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EEOC Issues New Guidance Related to Pregnancy Discrimination Act

Posted on Mon, Aug 25, 2014 @ 12:31 PM

by Jack B. HarrisonJack B. Harrison

Recently, the U.S. Equal Employment Opportunity Commission (EEOC) approved a new guidance on the Pregnancy Discrimination Act (PDA).  The EEOC adopted this new guidance by a 3-2 vote.  The new guidance represents the EEOC’s first significant update on the subject of discrimination against pregnant employees in over thirty years.  The new guidance, “Enforcement Guidance on Pregnancy Discrimination and Related Issues” is intended to replace the EEOC’s 1983 Compliance Manual chapter related to the issue of pregnancy discrimination.  Additionally, the new guidance addresses the application of the Americans with Disabilities Act (ADA) to pregnancy-related disabilities.

The PDA prohibits an employer from firing, refusing to hire, demoting, or taking any other adverse action against a woman if pregnancy, childbirth, or a related medical condition is a motivating factor in the adverse employment action.  Under the PDA, where pregnant women are able to work, they must be allowed to do so under the same terms and conditions as other employees.  In situations where pregnant women are not able to work, the PDA requires that they be given the same rights, leave privileges, and other benefits available to other similarly-situated employees.  In its new guidance, the EEOC underscores the position that the PDA’s treatment of discrimination based on pregnancy, childbirth, or a related medical condition is considered a form of sex discrimination.

As part of its guidance on this issue, the EEOC issued a list of what it considers to be “best practices” for employers.  Prudent employers should review their policies that may impact pregnant employees in light of the EEOC’s guidance and its list of “best practices.”  This list of “best practices” is as follows:

General

  • Develop, disseminate, and enforce a strong policy based on the requirements of the PDA and the ADA.

    Make sure the policy addresses the types of conduct that could constitute unlawful discrimination based on pregnancy, childbirth, and related medical conditions.

    Ensure that the policy provides multiple avenues of complaint.
  • Train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions.

    Review relevant federal, state, and local laws and regulations, including Title VII, as amended by the PDA, the ADA, as amended, the FMLA, as well as relevant employer policies.
  • Conduct employee surveys and review employment policies and practices to identify and correct any policies or practices that may disadvantage women affected by pregnancy, childbirth, or related medical conditions or that may perpetuate the effects of historical discrimination in the organization.
  • Respond to pregnancy discrimination complaints efficiently and effectively. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary to resolve the situation and prevent problems from arising in the future.
  • Protect applicants and employees from retaliation. Provide clear and credible assurances that if applicants or employees internally or externally report discrimination or provide information related to discrimination based on pregnancy, childbirth, or related medical conditions, the employer will protect them from retaliation. Ensure that these anti-retaliation measures are enforced.

Hiring, Promotion, and Other Employment Decisions

  • Focus on the applicant's or employee's qualifications for the job in question. Do not ask questions about the applicant's or employee's pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
  • Develop specific, job related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and for discrimination on the basis of pregnancy, childbirth, or related medical conditions. Make sure these standards are consistently applied when choosing among candidates.
  • Ensure that job openings, acting positions, and promotions are communicated to all eligible employees.
  • Make hiring, promotion, and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy, childbirth, or related medical conditions.
  • When reviewing and comparing applicants' or employees' work histories for hiring or promotional purposes, focus on work experience and accomplishments and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service.
  • Make sure employment decisions are well documented and, to the extent feasible, are explained to affected persons. Make sure managers maintain records for at least the statutorily required periods. See 29 C.F.R. § 1602.14.
  • Disclose information about fetal hazards to applicants and employees and accommodate resulting requests for reassignment if feasible.

Leave and Other Fringe Benefits

  • Leave related to pregnancy, childbirth, or related conditions can be limited to women affected by those conditions. Parental leave must be provided to similarly situated men and women on the same terms.
  • If there is a restrictive leave policy (such as restricted leave during a probationary period), evaluate whether it disproportionately impacts pregnant workers and, if so, whether it is necessary for business operations. Ensure that the policy notes that an employee may qualify for leave as a reasonable accommodation.
  • Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations.
  • Consult with employees who plan to take pregnancy and/or parental leave in order to determine how their job responsibilities will be handled in their absence.
  • Ensure that employees who are on leaves of absence due to pregnancy, childbirth, or related medical conditions have access to training, if desired, while out of the workplace.

Terms and Conditions of Employment

  • Monitor compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, childbirth, or related medical conditions. Ensure that compensation practices and performance appraisals are based on employees' actual job performance and not on stereotypes about these conditions.
  • Review any light duty policies. Ensure light duty policies are structured so as to provide pregnant employees access to light duty equal to that provided to people with similar limitations on their ability to work.
  • Temporarily reassign job duties that employees are unable to perform because of pregnancy or related medical conditions if feasible.
  • Protect against unlawful harassment. Adopt and disseminate a strong anti-harassment policy that incorporates information about pregnancy-related harassment; periodically train employees and managers on the policy's contents and procedures; incorporate into the policy and training information about harassment of breastfeeding employees; vigorously enforce the anti-harassment policy.
  • Develop the potential of employees, supervisors, and executives without regard to pregnancy, childbirth, or related medical conditions.
  • Provide training to all workers, including those affected by pregnancy or related medical conditions, so all have the information necessary to perform their jobs well.
  • Ensure that employees are given equal opportunity to participate in complex or high-profile work assignments that will enhance their skills and experience and help them ascend to upper-level positions.
  • Provide employees with equal access to workplace networks to facilitate the development of professional relationships and the exchange of ideas and information.

Reasonable Accommodation

  • Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.
  • State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
  • Make any written reasonable accommodation procedures an employer may have widely available to all employees, and periodically remind employees that the employer will provide reasonable accommodations to employees with disabilities who need them, absent undue hardship.
  • Train managers to recognize requests for reasonable accommodation, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.
  • Make sure that anyone designated to handle requests for reasonable accommodations knows that the definition of the term "disability" is broad and that employees requesting accommodations, including employees with pregnancy-related impairments, should not be required to submit more than reasonable documentation to establish that they have covered disabilities. Reasonable documentation means that the employer may require only the documentation needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. The focus of the process for determining an appropriate accommodation should be on an employee's work-related limitations and whether an accommodation could be provided, absent undue hardship, to assist the employee.
  • If a particular accommodation requested by an employee cannot be provided, explain why, and offer to discuss the possibility of providing an alternative accommodation.

Tags: EEOC

EEOC Signals a Continuing Assault on Employer Severance Agreements

Posted on Fri, Jun 27, 2014 @ 10:55 AM

by Jack B. HarrisonJack B. Harrison

In the past several months, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits confirming the agency’s intent to continue to aggressively challenge severance agreements negotiated between an employer and employee.

The first of these cases, EEOC v. CVS Pharmacy Inc. was filed in February 2014 in the United States District Court for the Northern District of Illinois.  In this first suit, the EEOC alleged that the defendant had violated Title VII by conditioning its offer of severance benefits on the employee signing a severance agreement that, according to the EEOC, “deters the filing of charges and interferes with employees’ ability to communicate voluntarily” with the EEOC.  According to the EEOC’s complaint, the offending provisions in the severance agreement included a requirement that the employee notify the company if he or she became part of an administrative investigation, a non-disparagement clause, a non-disclosure of confidential information clause, a release of all claims by the employee, and a covenant not to sue the company.  As should be obvious to most employers, many of these types of clauses are standard provisions in many severance agreements.

The EEOC filed its second suit challenging the provisions of a severance agreement in April 2014 in the United States District Court for the District of Colorado.  In this suit, EEOC v. CollegeAmerica Denver, the EEOC alleged that the severance agreement used by the defendant, a private college, chilled and interfered with the employee’s rights to pursue age discrimination claims under the Age Discrimination in Employment Act (ADEA).

In CollegeAmerica, the director of the Wyoming campus of CollegeAmerica, Debbi Potts, resigned from her position in July 2012.  In September 2012, Potts signed a separation agreement that included a provision that she would “refrain from personally (or through the use of any third-party) contacting any governmental or regulatory agency with the purpose of filing any complaint or grievance that shall bring harm to CollegeAmerica” and also included a non-disparagement provision.  Potts then filed a charge of discrimination against CollegeAmerica with the EEOC. 

During the course of the EEOC’s investigation of Potts’ claim, CollegeAmerica produced a form severance agreement that it had used for several years.  This form agreement included provisions under which an employee would release all claims alleging discrimination and/or claims arising under Title VII, would agree not to assist in pursuit of claims against the company, unless compelled by law, and would agree that no lawsuit or administrative action had been filed against the company in the employee’s name.  In its complaint filed in this case, the EEOC alleges that the severance agreements used by CollegeAmerica include “provisions that chill and deter the filing of charges of discrimination and may interfere with employees’ ability to communicate voluntarily with the EEOC . . . and interfere with employees’ protected right to file charges or participate in investigations or proceedings conducted by the Commission.”

Taken together, these two suits serve as a signal to employers that the EEOC plans to continue its review of and challenge to severance agreements that include provisions such as those outlined in these two cases.  Given that such provisions are standard in many severance agreements used by employers, it becomes important that prudent employers review their standard severance agreements to determine whether they will withstand a challenge by the EEOC.  The provisions in these agreements should be narrowly tailored to provide the maximum protection possible for the employer, while, at the same time, not intruding on the employee’s rights under Title VII and other discrimination statutes.

Tags: Severance Agreements, EEOC

Telecommuting | Required Reasonable Accommodation Under the ADA?

Posted on Tue, May 27, 2014 @ 08:39 AM

by Jack B. HarrisonJack B. Harrison

In what should be a decision of great importance for employers, the United States Court of Appeals for the Sixth Circuit issued a decision on April 22, 2014, holding that employers may be required under the Americans with Disabilities Act (“ADA”) to allow telecommuting as a “reasonable accommodation” for a disabled employee.  The Court of Appeals rendered this decision despite evidence presented by the employer that personal interaction with other employees and customers was an essential function of the position held by the employee.

In EEOC v. Ford Motor Company, the employee, Jane Harris was employed as a resale buyer for Ford.   In her position as a resale buyer, Harris purchased steel and resold it to entities that manufactured and supplied vehicle parts to Ford’s plants.  Ford took the position that the position of resale buyer was “highly interactive,” arguing that the interactions between resale buyers and those with whom they deal professionally should optimally occur face to face.

Throughout her career, Harris repeatedly had attendance issues.  In 2009, she requested that she be allowed to telecommute as an accommodation for her irritable bowel syndrome.  Ford investigated possible ways in which to accommodate the request, but ultimately rejected Harris’ request, concluding that her job required face to face interactions.  Ford concluded that if Harris was unable to be physically present for her work, then she did not meet the essential qualifications for the job.

Following the denial of her request, Harris sued Ford, with the EEOC ultimately pursuing the case on her behalf.  Ford then moved for summary judgment, arguing that face to face interactions were an essential function of the job of resale buyer.  Because Harris was unable to be physically present, Ford argued that she was not “otherwise qualified” for the position as required by the ADA.  The district court accepted Ford’s arguments and granted summary judgment.  In discussing whether telecommuting is a reasonable accommodation in the case of Harris, the district court stated, “in general, courts have found that working at home is rarely a reasonable accommodation.”

The EEOC then appealed the decision of the district court to the United States Court of Appeals for the Sixth Circuit.  On appeal, the Court of Appeals reversed the lower court decision.  Unlike the district court, the Court of Appeals did not defer to the employer’s conclusion that being physically present was an essential function of Harris’ position as resale buyer.  Rather, the Court of Appeals reviewed other factors, such as the employee’s own sense of how much of her job involved face to face interactions and how much took place via conference calls.  The Court of Appeals concluded that based on the entire record, it was error for the district court to conclude, as a matter of law, that Harris needed to be physically present at the office to perform her job as a resale buyer.

The Court of Appeals went even further by noting that prior decisions holding that being physically present in the workplace is an essential function of a particular position may well be based on antiquated notions of the “workplace.”  The Court of Appeals stated:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.  Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. Hoskins, 227 F.3d at 726. Accordingly, we consider several factors to guide our inquiry, including written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions. See 29 C.F.R. § 1630.2(n)(2).

Employers, particularly those within the jurisdiction of the Sixth Circuit, should find this decision troubling, particularly given the refusal of the Court of Appeals to defer to the employer's business judgment in managing its workforce.  In response to this decision, prudent employers should carefully review their job descriptions to insure that where the employer sees physical presence as an essential function of a position, such a requirement is clearly delineated in the job description.  Additionally, when an employer has a telecommuting policy, those policies should be reviewed to insure that they are narrowly drafted to specifically define when such an employment arrangement is allowed.

Tags: Americans with Disabilities Act, Sixth Circuit Court of Appeals, EEOC

New Guidance Issued by the EEOC on Religious Accommodation

Posted on Tue, Mar 25, 2014 @ 08:22 AM

by Jack B. HarrisonJack B. Harrison

As employers have become increasingly aware, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on religion, including religious practices.  The result of this prohibition against religious discrimination is that employers are required to reasonably accommodate employees' sincerely held religious practices except in cases where such an accommodation would impose an undue burden on the employer.  Often, this results in an employer being forced to make exceptions to their existing policies and rules in the workplace.

Consistent with Title VII, the United States Equal Employment Opportunity Commission ("EEOC") recently provided employers with new guidance regarding religious workplace accommodations.  Religious Garb and Grooming in the Workplace: Rights and Responsibilities, issued by the EEOC, provides guidance to employers in accommodating employees religious requests and practices, including clothing, religious dress, head coverings, hair styles, and facial hair.  The document contains twenty-one case-specific examples of religious accommodation to guide employers.  According to the EEOC guidance:

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

In the document, the EEOC points out that the number of religious discrimination charges filed against employers has nearly doubled since 2007.  As a result, the EEOC reminds employers that the definition of "religion" has been interpreted very broadly in the Title VII context, including religious beliefs that are "new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others" or beliefs that are based on some non-theistic moral or ethical code or system.  The EEOC points out that "[b]ecause this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases."

Some of the case specific examples provided by the EEOC in the document include the following:

What if an employer questions whether the applicant's or employee's asserted religious practice is sincerely held?

Title VII's accommodation requirement only applies to religious beliefs that are "sincerely held." However, just because an individual's religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume that his or her religious observance is not sincere. Moreover, an individual's religious beliefs - or degree of adherence - may change over time, yet may nevertheless be sincerely held. Therefore, like the "religious" nature of a belief or practice, the "sincerity" of an employee's stated religious belief is usually not in dispute in religious discrimination cases. However, if an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request.

EXAMPLE 1 | New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.

EXAMPLE 2 | Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

Can an employer exclude someone from a position because of discriminatory customer preference?

No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

EXAMPLE 3 | Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions.

Prudent employers should carefully review this document from the EEOC, as well as their existing policies and practices to insure that they are consistent with the EEOC guidance.  Additionally, many of the case specific examples provided by the EEOC should be incorporated in workplace training to insure that all employees, particularly managers and supervisors, understand what behavior is prohibited under Title VII. 

Tags: Religious Accommodation, Religious Discrimination, Civil Rights Act, EEOC

Genetic Discrimination Lawsuit Filed by EEOC

Posted on Thu, Jun 06, 2013 @ 02:37 PM

by Jack B. Harrison Jack B. Harrison

The Genetic Information Nondiscrimination Act (GINA) was passed into law in 2008 and went into effect on November 21, 2009.  Under GINA, it became unlawful for employers to request, require or purchase genetic information relating to an applicant for employment and/or to discriminate against applicants or employees because of genetic information.  Under GINA, employers are not only prohibited from asking for genetic information from job applicants and employees, but also are prohibited from requesting genetic information related to the applicant’s or employee’s family members.

On May 16, 2013, the EEOC filed its first class action lawsuit in the United States District Court for the Western District of New York seeking to enforce GINA against an employer.  According to the EEOC press release regarding the filing, in Equal Employment Opportunity Commission v. Founders Pavilion, the EEOC asserts that Founders Pavilion, a 120-bed skilled nursing and rehabilitation facility in Corning, New York, violated GINA.  The specific violations identified in the EEOC Complaint filed in the case are that Founders Pavilion conducted a post-offer, pre-employment medical exam that included questions about the applicant’s family medical history and required employees to repeat this exam annually.  Further, the EEOC’s Complaint contained allegations that Founders Pavilion also had violated Title VII of the Civil Rights Act and the Americans with Disabilities Act by refusing to hire and/or firing women because they were pregnant or had perceived disabilities.

In addressing the lawsuit, Elizabeth Grossman, the regional attorney in the EEOC's New York District Office, stated: "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.  Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."  According to the EEOC, genetic discrimination falls under one of the agency’s national priorities identified in the EEOC’s Strategic Enforcement Plan (“SEP”), in that the plan called for the agency to address “emerging and developing issues in equal employment law.”

The filing of this lawsuit by the EEOC should serve as a reminder to prudent employers that they should review their policies and procedures to insure that they are compliant with GINA.  Employers’ policies and procedures should reflect the reality that, under GINA, they may not seek information regarding medical history at any time during the hiring process or employment.  This prohibition includes information that might be sought by a third-party provider or examiner on behalf of the employer.

 

Tags: EEOC, GINA

EEOC Issues Broad Strategic Enforcement Plan for 2013-2016

Posted on Mon, Jan 14, 2013 @ 11:50 AM

by Jack B. HarrisonJack B. Harrison

On December 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved a Strategic Enforcement Plan for 2013-2016 (SEP).  Three of the four sitting Commissioners voted for the SEP.  These were Chair Jacqueline Berrien (D), Commissioner Chai Feldblum (D), and Commissioner Victoria Lipnic (R).  Voting against the SEP was Commissioner Constance Barker (R).

The final version of the SEP is a revised version of the draft SEP the EEOC issued on September 4, 2012.  The SEP focuses on the six high-priority target areas outlined below.  Additionally, the SEP makes it clear that the EEOC will continue its focus on increased systemic litigation and private enforcement actions.

The six items highlighted as national priorities in the SEP are:

  1. Eliminating Barriers in Recruitment and Hiring.  According to the SEP, the EEOC will focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities.

  2. Protecting Immigrant, Migrant and Other Vulnerable Workers.  According to the SEP, the EEOC will focus on disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

  3. Addressing Emerging and Developing Issues.  According to the SEP, the EEOC will focus on emerging issues in equal employment law.  These emerging issues will include: (1) coverage, reasonable accommodation, qualification standards, undue hardship and direct threat under the ADA; (2) accommodating pregnancy-related limitations; and (3) coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.

  4. Enforcing Equal Pay Laws.  According to the SEP, the EEOC will focus on compensation systems and practices that discriminate based on gender.

  5. Preserving Access to the Legal System.  According to the SEP, the EEOC will focus on policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.

  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  According to the SEP, the EEOC will focus on the pursuit of systemic investigations and litigation and on conducting a targeted outreach campaign to deter harassment in the workplace.  The EEOC is currently pursuing 62 systemic cases, roughly 20 percent of its active litigation.  The EEOC also claims to have resolved 240 systemic investigations in FY 2012, a 45 percent increase from FY 2010.  Additionally, the EEOC states that it secured $36.2 million through conciliation and pre-determination settlements in FY 2012, an amount four times greater than in FY 2011.

The SEP also encourages greater cooperation and collaboration between the agency and private attorneys in seeking to enforce federal anti-discrimination laws.  This move will allow EEOC staff to share information with individual plaintiffs and their attorneys in order "to facilitate swift enforcement and early resolution of charges."  This increased cooperation and collaboration will likely increase private enforcement litigation, which often is more costly and time consuming to employers than government enforcement.

The SEP should provide prudent employers better guidance into the EEOC’s priorities and goals over the next several years.  The guidance offered by the SEP should be used by employers and their counsel in reviewing compliance systems and eliminating any corporate weaknesses in the identified target areas. At the same time, employers must remain aware of the increased chance of encountering a systemic lawsuit or private enforcement action.

Tags: Stategic Enforement Plan, EEOC, Equal Employment Opportunity Commission

Employee Wellness Programs: Issues to Consider in Developing

Posted on Mon, Jul 30, 2012 @ 11:48 AM

by Jack B. HarrisonJack B. Harrison

When employers consider putting workplace wellness programs in place, there are legal issues to be considered by the employer.  No doubt exists that workplace wellness programs can be a benefit both to employers and employees.  They can be of benefit to employees by encouraging and assisting the employees in developing healthy lifestyles.  They can be of benefit to the employer by reducing health care costs and by reducing or addressing employee issues that impact workplace performance and productivity.  (Milken Institute)

Among the several potential legal pitfalls that employers may face when they offer wellness programs to their employees are those that involve the employer’s receipt of an employee’s private health and genetic information and/or potential discrimination.  Employers need to be aware of these legal issues as they develop and maintain wellness programs.

The Genetic Information Non-Disclosure Act (GINA):

GINA was passed by Congress as a means of protecting the privacy of genetic information that might be derived from medical records or family medical histories.  The primary underlying reason for GINA is the fear that such information might be used to discriminate against individuals in some manner. 

In the context of wellness programs, particularly those that are incentive based, the EEOC has expressed concern about situations where an employer or health plan demands that an employee and/or their family members complete a health risk assessment (HRA) in exchange for a discount on premiums or some other incentive.  The focus of the EEOC’s concern has been that the employer or health plan might make use of the information gathered to deny certain coverage or to disallow the incentives built in the wellness program.

Confidentiality of Health Information:

Federal law (HIPAA, the ADA and GINA) requires the protection of the confidentiality of health information.  When private health information is gathered as part of an employee wellness program, the employer must have in place policies and procedures that protect this information.   In such situations, employers must make sure that the information is treated as confidential and kept separate from employees’ personnel files, so that no accusation can be made that the information was used as a basis for employment or benefits decisions.

Disability discrimination laws:

Additionally, an employer creating a wellness program should make sure that such programs are available to all employees in some manner and that no employee is excluded from such programs simply because of some disability.  Where an employee is unable to participate in a wellness program due to a disability, an employer should consider how it can provide some reasonable accommodation for that employee to be able to receive the benefits of the wellness program.

Wellness programs can be a great benefit for both employees and employers.  However, a prudent employer should continually review its policies and procedures related to the wellness program with an eye toward avoiding any potential legal snags.

Tags: Employee Wellness Programs, HIPAA, ADA, Disability Discrimination, EEOC, GINA

The EEOC's 5 Recommendations on Avoiding Liability When Utilizing Criminal Background Checks

Posted on Wed, Jun 06, 2012 @ 09:01 AM

Susan R. Bellby Susan R. Bell

If you are an employer, you, like most other employers, probably ask job applicants whether they have had any criminal convictions.  Most employers view a history of criminal conduct just as relevant as, say, a person’s education or job history.  So, is there any legal problem asking about criminal convictions? 

Maybe, according to the Equal Employment Opportunity Commission (EEOC).  On April 25, 2012, the EEOC issued new enforcement guidance regarding the use of arrest or conviction records in employment decisions.  The EEOC’s new guidelines are rooted in the position that such use of criminal records has a disparate impact on certain minorities.  In other words, the EEOC finds that a seemingly neutral criminal background check policy, when applied to all job applicants and/or employees, will disproportionately screen out individuals based upon race or national origin, thus having a disproportionate effect on some minorities.  In the EEOC’s view, this disparate impact may violate Title VII.

The EEOC notes that arrest and incarceration rates are particularly high for African American and Hispanic men, and cites statistical studies predicting that 1 in 17 white men will likely serve time in prison during their lifetime, while the numbers are 1 in 6 for Hispanic men, and 1 in 3 for African American men.  Although not expressly discussed, the EEOC’s Guidance is based almost exclusively on statistical evidence regarding minority males.  Other studies – not discussed by the EEOC -- indicate that while arrest and incarceration rates for minority females are higher than for white females, the rates are not nearly as high or disparate as those reported for minority men.  Perhaps the EEOC’s silence on minority females indicates a belief that a minority female may find making a disparate impact claim more difficult.

In order to avoid liability under Title VII, the EEOC recommends that employers conducting criminal background checks take the following steps:

1.     Treat all applicants with comparable criminal records equally

Any policy requiring the exclusion of individuals based upon past criminal conduct must be applied equally without consideration of race or ethnic origin.  Be consistent.

2.     Avoid blanket no-hire policies

Policies that eliminate all applicants with any criminal conviction are overbroad and may result in a charge alleging a violation of Title VII.  Employers should weigh the following: (a) the nature and gravity of the offense; (b) the amount of time that has passed since the offense or completion of the sentence; and (c) the nature of the job held or sought. 

In addition, the EEOC encourages employers to conduct an individualized assessment to include (a) informing the individual that he may be excluded based upon his criminal history; (b) providing an opportunity for the individual to demonstrate that exclusion should not apply under his particular circumstances; and (c) considering whether the individual’s additional information demonstrates that an exception to the policy is appropriate.

3.     Ensure that the specific offense used to bar consideration for employment is job
         related and consistent with business necessity.

Narrowly tailor the policy to identify criminal conduct with a clear nexus to the job position at issue, and document the justification for the policy and procedures.

4.    Avoid the use of arrest records when making employment decisions.

Because an individual is presumed innocent until proven guilty, an arrest record alone does not prove that criminal conduct has occurred.  Accordingly, an exclusion based on an arrest record alone “is not job related and consistent with business necessity.” Nevertheless, the EEOC recognizes that an arrest record “may, in some circumstances, trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action,” and again encourages an individualized assessment.

5.     Validate the criminal conduct exclusion for each relevant position. 

The EEOC instructs employers to validate any criminal conduct exclusion for a particular position.  Notably, however, the EEOC recognizes that currently, “[a]lthough there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for validating some employment exclusions, such studies are rare. . . .” Where the use of formal validation is not possible or readily available, employers are encouraged to use selection/exclusion procedures that are as job related as possible and that will eliminate disparate impact.


Of particular note is the EEOC’s position that because Title VII preempts state and local laws, the fact that an employer adopts a particular policy in order to comply with a state or local law is no defense, should the EEOC find the policy is neither job related nor consistent with business necessity.  However, the adoption of a policy based upon a federal law or regulation is a defense to Title VII liability, as long as the employer has not exceeded the mandates of that law or regulation.

So, can an employer avoid potential liability by simply not conducting criminal background checks?  While forgoing such investigations would avoid scrutiny of this aspect of the employer’s hiring practices under Title VII, the employer would increase its risk of hiring persons who may commit crimes against the employer, other employees, or customers, and thereby expose the employer to claims from the crime victims.  The better course: perform a criminal background check that is reasonable, job related, and consistent.

Tags: Criminal Background Checks, EEOC, Title VII

EEOC Rules: Transgendered Employees Protected From Workplace Discrimination

Posted on Fri, May 04, 2012 @ 10:23 AM

Jack B. HarrisonBy Jack B. Harrison

The Equal Employment Opportunity Commission (EEOC) recently ruled that the Civil Rights Act protects transgendered employees from discrimination in the workplace.  In the specific case, the EEOC said that Mia Macy, a transgendered woman, could proceed with a charge of gender identity discrimination against the Bureau of Alcohol, Tobacco, Firearms and Explosives. Macy claims that she was not hired by the Bureau after she announced she was transitioning from male to female.

This decision provides several takeaways that diligent employers should keep in mind when making employment decisions:

Discrimination based on gender identity equals sex discrimination—

The EEOC concluded that Title VII prohibits not just discrimination based on sex, but also on the basis of gender—for example—on the “cultural and social aspects associated with masculinity and femininity.”  Consequently, employment decisions based on the transgender status of an employee could constitute gender discrimination.

The ruling represents a change of position for the EEOC in addressing discrimination claims brought by transgendered employees—

The EEOC had previously deemed claims of discrimination based on gender identity, or the transgender status of an individual, as not being actionable under Title VII.  However, in the Macy decision, the EEOC has made clear that its decision in Macy was intended to expressly overturn those prior decisions.

Employers may need to revise workplace policies—

The Macy decision should serve as a warning to those employers who are not located in jurisdictions where gender identity was already protected prior to the Macy decision.  Those employers should give consideration as to whether their company policies and training programs should be revised to address the new risk recognized by the EEOC.

The decision affects both public and private employers—

While the Macy case involved alleged discrimination in the government sector, the EEOC’s decision was not limited solely to the public sector.  It appears that the EEOC’s decision is equally applicable to the private sector.  As a result, private sector employers should be aware that the EEOC will consider discrimination against transgender employees or applicants to be prohibited by Title VII.

Tags: Transgendered Employees, EEOC, Equal Employment Opportunity Commission

EEOC Issues Final ADEA Rule

Posted on Mon, Apr 23, 2012 @ 02:45 PM

 

Susan R. Bellby Susan R. Bell

On March 30, 2012, and consistent with the Supreme Court’s decision in Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), the EEOC issued its final ruling setting forth the “reasonable factors other than age” (RFOA) affirmative defense available to employers in disparate impact cases under the Age Discrimination in Employment Act (ADEA).  The rule will take effect April 30, 2012.

“Disparate impact” discrimination is the one form of discrimination where proof of a specific intent to discriminate is not required.  Consequently disparate impact analysis is used, for example, to challenge employer policies (e.g., a height requirement) that appears neutral on its face but has a disparate impact on certain protected groups (e.g., women could be disproportionately affected by a height requirement).

Employers have the burden of both production (i.e., presenting the necessary evidence) and persuasion (i.e., the burden of proving the defense) when presenting a RFOA defense in a disparate impact case.  The EEOC notes that the standard of proof for a RFOA defense is higher than a rational-basis standard.  According to the EEOC, equating the RFOA defense with a rational-basis standard would wrongly merge ADEA disparate-treatment and disparate-impact standards of proof: “If an employer attempting to establish the RFOA defense were only required to show that it had acted rationally, then the employer would merely be required to show that it had not engaged in intentional age discrimination.”

The final rule defines a RFOA as a factor that “is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.”  The decision as to whether an employer has made an employment decision based on a non-age factor “must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.” The rule further provides a non-exhaustive list of factors to be considered in determining whether an employment practice is based on a RFOA, including: 

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

Notably, this list consists of factors, not essential elements.  These factors merely describe the most common characteristics of what the EEOC considers to be reasonable practices. Accordingly, the defense is not automatically established simply because one or more of the factors have been proven. In addition, there could even be a situation in which the defense is satisfied absent any of the factors. 

In order to present a successful RFOA defense, a prudent employer must take reasonable steps to ensure that its supervisors are not given unbridled discretion to make policy-based decisions based on subjective criteria, which could allow supervisors’ biases and stereotypes to affect the decision-making process.  Rather, employers should make sure that its supervisors are properly trained and that the supervisors are exercising their discretion in a way that does not violate the ADEA.  For example, when asking supervisors to evaluate employees or applicants based on subjective criteria that are subject to age-based stereotypes, such as productivity, flexibility, willingness to learn, and technological skills, a prudent employer would instruct its supervisors to look specifically at objective measures of those specific skills that are actually used on the job.   

You can find the rule here:

https://www.federalregister.gov/articles/2012/03/30/2012-5896/disparate-impact-and-reasonable-factors-other-than-age-under-the-age-discrimination-in-employment

Tags: EEOC, Disparate Impact, RFOA, ADEA, RFOA Defense