On July 24, 2008, following an afternoon markup session, the House Committee on Education and Labor passed an amended version of the Paycheck Fairness Act (H.R. 1338) out of committee by a vote of 26 to 17, thus advancing the bill to the House floor. In an attempt to address ongoing pay disparities by gender, the Paycheck Fairness Act would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense. Under the Paycheck Fairness Act, the “bona-fide factor” defense would no longer be valid where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.

The Committee passed the amendment proposed by Committee Chairman Miller (D-CA), which was a substitute version of the legislation. Miller’s amended version is similar to the original, but addresses some employer concerns by clarifying that employees would only be deemed to work in the same “establishment” for purposes of proving a pay disparity if the employees “work for the same employer at workplaces located in the same county or similar political subdivision of a State.” The amended bill also clarifies that the provision protecting employees from employer retaliation would not apply to employees with access to wage information by virtue of their job duties who disclose other employees’ wages, unless the disclosure is in response to a complaint or charge or in furtherance of an investigation. Where the original legislation appropriated “such sums as may be necessary,” the version passed by the committee would authorize a $15 million appropriation.

Several proposed amendments failed to pass, including two amendments by Rep. Price (R-GA), which would have made implementation of the Act contingent upon a 90-day study by the Department of Labor on whether the bill would hinder recruitment and hiring, and limited reasonable attorney’s fees under the act to $2,000 per hour. Several proposed amendments were ruled non-germane by Chairman Miller. These included an amendment proposed by Rep. McMorris Rodgers (R-WA) mirroring her proposed Family-Friendly Workplace Act (H.R. 6025), and an amendment proposed by Rep. McKeon (R-CA) requiring a study on how rising energy costs exacerbate the impact of wage disparities for American families.

On July 22, 2008, the EEOC has issued a new Compliance Manual Section concerning workplace discrimination on the basis of religion. The new manual is intended as an overview of religious discrimination case law and the EEOC’s own views on the subject in order to provide “a practical resource for employers, employees, practitioners, and EEOC enforcement staff” in navigating the religious discrimination provisions of Title VII. The EEOC’s regulations on religious discrimination, 29 C.F.R. § 1605, are not affected by the manual.

The manual first addresses coverage issues, such as the definition of “religion” and a “sincerely held” belief under Title VII. The manual emphasizes that Title VII’s definition of religion is very broad, intended to cover all aspects of religious observance and traditional and non-traditional beliefs alike. The section further notes that religious discrimination protections extend to those with no religious beliefs at all. 

Next, the manual provides an analysis of disparate treatment claims of religious discrimination and workplace harassment based on religion. The manual also discusses what constitutes a “reasonable accommodation,” addressing both the scope of the accommodation required and common methods of religious accommodation used by employers. Lastly, the manual discusses the intersection of religious discrimination with other similar forms of discrimination, such as discrimination based on national origin or race.

The EEOC issued the new manual in response to rising claims of religious discrimination and at the request of agency officials involved in investigating and prosecuting these claims. The EEOC speculated this rise in claims may be attributable to an increase in religious pluralism, noting that as religious diversity in the workplace has increased, charges of religious bias may have risen in response. Religious discrimination claims filed at the EEOC have climbed from 1,388 in 1992 to a record 2,880 in 2007.

On July 15, 2008, the House Education and Labor Committee held a hearing titled “Is the Department of Labor Effectively Enforcing Our Wage and Hour Laws?” Most of the testimony heard by the committee concerned the capacity of the Wage and Hour Division (WHD) to enforce the Fair Labor Standards Act (FLSA). Critics contend that the Bush administration has failed to protect workers against a growing problem of “wage theft” by adopting weak approaches to enforcement and reducing funding and staffing levels of the WHD.

In his opening remarks, Chairman George Miller (D-CA) chided employers for paying employees less than minimum wage, refusing to pay overtime when employees worked more than forty hours, and requiring employees to work off the clock. At Chairman Miller’s behest, the Government Accountability Office (GAO) launched two separate investigations into wage theft.

Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations for the GAO, discussed case studies that revealed examples of WHD not adequately pursuing labor violations. In particular, these studies included instances where WHD inadequately investigated complaints from low-wage workers alleging that employers had failed to pay them the federal minimum wage and required overtime pay, and had withheld their last paychecks. WHD investigators provided the following explanations for their limited responses to some of these complaints: they had to compete against the statute of limitations for assessing back wages because of a backlog of complaints; they did not thoroughly investigate complaints filed anonymously; they did not fully investigate complaints about isolated issues; and they did not treat complaints about receipt of last paychecks as cases to be investigated.

Alexander Passantino, the Acting Administrator for the WHD, outlined WHD’s enforcement responsibilities. He identified a variety of tools that WHD employees use to enforce the law and to achieve compliance, including responding to complaints, initiating directed cases, engaging in educational and other outreach activities, and assessing penalties against violators. Despite achieving improved FLSA compliance in the garment, long-term health care, and poultry processing industries, Passantino noted that WHD’s steadily declining staff level frustrated its performance efforts.

Anne-Marie Lasowski, Acting Director of Education, Workforce and Income Security Issues for the GAO, testified that WHD could improve compliance by making better use of available resources and ensuring consistent reporting. She attributed WHD’s inefficiency to (1) the increased use of more time-consuming comprehensive investigations; (2) a decrease in the number of investigators; and (3) the screening of complaints to eliminate those that may result in violations. The extent to which WHD’s activities have improved FLSA compliance is uncertain because the agency frequently changes how it measures and reports its performance. To assist WHD with better planning and conducting its FLSA compliance activities, GAO recommended that it evaluate complaint data, obtain and use input from external stakeholders, incorporate data from its commissioned studies, and leverage existing tools.

Kim Bobo, Executive Director of Interfaith Worker Justice, also provided recommendations for how WHD could better enforce compliance with FLSA. She suggested that it: (1) develop a community policing model for wage enforcement; (2) devote 50 percent of the Wage and Hour Division’s staff and resources to targeted investigations; (3) punish those who steal wages in meaningful ways; (4) experiment with new educational and enforcement approaches; and (5) increase the number of enforcement staff and attorneys devoted to wage and hour compliance. Additionally, Ms. Bobo recommended that WHD assign at least half the total investigators to targeted investigations focused on low-wage industries known to steal wages from workers.

On July 15, 2008, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on pending legislation passed by the House of Representatives (H.R.3195) that would alter the reach of the Americans with Disabilities Act (”ADA”). Scholars, lawyers, consultants and analysts, and disabled persons appeared before the panel to discuss the proper scope of coverage for the Americans with Disabilities Act (”ADA”). The discussion centered on the proper definitions of the term “disability” and the phrase “substantially limits” under the proposed bill.

In 1999, the Supreme Court limited the definition of “disability” when it ruled that mitigating measures must be considered in determining whether an individual’s impairment substantially limits a major life activity. This trend continued in 2002 in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, where the Supreme Court ruled that the words “substantially limits” and “major life activities” were to be interpreted strictly to create a “demanding standard for qualifying as disabled,” a standard that would remove thousands of disabled individuals from the Act’s coverage.

In light of this strict reading of the ADA’s provisions, the House of Representatives passed the ADA Amendments Act of 2008 (H.R. 3195) on June 25, 2008. Senator Harkin (D-IA) pointed to the ADA’s history of bipartisan support and the current consensus that the Supreme Court has interpreted the definition of “disability” too narrowly. While acknowledging problems needing follow-up in the House bill, Sen. Harkin pressed for broader coverage under the ADA.

Testimony at the hearing also centered on H.R. 3195’s definition of the phrase “substantially limits” as “materially restricts” and asked whether that definition provided a clear standard for the courts to apply. Most witnesses supported H.R. 3195’s definition. Law professors Samuel R. Bagenstos and Chai Feldblum stated separately that the “materially restricts” definition contained in the Act provided the appropriate level of clarity and that courts could effectively apply the standard. Michael Eastman, Employment Policy Director of the U.S. Chamber of Commerce, also supported the H.R. 3195’s definition, calling it a collaborative effort between business and the legislature.

One witness, Terry W. Hartle, Senior Vice President of the American Council on Education, expressed concern that that the broader definition of “substantially limits” in H.R. 3195 might force the academic community to alter essential elements of core education programs. Sen. Harkin disagreed, pointing out that this concern was directly contradicted by the unchanged statutory language. He explained that the only way to ensure that courts could never alter academic programs would be to institute a total ban on such actions - an idea he found unrealistic. Specific to standardized testing, educational consultant Jo Anne Simon dismissed as unfounded concerns that the new definition of “substantially limited” could create havoc in the field of standardized testing by requiring extra time and other accommodations for marginally afflicted students. Simon explained that the bill merely allowed persons with disabilities to be more easily identified and did not necessarily require increased accommodation.

Andrew Grossman, Senior Legal Policy Analyst of the Heritage Foundation and critic of H.R. 3195, submitted comments centering on compliance costs to businesses.  Calling the bill’s approach “vague,” he stated that the uncertainty created by H.R. 3195 will lead businesses to waste resources in attempting to comply with unclear standards. Grossman’s comments echoed the testimony of Sue Gamm of the Public Consulting Group, who urged adoption of more specific language.

Sen. Harkin concluded the hearing by reaffirming his commitment to H.R. 3195’s passage prior to the close of the year.

On July 15, 2008, the House Subcommittee on Commercial and Administrative Law voted to report favorably the Arbitration Fairness Act of 2007 (H.R. 3010) to the full Judiciary Committee. H.R.3010 was introduced in the House by Rep. Hank Johnson (D-GA) on July 12, 2007, and the Subcommittee held hearings on the Act in October. 

H.R.3010 would amend the Federal Arbitration Act by invalidating any pre-dispute arbitration agreement requiring mandatory arbitration of disputes under employment, consumer or franchise contracts, or any dispute arising under a statute “intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.” The Act allows arbitration of disputes if both parties agree to use arbitration after a dispute arises and would not invalidate arbitration clauses in collective bargaining agreements.

Rep. Johnson stated that arbitration has become increasingly common in contracts between businesses and parties with less bargaining power, such as employees or consumers, and that arbitration clauses are often obscure and “buried” in such agreements. Rep. Johnson also noted that arbitration providers have a strong incentive to favor the business hiring them, creating a biased forum with little accountability or oversight. 

Rep. Chris Cannon (R-Utah) criticized the Act as interfering with contract rights and also expressed concerns that eliminating arbitration would decrease the ability of employees to pursue small claims. Critics of the Act have echoed Rep. Cannon’s concerns, emphasizing that the Act may hurt the very parties it seeks to protect by slowing the dispute resolution process and raising litigation costs.

The Senate Version of H.R.3010, S.1782, was introduced by Sen. Feingold (D-WI) on July 12, 2007 and referred to the Committee on the Judiciary.  H.R.3010 has 101 co-sponsors, while S.1782 has six co-sponsors.

On June 26, 2008, Sen. Kay Bailey Hutchinson (R-TX) proposed legislation that would extend the time limit workers have to file suit for employment discrimination in certain cases. The “Title VII Fairness Act” (S. 3209) would allow for an extension in cases where workers cannot reasonably be expected to have known they had been discriminated against.

The bill is a response to the Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), which rejected the “paycheck rule” used by many courts and held that the time limit for filing a discrimination charge with the EEOC starts to run when the employer makes a discriminatory decision about the employee’s compensation, not each time the employee receives a paycheck affected by discrimination.

The proposed legislation would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker had notice of the discrimination. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Earlier this year, Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA) proposed legislation (S. 1483) aimed at the Ledbetter decision that would amend the same laws as Sen. Hutchinson’s bill. Sen. Kennedy’s bill would provide that the charge-filing periods would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice. Republican lawmakers criticized this approach by suggesting it would put unnecessary strain on employers because claims could be filed several years after the discrimination was alleged to have occurred.

Sen. Hutchinson’s bill was referred to the Senate Health, Education, Labor, and Pensions Committee. Sen. Mike Enzi (R-WY), the ranking Republican member of that committee, is a co-sponsor of the bill.

 Core Provisions: This bill would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker is charged with notice. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Status: S. 3209 was introduced in the Senate by Sen. Kay Bailey Hutchison (R-TX) on June 26, 2008, and referred to the Senate Committee on Health, Education, Labor, and Pensions.

 On June 25, 2008, the House approved legislation (H.R. 3195) that would redefine the legal meaning of “disabled” under the Americans with Disabilities Act. Strong bipartisan support for the bill was reflected in the 402-15 vote. The legislation would establish new definitions for “disabled,” which has been narrowed by Supreme Court interpretations over the past decade, by changing the description from a physical or mental impairment that “substantially limits” one or more major life activities to one that “materially restricts” such an activity. The bill also would re-extend protections to people with disabilities not immediately evident in the workplace.

While President Bush has indicated support for the “overall intent” of the bill, the White House suggested changes to the House bill on June 24, 2008.  However, the bill was brought up under a “closed rule” that did not permit amendments.  As a result, the White House suggestions were not adopted.

The bill now heads to the Senate, where it has been championed by Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA). Sen. Kennedy is not expected to return to work until after the August recess, and the bill has yet to be scheduled for a markup or vote in the Senate.

As part of its continuing efforts to increase its pressure on OSHA, the House Committee on Education and Labor held a hearing on June 24, 2008 to examine whether the OSHA is adequately enforcing construction safety rules. The Committee focused on the recent high-profile crane accidents in New York City and Las Vegas. While OSHA Assistant Secretary Edwin Foulke highlighted OSHA’s current initiatives to improve workplace safety, other witnesses expressed concern over deficiencies in the Administration’s resources, personnel, and enforcement measures. The hearing also explored the role local officials and employers have in making construction sites safer for employees.

Secretary Foulke testified regarding OSHA’s efforts to ensure that the nation’s construction workers are provided safe work environments. To address the four most common causes of occupational fatalities in the construction industry - falls, “struck bys,” “crushed bys,” and electrocutions - OSHA has implemented various programs that focus on enforcement, training, and collaboration with employers, organizations,  and state officials. Foulke maintained that increases in the number of citations, penalties, and criminal referrals, along with an 18% decline in the construction fatality rate since 2001, were indications that OSHA’s approach is working. Committee members, however, questioned the validity of this assessment, pointing out that higher numbers were not necessarily signs of enhanced rule enforcement. Chairman George Miller (D-CA) noted that without more supporting evidence, it was difficult to decipher whether the statistics truly represented improvements in workplace safety.

Foulke also fielded inquiries about OSHA’s crane and derricks standard, which has not been updated since 1971. Rep. Lynn C. Woolsey (D-CA) mentioned that OSHA began working on improving the rule in 2003, but has yet to issue its proposed revision. When asked by Chairman Miller and Rep. Timothy Bishop (D-NY) about the delay, Foulke responded that although the negotiated rulemaking process was completed in 2004, OSHA’s proposal has subsequently had to navigate a complicated set of analyses and reviews. He indicated, however, that the Administration is in the final stages of developing the proposed rule.

The hearing also included testimony from Robert LiMandri, acting Building Commissioner of New York City, and Mike Kallmeyer, Senior Vice President for Construction at Denier Electric, who spoke about measures undertaken to advance construction safety, and George Cole and Mark H. Ayers, who testified about fatalities on construction sites.

LiMandri testified that the New York City Buildings Department has adopted a seven-pronged approach to address safety issues, which includes: (1) nearly doubling the size of the agency and focusing more resources on construction safety; (2) seeking new and improved regulatory oversight and enforcement tools; (3) creating a new enforcement program to curtail problems; (4) supporting criminal prosecution of bad actors and repeat offenders; (5) conducting top-to-bottom reviews of high-risk construction areas; (6) holding all parties accountable; and (7) focusing on education for workers and requiring site safety managers. While crediting OSHA for its key role in his department’s efforts, LiMandri lamented that OSHA’s lack of resources prevented further progress and called on Congress to increase support for OSHA.

Kallmeyer testified regarding the policies his own company has adopted to encourage workplace safety. Denier employees are required to undergo standard OSHA training and complete all recognized safety courses for their field of employment.  In addition, Denier performs daily “frequent regular inspections” for each construction jobsite and conducts incident investigations for all accidents and near-misses. An employee incentive program rewards workers who maintain good safety records, exceed training requirements, and volunteer to serve on the company safety committee. Kallmeyer claimed that the most effective action for the government is to promote its educational partnerships with the construction industry so that more employers would have the resources to improve safety in the workplace.

Cole, a retired ironworker, testified regarding his brother-in-law Harold “Rusty” Billingsley, who fell 59 feet to his death last October at a Las Vegas construction site. Cole attributed Billingsley’s death to an OSHA compliance directive that he claimed violated the safety regulations contained in the Steel Erection Standard Final Rule, OSHA Subpart R. Intended to limit the fall distance to ironworkers as well as to provide protection from falling objects to workers on the ground, the standard requires a decked floor or nets for every two stories or 30 feet, whichever is less, under any erection work being performed. Cole stated that by issuing a compliance directive that allowed employers to circumvent this requirement, OSHA was intentionally failing to enforce its own safety standards. Cole also testified that though Billingsley’s employer was initially fined $13,500 for the preventable accident, all citations and fines were withdrawn following a private meeting between the company and Nevada’s OSHA.

According to Ayers, President of the AFL-CIO’s Building and Construction Trades Department, jobsite deaths of construction workers like Mr. Billingsley are unfortunately all too common. Ayers testified that, on average, four workers are killed every day on U.S. construction sites, or a total of over 1,400 workers each year.  This number is ten times the number of firefighters or law enforcement officers and over twenty times the number of miners killed on the job each year. According to Ayers, though comprising only 8% of the American workforce, construction workers account for 22% of all work-related deaths. Ayers urged the implementation of five major actions: (1) issuance by OSHA of a temporary emergency standard requiring basic ten-hour training for all workers; (2) promulgation by OSHA of a crane safety standard; (3) increased enforcement activities by OSHA; (4) creation of a dedicated Construction Occupational Safety and Health Administration; and (5) increased funding for the National Institute of Occupational Safety and Health to conduct construction safety and health research.

The Committee and witnesses also discussed whether OSHA has the necessary resources to effectively promote its safety standards. Commissioner LiMandri, Rep. Woolsey, and Chairman Miller all noted OSHA’s lack of authority to intervene quickly against unsafe workplaces. For example, while New York City is able to issue stop-work orders at a moment’s notice, OSHA’s enforcement arsenal is usually limited to imposing fines, which are typically low and assessed long after violations occur. Chairman Miller worried that even when fines are issued, they are often waived as in the case of Mr. Billingsley, thereby undermining enforcement efforts and resulting in unfairness to employees. Chairman Miller strongly urged OSHA to consider enforcement actions beyond fines, looking to examples set by programs such as New York City’s for alternative solutions.

On June 26, 2008, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing to examine discrimination against transgender employees. The term “transgender” refers to individuals who feel that their biological gender does not match their true gender identity, some of whom undergo gender reassignment.

In November 2007, the House passed the Employment Non-Discrimination Act (ENDA) (H.R. 3685), which would prohibit employment discrimination on the basis of sexual orientation, but language prohibiting transgender discrimination was removed from the bill to facilitate its passage. Although the Subcommittee hearing did not concern any specific bills, Rep. Frank (D-MA) introduced legislation last fall that would prohibit discrimination on the basis of an employee’s “actual or perceived gender identity” (H.R. 3686).

Speaking in support of federal legislation to ban discrimination against transgender employees were Rep. Baldwin (D-WI), Rep. Frank (D-MA), and Dr. Bill Hendrix, the chair of Gays, Lesbians, and Allies at Dow Chemical Company. Rep. Baldwin pointed out that over 300 major U.S. businesses now ban discrimination based on gender identity, and commended them for being “way ahead of Congress.” Rep. Frank argued that any potential workplace disruption caused by transgender employees does not justify denying these individuals the chance to earn a living. Dr. Hendrix testified that creating a respectful working environment is critical to business success, and that Dow’s progressive lesbian, gay, bisexual, and transgender policies give the company an advantage in the hiring and retention of qualified workers.

Shannon Price Minter, the Legal Director of the National Center for Lesbian Rights, testified that there is an urgent need for federal law to protect transgender workers. He explained that transgender people often face discrimination, harassment, and even violence in the workplace. Although twelve states, the District of Columbia, and over 100 localities have enacted laws that prohibit discrimination against transgender workers, Minter argued that we need more than a “patchwork of laws.” The Subcommittee also heard testimony from two individuals who were stated that they were terminated after informing their employers of their intentions to undergo gender reassignment.

JC Miller, a partner at Thompson Hine LLP, cautioned the Subcommittee about the wording of any legislation to protect transgender workers and the unintended consequences that it might have. She also stressed that any legislation needs to make clear to employers the point at which they need to make modifications to accommodate transgender employees. Finally, Miller asked the Subcommittee to consider conferring exclusive jurisdiction on the federal courts and providing that prevailing parties be awarded costs and fees when litigation arises under any legislation that is enacted.

Glen Lavy, Senior Counsel and Senior Vice President for Marriage Litigation at the Alliance Defense Fund, opposed any federal legislation to ban discrimination against transgender employees. He testified that Congress should not make the “moral judgment that it is immoral for employers to not accommodate transgender employees.” He argued that hiring and retaining transgender employees might contravene some employers’ religious beliefs, that employers would be put in a difficult position because gender identity is not something that is readily observable, and that some employers would not be able to accommodate transgender employees as a practical matter.

During the questioning period, Rep. Kline (R-MN) questioned Miller about whether the terminology used in any potential legislation would require overt action by an employer in order to establish a violation. Rep. Sanchez (D-CA) expressed the view that potential litigation resulting from a transgender-protection law should not prevent Congress from passing such a law. Chairman Andrews (D-NJ) concluded by saying that Congress will need to accommodate the reasonable concerns of employers in passing legislation to prohibit employment discrimination against transgender Americans, but that he did not think that it would be prohibitively complicated to do so.