Beauty and the Briefs

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The Northern District Court Illinois ruled that an attorney who was told she wasn’t “pretty enough” has grounds for damages in a case of age discrimination and whistleblower retaliation.

The City of Evanston, Illinois, population 75,000, is located just 12 miles north of Chicago, and the City apparently has an abundance of attractive attorneys.

Among several complaints of ageism and sexism leveled against the City, former Assistant City Attorney Elke Tober-Purze revealed that one male supervisor told her that previous female attorneys hired by the City were smart, good-looking (“just gorgeous”), and that these attractive attorneys wore tight sweaters and short skirts.

The supervisor further claimed that Tober-Purze was “not that pretty”.

Pretty or not, Tober-Purze received regular promotions, sufficient performance reviews, and no disciplinary actions, and yet she received a lower salary that her male counterparts. Despite Tober-Purze’s relevant experience and the experience of other females on staff, the City went outside of its existing employees to hire a younger male, W. Grant Farrar, as its City Attorney.

Additionally, the City is alleged to have a penchant for terminating older female employees and replacing them with younger workers.

Things got even uglier when Tober-Purze requested a vacation accrual payment, consistent with the City’s policy. Her supervisor told her she would lose a quarter of her accrued time, and he warned her against making a complaint regarding the lost hours.

Tober-Purze filed a complaint with the Illinois Department of Labor (IDOL), and shortly after the City received notification of the complaint, Tober-Purze was terminated for “ongoing performance issues” and for her complaint with the IDOL.

Tober-Purze’s case made four claims:

  • Sex discrimination, in violation of Title VII of the Civil Rights Act.
  • Age discrimination, in violation of the Age Discrimination in Employment Act (ADEA).
  • Violation of the Illinois Wage Payment and Collection Act, for failure to pay vacation and sick time.
  • Violation of the Illinois Wage Payment and Collection Act for unlawful retaliation.

The court found that, among other items, Tober-Purze had successfully triggered protection under the ADEA by proving she:

  • Was more than forty years old.
  • Performed her job according to employer expectations.
  • Suffered an adverse employment action.
  • Was treated less favorably than similarly situated and younger employees.


3 Lessons for Employers after Double-Whammy ADA and GINA Court Case

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In the first settled case of its kind, a U.S. employer was found in violation of both the Genetic Information Nondiscrimination Act of 2008 (GINA) and the Americans with Disabilities Act (ADA).

Fabricut, Inc., a distributor of decorative fabrics, will pay $50,000 to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces federal laws prohibit

ing employment discrimination. This is the first lawsuit ever filed by the EEOC alleging genetic discrimination.

Here are three key lessons employers should remain mindful in terms of hiring, promotion, and termination policies.

­1. Employers: Ask No Family Medical History Questions.

Employers should be sure they are not requesting information regarding family medical history at any time during hiring process or employment.

When Rhonda Jones’ temporary position at Fabricut was coming to an end, she applied for a permanent job. She received a preliminary offer from the company for permanent employment, contingent on pre-employment screening. The court ruled that Fabricut violated GINA by asking Jones questions about her family medical history during a post-offer, pre-employment medical examination.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, General Counsel of the EEOC.

GINA restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect in 2009. Title II of GINA makes it illegal for employers to discriminate against employees or applicants based on their genetic information. GINA also restricts employers from requesting or obtaining genetic information, which includes any information about an employee or applicant’s family medical history.

2. No Loopholes for Third Party Medical Providers.

Requesting family medical history through a third-party medical provider or examiner violates GINA.

After making Jones an offer of permanent employment, Fabricut sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. As part of the physical, Jones was required to disclose disorders in her family medical history.

EEOC Regional Attorney Barbara Seely. “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Note: GINA does not prohibit health insurers or health plan administrators from obtaining and using genetic test results in making health insurance payment determinations.

3. Increased Enforcement Puts Employers’ Policies in Spotlight.

The EEOC is launching a coordinated investigation and enforcement effort as part of its Strategic Enforcement Plan across the spectrum of equal employment law, which includes genetic discrimination. Although this case is considered the first one settled under GINA, it also brought to light violation of the ADA.

As part of a physical examination on Jones, Knox Laboratory concluded she suffered from carpal tunnel syndrome (CTS). Jones’ personal physician countered that Jones did not have CTS, but Fabricut rescinded its job offer based on the findings of Knox Laboratory.

In addition to the GINA violation, the EEOC alleged that Fabricut violated the ADA’s prohibition against discriminating against qualified individuals with disabilities (or perceived to have disabilities) when it rescinded Jones’ employment offer based on the belief that Jones had CTS.

In addition to the $50,000 settlement, Fabricut will post an anti-discrimination notice to employees, dissemination of anti-discrimination policies to employees and providing anti-discrimination training to employees with hiring responsibilities.

Has it been a while since you’ve updated your labor law postings? Now would be a great time to make sure your employees have access to the most current workplace postings ­and save 20%. Order our convenient Federal-on-One poster that contains all postings required for U.S. employers. It includes the EEOC It’s the Law anti-discrimination posting.

E-Verify Requirement for All U.S. Employers? To Be Determined.

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U.S. Border Patrol agent detains suspected illegal immigrant along the U.S.-Mexican border.

All employers in the U.S. may be required to participate in the E-Verify employment eligibility program if immigration legislation passes.

In the Border Security, Economic Opportunity, and Immigration Modernization Act, senators known as the “gang of eight” are proposing actions for the federal government to bolster its Comprehensive Southern Border Security Strategy overseen by the Department of Homeland Security.

If the Bill were to be enacted, all employers would need to check each job applicant’s employment eligibility through the online E-Verify system.

According to a Wall Street Journal poll, 60% of American small-business owners believe every employer should have to comply with the E-Verify system to verify workers’ legal status.

E-Verify is an online system where employers confirm the legal working status of new hires by linking to federal databases. The program is overseen by the U.S. Citizenship and Immigration Services (USCIS) in conjunction with the Social Security Administration (SSA).

GovDocs offers the E-Verify posting and the Federal Right to Work posting on a convenient “on one” format in both English and Spanish. Order here.

What’s Next for the E-Verify Legislation?

Debate on the $5.5 billion Bill is scheduled for Friday, April 19, 2013, when the Senate Judiciary Committee will hold its first hearing. The bipartisan “gang of eight” senators anticipate active opposition. One of the gang of eight, Sen. John McCain (R-Ariz.), said the gang pledges to oppose any effort to undermine the legislation.

Other Provisions of the Bill

  • Sets goal of preventing 90 percent of illegal border crossing between the U.S. and Mexico.
  • $1.5 billion allocated for full-border fencing.
  • Full surveillance of the entire U.S.-Mexico border using unmanned drone aircraft and other technology.
  • Moving to merit-based visas based on work history or occupational skill level as opposed to visas granted on familial relationships.
  • Undocumented immigrants able to apply for registered provisional immigrant status.
  • Immigrants would be unable to receive lawful permanent residence for 10 years after obtaining provisional status.
  • Bars anyone who arrived in the U.S. after Dec. 31, 2011, from applying for legal status and ultimately citizenship.
  • Applicants for legal status must document that they were in the country before Dec. 31, 2011, have a clean criminal record, and demonstrate financial stability.


Employment Non-Discrimination Act Gaining Ground for LGBT Employees

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English: Rainbow flag flapping in the wind wit...

ENDA would prohibit workplace discrimination of LGBT persons.

Both the U.S. House of Representatives and the Senate are evaluating the merits of the Employment Non-Discrimination Act. The Bill would protect the approximately 9 million Americans who identify as lesbian, gay, bisexual and transgender people from discrimination in hiring and employment.

Employer Federal Posting Update

ENDA includes a posting component in Section 13. If passed, the Bill would require employers to display an updated version of the Equal Employment Opportunity Commission’s Equal Opportunity is the THE LAW posting six months after enactment.

EEOC Steps Up – But Not a Sure Thing

In the current version of Title VII of the Civil Rights Act, the following employee categories are protected from workplace discrimination:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy)
  • National origin
  • Disability
  • Genetics
  • Veterans

In a 2012 case (Macy v. Holder) the EEOC interpreted existing laws that prohibit discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity. The case involved Mia Macy, a transgender woman, who was not hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives based on her gender identity and transition.

Without language clearly identifying protections specifically for LGBT employees, the Supreme Court could overturn the EEOC ruling in Macy or similar cases.

Employers and U.S. States Fill the Gap

Even without enactment of ENDA, many U.S. employers have implemented anti-discrimination policies that include protections for their LGBT employees. A Williams Institute analysis found that 98 percent of Fortune 50 companies and 90% of the top 50 federal contractors protect gay workers. Protections for transgender people lag in those same companies, however, with only 67 percent of federal contractors and 88 percent of Fortune 50 companies offer protections based on gender identity.

Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation, whereas only 16 states and D.C. offer similar protections for gender identity.

Which Employers Would Be Required to Comply with the Act?

The revised Act would apply to public and private employers with 15 or more employees. However, volunteers, members of the military, and employees of religious institutions and private membership clubs would not be protected under the Act.

For example, ENDA’s protections would not cover Carla Hale, a teacher at a Catholic high school in Ohio who was fired for her sexual orientation. Her employer, Bishop Watterson High School, would be exempt from the Act because of its protected status as a religious institution.

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