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gavelIn an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.

While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here)  is sure to be the subject…

As I said before, the notion that this might be a quiet year for employment law legislation at the Connecticut General Assembly has long since left the train station.

Indeed, we’ve appear to be swinging completely in the opposite direction. Anything and everything appears up discussion and possible passage this year — including items that really stood no chance in prior years.

GA2I’ll leave it for the political pundits to analyze the why and the politics of it all. But for employers, some of these proposals are going to be very challenging, at best, if passed.

One such bill, which appeared this week on the “GO” list (meaning its ready for considering by both houses) is House Bill 6850, titled “An Act on Pay Equity and Fairness”.  Of course, you won’t find those words in the bill itself which is odd.  There is nothing about pay equity in the bill; indeed, it is much much broader than that.

It stands in contrast to, say, the Lilly Ledbetter Fair Pay Act, which tried to tackle gender discrimination in pay directly.

This bill would make it illegal for employers to do three things. If passed, no employer (no matter how big or small) could:

  • Prohibit an employee from disclosing, inquiring about or discussing the amount of his or her wages or the wages of another employee;
  • Require an employee to sign a waiver or other document that purports to deny the employee his or her right to disclose, inquire 1about or discuss the amount of his or her wages or the wages of  another employee; or
  • Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who discloses, inquires about or discusses the amount of his or her wages or the wages of another employee.

You might be wondering: Isn’t this first bill duplicative of federal law? And the answer is yes, and then it goes beyond it.  Federal labor law (the National Labor Relations Act) already protects two or more employees discussing improving their pay as a “protected concerted activity”.  It’s been on the books for nearly 80 years. So, as noted in an NPR article:

Under a nearly 80-year-old federal labor law, employees already can talk about their salaries at work, and employers are generally prohibited from imposing “pay secrecy” policies, whether or not they do business with the federal government.

This provision goes beyond that by making it improper for an employer to prohibit an employee from even disclosing another employee’s pay.Continue Reading “Pay Secrecy” Bill Goes Above and Beyond Other Proposals

IIMG_9091 don’t care who you are: Somewhere, in a doctor’s waiting room, or a supermarket checkout line, you’ve seen the headlines of Cosmopolitan magazine.

But, as luck would have it as an employment lawyer, imagine my surprise when I saw this headline:

“He Did WHAT?! The Cosmo Guide to Surviving Sexual Harassment at Work

…

With Congress in gridlock, we haven’t seen any federal laws impacting employment law for several years. Instead, we’ve now started to see a lot more action at the state legislative level where proposals to modify everything from family leave to the minimum wage are being passed in, it seems, increasing numbers.

Therefore, what happens in other states is becoming much more important.  For instance, we saw that Connecticut was considering an immigration-related employment bill that was modeled on laws in other states. 

Because of this, and because many employers now have businesses in multiple states, I’ve asked my friend, Courtney Ward-Reichard, a shareholder at Nilan Johnson Lewis in Minneapolis, to share her insights about a pretty broad employment law bill that was just signed into law earlier this week in Minnesota.  While Connecticut already has adopted some of these items, others may be on the horizon, such as lowering the employee threshhold for family leave to 20 or more employees. After all, if one state has passed it, propoants can argue that Connecticut’s passage won’t put us as a competitive disadvantage when compared with similar states. 

In any event, my thanks to Courtney for her insights here.

On May 11, 2014, Minnesota Governor Mark Dayton signed landmark legislation – a group of bills that became known as the Women’s Economic Security Act (“WESA”). WESA will most directly affect employers with operations and employees in Minnesota. But employers in Connecticut and elsewhere should take note: this legislation – or its components – may well serve as a model in other states.

Here are the most significant changes:

• Creates new protected class for familial status: WESA expands the Minnesota Human Rights Act (“MHRA”) by adding familial status as a new protected class. Employers will likely face new state charges and lawsuits alleging discrimination on the basis of this status, and victorious plaintiffs may seek not only damages, but also their attorneys’ fees. This expansion makes Minnesota unusual, as federal law and most states’ laws do not include familial status as a protected class. This change became effective the day after Governor Dayton signed the bill.

• Expands pregnancy and parenting leave: Covered employers (with over 20 employees) must provide up to twelve weeks of unpaid leave to eligible employees for: 1) the birth or adoption of a child; or 2) prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions (for female employees). Employees may take the first type of leave within twelve months of the birth/after the child leaves the hospital. These changes will be effective July 1, 2014, and will affect numerous employers who are not covered by the federal FMLA. Employers will be allowed to require employees to use their sick leave during parental leave, and the leave will also run concurrently with any FMLA leave.


Continue Reading Guest Post: Women’s Economic Security Act May Serve As Model for Other States

Not every case that comes out from the Connecticut Appellate Court makes headlines.

Take the case of Walker v. Department of Children & Families, a new case that will be officially released next week (download here).

It is a fairly ordinary discrimination case — albeit a rare one where the employer has been successful on a motion for summary judgment. It is also a textbook example of how slow the legal system can be, with the court decision coming eight years after the employee was fired.

The plaintiff was hired as a social worker in June 2004 and was notified that he needed to successfully complete a “ten month working west period.”  His first performance review, about 10 weeks in, was generally favorable.  By December, though, he was transferred to a new unit and was required to prepare documents to be filed in court and attend court proceedings.Continue Reading Appellate Court Upholds Summary Judgment for Employer

Let’s play the “law school hypothetical” game for a minute.  (I know, not as exciting as a cat being chosen in Monopoly, but bear with me.)

You hear the following allegations:

  • An gay, male employee starts works as a teacher in an “New Beginnings Alternative” program at a public school.
  • During his employment, he is subject to derogatory statements by a fellow teacher, a school police officer and a supervisor.
  • Allegedly a supervisor tells a social worker that the employee is “too flaming” or “too flamboyant”. Also, a fellow teacher is alleged to have said to the employee at a department meeting that “You are so overdramatic, you are being a bitch just like a woman.”
  • The employee is criticized for not being a “team player” and that his “apparent proneness towards using sarcasm and humor (that is often not understood by others) must change.”
  • The employee believes that the supervisor’s comments regarding how he and others cannot understand the employee’s sense of humor “stems from their divergent social views and pervasive stereotypes on gender and sexuality.”
  • Ultimately, the employee is informed that his contract may not be renewed which does, in fact, lead to a non-renewal of the contract.

Assuming, as you must for the moment, that the allegations are all true, does the employee have any claims? If so, what are they?Continue Reading Can Being Called “Too Flamboyant” Be Basis for State Gender Discrimination Claim?

Over the last week, two unrelated stories caught my eye.  For employers, they are a reminder that claims of pay inequality based on gender are still something to be concerned about. 

Photo Courtesy Library of Congress c. 1943

The first story is that Governor Malloy announced plans for a new study to examine “factors that contribute to the gender wage gap in Connecticut’s workforce.” 

The study will be run by  new Connecticut Department of Labor Commissioner Sharon Palmer and Department of Economic Development Commissioner Catherine Smith.  The Governor has asked the commissioners to make recommendations on the issue by October 2013.   

I’ve talked about this issue before; there are some who believe that the wage gap is overstated.  But the study will make headlines this year and this renewed focus in Connecticut on the issue should have employers revisiting their own practices.

The second story illustrates the claim in much more real world terms and shows the perils of trying to navigate your way through such claims. 

In Morse v. Pratt & Whitney, decided last week, a federal court — among other issues — denied an employer’s motion for summary judgment on an Title VII unequal pay claim.Continue Reading Gender Inequality Claims Make Headlines in Case and in New Study

Early Saturday morning, the Connecticut General Assembly passed two bills that will have a significant impact on employers in Connecticut.  Both bills now need to be signed by the Governor (who has indicated he will sign them).

First, the Senate passed House Bill 6599, which adds “gender identity or expression” as a new protected…