With decentralized workplace laws creating a web of intersecting federal, state and local requirements, managing workplace issues has never been more complex. Moreover, legislative and regulatory developments could contribute even more to the complexity in 2008.

One area of federal concern is caregiving. While the traditional concept involves child care, these responsibilities increasingly include caring for the elderly and the disabled--responsibilities that continue to fall predominantly to women.

State and federal recognition of this trend has resulted in a proliferation of laws charging employers with balancing employee work obligations and family responsibilities.

In perhaps the most significant development at the federal level, the U.S. Equal Employment Opportunity Commission released a comprehensive statement of its position in May 2007--in an enforcement guidance memorandum of legal obligations to workers with caregiving responsibilities.

The EEOC stated its view that the dichotomy between fulfilling caregiving responsibilities and professional obligations in the workplace often result in a "maternal wall." This "wall" limits employment opportunities for some workers because of the perception that a caregiver is more committed to caregiving than to the job.

The EEOC also recognized the potential for discrimination against caregiving males--based on the perception that men are poorly suited to caregiving. The result has been the denial of parental leave and other benefits routinely given to women.

The memorandum made it clear that actions premised upon such stereotypes violate federal anti-discrimination laws, even when an employer acts upon these stereotypes unconsciously, or with perceived fair treatment.

The ramifications of the EEOC's position for employers are endless. In fact, there exists a very real possibility in 2008 of increased class-action litigation premised upon both disparate impact and disparate treatment theories of proof.

Similarly, employers should be aware of the potential for an increase in the number of retaliation claims, since the new standards for retaliation--based on the U.S. Supreme Court's 2006 "plaintiff-friendly" ruling in Burlington Northern vs. White--give workers a cause of action whenever a reasonable person would find an employment action materially adverse.

For example, schedule changes that might mean little to one employee could have an enormous impact on an employee with caregiving responsibilities.

What's more, election-year politics in 2008 are apt to set in motion the passage, and enactment, of more federal measures aimed at regulating the workplace.

The ultimate resolution of many of these issues, however, is far from predictable, given the divergent views within Congress.

The increasing role of employer advocates and employee interest groups in formulating legislative policy is also a factor. These competing interests are most evident in anti-discrimination law.

A few key pending measures are:

o The Ledbetter Fair Pay Act, which would legislatively reverse the Supreme Court's five-to-four ruling earlier this year in Ledbetter vs. Goodyear Tire Rubber Company.

The measure would effectively eliminate the statute of limitations from any type of Title VII claims linked to compensation. It would restart the "clock" each time an individual receives some form of compensation that arguably reflects a discriminatory payroll decision.

o The proposed Employment Nondiscrimination Act has generated substantial agreement within the U.S. Congress that the bill should extend Title VII's protections to an employee's sexual orientation. There is also disagreement as to whether Title VII should extend to gender identity issues.

As these concerns percolate at the federal level, employers will be subject to a patchwork quilt of state and local anti-discrimination measures related to sexual orientation and gender identity.

o Caps at risk? Finally, and perhaps most significant to employers, is talk by some Democrats of introducing a bill to repeal existing caps on punitive damages and compensatory damages--currently set at $300,000 for large employers. The caps exist in the Civil Rights Act of 1991 to curb an employer's potential liability in workplace bias lawsuits.

And so, while 2007 was relatively quiet in terms of federal legislation coming to fruition, the stage is set for potential changes that could dramatically affect workplace laws in 2008.

Special Reports /

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