Articles Posted in Pregnancy Discrimination

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FMLA Retaliation Claims Can Lead to Personal Liability of HR Managers

In a recent Second Circuit decision, Graziadio v. Culinary Institute of America, No. 15-888 cv (2d Cir. March 17, 2016), the court found that an HR manager could be personally liable under the Family and Medical Leave Act (FMLA), 26 U.S.C. Section 2601 et seq. This is an important decision for employees and employers to take note of. Handling FMLA claims are fact sensitive and legal counsel ideally should be involved from the outset. Our Award Winning New York Employment Lawyer helps employers and employees understand their rights and responsibilities in leave situations.
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Thumbnail image for Pregnancy.Discrimination.Woman.in.Office.Dollar.Photo.Club.12.5.15.jpgLast week, a woman (“plaintiff’) filed a lawsuit against the Procter & Gamble Company (“P&G”) and alleges that she was fired because of her pregnant condition and in retaliation for her reasonable accommodation requests. Specifically, she alleges that she worked as a beauty style and sales associate for Dolce & Gabbana (which P&G owns) and was fired because her pregnant look did not convey the image that the Company was seeking and the Company did not want to provide her with the requested accommodations. The plaintiff alleges that she was required to adhere to “strict image rules” regarding her physical appearance. She alleges that one manager said that “pregnancy is not part of the uniform.” She further alleges that she was denied requested sit down breaks in a nearby work location. Her doctor had suggested she take due to her medical condition. A short time later, the plaintiff was fired for work-related issues. The plaintiff alleges that the basis for the termination was a pretext for pregnancy discrimination and was done in an unlawful retaliatory manner. This is a new case and bears following. There have been many other cases where an employee claimed that he or she was fired because the Company only wanted a specific look or image. In fact, courts have rejected that The case was filed under the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964, which prohibit discrimination based on pregnancy in any aspect of employment. Click on this link for a fact sheet from the Equal Employment Opportunity Commission on pregnancy discrimination.

If you or anyone you know has any questions about the rights for pregnant workers or an employer’s obligations under the law, contact our office for a confidential consultation.

Disclaimer: Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction. From time to time, a blog post may discuss a legal case – please note that the post may not contain the most to update information on the case as developments may have occurred after it was created.
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Scales.of.Justice.Men.Women.Dollar.Photo.Club.12.9.15.jpgNew York Governor Andrew Cuomo and the State Department of Labor (“DOL”) have taken several steps in recent weeks that will significantly affect employers in 2016. Among other changes to be discussed in upcoming blogs, these changes concern the rights of women in the workplace. Our Award-Winning New York Sexual Harassment Lawyer summarizes some of those changes below.

Updates to Statutes Concerning Women’s Equality

Governor Cuomo signed into law five new statutory provisions affecting women’s rights in the workplace, all of which will become effective on January 19, 2016:

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Pregnancy.Discrimination.Woman.in.Office.Dollar.Photo.Club.12.5.15.jpgPregnancy discrimination is wrong. When an employee notifies her employer that she is pregnant, she should not have to fear termination or another form of reprisal. But, according to April Raines, that is exactly what happened to her.

Ms. Raines alleged that she was a skin care specialist at CFS Health Management Inc. DBA Shefa Wellness Center and was fired two days after she notified the Company’s owner that she was pregnant. Further, it was alleged that the owner of the Company told her that she had deceived the Company by not disclosing her pregnancy during the job interview. This conduct violates that Pregnancy Discrimination Act. After a lawsuit was filed the Company agreed to a settlement with a monetary payment of $37,000, and other conditions including training and posting notices. While the matter was settled, the Company denied any wrongdoing. This is just one example of difficulties that women face in the workplace.

The Pregnancy Discrimination Act is an amendment to the Title VII of the Civil Rights Act of 1964. It specifically prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.

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above-the-bar-logo.jpgA New Jersey District Court Judge this week denied Bayer HealthCare Pharmaceuticals’ (“Bayer”) request to stop eight women from being considered for a class action. The complaint alleges violations under the Equal Pay Act and charges of discrimination in pay and promotions.

The women’s class action lawsuit seeks declaratory and injunctive relief, back pay, front pay, lost benefits, compensatory, nominal and punitive damages in the amount of $100 million or more for all female employees similarly situated. The group of women holds positions which include that of Associate Director, Deputy Director, and Director in the Women’s Healthcare and Oncology Division. If you feel you have been discriminated against regarding any aspect of employment because of your sex, call our attorneys to determine the strength of your discrimination claims.

The women’s complaint was filed in March, 2011 and originally brought by 6 women on behalf of themselves and a class of female employees under Title VII of the 1964 Civil Rights Act and New Jersey law. The complaint charged Bayer with a pattern and practice of discrimination in pay, promotions, and the treatment of pregnant women and mothers. The complaint set forth that Bayer has published and handed out articles that implied that men were better suited to be managers than women and described women as prone to “mood swings,” “indecision,” and “backstabbing.” It also stated that “women with power are loose cannons who often feel threatened by colleagues.” The complaint also alleged that senior managers made negative remarks about childcare responsibilities and passed over for promotions women who used maternity leave.

Before bringing this lawsuit, the women filed internal complaints which went unaddressed. After filing their complaint, Bayer’s managers told them that they should “know better” and that the “company won’t do anything about their complaints.” Bayer’s human resources department told the women that their complaints of gender discrimination should be handled by themselves and not the company.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in pay based on sex and the Equal Pay Act provides that men and women in the same workplace should be paid the same for doing the same work. Although the jobs do not need to be identical, they must be substantially equal. Both Acts cover every aspect of pay including salary, overtime pay, bonuses, stock options, life insurance, vacation and holiday pay, as well as benefits and compensation. If you are earning less and doing the same work as a male employee in your company, your boss may not lower his wages to equalize your pay.

It is a shame that a multinational pharmaceutical giant such as Bayer refused to provide equal treatment to its female employees. Even in this day and age, sex discrimination blatantly exists. If you are earning less than your male counterpart or being passed up for promotions because of your sex or because you took your federally protected right to maternity leave, call our Gender Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you recover your workplace rights.
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Thumbnail image for Thumbnail image for above-the-bar-logo.jpgA federal judge in Houston recently ruled that it was not sex discrimination where a woman was fired because she asked for a place to pump her breast milk. The Judge’s ruling stated that “lactation is not pregnancy, childbirth, or a related medical condition.” Other district courts in the country have also issued similar rulings. However, this issue has not been ruled on by any higher level appeals courts.

The woman who was fired over this issue, Donnicia Venters, worked for Houston Funding as an account representative for about 3 years and had even earned a promotion. Venters took maternity leave in December 2008 and gave birth to her now 3 year old daughter. According to cell phone records and her former supervisors’ statements, Venters kept in close touch with her employer during her 10 week maternity leave. While she was on leave, she told her direct supervisor at least twice, that she wanted to pump milk while on her break, and asked him to get permission from their boss, Vice President Harry Cagle.

Venters’ supervisor, Fleming, stated in an affidavit that when he told Cagle about Venters request, he responded “No. Maybe she needs to stay home longer.” Ventors stated that when she told Cagle she wanted to pump breast milk in a back room during breaks, his “demeanor changed. He paused for a few seconds and said, ‘I’m sorry. We’ve laid you off.”

Houston Funding argued during the lawsuit that it fired Venters because she did not keep in contact with the company and didn’t come back to work as scheduled. The EEOC argued that Venters spoke to her supervisor at least once a week during her maternity leave and that Houston Funding’s allegation that she was fired for “job abandonment” was a “pretext for unlawful discrimination.”

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, makes it illegal for an employer to discriminate against employees because of their sex, including pregnancy, childbirth or related medical conditions.

President Obama’s health care law talks about breast feeding and requires employers to give mothers a break to nurse. However, if a woman asks to pump breast milk, it does not specifically protect her from getting fired. The laws intent was to get nursing mothers back to work and allow them to continue nursing for its health benefits. The law gives you break time to nurse, but it does not protect you from getting fired when you take that break to pump breast milk.

According to several federal district court rulings, lactation discrimination is not illegal. Obama’s health care law is quite useless if it provides you with a break to pump breast milk but doesn’t protect you from getting fired for doing so. The EEOC has not yet decided whether it will appeal the Court’s decision. Clearly, the health care law on this issue needs to be amended or the courts need to interpret the law using common sense. If its illegal to discriminate based on pregnancy, then discrimination based on lactation should follow. Lactation is a “related medical condition” to pregnancy.

Although lactation discrimination is not currently prohibited, discrimination based on pregnancy is illegal. If you or anyone you know has suffered from discrimination based on pregnancy or a related issue, call our Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you protect your workplace rights.
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