The United States Supreme Court decision in Gross v. FBL Financial Services, Inc. creates a rift between the treatment of so called "mixed-motive" cases under the ADEA and Title VII. Under Title VII, an employee may allege that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. If a Title VII plaintiff shows that discrimination was a “motivating” or a “ substantial” factor in the employer’s action, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of that impermissible consideration.

The Supreme Court declined to apply the mixed-motive burden shifting to ADEA cases holding that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Congress amended Title VII to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B),while leaving the ADEA language unchanged. The Supreme Court viewed this omission as a congressional policy statement and declined to recognize the so called "mixed motive" analysis in ADEA claims. However the Courts’ opinion invites Congress to fix the discrepancy by legislatively negating the Court’s decision much like it did in with both the ADA Amendments Act and the Ledbetter Fair Pay Act:

Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088.

Expect Congress to harmonize the treatment of Title VII and ADEA claims so that the mixed motive analysis applies to both. Congress should really fix the differentiation between age discrimination cases and other discrimination claims. For some reason unknown to me, Congress placed protections from age discrimination in the Fair Labor Standards Act (governing topics like minimum wage and overtime) rather than just adding "age" to the list of Title VII’s protected classifications. As a result, federal age discrimination claims have different rights, procedures, and damages.

On June 9, Facebook, the social networking website, publicly announced that beginning Saturday, June 13 at 12:01 a.m. U.S. EDT, it will allow users to adopt personalized username URLs (e.g., facebook.com/yourname). Trademark owners who want to prevent their trademarks from being registered as a Facebook username URL by another Facebook user should take action as soon as possible and preferably before Saturday.

According to a release by our Intellectual Property Group, it is suggested that once a URL is assigned to a user it cannot be transferred, and under the new Facebook policy it can never be used again, even by the rightful owner of the trademark. Trademark owners who might someday consider marketing through Facebook are encouraged to reserve their trademarks before Saturday, June 13 when the general registration opens.

Trademark owners can reserve their trademark on the Facebook platform by submitting relevant information to Facebook through its trademark protection contact form, available at Preventing the Registration of a Username | Facebook. It appears that a separate form is required for each trademark and registration number. Facebook promises to then advise the trademark owner when the username URL is available for the owner to adopt.

An employer’s liability for co-worker harassment exists if the employer knew or should have known of the harassment and failed to take prompt remedial action. In other words, an employer may be liable for non-supervisory co-worker harassment if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of harassment. Knowledge of a sexually hostile work environment arises when a "management level employee" obtains enough information to raise the probability of sexual harassment in the mind of a reasonable employer.

In its decision in Huston v. The Proctor & Gamble Paper Products Corp., the Third Circuit Court of Appeals concluded that an employee’s knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer in two circumstances:

  1. "where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments. The employee’s knowledge of sexual harassment is then imputed to the employer because it is significant to the employee’s general mandate to manage employer resources, including humanresources;" or
  2. "where the employee is specifically employed to deal with sexual harassment. Typicallysuch an employee will be part of the employer’s human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment."

The court went on to clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status unless the worker has  a mandate generally to regulate the workplace environment. This reasonably bright line test should help employers to avoid allegations of constructive knowledge of workplace problems; provided, job descriptions clearly define the employee’s job duties. Employers should examine generalized policy statements that create a "duty" to report workplace harassment or mistreatment.

U.S. Citizenship and Immigration Services’ (USCIS) announced the third postponement of the implementation of the final rule requiring federal contractors and subcontractors to begin using E-Verify system which is now delayed until Sept. 8, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. The rule was first published on Nov. 14, 2008 requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees. I previously summarized the rule in “E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work.”

The Bureau of Labor Statistics numbers for May show the national unemployment rate reaching a 26 year high to 9.4% up from 8.9% in April.  The number of unemployed persons increased by 787,000 to 14.5 million.  Since the start of the recession in December 2007, the number of unemployed persons has risen by 7.0 million, and the unemployment rate has grown by 4.5 percentage points.

Unemployment rates rose in May for adult men (9.8%), adult women (7.5%), whites (8.6%), and Hispanics (12.7%).  The jobless rates for teenagers (22.7%) and blacks (14.9%) were little changed over the month.  The unemployment rate for Asians was 6.7% in May, not seasonally adjusted, up from 3.8 percent a year earlier.

The BLS statistics by job class and sector continue to show weakness in the construction, manufacturing, wholesale/retail and leisure/hospitality sectors.  All sectors are as follows:

 

Sector of the Economy

Unemployment Rate for May 2009

Unemployment Rate for April 2009

Mining, quarrying, and oil and gas extraction

13.3%

16.1%

Construction

19.2%

18.7%

Manufacturing

12.6%

12.4%

     Durable goods

13.2%

12.8%

     Nondurable goods

9.0%

11.8%

Wholesale and retail trade

11.9%

9.0%

Transportation and utilities

8.5%

9.0%

Information

9.5%

10.1%

Financial activities

5.7%

6.0%

Professional and business services

10.9%

10.4%

Education and health services

4.9%

4.6%

Leisure and hospitality

11.9%

10.2%

Government workers

3.1%

2.6%

The ADA Amendments Act re-wrote the definition of disability so that it will likely include obesity-related health conditions and perhaps obesity itself as a protected disability. Before the ADA Amendments, being overweight and even obese was not generally considered a "disability". For example in EEOC v. Watkins Motor Lines, Inc., a court determined that non-physiological morbid obesity was not a protected disability.

The EEOC is considering regulations regarding the equal employment provisions of the ADAAA.  In December 2008, the EEOC commissioners deadlocked along party lines on whether to approve former Chair Naomi Earp’s proposed regulations. According to the EEOC’s agenda, a notice of proposed rulemaking will be issued by August of this year.  I predict that obesity will become a protected disability requiring employers to reasonably accommodate the condition.  I also expect that the correlation between BMI and obesity will be challenged by agruing that disqualifying an employee based on a high BMI consistitutes "regarded as" disability discrimination.

The ADA changes have important implications for businesses including employment discrimination claims, health plan design, and wellness program administration. There are several issues that merit discussion when examining obesity such as following. 

What is Body Mass Index (BMI)? BMI has become the unofficial scientific measure for assessing obesity. BMI is a function of height and weight (BMI calculator). The Center for Disease Control classifies a person who has a BMI of less than 18.5 as underweight; normal is 18.5-24.9; overweight is 25-29.9; obese is over 30; and extremely obese is over 40.

What is the BMI analysis telling us about our weight? A Report by the Trust for America’s Health recently disclosed statistics about obesity trends. In the Report, Pennsylvania had the 24th highest rate of adult obesity with 25.7 percent of its population having a BMI over 30. The Report correlated obesity figures with other factors like Diabetes and Hypertension rates. It also noted levels of admitted physical activity (or inactivity). Twenty-Four percent of Pennsylvanians admit no physical activity.

How good is BMI as a measure of obesity? Martica Heaner points out the limitations of BMI in her posts BMI Blues and Is Body Mass Index a Bad Measure?:

The BMI works well for research purposes, but doesn’t necessarily translate precisely to the individual. Unfortunately, it tends to convey that people that exercise regularly, for example, are overweight, when they are not actually overfat. A fit person tends to have more muscle, so their body weight is a reflection of body fat as well as muscle and other lean tissue.

Since the problem with being overfat is that health risks are increased, a BMI in the overweight range is probably not a negative indicator for a fit person. Regular exercise, low body fat and increased muscle mass are all factors that tend to outweigh any health risks suggested by a higher BMI.

Is there correlation between high BMI and bad health? According to the CDC, the BMI ranges were established based on the health consequences associated with obesity as determined by different BMIs. Some, like Paul Campos in his book, The Obesity Myth, challenge this conclusion. However, the correlation between high BMI and bad health is quickly becoming an assumption.

Other than being incorrectly labeled "overweight" or "obese", why should we care whether BMI is a accurate health status predictor? BMI is fast becoming the legal standard for determining whether someone is "obese" and therefore a "health risk". Those with high BMIs can face increase cost and eligibility barriers for certain employee benefits.

Individual insurance policies for life, disability and medical insurance almost universally use underwriting procedures that take into account BMI as a basis for determining insurability and premium. A survey by the Texas Office of Public Insurance Counsel found that insurance company individual health plan underwriting guidelines used BMI as a basis to deny coverage, charge a higher premium, and offer less coverage. The California Insurance Commission has made comments alerting consumers about BMI as a basis for insurance denial.

Some group health plans are community rated and not subject to medical underwriting. These plans calculate premium based on the expected claims of the community not the individual employer group. Other group health insurance programs can be subject to medical underwriting in which BMI analysis and other factors will be used to price the coverage for the group. An employer with a compliment of employees with potential for high claims (including high BMI) will face higher premiums or denial. Likewise, self-insured medical plans that utilize stop loss coverage may undergo medical underwriting where BMI will be factored into the rate for reinsurance.

Group health plan wellness program incentives may be keyed to BMI targets for premium discounts and other incentives. The availability of incentives to those with high BMI is subject to limitations including situations when it is "unreasonably difficult" or "medically inadvisable" for a participant to attempt to achieve the BMI standard.

The Gosselin Family, which has been the center of a media attention in recent weeks, is reportedly under investigation by the Pennsylvania Department of Labor and Industry for child labor law violations stemming from their children’s appearance on the reality TV show "Jon & Kate Plus 8". Much of the reality show is filmed in the family’s Wernersville, Pennsylvania home. The Gosselins have twin daughters age 8 and five-year old sextuplets, all of whom appear on the show.

The obvious legal issue is whether a children’s involvement in a reality TV filmed in the children’s home with the participation of parents constitutes "work in, about, or in connection with, any establishment." An "establishment" is a place "where work is done for compensation of any kind, to whomever payable." Children employed on a farm or in domestic service in private homes are excluded.

In Commonwealth V. McKaig (decided in 1937), a court found that it is not a violation of child labor laws for a nine year old child to give skating exhibition for an amateur skating society where she received no compensation; the exhibition was not for profit, although admission fee was charged; and the exhibition was not held at place of public resort but one privately leased for purely private purpose. The court focused on the role that the child played in the overall program and found that it is material that professional skater appeared on same program for compensation if child’s skating was in no way linked with his. However, a child would have been engaged in "work" If  the participation of the child been "linked with commercial channels and so connected with the work of others as to be immediately supplementary to that work or in direct aid and direction of the work of others." Reality TV as "work" will be an interesting legal issue. The Gosselin children play an integral part the show and their roles may be somewhat staged. Furthermore, the family has created a business around the show. 

Pennsylvania’s Child Labor Law regulates that hours and types of work that minors under the age of 18 may perform. The Child Labor Law specifically requires the Department of Labor and Industry (L&I) issue a special permit for "the employment of minors seven and under eighteen years of age in theatrical productions, musical recitals or concerts, entertainment acts, modeling, radio, television, motion picture making, or in other similar forms or media of entertainment in Pennsylvania where the performance of such minor is not hazardous to his safety or well-being." The Child Labor Law requires that performances occur before 11:30 p.m. and be no more frequent than two per day and 8 per week. There are also rules for "temporary" employment of minors as part of the performing cast in the production of a motion picture, if the department determines that adequate provision has been made for the educational instruction, supervision, health and welfare of the minor provided a minors work as part of the performing cast does not exceed forty-four hours in any one week and eight hours in any one day.

With the end of school approaching and children entering the summer workforce, employers should review their child labor law compliance.

Judge Sotomayor’s resume is summarized by CNN and her most notable opinions are compiled by the New York Times. Judge Sotomayor’s most significant employment-related decision came in Ricci v. DeStefano which is now before the United States Supreme Court. Ricci  is a discrimination case brought by white firefighters after the city threw out results of a promotion exam because too few minorities scored high enough.   The appellate court allowed the city to disregard the test results that had a disparate impact on minorities analyzing the role of Uniform Employee Selection Guidelines on employer testing procedures and results. The case has important implications for any employer that uses testing as part of its employment and promotion practices. The Connecticut Employment Law Blog has followed the case since it was initially decided.

The swine flu is thankfully less severe than anticipated and certainly not the "pandemic" that was feared and even predicted. The Centers for Disease Control and Prevention reports at least 5,469 cases of swine flu in the United States with Pennsylvania accounting for 55 cases. Six deaths are linked to the outbreak.   The CDC continues to warn that, "we are not out of the woods."

Managing communications about a potential pandemic is a "no win" situation for government agencies. The risks of over and under communicating are evident when one compares the approaches of the Mexican and U.S. governments. Commentators are already analyzing the swine flu "overreaction overreaction" and its impact on the next potentially real pandemic.

The communication and response from the Human Resource department can create the same credibility gap that governments face. Human Resource Professionals should book mark some of the resources that emerged from this go round some of which we identified in our prior post as well as the EEOC’s Guidance "ADA-Compliant Employer Preparedness for the H1N1 Flu Virus." 

Employers should view the pandemic false alarm as an opportunity to plan for all manner of business "disasters." The following are some addition areas of planning  and development of an action plan include the following:

Representative DeLauro introduced the Healthy Families Act (H.R. 2460) which would require businesses with 15 or more employees to provide up to seven days of annual paid sick leave.  The paid leave could be taken to attend to an employee’s own or a family member’s illness, or used for preventative care such as doctor’s appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault.  Sick time requests may be oral or in written at least seven days prior to foreseeable absence or otherwise as soon as practicable. The employee must provide notice of the expected duration of the absence. Medical certification is required if more than three consecutive days are taken off.

Employees would earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. Leave begins accruing from the first day of employment, but may not be taken until an employee works for 60 days. Up to 56 hours of paid sick leave would carry over from year to year, but an employer may permit additional accrual beyond the 56 hour minimum. Employers are not required to pay terminated employees for unused paid time off. If a separated employee is rehired within 12 months, that employee is entitled to the accrued leave already earned, and would be entitled to take sick leave immediately.

A business’s existing paid time off policy would not need to modified if it met or exceeded the minimum time periods and allow employees to take such leave for illness and other circumstances outlined in the Health Families Act. Employers must post a notice of the substantive and remedial provisions of the Act.

Aggrieved employees may bring civil claims to recoup unpaid time off benefits and to enforce the Act’s discrimination and retaliation protections.  The Secretary of Labor also has investigative and enforcement powers. The Bill, if enacted, is effective six months after the Department of Labor issues required regulations.