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Supreme Court Roundup

As the United States Supreme Court continues its first full term with new Justice Sandra
Sotamayor among its members, we review the significant labor and employment cases
from the October 2008 term.

Ricci v. DeStefano:1 Disparate Impact Liability “Phobia” Does Not Excuse Disparate
Treatment Discrimination

Issue & Factual Background

In Ricci v. DeStefano, the United States Supreme Court considered whether a racially-
based employment decision intended to avoid disparate impact liability excuses what
otherwise would be prohibited disparate treatment discrimination.2 In Ricci, the city of
New Haven, Connecticut, used objective examinations to fill vacant lieutenant and
captain positions within the Fire Department. However, New Haven refused to certify the
exam results because white candidates had outperformed minority candidates. Some
white and Hispanic firefighters who passed the exams but were denied promotions filed
suit against New Haven, alleging disparate treatment based on race. New Haven
responded by arguing that if it had certified the test results, it could have faced Title VII
liability for adopting a practice that had a disparate impact on minority firefighters.

Analysis & Conclusion

The Court adopted the “strong-basis-in-evidence” standard to resolve the issue presented.
Under this standard, “before an employer can engage in intentional discrimination for the
asserted purpose of avoiding or remedying an unintentional, disparate impact, the
employer must have a strong basis in evidence to believe it will be subject to disparate-
impact liability if it fails to take the race-conscious, discriminatory action.”3 The Court
explained that an employer would be liable for disparate impact discrimination only if (a)
the employer’s policies or practices were not job related and consistent with business
necessity, or (b) if there existed an equally valid, less discriminatory alternative that
served the employer’s needs but that the employer refused to adopt. Here, the Court held
that New Haven failed to prove either of these criteria, and thus, failed to meet the strong-
basis-in-evidence standard.4

Employers can protect themselves by crafting promotional examinations that can
withstand scrutiny. For example, to avoid disparate impact liability, employers must
make sure that their structured interview questions are relevant to the job duties of the
position to be filled and they are consistent with the employer’s business necessity. If an
employer’s structured interview questions meet the criteria set forth above, the employer
would likely be insulated from disparate impact liability, even if non-minority candidates
outperform minority candidates.

14 Penn Plaza LLC v. Pyett:5 Authority of Unions to Bargain Away their Members’
Right to Seek Judicial Relief under ADEA

Issue & Factual Background

In Pyett, the Court considered the enforceability of mandatory arbitration clauses in
collective bargaining agreements that require union members to arbitrate claims arising
under the Age Discrimination in Employment Act (“ADEA”). Pyett and his co-
Respondents were employed as night watchmen by Penn Plaza LLC and were covered by
a collective bargaining agreement between their employer and Local 32BJ of the Service
Employees International Union. The CBA required union members to submit all claims
of employment discrimination to binding arbitration. Despite the mandatory arbitration
clause, Pyett and his co-Respondents filed claims in federal court under the ADEA when
they were reassigned to different locations and less desirable positions.

Analysis and Conclusion

By a 5-4 vote, the Supreme Court held that “a provision in a collective-bargaining
agreement that clearly and unmistakably requires union members to arbitrate ADEA
claims is enforceable as matter of federal law.”6 Responding to the plaintiffs’ arguments
that a union should not be permitted to subordinate an individual employee’s interests to
the collective interests of all employees in the bargaining unit, the Court noted that
employees retained the right to bring duty of fair representation claims against the union,
direct lawsuits against the union under the ADEA, and file charges seeking to have the
EEOC vindicate their rights against age discrimination.

Though the Pyett holding was limited to ADEA claims, the broad language the Court
used in its analysis suggests that given the opportunity, the Court may extend it holding
to other types of discrimination claims under Title VII, the American with Disabilities
Act, Family and Medical Leave Act, and Rehabilitation Act, among others.

Gross v. FBL Financial Services:7 “But For” Proof Standard Applied to “Mixed-
Motive” ADEA Claims

Issue & Factual Background

In Gross, the Court decided whether the burden of proof ever shifts to the party defending
a mixed-motive discrimination claim under the ADEA. A “mixed-motive” case is one in
which a plaintiff alleges he suffered an adverse employment action because of both
permissible and impermissible considerations. Under Title VII, when a plaintiff shows an
impermissible consideration was a motivating factor in the employer’s decision to take
adverse action against him, the defendant can avoid liability if it can prove it would have
taken the same action regardless of the impermissible consideration. Thus, the burden of
persuasion shifts in alleged mixed-motive Title VII claims.

Gross sued his employer, FBL Financial Services (“FBL”), alleging that FBL demoted
him in violation of the ADEA, which makes it unlawful for an employer to take adverse
action against an employee because of the employee’s age. At the close of trial, the judge
instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the
evidence, that he was demoted and his age was a motivating factor, or played a part, in
the demotion decision. The judge further instructed the jury to return a verdict for FBL if
FBL proved that it would have demoted Gross regardless of age.

Analysis and Conclusion

The Court in a 5-4 vote declined to apply Title VII’s burden-shifting framework to
mixed-motive claims under the ADEA. Instead, the Court held that to establish a mixed
motive claim under the ADEA, a plaintiff must prove that age was the “but-for” cause of
the employer’s adverse action, not merely a motivating factor. In other words, the
plaintiff must prove that his employer would not have taken the adverse action were it not
for the plaintiff’s age. The Court emphasized that unlike Title VII, the ADEA’s language
does not authorize mixed-motive claims.

AT&T v. Hulteen:8 The Supreme Court Declares the Non-Retroactivity of the
Pregnancy Discrimination Act and Gives Its Blessing to Bona Fide Seniority-Based
Benefit Plans

Issue & Background

In Hulteen, the Court considered whether an employer violated the Pregnancy
Discrimination Act (“PDA”) of 1978 when it paid pension benefits calculated under a
pre-PDA rule that gave less retirement credit for pregnancy leave than for medical leave
generally. Under the PDA amendments to Title VII, an employer with 15 employees or
more must treat pregnant women and women affected by pregnancy-related disabilities in
the same manner as employees suffering from other temporary disabilities.9

Prior to the enactment of the PDA, AT&T gave less service credit for pregnancy leave
than for medical leave generally. On the effective date of the PDA, AT&T started to
award the same service credit for pregnancy leave as for other disabilities. However,
AT&T did not retroactively adjust pre-PDA pregnancy leave service credits. Also, AT&T
continued to award post-PDA pension benefits based on a pre-PDA seniority-based
system that produced benefit differentials. The women who received less service credit
for their pre-PDA pregnancy leave brought suit alleging AT&T discriminated against
them based on sex and pregnancy in violation of Title VII.

Analysis & Conclusion
By a 7-2 vote, the Court held that AT&T did not violate the PDA. The Court held that
benefit differentials produced by a bona fide seniority-based pension plan are permitted
unless they are the result of an intention to discriminate.

Although the Court agreed with AT&T’s position that Hulteen and her co-workers were
not entitled to any retroactive adjustments to their pre-PDA pregnancy leave service
credits, the Court made it clear that post-PDA differences in treatment based on
pregnancy or pregnancy related conditions would constitute a violation of Title VII.
Furthermore, this decision unequivocally reiterated the special treatment afforded bona
fide seniority-based benefit plans under Title VII. According to the Hulteen Court, as
long as an employer pays pension benefits based on a bona fide seniority system, that
employer would be insulated from Title VII liability, even if the advantages of the
seniority system flow disproportionately to a non-protected class.

Ashcroft v. Iqbal:10 New Grounds to Dismiss Implausible Employment
Discrimination Cases

Issue & Background

In Iqbal, the Court considered the sufficiency of complaints under Federal Rules of Civil
Procedure 8 (“Rule 8”). Under Rule 8, a complaint must contain a short and plain
statement of the claim showing that the pleader is entitled to relief. It has been established
through Supreme Court precedents that detailed factual allegations are not required for a
complaint to meet the standard of Rule 8.

In Iqbal, a Pakistani Muslim living in the United States sued the former United States
Attorney General and FBI Director for his detention following the September 11, 2001
attacks on the United States.

Iqbal alleged in his complaint that:

Petitioners designated Iqbal a person of high interest on account of his race,
religion, or national origin, in contravention of the First and Fifth Amendments; the
FBI under Mueller’s direction, arrested and detained thousands of Arab Muslim
men as part of its September-11th investigation; petitioners knew of, condoned,
and willfully and maliciously agreed as a matter of policy, solely on account of the
prohibited factors and for no legitimate penological interest; and Ashcroft was the
policy’s “principal architect” and Mueller was “instrumental” in its adoption and
execution.11

Analysis & Conclusion

By a 5-4 vote, the United States Supreme Court dismissed Iqbal’s complaint, holding that
the complaint failed to allege sufficient facts to state a claim for relief. Relying on its
precedent in Bell Atlantic Corp. v Twombly,12 the Court concluded that a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.

Significantly, the Iqbal Court extended its ruling regarding Rule 8 to all civil actions,
including employment discrimination claims. Iqbal, therefore, forces a plaintiff to do
more in his complaint than reciting the elements of a claim. This makes it easier in some
cases for an employer to force a plaintiff—through a motion to dismiss and/or motion for
more definite statement—to amend his/her deficient complaint to comply with Rule 8.13
Iqbal does not, however, require that a plaintiff set forth in his complaint detailed factual
allegations. What Rule 8 calls for are allegations that would allow a court to draw the
reasonable inference that a defendant is liable for the misconduct alleged. In other words,
a complaint must state a claim to relief that is plausible on its face.14

Komlavi Atsou
Assistant Attorney General

1
129 S. Ct. 2658 (2009)
2
Disparate impact results from policies or practices of an employer that are not intended
to discriminate, but in fact have a disproportionately adverse effect on minorities.
Disparate treatment, however, consists of intentional acts of employment discrimination
based on race, color, religion, sex and national origin.
3
Id. at 2677.
4
See Id. at 2681 (“On the record before us, there is no genuine dispute that the City
lacked a strong basis in evidence to believe it would face disparate-impact liability if it
certified the examination results. In other words, there is no evidence -- let alone the
required strong basis in evidence -- that the tests were flawed because they were not job-
related or because other, equally valid and less discriminatory tests were available to the
City. Fear of litigation alone cannot justify an employer’s reliance on race to the
detriment of individuals who passed the examinations and qualified for promotions. The
City’s discarding the test results was impermissible under Title VII, and summary
judgment is appropriate for petitioners on their disparate-treatment claim.”
5
129 S. Ct. 1456 (2009).
6
Id. at 1474.
7
129 S. Ct. 2343 (2009).
8
129 S. Ct. 1962 (2009).
9
Prior to the enactment of the PDA, pregnancy discrimination did not give rise to a Title
VII cause of action. See General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).
10
129 S. Ct. 1937 (2009).
11
Id. at 1944.
12
550 U.S. 544 (2007).
13
Iqbal may not, however, cause you to change how you approach litigation at the
pleading state if you subscribe to the school of thought that it is a futile exercise to file a
motion to dismiss in a federal employment law case because more likely than not the
judge/magistrate would deny the motion and grant the plaintiff an opportunity to amend
his/her complaint.
14
Note that a plaintiff whose complaint fails to meet this standard would not be entitled
to discovery.
Sixth Circuit Update

Recent decisions of the United States Sixth Circuit Court of Appeals, which interprets
federal law for Ohio absent a ruling from the Supreme Court, have addressed the issues
of the scope of retaliation and religious discrimination claims, “mixed motive” analysis
under the Family and Medical Leave Act (FMLA), and the effective date of recent
amendments to the Americans with Disabilities Act (ADA). Some of the key decisions
are discussed below.

Persons “closely related” to protected persons and differences in protected status:

Person closely associated with another who engaged in protected activity not proper
retaliation plaintiff. In Thomson v. North American Stainless, LP,1 the full court of
appeals reversed an earlier panel decision,2 holding that a person does not have to engage
in protected activity to sue for retaliation under Title VII, so long as the plaintiff is
closely associated with someone who has engaged in protected activity. Thomson was
fired three weeks after his fiancée had filed an EEOC charge of discrimination. Thomson
then filed his own retaliation charge and ultimately brought suit under Title VII. The
panel decision found that the purposes of Title VII would be frustrated if Thomson could
not recover for retaliation he had suffered, prompted by the complaints of his wife-to-be.

On review by a full panel of 16 judges, the majority of Sixth Circuit disagreed. The anti-
retaliation statute, 42 U.S.C. § 2000e-3(a) prohibits an employer from discriminating
“against any of his employees … because he has opposed any [unlawful] practice … or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing….” The court concluded that this language is plain
and unambiguous, stating “[w]e must look to what Congress actually enacted, not what
we believe Congress might have passed were it confronted with the facts at bar.”3 On the
other hand, the majority acknowledged that had she chosen to do so, the fiancée could
have brought suit herself, and Thomson’s discharge could have considered an adverse
employment action against her.4

Six judges dissented, relying on the expansive reading given other provisions of Title VII
in decisions such as Crawford v. Metro. Gov’t of Nashville & Davidson Cty.5 (voluntary
if passive cooperation in investigation satisfies opposition clause of Title VII’s anti-
retaliation provision).

Discrimination actionable because of plaintiff’s association with member of
protected class – closeness of association irrelevant. In a decision issued ten years ago,
Tetro v. Elliott Popham Pontiac,6 the Caucasian plaintiff claimed he was fired because he
had a bi-racial daughter. Even though Title VII prohibits discrimination “because of such
individual’s race,” the Sixth Circuit held that Tetro could state a claim if he could prove
he was discharged because the difference in his race from that of his daughter, “even
though the root animus for the discrimination is a prejudice against the biracial child.”7
In contrast to the outcome in Thomson (see preceding section), the Sixth Circuit recently
extended Tetro in Barrett v. Whirlpool Corp.8 Three Caucasian former employees
claimed they suffered a hostile work environment and retaliation because of their
association with African-American co-workers. The district court dismissed the claims on
summary judgment, but the Sixth Circuit rejected the argument that a Tetro-like claim
required any particular degree of intimacy or familial relationship between the plaintiff
and the member of a protected class. Rather, if a plaintiff shows discrimination “because
she associated with members of a protected class, then the degree of the association is
irrelevant.”9 Sharing an after-work beverage with a member of a protected class is
sufficient, although the plaintiff may have difficulty proving that such a tenuous
relationship was actually the cause of the discrimination.

In addition, the court in Barrett10 found protection for the plaintiffs on a separate
discrimination theory of having advocated for their African-American friends.11 This
appears to blur the line between discrimination and retaliation, although such a claim will
frequently go hand-in-hand, as here, with an association claim.

Finally, Barrett clarified that, in an associational discrimination case, a hostile work
environment includes harassment, of which the plaintiffs were aware, of other persons
who befriended or advocated on behalf of African-American employees. Harassment of
other African-Americans is irrelevant to such a claim.

Differences in religious views irrelevant to Title VII religious discrimination claim
without some connection to identifiable religious beliefs of plaintiff. Attempting to
expand on the Tetro theory, the plaintiff in Pedreira v. Kentucky Baptist Homes for
Children, Inc.12 claimed she was discharged because her lesbianism conflicted with the
fundamentalist beliefs of her employer. She sued under state law which replicated Title
VII’s prohibition of discrimination on the basis of religion. The dismissal of Pedreira’s
lawsuit was affirmed because, although Pedreira showed a conflict between her conduct
and her employer’s religion, she had not alleged how her religious beliefs required her
lesbian conduct, or how her religious beliefs, whatever they may have been, conflicted
with those of her employer.

Other decisions of note:

FMLA claims subject to mixed motive analysis. Ordinarily, the burden of proof to
show discriminatory intent is always with the plaintiff. But Title VII expressly provides
for a “mixed motive” method of proving discrimination.13 Under the “mixed motive”
analysis, if the plaintiff shows that an adverse employment action occurred in part
because of protected status or conduct, the burden shifts to the employer to prove that it
would have taken the same action regardless of the protected status or conduct.14 In
Hunter v. Valley View Local Schools,15 the court found that “mixed motive” proof could
apply to the FMLA, even though the FMLA, in contrast to Title VII, is silent as to
“mixed motive” proof. Instead, the court relied on a mere administrative regulation, 29
C.F.R. § 825.220(c), which simply states that “employers cannot use the taking of FMLA
leave as a negative factor in employment actions.” Hunter is not consistent with the
Supreme Court’s recent decision in Gross v. FBL Fin. Servs., Inc,.16 in which the Court
held that the mixed motive method was unavailable under the Age Discrimination in
Employment Act (ADEA) because, as under the FMLA, no language authorizing such a
claim appeared in that statute.

Religious objectors to the payment of union dues not entitled to the opportunity to
contribute to charity only the amount that a political objector would be required to
pay the union under the rebate procedure. In Reed v. Int’l Union, United Automobile,
Aerospace & Agricultural Implement Workers of America,17 the court rejected the claim
of a religious objector who asserted that he was being treated worse than political
objectors, who, under the union’s rebate procedure, were required to pay only that
proportion of dues used to negotiate and administer the collective bargaining agreement –
not to support union political activity. Traditionally, religious objectors to the payment of
any union dues are permitted to redirect all dues to a mutually acceptable charity. The
court’s lead opinion held that the difference between the full dues and the non-rebated
proportion political objectors were required to pay did not constitute a materially adverse
employment action.

ADA amendments of 2008 not retroactive. In case you were worried, in Milholland v.
Sumner County Bd. of Educ.18 the court held that the ADA amendments of 2008 (which
markedly expanded the coverage of the law, among other things) do not apply to causes
of action accruing prior to the amendments’ effective date. Our circuit joined the outcome
in every other circuit to have considered the question.

Arbitration awards have no issue preclusive effect in USERRA cases. In Hance v.
Norfolk Southern Ry. Co.19 the court held that a district court presiding over a claim
under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is
not bound by an arbitrator’s resolution of factual issues. Arbitrator’s awards are treated
the same under USERRA as under other anti-discrimination laws such as Title VII.

The temporal proximity “plus” debate in retaliation cases goes on. Over the last
several years, some Sixth Circuit panels have insisted that a delay of up to three months
between protected activity and an adverse action is sufficient to create a prima facie
inference of retaliatory causation. Others have held that unless the retaliation is almost
immediate (i.e., the same day), additional evidence of causation is required to establish a
prima facie case of retaliation. In two recent decisions, Hamilton v. General Electric
Co.20 and Upshaw v. Ford Motor Co.,21 a leading proponent of the former view appears
to have retreated from that position, and now writes that a delay of less than three
months, plus evidence of increased scrutiny of the plaintiff, is required to establish a
causal inference. The evidence of “increased scrutiny” apparently need not be particularly
strong, however.

Jack W. Decker
Principal Assistant Attorney General
1
567 F.3d 804 (6th Cir. 2009) (en banc).
2
520 F.3d 644 (6th Cir. 2008).
3
567 F.3d at 816.
4
Id. at n.10.
5
__ U.S. __, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009).
6
173 F.3d 988 (6th Cir. 1999).
7
Id. at 994.
8
556 F.3d 502 (6th Cir. 2009).
9
Id. at 513.
10
Id. at 513-14.
11
See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 575 (6th Cir. 2000).
12
2009 U.S. App. LEXIS 19487 (6th Cir. Aug. 31, 2009).
13
See 42 U.S.C. § 2000e-2(m).
14
See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (explaining mixed motive proof
under Title VII).
15
2009 U.S. App. LEXIS 19141 (6th Cir. Aug. 216, 2009),
16
__ U.S. __, 129 S. Ct. 2343, 174 L.Ed.2d 119 (2009).
17
569 F.3d 576 (6th Cir. 2009).
18
569 F.3d 562 (6th Cir. 2009).
19
571 F.3d 511 (6th Cir. 2009).
20
556 F.3d 428 (6th Cir. 2009).
21
2009 U.S. App. LEXIS 18137 (6th Cir. Aug. 14, 2009).
Not Just Dollars and Cents: The Ohio Budget Bill and Its Impact on Public
Employment

On July 17, 2009, Governor Ted Strickland signed into law the biennial operating budget,
House Bill 1.1 The bill contains changes to almost every major government program and
service, including several important changes to Ohio Civil Service law.

Cost Savings Measures

Amidst the economic climate, cost savings measures were a ripe area for inclusion. With
the addition of R.C. § 124.392(C), the Ohio Department of Administrative Services was
charged with implementing a mandatory cost savings day program for exempt
employees. Full-time exempt employees are required to participate for a total of eighty
hours of mandatory cost savings each year, which may include a loss of pay or loss of
holiday pay, during fiscal years 2010 and 2011. Part-time exempt employees participate
by not receiving holiday pay during fiscal years 2010 and 2011.

Employees of the secretary of state, auditor of state, treasurer of state, and attorney
general were also made subject to the cost savings program unless the elected official
opted out of the program. Not to be forgotten, Section 371.70.20 of House Bill 1 allows
state institutions of higher education (all two and four-year institutions) to impose
furloughs as opposed to cost savings days. Notably, the Section does not define furlough.

There is one cost savings change affecting correctional facilities, institutions for the
mentally ill, and institutions for the care, treatment, or training of the developmentally
disabled. R.C. § 145.298 increased the number of proposed layoffs required within a six
month period before the appointing authority must offer an early retirement incentive.
R.C. § 145.298(A) (2). Formerly, it was the lesser of 200 employees or 30 per cent of the
employing unit. Now it is the lesser of 350 employees or 40 per cent of the employing
unit. R.C. §§ 145.298 (B) (2) and (C) (2).

Leave Provisions

House Bill 1 also made changes to several leave provisions. House Bill 1 placed a
moratorium on vacation leave cash outs during fiscal years 2010 and 2011 when an
employee is denied vacation leave and has accrued their maximum amount of leave. R.C.
§ 124.134(C). Also, there will be an 80-hour cash out limit under that program beginning
in fiscal year 2012.

New exempt, probationary employees may begin using accrued vacation leave after
passing probation, instead of having to wait one full year. The amount of vacation leave
earned also changed based on years of service. R.C. § 124.134(A).

House Bill 1 also made changes to “salary continuation” and “occupational injury leave”
provisions in R.C. § 124.381. Under the changes, a maximum of 480 hours of salary
continuation leave is available to an employee in the service of the state who experiences
an injury arising out of state employment. Occupational injury leave is available up to a
maximum of 960 hours in lieu of workers’ compensation benefits, when an employee of
the departments of rehabilitation and correction, mental health, developmental
disabilities, youth services, or veterans services, or of the schools for the deaf or blind,
sustains a condition inflicted by a ward of the agency during the performance of work
duties.

Under both salary continuation and occupational injury leave, holiday pay is not paid and
vacation leave ceases to accrue while an employee is receiving benefits. Also, under both
forms of leave, sick leave and disability leave may be available after an employee has
used the maximum hours of benefits.

Lastly, under the disability leave program, employees can use “compensatory time” in
addition to sick leave, personal leave, and vacation leave to supplement the benefits
payable while out on disability leave. See R.C. § 124.385(B) (6); O.A.C. §§ 123:1-33-
05(G) and 123:1-33-08. Employees on approved disability leave are responsible for
paying the employee’s share of retirement contributions. The employer’s share is paid by
the state. R.C. § 124.385(D).

State Personnel Board of Review

House Bill 1 also amended R.C. § 124.34 to provide that classified employees who are
overtime exempt under the Fair Labor Standards Act may only appeal suspensions of
more than 40 work hours or fines of more than 40 hours’ pay to the State Personnel
Board of Review.2 R.C. § 124.34(B). Classified, overtime eligible employees may only
appeal suspensions or fines of more than 24 hours. This replaced the statute’s previous
language, which was implemented by House Bill 187, and permitted appeals of 40 hours
or more and 24 hours or more respectively. Now, for example, with the passage of House
Bill 1, a three-day suspension of an overtime-eligible employee where the employee
works eight-hour days is not appealable to SPBR.

Civil Service Examinations

Another amendment, to R.C. § 124.22, provides that applicants looking to take a civil
service examination must be United States citizens or have a valid permanent resident
card, rather than be a United States citizen or have legally declared the intention of
becoming a United States citizen as required under previous law. In addition, House Bill
1 reiterates that DAS is not responsible for administering civil service examinations for
state supported colleges and universities. R.C. §§ 124.23(E) and (G).

Ohio Civil Rights Commission

R.C. § 4112.04 (B) (3) (b) allows all parties to issue subpoenas for OCRC hearings.
Formerly, only the Respondent could request the issuance of subpoenas. Another new
amendment that allows "aggrieved persons" to present their own evidence and examine
and cross-examine witnesses at OCRC hearings was limited only to fair housing
complaints. R.C. §§ 4112.01, 4112.04, and 4112.051.

You are invited to contact the Employment Law Section to discuss the application of
these changes to your institutions and employees.

Reid T. Caryer, Assistant Attorney General
Joseph N. Rosenthal, Associate Assistant Attorney General

1
This article is not meant to be a full analysis of the thousands of pages of changes made
by House Bill 1, but only a synopsis of selected notable changes in the employment law
area.
2
Appointing authorities should exercise caution, as always, when instituting discipline
that could impact pay, in order to make certain that they do not run afoul of the Fair
Labor Standards Act, 29 U.S.C. §201, et seq.
Federal and State Legislatures Contemplate Prohibiting Employment
Discrimination Based On Sexual Orientation And Gender Identity

Currently, neither Ohio nor federal statutory law expressly prohibits employment
discrimination because of sexual orientation or gender identity. Most are aware that state
and federal laws prohibit discrimination “because of,” for example, one’s sex, religion, or
race.1 Bills now before the Ohio General Assembly and Congress would extend that
protection specifically on the basis of sexual orientation and gender identity.

The proposed legislation builds upon, as well as addresses some limitations of, existing
law. In Ohio, the Governor declared it “to be the policy of the State of Ohio that no
person employed by a Cabinet agency or by a State of Ohio Board or Commission may
discriminate on the basis of sexual orientation or gender identity in making . . .
employment related decisions.”2 While broad, this language is by its own terms limited to
identified state government employers. For their part, courts have explored the reach of
the current law’s prohibition against discrimination “because of . . . sex.” Ohio and
federal laws prohibit same-sex discrimination when the discriminatory conduct or hostile
work environment is because of the complaining party’s sex – but not when it is “because
of” his or her sexual orientation.3 Also, Title VII prohibits discrimination against those
who do not conform to gender stereotypes.4 Gender identity, defined and discussed
below, is broader than merely conformity or non-conformity to gender stereotypes.
Moreover, courts have refused to tie gender stereotyping cases to sexual orientation.5
Thus, while courts have broadly interpreted the prohibition of discrimination because of
“sex,” they have refused to extend existing protections to discrimination because of
sexual orientation or gender identity. The proposed legislation would overcome that
limitation.

Ohio Substitute House Bill 176 (“H.B. 176”)

On September 15, 2009, the Ohio House of Representatives passed H.B. 176. H.B. 176 is
aimed at prohibiting employment discrimination based upon sexual orientation and
gender identity. The new law would amend Chapter 4112 of the Ohio Revised Code,
which prohibits discrimination in employment and establishes the Ohio Civil Rights
Commission, and make conforming amendments throughout the Code.

H.B. 176 would define “sexual orientation” as “actual or perceived heterosexuality,
homosexuality, or bisexuality.” “Gender identity” would mean “the gender-related
identity, appearance, or mannerisms or other gender-related characteristics of an
individual, with or without regard to the individual’s designated sex at birth.” Using those
definitions, H.B. 176 seeks to prohibit discrimination “because of” sexual
orientation/gender identity by, among others, an employer, employment agency, labor
organization, or covered housing seller, lessor, or creditor. The new law could be read to
prohibit both discrimination against historically targeted homosexuals or bisexuals, as
well as “reverse” discrimination against heterosexuals.
H.B. 176 contains notable restrictions. First, while the H.B. 176 definition of “employer”
would include the “state [and] any political subdivision of the state,” it would not apply
to some small private employers. Chapter 4112 currently defines employer as – and,
therefore, prohibits discrimination by – any person “employing four or more persons
within the state.” The prohibition against discrimination based on sexual orientation and
gender identity, though, would only apply to a “person employing fifteen or more persons
within the state.” Second, the new law would grant some leeway to religious entities,
including educational institutions, except with regard to the secular business activities
unrelated to the religious and educational purpose of the entity. Third, the law attempts to
address some anticipated issues. For example, for shared shower or dressing areas “in
which being seen unclothed is unavoidable,” employers would be permitted to deny
access based upon sexual orientation or gender identity, provided, of course, that the
employer allows adequate alternative facilities. The law would not, however, “require the
construction of new or additional facilities.” Nor would it prohibit the enforcement of
dress or grooming codes, as long as that the employer allows an employee who has
undergone or is undergoing gender reassignment to adhere to the standards for the gender
to which the employee transitioned or is transitioning. Finally, the law would not permit
disparate impact claims relating to a “facially neutral policy or practice that has a
negative impact on a protected group.”

As of this writing, H.B. 176 has been referred to committee in the Ohio Senate. There has
been no further action by the Ohio Senate.

Congress’s Employment Non-Discrimination Act of 2009 (“ENDA”)

ENDA would not amend Title VII, but would create a stand-alone section to prohibit
discrimination based upon sexual orientation and gender identity. The new section,
though, draws heavily from – and is repeatedly cross-referenced with – Title VII. The
apparent intent is for the new protections to be treated by employers and the courts much
the same as the type of discrimination prohibited by Title VII.

ENDA would define “sexual orientation” and “gender identity” the same as Ohio’s H.B.
176. ENDA would also prohibit discrimination in employment by employers,
employment agencies, and labor organizations – but would not apply to members of the
U.S. Armed Forces. Notably, ENDA would purport to apply to Ohio, and other states, as
employers. First, ENDA seeks to abrogate state immunity, providing that a “State shall
not be immune under the 11th amendment to the Constitution from a suit brought in a
Federal court of competent jurisdiction for a violation of” ENDA. Second, ENDA builds
in a waiver provision, providing that a “State’s receipt or use of Federal financial
assistance for any program or activity of a State shall constitute a waiver of sovereign
immunity, under the 11th amendment to the Constitution or otherwise, to a suit brought
by an employee or applicant for employment of that program or activity under” ENDA.
The apparent design of either provision is to extend the reach of ENDA to the state-as-
employer, similar to Title VII.
ENDA contains qualifying provisions similar to H.B. 176, relating, for example, to
shared facilities, construction of new facilities, and dressing and grooming codes. In
addition, ENDA explicitly clarifies that it does not prohibit adverse action against an
employee for a sexual harassment complaint, even though such a complaint may be
inherently linked to the employee’s sexual orientation or gender identity, “provided that
rules and policies on sexual harassment . . . are designed for, and uniformly applied to, all
individuals regardless of actual or perceived sexual orientation or gender identity.”
Further, ENDA effectively limits its application to intentional discrimination, stating that
it should not be construed to prohibit the enforcement of “rules and policies that do not
intentionally circumvent the purposes of [ENDA], if the rules or policies are designed
for, and uniformly applied to, all individuals regardless of actual or perceived sexual
orientation or gender identity.” Finally, ENDA reiterates the definition of “marriage” set
out in the Defense of Marriage Act,6 and provides that ENDA does not require employers
to “treat an unmarried couple in the same manner as the [employer] treats a married
couple for purposes of employee benefits.”

As of this writing, the most recent iteration of ENDA – H.R. 3017 – was introduced in
the House on June 24, 2009. ENDA has been referred to the House Committee on
Education and Labor, the Judiciary Committee, and the Committees on House
Administration, Oversight and Government Reform. The Senate corollary – S. 1584 –
was introduced on August 5, 2009, and was referred the same day to the Senate Health,
Education, Labor, and Pensions Committee.

James A. Hogan
Assistant Section Chief

1
See Ohio Rev. Code §§ 4112.01 et seq.; Title VII of the Civil Rights Act of 1964
codified at 42 U.S.C. § 2000e, et seq. (“Title VII”).
2
Exec. Order 2007-10S (May 17, 2007) available at
http://www.governor.ohio.gov/Portals/0/Executive%20Orders/Executive%20Order%202
007-10S.pdf.
3
See, e.g., Hampel v. Food Ingredients Specialties, 89 Ohio St. 3d 169 (2000); Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998).
4
See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (addressing alleged
discrimination against a “macho” female); Smith v. City of Salem, 378 F.3d 566 (6th Cir.
2004) (addressing alleged discrimination against an effeminate male, later diagnosed with
Gender Identity Disorder).
5
See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006).
6
1 U.S.C. § 7.
Age Discrimination Claims on the Rise

With layoffs and job abolishments on the rise, threats to cut employee benefits, recent
controversial United States Supreme Court decisions, and the current economic state of
our nation and Ohio in particular, it may come as no surprise that allegations of age
discrimination are on the rise. On July 15, 2009, the Equal Employment Opportunity
Commission (EEOC) held a hearing in Washington, D.C. to address the growing number
of age discrimination claims filed with the EEOC. According to EEOC Chairman Stuart
Ishimaru, age discrimination claims are up 29% since 2008, and one-quarter of EEOC
charges include an age discrimination component.1

What is the ADEA?

The Age Discrimination in Employment Act (ADEA) protects individuals from
employment discrimination based on age. In general, under the ADEA, it is unlawful to
discriminate against a person 40 years of age or older because of age with respect to any
term, condition, or privilege of employment, including hiring, firing, promotion, layoff,
compensation, benefits, job assignments, and training.

Ishimaru explained that age discrimination cuts broadly across social status, race, gender,
and many other categories. Despite laws to protect older workers, “[w]hether trying to
retain or obtain a job, older workers may find themselves susceptible to unlawful age-
based stereotypes and discrimination.”2 Ishimaru said that “[e]mployers’ conscious or
unconscious stereotypes about older workers may cause them to underestimate the
contributions of these workers to their organizations. As a result, older workers may be
disproportionately selected for layoffs during reductions in force.” Workers who have
lost their jobs, the argument continues, may have more difficulty obtaining another job
than their younger counterparts due to age discrimination.

The Commission expects the trend of allegations of age discrimination to continue. If that
is indeed the case, advice offered by panelists at the EEOC hearing to avoid age
discrimination claims may prove useful.

The EEOC responds to the Rise in Age Discrimination Claims

The EEOC’s panel of experts addressed issues including stereotyping in the workplace
and its effect on age discrimination. The panel recommended the following to employers:
1) focus on the individual job-related characteristics of employees; 2) start with analysis
of the work to be done, and the knowledge, skills, and other human attributes required to
perform the work; and 3) monitor the impact of employment decisions on age, just as
employers do for race and gender, and take action when disparities occur.

Recent Supreme Court Precedent on Age Discrimination

The panel also discussed the recent United States Supreme Court decision in Gross v.
FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Justice Thomas, writing for the
majority, specified that a plaintiff who brought a disparate-treatment claim under the
ADEA had to prove, by a preponderance of the evidence, that age was the “but for” cause
of the challenged adverse employment action. Thus, a Plaintiff may not rely upon a
“mixed-motive” theory (i.e. that the plaintiff suffered an adverse employment action
because of both permissible and impermissible (i.e. age) considerations) available under
Title VII. According to American University law professor Cathy Ventrell-Monsees, the
Court exercised “the epitome of judicial activism.”3 Among other things, Professor
Ventrell-Monsees urged that Congress eliminate the differences in standards of proof
between ADEA, ADA, and Title VII cases.

Construction of valid waivers under the ADEA

In response to the rise in age discrimination claims, and as part of the July 15, 2009
hearing, the EEOC also released a technical assistance document that explains terminated
employees’ rights and obligations when offered severance pay in return for a waiver of
discrimination claims under the ADEA. Though severance packages are not used in the
public sector, oftentimes settlement agreements that include waivers of age
discrimination claims can reduce an employer’s risk of future liability.

The technical assistance document tracks the 1990 Older Workers Benefit Protection Act
(OWBPA), which amended the ADEA. The OWBPA established certain minimum
requirements that must be met in order for an ADEA waiver to be valid. In particular,
Congress added a section, providing that an individual may not waive any right or claim
under the ADEA unless the waiver is knowing and voluntary.4 The Amendments set forth
the minimum requirements for making a waiver knowing and voluntary.

To be valid, a waiver must:

a) be in writing;
b) be drafted in language understandable to the average person;
c) specifically refer to ADEA rights or claims;
d) not waive rights or claims that may arise in the future (i.e. after the execution of the
agreement);
e) be in exchange for valuable consideration;
f) advise the individual in writing to consult an attorney before signing the waiver; and
g) provide the individual at least twenty one (21) days to consider the agreement and at
least seven (7) days to revoke the agreement after signing it.

If a release does not include each of the release requirements as specified by the statute,
the release is subject to challenge and cannot bar a subsequent ADEA claim.

Though it is virtually impossible to eliminate claims of age discrimination, taking
appropriate preventive measures, such as consulting counsel and making well-reasoned
and deliberate decisions devoid of age considerations, can help to lessen the potential for
litigation.
Megan H. Boiarsky
Former Assistant Attorney General

1
“EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance
Document,” Washington Labor & Employment Wire, July 16, 2009.
2
“EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance
Document,” Washington Labor & Employment Wire, July 16, 2009; “Daily Document
Updates -- Employment Law,¶69,344DEEOC holds hearing on age bias, issues Q&A on
waivers in severance agreements — AGE DISCRIMINATION, (Jul. 16, 2009).” Wolters
Kluwer Law and Business.
http://intelliconnect.cch.com/scion/secure/index.jsp?ScionUser=true&refURL=http%3A
%2F%2Fhr.cch.com%2Fprimesrc%2Fbin%2Fhighwire.dll#page[2] (last accessed
October 8, 2009).
3
“EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance
Document,” Washington Labor & Employment Wire, July 16, 2009.
4
29 U.S.C.S. §626(f)(1) – (2).
Courts, Congress Addressing Tax Treatment of Discrimination Awards

When a jury awards compensatory damages to a successful discrimination plaintiff,
should the plaintiff have to pay federal tax on that income? How big of a tax bite should
the IRS get when an employee successfully sues his employer and is awarded several
years of back pay. These issues about the tax consequences of payments received to
resolve discrimination complaints are the subject of proposed new federal laws and a
recent decision from a federal appeals court.

In Washington, bi-partisan bills under consideration in the House and Senate would
amend federal tax law by excluding from gross income some payments received because
of claims of unlawful discrimination. The draft legislation, called the Civil Rights Tax
Relief Act of 2009, would exclude compensatory damages from income, but would not
exclude front pay, back pay, or punitive damages. However, the bill would allow
recipients of lump sum front pay or back pay awards covering several years to average
their income over those years. The excluded income would include amounts not only
resulting from court and administrative agency judgments, but also payments received
through settlements.

As introduced, the bill would define “unlawful discrimination” broadly. It would include,
e.g., claims of race, color, sex, religion, or national origin discrimination under Title VII
of the Civil Rights Act of 1964. “Unlawful discrimination” also would encompass
various other federal, state, and local laws prohibiting discrimination on the basis of age,
disability, and whistleblowing, among other things.

The House of Representatives’ version, if passed, would affect amounts received in
taxable years beginning after December 31, 2008. The Senate version would address
income earned after December 31, 2009.

A federal appeals court in Philadelphia recently took a different approach to ameliorate
the negative income tax consequences for a successful plaintiff in a discrimination case.1
At trial, Joan Eshelman convinced a jury that her former employer dismissed her in
violation of the Americans with Disabilities Act (ADA). The jury awarded compensatory
damages and back pay in the total amount of $200,000.

Following trial, Ms. Eschelman’s attorney asked the court to increase the back pay
portion of the verdict to make up for the increased tax burden that the lump sum award
would impose upon her. She submitted an affidavit from a financial expert who expressed
his opinion that the lump sum award would require Eshelman to pay $6,893.00 in
additional income taxes.2 The defendant-employer did not attempt to rebut the testimony,
but argued that a court was without authority to increase a jury verdict to account for tax
implications.

The Third Circuit Court of Appeals stated that a chief remedial purpose of the ADA was
to make victims of disability discrimination “whole,” i.e., to restore the status quo that
would have existed had no discrimination occurred. The court next pointed out that prior
cases established that awards of back pay are taxable in the year in which they are paid,
adding that “receipt of a lump sum back pay award could lift an employee into a higher
tax bracket for that year, meaning the employee would have a greater tax burden than if
she were to have received that same pay in the normal course.”3

The court further noted that two other federal appellate courts that had addressed the
issue reached opposite results. The Tenth Circuit Court of Appeals awarded extra
compensation to a prevailing Title VII plaintiff following a verdict that included a lump
sum payment of 17 years of back pay.4 In contrast, the Court of Appeals for the District
of Columbia rejected that approach,5 and concluded, “[a]bsent an arrangement by
voluntary settlement of the parties, the general rule that victims of discrimination should
be made whole does not support ‘gross ups’ of backpay to cover tax liability. …Given the
complete lack of support in existing case law for tax gross-ups, we decline to extend the
law in this case.”6

The Eshelman court, following the Tenth Circuit, drew an analogy with pre-judgment
interest, which courts have consistently awarded to successful plaintiffs in discrimination
cases to compensate them for the lost use of their money. The court concluded that the
pro-offset approach was consistent with the remedial nature of discrimination law and
increased the back pay award to compensate for the plaintiff’s higher tax liability.

Notably, neither the U.S. Supreme Court nor the Sixth Circuit Court of Appeals, which
makes federal law in Ohio in the absence of a Supreme Court ruling, has weighed in on
the “gross up” issue. However, the Employment Law Section will be monitoring court
decisions and the pending legislation on these matters, as they could affect clients’
potential exposure to liability in civil rights cases.

Michael C. McPhillips
Section Chief

1
Eshelman v. Agere Systems, Inc., 554 F.3d 426 (3rd Cir. 2009)
2
In a case cited in Eshelman, the court held it had authority to increase a verdict to offset
tax liability, but would not do when the plaintiff failed to provide competent
foundation evidence to make the necessary calculations. EEOC v. Joe’s Stone Crab, Inc.,
15 F. Supp.2d 1364, 1380 (S.D. Fla. 1998).
3
554 F.3d at 441.
4
Sears v. Atchison, Topeka & Santa Fe Ry. Co., 749 F.2d 1451 (10th Cir. 1984).
5
Dashnaw v. Pena, 304 U.S. App. D.C. 247, 12 F.3d 1112 (D.C. Cir. 1994).
6
12. F.3d at 1116.
Evaluating the State: why annual evaluations matter.

Supervisors and employees, alike, may dread the annual evaluation process. The
apprehension and resistance associated with completing evaluations manifests in the
numbers. The Human Resources Division of the Ohio Department of Administrative
Services (ODAS) tracks the completion of evaluations from 23 state agencies on a
quarterly basis. Roughly 83 percent of evaluations were completed last quarter, although
only 63 percent were completed on time. Yet the Ohio Administrative Code requires the
evaluation of classified employees.1 Even setting the Code aside, these numbers are
troubling because evaluations are not only a key management tool, they are extremely
helpful, if done correctly, in litigation.

As a management tool, employee evaluations are essential to securing high-level
performance. ODAS promulgated the Ohio Performance Review System (OPRS) Manual
as well as evaluation forms for different classifications. The manual and the forms are a
valuable resource. The manual offers step-by-step instructions on how to move through
the evaluation process, which is supposed to be a year round endeavor, not just an annual
event. The manual also teaches supervisors how to set goals and objectives with the
employee, and even offers comparative examples of well-written and poorly-written
goals.

Ideally, in the evaluation the supervisor acknowledges accomplishments, identifies future
expectations and provides the employee with a view of his or her role in reaching the
over-arching mission of the agency or department. Generally, performance deficiencies,
even minor ones, should not be addressed for the first time in a performance evaluation.
Annual evaluations also should never be a substitute for placing an employee on a
Performance Improvement Plan, which is generally much more detailed and often
provides a schedule for regular management feedback.

Complete, accurate employee evaluations such as those in the ODAS format, can be
valuable sources of evidence in litigation. For example, the evaluation format urged by
ODAS does not rely upon a mere numerical ranking. A narrative format, like that
promulgated by ODAS, is advantageous because even when there are clearly defined
criteria for what distinguishes a “one” from a “two” in a performance category, the
decision to rank an employee a “one” may be subjective in part. Also, remembering,
years later in a lawsuit, what the factual basis was for rating, for example, a female a “1,”
and rating a male a “2,” in the same performance category, is sometimes tricky. The
structure of the OPRS forms avoids this situation, and puts the supervisor in the position
of identifying concrete examples where an employee’s performance has fallen short or
exceeded expectations, using previously established goals and measurements. The OPRS
Manual explains that when an employee fails to meet a goal, the employer should instruct
the employee about what steps are required to achieve compliance. Having this
performance history at the ready when litigation commences is a tremendous boon.

Evaluations of employees with Family Medical Leave Act (FMLA) certifications deserve
special mention. Supervisors must be careful to measure the performance of these
employees based upon time worked. So, if the employee worked for a total of nine
months, the evaluation cannot be based on the goals for a twelve month period. The
question supervisors should ask is: “Did the employee perform his job well when he was
working?” If the answer is “no,” the evaluation should specifically identify how the
performance was inadequate. Comments in evaluations of employees with FMLA
certifications also require care. Even language that appears to be considerate can be
problematic: “Understandably, Jane’s care of her son over these past few months has
taken her away from the office and made it difficult for her to process her typical high
level of claims.” This example, while clearly sympathetic, still suggests that Jane has
fallen below her supervisor’s now inappropriate expectations, which the employee might
claim is interference with the employee’s rights under the FMLA.

In the private sector, where evaluations are frequently the means to a pay raise, the
receipt of a bad evaluation may be considered evidence of discrimination or retaliation.
For Ohio civil servants, this is not generally true. DAS had aspirations, in 2000, to use
evaluations as a basis for merit step-increases. However, former Step 7—the merit step—
was eliminated from the Ohio Revised Code in 2004 by Senate Bill 189, and since that
time annual evaluations rarely affect an employee financially.2 Seldom are evaluations of
public civil servants formally consulted when an employee applies for a promotion. As a
result, claims that an evaluation prevented an employee from receiving a promotion or a
raise in pay are not as prevalent as in private sector employment. Thus, evaluations factor
largely in federal cases involving a public employee who has been probationarily
removed, or where the employee is claiming that a bad evaluation was given to punish
the employee for a prior complaint of discrimination.3

Another area where evaluations play a large role is when the plaintiff-employee’s
attorney identifies several other employees as “comparables.” These are usually
employees in the same classification as the plaintiff-employee, supervised by the same
supervisor, and who are not part of the plaintiff-employee’s protected group (i.e. race,
gender, or national origin). These employees’ annual performance evaluations will be
subject to extreme scrutiny. Every written word, every checked box will be questioned to
determine if the supervisor evaluated the performances of all like employees the same,
regardless of their race, gender, national origin, religion, etc. That is why it is important
to perform thorough, accurate evaluations of all employees, not just those who have
performance problems. In fact, if a supervisor evaluates only those employees with
performance problems those employees may claim that this “targeted” evaluation is
evidence of discrimination.

Some of the most vexing cases are where there is a removal for performance issues but
there are either no performance evaluations for the plaintiff-employee or the performance
evaluations indicate that expectations were met, with little explanation. Sometimes, there
is also no written documentation regarding disciplinary efforts. Of course, the supervisor
often will be able to testify about events that led to the removal; but, without
documentation there is a risk the supervisor will not recall all of the incidents, or critical,
(if minute), details because there is no documentation to jar his memory. There is also a
risk that there will be factual disputes about certain incidents that are hard to refute
because, again, there is no contemporaneous writing that shows what the supervisor
understood to be the problem. One solid step to avoid having insufficient evidence to
support disciplinary action is to commit to performing annual evaluations right away,
every year.

Nicole S. Moss
Associate Assistant Attorney General

1
See O.A.C. 123:1-29-01 and 123:1-29-02.
2
From a litigation standpoint, this diminishes the evaluation’s impact. Hollins v. Atlantic
Co., Inc. 188 F.3d 652, 662 (6th Cir. 1999); Primes v. Reno, 190 F.3d 765, 767 (6th Cir.
1999) (holding that if a low evaluation has no direct and immediate affect on an
employee’s raise or promotion, it is a de minimus employment action).
3
Halfacre v. Home Depot, U.S.A., Inc., 221 Fed. Appx. 424, 433 (6th Cir. 2007).
Employer Best Practices for Workers with Caregiving Responsibilities

Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued a
technical assistance document, “Employer Best Practices for Workers with Caregiving
Responsibilities.” The best practices document supplements an EEOC guidance
document from 2007, “Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities” that examines how federal anti-discrimination laws apply to workers
with caregiving responsibilities. Although the concepts of “caregivers” and workers with
“caregiving responsibilities” are not specifically protected classifications under Title VII,
the Family and Medical Leave Act (FMLA), the Rehabilitation Act or other federal
employment discrimination laws, the EEOC contends that certain gender, racial or other
stereotypes in the workplace can result in practices that adversely impact employees with
caregiving responsibilities.

As always, although it is unknown at this time what enforcement efforts the EEOC will
undertake in conjunction with the “Best Practices” policy, it is important to be aware of
the Commission’s recommendations. The EEOC takes a broad view of workers with
caregiving responsibilities, encompassing employees with spouses and children, as well
as those supporting parents or other older family members, or relatives with disabilities.
“Best practices,” as understood by the EEOC, are proactive measures that go beyond
federal anti-discrimination requirements of laws such as Title VII and the FMLA to
remove barriers to equal employment opportunities for all.

Establishing a Policy of “Best Practices” to Protect the Employment Rights of
Caregivers

The EEOC recommends the following steps, among others, as “best practices” to protect
the rights and responsibilities of caregivers:

• define the terms “caregiver,” “caregiving responsibilities” and “family”
inclusively, beyond children and spouses to include individuals for whom an
employee or an applicant for employment has primary caretaking responsibility;
• describe common, unlawful biases and stereotypes, such as assuming that female
workers’ caregiving responsibilities will interfere with their ability to succeed at
work, or assuming that male workers do not, or should not, have significant
caregiving responsibilities;
• provide examples of prohibited conduct related to workers’ caregiving
responsibilities, such as asking female (but not male) applicants or employees
about their caregiving responsibilities, making stereotypical comments about
pregnant workers or female caregivers, steering women with caregiving
responsibilities to less prestigious or lower-paid positions, or treating male
workers with caregiving responsibilities more, or less, favorably than female
workers with caregiving responsibilities;
• prohibit retaliation against individuals who report discrimination or harassment
based on caregiving responsibilities, or who provide information related to such
complaints; and,
• identify an office or person that staff may contact if they have questions or need
to file a complaint related to caregiver discrimination.

In order to implement these “best practices” policies after they are in place, the EEOC
then recommends that the employer should: (1) ensure that managers at all levels are
aware of, and comply with, the organization’s work-life policies; (2) respond to
complaints of caregiver discrimination efficiently and effectively; and, (3) protect against
retaliation as complaints are investigated and resolved.

Recruitment, Hiring and Promotion

The EEOC emphasizes that to establish the best workplace practices to protect the rights
of caregivers, an employer’s policy on caregivers should not only be structured to
respond to complaints, but also proactively designed to consider policies and practices on
the recruitment, hiring and promotion of employees. For instance, in reviewing an
applicant’s qualifications for a particular job, the EEOC’s “best practices” guidance
would dictate that a manager should not ask questions about an applicant’s or employee’s
children, plans to start a family, pregnancy or other caregiving responsibilities. For
existing employees, the EEOC’s “best practices” would dictate that an employer should
develop specific, job-related qualifications for each position that reflect the duties,
functions and competencies of the position and minimize the potential for gender
stereotyping and other unlawful discrimination against caregivers. “Best practices” in
this area would also require managers ensure that job openings, acting positions and
opportunities for promotions are communicated to all eligible employees regardless of
caregiving responsibilities. The EEOC’s paper also encourages employers to establish
recruitment practices that target individuals with caregiving responsibilities by, for
instance, advertising positions in parenting magazines or other publications or web-sites
that are directed at caregivers. To implement “best practices” in this area, employers
should also recognize that individuals with caregiving responsibilities may have taken
leaves of absence from the workforce due to caregiving responsibilities. If so, an
employer should give applicants, or employees seeking promotion, the same
consideration for their cumulative, relevant experience that is given to an applicant or
employee with uninterrupted service. Finally, the EEOC emphasizes that “best practices”
in this area means employment decisions should be transparent, to prevent
misunderstandings, and well-documented so that the decision is defensible in the face of
potential claims of unlawful discrimination.

Terms, Conditions and Privileges of Employment

The EEOC emphasizes that an employer attempting to implement “best practices” for
employee caregivers should regularly review its employment policies and practices for
impact on the rights of worker-caregivers. For instance, the EEOC guide emphasized
that there should be no references to an employees’ caregiving responsibilities in regular
performance appraisals. The EEOC also discourages workplace policies that limit
employee flexibility, such as fixed hours of work and mandatory overtime, and
encourages employers to review such policies to ensure that they are necessary to
business operations. The EEOC’s guide mentions favorably reduced time options, such
as part-time positions or job sharing programs, as often valuable to workers with
caregiving responsibilities. Further, the EEOC recommends that managers grant
reasonable personal or sick leave requests to allow employees to attend to caregiving
responsibilities and also to cultivate a professional work environment that recognizes and
appreciates the contributions of all staff members and demonstrates respect for
employees’ personal lives and obligations.

It is likely that many employers already have practices in place that comply with the
EEOC’s “best practices” guidance – simply by virtue of their regular, employment
discrimination compliance efforts. The EEOC’s technical assistance document provides
a number of hypothetical situations and suggests how employers can respond to these
situations in a manner which best accomplishes the goal of protecting the rights of
workers with caregiving responsibilities. The paper also cites to studies that show that
best practices in this area actually benefit employers by enabling them to recruit and
retain talented, productive, committed employees. The EEOC’s document is available at
www.eeoc.gov/policy/docs/caregivers-best-practices.html.

Rory P. Callahan
Assistant Attorney General
News from the Employment Law Section

We regret to announce the departure of two Assistant Attorneys General, Megan
Boiarsky and Brooke Leslie, in October. Brooke, who joined the Employment Law
Section as a law school intern in 2005 and as an AAG in 2006, resigned in early October
to take a legal position with a private utility company. Megan, who joined the Executive
Agencies Section of AG’s office in 2005 and transferred to ELS in 2006, became an
associate in a Columbus law firm, specializing in employment law. Brooke’s and
Megan’s dedication and collegiality will be sorely missed.

Rema Ina is the newest addition to the Employment Law section. She joined the office
two years ago as a new attorney graduate and worked in the Workers' Compensation
Section before transferring to ELS. She has trial and appellate court experience from
representing the Bureau of Workers' Compensation and Industrial Commission in the
Court of Common Pleas and in Mandamus cases. While with Workers’ Compensation,
Rema participated in four jury trials in Ohio common pleas courts. In addition, Rema
was selected to be on the Attorney General’s Election Litigation Task Force last year for
the 2008 election. She is currently serving in the Special Litigation Group where she is
assisting with a complex litigation case for the Antitrust section. Rema plans to the take
the Federal Bar Exam for the Southern District of Ohio this December. She is originally
from the Cleveland area and graduated from Bowling Green State University and Hofstra
University School of Law.

This summer, the Employment Law Section welcomed Rory P. Callahan on board as an
Assistant Attorney General. Rory brought to the Section eight years of experience
representing small businesses, labor organizations, and individuals in general litigation
matters. A significant amount of his prior experience involved advising and litigating
cases on behalf of clients in state and federal courts, the National Labor Relations Board,
State Employment Relations Board, and in arbitration. Rory is admitted to practice law
in Ohio, the United States Sixth Circuit Court of Appeals, U.S. District Courts for the
Northern and Southern Districts of Ohio, and the state of Massachusetts, where he began
his career as a judicial law clerk. Rory is a graduate of Kenyon College and The Ohio
State University Moritz College of Law.

Jesse Howell started with the Employment Law Section this summer as a Non-Legal
Intern. He is currently attending The Ohio State University majoring in Logistics
Management, Marketing, Music and minoring in Economics. He is expected to graduate
in June 2010. After graduation Jesse will be pursuing a career in the legal field. He is an
accomplished piano performer, black-belt, and enjoys swimming and running in his spare
time and for competition. He is also an avid Ohio State Buckeyes fan.