U.S. Equal Employment Opportunity Commission (EEOC) recently issued a Commission Decision finding merit in two charges of discrimination alleging violations of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The Commission based its decision on the grounds that the respondents in the charges excluded the cost of prescription contraceptive drugs - available only to women - from their employee health plan while covering a number of other preventive drugs, devices, and services. The plan also covers surgical sterilization for men and women as well as Viagra.

The charging parties sought to use contraceptives both for birth control and other medical purposes.

Commenting on the EEOC's mandate to enforce federal laws prohibiting sex-discriminatory terms and conditions of employment, EEOC Chairwoman Ida L. Castro said, "The selective exclusion of health coverage for prescription contraceptives by this employee health plan violates the law since it covers a number of comparable prescription drugs and other services."

No wonder romance is a hot topic for HR professionals as the EEOC is determined to regulate contraception.

For the complete text of the decision please click here.

2. NLRB Board Decides Dismissed "Union Salt" Case.

(Hartman Brothers Heating & Air-Conditioning, Inc. and Sheet Metal Workers' International Association Local Union No. 20)

Contrary to an earlier administrative law judge ruling, the Board majority of Members Fox and Liebman recently held that the Hartman Brothers company had violated the Act by effectively discharging employee and union "salt" Michael Starness when it sent him home on October 12, 1995, based on statements he made about organizing its employees.

The complaint alleged that the Hartman Brothers discharged employee Michael Starnes in violation of Section 8(a)(3) and (1). It was claimed that the company violated the Act when "Starnes was immediately sent home, or discharged" after he informed Hartman Brothers general manager, Richard Hartman, that he was a union organizer and intended to organize the companies employees.

The original judge had dismissed the complaint allegation pertaining to Starnes. In doing so, the judge found that the General Counsel had not alleged as unlawful the Respondent's act of sending Starnes home immediately after he announced that he was a union organizer. Instead, the judge treated the complaint allegation as directed to conduct occurring later in the day on the day Starnes was fired. After sending Starnes home, the company had informed him that it had received a report that Starnes' driving record was poor and that, therefore, he was discharged.

Braun Consulting has experience in neutralizing those salts. Give us a call if you suspect your work place is getting to taste like sea water.

For the complete text of this case please click here.

3. Michigan Court Defines Test for "Stray Remarks".

Krohn v. Sedgwick James of Michigan (Michigan Ct App 01/12/2001)

In this case a Michigan court reviewed a line of authority from the federal courts known as "stray remarks" cases. The court noted that the federal courts in these employment discrimination cases assess the relevancy of "stray remarks" by reviewing the following factors:

(1) Was the disputed remark made by the decision-maker or by an agent of the employer uninvolved in the challenged decision?

(2) Was the disputed remark isolated or part of a pattern of biased comments?

(3) Was the disputed remark made close in time or remote from the challenged decision?

(4) Was the disputed remark ambiguous or clearly reflective of discriminatory bias?

The court held that courts should review the factors mentioned above in ruling upon the relevancy of similar comments.

Employers need to watch those "stray remarks" as only the EEOC can regulate contraception and employees discussing romance but, the courts will tell all.

To read all about this case and how it relates to "stray remarks" just click here.

4. Undocumented workers entitled to backpay
    under NLRA (5-4).

Case: Hoffman Plastic Compound v. NLRB (DC Cir 01/16/2001)

In this case it was alleged that the employer committed multiple unfair labor practices by discharging employees for their attempts to organize a union. The National Labor Relations Board (NLRB) ordered the employee's reinstatement with backpay. However, when the NLRB discovered that one of the employees was an undocumented alien, it denied reinstatement and terminated backpay as of the date the employer had learned of the employee's undocumented status. The employer argued on appeal that the Immigration Reform and Control Act of 1986 (IRCA) and Sure-Tan, Inc. v. NLRB, 467 US 883 (1984) bar awards of any backpay to undocumented employees. The court disagreed.

The court concluded that "properly understood, Sure-Tan supports backpay awards to undocumented discriminatees so long as the awards reflect the discriminatees' actual losses. Moreover, because nothing in IRCA prohibits such limited backpay awards, and because the Board fashioned the award in this case not just to fulfill the objectives of the National Labor Relations Act, but also to avoid violations of IRCA, the award falls within the Board's broad remedial discretion."

Only in the USA do law breakers have the advantage of the law.

To read the complete ruling in this case just click here.

5. Another Case of Employers vs. Unions

The NLRB affirmed an administrative law judge's findings that Newlonbro, LLC (Connecticut's Own) violated Section 8(a)(3) and (1) of the Act by discharging Howard Sachs because of his activities for Teamsters Local 13. The case also says that they violated Section 8(a)(1) by interrogating employees regarding their union sympathies, creating the impression that their union activities were under surveillance, and threatening employees with more onerous working conditions if they selected the Union as their bargaining representative.

On another alleged violation, the Board affirmed the judge's dismissal of the complaint allegation that Newlonbro, LLC (Connecticut's Own) violated Section 8(a)(3) and (1) by discharging Michael Frank. The judge found that the General Counsel made a strong prima facie case that Frank's union activities were a motivating factor in the Respondent's decision to discharge him. He found however that the Respondent showed that it would have discharged Frank even in the absence of his union activity because of his adamant and persistent refusal to comply with the Respondent's request that he sell new cars after it merged the new and used car departments. Member Hurtgen disagreed with the judge's finding that the General Counsel made out a prima facie case with respect to Frank.

This case continues a long line of cases supporting the novel notion that employees should behave in the work place. (But, then, on second thought, go back and see the contraception and romance articles)

To read the complete ruling in this case just click here.

If you have labor relations questions don't hesitate to Contact Braun-BCG