Published in the New Hampshire Bar News
By: Charla Bizios Stevens
Does
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