With the assistance of Funkhouser Vegosen Liebman & Dunn Ltd., once again we are posting some employment related information for employers. As you can see, there is still a lot going on in the employment law arena. In this month’s update, there is information on Harassment, which makes a very compelling argument in favor of employers providing Harassment training to supervisors and employees on a regular basis. There is also information related to pay discrimination according to sex. Finally, there is information about employment practices regarding caregivers and how to make sure that you think about the legal implications related to a health care crisis such as the flu or any other future pandemic.
Harassment Development: Last month, in Sangamon County Sheriff’s Department v. Illinois Human Rights Commission, the Illinois Supreme Court upped the stakes for Illinois employers that fail to act proactively with regard to harassment. Under federal law, an employer may defend against a claim that a supervisor created a hostile work environment if (1) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, or (2) the employer exercised reasonable care to prevent and correct promptly the sexually harassing behavior. The decision holds that the defense is not available in Illinois at all if the harassment comes from a supervisory employee – even a supervisor who has no authority over the complaining employee. The case will have significant implications for Illinois employers: they will be strictly liable for the sexual harassment of an employee by a supervisory employee. As the dissent noted, this makes Illinois law more expansive than federal law and imposes a liability standard that appears to be without precedent in any jurisdiction of the U.S. Among other things, the decision makes more imperative than ever the need for employers to educate their managers and employees about how to prevent, investigate, and address harassment in the workplace.
Paycheck Fairness Act: The Paycheck Fairness Act (the “Act”) was introduced in the House of Representatives on January 6, 2009. The Act, if passed, will modify the Fair Labor Standards Act (the “FLSA”) to ensure that federal law provides effective protection to any employee subject to pay discrimination because of his or her sex. The Act passed the House with a small amount of bipartisan support (256 – 163) on January 9, 2009. The Act is currently pending in the Senate, where, as of April 29, 2009, it has undergone no major actions. If the Act does pass in the Senate, employers can almost be certain that President Obama will sign it into law because, as a Senator, President Obama sponsored an earlier version of the Act in the previous Congress in 2007.
The Act will amend the FLSA in several ways. In a nutshell, it will restrict certain defenses available to employers in pay discrimination claims, clarify some aspects of the Equal Pay Act, and expand the protections employees possess against retaliation from employers for exercising their rights under the Act. It also will allow employees to seek enhanced penalties against employers for violations of the FLSA, including damages for pain and suffering and damage to professional reputation. Finally, the Act will appropriate money to educate women and girls in negotiation skills and establishes the national award for pay equity in the workplace. The Department of Labor will also begin publishing information on its website about compensation discrimination and will publish new regulations interpreting the Act. If the Act becomes law, it will become effective six months after the date on which it is enacted, and the information and regulations explaining and interpreting the Act will be available 18 months thereafter.
Employer Best Practices for Workers with Caregiving Responsibilities: In 2007, the Equal Employment Opportunity Commission (the “EEOC”) provided guidance outlining the circumstances under which discrimination against employees with caregiving responsibilities might amount to discrimination based on sex, disability or other attributes that the federal anti-discrimination laws protect. http://www.eeoc.gov/policy/docs/caregiving.html. In April of 2009, the EEOC supplemented the 2007 guidance by offering employers suggestions that they may adopt to decrease the chance of EEO violations and to eradicate obstacles to equal employment opportunity. http://www.eeoc.gov/policy/docs/caregiver-best-practices.html. Neither the 2007 guidance nor the 2009 supplement form a new basis prohibited basis for discrimination. Instead, they illustrate circumstances in which stereotyping or other types of discrimination may run afoul of Title VII and the Americans with Disabilities Act. Employers would be wise to enhance their EEO policies to include provisions prohibiting discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.
Legal Implications of a Health Crisis in the Workplace: The U.S. Department of Health and Human Services recognizes that an influenza or other pandemic raises questions and concerns in the workplace that implicate existing employment laws at the Federal and State levels. Employers should keep in mind the following laws, among others, which may be applicable in the current environment and in the face of a future pandemic: the Occupational Safety and Health Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the workers’ compensation laws applicable in the states in which they conduct business. For more discussion, visit http://www.fvldlaw.com/newsletters/2009-05.htm.
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