Lactation is Pregnancy-Related After All

May 31, 2013 by Leave a Comment

 

Judge Lynn D. Hughes

Judge Lynn D. Hughes

A federal appeals court panel has unanimously ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

 The decision by the  U.S.  Court of Appeals for the Fifth Circuit  in Houston, TX,  overturns a somewhat notorious ruling last year by U.S.  District Judge Lynn N. Hughes, also of Houston.

 Judge Hughes ruled that federal law did not prevent Houston Funding II, L.L.C., from firing a new mother because she asked for permission to pump breast milk in a back office after she returned to the job. He concluded that “lactation is not pregnancy, childbirth, or a related medical condition”. and thus  “firing someone because of lactation or breast-pumping is not sex discrimination.”

Houston Funding had argued Title VII does not cover “breast pump discrimination” and filed a motion for summary judgment, which was granted by Judge Hughes. 

The  dismissal was appealed by the U.S. Equal Employment Opportunity Commission (EEOC), which had filed the lawsuit  on behalf of the employee, Donnicia Venters, who gave birth to a baby girl in 2008.

 The Fifth Circuit ruled that Title VII (as amended by the Pregnancy Discrimination Act of 1978) protects working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.  The appeals court ruled:

“Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth … It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child.”

The court reasoned that firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.

The case was remanded back to the lower court for a trial on the merits.

 David Lopez, General Counsel of the EEOC, said, “We are gratified that the Fifth Circuit gave plain meaning to the words of the Pregnancy Discrimination Act and ruled in our favor that discrimination on the basis of lactation is discrimination on the basis of sex.”

The EEOC looks forward to trying  the case, according to Jim Sacher, regional attorney in the EEOC’s Houston District Office, which brought the initial litigation. “We hope this litigation sends a message to other women that discrimination based on pregnancy, childbirth and related conditions is against the law and that the EEOC is here to help,” he said.

One of the six national priorities identified by the Commission’s Strategic Enforcement Plan is to address emerging and developing issues in equal employment law, including issues involving pregnancy-related limitations.

According to the website www.houstonfunding.com, Houston Funding “is a company which purchases charged-off debt portfolios nationwide from most large institutions.”

Filed Under: DISPATCHES Tagged With: , , , , , , , , , , , , , , , , , ,

Fed Cts Eschew SM

May 31, 2013 by Leave a Comment

youtubeAre federal courts out of touch?

 The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

 Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business  and that federal judges disproportionately dismiss employment cases.  But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities  offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

 One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

 Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

  •   Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
  •  Social media offers the potential for timely dissemination of  useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
  •  Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods?  Where do pro-se litigants sit in a courtroom and how do they present their case to a judge? 
  • Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

 Perhaps most importantly, social media offers the federal court system the opportunity to  build trust in the institution and to counteract common negative stereotypes about federal courts -  remote, insular,  obtuse,  elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes  affect the public’s understanding of the important issue of judicial independence.  Enhanced trust also could come in handy when the federal court asked  taxpayers for money to operate.

  One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are  most in use by the general public?  And, the last time I looked,  Facebook, YouTube and Twitter were free. 

Filed Under: DISPATCHES Tagged With: , , , , , ,

Most Widely Flouted Law Since Prohibition?

May 30, 2013 by Leave a Comment

InternshirtA high school student spoke recently  at a public event and said he was forced to work three jobs to support his family after his undocumented father was “detained” by immigration authorities.

 Is this student a candidate for a non-paying summer internship – the kind that gives students an advantage in college admissions or, if they’re already in college, educational credits or better job prospects?

 Of course not.

  And that’s just one of the problems with non-paying internships.

 The other problem is that many of these internships are a complete sham.  Technically, the Fair Labor Standards Act requires a company that does not pay interns to provide skills and opportunities that clearly benefit the interns.  The company can’t gain anything from the interns’ work. However, this  provision of the FLSA is perhaps the most widely flouted law since America banned alcohol during prohibition.

 A check of an internet job board this week found hundreds of  unpaid internship “opportunities”  from such employers as The National Republican Senatorial Committee and The Pittsburg Penguins hockey team.

Even the American Civil Liberties Union (ACLU), which says it has been “at the forefront of virtually every major battle for civil liberties and equal justice in this country” for 92 years, uses unpaid interns. 

 Interestingly, the ACLU’s  Summer 2013 Internship program seeks students to work in  “graphic design and multimedia.” Applicants should, among other things,  have digital design experience and be proficient in Adobe InDesign, Photoshop and Illustrator.

According to the ACLU ad:

 “The Graphic Design Internship offers the opportunity to gain exposure to the digital design aspect of Communications and its use to support the ACLU’s work.  Interns can expect to work on a variety of branding and key issue projects including the production of printed materials and graphics and design for the ACLU web site(s), multimedia and social media channels.”

Is the ACLU just trying to get hot young talent to work for free? 

You decide.

 Several interns have filed lawsuits in recent years claiming they were assigned to do substantive but unpaid work for the organization and/or menial tasks like doing errands and getting coffee that  conferred benefit on the organization but had no educational value. 

 Last year, former intern Lucy Bickerton filed a class action lawsuit against TV talk show host Charlie Rose. The lawsuit said Ms. Bickerton, a 2008 graduate of Wesleyan University, had various responsibilities at the show, including providing background research for Mr. Rose about interview guests, assembling press packets, escorting guests through the studio, breaking down the interview set after daily filming and cleaning up the green room. Rose and his production company settled the case by paying 190 ex-interns between 2006 and 2012  a total of up to  $250,000 in unpaid wages.

 (Obviously,  Ms. Bickerton was not represented by the ACLU. )

Test for  unpaid internship 
A for-profit institution does not have to pay an employee whose work serves only his or her own interests.  Here is the test used by the U.S. Department of Labor to determine whether a worker is a bona fide intern:

  • The internship is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff; 
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and 
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

NOTE:  Although the ACLU calls their “interns” interns, there is an  FLSA exemption for those who volunteer for religious, charitable, civic or humanitarian non-profit organizations and individuals who volunteer to perform services for a state or local government agency..

Filed Under: DISPATCHES Tagged With: ACLU, American Civil Liberties Union, Charlie Rose, Fair Labor Standards Act of 1938, Intern, Internship, Lucy Bickerton, Prohibition, Summer internship, unpaid internship
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