Published in the NH Bar News
anyone remember 1972?
In the fall of that year, Richard Nixon and George McGovern squared off in the presidential election, and, at least as I remember watching it through the eyes of an eighth-grader in politically liberal Massachusetts, the pivotal issues were ending the Vietnam War, bringing home the POWs and this dangerous and radical notion of equal rights for women.
The Equal Rights Amendment (ERA) passed both the Senate and the House that year and was sent to the states for ratification. Both political parties incorporated the ERA in their platforms, and Congress gave a seven-year time limit by which two-thirds of the states (38 of 50) had to ratify or the amendment would fail. No one I knew realistically believed that an amendment to the Constitution that started with the words “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” could possibly fail. Ultimately, however, the Amendment fell three states short of ratification and gently died on the vine with never another realistic play for passage made.
But why is it important to bring this up now? Some of us thought the 1970s was the decade of the woman because, despite the failure of the ERA, it was a decade in which significant legal strides were made: Title IX required equal opportunity for women in educational settings; the Pregnancy Discrimination Act passed; Title VII was reinvigorated as an avenue for insuring women’s rights in the workplace and then there was Roe v. Wade.
Yet, if one listens to the dialogue today, there are serious questions posed about whether the advances of 1970s have carried forward to true equality. Arguments about access to contraception, statistics on lack of pay equity and publicity about sexual harassment in workplaces and sexual violence on college campuses have dominated the news.
This year, a variety of new laws, court cases and administrative decisions have brought so-called women’s issues to the forefront. This review should start at home, with the New Hampshire Legislature:
Equal Pay Act
NH RSA 275:37, the Equal Pay Act, was amended significantly, effective Jan. 1, 2015. The law prohibits employers from discriminating between employees on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for what the statute refers to as “equal work.” Such work requires “equal skill, effort, and responsibility and is performed under similar working conditions” by both the employees of one sex and employees of the other sex.
The statute allows employers to pay employees of one sex at a lower rate than employees of a different sex if the pay decision is made pursuant to a seniority system, a merit or performance-based system, a system that measures earnings by quantity or quality of production, based on the employee’s expertise, differentials in the employees’ shifts, or factors such as education, training, or experience.
These exceptions give employers some flexibility to make legitimate and reasonable pay decisions. However, the statute puts employers on notice that they need to ensure that pay differentials and considerations for raises and bonuses are based on merit, seniority, or other acceptable systems as recognized in the statute. The statute also precludes employers from prohibiting employees from discussing their wages and adds significant protections against retaliation.
Protection for Domestic Violence Victims
Effective Sept. 9, 2014, New Hampshire employers are prohibited from discriminating against victims of domestic violence in the terms and conditions of their employment. Pursuant to RSA 275:71, it is an unlawful employment practice for an employer to refuse to hire an otherwise qualified individual because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.
Businesses are also prohibited from discharging, threatening to discharge, demoting, suspending, or in any manner discriminating or retaliating against an individual with regard to promotion, compensation or other terms, conditions, or privileges of employment because the individual is a victim of domestic violence, harassment, sexual assault, or stalking.
In the current session, new legislation was introduced that would have moved the protection for victims of domestic violence to RSA 354-A, New Hampshire’s law against discrimination. This change would be significant as it would create a new protected class under state anti-discrimination laws and vastly expand the legal remedies available to those who claim they have been discriminated against.
Rights for Breastfeeding Employees
In this legislative session, there is also a bill pending that, if passed, would expand the rights of women who breastfeed at work.
The federal Affordable Care Act amended the Fair Labor Standards Act by requiring employers of 50 or more to accommodate breastfeeding women by providing them sanitary, private places to pump milk and to allow them sufficient break time to do so.
The New Hampshire legislation has the potential to expand these requirements to smaller employers and also would establish an advisory council to examine best practices on breastfeeding, lactation and the health impact on children.
Equal Opportunity Employment Commission
Although the US Congress has been mostly silent on workplace issues recently, the administrative agencies, especially the Equal Employment Opportunity Commission (EEOC), have been very active, particularly on issues of significance to women.
The EEOC’s strategic enforcement plan for fiscal years 2013-2016 includes the following priorities:
Addressing emerging and developing issues, such certain ADA accommodation and qualification issues, pregnancy discrimination and coverage of LGBT individuals under Title VII sex discrimination provisions
Enforcing equal pay laws
The agency on July 14, 2014, issued an Enforcement Guidance on Pregnancy Discrimination. The document provides guidance regarding the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) as it applies to pregnant workers.
EEOC Chair Jacqueline Berrien commented in a press release issued on the day the guidance was released that “Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”
The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC’s position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.
This issue is the subject of a case recently argued before the US Supreme Court, Young v. UPS, in which a pregnant employee whose job required physical work sought a reduction in job responsibilities due to pregnancy. (See related article.)
Other highlights of the guidance include the following:
- Employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Employers can also violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.
- There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.
- Parental leave (which is distinct from medical leave associated with childbirth or recovering from childbirth) must be provided to similarly situated men and women on the same terms.
Issues surrounding women in the workplace continue to grab the attention of the legislators in most states and the federal government, as well as state and federal agencies and advocacy groups; and, no doubt, there is more to come.
Charla Bizios Stevens is chair of the employment law practice group at the McLane firm. She can be reached at (603) 628-1363 or by email and followed on Twitter @charlastevens. She frequently contributes to www.employmentlawbusinessguide.com