On January 28, 2013, a federal court in Ohio handed the EEOC a loss when it ruled in favor of several employers for their use of a third party to perform credit checks on candidates for hire. The EEOC claimed that the employers’ use of credit histories in making hiring decisions violates certain provisions of Title VII because the practice has a disproportionate impact on minority applicants. Continue reading this entry
Category Archives: EEOC Developments
When Does an Employer Have to Hand Over Witness Statements to a Union?
Posted in EEOC Developments; Labor RelationsLast week we reported that the NLRB reversed 50 years of precedent in a manner favoring unions. As it marched toward the end of 2012, the Board continued this paradigm shift with another recent decision that moves away from long-standing rules governing labor relations and provides more leverage to unions. Continue reading this entry
Yes, Virginia, You Can Display Santa Claus at Work
Posted in EEOC DevelopmentsAs workplaces become more diverse, many companies are concerned with potential liability during the holiday season. Everyone is familiar with the annual list of “dos and don’ts” for corporate holiday parties designed to help employers avoid potential liability for inappropriate conduct at these events (click here for a refresher course), but there are other potential employment law issues that may arise during this season. For example, what guidelines should an employer use to address holiday decorations put up by employees, or by the employer itself? What are an employer’s obligations to grant time off to employees to observe religious holidays? Continue reading this entry
EEOC Loses Its Argument for an Overly Liberal Interpretation of “Inquiry” Under the ADA
Posted in EEOC DevelopmentsIf an employer asks “what’s going on?” and the employee responds by disclosing medical information, is that medical information subject to the confidentiality provisions of the ADA? The Seventh Circuit recently answered “No” to this question in EEOC v. Thrivent Financial for Lutherans, and rejected the EEOC’s broad interpretation of the ADA. Foley represented the winning employer, Thrivent Financial for Lutherans (Thrivent), in this dispute against the EEOC. Continue reading this entry
Record Enforcement Year for EEOC
Posted in EEOC DevelopmentsThe EEOC recently disclosed that it secured more than $365.4 million dollars from private employers the past year. The amount is a record in monetary benefits collected, and represents a $700,000 increase over last year. About 10 percent of the total monetary benefits, $36.2 million, resulted from settlements or conciliation agreements in connection with alleged systemic employment violations (a primary focus of the EEOC). That figure is four times the amount recovered during the 2011 fiscal year. Further, the EEOC does not appear to be backing away from its aggressive investigative practices and broad interpretations of the federal anti-discrimination laws, nor can employers expect such a change with the re-election of President Obama. Continue reading this entry
EEOC Issues Guidance on Employer Response to Victims of Domestic Violence, Sexual Assault, or Stalking
Posted in EEOC DevelopmentsTwo weeks ago, a spa in southeastern Wisconsin made national news when the estranged husband of one of the spa’s employees shot and killed his wife and two other employees, and injured several others, before committing suicide. Given the security risks and safety concerns associated with employing victims of domestic violence and stalking, what can an employer do to prevent similar incidents in the workplace? Continue reading this entry
New EEOC Rule Provides Guidance on “Reasonable Factors Other Than Age” Defense to ADEA Claims
Posted in Discrimination, Retaliation and Harassment; EEOC DevelopmentsIn the April 12, 2010 edition of Legal News: Employment Law Update, we analyzed a proposed EEOC rule addressing the “reasonable factors other than age” (RFOA) defense to age discrimination claims. This proposed rule has now been issued as a final regulation and is currently in effect.Continue reading this entry
District Judge Affirms EEOC’s “Sue First, Ask Questions Later” Litigation Authority
Posted in EEOC DevelopmentsThe EEOC claims that it can sue an employer and then use discovery to identify, investigate, and seek relief for individuals that it never heard of before it filed the lawsuit, which has been commonly referred to as the EEOC’s sue first, ask questions later litigation strategy. Accordingly, an employer may find itself defending a class action against the EEOC when it was under the impression that the alleged claims were limited to a few identified individuals. This strategy has been controversial and, to the delight of employers, has been rejected by several courts, most recently by the Eighth Circuit Court or Appeals in EEOC v. CRST Van Expedited Inc., holding that such a strategy does not satisfy the agency’s mandatory pre-suit requirements. Before filing suit, the EEOC must receive a charge alleging unlawful discrimination or retaliation, it must conduct an investigation, issue a reasonable cause determination, and then engage in conciliation with the employer (informal settlement discussions). In sum, the EEOC cannot comply with its pre-suit requirements if it seeks relief for individuals it only learned of during litigation because the agency could not have investigated their claims, issued a determination, and attempted to conciliate their claims.Continue reading this entry
EEOC Issues Updated Guidance on Consideration of Arrest and Conviction Records
Posted in EEOC DevelopmentsOn April 25, 2012, the EEOC published updated enforcement guidance on the use of arrest and conviction records when making employment decisions. Although the EEOC’s guidance does not prohibit employers from considering criminal records as part of the decision-making process, it does set forth the EEOC’s recommended best practices for employers to follow when creating a background screening process that includes a criminal records check. In addition, the EEOC’s guidance emphasizes that an employer’s criminal record screening process should be “job related and consistent with business necessity” and states that employers should conduct an individualized assessment of each applicant or employee’s circumstances before disqualifying the individual for employment based on past criminal conduct.Continue reading this entry
EEOC Recognizes Transgender Discrimination Claims
Posted in EEOC DevelopmentsDoes federal law prohibit discrimination against transgender employees? Some federal courts have ruled that the answer is no. However, an EEOC decision issued in April 2012 has found that such a prohibition exists.Continue reading this entry
EEOC Issues Final GINA Recordkeeping Rules
Posted in EEOC DevelopmentsIn our January 16, 2012 edition of Legal News: Employment Law Update, we discussed companies’ numerous obligations with respect to employee recordkeeping. On February 12, 2012, the EEOC added another set of requirements into the mix, issuing its final recordkeeping rules for the Genetic Information Non Discrimination Act (GINA).Continue reading this entry
Ruling Confirms EEOC’s Authority to Seek Court Supervision for Settlements
Posted in EEOC DevelopmentsDennis Anderson was terminated for violating his employer’s policy requiring employees to report their use of prescription drugs, even legal ones, that could cause dizziness or otherwise impair employees. The EEOC alleged that under the drug policy, Product Fabricators made unlawful medical inquiries of employees, failed to keep employees’ medical information confidential, and discharged the claimant because of an unlawful application of the drug policy when the claimant reported an injury while working under the influence of legal prescription drugs.Continue reading this entry
EEOC Announces Enforcement Statistics and Priorities
Posted in EEOC DevelopmentsLast week, the EEOC released final statistics for the fiscal year ended September 30, 2011 and has issued a draft strategic plan that highlights a particular emphasis on pursuing systemic bias cases. Employers can take note of emerging trends regarding EEOC workplace enforcement efforts from these announcements.
Careful Maintenance of Employee Medical Records May Help Avoid Needless Litigation
Posted in Americans With Disabilities Act; EEOC DevelopmentsEmployers often find themselves in possession of medical information about their employees, particularly when making determinations regarding leaves of absence, disability accommodations, or when implementing employee wellness programs. Recent developments in federal law, however, and guidance from the EEOC have taught that the manner in which this information is maintained can be a ticking litigation time bomb if not diffused correctly.
EEOC Opines That Personal and Occupational Health Information Should Be Maintained Separately
Posted in EEOC DevelopmentsOn May 31, 2011, the EEOC issued an opinion letter that essentially opined that employers should not maintain personal health information (i.e., information obtained in the course of diagnosis and treatment) and occupational health information (i.e., appropriate medical information concerning an employee’s ability to work) in a single paper or electronic medical record (EMR).
The EEOC stated that an employer’s right to access personal health information regarding applicants and employees and allow access to occupational health information by individuals providing health services unrelated to employment is strictly limited under the ADA and the Genetic Information Non Discrimination Act (GINA). Among other things, the ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and treated as a confidential medical record. Similarly, if an employer has genetic information obtained under one of GINA’s limited exceptions, it also must keep this information separate from personnel files and treat it as a confidential record.