The Family and Medical Leave Act (FMLA) of 1993 was introduced to allow employees to take up to 12 weeks of leave a year to provide care to their families as well as themselves. To be eligible, the employee must have worked for the company for a minimum of a year and have worked at least 1,250 hours. Companies who have at least 50 employees within 75 miles of their location must adhere to FMLA regulations. A similar law, the Americans with Disabilities Act (ADA) is sometimes confused with the regulations of FMLA. It is important that companies know the differences of each law to ensure that they are abiding by the correct regulation. Although America provides FMLA, it is one of three countries that do not provide paid leave. America has fallen behind other countries around the world for providing time for employees to take care for their family matters.

The Family and Medical Leave Act of 1993

The Family and Medical Leave Act (FMLA) of 1993 was created to the response of needs in the workforce whose demographics had changed. The prevailing demographic shift was the incursion of women into the workforce that incorporated women from childbearing to mothers of all ages. An additional concern was the aging of the workforce. The post World War II baby-boomer population was aging, so the subjects of disability leaves, medical expenditures, and insurance coverage had become a growing concern. Furthermore, there was a mounting national concern about work and family. The Act was thought to be needed to shield workers from losing their jobs when they wanted time off to address family problems as needed (Lewis, 2004).

The Family and Medical Leave Act has been a topic of vast discussions since the legislation was first introduced. Many corporations have been anxious that the law would cause them excessive manpower and financial hardship to remain in compliance. A dialogue on the history, regulations, and impact of FMLA will be presented.

History

The Family and Medical Leave Act of 1993 is a Federal Law that endured eight years of congressional debates, 13 votes and two presidential vetoes before it was finally declared a law. The Act first emerged during the Ronald Regan years in 1985 and was introduced as the Parental and Disability Leave Act. This legislation was proposed by United States Representative Pat Schroeder, a democrat from Colorado. Schroeder’s intentions were to allow parents of seriously ill children to take leave from work to care for them without the threat of losing their jobs. Under this proposal, parents were permitted to take 18 weeks of leave in a two-year time frame to take care of their ailing, newly adopted or newborn children. Additionally, under the rules, parents were additionally allowed 26 weeks in which they could return to work part time while continuing care of their children. The employee’s benefits were to continue during leave and they were to return to their previous job duties without penalty (Wimberly & Lawson, 1996).

The bill was modified in 1986 to include the authorization of leave for the care of the employee’s sick parents as well. The bill was renamed to the Family Medical Leave Act to signify the change. The new proposal provided 26 weeks of leave in a two-year period to cover the employees own illnesses and up two 18 weeks designated to take care of a family member. The bill continued to be modified during the Regan administration but faced fierce opposition by corporations and could not muster support by the President. During the remainder of the Regan years, the legislation never made its way to the House floor (Wimberly & Lawson, 1996).

During the early years of the George Herbert Walker Bush administration, democrats continued to compromise with republicans to produce a bill that was acceptable for congress. In 1990, congress had agreed upon a family leave act that would oblige employers with 50 or more employees to grant up to 12 weeks of unpaid leave based on family medical needs. Although the bill was passed through congress, the Act was immediately vetoed by President Bush on June 29, 1990 (Wimberly & Lawson, 1996).

Congress continued to team to pass a similar bill in 1992. President Bush again vetoed the bill on September 22, 1992. The senate struck back by overriding the Presidential veto while the House of Representatives voted to support the president’s position (Wimberly & Lawson, 1996). President Bush’s justification for his use of the veto was centered on his apprehensions on implementing federal leave policies on an already delicate competitive world economy. He offered to endorse an alterative family leave incentive that he had previously proposed (Bush, 1992).

Bush (1992) wrote:
America faces its stiffest economic competition in history. If our Nation is to succeed in an increasingly complex and competitive global marketplace, we must have the flexibility in our workplaces to meet this challenge. We must ensure that Federal policies do not stifle the creation of new jobs or result in the elimination of existing jobs. The Administration is committed to policies that create and preserve jobs throughout the economy — serving the most fundamental need of working families. (p.1)

The third attempt by congress to pass the Act was in 1993 when Bill Clinton was president. Unlike his predecessor, Clinton supported the bill. The bill was signed by the president into law on February 5, 1993. The Family and Medical Leave Act of 1993 became enforceable on August 5, 1993 (Wimberly & Lawson, 1996).

FMLA Overview

The Family and Medical Leave Act (FMLA) of 1993 provide eligible employees with up to 12 weeks of unpaid, job-secure leave per year. The FMLA allows working Americans to take responsibility for family life outside by allowing a reasonable period of unpaid leave time for certain medical and family reasons. Under the FMLA the employee will maintain employer health care coverage as if the employee were still working and not taking leave (Wimberly & Lawson, 1996).

Eligibility

For an employee to be covered under the FMLA they must work for an employer that has 50 or more employees within 75 miles of the location of the business. Employee eligibility is determined by the number of hours and length of time that the employee has put in with their current employer. An employee must have worked at least 12 months for the current employer and have at least 1,250 hours worked within a 12-month period (Employment Law Information Network, 2004).

There are exceptions to the rule where 50 or more employees are required to be covered by FMLA. All federal, state, and local government organizations must permit employees to be able to use FMLA regardless of how many employees are within the organization. Public schools and other public education institutions must also offer FMLA leave to employees (Employment Law Information Network, 2004).
The FMLA allows up to 12 weeks of leave for the following situations (Employment Law Information Network, 2004):

1. Care of spouse, child, or parent with a serious health condition.
2. Employee’s own serious health condition
3. Birth of a child and care for the child within the first year after birth
4. Adoption of a child and care for the child within the first year of adoption

A spouse is identified by FMLA as a significant other that is legally married according to the laws of the employee’s state. Common law marriages recognized by the state are also applicable under FMLA. This can also be interpreted as same sex partnerships in some states. A parent is defined as the genetic parent of an employee or someone who was the custodian of the employee when they were a child. This includes grandparents or any other person that may have raised the employee in the absences of their biological parents. An in-law is not considered a parent and not covered by FMLA (Wimberly & Lawson, 1996).

Children are designated as biological children of the employee, adopted children, step children, or children in legal custody that are under the age of 18 or over 18 with a disability. The mother and father of an expected birth of a child can also qualify for FMLA. The leave may be granted before the birth of the child and after the birth of the child to provide care. Additionally, the mother may take intermittent time off for any pregnancy complications that have been documented by the health provider. Likewise, parents are eligible to take leave in the first year of an adoption of a child into the home and during the process of such an adoption. Leave may also be taken intermittently as needed as the procedure of adopting my require employees to be away from work. The employee may take leave for their own serious health condition if it renders the employee unable to perform their duties according to their job position under FMLA regulations (Wimberly & Lawson, 1996).

Additional qualifications

The definition of a serious health condition is laid out in FMLA regulations. Serious heath conditions are described as illnesses, injuries, impairments or any other physical or psychological condition that requires assistance or suppresses a person from a functional lifestyle. This includes the care needed after a major operation or medical conditions that are under the direct supervision of a physician where the individual would not rehabilitate without care. Serious health conditions are also a condition where consecutive three days or more are required for care. Pregnancies are considered a serious illness when prenatal care is needed. Treatments for substance abuse are also covered under FMLA. This includes treatments for the employee or a spouse or parent who may need support (Wimberly & Lawson, 1996).

The employer has the right to call for the necessary certification statements from the health care provider that will supply the justification required within the boundaries of FMLA. Heath care providers include medical doctors of medicine, dentists, psychologists, and optometrists that are currently practicing their respective occupation. Nurse practitioners and midwives that are authorized by law are also considered authorized health care providers if they are making recommendations within the prenatal spectrum (Wimberly & Lawson, 1996). Health care providers that are recognized by the company or the company’s health plan are also eligible under the law. Authorized providers are extended beyond the United States and include any health provider that is legally recognized and practicing in their residing country (AFSCME, 1998). Finally, Christian Science practitioners who are authorized by the First Church of Christian Science in Boston, Massachusetts are also considered legal providers (Wimberly & Lawson, 1996).

Employer Rights and Responsibilities

The employer has the right to be given 30 days notice from the employee of any FMLA leave that may be anticipated. In the account that the necessity for leave is not foreseeable, then the employee must notify the employer as soon as possible. The employer may also call for reasonable updates from the employee of their intentions to return to work. Furthermore, in the case that employee is taking time off because of their health; the employer may request certification from the heath provider that the employee is fit to return to work (Employment Law Information Network, 2004).

The employer may also designate their definition of a 12-month period. There are four allowable ways that an employer can define this period. The first allows a company can use is the calendar year which is defined as January through December. An employer can also use a set 12-month period from the date that the employee started with the organization. The third alternative a company may use is to start the 12-month period from the first day that the employee initially used FMLA leave. The final option for an employer is to calculate the 12-month period backwards from the day the employee first used FMLA leave. The employer may switch between the four options available to accommodate the needs of the company. To do so, the employer must give a minimum of a 60-day notice before executing the change. Employees remaining leave time must be calculated to correctly transpose to the new timeframe (Wimberly & Lawson, 1996).

The employer has the option to deplete FMLA leave for each day that the employee receives paid medical time off such as short-term disability. However, an employer must not charge FMLA leave during such periods where a compulsory or forced plant shutdown is in effect. Leave may continue to be charged at the end of the shutdown (Wimberly & Lawson, 1996).

The employer may also exercise the right to limit married couples to a combined 12 weeks leave that is designated for a birth when both members work for the same company. This regulation applies regardless if the couples are working at the same location or otherwise. This holds true when adoptions are the reason for leave. Each individual spouse is entitled to their remainder of FMLA leave for additional reasons (Wimberly & Lawson, 1996).

The employer may call for that all accumulated paid time off be used as a part or the full 12 week of employee leave, making the 12 weeks of FMLA the bare minimum amount of time that an employer may offer for leave. The employer must allocate the leave permitted to the employee as FMLA leave to protect the rights of both the employee and employer (Schmidt, 2001).

During the employees leave under the FMLA the employer must retain the group health care coverage under the identical circumstances as if the employee were still working and not on leave. Furthermore, included to protect the employee’s rights is the restoration of the employee to their former job or one that is of similar status. Employers must not retaliate against an employee in any fashion for using their FMLA leave. Employers can not claim that allowing FLMA leave to an employee will cause undue hardship for the company (Schmidt, 2001).

The United States Department of Labor mandates that all employers retain and present the Family and Medical Leave Act Poster (WH 1420) in a noticeable place where employees and candidates for employment can examine it. This poster encapsulates the major requirements of FMLA and informing employees how to register a complaint. This poster should be displayed at all locations although there may not be any any eligible employees (Department of Labor, 2003).

Employee Protection

The Family Medical Leave Act is enforced by the Wage and Hour Division of the U.S. Department of Labor. Employees who may have a claim that their company may have violated FMLA regulations may contact the agency directly. Employees are not required to exhaust their employer’s complaint system to file a complaint. Employees have two years after the alleged violation to file and complaint and three years if it was a willful violation. A private lawsuit can also be filed to recover damages (AFSCME, 1998). The following damages can be recovered by the employee if a violation is found (Employment Law Information Network, 2004):

• Back pay, in which is comprised of wages, salary, and benefits that were lost during the time frame of inequity.
• Monetary losses, these are the tangible losses incurred as a direct consequence of the violation. This includes the expenditures of providing care up to 12 weeks of wages.
• Liquated damages, which is equal to the sum of lost wages plus interest. These damages may be reduced or abolished if the employer can demonstrate that they acted in good faith.
• Attorney fees can be recovered by the employee.
• Injunctive relief, this is where the employer has practiced deliberate unwarranted actions to discriminate against the employee. The employee can be restored to their pervious job and the company is barred against any retaliation against the worker.

Americans with Disabilities Act

There is a similar law that originations must be aware of that protects disabled workers. This law is known as the Americans with Disabilities Act (ADA). Companies must be aware of the similarities and differences between FMLA and ADA to determine which circumstances follow the correct legislation (Schmidt, 2001).

Title I of the Americans with Disabilities Act became in effect on July 26, 1992. ADA prohibits discrimination against people with disabilities in employment and defines certain rights of disabled workers in the workplace. Unlike the FMLA, ADA is a civil rights statue that safeguards disabled employees from prejudice from acquiring and sustaining employment and forces employers to make reasonable accommodations to the qualified employee (Schmidt, 2001). Employers must be aware that ADA not only covers protects current employees as with FMLA but potential employees that are applying for employment (State of Florida, 2003). ADA is not restricted to offering leave time as with FMLA but offers supplementary safeguards. ADA mandates that employers that have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or previous calendar year be subject to the law (Schmidt, 2001).

An individual qualifies for ADA if she or he has a physical or psychological impairment that significantly limits one or more of that individual’s life functions. This also includes anyone who has a documented history of such impairments. Additionally, individuals are qualified if they are considered to have an impairment. Pregnancies and temporary impairments are not included in the scope of ADA (State of Florida, 2003).

To initiate the process, an employee must inform their company that they need an accommodation (State of Florida, 2003). ADA requires the employer to actively engage to provide accommodations to the approved worker. Additionally, ADA contrasts with FMLA in the following ways (Schmidt, 2001):

• ADA provides the eligible worker with an unlimited amount of obligatory leave time when it is an accommodation.
• ADA does not require a minimum number of hours or months as a stipulation for eligibility.
• ADA covers the employee only and is not intended to cover the workers family members.
• Employee may return to work beyond the 12 weeks designated by FMLA and must be reinstated to the same or similar position and salary.
• Under ADA, the employer is not required to preserve employee’s benefits during approved leave.

In dissimilarity to the FMLA, the ADA provides an undue hardship defense for the employer. If the employer can establish that providing exceptionally expensive accommodations to the employee would be detrimental to the finances or operations of the company, the employer may not be required to perform these accommodations (Schmidt, 2001).

An employer can not make an individual undergo a medial examination before an offer is made to the employee concerning a position. However, an employer can declare that the offer is conditional on the results of the tests if the same standard is held for all employees in that position. Current employees can be asked to take a medical exam to determine if they can perform the vital duties of the position. Medical exam can also be used to determine if the employee needs the accommodations that are requested (State of Florida, 2003).

FMLA Cases

Congress enacted the Family Medical Leave Act to balance employees’ home life and workplace demands. But the often-burdensome regulations of FMLA have led to litigations through our judicial system. During 2003, 39,425 FMLA cases were concluded resulting in $212,537,554 in back wages paid to employees and $9,993,041 in civil penalties assessed to companies (Department of Labor, 2004).

There is one lawsuit that has been the focus of much debate. In 2002, Ragsdale v. World Wide Wolverine was decided by the Supreme Court. The case is presented as follows (Cornell University, 2003).

The company, World Wide Wolverine approved Tracy Ragsdale for 30 consecutive weeks of leave for cancer treatments under the Wolverine leave policy. At the end of seven months of leave, Tracy Ragsdale asked for an extra 30 days or part time work under FMLA. Her request was denied. When Ragsdale did not come back to work after her initial leave request she was terminated (Cornell University, 2003).

Ragsdale filed a lawsuit, insisting that Wolverine in no way informed her that her 30 weeks of leave would be designated as FMLA. She insisted that she was entitled to an additional 12 weeks under the Department of Labor regulation 29 C.F.R. 825.700(a) (Cornell University, 2003).

The Ragsdale argument was eventually listened to by the United States Supreme Court and determined on March 19, 2002, under an infringement of FMLA. The Supreme Court rejected the argument by Ragsdale maintaining that the penalty provision that permits employees’ additional leave when employers fail to inform employees their leave would be designated as FMLA, was unfounded. The court established that company did fail to inform Ragsdale in advance that her leave would be considered as FMLA and their verdict sustains the rule that employers must continue to follow the obligation of notification. Furthermore, the Supreme Court evaluated all statutory penalties concerned in the Department of Labor’s guidelines for providing individual notice and resolved that this penalty was disproportional to the original intentions of Congress. The court regarded that Ragsdale’s serious medical circumstance would have kept her from returning to her job whether or not she was informed of the FMLA entitlement. It was left for interpretation that in other cases the up-front notice may weigh in how an employee would decide to control their rights in taking the leave (Cornell University, 2003).

The Supreme Court decision does not impede or overturn the individual notice obligation from the United States Department of Labor. Furthermore, the judgment does not amend any of the FMLA statutes. However, it succeeds to place in doubt the issue of automatic penalties for any originations who fails to abide by the regulation in question. This ruling grants an employer who inadvertently breach a Department of Labor directive for FMLA guidelines, a chance to sustain their argument without any additional fines or consequences (Brown, Mero, & Robinson, 2003).

Statistics

In 2000, the U.S. Department of Labor performed a survey that was sent to various employers and employees. The survey was focused on the impact and opinion of the then close to decade old FMLA law. From 1993 to 2000, over 35 million covered and eligible personnel took advantage from exercising leave for family and medical reasons (FMLA Survey and Information., 2002).

The assessment suggested that more than 80 percent of eligible employers, the Act had a positive effect, or no evident effect, on business efficiency, profitability, or growth. This contrasts with the companies’ initial beliefs when the Act was originally presented to the public. Moreover, two-thirds of eligible employers stated that, overall, conforming to the Act was very or somewhat effortless (FMLA Survey and Information., 2002).

The survey further revealed that more than four in five employees in the study agreed that every worker should have up to 12 weeks of unpaid leave in a year for family and medical troubles. Despite this, the reality is that more than half of the workers who received family or medical leave were anxious about having sufficient money to pay their bills. This may clarify why 88% of those who wanted time off but did not use it stated that they would have taken FMLA leave if they could have received some compensation during their leave (FMLA Survey and Information., 2002).

It is projected that 40% of workers expect to need family leave within the next five years. This may lead to pleads to amend the FMLA regulations to accommodate the requests of workers. The survey suggested that Americans endorse the expansion of Unemployment Insurance (UI) or Temporary Disability Insurance (TDI) to supply paid family and medical leave. 79 percent of Americans favor supplying family leave insurance through expanding UI or TDI (FMLA Survey and Information., 2002).

Conclusion

In this fast-paced modern world, daily demands of careers have taken time away from parent’s duties of raising a traditional family. Despite the initial resistance to the Family Medical Leave Act by corporations and politicians, this law is now considered an important step to protect the value placed on a family. However, this should be viewed only as one small step to protect families in the United States.

Out of 158 countries around the globe, 130 have leave policies for parents, of which 98 percent have paid leave. Merely three, the United States, Ethiopia and Australia, present unpaid leave. The question if the United States will ever supply any paid leave does not to seem to be expected soon (FMLA Survey and Information., 2002). Nevertheless, as the world seems to place importance on the significance of family, Congress may possibly have to mull over strengthening current FMLA regulations or establishing new laws to keep in tempo with the remainder of the world governments.

As the leader of the world, America should be assertive in being the world leader in family values as well. This country should set the standards for the world to follow our footsteps instead of lagging behind the rest of the world. America should continue to improve measures to protect families while finding a balance with our careers.

References

AFSCME (1998). Afscme guide to the family and medical leave act: Questions & answers. Retrieved July 19, 2004 from http://www.afscme.org/wrkplace/fmla.htm
Brown, J. A., Mero, N. P. & Robinson, R. K. (March 2003). Employer penalties for failure to provide individual employee notification under the family and medical leave act: “Clarifications” following ragsdale v. wolverine worldwide, inc. Employee Responsibilities and Rights Journal. 15(1). p. 11.     New York. Retrieved on July 15, 2004 from ProQuest.
Bush, G.W. (1992). Message to the senate returning without approval the family and medical leave act of 1992. Retrieved July 8, 2004 from http://bushlibrary.tamu.edu/research/papers/1992/92092206.html
Cornell University (2003). Ragsdale v. wolverine world wide, inc. (00-6029). Retrieved July 18, 2004 from http://supct.law.cornell.edu/supct/search/display.html?terms=administrative&url=/supct/html/00-6029.ZS.html
Employment Law Information Network (2004). Fmla Summary. Retrieved July 5, 2004 from http://www.elinfonet.com/FMLAsum.php
FMLA Survey and Information Web Site (2002). Fmla statistics. Retrieved July 8, 2004 from http://www.familyleavesurvey.homestead.com/FMLAStats.html
Lewis, G. (2004). Violence at work: Causes and protection. Retrieved July 18, 2004 from http://www.geraldlewis.com/chapter%20draft.htm
Schmidt, M. (2001). Employee leaves of absence: Overlapping and conflicting requirements. Retrieved July 4, 2004 from http://www.fbwhlaw.com/docs/Interplay Between FMLA and ADA.pdf
State of Florida (2003). Comparison of ada and fmla. Retrieved July 20, 2004 from http://www.state.fl.us/dms/hrm/leave/fmla_ada.html
U.S. Department of Labor (2003). Family and medical leave act (fmla) poster. Retrieved July 15, 2004 from http://www.dol.gov/esa/regs/compliance/posters/fmla.htm
U.S. Department of Labor (2004). Wage and hour division enforcement in fiscal year 2003 at ten-year high. Retrieved July 16, 2004 from http://www.dol.gov/esa/whd/statistics/200318.htm
Wimberly & Lawson (1996). The family and medical leave act of 1993: A practical guide for human resources professionals. Retrieved July 8, 2004 from http://www.wimlaw.com/fmla.htm

The post The Family and Medical Leave Act of 1993 appeared first on Michael A. Hartmann.

Introduction

On November 19, 1863, the 16th President of the United States delivered a speech that would be embedded in the hearts of generations to come.  The Gettysburg Address began with the words, “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal (Library of Congress, 2000)”  The words in the Gettysburg Address challenge American citizens with the principle of equality. More than a century later, the nation still struggles with discrimination against those who may be different than another person or group.

In the employment arena, laws have been enacted by congress to eliminate discriminatory acts by employers or associate employees.  Occasionally these laws are put to test in the Court of Law by companies that have been accused of being in violation. An examination of three such court decisions will be presented including a brief explanation of each law that is allegedly violated.

Fleming v. The Boeing Company

Company Overview and History

The Boeing Company is currently the world’s largest aerospace company. Additionally, they claim the title of the world’s eminent defense contractor.  The Chicago based Boeing Company employs roughly 164 thousand people in over 70 countries worldwide.  In 2002, the company had revenues of 54.1 billion dollars.  Presently, Boeing has established itself as the largest United States exporter (Boeing Company, 2003).

Boeing is widely known for its production of commercial jetliners, military aircraft, satellites and missiles.  The list of current jetliners includes the 717, 737, 747, 757, 767 and 777 series aircrafts.  There are more than 14,000 of these aircraft in service worldwide, which consist of 75% of the world’s commercial fleet.  Boeing also provides global financial services, aviation training services and other diversified services and products (Boeing Company, 2003).

The Boeing Company was founded in 1916 as the Pacific Aero Products Company by William Boeing.  Boeing was a prosperous lumberman from Detroit, Michigan who was fascinated with flying with the newly invented airplane (Spurge, 1997).   He learned to fly and soon was eager to sell and manufacturer his own aircraft designs.  During World War I, the new company received its first production orders of 50 Model C seaplanes from the US Navy.  Shortly after this, the company was renamed to The Boeing Airplane Company.  The company was the principle producer of military aircraft during the 1920s and became one of the largest aircraft manufacturers in the nation (Boeing Company, 2003).

In 1943, the company was forced to break up into three separate companies. These companies became United Airlines, United Technologies, and the Boeing Airplane Company.  Boeing continued to prosper during World War II in which it supplied the allies with numerous aircraft.  Most notable of these aircraft was the B-17 and B-29 bombers (Boeing Company, 2003).

After the war, Boeing survived by shifting production efforts to commercial airliners using the newly developed jet turbines.  With the Cold War at hand, the military contracted Boeing to erect jet powered bombers and Intercontinental Ballistic Missile (ICBM) systems.  The company was propelled into the space race in the 1960s by becoming the primary manufacturer for NASA (Boeing Company, 2003).

Boeing continues to have a dominant role in commercial and military aircraft, missile systems and space technologies.  Major acquisitions and mergers have included Hughes Electronics Corporation, Jeppesen Sanderson Inc, Hawker del Havilland, and Rockwell International.  Boeing continued to expand by merging with McDonnell Douglas in 1997.  (Boeing Company, 2003).

Case Overview

In August 1997, the United States District Court for the Northern District of Alabama was presented a Title VII case against Boeing Company.  The case was dual in nature in that two plaintiffs joined complaints against the company.  These two cases were joined because they both involved alleged sexual harassment claims against Bobby Philyaw, an Engineer at the company (Fleming v. Boeing Company, 1997).

The first plaintiff was Toni Fleming who was employed at Boeing as a full-time secretary.  Fleming worked at the company since 1985 and was transferred in July 1992 where   Philyaw was located.  Fleming, who is an African American woman, claimed that shortly after arriving, she was alerted by other secretaries that Philyaw had a strong sexual preference for African American women (Fleming v. Boeing Company, 1997).

Fleming stated that Philyaw was constantly touching and gazing at her during the months of September and October.  Eventually she asked him not to touch her anymore.   Fleming then reported the incidences to Philyaw’s supervisor, Chuck Homan.  Homan told Fleming that he would discuss the complaints with Philyaw and that if Philyaw did not cease in these unwanted harassments that she was to notify himself and the companies Equal Employment Opportunity (EEO) Officer.  Fleming did not make any contact with the EEO Officer or Homan with any further complaints (Fleming v. Boeing Company, 1997).

In January 1993, Fleming was contacted by the EEO Officer because a sexual harassment complaint was filed against Philyaw involving a different secretary.  Upon asking Fleming if any sexual harassments had occurred after the warning was issued to Philyaw, she indicated that he was continuing to harass her.  This information led to the demotion and loss of pay to Philyaw. He also received a written letter of discipline in his employee records.  Fleming was assigned a new supervisor.  She stated that after these actions were taken, Philyaw was no longer harassing her (Fleming v. Boeing Company, 1997).

Fleming’s case against Boeing was that the company did not act quickly enough to resolve the sexual harassment problems delivered by Philyaw.  She maintained that during the time she made the initial complaint in October and when disciplinary action was enforced in January that she was forced to work in a hostile work environment.  She was seeking compensatory and punitive damages during this time period (Fleming v. Boeing Company, 1997).

The second plaintiff, Sherrye Alexander was also an African American woman.  Alexander was employed by a temporary agency and was placed at Boeing from 1989 to 1991 as a secretary.  Similar to Fleming’s case, she was placed in the same group as Philyaw (Fleming v. Boeing Company, 1997).

Alexander claimed that Philyaw persistently sexually harassed her in the form of verbal comments and unwanted physical contact in June to August of 1991. Alexander stated that she informed Philyaw in July that she did not welcome the treatment that he forwarded to her.  Philyaw then apologized and agreed to cease with these actions.  Alexander also contacted her supervisor at the temp agency about the situation.  Her supervisor then contacted an employment manager at Boeing and relayed the complaint.  The manager then contacted Alexander and asked her if she would be willing to come to the manager’s office to discuss Philyaw’s behavior.  She declined and cited that the situation was improved since she confronted Philyaw (Fleming v. Boeing Company, 1997).

During the month of August, Philyaw tickled and touched her despite the warnings from the prior month.  Alexander then reported this action to MacCrone, Philyaw’s supervisor.  MacCrone investigated her complaints and then set up a meeting where Philyaw delivered a second apology.  Philyaw was issued a verbal warning and Alexander was reassigned so that she was not working for Philyaw (Fleming v. Boeing Company, 1997).

Shortly afterwards, Alexander applied for a permanent secretarial position at Boeing.   She was informed that she was denied employment due to the fact that she did not pass a state certification test.  She left the company in November of that year and took a job with the United States Army (Fleming v. Boeing Company, 1997).

Alexander claimed that she was denied permanent employment because she complained about Philyaw‘s harassments.  She was seeking a court order to force Boeing to hire her as a permanent secretary.  Additionally she wanted the company to be required to pay her compensatory and punitive damages based within the scope of Title VII (Fleming v. Boeing Company, 1997).

Title VII and Sexual Harassment Laws

The Title VII of the Civil Rights Act of 1964 forbids employers to discriminate based on race, color, religion, sex, or national origin (EEOC, 1997).  Title VII has been successfully used in court cases where sexual harassment claims have been filed (Spurge, 1997). This is because sexual harassment is considered to be a form of sexual discrimination (Fleming v. Boeing Company, 1997).

Sexual harassment is defined as unwelcome advances or other activities of a sexual nature (Spurge, 1997).  There are two types of sexual harassment that are defined by title VII (Fleming v. Boeing Company, 1997, p. 509). They are as follows:

• Quid Pro Quo: When sexual conduct is a condition of employment or used as a basis for favorable treatment (Spurge, 1997, p. 509).
• Hostile Environment: Where sexual talk, actions or objects create a hostile atmosphere or interfere with an individuals ability to work (Spurge, 1997, p 509).  The victim does not have to be the person harassed but it can also be someone affected by the conduct (EEOC, 1997).

Employers may be held directly or indirectly responsible for one of their employees sexually harassing another individual.  Directly liability occurs when an employer knew or should have known that sexual harassment was taking place and they failed to take immediate and suitable corrective action.  An employer is indirectly liable when they have explicitly or implicitly authorized this conduct (Fleming v. Boeing Company, 1997).

The Equal Employment Opportunity Commission (EEOC) is the federal entity that enforces Title VII and other discriminatory protection laws.  EEOC regulations states that all Title VII charges, including sexual harassment must be filed within 180 days of the alleged violation.  All charges must be filed with the EEOC before any private lawsuits can be filed in court (EEOC, 1997).

Case Outcome

In respect to Toni Fleming’s case, the plaintiff did not file claiming any quid pro quo sexual harassment issues.  This limited Fleming’s case to be limited to hostile environment claims.  The Court had to decide if Boeing was indirectly or directly responsible for hosting a hostile environment in respect to Fleming (Fleming v. Boeing Company, 1997).

The court did not find any evidence that Boeing was directly or indirectly responsible for Philyaw’s actions. The court found that Boeing took suitable and immediate action against Philyaw when Fleming first confronted him and his supervisor.  Fleming also failed to contact the EEO Officer as instructed if Philyaw continued to harass her.  When the EEO officer contacted Fleming and was given information that Philyaw did indeed to continue these actions, Boeing immediately took action.  Philyaw was demoted and his pay was decreased in response to his conduct.  The court found that this fulfilled the immediate and appropriate correction obligations of the company.  Furthermore, the court dismissed any accusations that Boeing was indirectly liable by any means of endorsing Philyaw’s behavior (Fleming v. Boeing Company, 1997).

Sherrye Alexander, the second plaintiff also was not successful in retrieving any damages from Boeing.  First and foremost, Alexander failed to file her complaint with the EEOC within the prescribed 180 days of the alleged sexual harassment.   If Alexander did file in a timely manner, it was also established that she did not have a prima facie case against Boeing. A prima facie case would be the argument that she was rejected for the position despite her qualifications.  Boeing calls for that all applicants for permanent secretarial positions must pass an Alabama state typing test before being considered.  Alexander did not pass the test nor could she provide any evidence that Boeing has ever hired an applicant who has failed the test.  These facts were sufficient to prove that Alexander’s rejection for the job was not based on her complaints against Philyaw (Fleming v. Boeing Company, 1997).

Additionally Boeing was found to have provided immediate and appropriate action against Philyaw in regards to his harassments against her.  This is a fulfillment of obligation demanded by Title VII.   Another factor was that Alexander erred in declining to meet with the manager to discuss Philyaw’s conduct in July 1991 (Fleming v. Boeing Company, 1997).

Leisek v. Bright Wood Corporation

Company Overview and History

Bright Wood Corporation was founded in 1960 in Madras, a city in Central Oregon, where it is still currently located.  The company specializes in the remanufacturing of secondary lumber.  Bright Wood began its first year operating out of a planer shed, now has grown to utilizing 14 plants in Madras with a number of plants on the west coast (Bright Wood Corporation, 2002).

The company claims to produce 1,300 truckloads of lumber and logs each year. This ranks the company with the title of being the world’s largest secondary lumber remanufacture.  The company also reports to maintain a growth rate of about 20 percent (Bright Wood Corporation, 2002).

Case

John Leisek, a former employee of the Bright Wood Corporation and also a member of the Oregon National Guard charged that his former employer violated the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) by terminating his employment unlawfully.  The case was previously tried in the United States District Court for the District of Oregon.  The court ruled in favor of the employer and had been appealed to the Ninth Circuit of the United States Court of Appeals (Leisek v. Brightwood Corporation, 2002).

Leisek’s full-time employment with Bright Wood began in December 1991.  He began his career with the company as a production worker and was promoted to the position of a quality assurance inspector when he was terminated in July of 1996.  Leisek was also a member of the National Guard before he became employed with Bright Wood and remained in the National Guard during his entire stay at the company (Leisek v. Brightwood Corporation, 2002).

Leisek also owned and operated his own hot-air balloon that he decided to affix the National Guard insignia on it.   This balloon was soon valued by the National Guard as a valuable promotional tool   Leisek created the Hot Air Balloon Interaction Team (H.A.B.I.T) to travel around the country in search of new recruits.  In 1995, he was granted a leave of absence by Bright Wood to engage with this campaign (Leisek v. Brightwood Corporation, 2002).

In 1996, Leisek was promoted to a more specialized job title as a quality assurance inspector.  The National Guard issued several written orders to perform temporary active duty to lead the H.A.B.I.T program once again during various dates from May 1996 to September 1996.  He presented the list of events during this time period to Bright Wood, although he did not have written orders for every event at that time.  Due to the fact that there were a number of events during the summer, he again asked if he could take a leave of absence during this entire period.

Bright Wood denied his request of leave on the basis that his absence during the summer would be a hardship for the company now that he retained a job specialty.  The company advised him to abstain from participating in these balloon events for the National Guard. The list of events submitted to the company that were significant to the case was as follows (Leisek v. Brightwood Corporation, 2002).

• June 23 to June 30, Boise Idaho, written orders.
• July 3 to July 7, Monroe Wisconsin, written orders.
• July 8 to July 14, Montrose, Colorado, no written or verbal orders.

Bright Wood honored the dates which contained written orders; however, the company denied him any time off for the Colorado event.  Leisek left the company to participate in the Idaho and Wisconsin events.  Leisek contacted his manager, David Duncan at Bright Wood to inform him that he was going to continue on to the Colorado events.  Duncan reiterated the fact that since Leisek did not have any written orders that he was expected to return to work since he failed to produce any written orders concerning the Colorado events.   Duncan warned that if he did not return to work, he would be considered to voluntarily abandon his job and would therefore be terminated.  Leisek then commented to Duncan that he would peruse his other options.  Leisek went on to the Colorado event and several events thereafter without contacting Bright Wood (Leisek v. Brightwood Corporation, 2002).

On September 25, Leisek returned to the company seeking reemployment.  He was denied reemployment in the event that his employment was officially terminated.  The company welcomed Leisek to resubmit another application for employment consideration.  Leisek refused to do so and was not offered employment (Leisek v. Brightwood Corporation, 2002).

Leisek filed action against Bright Wood for violation of the USERAA for unlawful termination.  The District Court granted judgment in favor of Bright Wood, citing that Leisek failed to institute a prima facie under the law.  The Court of Appeals has been asked to reverse this decision. The Appeals Court must decide on three issues (Leisek v. Brightwood Corporation, 2002).  They are:

• If Leisek’s military obligations was a motivating factor in the employer’s decision to terminate him against USERRA regulations.
• The question if Leisek would have been terminated from Bright Wood despite being in the National Guard concerning the USERRA claims.
• If Leisek’s absence without Guard orders prohibited his reemployment rights under USERRA.

The Uniform Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted into law on October 13, 1994. The USERRA was intended to supercede the previously written Veterans’ Reemployment Rights (VRR) Statute.  The USERRA spells out and reinforces the VRR Statute. This act is administered by the United States Department of Labor via the Veterans Employment and Training Service (VETS) and can be officially found in United States Code at Chapter 43, Part III, Title 38.  There are three main principles defined in the act (Department of Labor, 2003). They are as follows:

• To encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.
• To minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt re-employment of such persons upon their completion of such service.
• To prohibit discrimination against persons because of their service in the uniformed services.

The USERRA states that if an employee’s military obligation causes the employee to be absence from their civilian employment then they are entitled to reemployment by the employer (Department of Labor, 2003).  The following conditions must apply:

• Advance written notice is provided to the employer of the absence.
• The cumulative length of these absences does not exceed five years.
• The person submits an appropriate application for reemployment no later than 90 days after the conclusion of their term of service.
• Employees are disqualified from reemployment rights if they receive a dishonorable or equivalent discharge from the military.

When the employee completes his term in the military, the employee is permitted to be reemployed in one of two ways (Department of Labor, 2003):

• Returned to the position in which they would have been if he had remained continuously employed or a position of like seniority, status and pay.
• If the employee is not qualified to perform a position described above, their former position of employment or a position of like seniority, status and pay, which they are qualified to perform.

USERRA also protects the employee from prohibiting discrimination because of their military status and obligations.   A company can be held in violation of USERRA if the employee can prove that their military status was a substantial or motivating factor in an unfavorable employment action.  The employer must prove that the employer would have taken the same action regardless of the employee’s military status (Leisek v. Brightwood Corporation, 2002).

Case Outcome

Leisek did not have any written orders for the Colorado event nevertheless he attended the event regardless.  His failure to report to work generated unexcused absences.  It is Bright Woods company policy that any employee may be terminated in the event of such absences. The Appeals Court found that this unauthorized absence was deemed to be outside the protection of USERRA (Leisek v. Brightwood Corporation, 2002).  However, the law states that Leisek only needed to produce evidence that his military obligations were a motivating factor in his termination (Department of Labor, 2003).

The burden of evidence of discrimination was found to be fulfilled in Leisek complaints.  When Leisek’s initial notice of duty was presented to the company, Bright Wood complained to Leisek that his absence would create a strain for the company during the summer. The company was reluctant to allow him time off for his written orders.  Furthermore, the plant manager explicitly informed Leisek that the company would not accept any future absences even when they were presented with written orders in association with the H.A.B.I.T. activities.  The court cited that the burden of proof of compliance to USERRA was shifted to Bright Wood.  Bright Wood was unable to produce evidence that his Guard status was not a factor in his termination.   The Appeals Court reversed the judgment by the District Court in favor of Leisek (Leisek v. Brightwood Corporation, 2002).

The second issue at hand was for the Appeals Court to rule in the matter of Bright Woods refusal to reemploy Leisek.  Because Leisek attended the Colorado event without orders, his unexcused absences were outside the protection of USERAA.  Leisek then refused to reapply for a position when he was offered to by the employer.  Therefore, he did not submit an application to Bright Wood within 90 days as mandated by the law (Department of Labor, 2003).  The court upheld the decision by the District Court, ruling in favor of Bright Wood in the issue of Leisek’s reemployment rights (Leisek v. Brightwood Corporation, 2002).

Davey v. Lockheed Martin Corporation

Company Overview and History

The Lockheed Martin Corporation is an advanced technology company based in Bethesda, Maryland that was established in 1995 when Lockheed Corporation and Martin Marietta merged.  Although the company has been newly formed, it is comprised of 17 heritage companies that date back to 1909.  These 17 companies include Lockheed Corporation, Martin Corporation, American Marietta, Goodyear Aerospace, General Dynamics, Sperry, IBM Federal Systems, Ford Aerospace, Sanders, Gould, Xerox Electro-Optical Systems, Loral Corporation, UNISYS, and Vought (Lockheed Martin, 2002).

Lockheed Martin currently employs 125 thousand employees worldwide and in 2002, generated 26.6 billion dollars in sales.  The company offers research and development services as well as a manufacturer of advanced technology systems and aerospace aircraft and equipment.  Eighty percent of the company’s business is with the United States Department of Defense (Lockheed Martin, 2002).

The company is best known for its jet powered aircraft.  Most notably are the C-130 transport cargo, F-16 Fighting Falcon, SR-71, F-117A Stealth Fighter, F/A-22 Raptor, and the U-2S spy plane.  Lockheed Martin is also responsible for the manufacturer of NEXTRAD Doppler RADAR, the GPS System, the Hubble Space Telescope, Magellan spacecraft, Pershing II missile systems, and the Titan IV missile systems.  Additionally the company has set milestones that have shaped the aerospace industry (Lockheed Martin, 2002).  Some of the prevalent achievements of the company are as follows:

• In 1962, John Glenn is the first American to orbit the Earth using General Dynamics Atlas Rocket (Lockheed Martin, 2002).
• During 1963, Jacqueline Cochran pilots a Lockheed F-104 Starfighter, setting the woman’s speed record at 1,429 mph (Lockheed Martin, 2002).
• Lockheed’s SR-71, the world’s fastest aircraft sets the worlds fastest speed record by traveling America’s coast to coast in 64 minutes and 2 seconds at an average speed of 2,144.8 mph in 1990 (Lockheed Martin, 2002).
• Lockheed Martin develops a tracking infrastructure system for the U.S. Postal Service.  This system enabled the Post Office to track and confirm packages, greatly maximizing delivery time and accuracy and reducing the likelihood of lost packages (Lockheed Martin, 2002).

Lockheed Martin continues to expand their services beyond the limitations of aerospace.  The company generated $3.1 billion in 2002 in these diversified services.  These services include energy programs, government and commercial IT services, and other federal services (Lockheed Martin, 2002).

Case

Lockheed Martin employed Susan Davey in November 1987.  In 1989, she held the title of a test engineer in which she was responsible for writing and revising procedures on highly classified payload systems.  During 1991, Davey’s supervisor, Richard Turner issued her a low score on her review.  Davey learned that her low ranking was given for layoff reasons.  She filed an ethics complaint stating that her second-level supervisor, Ronald Bills was involved in discriminatory favoritisms in favor of male employees.  Her complaint was that male employees were more likely to be promoted and were given unfair overtime preferences.  This complaint resulted in the demotion of Bills and the demotion of Turner (Davey v. Lockheed Martin Corporation, 2002).

During 1992, her new supervisor, John Shupe, gave notice to Davey that she was slated to be laid off. Her position was eliminated on April 12, 1993 and resulted in her termination of employment.  Her previous job responsibilities were divided among those who where not laid off.  Davey proceeded to file a complaint with the EEOC on the basis of sex discrimination and retaliation.  The EEOC issued Davey a right to sue notice where she filed action in September 1996 (Davey v. Lockheed Martin Corporation, 2002).

During 1997, Davey was made aware of job openings in the test engineering department where she previously worked.  She contacted the technical staffing manager and met with him to express her interests.  The manager stated that Shupe had modified the organizational chart that did not include any test engineering openings and referred her to apply for a test conductor position.  However upon inquiry, she was informed that she would not obtain a job offer in that position (Davey v. Lockheed Martin Corporation, 2002).

Davey filed discrimination charges against Lockheed Martin in Circuit Court citing that the company discriminated her on the basis of gender in 1992 and retaliation against her in 1993 when she was dismissed.  She later modified her lawsuit to include a second retaliation demand when she was refused employment in 1997.  A jury found Lockheed Martin not accountable for the 1992 discrimination charge or for the 1993 retaliation charges.  However, the jury awarded compensatory damages of $50,000, punitive damages of $200,000 and an additional $363,210 in other awards as the jury ruled in favor of Davey in the 1997 claims (Davey v. Lockheed Martin Corporation, 2002).

Lockheed Martin appealed the verdict in respect to the verdict concerning the 1997 retaliation claim.  The company claims that the court mistakenly denied the company the right to present a material aspect of the case which led to an unjust punitive damages award.  The company maintained that they were in good faith compliance with Title VII.  The company also contends that the court failed to inform the jury that an invidious motive must be a motivating factor in an employment decision.  Lockheed Martin sought after the dismissal of all punitive and attorney fees (Davey v. Lockheed Martin Corporation, 2002).

Title VII Case Law

Title VII of the Civil Rights Act of 1964 protects employees from being discriminated upon the basis of race, color, religion, sex and national origin (EEOC, 1997). A 1999 case, Kolstad v. American Dental Association 527 U.S. 526, sets the model for a framework for awarding punitive damages in discrimination cases.  This case provides employers with a protection against punitive damages (Davey v. Lockheed Martin Corporation, 2002).

The Kolstad case stated that the employee must prove that the employer carried out these discriminatory acts knowing that it was violating federal law.  If this can be accomplished, then the next step would be to establish that the supervisor who committed the violation was within the scope of employment.  The Court added that even if this criterion was established, punitive damages would not be granted if the employer had displayed that they are engaged in good faith efforts to comply with Title VII.  The bare minimum that an employer needs to fulfill this obligation is to adopt anti-discrimination policies and make efforts to educate employees about Title VII (Davey v. Lockheed Martin Corporation, 2002).

Case Outcome

The Appeals Court for the District of Colorado found that the Lower Courts erred in its decision to disallow Lockheed Martin to include the Kolstad decision to their defense.  The Appeals Court found no evidence that Lockheed Martin acted in bad faith or intentions to comply with Title VII regulations.  The Appeals Court cited that when Kolstad is properly applied that Lockheed Martin is not liable for punitive damages on the 1997 claim.  The Court voided all punitive damages and attorney fees that were awarded to Davey.  Additionally, the Court ordered a new trial that was limited to the matter of punitive damages (Davey v. Lockheed Martin Corporation, 2002).

Conclusion

In many cases, the Court may rule in favor of the employee and the worker receives their proper restitution.  There is desire that the company in violation learns from their faults and corrects their policies in anticipation that they will not be repeated. Those companies that do not take advantage of lessons learned may continue to make the same oversights and frequently encounter law suits.  Regardless of if the company wins a case, the mere knowledge that a company has been found to be engaging in discriminatory activities, erodes the reputation of the company.  Companies must continuously educate their leaders of the laws and that discriminatory acts will not be tolerated in the 21st century.  A company that fails to take such measures will cease to remain competitive in the years to come.

References

Boeing Company. (2003, April).  Boeing in brief.  Retrieved May 2, 2003, from http://www.boeing.com/companyoffices/aboutus/brief.html
Bright Wood Corporation. (2002). Company profile.  Retrieved May 1, 2003, from http://www.brightwood.com/home.html
Davey v. Lockheed Martin Corporation. (2002). Kansas Judicial Branch. Retrieved May 11, 2003, from http://www.kscourts.org/ca10/cases/2002/08/00-1373.htm
EEOC. (1997, January).  Title VII of the Civil Rights Act of 1964.  Retrieved May 1, 2003, from http://www.eeoc.gov/laws/vii.html
Fleming v. Boeing Company. (1997). Emory School of Law.  Retrieved May 2, 2003, from http://www.law.emory.edu/11circuit/aug97/94-7053/opa.html
Leisek v. Brightwood Corporation. (2002). Westlaw Campus. Retrieved May 2, 2003, from http://campus.westlaw.com
Library of Congress (2000). The Gettysburg Address. Retrieved May 6, 2003, from http://www.loc.gov/exhibits/gadd/4403.html
Lockheed Martin. (2002, April).  About us.  Retrieved May 4, 2003, from http://www.lockheedmartin.com/about/index.html
Spurge, L. (ed.). (1997). Knowledge exchange business encyclopedia illustrated.  Santa Monica, CA: Knowledge Exchange.
Untied States Department of Labor. (2003). Overview of USERRA.  Retrieved May 3, 2003, from http://www.dol.gov/elaws/vets/userra/userra.asp

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