by Ronda Higgins Thornton on April 16th, 2010
What do you do if you were fired from your last job or if you resigned under less than amicable terms with your employer? You definitely don’t want that experience to affect your future employment so here are 5 Do’s and Don’ts for dealing with the situation:
- DO tell the truth. If you were terminated, you should simply indicate that it was an involuntary separation. Most people will assume that it was layoff. This will also keep you from providing false information on your application.
- DON’T leave the employer off of your employment history. You may be tempted to skip the employer. However, huge gaps in your employment could be detrimental to landing your next gig. Statistics show that the longer that you remain unemployed, the harder it is to become employed. In addition, your last job probably gave you a lot of experience in your field. Presenting a resume without this experience could make you appear to be a less desirable job candidate.
- DON’T have a TMI moment. If you are asked by a recruiter for more information about why you were terminated, don’t overload the person with too much information about how you were treated unfairly and don’t bad mouth your employer or former supervisor. Both will make you appear to be whiner or a troublemaker and not someone that they want to be part of their team. Try to answer the pending question in a concise yet truthful manner and try to end the point on a positive note. For instance you might answer with, “I was terminated for absenteeism, however, this uncharacteristic of me and will not happen in the future.”
- DO attempt damage control. If you plan to resign or immediately after learning you are being fired, try to negotiate what Human Resources or your supervisor will report regarding your employment with the company. This requires that you be diplomatic and professional upon departure. Here are some suggestions: (1) If you are being terminated, request that your employer change your permanent record to reflect that you resigned. (2) If you are concerned that your supervisor will not give you a favorable reference, request that the company limit the type of information that can be released concerning your departure. (3) If your departure is related to a personality conflict and has little to do with your actual work performance, request a written recommendation that describes your accomplishments while in your former position.
- DON’T stress about the situation. If they do contact your former employer, most prospective employers won’t request detailed information about the circumstances under which you left the job. Generally prospective employers verify dates of employment, salary, job title and whether you are eligible for re-hire with the company.
For more information, please visit us at EEO Consultations.
Posted in News & Information | 2 Responses »
Tags: Former Employers, Interviewing, Prospective Employers, Recommendation, References
Written by Ronda Higgins Thornton on April 8th, 2010
In New Jersey a nurse alleged ongoing harassment and discrimination by her employer. She eventually quit her job and filed a discrimination complaint. Following her departure, her employer was able to access her personal, password protected email account and obtain emails that she had written to her attorney documenting the ongoing harassment. The company argued that because the emails were written while the employee was at work, the employee didn’t have a reasonable expectation of privacy. The employee countered that the emails were on her personal, password protected email account and that the communications were protected by attorney-client privilege. The court ruled in favor of the former employee stating that the employer should not have accessed the employee’s personal email account to read her emails to her attorney. The ruling seems limited to the fact that emails in question were between the employee and her attorney. The court did not go so far as to say employers shouldn’t access employee personal email accounts at all. This is yet another reason to exercise caution when emailing at work. Share your thoughts.
Posted in Filing Tips, News & Information | 1 Response »
Tags: attorney-client, Email, privacy
Written by Ronda Higgins Thornton on April 5th, 2010
As summer approaches, millions of students are debating what they will do with their summer. With the recession, paid internships, clerkships and apprenticeships are becoming more scarce, leaving unpaid internships as the only alternative. The idea behind unpaid internships is that you work with no pay in exchange for invaluable hands-on experience in your career field. Sometimes, you luck up on a great internship that catapults your career. More often than not, you spend your time doing menial tasks and nothing that remotely resembles the career path you have in mind. A very interesting New York Times Article details several problems with unpaid internships including possible violations of minimum wage laws and failure to protect interns from discrimination. Access the article by clicking here.
Posted in News & Information | No Responses »
Tags: Department of Labor, discrimination, Internships, unpaid, wage and hour
Written by Ronda Higgins Thornton on April 1st, 2010
Chai Feldblum appointed EEOC Commissioner
The Constitution gives the President the power to fill administrative vacancies during a recess of the Senate and such appointees can serve without Senate confirmation until the end of the next Senate Session. President Obama recently made fifteen such recess appointments, including four in the Equal Employment Opportunity Commission (EEOC) and one National Labor Relations Board (NLRB) appointment. Two of these appointments have sparked further controversy in the already fueled Democrat and Republican sparring match.
Craig Becker, a former associate general counsel for the Service Employees International Union and the AFL-CIO was appointed to the NLRB. He is a strong advocate for card check legislation and was heavily favored by big labor groups. Forty-one Republican senators signed a letter urging Obama not to make the Becker appointment, arguing that it would be undemocratic and further stating that it would be a sign that he is giving into pressure from big labor groups.
Former Georgetown law professor, Chai Feldblum will serve as one of five EEOC Commissioners. An open lesbian, she drafted key portions of the pending bill Employment Non-Discrimination Act (ENDA) which would offer a number of anti-discrimination employment rights to the LGBT community. She has also been an advocate for workplace policies that protect those with disabilities and those affected by HIV/AIDS. Feldblum’s extensive scholarship on gay marriage, sexual liberty and religion sparked controversy amongst some groups who believe that her views represent a strong departure from mainstream values.
With Congress focused on healthcare reform during the last session, the Senate pushed confirmations to the back burner. Many of the 15 appointees were approved by the Senate Committee but had not yet been voted on and confirmed by the full Senate. The recess appointees can serve through the next session, or the end of 2010, without Senate confirmation.
Posted in News & Information | No Responses »
Tags: Chai Feldblum, Craig Becker, EEOC, labor, NLRB, Recess Appointments
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