July 15th, 2009 at 01:06pm
Under Labor Law
National Origin Discrimination, Labor Law, and Employment Law in Hawaii: Employers Increasingly Facing Litigation over English-Only Rules as More Complaints are Filed with the EEOC
Title VII prohibits discrimination because of “national origin.” The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.
The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.
Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise. Many of these claims arise from employers promulgating English-Only policies. In the EEOC’s view only the most limited policies do not violate Title VII.
Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.
According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often. In April 2009 the EEOC and the company settled for $450,000.
Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination. Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.
Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.
Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.
The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful. Their position also is that limited English-Only policies are lawful only if justified by business necessity. 2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy:
Employers with English-Only rules should also consider doing the following:
Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.
Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.
http://www.amaguinlaw.com
July 12th, 2009 at 03:01am
Under Uncategorized
HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW
INTRODUCTION:
Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.
Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.
FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:
Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.
Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.
Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.
If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.
In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer. Specifically, the caps are set by statute as follows:
Number of Employees Cap
015-100 employees $ 050,000
101-200 employees $ 100,000
201-500 employees $ 200,000
500 plus employees $ 300,000
Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”
There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.
Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law. Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.
Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”
Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.
Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges. Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.
Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.
CONCLUSION:
PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth. Under federal law employers must remember to treat pregnant employees the same as similarly situated employees. However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.
Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com
Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.
Mr. Amaguin litigates a wide range of civil cases involving common law and statutory claims. He litigates claims involving torts, right to privacy, sexual and other forms of harassment, wrongful termination, discrimination and retaliation. He regularly provides counsel on Title VII, the Hawaii Employment Practices Act, FLSA, HIPAA, FMLA, ADA, ADEA, COBRA, non-competition agreements, contracts, workplace investigations, civil rights, whistleblower, drug-testing, and all other statutes that apply to Hawaii employers.