Virginia Employment Attorney Blog

Some legal analysts believe that the Fourth Circuit Court of Appeals is moving from the far right towards the middle of the ideological spectrum. That maybe so, but middle of the road may be as far as it goes, at least as suggested by a recent opinion adopting a narrow view of employee rights under the Pregnancy Discrimination Act in Young v United Parcel Service Inc.pdf.

The Bottom Line

If you are not interested in the inside baseball of the legal analysis of this case, and just want to know your rights, here is the bottom line: your employer does not have to provide a pregnant employee a light-duty assignment unless those assignments are offered to employees injured "off the job." For instance, if your employer requires that employees be able to life 70 pounds to perform the job, and your doctor say you can only life 25 pounds during your pregnancy, your employer can remove you from your job as long as it enforces this same rule for all employees also injured off the job. (I find it a bit strange to consider pregnancy as an "off the job injury." This puts pregnancy in the same category as a back injury. Certainly an employee can injury his back on the job or off. But how many people become pregnant at their job?) This is important because many large employers only allow for light-duty job assignments for employees injured on the job. They do this primarily to save on worker's compensation costs.

Note, however, that the employer must actually stick to its policy. If the employer policy is to provide light-duty assignents for on-the job injury, but in practice it provides such assignments to some injured off the job, then a pregnant employee is entitled to the same treatment, regardless of what the policy says.

Finding out what your employer's practice actually is may be difficult. So, as I always advise, see your friendly neighborhood employent lawyer to find out if your employer is unlawfully discriminating against you.

Inside Baseball

Now back to the sausage making. In Young, United Parcel Service would not allow the employee, Peggy Young, to work because her medical providers said that she could not lift more than 25 pounds while pregnant. UPS did so, it said, because her job required her to lift at least 70 pounds. (There was some dispute about whether someone in her job had to, in fact, lift that amount. But parties did not disagree that this was the policy.) It was also UPS policy to grant light duty job assignments to those injured on the job. UPS characterized pregnancy as an off-the job "injury." Parties did not dispute that UPS enforced this policy. The Young court had to decide if this was illegal under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act

Congress passed the Pregnancy Discrimination Act (PDA) in 1978. The Act amended Title VII of the Civil Rights Act to include pregnancy in the definition of discrimination based on sex. The language is below:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment- related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work....

Applying the PDA in Young

The dispute in Young (at least on this issue) was how to interpret the second clause, which states that a pregnant woman cannot be treated differently than those similar in their inability to work. Young argued that the meaning was unambiguous - the Act prohibits treating pregnant woman differently that those with short-term restrictions on the ability to work. By this argument, an employer could not provide light duty assignments to those injured on the job, while denying to those assignments to pregnant women. They are both similar in their inability to work. The Sixth Circuit agreed with this argument in Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir.1996).

UPS argued that the first clause of that section placed pregnancy discrimination in the definition of sex discrimination. And courts have long held that an employer does not violate the law just because it has a policy that negatively affects a particular woman, provided that a man would be similarly treated. That is, an employer cannot apply a policy that makes a distinction based on sex or pregnancy. But as long as the employer is making an employment decision based on a neutral factor, like on versus off-the-job injury, that distinction (at least on this facts) is legal even if it happens to negatively affect a pregnant woman.

The court here sided with UPS, finding that the second clause only made sense when read in conjunction with the first - meaning that UPS could have a policy under which a pregnant woman is denied light duty provided that all employees injured off the job are also denied. The court reasoned as follows:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work-- i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA

While I disagree with the court's reasoning, it is for now the law of the land in the Fourth Circuit. Attorneys for Ms. Young have requested that the Supreme Court hear the case. Stay tuned.

The Spiggle Law Firm is pleased to announce that members of the firm recently won a complete aquittal for a lawyer charged with assault. After testimony taking place over four days, including testimony by a treating physician, the judge found our client not guilty!

The Huffington Post has an interesting blog post by Sherri Snelling about creating a corporate culture supportive of caregivers. Ms. Snelling talks about the the increasing number of workers with caregiver responsibilities, sometimes multiple ones for people with both children and an elderly parent or relative to care for. Ms. Snelling advocates for a change in corporate culture such that these needs are recognized and addressed. Whole heartedly support that goal. But until that happens - and it has in some places, at least for educated workers - sometimes the best you can do is talk to a lawyer that handles caregiver discrimination about your rights and, if necessary, assert them. Fine, let's not be coy. I mean threaten to sue them and carry that threat out if necessary.

What caught my eye, though, was that she uses Mad Men as an example of how the workplace was begining to change in the 60s and 70s - for instance, Joan becoming partner at her firm at a time when she is raising a child alone. Interesting point. But what this article made me think of was the vanishing archetype of Don Drapper. (I started to say vanishing Don Drapper, but then thought better of it. He is still out there - not so much in sense of the womanizing and drinking, though that still happens - but in the sense of the lone male breadwinner who has a wife at home to do all of the heavy lifting with house, kids, schools projects, etc. But those men - some women, but mostly men - are not rare. Many of the male partners that I know at law firms have a work-at-home wife.)

It is certainly more common in 2013 for men to both work and have real caregiver responsibilities. These men either by choice or necessisty, have to get home to get dinner on the table, go to science fair, and so on. These men are increasingly found in the ranks of red-meat corporate world like law firms. Sometimes this doesn't work out so well for them. That's what happened to Ariel Ayanna. Cutting to the chase, Ariel got fired. In 2010, Ariel sued his lawfirm employer in the federal district in Massachusetts federal court. The case is Ayanna vs. Dechert, LLP. The case number is 10-cv-12155. Lawyers suing lawyers. Got to be a good joke about that somewhere.

Here are the facts as described in court filings: Ariel was an associate in a big lawfirm from 2006 to 2008, when he was fired. When Ariel started, he had one child and a wife with a chronic mental illness. During his first year he performed well and received a bonus. The following year his wife became pregnant with their second child and her mental health deteriorated. She even tried to committ suicide. Ariel took Family Medical Leave to care for his wife. After their child was born, Ariel took four weeks paternity leave. When he wife's condition improved, Ariel returned to work, even though he had four weeks of FMLA leave remaining. Though he returned to work, he continued to have significant caregiver responsibilites at home for both his children and his wife. After Ariel returned from leave, the partner form whom Ariel performed most of his work began to monitor his work more closely than other associates. After Ariel's wife was hospitalized in September, 2008, the partner began assigning most of his work to other associates. Later in 2008 Ariel received a performance appraisal of "fair." In December 2008 the firm fired him.

Ariel first filed the the EEOC and state analog, Massachusetts Commission Against Discrimination. He later withdrew those claims and requested a right-to-sue letter. (For many discrimination claims, employees are first required to file with the EEOC. If the EEOC fails to resolve the matter with 180 days, which the agency rarely does, the employee can request a letter giving him permission to go to federal court.) Unfortunately, Ariel failed to file within the 90s days after receiving his letter as required under federal law and thus lost the right to bring some of his claims. ***Tip, don't let those 90 day slip. If you do, you are out of luck, no matter how strong your case. If you are having trouble finding a lawyer, go to the courthouse and file yourself - handwritten on notebook paper if you have to - this will stop that 90-day clock. You can then find a lawyer who can later re-file another complaint and serve the defendant. ***

His case went forward on claims of FMLA retaliation and sex discrimination under a Massachusett law, Chapter 151B. Ariel was lucky in that he had a state law to rely on. Most states, like Virginia do not have such laws. Fortunately for employees in D.C., the D.C. Human Rights Act offers similar protections. Ariel's FMLA theory was that the partner for whom he worked routed work away from Ariel and downgraded his performance only after he found out about Ariel's wife's condition and expected that Ariel would need leave. The court found that Ariel had produced enough evidence for this claim to go forward.

Ariel did not fare so well on his 151B claim. His theory there was that the firm fired him because he did not fit in with firm culture "which he assert[ed] is dominated by a traditional male 'macho' stereotype that promotes relegating family responsibilities to women." Interestingly, the court found that the firm could legally fire Ariel because he had caregiver responsibilities. Huh? Isn't that the point, a company cannot discriminate against someone just because they have a sick child and spouse with mental illness? Actually, that's exactly right. The only thing that is illegal - assuming we are not talking about denial of leave under the FMLA - is if a company treats men and women differently. Here the firm treated both men the same. That is, as the court noted, the firm fired both men and women who had caregiver responsibilities. Here's what the judge said:

At most the record suggests that Christian may have disfavored him because Ayanna prioritized his family over his employment responsibilities. While those facts suggest Ayanna may have been terminated because of the time he allotted to his caregiving duties, Chapter 151B does not provide protection for employees based on their caregiver status alone.

So, an employer is entitled to favor employees that priortize work over family. The employer just cannot make the decision based on gender. This case might have turned out differently if the firm had not fired women associates with caregiver responsibilities. Those facts would have supported the notion that the firm was making a decision based on gender sterotype - i.e., that women can take time off for caregiving, but men should not -- rather than simiply prefering those who prioritize work over family. Welcome, Don Drapper. You are our kind of man! Actually, we mean: Welcome Don Drapper and Peggy. You are our kind of people!

Post-script: note, however, that the firm would have run into trouble if denied FMLA leave to both men and women just because they had caregiver responsibilities. The FMLA expressely denies that kind of discrimination. See, I told you that you needed a lawyer.

This article in the in the American Bar Association Journal references a study in New York University Journal of Legislation and Public Policy demostrating that African Americans are more likely than others to pursue discrimination cases without a lawyer. Litigants representing themselves are said by the legal system to be acting pro se or "for one's self." The article notes that a number of reasons for this, including the practices of lawyers who often favor high-income clients and clients with professional connections.

It is certainly possible to bring a discrimination claim without an attorney. Indeed, I once took over a case for a pro se litigatant after she had handled the case by herself in federal court for over a year. But she was a retired lawyer and able to devote herself fulltime to the litigation. The better course of action is to hire an attorney with experience in discrimination cases, even if you have to at first file on your own.

The EEOC often deals with individuals representing themselves. Individuals can also represent themselves in any court, though given the procedural rules, this can be difficult. If you find yourself in a pinch, for instance, if the state of limitations is about to run, you can file a lawsuit on your own and then try to find a lawyer. But proceeding on a case without a lawyer is perilous, as indicated by this case Balas.pdf

The employee in Balas claimed that she was:

"subject[ed] her to an ongoing sexually hostile work environment that included
unwanted requests from her supervisor for sex, numerous sexual comments, sexually explicit posters knowingly being allowed in [her] workplace, employees massaging one
another, sexually offensive pictures, and unwanted touching. . . ." J.A. 7. Her complaint centers on the actions of hersupervisor, Brad Price, who, she alleges, "frequently and repeatedly commented to [her] about how much he liked her attire and physical appearance"; "referred to [her] as a 'goodwoman'"; "frequently and repeatedly entered [her] small workspace and her personal space"; and "frequently talked about
his sex life to [her]." J.A. 7-8. According to Balas's complaint, "[i]n or around April 2009, Mr. Price solicited sex from [her]." J.A. 8. Balas also claimed that Price forceable hugged her, though she admitted that it was just after she had given him some cookies for Christmas.

Balas filed a charge with the EEOC. The EEOC, as it does in all cases, shared the charge the employer. The charge did not include all of the details that Balas shared with the EEOC, for instance, it did not include the time Balas' boss asked her for sex. The Fouth Circuit upheld the trial court's ruling that it could not consider anything other than the allegations on the EEOC charge. Thus, Balas was out of luck, even if it was true that her boss had asked her for sex.

The lesson here for those that go to the EEOC is to make sure that the EEOC charge contains all the key allegations. Also, send the employer (by certified mail other other return-receipt method) everything that you share with the EEOC. In this case, Balas had sent the EEOC a letter and had also shared more detail with the EEOC during the intake process. However, this information was not shared with the employer. As a result, she was not able to rely on this information for her lawsuit.

The moral of this story: it can be difficult to find an attorney to handle a discrimination case, but keep at it. If you need to file with the EEOC before you are able to retain an attorney, make sure that your charge is as complete as possible. If you have been subject to a continuing course of discrimination, make sure that your charge reflects that. There should be a box to check off for continuing discrimination. In addition, if you send material to the EEOC, copy your company's human resources department so that the company will have no argument that it was not notified of about everything that happened to you.

"Can I talk to Tom? No offense, but um, I don't know how to say this - well..." It was my first month as an employment attorney, and as I fielded incoming calls to try to cover Tom Spiggle while he cared for his newborn, it was a question I would hear quite often. I assumed the rest of the sentence would refer to my lack of experience, but the sentence always ended: "Um, see," the person would stammer, "I was hoping to talk to a man." It turned out that these men were hoping to assert a reverse discrimination claim, alleging that their employers had terminated them based on their male gender.

Now, I am a woman, and I can admit that there are some areas of my life where I care about the gender of my service provider. I can only assume that these men believed that a woman would not be as zealous an advocate for their cause since they believed a woman was doing the discriminating against them. I was grateful that my presence at The Spiggle Law Firm gives potential clients a choice about their attorney and counselor's gender, but something felt off in these potential clients' reasoning.

It finally clicked when I read Donna Ballman's article, "Top 6 Reasons Why Discrimination Laws Are Good For White Guys." As she states, a well made discrimination law is going to benefit everybody. That means discrimination laws will benefit white guys, that means asian women; heck, I even believe discrimination laws benefit companies. Companies theoretically want the best person for the job to do the job regardless of the sex, race, age, etc. of the individual doing the job, right? So shouldn't companies hold the employees with hiring and firing decisions to standards of non-discrimination in order to get the best person for the job?

While my race and gender are a part of me, my job is to look at the law and the facts to help all my clients understand their rights, regardless of their race or gender. But it's also imperative for employees to choose an attorney that they feel comfortable talking to. The Spiggle Law Firm gives clients that choice.

Caregiver Discrimination

There is no one law preventing discrimination against caregivers. There are, however, a number of laws that together provide some protection for those with caregiving responsibilities. The Family Medical Leave Act (FMLA) specifically provides for leave to care for a family member. The Americans with Disabilities Act (ADA) bars discrimination against those who care for a disabled family member. Title VII of the Civil Rights Act disallows discrimination based on sex-based stereotypes, for instance, that men cannot be primary caregivers and so should not take time off from work to care for a child. Center for WorkLife Law provides some excellent resources on caregiver discrimination.

Determining whether an employer has acted illegally regarding leave can be complicated. For instance, an employee with a serious medical condition may qualify for FMLA, but only if they have been working for the company for at least a year and if the company has over 50 employees with a 75 mile radius of the location where the employee works. Even if the employee is not covered by the FMLA, she may still be entitled to take leave under the ADA, provided that her employer has at least 15 employees. In addition, employees may be covered by state and local laws - for instance the D.C. Human Rights Act. To complicate matters further, an employee may be entitled to paid leave under the employer's short or long-term disability policy. An employee should be careful, however. A statement on an application for long-term disability indicating an inability to work could result in the employee losing rights under the ADA. So, if you are having difficulty with your employer over leave, contact a law firm that handles leave discrimination cases.

Fair Housing Act: Familial Status

Another statute providing some protection for caregivers is the Fair Housing Act. Section 3604(a), says that it shall be illegal to

refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavail able or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. (Emphasis added)

Courts have interpreted this provision to mean that a landlord cannot refuse to rent to a person solely because he or she has children. For instance, in Potter v. Morgan, the court awarded damages to the Potters based on these facts:

Complainants had been living in LaGrange, WY, but needed to relocate to Cody, WY, approximately 400 miles away, because Mr. Potter"s new job started in July 2011. During the course of searching for housing, Complainants contacted Respondent on June 10, 20II but were wrongly denied Respondent's property on Draw Street (Draw Street Property). Complainants failed to find other available housing in Cody before Mr. Potter'sjob began and were forced to move to Clark. which is 37 miles north of Cody. After six months ofcommuting from Clark to Cody for both work and amenities, Mr. Potter received a conditional job ofter from the Cody Police Department and Complainants broke their lease and moved to a house in Cody, at Gabbi Lane. in December 2011.

At the heart of this matter is a one and a half to three minute telephone conversation, some ofthe content ofwhich is in dispute. The parties agree that Respondent spoke with Mrs. Potter on June 10,2011 ... Based on its observation ofthe witnesses and their demeanors while testifying, the facts enumerated at paragraphs 21-31, supra, constitute the Court's findings with regard to the interactions between Mrs. Potter and Respondent...The salient statements are as follows: 1. Respondent told Complainants that the ages ofComplainants' children were Respondent's \'business" because Respondent was concerned with the children's safety, as the steps in the Draw Street Property could post a safety problem. 2. In response to Mrs. Potter's statement that Respondent could not discriminate against Complainants because of her children, Respondent replied, "yes I can and I will."[then hung up the telephone]. See id. at 9-11. The ALJ decided han ordinary listener could easily conclude that the statement was in violation of § 3604(c)."

The court (technically the U.S. Department of Housing and Urban Development) awarded the Potters monetary damages, including $15,000 for "intangible damages" which encompassed the emotional distress from being denied housing and the fact that Mr. Potter was unable to participate in his son's school activities because the family was forced to live away from where he worked.

A second example is this 9th Circuit decision, Gilligan vs. Jamco Development Corporation. In this case, the court found that it could be a violation of the Fair Housing Act for the managers of an apartment complex to refuse to rent to a couple because they received Aid to Families with Dependent Children (AFDC). The facts of the case were as follows:

In January 1994, Catherine Gilligan contacted Ruth Fischer about renting an apartment at Verdugo Gardens in Burbank, California. According to the Gilligans' complaint, she informed Fischer that her family's source of income was AFDC, and Fischer replied that the Gilligans could not inspect or apply to rent an apartment because they were receiving AFDC benefits. The Gilligans maintain that Fischer never inquired about the amount of their monthly income or informed Catherine Gilligan of the monthly rent at Verdugo Gardens. They further allege that Fischer was aware of a vacant apartment unit in the building when she refused to discuss a rental with Catherine Gilligan. On February 16, 1994, a fair housing tester posing as a prospective tenant contacted Fischer to inquire about the rental of an apartment unit for her family. The tester told Fischer that she received welfare payments, and Fischer responded that Verdugo Gardens was not a "welfare building." Fischer also stated that she had no apartments available to show until the following week. Fifteen minutes later, a second fair housing tester contacted Fischer and inquired about the possibility of renting a unit for her family. In response to Fischer's questions, the second tester stated that she was working and did not receive welfare payments. Fischer promptly showed her an apartment that was being vacated.

Because Gilligan was a decision about the standard necessary to move forward on a claim, the decision did not indicate how the Gilligan's faired in their lawsuit. (I believe that this decision survives Twombly/Iqbal, but that will have to wait for a different post.) In allowing the case to move forward, however, the court recognized that it would be illegal for a apartment manager to discriminate against an applicant simply because he or she has children.

So, for those of you working in this field, or subject to housing discrimination, remember that the Fair Housing Act provides a powerful tool to protect families from housing discrimination.

Lately, I've spent a lot of time thinking about the burdens of production and proof in FLSA overtime cases. To be more precise, I've been thinking about how the burdens stack up when an employee performs exempt and non-exempt work over a long period of time. The answer to this question is more interesting in the case of some exemptions than others.

For some exemptions, like the agricultural workers exemption contained in Section 213(a)(6)(A) of the FLSA, when an employee performs both exempt and non-exempt work in a workweek, he must be payed overtime for every hour over forty that he worked during that workweek. Even if he performs one hour of non-exempt work and thirty-nine hours of exempt work, he is entitled to ten hours of overtime pay.

But who has the burden of proving what type of work the employee did in a given week? Is it the employee's responsibility to show, in each week that he seeks overtime, that he performed more than forty hours of work, at least some of which was non-exempt? Or must the employer, to avoid paying overtime, show that, in each week, the employee performed no non-exempt work.

I think that the latter is likely the case, because of the way that burdens of persuasion work. In overtime exemption cases, once the employee has proven to the jury (or judge) that they worked in excess of forty hours per week without overtime, the burden of persuading the fact finder that an exemption applies falls to the employer. Because employers must compute overtime on a weekly basis, and every week is a separate calculation, this formulation appears to leave the employer with the burden of proving a negative for every week the employer seeks to show that the employee was non-exempt.

Proving a negative can be difficult, particularly if the employer failed to comply with FLSA record-keeping requirements, or if the employer erroneously thought they were exempt from the requirements because their employees performed exempt work. And when it comes to a party shouldering the burden of proving a negative, the United states Supreme had this to say in United States v. Denver & Rio Grande R. Co. in 1903: "When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." And the District Court for the District of Minnesota applied that rule to overtime exemptions in Snyder v. Wessner in 1944.

In that case, an employer sought to escape overtime liability by claiming the employer was covered under the executive exemption. The employer argued that it's burden should be limited to "slight proof," and, upon meeting that burden, a burden of going forward with evidence should move back to the plaintiff. But the court disagreed.

So what does all of this mean for employees who have been swindled out of their overtime under the guise of an exemption? Well, if the employee's employment lawyer convinces the court that the burden of proving the exemption belongs to the employer and must be proved weekly, then the default position is that the employee gets overtime for any given week. The employer will only escape liability for a given week by proving a negative: that the employee performed no exempt work in that week.

This is good news for employees, and bad news for employers who commit wage theft. For more information about overtime laws, see the Department of Labor's topic page on overtime pay.

I ran across a post on the New York Times blog on small business issues, You're the Boss titled, "How Do You Handle Employee Litigation?" The article reports on a small business owner who had settled several employee lawsuits (not sure what's going on there!), but decided once to push a case to trial. When he did, not only did the employee fold and take a low offer of $12,000, he and his lawyer issued a letter of apology for bringing the suit. The article links to a number of others, all of which have the same basic underlying theme: employee lawsuits are brought by whiners who are merely seeking a handout.

What about you? Are you a whiner? Maybe, but I'm guessing not. Of the many people that have come into the firm over years, none have done because they thought it would be fun or a good way to get a payday. Truth is that most people want to work and would rather do other things than file lawsuits. Sure, it happens that some people bring lawsuits without justification. But truth is that these lawsuits are rare and the ones that are brought are weeded out early in the legal process by motions to dismiss or motions for summary judgment. Every lawsuit that I have brought was behalf of people that were discriminated against, sometimes in truly shocking ways. My clients are not whiners. I'm guessing that you are not either.

In fact, sometimes business fire employees even if they don't complain about anything. For instance the U.S. Equal Employment Opportunity Commission recently settled a lawsuit against an employer for firing a waiter only because she had the temerity to get pregnant. This woman did not complain about a thing, but still lost her job. This is illegal under the Pregnancy Discrimination Act, which prevents employers from discriminating against employees solely based on a pregnancy.

And before you start feeling sorry for the burden placed on "small businesses," consider that many federal laws, including the Pregnancy Discrimination Act, do not even apply to business with less than 15 employees. That's right, in most states if you work for an employer with 14 employees, your boss can fire you simply because you get pregnant or even if your spouse gets pregnant. Just like the story told by this woman describing a friend who was harassed at her job only because she became pregnant. For instance, after she told her boss that she was pregnant, he later asked whether he now had to "open a friggin' daycare." He then had his wife come to work with the pregnant employee because she would need help in "her condition," even though the worker had not requested help. Because this was a small business with under 15 employees, there was nothing that the pregnant employee could do.

Look, I get it. Running a small business is difficult. Making payroll is stressful, and having an employee out of commission can cause problems. But this doesn't justify outrageous treatment from the boss (or his wife).

The irony of the NYT article is that the lawsuits of which it complains are brought by attorneys who are small business owners themselves. If the lawyer can't pay the rent, she can't maintain a private law practice. This is perhaps the best check against "frivolous lawsuits." They are expensive and time consuming for both attorney and client. No attorney wants to bring a bad case. It hurts the client, and the lawyer will lose money.

If you are thinking about seeing a lawyer about discrimination at work, you'll have to endure some of this misguided thinking. But you'll know the truth, and so will your lawyer. Standing up for justice and proper treatment does not make you a whiner, no matter what your boss or his well-paid defense lawyer may say.

The Family Medical Leave Act is an a very complex, technical law. For instance, an employer must have at least 50 employees with a 75 radius before it is even covered by the law. So, an employer with 25 employees in Kansas and and other 25 in North Carolina would not be covered and employees at that company would not be entitled to protections of the Act. The American Bar Association recently released a 330-page report, "2013 Midwinter Meeting Report of 2012 Cases." It can be at the FMLA Insights Blog, a very useful resource for FMLA law.

What exactly is an "at-will" employment policy? Most people understand that an at-will employment policy means that an employer has free reign to terminate an employee at any time, for any reason. However, any time and for any reason does not include terminating somebody for a discriminatory reason, thanks to several anti-discrimination laws such as Title VII, Americans with Disabilities Act, and the Age Discrimination in Employment Act, to name a few.

Currently, 49 out of 50 states have statutes that make employment at-will the default term of any employment contract. The exceptional state is Montana. states that an employer can only fire an employee who completed a probationary period if there is "good cause," such as failure to perform satisfactorily or other legitimate business reasons. Currently, Montana boasts the 12th lowest unemployment rate in the nation.

Abolishing at-will employment seems like it would be disfavorable to employers, but at least one scholar argues that the ever expanding litany of Title VII protected classes is serving as a de facto requirement that employers discharge for cause in order to protect themselves from litigation in this article titled Advocacy Versus Analysis in Assessing Employment Discrimination Law .

Requiring employers to terminate for cause may be a solution that helps employees and employers alike. Employees who are given a for-cause explanation about their adverse employment event, could take comfort in understanding the employer's reasons for such an action. It would also protect employers from excessive or unreasonable litigation because ex-employees would not be left grasping for an alternative explanations (i.e., they would be assured that protected class status is not the employer's reason) for their adverse employment action.

However, as anybody who has been put on a Performance Improvement Plan (PIP) knows, it is easy enough to find a reason to fire anybody. This is demonstrated in the success that employers have had in defending themselves during the summary judgment phase of trials: Most employers can find some credible reason for their actions because nobody is perfect. Thus, abolishing at will employment may not directly abolish discriminatory firings; however, it will likely force employers to create longer paper trails to terminate their employees.

In the meantime, at-will employees who have been fired, or have been passed over for jobs and raises, and believe that such action could possibly have been based on their employer's discriminatory motive, should consult a reputable plaintiff-side employment attorney immediately.

Michelle Singletary with the Washington Post had an informative article, Saving strategies, before and after a job loss, with advice for what to do financial if you fear losing or have lost a job. It is worth reviewing if that is the position that you find yourself in. In sum, for those who are still employed, she advises cutting expenses and holding off on any spending or aggressive debt payment until you are in a more stable position. For those who are without a job and looking to get back on your feet, she suggested patience as you try to rebuild yourself financially.

I have a couple of more tools to consider if you are still employed or just on your way out the door.

If you are the victim of discrimination or suspect wrongdoing, let your boss know it.

Telling your boss about discrimination or wrongdoing at the company may buy you as much as 6 more months of employment. Most courts will presume that your employer is retaliating against you if they fire you right after you complain about mistreatment. So, speak up and buy yourself some time.

Get a severance agreement

Employers are not required to offer you a settlement agreement, but they often will. If you have or can point to discrimination or other wrongdoing at work, you have leverage to ask for severance. Your employer will want you to sign a waiver in which you give up your right to sue. Your employer should pay for it. In addition, or in the alternative, if you have been at your employer for a long time and have built up goodwill, your employer will have incentive to treat you well on the way out the door. How much is reasonable? One to two weeks per year of employment is standard. If you have been the victim of wrongdoing, you may be able to get more.

Ask for your employer not to oppose an application for unemployment

Some employers, even if they are not willing to offer a monetary settlement, may agree not to oppose an application for unemployment.

Go to the EEOC or state civil rights agency

This applies even if you have been shown the door without a severance. Employment and civil rights statutes often have short deadlines for filing a claim. For instance, in most instances you have 180 days to file a claim of racial discrimination or you lose the right to bring even slam dunk claims. Don't lose the right to bring a claim. With all that goes on after you lose a job, take a few hours to visit the EEOC or . . .

See a lawyer

I am a bit biased in this respect, but I think it's time (and perhaps money) well spent to talk to a lawyer about any employment matter. In Virginia, you will want a lawyer with federal court experience, as that's were most employment law cases in the Commonwealth end up. Your boss wants you to sign a severance agreement? Take an hour and see a lawyer. You may have a great claim that your boss wants you to give up for pennies. But only a trained employment lawyer may be able spot it. Same holds true for your trip to the EEOC. Visit a lawyer first. Even if you don't ultimately hire the lawyer, he or she can help you maximize the value of the claim and explain the process.

Find another job

I know, I know, easier said that done, but don't lose sight of this part. Visit your lawyer. Maximize the value of any severance or get your employee action started. Then put it aside and start looking for other work. Some of the best leverage you can assert over your ex-employer is that ability to walk way from a bad offer. It can difficult to do that if you desperately need the crumbs that your old boss is trying to offer you.

Current antidiscrimination law expands only with the creation of protected classes. A protected class is a group of people that has been legislatively protected by Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or other legislation defining a group of people who have been deemed in need of protection from adverse employment actions based on certain characteristics. This is why the Human Rights Campaign and other gay rights groups are hoping that, with President Obama's reelection, the Employment Non-Discrimination Act (ENDA), has gained new hope.

Some of the rationale behind the selection of protected classes stems from the long history each group has of political powerlessness and discrimination. Other rationales stem from the "immutability of characteristics" - in other words, because certain groups of people are marked by characteristics that are impervious to change.

The goal of antidiscrimination law is to "neutralize" prejudice to help evaluate and advance disadvantaged groups based on their merit alone. However, the rush to create protected classes has floundered when it comes to the goal of establishing equal rights for Lesbian, Gay, Bisexual, or Transgender (LGBT) people. The Employment Non-Discrimination Act (ENDA) was first proposed back in 1994, and a version of it has been proposed nearly every year since. This proposed legislation is still being advanced in both the House and Senate.

What would ENDA mean for the LGBT community? The idea behind ENDA is that such an act would prohibit employers from making employment decisions based on a person's sexual orientation or gender identity. Currently, it is perfectly legal in most jurisdictions for an employer to say, "You're gay? You're fired." ENDA has been advanced as a way to end that particular practice.

From one vantage point, Congress' unwillingness to pass ENDA could be attributed to a majority belief that gender is a non-mutable characteristic and a person's sexual orientation is a choice. As recently as 2008, Congress was willing to create a new protected class for the non-mutable characteristic of genetic make-up (Genetic Information Non-discrimination Act, or GINA). Until enough members of Congress believe that LGBT status is not a choice, ENDA's success seems unlikely without an Executive Order.

In the middle, many also argue that there are fundamental flaws inherent in creating additional protected classes, and ENDA should not be passed, no matter the merit of protecting LGBT rights. One such fundamental flaw is reverse discrimination: for every protected class that is chiseled into our laws, an equal and opposite class of "unprotected" people now have standing to assert a reverse discrimination claim. Although many argue that Congress had no intention of addressing problems of reverse discrimination when passing current employment-discrimination laws, still others argue that all claims of discrimination, whether by a protected class or not, need to be treated equally under the Equal Protection Clause of the Fourteenth Amendment.

Finally, even if President Obama does decide to write ENDA into law, many LGBT advocates have criticized ENDA's current form as too weak. This criticism arises due to a series of legislative compromises made in an effort to get some protection passed for LGBT people. These compromises exempt many businesses that would ordinarily be subject to the requirements of Title VII, and additionally eliminated many protections for transgender people.

In many employment cases, a plaintiff/employee can recover for emotional-distress damages. A plaintiff need not put on an expert, like a doctor, to win such damages (though it helps). Quantifying how much pain & suffering is worth (distasteful to put it in these terms, I realize, but in civil litigation that's how the system works) can be difficult. The dollar value can vary depending on where your court is located and what other juries have awarded in similar cases. An opinion by Judge Cacheris, Bland v Fairfax County (2011), in the Eastern District of Virginia is a helpful benchmark, at least for federal courts in Virginia. You'll need to skip to the last section of the opinion to find the relevant discussion. Bland also provides a helpful illustration of what type of testimony an employee needs to put on in order to support a damages award. To cut to the chase, in EDVA the value of emotional pain & suffering, without testimony from a treating physician, appears to be about $15 to $50K.

In February of this year the EEOC held a hearing on the issue of family responsibilities and pregnancy discrimination. Sociologist Dr. Stephen Benard discussed his findings regarding discrimination against male caregivers. You can read his study for yourself here. He finds that employers reviewing job applicants generally considered men with children in a favorable light, in contrast to women with children. Other studies cited, however, indicated that this advantage disappeared if the men asked for time off to care for a child or parent. Below is an excerpt from Dr. Benard's study.

• Discrimination faced by men: An important frontier in work on the motherhood penalty is whether fathers also face discrimination. Our work found that fathers tended to be evaluated as positively or more positively than men without children. However, the evaluators in our studies may have assumed that the male applicants - but not the female applicants - had a partner serving as the primary caregiver for the children. This raises the question of whether men experience discrimination when they engage in caregiving activities. Increasingly, research has begun to explore this possibility. One study (Wayne and Cordeiro 2003) finds that men who took leave to care for a child or an elder parent were seen as worse "organizational citizens" than those who did not take leave. In addition, a study by Rudman and Mescher (forthcoming) finds that men who requested family leave were perceived as weaker, less masculine, and at greater risk for being demoted or downsized. This suggests that the motherhood penalty may be more accurately described as a caregiver penalty. This question is closely related to another issue: perceptions of individuals who use flexible work options.

Here is a recent story about a woman who was told that she would be terminated when she took time off to care for her baby. Marketing manager was told by her human resources department that she would no longer have a job if she took time off to have a baby. HR told her that she was not covered by the Family Medical Leave Act, which may have been true as the FMLA only applies to companies that have at least 50 employees in a 75 mile radius (along with other restriction). It is possible that the company would have been in violation of the Pregnancy Discrimination Act, but only if it had 15 or more employees and only if it applied the leave policy in a different manner to employees not pregnant - that is, say, if they held a job open for a man who broke his leg skiing and had to take time away from work to heal. In any event, the employer backed down and allowed her to take leave after the woman's lawyer contacted the company and indicated that the woman had taped the conversation with human resources. (You can listen to the tape on the Huffington Post's website.) Score one for the little guy (woman).