Utah Employment Attorney Law Blog
Grappling with a cancer diagnosis is a uniquely challenging process. No two cancers behave exactly alike and navigating the financial, health, relationship and mental aspects of cancer can be one of the most trying experiences a person can face. Unfortunately, an increasing number of workers are suffering employment discrimination in the aftermath of their diagnoses. Even though discrimination against workers due to medical diagnosis is illegal, it is occurring with increased frequency among the cancer survivor population.
A recent British study confirms that this is not a uniquely American phenomenon. In fact, more than one-third of British workers who have been diagnosed with cancer have experienced related workplace discrimination. This statistic marks an uptick from just over two years ago when only 23 percent of British cancer survivors experienced discrimination in the workplace following diagnosis.
A new book entitled "Lean In" by Facebook COO Sheryl Sandberg is generating a great deal of buzz in business and feminist circles. In summary, the book advocates that women utilize certain approaches in the business world in order to better fulfill their career potential. The subject of female leadership in the workplace is a timely and compelling topic. Women continue to face roadblocks at work when they want to spend more time focused on their jobs. But on the opposite end of the spectrum, men are facing somewhat similar roadblocks to work-life balance when they attempt to spend more time at home.
Several decades ago, the Family and Medical Leave Act (FMLA) established the rights of parents to take a certain amount of time off of work for the birth or adoption of a new baby, among other significant life events. The act explicitly forbids employers from discriminating against and otherwise retaliating against parents who choose to opt into this kind of leave. In recent years, other flex and work-life options have become increasingly available to those who choose to utilize them.
When female workers get pregnant, they are broadly protected by two federal laws and a host of state laws. The Family Medical Leave Act (FMLA) helps to ensure that most women may take time off of work for pregnancy-related reasons without fear of demotion, losing their jobs or other retaliatory actions. Similarly, the Pregnancy Discrimination Act of 1978 reinforces the rights of female workers to be treated fairly in the workplace during and surrounding periods of pregnancy.
Unfortunately, these laws are complex and contain various loopholes that employers tend to take advantage of. In addition, many employers are simply not well-educated about the protections that pregnant workers are afforded under the law. As a result, women continue to suffer pregnancy-related discrimination and harassment in the workplace.
Too often the American public associates the concept of bullying with the idea of a childhood phase. In reality, teens and adults can also experience devastating incidents of bullying. In many instances, bullying can even rise to the level of illegal employment discrimination. Unfortunately, it can be just as difficult for adults to stand up to their tormentors as it can be for children.
According to the Workplace Bullying Institute, more than one in three American workers has experienced incidents of workplace bullying. These workers may struggle with feelings of helplessness, fear, anger and anxiety as a result of this bullying. Thankfully, there are steps these workers can take to help put an end to this kind of mistreatment.
Although it is against the law to do so, employers regularly engage in both intentional and unintentional forms of discrimination in hiring, firing and general employment practices. Applicants and employees can be subjected to employment discrimination in a variety of forms. Some practices are so institutionalized and generally accepted that applicants and employees may not even know that they are being discriminated against.
For example, job applicants are regularly subjected to criminal background checks as a part of the hiring process. However, there are only specific circumstances under which utilization of this data for discrimination in hiring is legal. For example, it may be legal for a school to reject convicted child sex offenders for hire as a result of the applicants' criminal records. But a flower shop may not generally do so legally, as the offenders' history does not directly relate to job duties or performance expectations.
To say that much has changed over the past 20 years is to make a rather obvious statement. However, one fact that has remained unchanged during that period of time is that employees have been continually allowed to take time off of work to care for themselves, their new children and ailing loved ones as a result of the Family and Medical Leave Act (FMLA). During the 20 year anniversary of the act's implementation, many are reexamining its virtues and the ways in which it might be improved.
The Department of Labor (DOL) recently aided in the expansion of FMLA protections to sectors not previously covered by the law, including airline flight crews and veterans. In addition, the DOL declined to make tracking small periods of leave more complicated for administrative staff. These moves have been celebrated by affected individuals, but much improvement has yet to be made in other areas of the law's reach and practical implementation.
In the wake of several tragic shootings, the issue of violence in movies has again become the center of national debate. Many blame violent and graphic movies for violent behavior in children, teens and adults alike. In one recent case, a female correctional officer has alleged that the viewing of violent and sexually graphic films by the inmates she oversaw lead to them committing serious acts of sexual harassment.
During the woman's employment at a maximum security prison in the Midwest, she became aware that the inmates were being allowed to watch sexually explicit and violent films and television shows. Over a period of time, it became clear to her that the influence of these programs was inspiring the inmates to sexually harass her.
The new CEO of Yahoo, made news over the summer not only for being one of the very few female CEOs of a Fortune 500 technology company, but also for transitioning to the new position while pregnant. Marissa Mayer's trailblazing brings up important issues surrounding work and potential job transitions for women who are pregnant or who are considering becoming pregnant.
The Pregnancy Discrimination Act protects women from various forms of discrimination surrounding pregnancy. In general, the Act prohibits an employer from treating a female candidate or employee unfavorably due to pregnancy, childbirth, or a related medical condition. The act applies to public and private entities with 15 or more employees.
The Utah health care market is in many ways dominated by hospital organizations. Not only do these hospital organizations operate many of the hospitals and clinics in Utah, some of them even have their own health plans. Becoming a competitive force in a market so controlled by hospital organizations requires health care providers to be creative and aggressive. One important way in which providers can do so is by developing innovative reimbursement arrangements with health plans.
While there remains some uncertainty about the future of health care, it appears that health care providers will eventually be reimbursed based on their performance rather than the services provided. Developing innovative reimbursement programs and approaching health plans with those programs will be important for providers. There are several benefits to providers approaching health plans.
Whistleblower statutes prohibit employers from firing or retaliating against employees who report - or blow the whistle on - their employers for wrongdoing. Federal law protects whistleblowers should they come forward to report employer misconduct, such as age discrimination or Medicare fraud to name a few.
Blowing the Whistle on Employer Misconduct
If an employer retaliates against an employee after he or she reports suspicions of misconduct at the workplace it may be appropriate for the employee to consult an attorney familiar with whistleblower claims. In these claims, the following factors will be considered:
- Was the employee engaged in a protected activity (for example, reporting discriminatory hiring practices)?
- Did the employer know the employee reported the misconduct?
- Did the employer take adverse action (i.e., terminate the employee)?
- Was the employee's report the main factor supporting the adverse action?
Some whistleblower statutes even provide employees with financial incentives to report employer misconduct.
