Supreme Court

SUPREME COURT LEAVES (MOST) PREGNANCY ACCOMMODATION CASES TO THE JURY

Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity. However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy...the same for all employment-related purposes..as other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations - that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.

Don't Dawdle If You've Been Denied Employee Benefits - Your Time to File a Lawsuit May Be Shorter Than You Think

Have you been denied benefits form your employer, such as for long-term disability benefits? Depending on the terms of the benefits plan, the time to appeal that denial may be very short - and the clock may even start running before an employee is allowed to bring a lawsuit. A pending Supreme Court case may bring some sanity to this area, but for the time being, an employee who feels their benefits were wrongfully denied must be very careful to avoid losing all rights to go to court. Under the federal Employee Retirement Income Security Act (ERISA), an employee who feels they were wrongfully denied benefits must first exhaust all administrative remedies first - generally, by appealing the denial to an administrator of the benefits plan. Only after that appeal has been exhausted can the claimant bring a case in court challenging the denial of benefits. In New York, the deadline to bring a claim for an ERISA wrongful denial of benefits claim is six years after the denial.

That is not the end of the story, however. Many benefit plans reduce the deadline to bring a lawsuit to less than the six years provided by law. Furthermore, those benefit plans often provide that the clock starts ticking when the claim is filed - not when the administrative appeal is finally denied. If the administrative appeal takes a long time, then the lawsuit might be due a short time after that appeal gets decided. Here in the Second Circuit, this is a-OK. Burke v. Pricewaterhouscoopers LLP, 572 F.3d 76 (2 Cir. 2009).

The Supreme Court will soon weigh in. In Heimeshoff v. Hartford Life, the employee’s long term disability policy required that any court action be brought within three years of the claim being made, and required that the administrative appeal be finished before any court action could be filed. Worse for the employee, these deadlines were not in the summary plan description, but were buried in the plan itself. She filed her lawsuit within three years of the administrative appeal being denied, but more than three years after she filed her claim. The district court, citing Burke, dismissed her case as untimely, and the Second Circuit agreed. The Supreme Court took the case, presumably because other circuits require the clock to start ticking only after the administrative appeal is denied.

Even if the Supreme Court reverses the decision, and requires a benefits plan’s statute of limitations to only start once the administrative appeal is decided, employees should still not dawdle in asserting their rights. Employers have great latitude in shortening the deadline to file a lawsuit, and with those deadlines often buried in a densely-worded benefits plan, employees could find themselves out of time very quickly - deadlines of as short as 45 days have been upheld. Anyone wrongfully denied employee benefits should consult with an experienced lawyer as soon as possible.

Supreme Court narrows who is a "supervisor" under Title VII

Few things in employment law are more convoluted than the rules the Supreme Court has made for holding employers responsible for sexual harassment at the workplace. Those rules anticipate three possible situations: 1. The harassment is done by a supervisor, and results in a "tangible employment action," such as getting demoted, fired, suspended, or losing salary. Think of the boss firing his assistant for refusing to go out with him. When this happens, the employer is automatically liable for the harassment.

2. The harassment is done by a supervisor, but there is no tangible employment action. Think of the boss hanging pornography at his desk and constantly making unwanted sexual advances on his assistant. When this happens, the employer is liable for the harassment, but can get out of trouble if it can prove that a) it took reasonable care to prevent the harassment, and to correct it if it did occur, and b) the victim unreasonably failed to take advantage of the procedures available to correct the harassment. So if a supervisor harasses a victim, without a tangible employment action, and there weren't effective workplace procedures in place, the employer is liable.

3. The harassment is done by a co-worker. Here, the employer is liable only if the victim can prove the employer was negligent in controlling the workplace. Think of the assistant being harassed daily by a salesperson, with everyone in the office, including the boss, aware of it, but the employer does nothing - the employer is probably liable. But if the employer had no reason to believe that the harassment would happen, and took steps to stop it as soon as it learned the harassment happened, the victim is going to have a hard time winning that case.

So, victims of sexual harassment have an easier time of it if they can show their harasser is a supervisor. Of course, that means the Supreme Court wants to make it harder to show someone is a supervisor. In Vance v. Ball State, decided on June 24th, Justice Alito's decision held that to be a supervisor for Title VII purposes, that individual must have the power to take a tangible employment action against the victim. This is contrary to the rule put forth by the Equal Employment Opportunity Commission (EEOC), which provided someone could be a supervisor if they controlled the day to day events in the victim's workplace. The Vance decision also overturns the longtime rule in the Second Circuit, which similar to the EEOC's rule, defined a supervisor as someone who had the authority to direct the victims daily activities. Mack v. Otis Elevator, 326 f.3d 116 92d Cir. 2003). Now, to be considered a supervisor, the harasser must have the authority to hire, fire, promote (or fail to promote), reassign with different responsibilities, or change salary or benefits.

What remains to be seen is how courts, under this new rule, will react to employers who try to artificially limit the number of supervisors by requiring all tangible employment decisions to be approved by a few, senior managers, or even a single owner for small employers. The Vance decision addresses this briefly, and implies that if the real authority lies with the lower level employee who recommends tangible employment actions, with the more senior employee not truly exercising independent judgment over tangible employment actions, the lower level employee will be considered a supervisor under Title VII. But time will tell how much input a more senior manager needs to have before his subordinate is no longer considered a supervisor.

What is clear from Vance is that a harasser with the ability to make a victims workday unpleasant - as in a famous case where the harasser told his victim, "go out with me or you'll be cleaning toilets for a year," will only result in employer liability under Title VII if the employer is negligent in some way.

There is good news, however, for employees in New York City. The New York City Human Rights Law (HRL) makes employers automatically liable for harassment caused by an employee who "exercised managerial or supervisory responsibility." NYC Administrative Code 8-107(13)(b)(1). Prior to Vance, the only New York State court to consider the question adopted the less restrictive EEOC and Second Circuit definitions of supervisor; see O'Niel v. Roman Catholic Diocese of Brooklyn, 927 N.Y.S.2d 818 (N.Y. Sup. Ct. April 27, 2011). This reasoning should survive the Vance decision, since the HRL, by its own terms, is to be interpreted broadly and independently of Federal courts' interpretation of Title VII. So, in New York City at least, to be a supervisor one need only have day to day authority over an employee, and need not have the power to hire, fire, demote, etc.