At least Nationwide is really sticking to its commitment to depress the fuck out of everybody.
Jesus Christ. This would be incredibly illegal in the UK, and the UK is on the less family friendly end of the spectrum in Europe. Also, regardless of legality, that supervisor should be ostracised.
I would have thought it was incredibly illegal here.
Is it legal for companies to ask you to make up the work you missed while you were on leave?
Nationwide is on your side*!
*Unless you have tits.
Holy shit. How the hell is this not rampantly illegal?
Because fuck you, that's why.
Motherhood is the most important job in the world. That's why we make it impossible for you to do it in this fucking country.
Because fuck you, that's why.
Motherhood is the most important job in the world. That's why we make it impossible for you to do it in this fucking country.
Holy shit. That's just. No. Just no. Fuck. What the? Fuck.
There's already a Boycott Nationwide Insurance on Facebook with 1,200 likes. I think they should have run it by Jonathan Chait first, but maybe he won't mind.
Did the district court's ruling cite Greg Focker?
I'm not sure that the RawStory headline is that accurate. This seems to spend more time discussing the actual legal dispute.
The case is awful, and was wrongly decided, but I have no idea where the linked article gets the idea that the 8th Circuit decided it on the grounds that men can lactate too. That sounded unbelievable, so I took a quick look, and unless I'm missing something the article just flatly made that up. I guess it's just another symptom of outrage media, and who really cares when the target is deserving, but there seems to be a real tendency lately to portray genuinely stupid legal decisions as even stupider than they really are, and it gets on my nerves.
Holy shit. How the hell is this not rampantly illegal?
Well, a lot of things that employers do to their employees is illegal, but there's no mechanism for prosecuting.
I haven't read the 8th circuit opinion yet, but this immediately raised my "this story is misreported" radar and based on other summaries of the opinion I quickly skimmed it looks like it has been. The 8th Cir. didn't rely on "men can lactate too"instead the issue was that she quit her employment immediately. But, een though she quit, she claimed it was a constructive discharge (ie, even though she'd "quit" she was effectively fired because her work conditions were intolerable, which still allows you to sue for employment discrimination). The 8th Cir ruled that there wasn't enough evidence to send the case to a jury on the constructive discharge issue because she quit immediately and didn't give Nationwide a chance to remedy the situation, and because they did have a lactation room that they were willing to let her use, just after they'd processed some paperwork. So she couldn't show that with discriminatory intent they were creating a workplace so bad that they were forcing her to quit.
Not excusing Nationwide's conduct, and personally, based on the summaries I've read, it looks like there was enough for her to get to trial, making the opinion wrong. But it almost certainly doesn't actually stand for the prospect that you can discriminate against breastfeeding women because men can lactate too. (This seems to have been a line the trial court used). I'm sure someone can link to the opinion so we can see if the foregoing is accurate.
15, 16: That still makes Nationwide look very bad.
17: A lower court did mention it the male lactation thing. Which is bad enough.
17: They ran a correction that says:
Correction: A previous version of this article incorrectly stated that the Eight Circuit Court's decision claimed men could lactate. That language was included in the district court's decision, not the circuit court ruling.Why I mentioned district not circuit in 14. If you have access to the district court ruling you could check that.
And, pwnd by Potchkeh, who seems like he actually read te opinion.
This does support the advice (advanced here in other circumstances) that you should never quit, always make them fire you instead.
From the link in 16,
The court also found that Brinks's expectation that Ames should be required to catch up with her work within two weeks wasn't unreasonable. It said "he expected all of his employees to keep their work current, given the high priority that timely work-completion is accorded within the loss-mitigation department."
So this is legal? To require employees to make up work missed during leave? I'm confused.
Also, how is dictating a resignation letter not the same as firing them, if they're under duress?
Why the hell would Nationwide need to process three-days-worth of paperwork before letting her into the lactation room? Is it a dual-purpose room, where they also keep nuclear launch codes and the Colonel's secret fried chicken recipe? Just get the damn key and let her in.
Anyway, that somebody used incredibly stupid language from a lower court decision to gain publicity for their criticism of a horrible Supreme Court ruling affirming that decision is very far below the threshold of things I can give a rat's ass about.
Everybody gets it exactly right!
Well, except for the fact that the Supreme Court didn't affirm anything....
So this is legal? To require employees to make up work missed during leave? I'm confused.
It's certainly not over here, but apparently so:
The court also found that Brinks's expectation that Ames should be required to catch up with her work within two weeks wasn't unreasonable. It said "he expected all of his employees to keep their work current, given the high priority that timely work-completion is accorded within the loss-mitigation department."
So this is legal? To require employees to make up work missed during leave? I'm confused.
I'm confused about why you would think that might not be legal. What seems inappropriate about it? I'm pretty sure that's the normal process at most employers. (Urgent work that needs to be addressed while you're out gets handled by someone else, but everything else piles up on your desk.)
29: Is "let stand" different from "affirm"?
32 -- yes. Neither the Supreme Court nor the Eighth Coruit endorsed the "men can lactate too so breast feeding discrimination is not illegal" theory. Not saying that the actual Eighth Circuit decision wasn't wrong, it looks like it was, but that really is misreporting it pretty severely.
On another point, apparently her lawyers screwed up and waived the "dictating a resignation letter"=actual discharge argument.
32: Yes. The Supreme Court usually only reviews cases that have broader implications for the law. Barring something *really* egregious, it won't step in to correct errors that are specific to a particular case. So even though the Eighth Circuit really screwed the pooch on this one, there was no chance that the Supreme Court was going to take this case.
I'm confused about why you would think that might not be legal. What seems inappropriate about it? I'm pretty sure that's the normal process at most employers.
If my job requires 40 hours of work, and I miss 6 weeks of work for FMLA, then how on earth would I catch up 240 hours worth of work - especially with a new baby? When is this supposed to occur?
I genuinely thought "leave" meant that the company had to find other ways to cover your work while you were gone, probably with some "within reason" parameters. When I go on sabbatical, someone else teaches my courses. I'm not supposed to teach 8 courses when I get back, to compensate. I figured it was like that.
20.2, 21: ah, thanks, missed the update.
34 is wrong I think, there looks like a pretty good circuit split on the actual question that the case turned on (the 8th Circuit itself acknowledged one). So a decent candidate for a grant to resolve the split, although honestly given the likelihood they'd affirm (and thus make this the law of the land as opposed to the law of the 8th Cir.) probably just as well that they passed.
How does a district court ruling that men can lactate not have broader implications for the law or count as "really egregious"? It seems to very clearly affect nearly every law on pregnancy and a great many laws on sex discrimination.
37: nobody else has to follow a stupid district court decision, whereas, say, all district courts within a particular circuit have to follow their Circuit's decisions.
I guess that sounds better, but I'd greatly prefer "Nobody else is allowed to try that stupid reasoning".
What a complete asshole that supervisor is. Of course the system is rotten when he or she can get away with acting like that, but let's just note: complete asshole.
Everyone's missing the real issue here: who the fuck still dictates letters? Is it something that's survived in the insurance world specifically?
My brother dictates stuff. Also, doctors.
I mean, I could imagine a CEO or someone dictating to an executive assistant, a bit of an affectation but I don't know that world. But this guy is described as a "supervisor", and the employee seems to have been a "loss mitigation representative".
How come we never argue that all insurance should be socialized?
I just skimmed the trial court's opinion, and I didn't see any reliance on "men can lactate too" in there, either.*. It looks like this was either some stray statement made in argument taken out of context, or wholly made up by reporters.
*this does not mean it is a good opinion.
Aha. Thought something like this might have been going on.
The factual events of that morning come against a backdrop of several prior months during which supervisors suggested Ames might have to cut her maternity leave short because the office was "too busy," derided her for personal decisions about her pregnancy, and warned that taking additional unpaid leave after medical complications with her pregnancy might raise "red flags" down the road.
They were more than happy to fire her, so it wasn't just an isolated incident, but hostility to a pregnant employee as such. So the law is worse than I thought, or she had terrible lawyers.
who the fuck still dictates letters?
It wasn't a standard dictation, it was like making someone write their own ransom note or something.
How come we never argue that all insurance anything should be socialized?
45: There actually is a fairly long (and stupid) discussion of the point in fn. 28, so not completely made up, but this wasn't the "grounds" of the district court decision either.
Pwned. Also 48 is right, I don't think this was "take a letter" dictation, just that the supervisor (not a guy, sexist 43) told the employee what to include in the letter.
So it seems that that part seems to be all about what is a "medical" condition rather than something you do to feed your kid.
. Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss.
Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth. Assuming, arguendo, that Ames had presented sufficient evidence that lactation was a medical condition related to pregnancy, the Court is doubtful that she has presented enough facts to establish that her alleged constructive discharge was due to her medical condition (lactation) rather than due to her desire to breast-feed. See Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7. Indeed, Ames's Amended Complaint contains several references to her desire to pump milk as a form of nutrition for her newborn son. See Am. Compl. ΒΆΒΆ 22-23, 32, 42, 45. As Falk held, however, "Title VII does not extend to breast-feeding as a child care concern." Falk, 2012 U.S. Dist. LEXIS 87278, at *10.
This was mortgage insurance, by the way, and the "be with your babies" supervisor was a woman.
51: That footnote concludes (I think) that a company is within their rights firing a mother for choosing to breast-feed her baby -- or at least doesn't need to make special accommodations for her, since it's her choice to breast-feed. Is that right?
Dictate, in the sense of dictator.
I thought that Obamacare dictated that all workplaces must have accommodations for pumping milk. I know they did have accommodations, but I'm still confused by how you must accommodate pumping milk but then fire someone for it.
Is there any particular reason to think there's a market failure in the insurance industry (setting aside medical, which is stupid)? They're not angels or anything, but my experience and anecdata suggest that they basically do their jobs as expected with no more hassle than any large organization.
I'm open to arguments, it's just not something I've seen strong reason to question.
58: Well, first of all this was in 2010 so pre any Obamacare requirements, but more to the point the 8th Circuit would say you're begging the question, because they didn't fire her, she quit. That's almost certainly stupid and wrong, but it's meaningfully different from (and, while very bad, not nearly as bad as) holding that you can fire someone for pumping.
59: Obviously everyone needs health care, while not everyone has their home destroyed. But my impression was that insurance will be assholes about paying up for home damage just like they are for anything else.
I'm confused about why you would think that might not be legal. What seems inappropriate about it? I'm pretty sure that's the normal process at most employers. (Urgent work that needs to be addressed while you're out gets handled by someone else, but everything else piles up on your desk.)
It's presumably complicated by the fact that parental leave isn't statutory in the US (at least federally - do some states mandate leave?). But here, it's simply illegal to fire someone for reasons relating to parental leave (or pregnancy). You also can't be forced to work overtime. You absolutely can't be forced to work overtime because you were on parental leave.
60: That was my question in 25. This whole thing is confusing.
but then fire someone for it
But she wasn't fired. It sounds like she didn't quite know her rights (although I have no idea how reasonable the three-day waiting period is) and the people there were determined to keep her from exercising them.
I'm confused by Stormcrow's quote and its mention of Title VII, when this more recent law is pretty damn clear. Maybe you can't sue for gender discrimination under the breastfeeding law, and that's why they didn't appeal to it, but...the law has to have some enforcement mechanism, no?
This happened in July 2010 and the Obamacare provision was effective in March of 2010.
Depends on the kind of insurance, no? Obviously that argument gets made a lot with health insurance. In California and some other blue states, there's strict regulation of car insurance rates, a few steps from community rating, and California has something like a public option. I don't know much about homeowner's or life insurance; wasn't there some suggestion in past threads that title insurance is something of an institutionally-driven fraud, and could be replaced for most people with better administration? A lot of other insurance is for businesses, and they probably don't need as much protection.
Not entirely sure if the CA Low Cost Auto Insurance Program is public or more of a standard subsidized product. Descriptions are unclear.
64, 65 -- the trial court says there's no private right of action to enforce that provision. Instead, you can complain to the department of labor, which can seek injunctive relief. That seems wrong but who knows. Probably (IANAemploymentL) if you were fired for complaining about the absence of breastfeeding accommodations or for going to the department of labor, you'd have a valid whistleblower claim.
The trial court also seems to rely on a super dubious distinction between "new parent discrimination" and sex discrimination, apparently based on some eighth circuit case. But the eighth circuit itself doesn't even go there, it just says she wasn't fired or effectively fired (which seems very wrong, especially on summary judgment).
In America, the freest country on earth, decisions that in other countries, ones that have a history of placing their people in abject dependence on such horrific policies as national health care and mandated maternity leave, would appear to have been made under duress are in fact made freely and openly between private parties of equal strength and influence. Such decisions include submitting the letter of resignation that your supervisor told you to write following a free and open discussion of disciplinary action that could be taken against you for choosing not to complete within two weeks both two weeks of regular work and the weeks of work missed when you were on the leave that your employer generously deigned to grant you.
64.last: I presume that the extended footnote was just in response to the narrow point of the status of claims under Title VII involving nursing. But I'm already bout of my depth, of course.
although I have no idea how reasonable the three-day waiting period is
If, as per the plaihtiff, she wasn't informed of the three day waiting period until she needed the facility, then it isn't reasonable at all. Sounds like they were making it up as they went along in order to get rid of her. Even if it takes three days to get a key cut for her (it doesn't), why not have a key at reception or something in case, heaven forbid, a visitor needs it?
it isn't reasonable at all
Of course not; I meant under the law.
I still don't understand how "making up the work", after you go on leave, works in real life. I can understand a little catch-up is necessary, but how does 6 weeks of work get made up, while also getting the new incoming work done?
69: At my wife's place of work (which on many other points is relatively benign) one department just got approval for 20 hours more work per week. But rather than up the part-time worker with a relevant post-grad degree (who supplements with two other part-time jobs) to full time status they are advertising for another half-timer. (Per usual there may be other mitigating circumstances, but they seem committed to a strictly X full-time and an army of part-timers--my wife among them--as their model.)
73: I thought she was only out two weeks?
To give a more direct answer to 73, it's going to depend a lot on the nature of the job, etc., but I would generally expect that co-workers will have taken over those things that couldn't wait for your return. Especially for a long leave, that could be a huge chunk of your work. I would also expect the returning employee to probably not get as many new assignments until the backlog of work was caught up. All of that is assuming a sane manager who is trying to allocate work fairly across employees.
72. I also meant under the law. IANAL but I am a former shop steward, and in my experience if the employer is negligent in informing the employee of what they require of them, then they are responsible for the outcome. Hard to prove of course, but straightforward in principle.
Recent comments on the sidebar are gone again... :(
There seems to be DOL support for the no private right of action conclusion. This is probably where the outrage should focus: it's Obama's fault that this woman was denied any recourse.
62: I'm pretty sure that you can be made to work overtime here.
Also, I know that a lot of employers misunderstand the FMLA (especially intermittent leave) and the ADA. e.g., won't let you reschedule hours to make it to a doctor's appointment.
You can totally complain to the EEOC, but then you're a troublemaker.
I know of one (public) employer that, at least at one site, is starting to make people take/ use up their leave for medical appointments rather than just using regular sick time.
In n.38, the district court says that the company records showed that plaintiff's work queue was in better shape on the day she got back than when she went on leave, and the company denies that no one did any of her work while she was out. You'd think that this might be a genuine issue of material fact, and it's hard to tell why not without the actual record.
I find that there's a whole lot of folk employment law -- the boss can't say this that or the other to an employee -- that's really not the law at all. Sure, "tasteless and inappropriate" things that are said in a workplace may be evidence, but they're not independently actionable to the extent the folk law would have it.
Our wrongful discharge act has an explicit exhaustion requirement, and our Supreme Court has rejected "futility" as an exception. If I had an employment case in the 8th Circuit, I'd probably spend the time trying to work out just how legitimate this hurdle (which has been law in the 8th Circuit for at least 14 years) is. Plaintiff should definitely have talked to a lawyer before turning in a resignation letter.
My favorite episode in folk employment law was the guy who "reply all"ed his own take on sexual harassment law (based entirely on a case that concerned an office discussion of the "Mulva" episode of Seinfeld) after HR's lawyer sent around the updated sexual harassment rules he had just spent weeks training everybody on. You could see the aneurism in the lawyer's reply.
That guy was always on edge anyway.
85 is one reason why I generally hate straight-up employment law issues (other reasons: the McDonnell Douglas burden-shifting thing has never made sense to me, the people who got most screwed over often have the worst claims and the people who got least screwed over the best, and generally the people who'd pay my bills in those kinds of cases are on the side of evil). Also it's ridiculous that our legal paradigm for regulation of workplace relations (unless you're powerful enough to have a real contract) is almost entirely "discrimination" instead of "basic employee protections" but that's a different story. I've had plenty of cases that have tangential employment issues but the one straight up Title VII case I did was one of the most annoying experiences I've had as a lawyer, even though we totally won.
89: Word. Now I'm going to sew (and work) and try not to think about depressing things.
Poking around a bit, I see that the exhaustion requirement is in some other circuits too, going back to the 80s. No one ever quotes any statutory language, so you'd have to have a much better case to swim against that kind of tide than this plaintiff had.
89 -- I'm familiar with a Title VII case where the plaintiff prevailed where, if you could read the minds of the lawyers on both sides, and took what some jurors said afterwards literally, the conduct would fit a whole lot better as tortious interference (which the jury was not instructed on) than discrimination. You're free to imagine reasons the lawyers on both sides preferred to go to the jury just on the Title VII theory.
The previous dean here made women bank time, so on a four-four load, if you needed to take time off, you had to teach eight the previous semester. The women who had to put up with this shit got tenure and rewrote the policy to twelve weeks leave. As semesters are 15 weeks, our new dean just eats the other three weeks on the grounds that he thinks it's dumb to try to haggle over what would constitute three weeks of work. The other college's dean says 12 week is twelve weeks, so a baby is worth a three course reduction. So, if your kid is born at the start of the semester, you have to teach right away.
Our dean's policy will become university policy, I think, because we are all raising hell.
you had to teach eight the previous semester
Eight... classes? That sounds insane.
Yup. I mean, if you got on it right away you could also teach in the summer for no extra pay to bank the time.
92: Wait. How does that work? You give birth (which you have timed perfectly) at the beginning of the semester and you have to teach one course during your maternity leave--days after you have given birth?
Stories like that are why I talked to the lawyer in the AA office before I talked to my chair or dean (who were fabulously supportive.)
Why do you have an Alcoholics Anonymous office?
you could also teach in the summer for no extra pay
How generous of them.
A friend had a baby at the beginning of the semester and had to teach one class instead of four. Yes, days after giving birth. She managed the class well and was able to swing some of it online, but it meant de facto no maternity leave, really.
99: Should have prepared by teaching in the summer or doing that 5th class the semester before. Geesh.
74: if only benefits were prorated to part-timers based on fractions of a 40-hour week.
Jesus this is a depressing thread. I'm most interested in this:
I genuinely thought "leave" meant that the company had to find other ways to cover your work while you were gone, probably with some "within reason" parameters.
Any number of employers seem to be confused about this, and it's not limited to large employers.
104: I mean, to some extent they do. If you're operating in a health-care setting, another doctor has to see your patients. What this means is that your co-workers have to pick up the slack.
Cala's other dean's policy is ridiculous.
In Germany, a class of itinerant replacement workers for people on parental leave has evolved. Not exactly ideal either.
I'm trapping in a prison of my own making. I got locked out of my work account because I screwed up the password too many times. I can't get unlocked without a valid ID and my ID expected 1/31. And I can't get a new ID because I really need a haircut.
Unless you need access to your work account in order to get a haircut, I think I may see a way out of this dilemma.
106 is true here for teachers and doctors. Not so much gas pipe repair people. I know several doctors who prefer working that way for the flexibility.
And I can't get a new ID because I really need a haircut.
I'll also just note that is a tendentious use of the word "can't."
They let me use the old picture and I'm already back with my new id.
Twenty-one minutes including walking about four blocks each way. That's pretty efficient.
Anyway, now I can legally ride the bus.
If having an expired ID meant that it wouldn't work as a bus pass and if I had to get haircut to get an ID, 108 would have been true.
Twenty-three minutes without commenting on Unfogged -- that's unacceptable, Moby.
You have 21 minutes to make up for the work you missed.
And you have to do your required work concurrently with the makeup work.
It would have been excused if you were lactating.
I've been locked out of an online account for some money I put in a mutual fund for almost two years after I forgot my password and guessed wrong three times in a row. Every now and then I think that I should call them and get it straightened out, but then I decide maybe it's best not to know how much money is actually in the account now.
No one's linked the Rebecca Traister article yet? Not particularly new material, but it brings up material realities that often don't get mentioned, since having any leave is such a struggle. How pregnancy or even the prospect of pregnancy limits your job mobility, the potential physical difficulties of the actual pregnant months, and then of course the nursing time. Ugh.
121 - If I remember correctly, either Fidelity or Vanguard did a study that said that people who literally forgot they had a retirement account had the best long-term performance.
So maybe I should ignore the nagging feeling that I should "rebalance".
123: Because their heirs inherited the accounts?
Speaking of the workplace, I'd be in favor of a thing where, when one spouse has to travel for work, there's a babysitting fund available for the remaining spouse. Jammies is on a work trip until Friday and it's going to cost us an extra $100, because I already had a commitment for Friday, and so now I'm paying for a sitter.
It's not the biggest deal in the world, but it's annoying that work is already removing a parent and then it costs you extra on top of that.
Plus, the extra formula you have to buy now that he isn't there to lactate.
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[runs over here, looks for heebie, stifles greeting, runs back to the other place]
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If everyone of all genders can be induced to lactate, how about we require that all asshole supervisors of new-mother employees be forced to pump milk for the baby.
My university has got in a bit of trouble for printing up a "lactation room map," which includes multiple locked rooms with "hazardous" or even "radiation" signs on the door.
128: Infuriatingly it's against federal government policy to pay for travel-induced childcare, because of a decision saying it's not a necessary expense. In particular, an NSF grant cannot be used to pay for childcare expenses say for a speaker at a conference. It's ridiculous.
Here's what the Comptroller General had to say in 1992:
http://www.gao.gov/assets/510/503816.pdf
I wonder whether there's any hope of getting that ruling revisited.
131.2: if you hold the baby by one heel and dip it into the glow, it gains superpowers.
The trial court also seems to rely on a super dubious distinction between "new parent discrimination" and sex discrimination
This reminds me that one of the interesting things I learned in my recent supervisory training is that Alaska's equal protection laws are stronger than the federal ones on this point, in that under Alaska law there are additional protected classes (pregnancy, marital status, change in marital status, and parenthood) that explicitly cover many of the issues that are not specifically addressed by federal law but are sometimes brought as complaints under sex discrimination with mixed results.
I don't know how many other states have similar provisions, but I'm sure at least some do.
A Comptroller General once tried to prohibit married women working for the federal government from using their married names.
MA has stricter medical privacy laws than HIPAA.
136: Most states go further on employment discrimination than federal law in one way or another, some in some unexpected ways. (No discriminating against gun-owning employees in Indiana!)
137: "First you get the money. Then you get the power. Then you get the women put back in their place. You hear that Stacey! You can't ignore me now."
103: that's my pet theory about how to fix everything.
121, 123: these make me feel much better about myself.
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So I had a date last night with a promising person. She bailed at the last minute. I've been getting a lot of fadeaways doing the online dating thing, so I chalked it up to experience, moped a bit, and tried to focus on other things. She just messaged me to say she wants to reschedule. I'm so psyched. She's a Muslim and we're getting beers together, so maybe she's up for other haram stuff. Or maybe she's in ISIS honeypot.
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That banker seemed just perfect. Just send her your own oddly capitalized message and be off.
142.last and 143 seem like the best options for the blog, but for your own sake I'm a big fan of 142.penultimate.
Cyrus, would it have to be national, or could we start state by state?
We'd have less worker-to-work mismatch, too. Argh.