Tim Coffield’s Interview on Ideamensch

Tim Coffield, Attorney, is a licensed law professional based in Charlottesville, Virginia. After an extensive education and dedicated work, Tim founded his legal practice, Coffield PLC, in 2012. Prior to his start as an attorney, Tim obtained his B.A degrees from North Carolina State University in Philosophy and English. His education continued to the University of Montana, where he earned his M.F.A in Creative Writing and taught undergraduate writing courses. In 2011, Tim graduated from the University of Virginia School of Law and began his profession as a dedicated attorney.

From his early years in the law and litigation field, Tim has had a passion for law, and serving different areas as a dedicated and trusted attorney. His early career, through law school and after, began with a focus on environmental and natural resources law where he worked towards addressing state and federal environmental issues and clean water laws. As a Law Clerk/Fellow at Trout Unlimited, Tim focused much of his time on regulatory matters regarding gas pipelines and state water use regulations. He also has additional experience in collaborating and working with environmental conservation groups.

As owner and operator of Coffield PLC, Tim has a primary focus on areas such as employment and civil rights law, civil litigation, business and estate planning, and contract disputes. Much of his experience comes from managing and resolving various civil cases in both federal and state court. Tim has a passion for representing and helping employees and has dedicated a majority of his practice to doing so. One of Tim’s most notable accomplishments is his serving as a co-class counsel in Boswell v. Panera Bread Co. 2016 WL 1161573 (E.D. Mo. Mar. 24, 2016). This case was not only nationwide, but obtained a multi-million dollar judgment on behalf of the class members. Other notable cases that Tim has represented include Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159 (4th Cir. 2016), where he was successfully able to argue before the Fourth Circuit Court of Appeals and obtained a partial reversal in the case; and Smith v. Loudoun County Public Schools, Case No. 1:15-CV-956,Dkt. No. 128 (E.D Va. November 15, 2016), where he obtained a jury verdict in the Eastern District of Virginia under the Americans with Disabilities Act.

Tim Coffield founded Coffield PLC with the goal of running a practice that is not only defined by its clients but is trusted and dedicated to serving clients based on individual needs. He understands that each client and business faces different challenges, and has different legal issues; there is no cookie cutter solution. He is passionate about crafting personalized legal strategies for each of his clients and is dedicated to serving them with his best foot forward.

In addition to his extensive education and experience, Tim is affiliated with various professional organizations, including the Virginia Employment Lawyers Association, the National Employment Lawyers Association, and the Metropolitan Washington Employment Lawyers Association.

Where did the idea for your company come from?

I’m an attorney. When I first started out, I noticed a lot of prospective clients had questions about their legal rights and responsibilities in the context of the employer-employee relationship. The laws governing these rights and responsibilities are often nuanced and fact-specific, and not always well-publicized. It seemed like there was an opportunity to provide a useful service by focusing my legal practice on these laws, and on employment rights and responsibilities generally.

What does your typical day look like and how do you make it productive?

On days when I’m not in court, in the morning I typically have consultations with existing or prospective clients, and take phone calls or exchange correspondence with other attorneys. In the afternoon, I typically focus on moving existing projects forward — preparing memoranda, court filings, or administrative filings for agencies like the Equal Employment Opportunity Commission or Virginia’s Office of Equal Employment and Dispute Resolution.

How do you bring ideas to life?

I make a list of small, achievable tasks that serve the idea. Then I tackle the list item by item.

What’s one trend that excites you?

The trend towards electronic filing and electronic evidence presentation in courts and administrative agencies. Compared to paper filings and preparing large binders of paper exhibits, I think electronic means of exchanging and presenting evidence in court and administrative proceedings saves time and money. It’s a more efficient and effective way to share information.

What is one habit of yours that makes you more productive as an entrepreneur?

I don’t know if this qualifies as a habit, but I make a concerted effort to keep in close touch with my clients throughout the representation. Phone calls, emails, texts. Whatever works best. A good friend once told me that more communication is always better, and I’ve found this to be true in life and in business. I think it’s especially true in the attorney-client context, where clear communication about goals and expectations is vital to a lasting and effective relationship.

What advice would you give your younger self?

Don’t drive the truck onto a sandbar in the inlet waterway. The tide will come in.

Tell us something that’s true that almost nobody agrees with you on.

If almost nobody agrees with you about something you believe is true, chances are you may be wrong. Always be open to reconsidering what you think you know.

As an entrepreneur, what is the one thing you do over and over and recommend everyone else do?

This goes well beyond building a business, but I think it’s important to work hard at building healthy, trusting relationships with everyone we encounter. This includes relationships with purported rivals and those who don’t always share our perspectives or objectives.

What is one strategy that has helped you grow your business?

Asking clients to consider referring friends or family members to me. This a classic, old school form of business development, and if you build strong relationships with existing clients, it can be wonderfully effective.

What is one failure you had as an entrepreneur, and how did you overcome it?

Early on, I could have done a better job meeting and building relationships with other attorneys. I was a little shy. I’ve worked to overcome this by making a concerted effort to spend quality time with other folks in the same line of work — by attending conferences, having lunch, trying to help answer questions on attorney listservs. That sort of thing. Strong relationships are the center of everything, personally and professionally.

What is one business idea that you’re willing to give away to our readers?

Gyms in airports. Or at least some pullup bars sprinkled in between the newsstands.

What is the best $100 you recently spent? What and why?

Adobe Sign. This software makes it infinitely easier for people to review and sign documents, through email, even on their phones — without having to waste paper or spend money on a scanner.

What is one piece of software or a web service that helps you be productive?

As an attorney with a nearly paperless office, I need reliable software to manage electronic documents and client information, keep track of my time, and perform accounting tasks. I use a web service called Clio to organize documents, organize client matters, track time, and keep the books — among many other administrative tasks involved in running a law practice. The company’s customer service is outstanding. I recommend it.

What is the one book that you recommend our community should read and why?

Terkel’s Working. The book collects interviews with people about what they do for a living. It opened my eyes to how vital a job can be, not just to a person’s economic well-being, but to her sense of self and place in the greater community.

What is your favorite quote?

“If people sat outside and looked at the stars each night, I’ll bet they’d live a lot differently. ” – Bill Waterson, Calvin & Hobbes.

Originally published on Ideamensch.

North Carolina Equal Employment Practices Act: Anti-Discrimination Policy Protections for North Carolina Employees

The North Carolina Equal Employment Practices Act (NCEEPA) prohibits employment discrimination based on race, color, national origin, religion, age, sex, or handicap. 

The law is codified at N.C. Gen. Stat. Ann. §§ 143-422.1 to 143-422.3. The NCEEPA applies to employers who regularly employ 15 or more employees. While the statute does not provide a private cause of action, it can be the basis for a common law claim of wrongful discharge in violation of state public policy. 

Covered Employers

The NCEEPA covers employers which “regularly employ 15 or more employees.” N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Policy Statement and Protected Classes

The NCEEPA provides that it is the public policy of North Carolina to “protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap[.]” The statute therefore prohibits employment discrimination based on membership in these protected classes. N.C. Gen. Stat. Ann. §§ 143-422.2(a).

The NCEEPA further explains that “the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general. N.C. Gen. Stat. Ann. §§ 143-422.2(b).

Definition and Scope of Discrimination

The NCEEPA does not define what constitutes the prohibited “discrimination or abridgement” on account of the above protected classes. However, it does make clear that the right to be free from discrimination or abridgement applies to both job applicants and current employees (“the right of and opportunity of all persons to seek, obtain, and hold employment…”). N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Administrative Investigations

The NCEEPA provides that the state Human Relations Commission in the Civil Rights Division of the Office of Administrative Hearings has the authority to:

N.C. Gen. Stat. Ann. §§ 143-422.3. The law further instructs the agency to use its resources to  “effect an amicable resolution of the charges of discrimination.” Id. There are strict time limits on filing charges of discrimination with the EEOC, which investigates violations of certain federal employment discrimination laws. Here is a helpful link to the EEOC website with more information on those time limits.


The NCEEPA does not provide employees with a private right of action. However, the statute’s policy statement can be the basis for a common law claim of wrongful discharge in violation of public policy. See, e.g., Considine v. Compass Grp. USA, Inc., 145 N.C.App. 314, 317, 551 S.E.2d 179, 181 (2001). (“[North Carolina] Courts have recognized an exception to the employment at will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. Under the exception, the employee has the burden of pleading and proving that the employee’s dismissal occurred for a reason that violates public policy.” Id. (collecting cases). 

North Carolina courts have held that the limitations period for a claim of wrongful discharge in violation of public policy is three years. See, e.g., Winston v. Livingstone Coll., Inc., 210 N.C. App. 486, 488, 707 S.E.2d 768, 770 (2011) (“The limitations period for a tort action based upon wrongful discharge in violation of public policy is three years.” (citing N.C. Gen. Stat. Ann. § 1-52(1) (2011)); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 260, 580 S.E.2d 757, 762 (2003) (“The statute of limitations for such a claim [wrongful discharge in violation of public policy] is three years.” (citing N.C. Gen. Stat. Ann. § 1–52(5) (2003)).

This article was also published to TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

FLSA Executive Employee Exemption: Management and Direction

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. However, the law contains several exceptions or “exemptions” from these requirements, most of which turn on a combination of the employees’ pay and the nature of their job duties. For example, Section 13(a)(1) of the FLSA, a.k.a. 29 U.S.C. § 213(a)(1), provides an “exemption” from both minimum wage and overtime pay for certain categories of so-called “white collar” employees — namely, employees working as bona fide executive, administrative, professional, or outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain categories of computer employees.

To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (as of January 1, 2020) and have job duties that satisfy certain requirements. Importantly, job titles do not determine whether an employee is exempt from the FLSA. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labor’s implementing regulations.

This post will focus on the exemption for executive employees. The Department of Labor is also an excellent resource for information about the executive employee exemption. The DOL’s implementing regulations with respect to the executive employee exemption are generally located at 29 CFR §§ 541.100-106.

Read the full article at TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

Christensen v. Harris County: Compelled Use of FLSA Compensatory Time

In Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court held that the Fair Labor Standards Act does not prohibit public employers from compelling employees to use compensatory time.


The Fair Labor Standards Act allows public employers (including states and their political subdivisions) to compensate employees for overtime work by granting them compensatory time instead of paying them a cash overtime wage. 29 U.S.C. § 207(o). Compensatory time is paid time off. To comply with this part of the FLSA, the public employer must provide the compensatory time at a rate not less than one and one-half hours for each hour of overtime worked. Id. Compensatory time can accumulate, like vacation time. Importantly, if employees do not use their accumulated compensatory time, under certain circumstances the FLSA requires the public employer to pay the employees cash compensation. 29 U.S.C. §§ 207(o)(3)-(4)

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Read the full blog at TimCoffieldAttorney.com or CoffieldLaw.com.

Meritor Savings Bank v. Vinson: Sexual Harassment is Unlawful Discrimination

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court recognized for the first time that sexual harassment is a violation of Title VII of the Civil Rights Act of 1964.. 

As discussed in an earlier post, Title VII protects employees from workplace discrimination “because of” sex. 42 U.S.C. § 2000e-2(a).

Meritor Savings Bank addressed the question of whether Title VII prohibits employers from creating a sexually “hostile environment” or only prohibited tangible economic discrimination, like terminations and demotions.

The Court held, inter alia, that “hostile environment” sexual harassment is a form of sex discrimination that is actionable under Title VII. Id. at 63-69. This is because the language of Title VII is not limited to “economic” or “tangible” discrimination, like a termination resulting in wage loss. Therefore, sexual harassment leading to purely non-economic injury (like emotional distress) can violate Title VII. 

In 1974, Meritor Savings Bank hired Vinson as a teller. Her supervisor was a man named Sidney Taylor. Vinson testified that Taylor subsequently invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sex. At first, she refused, but out of what she described as fear of losing her job she eventually agreed. According to Vinson, Taylor thereafter repeatedly demanded sexual favors from her, usually at the branch, both during and after business hours. She estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, Vinson testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and forcibly raped her on several occasions. Taylor denied all this. The District Court found that any sexual relationship between Vinson and Taylor was a voluntary one. 

In her suit against Taylor and the bank, Vinsom claimed that during her four years at the bank she had constantly been subjected to “sexual harassment” by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney’s fees.

The Court’s Decision
Meritor Savings Bank raised the question of whether Title VII’s prohibition on sex-based “discrimination” prohibits employers from creating a sexually “hostile environment” or was limited to a prohibition on tangible economic discrimination, like terminations and demotions.



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Successor Liability for Employment Claims

In employment law, successor liability addresses the situation where one company violates Title VII of the Civil Rights Act (or other federal employment laws) by subjecting an employee to harassment or discrimination, then that company is sold to a second company before

the harassment or discrimination can be remedied. Under some circumstances, that second company can be held liable for the first company’s violations of Title VII — even though the second company did not itself subject the employee to harassment or discrimination.

Courts have emphasized the importance of successor liability in fulfilling Title VII’s remedial purposes. Successor liability under Title VII is an “equitable doctrine … addressing a particular problem of employment discrimination: ‘Failure to hold a successor employer liable for the discriminatory practices of its predecessor could emasculate the relief provisions of Title VII by leaving the discriminatee without a remedy or with an incomplete remedy.’” EEOC v. Phase 2 Investments Inc., 310 F. Supp. 3d 550, 569  (D. Md. 2018) (quoting EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1091 (6th Cir. 1974)

Therefore, courts may impose liability on a successor company even though it had little relationship to the first company and purchased the first company’s assets without agreeing to take responsibility for the first company’s liabilities to its employees. “Successor liability is liberally imposed.” Fennell v. TLB Plastics Corp., No. 84 Civ. 8775, 1989 WL 88717, *2 (S.D.N.Y. July 28, 1989) (citing Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) (finding successor liability (in the labor law context) where the successor changed marketing and sales, did not assume liabilities or trade name, hired employees through newspaper ads rather than from predecessor’s employment records, and seven months had passed between predecessor’s demise and successor’s start up) (emphasis added).

In determining whether successor liability in the Title VII context is appropriate, courts often look to nine equitable factors set forth in the Sixth Circuit’s decision in MacMillan:

1) whether the successor company had notice of the charge, 2) the ability of the predecessor to provide relief, 3) whether there has been a substantial continuity of business operations, 4) whether the new employer uses the same plant, 5) whether he uses the same or substantially the same work force, 6) whether he uses the same or substantially the same supervisory personnel, 7) whether the same jobs exist under substantially the same working conditions, 8) whether he uses the same machinery, equipment and methods of production and 9) whether he produces the same product.

Phase 2, 310 F. Supp. 3d at 570 (quoting MacMillan, 503 F.2d at 1094).

Factors 4-9 are essentially subsets of the “continuity of business operations” factor. The equitable test, then, “really comes down to three major factors: whether a successor had notice, whether a predecessor had the ability to provide relief, and the continuity of the business[.]” …




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The National Labor Relations Act: Protections for Employee Concerted Activity

The National Labor Relations Act (NLRA) gives employees the right, among others, to unionize, to join together to advance their interests as employees, and to refrain from such activity. 29 U.S.C. § 151–169. The NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights under the law, including their right to engage in concerted activity to advance their interests as workers. For example, employers may not respond to a union organizing drive by threatening, interrogating, or spying on pro-union employees, or by promising employees benefits for not participating in the union. But even when no union is involved, employers may not punish employees for banding together and speaking up in an effort to improve their working conditions.


Congress enacted the NLRA in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. Among other things, Congress expressed an intent for the NLRA to address the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate … form[].” Congress found that this inequality of bargaining power between employees and their employers “substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.” 29 U.S.C § 151. Congress further determined that enacting legal protections for employees to “organize and bargain collectively” would have the effects of “encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and…restoring equality of bargaining power between employers and employees.” Id.

Section 7: The Right to Self-Organize and Engage in Concerted Activity

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” 29 U.S.C. § 157.

In general, the NLRA, therefore, gives employees the right to engage in both union and certain non-union activities aimed at improving working conditions. With respect to employee union rights, these include the right to attempt to form a union where none currently exists, or to decertify a union that the employees no longer support. Examples of employee rights relating to unions include: being fairly represented by a union; forming, or attempting to form, a union in the workplace; joining a union, regardless of whether the union is recognized by the employer; assisting a union in organizing fellow employees; and refusing to do any of these things.

Regardless of whether a union is involved, employees still have rights to band together and speak up about their working conditions. Section 7 of the NLRA guarantees this right to “engage in other concerted activities for the … mutual aid or protection” of fellow workers. 29 U.S.C. § 157. This right does not require a union. The NLRA therefore protects the rights of employees to engage in “concerted activity,” and this happens when two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. It is also possible for a single employee to engage in protected “concerted activity” if she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Id. Examples of protected concerted activities include: two or more employees addressing their employer about improving their pay; two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other; or one employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions. Id.

For more information about non-union concerted activities, the National Labor Relations Board (NLRB) publishes a protected concerted activity page, which includes descriptions of real-life concerted activity cases.

Section 8: Protections Against Interference with Concerted Activity

Section 8(a)(1) of the NLRA, among other things, prohibits employers from interfering with employees’ rights to engage in concerted activity. In short, this section makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA, including the right of employees to engage in concerted activities for their mutual aid or protection. 29 U.S.C. § 158. An employer therefore cannot terminate an employee for engaging in concerted activity protected by Section 7.

Concerted Activity and Social Media

The range of activity that constitutes concerted activity protected from employer interference can include employee interactions on social media. For example, in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. N.L.R.B., 629 F. App’x 33 (2d Cir. 2015), an employee posted a Facebook status update protesting an employer’s purported failure to properly calculate tax withholding: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . WTF!!!!” Another employee commented: “I owe too. Such an asshole.” Another employee “liked” the post. Based on these comments, the employer, Triple Play, terminated two of the employees. Id. at 36-37.
The NLRB determined that the employees’ comments were protected concerted activity, and therefore the terminations violated the NLRA. The Court of Appeals for the Second Circuit affirmed. The appeals court agreed with the NLRB that the employees’ Facebook comments were “protected concerted activity” because: (1) the comments were “concerted activity” because they were exchanged among current Triple Play employees; and (2) the comments were “protected” because they “concerned workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and [and emloyee’s]  assertion that she was owed back wages.” Id. at 36…



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Family and Medical Leave Act: Job-Protected Leave for Family and Medical Reasons

The Family and Medical Leave Act (FMLA) is a federal law that gives “eligible” employees of covered employers the right to take a limited amount of unpaid, job-protected leave for specified family and medical reasons. The FMLA entitles an employee on qualified leave to continued group health insurance coverage under the same terms and conditions as if she had not taken leave. Read the law at 29 U.S.C. § 2601, et seq.

Employee Eligibility Requirements

Subject to a pair of relatively uncommon exclusions, 29 U.S.C. § 2611(2)(B), and the employer coverage requirements, 29 U.S.C. § 2611(4), an employee is generally “eligible” for FMLA rights if the employee has (i) been employed by her employer for at least 12 months and (ii) worked at least 1,250 hours during the previous 12 months. 29 U.S.C. § 2611(2)(A). The employee also has to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. 29 U.S.C. § 2611(2)(B).

Covered Employer Requirements

The FMLA applies to covered “employers” — that is, the law only requires employers who meet certain specified criteria to comply with its job-protected leave provisions. Under the FMLA, a covered “employer” is generally any person or entity engaged in any activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(4)(A). This includes any “public agency”, as that term is defined in section 203(x) of the Fair Labor Standards Act, as well as the Government Accountability Office and the Library of Congress. 29 U.S.C. § 2611(4)(A)(iii), (iv). See also the covered employer regulations at 29 C.F.R. § 825.104.

FMLA Rights of Eligible Employees

The FMLA entitles eligible employees of covered employers to:

  • Twelve workweeks of leave in a 12-month period for any of the following, or any combination of the following:

A) the birth of a child and to care for the newborn child within one year of birth;

B) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; …



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Griggs v. Duke Power: Disparate Impact Without Discriminatory Intent

The Supreme Court’s decision in Griggs v. Duke Power Company, 401 U.S. 424 (1971), addressed the Title VII issues created by employer policies that are facially neutral, but which adversely impact employees on the basis of race, sex, or religion. In short, the Griggs Court decided that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the neutral rule or test violates Title VII unless the employer proves it is justified by “business necessity.”


Title VII of the Civil Rights Act of 1964 prohibits employers from treating employees differently because of their race, sex, or religion. This means, obviously, that an employer cannot refuse to hire an applicant because of the applicant’s race. But sometimes employers may implement policies, or require applicants to take tests, that work to disadvantaged members of one sex, race, or religion over others — even though the employer may not have intended the policy or test to have that effect. For example, in Griggs, Duke Power had a policy that required employees in all but its lowest-paying jobs to have a high school diploma or pass “intelligence” tests. There was no evidence Duke Power intended this policy to discriminate against minority workers. The employees in Griggs argued this policy violated Title VII because it disproportionately impacted black workers.
The Griggs Court reasoned that Congress designed Title VII to address the consequences of employment practices and not just the employer’s motivation. Therefore, a neutrally-worded employment policy or test that has the effect of disproportionately impacting employees of one sex, race, or religion, may be unlawful under Title VII even if the employer did not intend that policy or test to be discriminatory in that way. The Griggs decision made it possible for employees to challenge employment practices that disadvantage certain groups if the employer cannot show the policy is justified by business necessity and paved the way for the Civil Rights Act of 1991, which codified the “disparate impact” theory of discrimination endorsed by Griggs



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Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Protections from Employment Discrimination Based on Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) protects employees and job applicants from employment discrimination based on genetic information. Title II of GINA prohibits employers (and various employer-like entities and programs) from using genetic information in making any employment decisions — such as firing, hiring, promotions, pay, and job assignments. This law also prohibits employers from requesting or requiring genetic information or genetic testing as a prerequisite for employment.

GINA went into effect on November 21, 2009. The Equal Employment Opportunity Commission (EEOC) enforces Title II of GINA, regarding protections from genetic discrimination in employment. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Genetic Information Defined

Under Title II of GINA, “genetic information” includes any information about an individual’s genetic tests and genetic testing of an individual’s family members. Critically, this definition encompasses an individual’s family medical history — i.e. information about diseases or disorders among members of the individual’s family. 42 U.S.C. §2000ff(4). EEOC regulations clarify that GINA’s use of the phrase “manifestation of a disease or disorder in family members” in its definition of “genetic information” refers to an employee’s “family medical history,” interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).

GINA’s definition of “genetic information” includes family medical history because this kind of information is often used to predict an individual’s risk of future diseases, disorders, or other medical conditions that might theoretically, in the future, impair her ability to work.

Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual. 42 U.S.C. §2000ff(4)(B). Genetic information under GINA also encompasses the genetic information of a fetus carried by an individual or a family member of the individual, and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. See 29 U.S.C. §1182(f).

Discrimination and Harassment on the Basis of Genetic Information
GINA’s basic intent is to prohibit employers from making a “predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.” H.R.Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. Congress therefore included family medical history in the definition of “genetic information” because it understood that employers could potentially use family medical history “as a surrogate for genetic traits.” H.R.Rep. No. 110–28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); see also the Final Rule implementing Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on November 9, 2010; and the Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on May 17, 2016…



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