Archive for the 'Sarah Crawford' Category

Supreme Court to Take Up Supervisor Harassment Case

Published on November 26, 2012 in Judges & Supreme Court, Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

Later this term, the Supreme Court will decide the case of Vance v. Ball State, a case that will have critical implications for the ability of our nation’s civil rights laws to root out unlawful workplace harassment. At issue in the case is the meaning of “supervisor” and whether employers may be held vicariously liable for harassment committed by supervisors who have the authority to direct and oversee employees’ work, as compared to those who have the authority to hire or fire.  The Court’s decision will have important ramifications for the ability of victims of supervisor harassment to hold their employers accountable.

With so much at stake, the National Partnership for Women & Families led a group of ten top civil and workers’ rights organizations in filing a friend-of-the-court brief in Vance that calls on the Court to reject an overly restrictive definition of supervisor that is limited to those with the authority to make “tangible” employment decisions like hiring and firing. Quite simply, this definition does not reflect the realities of the workplace or the Court’s previously demonstrated understanding of what it means to be a supervisor.

Petitioner Maetta Vance worked at Ball State University as a catering assistant for the university’s dining services department when she was harassed by an employee that she considered to be a supervisor with the authority to direct and oversee her work. Vance alleges that, as a result of the harassment and physical intimidation she suffered, she lived and worked in a constant state of fear. Despite her complaints to the university, the harassment persisted.

Ultimately, Vance filed claims for harassment and retaliation under Title VII of the Civil Rights Act of 1964. The district court granted the employer’s motion for summary judgment, ruling in pertinent part that the supervisor in question lacked the power to hire, fire, demote, transfer, or discipline Vance. As such, the court applied a mere negligence standard of liability applicable to co-worker harassment, rather than the vicarious liability standard applicable to supervisor harassment. Under established precedent, if the harasser is deemed to be a supervisor, vicarious liability is imputed to the employer. However, if the harasser is deemed to be a co-worker, under a negligence standard, the employer is liable only if the target of the harassment can prove that the employer knew or should have known of the harassment.

On appeal, the Seventh Circuit affirmed, approving a narrow definition of “supervisor” for purposes of imposing vicarious liability by including only those supervisors with the formal authority to make tangible employment decisions. The Seventh Circuit noted that it “ha[d] not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.” The Seventh Circuit joins the First and Eighth Circuits in concluding that only those supervisors with the power to fire, hire, promote, etc. should be treated as supervisors under Title VII.

By contrast, the Second, Fourth, and Ninth Circuits have affirmed a rule consistent with Equal Employment Opportunity Commission (EEOC) guidance stating that:

An individual qualifies as an employee’s “supervisor” if:

the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or

the individual has authority to direct the employee’s daily work activities.

An amicus brief filed by the Solicitor General affirms this well-reasoned interpretation as well, concluding that “an employee who directs another employee’s daily work activities but cannot take tangible employment actions is a supervisor for purposes of vicarious liability under Title VII.”

The Supreme Court did not distinguish between various types of supervisors when it considered the issue of supervisor harassment in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth in 1998. In those cases, the Court drew distinctions between supervisors and co-workers, rather than drawing arbitrary distinctions between different types of supervisors. The same common sense approach should be applied in Vance.

The Court should also recognize that even though high-level supervisors are undoubtedly responsible for maintaining a workplace free from discrimination, it is the supervisors who direct and control workers’ daily activities who are delegated the most immediate control over their subordinates’ working conditions and the greatest opportunity to inflict harm on employees.

Vance v. Ball State offers the Supreme Court an opportunity to set a standard that comports with the realities of the workplace, established precedent and well-reasoned EEOC guidance. The case is a chance for the Court to affirm a standard that furthers the purposes of Title VII – to root out harassment and make clear that employers will be held accountable when supervisors violate the law. A contrary ruling will have grave consequences for victims of harassment and the rights guaranteed by our nation’s equal employment opportunity laws.

The case will be argued November 26.

Election 2012: Moving Forward on Fairness for Women in the Workplace

Published on November 9, 2012 in Sarah Crawford. 0 Comments

Director of Workplace Fairness

Women made a difference this election. Issues like fair pay received attention nationally and at the state level like never before. Women at all levels broke barriers. And a record number of women were elected to Congress. The results of this historic election represent great progress for women, and they have also created a great opportunity: a chance to move forward with real, concrete solutions to the challenges women and their families grapple with every day.

Challenges like unfair pay. Women who are employed full time in the United States are still being paid just 77 cents for every dollar paid to men, amounting to more than $11,000 in lost income each year. During many campaigns this election, elected officials and candidates talked about what this wage gap means for women and families. Now, it’s time to act.

The Lilly Ledbetter Fair Pay Act was the first piece of legislation signed by President Obama in 2009. It helps women fight back when they are paid less than men, restoring the law and its protections after a damaging U.S. Supreme Court decision. But it’s not enough. The Paycheck Fairness Act is a much-needed next step that offers real solutions for closing the punishing wage gap that costs women and families so much.

The Department of Labor can also take concrete steps to promote fair pay. It can finalize a rule that would prohibit employers that contract with the federal government from engaging in discriminatory compensation practices – or using pay secrecy policies that perpetuate them. It can also finalize a rule that would help to ensure that home care workers get the same minimum wage and overtime protections that other workers enjoy. The department can – and should – prioritize these rules without delay.

Another all-too-common and increasing challenge for employed women is discrimination based on pregnancy. In fact, over the past decade, charges of pregnancy discrimination have risen by 35 percent. This election shined a light on the importance of women’s income to the financial security of families and our nation. It is simply appalling that women are being fired or forced out of the jobs simply because they are pregnant. Here, too, it’s time for action.

The Pregnant Workers Fairness Act is critical legislation that would help ensure that pregnant workers are not forced out of their jobs unnecessarily or denied reasonable job modifications that would allow them to continue working and supporting their families. It would promote the health and economic security of pregnant women, their babies and their families. And it should be a priority for any elected official who claims to value families and a strong economy.

So, as we celebrate a historic election for women, let’s also remember the urgent need to translate this energy and momentum into real progress. It’s time to move forward in promoting fairness for women in the workplace.

Yahoo Sets an Example by Hiring a Pregnant CEO, But There’s More to the Story for Working Mothers

Published on July 18, 2012 in Sarah Crawford, Work & Family and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Ever since the news broke this week that Yahoo has hired Marissa Mayer to be its new chief executive officer, the media has been abuzz about the fact that she’ll be the first-ever pregnant CEO of a Fortune 500 company. It seems Yahoo leaders had no concerns about Mayer being six months pregnant when they offered her the job, setting a promising example for employers across the country.

The news is great for Mayer as a woman and a mother and, we hope, good for the company too. It’s encouraging to see a pregnant woman, who will soon be a working mom, in that kind of position. She is now one of only 19 female CEOs in the Fortune 500. But we know that not all employers have adopted such “evolved thinking” (as Mayer described it) when it comes to pregnant workers or the family friendly policies they need.

Despite the fact that the Pregnancy Discrimination Act was passed in 1978 to end blatant discrimination against pregnant women in the workplace, pregnancy discrimination claims are on the rise. They have increased by 35 percent in the past decade, often because employers do not make minor accommodations for pregnant workers, even though they regularly make minor accommodations for workers who have had heart attacks or other health issues.

For those pregnant workers who do get a fair shot, like Mayer, too many struggle tremendously after their child arrives because most employers haven’t adopted family friendly workplace policies that enable new parents to take the time they need for their own health and the health of their children. Even Mayer admits she will be working through the short three weeks of leave she plans to take after her child is born. Three weeks may be Mayer’s choice, and that is OK; women need to be able to do what is right for them. But many women need or want more and don’t have that option.

Mayer is in the rare minority (11 percent) of private sector workers who have access to paid leave through their employers. Most depend on the up to 12 weeks of unpaid leave provided through the federal Family and Medical Leave Act (FMLA), but more than half of the workforce isn’t even eligible for that. Millions who are eligible under the FMLA can’t afford to take the unpaid leave it provides. That puts the majority of working parents in an untenable situation of having to constantly choose between work and family.

That’s why efforts to ensure family friendly workplaces and curb pregnancy discrimination are so important. The Pregnant Workers Fairness Act would effectively prevent employers from forcing pregnant women out of the workplace and help ensure they provide reasonable accommodations to women who want to continue working. The Healthy Families Act would guarantee workers the right to earn paid sick days to use to recover from illness or care for a child. And a proposal for a federal paid leave insurance program currently being developed in Congress would make it possible for all workers to receive a portion of their pay when they need to take leave for the arrival of a new child or to deal with a serious illness.

Marissa Mayer is fortunate to have an opportunity and choices many mothers do not. She will be able to afford high-quality child care, and she will almost certainly receive pay while on leave and paid sick days to care for her child. Yahoo has set an example by choosing to hire Mayer based on her merits. With Mayer at the helm, we hope that Yahoo aims to set an example as a family friendly employer in every sense to set the pace for other companies and motivate lawmakers who are far behind in adopting the policies working families need.

The Equal Employment Opportunity Restoration Act: Ensuring Access to Justice After ‘Wal-Mart v. Dukes’

Published on June 20, 2012 in Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage.

The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.

Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.

It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.

The Equal Employment Opportunity Restoration Act would give back to workers fundamental rights under our nation’s civil rights laws. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act of 1973, Section 1981 of the Civil Rights Act of 1866 and the Genetic Information Nondiscrimination Act provide critical protections from workplace discrimination. This bill would ensure that, once again, workers filing claims under those laws can effectively band together to seek justice – no matter the size of their employer, no matter the size of the group that experienced unlawful discrimination, no matter the subjectivity of the challenged personnel decisions, and no matter the existence of written nondiscrimination policies if they are not consistently and effectively implemented. Specifically, the bill establishes an alternative to the Rule 23 class action in the form of a group action.

Too many workers still suffer from discrimination in this country. Betty Dukes and the women of Wal-Mart are not alone. In fact, in 2011, the Equal Employment Opportunity Commission received an unprecedented 100,000 claims of discrimination. Without the ability to join together, workers too often cannot effectively stand up for their rights and hold their employers accountable because they either don’t have the resources or are vulnerable to employer retaliation. Justice should not be limited to a few, and our courts should not be making it more difficult to root out discrimination.

The Equal Employment Opportunity Restoration Act would undo the damage done by the Wal-Mart decision by ensuring that workers have the rights and tools they need to challenge unlawful, systemic discrimination by their employers.

America’s Women and Families Deserve a Vote on the Paycheck Fairness Act

Published on May 30, 2012 in Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Last month, the nation recognized Equal Pay Day – the day that marked how far into 2012 women had to work for their wages to catch up with the wages paid to men in 2011. Next week, the United States Senate has the opportunity to address this appalling wage gap by advancing much-needed legislation called the Paycheck Fairness Act. 

Closing the wage gap is of paramount importance to women, families and our economy. Women working full time in the United States are still paid only 77 cents for every dollar paid to men, resulting in $10,784 in lost income each year. For women of color, the gap is even worse: African American women and Latinas are paid just 62 cents and 54 cents, respectively, for every dollar paid to white men.

These losses are striking when you consider that nearly 15 million households in this country are headed by women, that nearly 30 percent of them live in poverty, and that women are the primary or co-breadwinners for two-thirds of families. Thousands of dollars in lost wages can have seriously damaging effects on these families and our economy.

A recent analysis by the National Partnership shows just how much women lose. If the wage gap were eliminated, a full-time working woman would have enough money each year for approximately: 92 more weeks of food (nearly two years’ worth); seven more months of mortgage and utilities payments; 13 more months of rent; 35 more months of family health insurance premiums (nearly three years’ worth); or 2,751 additional gallons of gas.

We know from previous research and analyses that this punishing wage gap exists regardless of personal choices like education or occupation. And at the rate it’s improving (less than a half a cent per year) it will take another four decades before we see an end to it. That is, unless members of Congress offer a plan to close the gap and give it the attention and consideration it rightfully deserves.

The Paycheck Fairness Act is that plan. The bill would close loopholes in the Equal Pay Act of 1963; prohibit retaliation against workers for discussing their salaries; recognize employers with good pay practices; and provide assistance to businesses, especially small ones, that need help adopting them. It would create a negotiation skills training program for women and girls and enhance federal agencies’ investigative and enforcement abilities.

The House of Representatives recognized the need for the Paycheck Fairness Act when it passed it in the 110th and 111th Congresses, but the bill fell two votes short in a procedural Senate vote during the 111th Congress. It has been reintroduced in the current Congress and it faces another procedural vote.

Lawmakers say that they value families. This modest, common sense legislation offers a chance to prove it. Next week’s vote isn’t even about the merits of the Paycheck Fairness Act. It is simply a vote to give the bill the consideration it – and tens of millions of women and families throughout the country – deserves.

Congress must do what’s right for the women and families in their states or districts by advancing and then passing the Paycheck Fairness Act. No more excuses and no more political posturing. Women’s work is essential. And women’s wages are essential. Now is not the time for Congress to turn its back on America’s women and their families.

New Caregiver Protections for Military Families Are a Step in the Right Direction

Published on May 25, 2012 in Sarah Crawford and Workplace Fairness. 2 Comments

Director of Workplace Fairness

Cross-posted from Family Caregiver Alliance.

Our nation’s service members make enormous sacrifices for our country – and so do their families. When a parent, spouse, child or sibling is deployed, family members often must rearrange their lives to cope with the departure of their loved one; that may involve everything from moving to a new home, to finding or changing a job, to making complex financial and legal arrangements, to taking in a child, to rescheduling child care, and much more. And when a service member returns from duty injured and in need of medical care, family members often need to take time away from work to assist them.

Congress acknowledged these sacrifices and challenges in 2008 when it expanded access to job-protected leave provided by the Family and Medical Leave Act (FMLA) to military family members. Certain military family members were guaranteed up to 26 weeks of unpaid, job-protected leave to help care for service members injured in combat and up to 12 weeks of unpaid, job-protected leave to address situations that arise when a service member has been notified of impending active duty or deployment.

But in 2008, Congress only guaranteed access to FMLA leave to certain military family members. That’s why, more recently, Congress again passed an amendment aimed at increasing military families’ access to the leave they need. With more than two million service members having been sent to Iraq and Afghanistan alone, these changes are both welcome and necessary. This time, the right to take FMLA leave was clearly extended to family members of veterans whose combat injuries require care, as well as family members of deployed active duty service members (such leave had previously been limited to family members of the reserves and national guardmembers). It also expanded the definition of military caregiver leave to cover serious injuries or illnesses that result from the aggravation of a preexisting condition in the line of duty.

In January, the Obama administration announced its intention to ensure expanded FMLA rights for military family members become a reality. The U.S. Department of Labor (DOL) is now in the process of developing the regulations necessary to implement Congress’ most recent changes.

The proposed regulatory changes are a major victory and step forward for nearly 200,000 military family members who will now be eligible to take the time necessary to address new realities and challenges caused by a family member’s call to duty. Thousands of family members will now be eligible to take time off to care for an injured service member or veteran. The benefits for service members who need care, their caregivers and their family members will be significant.

As part of the implementation process, the National Partnership for Women & Families and more than 60 other organizations recently recommended improvements to DOL’s proposed regulations that would strengthen and make more effective the protections guaranteed by the FMLA. Among other recommendations, we urged the department to ease the requirements governing the evidence veterans must provide in order for their family members to qualify for leave. We also encouraged the department to expand the types of situations that may necessitate leave when a family member is deployed. Finally, we suggested changing the regulations to allow same-sex partners to take leave to care for a partner injured in service.

These new caregiver protections for service members and their families are an enormous step in the right direction for families and the country, but there is much more to be done to protect all workers who need leave.

Congress needs to make the FMLA available to more people. Nearly half of the workforce is not currently eligible for the leave it provides. It’s time to amend the FMLA to cover businesses with 25 or more employees, instead of those with 50 or more employees. And Congress should pass the Family and Medical Leave Inclusion Act (H.R.2364/S.1283), which would expand the definition of family member under the FMLA to include domestic partners, parents-in-law, adult children, siblings, grandchildren and grandparents.

Perhaps most importantly, Congress should prioritize a paid leave standard for workers who need to take leave to care for a loved one, for their own serious health conditions or for a new child. The FMLA was an important first step in guaranteeing workers access to unpaid leave nearly 20 years ago, but many of those who are eligible for it cannot afford to take it. Without paid leave, workers are forced to jeopardize their economic security and their families’ health when serious medical emergencies and conditions arise.

Congress and the Department of Labor have made great strides in strengthening the FMLA for military families in recent years. The nation needs even more. Paid leave and expanded FMLA access are necessary next steps if we are to truly support working families and caregivers. We can’t afford to wait.

For more information, visit Workplace Fairness, National Partnership for Women & Families.

For information on caregiving and veterans, Family Caregiver Alliance has a Caregiving & Veterans web page with links to articles, publications and other helpful resources.

Supreme Court Erodes State Workers’ FMLA Rights

Published on March 21, 2012 in Judges & Supreme Court, Sarah Crawford and Work & Family. 1 Comment

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

“This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.” 

– Justice Scalia’s concurring opinion in Coleman v. Maryland Court of Appeals

By a narrow majority, the U.S. Supreme Court’s decision in Coleman v. Maryland Court of Appeals has eroded the right of millions of state workers to take job-protected leave under the Family and Medical Leave Act of 1993 (FMLA) when faced with a serious illness, injury, or pregnancy. In these tough economic times of high unemployment, the Supreme Court has dealt another devastating blow to millions of workers – making them vulnerable to losing their jobs if they need time off for medical leave. The Court ruled that states cannot be sued for monetary damages for violating the FMLA’s medical leave provision, leaving state workers with little meaningful recourse if their employers deny the self-care leave guaranteed by the plain language of the FMLA.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member.

Since its enactment 19 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance.

Petitioner Daniel Coleman was one such worker facing a serious illness who sought to exercise his rights to medical leave. He was working for a Maryland court when his doctor ordered bed rest. After requesting medical leave, Coleman was fired the next day. He then filed a lawsuit alleging a violation of the FMLA.

After years of litigation, the Supreme Court rejected his claim for monetary relief. While the Court left the door open for workers like Coleman to seek injunctive relief such as reinstatement, such limited relief provides little incentive for employers to comply with the law from the outset, without the risk of monetary liability for violating the law. Additionally, few workers will have the resources to pursue costly, protracted litigation just to be reinstated.

Justice Kennedy’s plurality opinion was joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Kennedy’s opinion acknowledged that:

[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.

Yet the plurality concluded that the medical leave provision of the FMLA was not directed at gender-based discrimination, and therefore, Congress did not validly abrogate state sovereign immunity under the Eleventh Amendment under the “congruence and proportionality test” developed to analyze legislation enacted under the Equal Protection Clause of the Fourteenth Amendment.

However, as Justice Ginsburg’s forceful dissent makes clear, Congress did in fact collect an enormous amount of evidence of discriminatory workplace policies relating to family and medical leave. Congress found that women continued to face persistent sex discrimination relating to pregnancy and childbirth, even in the wake of the protections against sex discrimination and pregnancy discrimination established by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.

Justice Ginsburg’s dissent, which was joined by Justices Breyer, Sotomayor, and Kagan, asserts that “the plurality undervalues the language, purpose, and history of the FMLA, and the self-care provision’s important role in the statutory scheme.” The dissent recognizes that Congress enacted the FMLA pursuant to its power to address sex discrimination under the Fourteenth Amendment. Justice Ginsburg’s opinion explains that the FMLA offered leave on a gender-neutral basis rather than creating a special right to self-care leave for medical illness surrounding pregnancy, in part to avoid creating perverse incentives for further discrimination against women.

Notably, the Court refrained from overturning Chief Justice Rehnquist’s 2003 opinion in Nevada Department of Human Resources v. Hibbs. In Hibbs, the Court ruled that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment authority with respect to the FMLA’s family-care provision. Hibbs made it clear that state workers can sue their employers for monetary damages for violations of the family-care provision of the FMLA. Writing for a 6-3 majority in Hibbs, Chief Justice Rehnquist concluded that Congress clearly intended to protect state workers from sex discrimination by providing job-protected leave to care for a family member.

Contrary to the legislative purpose of the FMLA, the Coleman decision establishes an unintended, unnatural distinction between the FMLA rights of public and private sector workers.  In the absence of additional protections set out by state law, state employers will not be held accountable for violations of the FMLA’s medical leave provisions to the same extent that private employers are held accountable.

The decision also establishes an unnatural distinction between the rights of public workers to take medical leave and caregiving leave. As the dissent points out, “It would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a still born baby.” But by drawing a distinction between self-care and family care rights, the plurality has opened the door for such a nonsensical framework.

Sadly, the Coleman decision erodes the rights of millions of state workers who need leave to care for their own medical illness, injury, or pregnancy. The decision denies state employees access to a meaningful remedy when their employers violate the FMLA, and could force workers to choose between their health and their jobs. The decision must serve as an urgent call to policymakers to ensure that workers need not make that impossible choice.

Home Care Workers Deserve Minimum Wage and Overtime Protections

Published on March 1, 2012 in Sarah Crawford and Workplace Fairness. 8 Comments

Director of Workplace Fairness

Every day, nearly three million home care workers in the United States help the elderly and people with disabilities get the daily assistance they need. These workers make it possible for those in need to bathe, get dressed, eat, take medications and more, all while allowing them to stay independent and healthy within the comfort of their own homes and communities.

Yet despite the invaluable assistance home care workers provide, too many are paid poverty-level wages and offered few benefits, which results in undue hardship for them and their families. Ninety percent of these workers are women, and nearly half are forced to rely on public assistance to make ends meet.

These unacceptable circumstances are in part due to a loophole created by the Department of Labor’s regulations interpreting the Fair Labor Standards Act. The existing regulations exclude home care workers from the basic minimum wage and overtime protections that cover most other workers. The exclusion has denied workers fair compensation and threatened families’ economic security for much too long.

That’s why we are so pleased that the Obama administration has proposed a rule that would put an end to the exclusion and provide some welcome and overdue financial security for millions of home care workers. The move will have a profound impact on these families while improving working conditions and the quality of care in an industry that is growing as the country’s population ages.

This is very good news for women, families and our economy, but the details of the rule have yet to be determined. Right now, the Department of Labor is accepting public comments on the rule to help define key provisions and its implementation. The deadline for submitting these comments is Monday, March 12th.

Considering what is at stake for home care workers and their families, it is critically important that the department sees that there is broad-based support for a strong rule that ensures minimum wage and overtime protections for home care workers. The National Partnership will submit comments on the importance of extending these basic rights, particularly for women and families. We urge you to join us by sending your own words of support for the department’s proposed rule here.

Establishing worker protections like this is critical for families and for the future of our country. The home care workforce has been grossly undervalued for much too long. This new rule will help ensure that millions of these women and men, who provide essential care to children, parents, grandparents and others in need, will be more fairly compensated for their critical work. It’s time.

Supreme Court to Decide State Workers’ Rights Under FMLA

Published on January 11, 2012 in Judges & Supreme Court, Sarah Crawford, Work & Family and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Cross-posted from the American Constitution Society.

The U.S. Supreme Court is hearing oral argument today in Coleman v. Maryland Court of Appeals – a case that could erode the right of millions of state workers to take job-protected, unpaid leave under the Family and Medical Leave Act (FMLA) when faced with a serious illness.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member. The FMLA offered leave on a gender-neutral basis rather than creating a special right to self-care leave for medical illness surrounding pregnancy, in part to avoid creating perverse incentives for further discrimination against women.

Since its enactment 18 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance. An adverse decision from the Supreme Court could put access to FMLA self-care leave at risk for millions of state workers. At stake is their fundamental right to take time off to address their own serious medical needs, including pregnancy and childbirth.

Petitioner Daniel Coleman was working for a Maryland court when his doctor ordered bed rest due to serious illness. Within hours of requesting medical leave, Coleman was fired. He then filed a lawsuit alleging a violation of the FMLA. Contrary to the plain language of the statute, the lower courts ruled that the state of Maryland could not be sued for monetary damages under the FMLA’s self-care provision.

The Supreme Court is now poised to decide whether Congress validly abrogated the states’ Eleventh Amendment sovereign immunity by acting to address unconstitutional discrimination.

In point of fact, when the legislation was being considered, Congress collected an enormous amount of evidence demonstrating clearly that outdated workplace policies and practices denied women equal employment opportunity, including discriminatory policies and practices by state governments. Congress found that women continued to face persistent sex discrimination relating to pregnancy and childbirth. Thus, Congress enacted the FMLA pursuant to its power to address unconstitutional discrimination under section 5 of the Fourteenth Amendment.

Joined by a broad coalition of civil rights groups, workers’ rights groups, and labor organizations, the National Partnership for Women & Families filed an amicus brief urging the Court to uphold the plain language of the FMLA, which established critical leave rights for state workers. Like private employers, states must be held accountable when they violate their employees’ rights to self-care leave.

Notably, the Supreme Court already has established that state workers can sue their employers for monetary damages for violations of the family-care provision of the FMLA. In the 2003 case of Nevada Department of Human Resources v. Hibbs, the Court ruled that Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment authority with respect to the FMLA’s family-care provision. Writing for the majority, Chief Justice Rehnquist concluded that Congress clearly intended to protect state workers from sex discrimination by providing job-protected leave to care for a family member. Indeed, the Court got it right in the Hibbs case, and the same analysis applies under the self-care provision at issue in the Coleman case.

The millions of state workers who are struggling with their own medical illness or who may face a serious illness in the future have to fervently hope that the Court gets it right again. Those workers have a tremendous amount at stake in this case.

Improving Access to the FMLA Through Improved Forms

Published on December 14, 2011 in Sarah Crawford and Workplace Fairness. 0 Comments

Director of Workplace Fairness

Nearly 20 years ago, passage of the Family and Medical Leave Act (FMLA) was a major milestone in the effort to help families meet their work and family needs. For the first time ever, many workers were guaranteed up to 12 weeks of unpaid leave a year to care for a close family member or address their own serious health concerns, including pregnancy and childbirth. For women in particular, the law aimed to combat gender discrimination by granting women and men equal access to leave and preventing women from being penalized or unfairly denied job opportunities due to assumptions about their family caregiving responsibilities.

To date, no other law has had a greater impact on workers’ ability to meet their work and family obligations, without sacrificing their jobs, than the FMLA. In fact, we estimate that the law has been used more than 100 million times by women and men across the country. But sadly, nearly half of the workforce isn’t eligible for FMLA leave, others may not know the law exists or experience other barriers to accessing it, and many cannot afford to take the unpaid leave it provides (which is why it is important that Congress and state legislators adopt paid leave programs).

The National Partnership was the lead organization behind the FMLA and the driving force behind its passage. We have long supported efforts to expand the law, increase eligibility and improve overall access. We helped win amendments in 2008 and 2009 that now provide military families up to 26 weeks of unpaid leave under the law to care for a wounded service member, or up to 12 weeks for qualifying exigencies related to active duty. And forward-thinking legislators in many states have advanced their own expansions of the law to cover more workers. Find out what your state offers through our policy database: www.nationalpartnership.org/wfdb

We’re always seizing opportunities to improve the FMLA and make accessing leave easier for workers. So when the Department of Labor (DOL) announced it was seeking comments on the forms used by employers and employees when an FMLA leave request is made, we knew it was an important chance to address a potential barrier to accessing FMLA leave. DOL currently provides model forms for employers and employees to use in providing notice of FMLA eligibility, rights and responsibilities, and for the certification and re-certification of need for leave. While these forms are aimed at making the process easier, there is room for improvement to help ensure smoother application of the FMLA.

In a letter the National Partnership submitted to the department, joined by 60 of our committed allies, we recommended key ways to enhance the clarity and usefulness of these forms – and stressed the need to minimize paperwork burdens for workers. Our key recommendations included giving employees access to a new optional form to request leave, removing irrelevant and invasive medical questions, and requiring employers to properly explain their reasons for denying a request for leave. We believe that these adjustments can go a long way toward reducing some common barriers to FMLA leave.

Much more can – and must – be done to ensure that all workers can take the job-protected time they need to care for their families and their own serious health conditions – and request forms are an important consideration. We are happy the department has taken on the issue and hope the comments it receives will result in improved forms and, consequently, improved access to FMLA leave for working families. Our nation’s families, businesses and communities will be stronger when workers can take the job-protected time they need.