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Recently on the Blawg, we’ve reported on a rash of rather ironic lawsuits that you just wouldn’t expect to see.

First, there was the pregnancy discrimination lawsuit filed against one of the nation’s largest maternity store chains, Motherhood Maternity, Inc.  Then there were the dozens of Fair Labor Standards Act violations allegedly committed by the Equal Employment Opportunity Commission, the very agency charged with keeping the nation’s employees safe from workplace unfairness.  And then, just a few weeks ago, the National Labor Relations Board was hit with multiple allegations of unfair labor practices.

What’s next?  Unsafe working conditions at OSHA?  Tax fraud at the IRS?  Immigration Control & Enforcement raiding itself and finding lots of illegal aliens?

Well, it appears that we may have our next entrant in the “Most Ironic Lawsuit of the Year” sweepstakes.  In a complaint filed earlier this week, a former AARP employee claims that she was terminated unfairly after more than eleven years of service.  The basis of her claim?  Age discrimination.

AARP — formerly known as the American Association of Retired Persons — is a nonprofit organization dedicated to serving persons age 50 and over and “enhancing quality of life for all as we age.” 

Bonita Brady, 63, claims that she lost her “permanent” position at AARP due to a corporate reorganization, was passed over for nine other positions for which she was qualified and then was terminated just before she would have become eligible for retirement benefits.  She alleges that AARP discriminated against her because of her age and her status as caregiver for her elderly father.

“How ironic that AARP has failed to follow its own goals in the treatment of older employees,” said Brady’s attorney.  Brady seeks compensation for lost wages and benefits, statutory penalties and attorneys’ fees.

AARP has yet to officially comment.  Stay tuned to see how this plays out.

Our COBRA, Equal Pay Act, ERISA, FCRA, FLSA, Harassment, NLRA, OSHA, PDA, Section 1981, Title VII, USERRA and WARN Cheat Sheets are now available here or by clicking on “Cheat Sheets” under ”Tools & Tips” on the left side of the Blawg.

Hope you find them helpful.  I’ll be adding more throughout the day in preparation for our free July 30 webinar, entitled Every Employment Law in 60 Minutes or Less.  To register for the webinar, click here.

Approximately 2 million Americans will get a raise today as the federal minimum wage increases 70 cents, from $5.85 to $6.55 an hour. 

The increase is the second of three annual raises required in a 2007 law passed by Congress.  Next year, the minimum wage will rise to $7.25 an hour.

As part of our never-ending quest to make employment law easy, we asked you to tell us what cheat sheets you’d like us to create next.  Earlier this week, we posted your top choice, the FMLA, here.

Your #2 choice was the Age Discrimination in Employment Act (ADEA).  Click here to see it.  For more, check out “Cheat Sheets” under “Tools & Tips.”

Thanks for expressing yourselves.  More to follow.

Today, the EEOC released a new Compliance Manual Section regarding religious discrimination in the workplace.  Click here to download the new section, here for answers to FAQs and here for employer and employee best practices.

The new section covers many key issues, including:

• what constitutes “religion” for purposes of Title VII
• reasonable accommodation of religious practices
• religious harassment
• religious expression
• disparate treatment
• retaliation

“Title VII of the Civil Rights Act of 1964 seeks to ensure that applicants and employees enjoy the freedom to compete, advance and succeed in the workplace, irrespective of their religious beliefs,” said EEOC Chair Naomi Earp.  “This Compliance Manual Section serves as a valuable resource for employers, employees, practitioners and EEOC staff seeking information on Title VII’s prohibition against religious discrimination.”

Religious discrimination charges filed with the EEOC have more than doubled over the past fifteen years, from 1,388 in 1992 to a record 2,880 last year.

So, what does the EEOC suggest for employer best practices?  Here are the highlights:

• Policies and Procedures.  Employers should have a well-publicized and consistently applied anti-harassment policy that (1) addresses religious harassment, (2) clearly explains what’s prohibited, (3) describes the process for bringing harassment to management’s attention and (4) assures complainants that they will be protected from retaliation.  The process should include (1) multiple avenues for complaints, (2) prompt, thorough and impartial investigations and (3) prompt and appropriate corrective action.
• Religious Expression.  Religious expression should be allowed to the same extent as other types of personal expression that aren’t harassing or disruptive.
• Remediation.  Employers should take prompt and appropriate action to address potentially harassing religious conduct, including conduct by customers, vendors or contractors.
• Reasonable Accommodation.  Employers should make reasonable efforts to accommodate employees’ religious practices.  However, employers aren’t required to provide the employee’s preferred accommodation if there are other effective alternatives.  Suggestions are given for how to deal with specific accommodation situations, including schedule changes, voluntary substitutions, change of job assignments, transfers and permitting prayer, proselytizing and other forms of religious expression.
• Training.  Managers should be trained on how to deal with all of the above, including the necessity of avoiding retaliation.

 Stay tuned for more.

As part of our never-ending quest to make employment law easy, we asked you to tell us what cheat sheet you’d like us to create next.  The overwhelming choice (with 39% of the votes) was the FMLA.

Ask and you will receive.  Click here or check out “Cheat Sheets” under “Tools & Tips” for our FMLA Cheat Sheet.

Thanks for expressing yourselves.

At our last webinar, we asked the attendees to select the topic for our next session.  Their choice:  Every Employment Law in 60 Minutes or Less.

So, please join us on July 30 from 11:00 a.m. to 12:00 p.m. Central Time, where we’ll tell you absolutely everything you need to know about employment law.  Best of all, it’s FREE.

To register, just click here or on the registration button at the upper left of the Blawg.  If you have questions you’d like us to consider answering during the webinar, please send ‘em in advance to blawg@manpower.com.

Our last webinar had more than 1,700 participants.  We’re shooting for 591 million on this one.  Hope you can join us!

As discussed previously here on the Blawg, Congress is in the midst of debate over the Americans with Disabilities Amendments Act of 2008, a statute that could dramatically affect the way disabilities are treated in the workplace.

The Act sailed through the House a few weeks ago by a resounding 402-17 margin.  Many thought it would face a similarly easy path in the Senate.  But now the Senate’s sponsor of the bill is questioning whether the Act’s language is clear enough.

At the center of the debate is the definition of “disability” under the law.  The Act seeks to clarify the ADA’s definition by stating that conditions must “materially restrict” major life activities such as breathing, communicating, eating, hearing, lifting, seeing, standing, walking, caring for oneself, performing manual tasks and working. 

At a recent hearing, Senator Tom Harkin (D-Iowa) expressed concern over whether that language could lead to more confusion and litigation — exactly what the Act is supposed to help avoid.  “I want to caution supporters of the House bill that, here in the Senate, serious procedural and substantive concerns have been raised,” he said.  “I want to work quickly to produce a Senate bill that gets the job done by returning protections of the ADA to all individuals with disabilities.”

Despite those concerns, a spokesperson added that Harkin will “do everything he can to see [the Act] passed and signed into law this year.”

HR Executive Online has a handy chart showing the Act’s proposed changes here.

Stay tuned for more.

Each week, we post a though-provoking question for your consideration.  Submit your answer, see what others think and then next we’ll give you the correct answer.

This week’s question is designed to see how well you’ve been paying attention . . .

As always, thanks for your participation!

Is an employee who misses work to have an abortion protected from firing by the Pregnancy Discrimination Act (PDA)?  How about someone who misses work for in vitro fertilization?  According to two recent federal court decisions, the answer is ”yes.”

The Abortion Case

In the first case, Doe v. C.A.R.S. Protection Plus, Inc., No. 06-3625 (3rc Cir. 2008), the anonymous Jane Doe plaintiff was fired three days after having an abortion.  She claimed that her firing constituted gender discrimination under Title VII, as amended by the PDA.

The employer moved for summary judgment, arguing that the PDA didn’t apply.  The lower court agreed, finding no nexus between pregnancy and the termination.  Doe appealed.

The court of appeals noted that the PDA specifically states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work” (emphasis added). 

The court concluded that abortion is a “related medical condition” to pregnancy and thus is covered.  It reversed the lower court’s decision and remanded it for further proceedings.

The In Vitro Case

Similary, the Seventh Circuit ruled on Wednesday that in vitro fertilization (IVF) is covered by the PDA.  Hall v. Nalco Co., No. 06-3684 (7th Cir. 2008). 

Cheryl Hall requested time off from her secretary job to undergo IVF.  Her employer approved the leave.  When the process was unsuccessful, Hall asked for additional time off for a second procedure. 

Shortly thereafter, Hall was informed that her position was being eliminated.  Hall’s boss allegedly told her that her termination was “in [her] best interest due to [her] health condition.”  Notes taken by an HR representative contained references to her absences for IVF and that she “missed a lot of work due to health.”

The lower court ruled that infertility is an unprotected gender-neutral condition.  The court of appeals reversed, finding that while infertility is indeed gender-neutral, IVF is not.  The case was remanded for further proceedings.

The Lessons

Lesson #1:  policies or practices that adversely affect one gender may be found discriminatory.  More specifically, taking adverse action against a woman related to pregnancy, abortion or IVF may violate the PDA.

Lesson #2:  be very careful what you document.  Notes like those taken by HR in the Hall case can doom your lawsuit.  As we state in our Top Ten Tips, good documentation is better than no documentation but no documentation is better than bad documentation.