November 12, 2012

Electronic Workplace Harassment Does Not Always Happen at the Workplace

Online social media and mobile communication are very prevalent in today's society and are being used in all sorts of ways. They can be used to invite friends to a party, notify faraway relatives that a new baby has arrived, find long-lost friends from high school, and share decorating ideas and silly videos with people around the globe. Even charity efforts have gone mobile as phone apps have been created as a convenient way for people to help donate to those who were affected by Hurricane Sandy. Unfortunately, it can also be used in negative ways as well, such as harassment.

Supervisors and co-workers often find each other on social networks or share cell phone numbers to allow for easier communication. Sometimes it is easier to send a text regarding a work matter than it is to have an actual phone conversation. But these technologies can also be used in an abusive manner and result in workplace harassment or sexual harassment even when an employee is not at work.

There are many different ways a worker can be harassed electronically. If a supervisor repeatedly sends texts messages to an employee asking for a date or an intimate relationship, the employee may feel uncomfortable or threatened. This constitutes sexual harassment and can create a hostile work environment. Sexual harassment can also occur when a supervisor or co-worker emails or posts pictures or jokes of a sexual nature that other employees find offensive. In a recent case, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a company because a manager was sending sexual texts to an employee, who told her supervisor. When the supervisor reported the harassment, the company allegedly retaliated against him by firing him. A settlement for $2.3 million was made by the company for both the sexual harassment and retaliation claims.

Other types of harassment or workplace discrimination can also occur. If supervisors or co-workers are posting disparaging remarks regarding an employee's disability, race, ethnicity, gender, or religion, this may also be discrimination. An employee was recently awarded $1.6 million by a court because co-workers had posted negative comments about his disability and his employer did not take any action when he reported the discrimination.

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October 5, 2012

Kentucky Coach Claims Age and Race Discrimination in Wrongful Termination Lawsuit

1015485_basketball.jpgOn August 31, 2012, a Kentucky high school coach that was fired in 2008 filed a wrongful termination lawsuit against the school board. He had been employed by the school for 22 years as an assistant coach, and an additional 11 years as head coach of the boys' basketball team. Despite his long tenure, eight district championships, and a 204-117 record, the school terminated him. His lawsuit claims he was a victim of age and race discrimination.

Kentucky is an "at-will" employment state. This term means that an employer can fire an employee whenever he pleases. However, there are certain situations in which the employee is protected. If the employer and employee signed an employment contract stating the employee has to remain employed for a certain length of time, then an employer cannot terminate the employee before the contract is up without valid reason. Otherwise, this would be a breach of contract. Union employees also have some protection against being fired at the whim of them employers.

A third type of protection for employees comes under Title VII of the Civil Rights Act of 1964 and the Age Discrimination Act. These acts pertain to employees that belong to groups of people who have a history of being discriminated against because of certain characteristics such as their gender, race, religion, ethnicity, and age. If an employer terminates or otherwise negatively treats an employee based on one of these characteristics, the employee has been discriminated against and has the right to seek compensation from the employer.

Some discrimination lawsuits ask for lost income with interest, benefits, and awards for emotional distress, all of which are known as compensatory damages. Others also ask for additional money in an attempt to punish the company for its wrongdoing. This type of damages is called punitive damages, and they are often awarded to convince the employer not to discriminate against future employees.

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September 25, 2012

Employment Lawsuit against Restaurant Chain Claims Employees Were Underpaid

Once again, Darden Restaurants is in the news as employees allege that they are not being paid fairly. Darden Restaurants is a huge company, best known for its Olive Garden and Red Lobster restaurants that are located in Kentucky, Indiana, and throughout the United States.

Only two plaintiffs have been named in the unfair pay lawsuit, one in Florida and one in Virginia. However, the attorney who filed the lawsuit sees it becoming a class action lawsuit that could potentially cover thousands of previous and current Darden employees that were employed by the company anytime between 2009 and 2012. The unfair wages lawsuit was filed in Florida, where Darden is headquartered.

The lawsuit is based on the federal Fair Labor Standards Act (FLSA). FLSA was passed in 1938 and established minimum wage and the 40-hour workweek. It also stated that employees were entitled to time-and-a-half for every hour they worked over 40 hours. FSLA also states that tipped employees are allowed to keep their tips and they will not become the property of the employer. A tipped employee may be required to put their tips in a "tip pool." The tips in the pool are then shared among the employees that regularly receive tips as part of their compensation. An amendment to the Act in 1946 stated that an employee should be paid for any time spent doing work specifically for the employer, even if it was not during the employee's scheduled shift or regular work hours. Another amendment relevant to this case occurred in 1996. Up until this time, employees who received tips regularly were paid 50% of the current minimum wage. But in 1996, the tipped employee's hourly rate was frozen at $2.13 per hour by the federal government.

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September 20, 2012

Franchisee of Restaurants in Kentucky Settles Race Discrimination Lawsuit

An Ohio company that owns Panera Bread franchises in several states, including Kentucky, has settled a race discrimination lawsuit involving an ex-employee in Pennsylvania. The settlement will cost the company at least $76,000, possible more if additional employees come forth to say they experienced discrimination too.

The employment discrimination lawsuit claimed that the ex-employee, who is African-American, was only allowed to work in the kitchen at the restaurant, per the owner of the franchise. He was not allowed to serve customers, run the register or seek a management position because he was not to be seen by anyone. As a result, he was denied any chance of being promoted, even though he worked at the restaurant from November 2009 through August 2011. He finally left because of the alleged unfair treatment.

His lawsuit was not the first filed against the franchisee. A white manager who had been fired at the same restaurant supposedly over medical leave violations filed a lawsuit claiming he had been wrongfully terminated because he refused to stop having an African-American man run the cash register. According to the suit, a district manager said the franchisee would "(expletive) if he got a look at that." The employee that was being allowed to run the register is the one who filed the above lawsuit in January 2012.

The African-American employee will receive approximately $10,000 from the settlement. In addition to paying damages and attorneys' fees, the franchisee was also ordered by the judge to place a notice in local newspapers in every state he has a restaurant, notifying other employees of the settlement in case they were discriminated against as well. They will have the opportunity to join the lawsuit and receive 70 cents per hour for every hour they worked after their first year. This amount represents the extra money they could have earned if they had been given the chance to be promoted after their first year of employment. One attorney estimates that 200-300 current and former employees that were employed by the franchisee between January 2008 and January 2012 may be entitled to this compensation.

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September 11, 2012

Possible Sexual Harassment and Discrimination in Louisville, Kentucky Public Works Department

In two separate cases, a former Louisville, Kentucky public works director has been accused of sexual discrimination and sexual harassment. The director resigned at the end of August 2012. Although he denies his departure was in connection with any of the allegations, it certainly seems to be the case.

Sexual discrimination is illegal under Title VII of the Civil Rights Act of 1964. This portion of the act prohibits employers and supervisors from treating employees differently because of their race, religion, ethnicity, or gender. Employees cannot be turned down for employment, denied promotions, paid less, terminated, or otherwise treated unfairly because of any of these factors. The Equal Employment Opportunity Commission (EEOC) enforces this portion of the act by determining if an employee has a valid claim and contacting the company. If the company refuses to resolve the issue, a lawsuit will most likely be filed.

In the Kentucky sexual discrimination case, a public works employee claimed she was discriminated against because she was female. The lawsuit states she was denied a promotion for 18 months and was only given the job after complaints of potential sexual discrimination were made to the mayor. She was finally awarded the position in June 2012, but allegedly at a lower salary than her male predecessors.

According to the EEOC, "Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964." Sexual harassment involves actions by a supervisor or co-worker that makes an employee uncomfortable. Unwanted sexual advances, inappropriate touching, and the distribution of pictures, cartoons, or jokes of a sexual nature are just a few examples of sexual harassment. A one-time incident involving something of a mildly sexual nature is generally not enough to constitute harassment; it must be either frequent or serious enough to cause a hostile work environment.

In the Kentucky sexual harassment complaint against the public works director, he allegedly entered the employee's cubicle on more than one occasion and hugged and kissed her without her consent. Non-consensual touching like this is quite serious, and the fact that it happened more than once makes it even worse.

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August 29, 2012

Teen Files Religious Discrimination Suit against Burger King

1119511_burger.jpgRecently, many of the workplace discrimination lawsuits filed have involved people over 40 who feel they have been discriminated against because of their age. Employers seem to be favoring younger employees who will most likely work for less pay and benefits. However, in a recent discrimination case, the worker that filed a lawsuit was only 17 years old, and the lawsuit did not have anything to do with her age.

The teen had applied at a Burger King in Texas for a cashier position. She follows the Christian Pentecostal faith, which does not allow women to wear pants. She mentioned this to the person interviewing her and was told that she could wear a long skirt instead of pants. She was hired and reported to work for her first day. The manager handling the orientation not only told her she was required to wear pants, but also told her to leave. The Equal Employment Opportunity Commission (EEOC) agreed that the teen was discriminated against because of her religion and a lawsuit was filed. The suit asks for damages to cover lost wages with interest as well as punitive damages.

This lawsuit is based on Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against potential or current employees based on their religion, among other things. The act states that employers should do their best to accommodate employees' needs based on their religion as long as it does not cause undue hardship on the employer. Undue hardship might be caused by the employer having to spend large amounts of money to make an accommodation or putting other employees in harm's way. In this case, the employee simply wanted to wear a long black skirt instead of black pants to work. How that might cause undue hardship on a fast-food employer is unknown. What is known is that the teen was denied the right to make a little money while she finished up high school.

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August 21, 2012

Kentucky Employment Law Cases Put Ministerial Exception Doctrine to the Test

Earlier this year, the U.S. Supreme Court ruled in a case where a teacher at a Lutheran School had filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating she could not file a workplace discrimination lawsuit because she was covered by the "ministerial exception." The Court of Appeals overturned the ruling based on the fact that the majority of her day was not spent in a ministerial capacity. However the U.S. Supreme Court ruled that she was indeed covered by the doctrine and that the school had the right to terminate her.

The ministerial exception doctrine gives religious institutions the freedom to hire individuals that they think are most qualified to minister to their members without worrying about discrimination charges. But who constitutes a "minister" at a church-affiliated school or hospital and exactly what employment law issues are covered is still unclear. Three recent Kentucky employment law cases involving ministerial exception had differing results.

The first two cases involved two professors at the Theological Seminary in Lexington, Kentucky. Both taught at the Protestant school, but neither were followers of the school's faith. In 2009, the seminary cut staff. Both men filed wrongful termination lawsuits, stating they were tenured professors and that they could only be terminated for failing to do their jobs or for misconduct, not for budgetary reasons. But both the district and appeals court ruled against the professors because of ministerial exception, stating the school has the right to decide who to terminate and that the government cannot intervene.

In the third case, a Louisville, Kentucky pastor was fired by the church he led from 2005 to 2010. In this case, the pastor was not claiming wrongful termination, but rather a breach of contract. A breach of contract occurs when and employer and employee agree to certain terms and sign a contract, the one party does not uphold their part of the agreement. In this case, the pastor claimed he was over $64,000 in salary and benefits by the church and he wants the church to pay him this amount. The Jefferson County Circuit Court refused to hear the suit based on the ministerial exception. In this case, the employee was an actual minister, so the court's decision makes sense in that respect.

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August 2, 2012

Alleged Kentucky Sexual Harassment Incident Included in Police Officer's Lawsuit

An ex-employee of the Hyattsville Police Department in Maryland has filed a sexual harassment lawsuit against the city of Hyattsville. She joined the force in 2005 when she was 21 and stayed until she was allegedly forced to retire in 2009.

According to the lawsuit, the female police officer was frequently the victim of sexual harassment from her supervisors and coworkers while on the job. Perhaps the worst incident allegedly occurred in 2007 in Louisville, Kentucky. The officer was invited by her superior officer to attend a Fraternal Order of Police Conference there. During the conference, the suit claims that the superior officer took her into a men's restroom and forced her to touch his crotch. Then later that night he allegedly came into her hotel room, climbed on top of her and tried to have sex with her. The female officer's roommate allegedly helped to get him off of her. The female officer claims that nothing was done when she reported the incident and that she was even assigned to the offending officer's squad after it happened. The city of Hyattsville disagrees with her claim, stating disciplinary action was taken against the superior officer, but they did not provide any details.

The female officer said the repeated sexual harassment and hostile work environment forced her to go on short-term disability because she suffered from post-traumatic stress syndrome. The suit also claims that she was retaliated against after reporting the harassment and she was eventually forced to retire and relocate in 2009.

Her lawsuit seeks an unknown amount of damages. The damages would cover her lost wages and benefits as a result of supposedly being forced to retire early. They would also compensate her for any mental or emotional distress incurred because of the harassment and retaliation. If a jury would rule in her favor, the police department would likely have to provide training to all personnel regarding avoiding sexual harassment in the workplace, and how to handle sexual harassment complaints when they occur. The Equal Employment Opportunity Commission's (EEOC) goal is not only to obtain justice for those who have been mistreated, but also to prevent that type of behavior in the future, so training and supervision from an outside party is frequently part of the award or settlement in this type of case.

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July 23, 2012

Alleged Workplace Discrimination at Bass Pro Shop in Indiana

43211_fishing_pole.jpgBass Pro Shop is known for providing equipment of all types to those who love the outdoors. Their stores are filled with camping, hunting, and fishing gear, and often have indoor fish ponds and activities to keep children occupied while their parents shop. According to the Equal Employment Opportunity Commission (EEOC), one thing you may not find there is a large number of minority employees.

In a lawsuit initially filed in 2011, the EEOC alleges that Bass Pro Shops in several states, including Indiana, practice racial discrimination. Minorities had been denied retail positions in the stores since at least 2005, the lawsuit claimed. In May 2012, the federal court ruled against the EEOC, stating there was not enough evidence provided in the initial case to prove discrimination occurred. The case was dismissed without prejudice, which meant the EEOC could file an amended complaint.

Which is exactly what the EEOC has done. On July 20, 2012, an amended complaint was filed against the retailer with 247 pages of information that was allegedly gathered over a two-year period. The suit states that the discrimination starts all the way at the top with the founder and owner of the entire chain, who supposedly said, "This company will never have a [racial] quota system because that's not the kind of people I want working in my stores." Specifically in Indiana, the lawsuit says a manager of the Bass Pro Shop there was throwing away certain employment applications because the names of the applicants sounded like they were minorities and that they "don't make good employees." The lawsuit also states that retaliation occurred against Bass Pro Shop employees that spoke out about or tried to stop the discrimination.

The company has responded to the lawsuit by stating the EEOC is stereotyping Bass Pro Shop and its customers. It says those who love the outdoors are being stereotyped as discriminating people who don't support equal opportunity for everyone. The EEOC denies this claim.

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July 17, 2012

Kentucky Sexual Harassment Case to Cost City over $250,000

In 2009, an employee at the Fayette County Detention Center in Kentucky alleges that her supervisor sexually harassed her. Her lawsuit stated that he humiliated her in front of her co-workers and an inmate on separate occasions. She also claimed that he touched her breast. When she reported this behavior, she was supposedly a victim of retaliation as well. The lawsuit named the director of the detention center and the city. She was one of three women who filed lawsuits against the detention center alleging sexual harassment, racial discrimination, and retaliation.

This Kentucky sexual harassment case went to trial in March 2012. The jury handed down a split decision, which means they agreed with the plaintiff on some points and agreed with the defendants on others. The detention center director was excused from the case by the judge because he did not think the director played a role in the harassment. The jury found that the supervisor had indeed harassed the employee, but did not find any evidence that he actually touched her breast. Jurors also did not think there was enough evidence to prove her supervisor had retaliated against her after she complained about his behavior. They awarded the sexual harassment victim $60,000, most likely to cover any lost wages and to compensate her for any emotional or mental distress the alleged harassment may have caused her. Some of the damages may have been awarded simply to punish the city for allowing this to happen and to persuade city officials not to allow this to happen again at the detention center. Damages of this type are called "punitive damages." The employee that was allegedly harassed says she is thankful that someone listened to her.

As a further blow to the city and its bank account, the judge agreed that the city was responsible for the plaintiff's attorneys' fees that accrued during the preparation and attending of the trial. They totaled just over $200,000. If the city decides to appeal this decision and loses, it will likely be held responsible for those additional attorneys' fees as well.

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July 4, 2012

Wrongful Termination and "At-Will" Employment in Kentucky and Indiana

Kentucky and Indiana are both "at-will" employment states. What this means is that employees can be demoted or fired by their employers at any time. Workers who have certain types of contracts with their employers or are union workers may be more protected when it comes to being demoted or fired by their employers. If it is legal for employers to fire employees for pretty much any reason, how do Kentucky and Indiana wrongful termination lawsuits even exist?

An employee can claim wrongful termination for a variety of reasons. The most obvious is if an employee has a written contract to work a certain length of time and the employer fires him before the contract is up. Breaking a union contract through firing may also lead to a wrongful termination lawsuit, but only after the proper grievance procedure of the union is followed.

Most often, wrongful termination cases arise from other situations. If someone thinks they have been let go because of their race, religion, age, gender, or disability, this may constitute workplace discrimination and they may be able to take legal action. In a recent Kentucky wrongful termination case, a former vice president of the Courier-Journal has filed a lawsuit stating he was wrongfully terminated because of his age. He was let go at age 62 and was told that his job was being eliminated. Subsequently the newspaper allegedly hired someone who was younger than him to fill the position. Employees over the age of 40 are covered by the Age Discrimination in Employment Act (ADEA), which prohibits employers from terminating employees based only on their age.

If an employee is fired for trying to protect their legal rights, that may also qualify them for wrongful termination. For example, if someone with a disability requests a reasonable accommodation at work and they are fired, they may have been wrongfully terminated as retaliation for asserting their rights. In the case of an Indiana tennis coach who just settled a wrongful termination lawsuit against Ball State, her suit alleged that she was fired as retaliation for her sexual discrimination complaint. The university recently settled with her for $710,000.

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June 29, 2012

Kentucky Commission on Human Rights Protects Kentucky Workers from Discrimination

The Kentucky Commission on Human Rights (KCHR) was founded in 1960 to help stop discrimination of people based on their race or ethnicity. When the Kentucky Civil Rights Act was passed in 1966, KCHR took on the task of enforcing this law throughout the state. This commission is similar to the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces anti-discrimination laws that prohibit employers from discriminating against employees or potential employees based on age, gender, race, religion, ethnicity, or disability. KCHR reviews complaints filed by employees to determine if they have a valid claim of discrimination, sexual harassment, or wrongful termination under state and federal employment laws.

Not all employers are governed by the Kentucky Civil Rights Act. An employer must have at least eight full-time workers for twenty or more weeks in a year for the act to apply. Federal anti-discrimination laws also may not apply to those businesses that have a small number of full-time employees. An employee must file a claim with KCHR within 180 days of the incident to have his or her claim considered.

Once a complaint is received by KCHR, an enforcement officer is assigned to the case to act as a neutral party between the employee and employer and investigate the claim. A letter is sent to the employer who has 20 days to respond with its side of the story. The officer will conduct an investigation, talking to witnesses and reviewing documentation. If he feels that discrimination most likely occurred, the case will be referred to a staff attorney. If he does not think discrimination occurred, he will recommend that the complaint be dismissed for "no probable cause." Both sides will be encouraged to conciliate the case throughout the investigation, which is similar to settling a dispute out of court. If a conciliation agreement cannot be reached, the complaint will be heard by the KCHR and a decision will be made by the commission.

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June 12, 2012

How the Proposed Pregnant Workers Fairness Act Might Affect Female Kentucky Workers

The Pregnancy Discrimination Act (PDA) was added to the Civil Rights Act of 1964 to ensure that women were not discriminated against while pregnant. The act prohibits employers from refusing to hire a woman because she is pregnant; requires an employer to treat a pregnant woman the same as someone with a different temporary disability if she is unable to work temporarily; and requires an employer to provide the same type of health insurance at the same rate as other employees.

But there are some issues that the current act does not cover, which is why legislators introduced a new bill called the Pregnant Workers Fairness Act in May 2012. This act would essentially afford pregnant women the same protections and flexibility that those with disabilities are given. Under the current act, many employers are not accommodating to pregnant women because they don't have to be. The Americans with Disabilities Act (ADA) does not cover pregnant women because they are not actually disabled, and some companies take advantage of the difference. Many cases illustrate this discrepancy. Noreen Farrell, executive director of Equal Rights Advocates (ERA) gives this example: "We see that male firefighters who throw out their backs are given desk jobs, but women who are pregnant don't get them...There is an ability to provide accommodations, but employers don't want to."

Some women don't even request an accommodation because they are afraid their boss will force them to take their paid time off guaranteed by the Family Medical Leave Act (FMLA) too soon. If a woman takes off too soon, she may end up having to take unpaid time right before and after her delivery, something many families cannot afford. Others who have asked have been ignored or fired.

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June 5, 2012

Company Settles Kentucky Sexual Harassment Lawsuit

Known as the sponsor of the 2010 World Equestrian Games at the Kentucky Horse Park in Lexington, Alltech is an international company based in Nicholasville, Kentucky that produces animal feed, a beef product, coffee and alcoholic beverages. According to a lawsuit against the company that recently settled, it also allegedly produces a hostile work environment for female employees.

A woman who worked for Alltech for about four years filed a sexual harassment lawsuit against the company in May 2011. She had allegedly been harassed by her boss for the duration of her employment. The harassment ranged from sexual calls and emails to actually being locked in a conference room and inappropriately touched by him. She also claims that other employees were sexually harassed by her boss and others, stating "The culture and leadership at Alltech created an environment which fostered and condoned acts of sexual harassment."

The employee allegedly reported the situation to her boss's supervisor who told her not to worry about it because she was a strong woman and could take care of herself. In April 2011 she went to someone who worked outside the company - an auditor - and reported what had been happening. It was announced shortly thereafter that all emails over a year old would no longer be kept, and Alltech began an investigation into the sexual harassment allegations. Her boss resigned from the company, but was kept on for special projects at the beginning of May 2011.

Then on May 17, the company stated that any employee disputes would be handled through arbitration rather than through the courts. The employee was told this new policy would cover her complaints even though she had complained before the policy was put in place. The employee did not agree with this policy and she left the company and filed a lawsuit on May 20, 2011. Alltech tried to have the lawsuit dismissed based on their new arbitration policy, but the courts said the employee had not agreed to the policy and the case was allowed to proceed. To avoid having depositions taken of their executives and other employees, the company agreed to settle the lawsuit with the Kentucky worker for an undisclosed amount.

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May 30, 2012

Would the Paycheck Fairness Act be good for Female Kentucky Workers?

Equal pay for women has been an issue for many years. In 1963, the Equal Pay Act was enacted to ensure that men and women who did the same job at the same place of business and had the same experience would receive the same amount of pay. If a discrepancy in pay was found, the lower paying employee, presumably the woman, would receive an increase in pay, rather than the man's pay being reduced. The act allowed a woman to receive up to three years in back pay, or double that amount if it was discovered that she had been willfully discriminated against in her pay. The slogan for the act was "equal pay for equal work."

People disagree on whether or not the Equal Pay Act has been affective in ensuring women receive equal pay. Those who feel it has not been affective are promoting a new bill called the Paycheck Fairness Act. This new act adds on to the Equal Pay Act in the following ways:

Clarifies what reasons are acceptable for pay differences between men and women;

allows wages to be compared within certain geographical areas to determine fairness;

makes retaliating against an employee for investigating wage differences prohibited;

increases amount and type of damages that can be requested to both compensate the employee and penalize the employer;

includes small businesses in the law rather than requiring an employer to have a larger number of employees for the law to apply;

provides funds for training EEOC staff regarding pay disputes and for educating women on how to negotiate a salary;

requires federal contractors to provide employment data regarding hiring and salaries to help the Labor Department enforce the Equal Pay Act.

Proponents of the bill say all of these factors would add up to women receiving equal pay in the workplace because it would facilitate investigating the wage gap, protect those who raise the question of unequal pay, impose stiffer penalties for pay discrimination by employers and provide training to those who need it.

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