An OVERVIEW of State and Federal Laws Regarding Discrimination

1. An OVERVIEW of State and Federal Laws Regarding Discrimination J. Gregory Grisham, Esq. Leitner, Williams, Dooley & Napolitan, PLLC 414 Union Street, Suite 1900 Nashville, Tennessee 37219 (615) 255-7722 greg.grisham@leitnerfirm.com

2. Federal & States Laws Regarding Discrimination • OVERVIEW OF EMPLOYMENT LAWS • Several Layers of Laws: • Federal • State (statutory, common law) • Local (County, City, Municipality)

3. Federal & States Laws Regarding Discrimination • Federal Laws • Title VII (15 or more employees) • covers race, sex, color, religion, and national origin • covers employees, job applicants, former employees, applicants or participants in a training or apprenticeship program • forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. • Summaries of federal law were adopted from material on the EEOC.gov and DOL.gov websites.

4. Federal & States Laws Regarding Discrimination • Also prohibits harassment based on race, color, sex, religion, or national origin. • Also requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. ***EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII ***EEOC Guidance on Religious Dress and Grooming Accommodation

5. Federal & States Laws Regarding Discrimination 2. Pregnancy Discrimination Act • Forbids discrimination based on pregnancy when it comes to any aspect of employment. • If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. • It is unlawful to harass a woman because of pregnancy, childbirth, or a related medical condition.

6. Federal & States Laws Regarding Discrimination 2. Pregnancy Discrimination Act • New Guidance from the EEOC (7/24/2014) • Cert Granted 7/1/2014 Young v. UPS • On issue of work accommodations for pregnant workers-whether they are required and under what circumstances.

7. Federal & States Laws Regarding Discrimination • Immigration Reform and Control Act of 1986 (IRCA)  • Employers with four or more employees may not: • Discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. • Discriminate because of citizenship status against U.S. citizens, U.S. nationals, and classes of aliens with work authorization. • Charges filed with Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices.

8. Federal & States Laws Regarding Discrimination 4. Americans with Disabilities Act (ADA as amended) • Disability discrimination occurs when an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because he has a disability. • Disability discrimination also occurs when an employer treats an applicant or employee less favorably because he has a history of a disability or because he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).

9. Federal & States Laws Regarding Discrimination • The ADA requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). • The ADA also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability. • Under the ADA it is illegal to harass an applicant or employee because he has a disability as defined above.

10. Federal & States Laws Regarding Discrimination • Genetic Information Nondiscrimination Act of 2008 (GINA) • It is illegal to discriminate against employees or applicants because of genetic information. GINA prohibits the use of genetic information in making employment decisions, and restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. • Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about a disease or disorder of family members.

11. Federal & States Laws Regarding Discrimination • Under GINA, it is also illegal to harass a person because of his or her genetic information. • It is also unlawful for a covered entity to disclose genetic information. Covered entities must keep genetic information confidential (also other medical information) and in a separate medical file. • It will usually be unlawful for a covered entity to get genetic information. There are six narrow exceptions to this prohibition (ex. genetic information may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis).

12. Federal & States Laws Regarding Discrimination 6. 42 U.S.C. Section 1981 (a) Statement of equal rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

13. Federal & States Laws Regarding Discrimination (b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. • Covers Retaliation. CBOCS West, Inc. v. Humphries (US 2008)

14. Federal & States Laws Regarding Discrimination • The Equal Pay Act (EPA) (applies to employers covered by the FLSA) Tennessee Equal Pay Act Tenn. Code Ann. § 50-2-201 et seq. • The EPA requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law. • If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

15. Federal & States Laws Regarding Discrimination • Equal Wages: Must be paid in the same form. For example, an employer cannot pay a higher hourly wage to a male employee and then attempt to equalize the difference by periodically paying a bonus to a female employee. • The EPA speaks in terms of equal work, but the word "equal" does not require that the jobs be identical, only that they are substantially equal. In comparing two jobs for purposes of the EPA, consideration should be given to the actual job duties, not job titles or classifications. The EEOC looks at whether both jobs require the same skill, effort and responsibility.

16. Federal & States Laws Regarding Discrimination • Skill: Measured by factors such as the experience, ability, education and training required to perform a job. Possession of a skill not needed to meet the requirements of the job should not be considered. For example, a hotel clerk alleges that he is paid less than a female who performs substantially equal work. He has a high school diploma while his female co-worker has a college degree. However, performance of the two jobs requires the same education, ability, experience, and training. • Therefore, the skill required to perform the two jobs is substantially equal. A college degree does not justify a higher salary because it is not needed to perform the job. • Effort: Amount of physical or mental exertion needed to perform job.

17. Federal & States Laws Regarding Discrimination • Responsibility is usually defined as the degree of accountability required in performing a job. Factors to be considered in determining the level of responsibility in a job include: • Extent to which employee works without supervision, • Extent to which employee exercises supervisory functions, and • Impact of employee's exercise of his or her job functions on the employer's business. • Ordinarily, "establishment" means a physically separate place of business. However, given that many employees have virtual offices, the EEOC assesses whether the "establishment" is separate on a case-by-case basis. • Working conditions usually consist of two factors: Surroundings and Hazards.

18. Federal & States Laws Regarding Discrimination The Lilly Ledbetter Fair Pay Act of 2009 • On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009("Act"), which supersedes the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). Ledbetter had required a compensation discrimination charge to be filed within 180 days of a discriminatory pay-setting decision (or 300 days in jurisdictions that have a local or state law prohibiting the same form of compensation discrimination).

19. Federal & States Laws Regarding Discrimination • The Act restores the pre-Ledbetter position of the EEOC that each paycheck that delivers discriminatory compensation is a wrong actionable under the federal EEO statutes, regardless of when the discrimination began. As noted in the Act, it recognizes the "reality of wage discrimination" and restores "bedrock principles of American law." • Under the Act, an individual subjected to compensation discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990 may file a charge within 180 (or 300) days of any of the following: • when a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;

20. Federal & States Laws Regarding Discrimination • when the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or • when the individual's compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice. • The Act has a retroactive effective date of May 28, 2007, and applies to all claims of discriminatory compensation pending on or after that date.

21. Federal & States Laws Regarding Discrimination • Age Discrimination in Employment Act (ADEA)(20 or more employees) • Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The ADEA forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40. • Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. • It is unlawful to harass a person because of his age.

22. Federal & States Laws Regarding Discrimination • Family Medical Leave Act (FMLA) DOL • The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

23. Federal & States Laws Regarding Discrimination Twelve work weeks of leave in a 12-month period for: • the birth of a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee’s spouse, child, or parent who has a serious health condition;

24. Federal & States Laws Regarding Discrimination • a serious health condition that makes the employee unable to perform the essential functions of his or her job; any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or • twenty-six workweeks of leave during a single 12-month period to care for a covered service-member with a serious injury or illness if the eligible employee is the service-member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

25. Federal & States Laws Regarding Discrimination The FMLA only applies to employers that meet certain criteria. A covered employer is a: • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer. • Public agency, including a local, state, or Federal government agency, and public or private elementary or secondary schools regardless of the number of employees.

26. Federal & States Laws Regarding Discrimination Only eligible employees are entitled to take FMLA leave. An eligible employee is one who: • Works for a covered employer; • Has worked for the employer for at least 12 months; and • Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and works at a location where the employer has at least 50 employees within 75 miles.

27. Federal & States Laws Regarding Discrimination • Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit the following actions: • An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. • An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. • An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.

28. Federal & States Laws Regarding Discrimination • All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has: • Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA; • Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or • Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

29. Federal & States Laws Regarding Discrimination Examples of prohibited conduct include: • Refusing to authorize FMLA leave for an eligible employee, • Discouraging an employee from using FMLA leave, • Manipulating an employee’s work hours to avoid responsibilities under the FMLA, • Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or, • Counting FMLA leave under “no fault” attendance policies. • Any violations of the FMLA or the Department’s regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA.

30. Federal & States Laws Regarding Discrimination • Uniformed Services Employment and Reemployment Rights Act (USERRA) • USERRA protects civilian job rights and benefits for veterans and members of the active and Reserve components of the U.S. armed forces. • USERRA provides that returning service-members must be promptly reemployed in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.

31. Federal & States Laws Regarding Discrimination • Employee has a private cause of action without any required prior administrative action or exhaustion of remedies, but can file a complaint with DOL. • Employee’s litigation can lead to a forced rehire, benefits, job placement and monetary award. • Back wages and compensation for benefits, plus pre- and post-judgment, interest; Attorney fees and litigation expenses; and potential liquidated damages (double).

32. Federal & States Laws Regarding Discrimination 11. Occupational Health & Safety Act • Health and safety regulations. • OSHA is violated when an employer fires, demotes, transfers, or discriminates in any way against a worker for filing a complaint or using other OSHA rights. • Complaints are filed with OSHA who conducts an investigation. Tennessee has TOSHA Tenn. Code Ann. § 50-3-101 et seq.

33. Federal & States Laws Regarding Discrimination 12. Federal Whistleblower Laws OSHA enforces 22 whistleblower laws: • Asbestos Hazard Emergency Response Act (90 days) • Clean Air Act (30 days) • Comprehensive Environmental Response, Compensation and Liability Act (30 days) • Consumer Financial Protection Act of 2010 (180 days)

34. Federal & States Laws Regarding Discrimination • Occupational Safety and Health Act (30 days) • Pipeline Safety Improvement Act (180 days) • Safe Drinking Water Act (30 days) • Sarbanes-Oxley Act (180 days) • Seaman’s Protection Act (180 days) • Section 402 of the FDA Food Safety Modernization Act (180 days) • Section 1558 of the Affordable Care Act (180 days)

35. Federal & States Laws Regarding Discrimination • Consumer Product Safety Improvement Act(180 days) • Energy Reorganization Act (180 days) • Federal Railroad Safety Act (180 days) • Federal Water Pollution Control Act (30 days) • International Safe Container Act (60 days) • Moving Ahead for Progress in the 21st Century Act (motor vehicle safety) (180 days) • National Transit Systems Security Act (180 days)

36. Federal & States Laws Regarding Discrimination • Solid Waste Disposal Act (30 days) • Surface Transportation Assistance Act (180 days) • Toxic Substances Control Act (30 days) • Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (90 days)

37. Federal & States Laws Regarding Discrimination SEXUAL HARASSMENT (can be on any protected basis) • It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. • Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

38. Federal & States Laws Regarding Discrimination • Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. • Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

39. Federal & States Laws Regarding Discrimination The Employer’s Affirmative Defense - supervisor harassment • Does not apply to tangible job detriment cases. • “if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U. S. 775.

40. Federal & States Laws Regarding Discrimination • If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. • An employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance v. Ball State (2013).

41. Federal & States Laws Regarding Discrimination Administrative Requirements Title VII, PDA, ADA, ADEA, GINA • Have to file an EEOC Charge within 300 days. • Have to obtain a right to sue letter. • Have to file a lawsuit within 90 days of receipt of RTS. • Equal Pay Act (no charge filing requirement). 2 or 3 year SOL. • 42 USC 1981 (no min EE; Only Race).No charge required. • FMLA and FLSA (no Charge required). 2 or 3 year SOL.

42. Federal & States Laws Regarding Discrimination Remedies Title VII, PDA, ADA, GINA • Back Pay, Reinstatement, Front Pay (in lieu of reinstatement), compensatory damages, punitive damages, attorneys’ fees. • Compensatory and Punitive damages are capped based on the size of the employer (not under 1981). • No punitive damages against governmental entities. • Exception for ADA accommodation efforts.

43. Federal & States Laws Regarding Discrimination Remedies ADEA, EPA, FMLA, and FLSA • Injunctions, compelled employment, reinstatement, promotion, back pay and attorneys’ fees and costs. In addition, a willful violation of the act gives rise to liquidated damages, which are generally computed by doubling the amount awarded to the plaintiff. Compensatory damages are permitted in retaliation cases under the EPA.

44. Federal & States Laws Regarding Discrimination Proving a case of Employment Discrimination Direct Evidence • “direct evidence of discrimination . . . [which] requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008). Direct evidence “must establish not only that the plaintiff’s employer was predisposed to discriminate on the basis of but also that the employer acted on that predisposition.” Id.

45. Federal & States Laws Regarding Discrimination Proving an employment discrimination case Circumstantial evidence (most cases) • Ex. FMLA, a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he engaged in protected activity, (2) he was subject to an adverse employment decision, and (3) a causal connection existed between the adverse employment action and the protected activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

46. Federal & States Laws Regarding Discrimination • Alternatively, a plaintiff may establish a prima facie case by demonstrating that “1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees.” Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). • If the plaintiff establishes a prima facie case, the employer must proffer a legitimate nondiscriminatory reason for the adverse employment action.

47. Federal & States Laws Regarding Discrimination • If the employer proffers a legitimate nondiscriminatory reason for the employment action, the plaintiff must prove that the reason is a pretext for unlawful discrimination. • The plaintiff may show that (1) the employer’s stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer’s action. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994).

48. Federal & States Laws Regarding Discrimination Tennessee Employment Laws Tennessee Human Rights Act Tenn. Code Ann. § 4-21-101 et seq. • covers age, sex, race, color, national origin, religion, creed • covers employers with 8 or more employees • similar remedies to Title VII, except no punitive damages • can file a charge or file suit directly (direct action)

49. Federal & States Laws Regarding Discrimination • Recent Amendment to THRA effective 7/1/2014 • Removes liability from supervisors or agents individually for claims made against their employer under the Tennessee Human Rights Act (“THRA”). • Adds caps on “non-pecuniary damages” resulting from prohibited discrimination. For employers with more than 8 but fewer than 15 employees, the cap is $25,000; 15-100 employees, $50,000; 101-200 employees, $100,000; 201-500 employees, $200,000; more than 500 employees, $300,000. Source: Governor Signs Tennessee Employment Litigation Reform Bill, National Law Review 5-30-2014.

50. Federal & States Laws Regarding Discrimination • Incorporates the eight-employee threshold for coverage under the THRA into the Tennessee Disability Act, T.C.A. §8-50-103 • An employee may not maintain concurrently separate causes of action in both state court under the Tennessee Human Rights Act, Tennessee Disability Act, or Tennessee Public Protection Act, and in federal court, based on the same facts. Source: Governor Signs Tennessee Employment Litigation Reform Bill, National Law Review 5-30-2014.