NEWSLETTER

Although no federal antidiscrimination law protects “caregivers,” the EEOC has issued an enforcement guidance designed to address what it considers “an emerging discrimination issue in the 21st century workplace.” See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, available at: http://www.eeoc.gov. According to the agency, the purpose of the EEOC’s new guidance is not to create a new protected category (which is beyond its authority), but “to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” Additionally, the EEOC urges employers to establish “best practices” to accommodate caregivers, even if they are not legally required to do so.

The guidance addresses a number of issues, including unlawful disparate treatment of caregivers, unlawful gender role stereotyping of working women, “benevolent” stereotyping, pregnancy discrimination, discrimination against male caregivers, discrimination against women of color, and unlawful caregiver stereotyping under the Americans with Disabilities Act. The guidance also provides a number of hypothetical situations, which employers will likely find helpful.

Expansive View of Discrimination: The EEOC takes an expansive view of discrimination, adopting both the “sex plus” and gender stereotyping theories of establishing discrimination.

Gender Stereotyping: The guidance states that “while comparative evidence is often useful, it is not necessary to establish” intentional sex discrimination. According to the guidance, employees can establish a discrimination claim by showing they were subjected to biased statements or behavior based on stereotypes about working mothers or other female caregivers.

In support of this contention, the EEOC cites Back v. Hastings on Hudson Union Free Sch. Dist., a Second Circuit decision in which a female school psychologist was permitted to proceed with her Equal Protection Clause failure to promote claim based on comments allegedly made by her supervisors, stating, among other things, that they did not think she could “be a good mother and have this job.” In that case, the Second Circuit permitted the employee to proceed even though she did not present any evidence of how men were treated. The court held that “stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.” (The case was tried to a jury, which ruled in favor of the employer.)

The EEOC acknowledges that other courts have not found illegal sex discrimination in similar cases, but states that it believes claims must be resolved based on the totality of the evidence and that “comments evincing sex-based stereotypical views of women with children may support an inference of discrimination even absent comparative evidence about the treatment of men with children.”

Sex Plus: The guidance states that employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. “For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women.”

Factors The EEOC Will Consider in Evaluating Discrimination Claims:

The guidance lists the following factors as examples of the types of information the EEOC will consider in evaluating discrimination claims:

• Whether the respondent asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities;
• Whether decisionmakers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers;
• Whether the respondent began subjecting the charging party or other women to less favorable treatment soon after it became aware that they were pregnant;
• Whether, despite the absence of a decline in work performance, the respondent began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities;
• Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers;
• Whether the respondent steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions;
• Whether male workers with caregiving responsibilities received more favorable treatment than female workers;
• Whether statistical evidence shows disparate treatment against pregnant workers or female caregivers;
• Whether respondent deviated from workplace policy when it took the challenged action;
• Whether the respondent’s asserted reason for the challenged action is credible.

 

Employers’ Bottom Line:

The guidance does not have the force of law, but courts often refer agency publications in addressing discrimination claims. The EEOC’s adoption of the “sex plus” and gender stereotyping theories of discrimination, which have not been widely followed by courts, may indicate an emerging trend in litigation and may lead more courts to adopt these expansive views of discrimination.

In addition to the potential impact on discrimination litigation, the guidance reflects the agency’s position on caregiver claims and how closely these claims will be analyzed. Thus, it is important for employers to be aware of the guidance and to evaluate their employment practices to ensure they are in compliance with the law, before a charge or discrimination lawsuit is filed.

If you have any questions regarding the new guidance or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.

Kathryn Siegel, a summer associate in Ford & Harrison’s Atlanta office, assisted in the preparation of this article. Kathryn is a law student at Vanderbilt University and will graduate in 2008. •

The Good News

The Eleventh Circuit recently concluded that smocks and hairnets really are no different than a pair of blue jeans for the purposes of the Fair Labor Standards Act (FLSA). See Anderson v. Cagle’s, Inc. (11th Cir. June 11, 2007). Specifically, the court held that the “smocks, hair/beard nets, gloves, and hearing protection” the employees in Anderson were required to wear were “clothing”; however, the employer was not required to pay them for time spent putting on (donning) and taking off (doffing) this clothing based on an established practice of not doing so when the collective bargaining agreements (CBAs) covering the workers were negotiated.

In Anderson, line workers at chicken processing plants brought a class action against their employer demanding compensation for time spent donning and doffing “smocks, hair/beard nets, gloves, and hearing protection.” During the time period in question, the CBAs covering the employees’ employment did not address compensation for donning and doffing the protective clothing.

Normally, employees must be paid for time at the worksite spent donning and doffing clothing that is vital to employees’ work. However, a 1949 amendment to the definition of “hours worked” for purposes of the FLSA’s minimum wage and overtime provisions permits employers to exclude time spent “changing clothes” where this time was excluded by the express terms of a CBA or by custom or practice in existence when a CBA was negotiated. See 29 USC § 203(o).

In Anderson, the employees argued that § 203(o) did not apply because the disputed time did not involve either “changing” or “clothes.” The employees argued that the act of “changing” required a complete disrobing of one set of clothing and the putting on of another. The Eleventh Circuit dismissed that contention by saying “one need not exchange clothes to change clothes.”

As to the definition of “clothes,” the employees urged the court to adopt the Ninth Circuit’s position, which interpreted § 203(o) narrowly and held that specialized protective gear is different from typical clothing. See Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005) (“The admonition to wear warm clothing, for example, does not usually conjure up images of donning a bullet-proof vest or an environmental spacesuit.”) (The Supreme Court decision in Alvarez did not address the § 203(o) argument.) The Ninth Circuit decided that such “gear” is not clothing at all, and therefore found § 203(o) inapplicable.

The Eleventh Circuit rejected the Ninth Circuit’s narrow interpretation of § 203(o), holding that § 203(o) is a definition under the FLSA, not an exemption, and must be construed broadly. Accordingly, the Eleventh Circuit held that the protective garb at issue fell within the broad definition of clothing offered by Webster’s Dictionary: “all the garments and accessories worn by a person at any one time.”

The court in Anderson noted that its reading of § 203(o) is in line with a recent advisory opinion from the Administrator of the Wage and Hour Division of the Department of Labor, the agency responsible for administering FLSA. The opinion states that “clothes,” for the purposes of § 203(o), includes “items worn on the body for covering, protection, or sanitation.”

The Eleventh Circuit also rejected the employees’ argument that no practice or custom was established under the CBA because the issue had never been negotiated. The court held that the absence of negotiations signaled acquiescence to, rather than ignorance of, the policy. The court noted that its holding does not address the situation where the practice of nonpayment is established after a CBA has taken effect, or where the union truly lacked notice of the policy at the time the CBA was negotiated.

The Bad News

For employers, Anderson did leave a little to be desired. The court noted there “may be limits to the application of § 203(o) based on the nature or purpose of the garments at issue.” The court pointed out that the employees did not attempt to make a finer distinction than that between protective clothing and clothing in general. This appears to leave some room in the Eleventh Circuit for a distinction between protective clothing and something “more specialized,” which might not be covered by the exception.

Employers’ Bottom Line

In the Eleventh Circuit, time spent donning and doffing clothing, even protective clothing, is not subject to the minimum wage and overtime requirements of the FLSA if the terms of a CBA permit nonpayment or if the employer’s policy or practice at the time the CBA was executed permitted nonpayment and the CBA does not address the issue. Employers should be aware that they may be required to pay employees for time spent donning and doffing “more specialized” protective equipment in some situations.

If you have any questions regarding this decision or FLSA in general, please contact the Ford & Harrison attorney with whom you usually work. This article was prepared by Josh Drexler, a summer associate in Ford & Harrison’s Atlanta office. Josh is a student at the University of San Francisco School of Law. •

President Bush has signed legislation increasing the federal minimum wage from the current level of $5.15 per hour to $7.25 by 2009. The “Fair Minimum Wage and Tax Relief” measure is part of a larger spending bill authorizing additional funds for the war in Iraq, among other things. This is the first increase in the federal minimum wage rate since 1997.

New Minimum Wage Rates: Under the new law, the federal minimum wage increases to $5.85 per hour on July 24, 2007 (sixty days after enactment of the law). On July 24, 2008 (twelve months after that 60th day), the minimum wage will increase to $6.55 per hour. On July 24, 2009 (twenty-four months after that 60th day), the minimum wage will increase to $7.25 per hour.

Impact on Tipped Employees: Currently, employers who use the “tip credit” are permitted to pay tipped employees a cash wage of $2.13 per hour, under the assumption that these employees will make enough in tips to earn the required minimum wage. The new law does not change the required cash payment; however, employers should ensure that tipped employees earn enough in tips to bring their wages up to the new required minimum wage rates.

State Minimum Wage Laws: At least thirty states currently have minimum wage rates higher than the federal minimum wage. Many of these state laws provide that the state minimum wage rate applies only if it is higher than the federal minimum. Other state laws tie the state minimum wage to the federal minimum wage. Thus, the minimum wage rate in some states may be affected by the increase in the federal minimum wage.

Employers’ Bottom Line:

Now is a good time to evaluate your pay practices to ensure that you are in compliance with all state and federal requirements and that you are prepared for the increase in the minimum wage rate when it takes effect. If you have any questions regarding the new legislation or federal wage and hour laws, please contact the Ford & Harrison attorney with whom you usually work or John Duvall, jduvall@fordharrison.com, 904-357-2003, or Jeff Mokotoff, jmokotoff@fordharrison.com, 404-888-3804. •

We are pleased to announce that Ford & Harrison was among the highest ranked labor and employment law firms in the United States in this year’s edition of Chambers USA: America’s Leading Lawyers for Business. At the state level, the firm was also ranked at the top of its practice area in Tennessee and Florida and was among the highest rated labor and employment firms in Georgia, Illinois and South Carolina.

In addition to the overall firm awards, 15 individual Ford & Harrison attorneys from across the country were recognized by Chambers USA. They are: John-Edward Alley (Florida), Wade E. Ballard (South Carolina), Louis P. Britt, III (Tennessee), James G. Brown (Florida), Richard S. Cohen (Arizona), Peter R. Corbin (Florida), Joycelyn L. Fleming (Georgia), Thomas C. Garwood, Jr. (Florida), Herbert E. Gerson (Tennessee), Patricia G. Griffith (Georgia), Robert D. Hall, Jr. (Florida), Thomas J. Kassin (Georgia), Michael P. Maslanka (Texas), George J. Matkov (Illinois) and Arnold E. Perl (Tennessee).

Chambers & Partners conducted over 10,000 interviews over a period of more than six months in order to compile the information for Chambers USA. The factors used to determine the rankings are “legal ability, professional conduct, client service, commercial awareness, diligence, commitment, and other qualities most valued by the client.” •

Several states in which Ford & Harrison has offices have enacted legislation that may impact employers:

Colorado: Colorado has amended its antidiscrimination statute to add sexual orientation (which includes gender identity) and religion as protected classes. The law takes effect August 8, 2007.

Florida: A new law in Florida requires employers to provide employees up to three days of leave in a twelve-month period if the employee or a family or household member is a victim of domestic violence. The leave may be paid or unpaid, at the employer’s discretion.

Minnesota: Minnesota has revised its law protecting social security numbers to require employers to take steps to protect the privacy of employees’ social security numbers. This law takes effect July 1, 2008. Additionally, another new law requires Minnesota employers to provide notice of Minnesota’s Personnel Record Review and Access statute to employees when they are hired. This law takes effect January 1, 2008.

More information regarding these new laws is available on our website at http://www.fordharrison.com. •