Category Archives: EEOC Developments

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Employers’ Diversity Data and Initiatives: Trade Secret or Open Book?

diversity
As many companies prepare to submit their annual “EEO-1” reports to the Equal Employment Opportunity Commission revealing their workforce statistics by race and gender for their U.S.-based employees by EEO job category, they face the increasing possibility that this information will become public. The decision last week by a federal district court vacating the administrative … Continue reading this entry

Employer Still Wins – Even Though Job Eliminated and Work from Home Request is Denied

eliminated
Dealing with leave issues is a familiar situation to human resources and employment law professionals – but there can be happy endings for employers, even when there is a sympathetic story involved, in addition to legal rights under Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). Recently, a federal appeals … Continue reading this entry

Two Department of Labor Agencies Announce Recent Developments: EEOC and OFCCP

OFCCP
OFCCP Audit Scheduling Letters Available Online – On Friday, February 22, 2019, the Office of Federal Contract Compliance Programs (OFCCP) announced that it is on schedule to post its next set of Corporate Scheduling Announcement Lists (CSALs) in the department’s FOIA Library next month (around mid- to late-March). As a reminder to our readers who … Continue reading this entry

What Is the EEOC up to in the Trump Administration?

EEOC
Despite having only three active members on its five-member Commission and having no General Counsel, the EEOC has remained quite busy in its strategic enforcement of federal workplace discrimination laws. You may remember that since the 2016 election, the EEOC has been operating with an acting Republican Chair and two Democratic Commissioners, with the remaining … Continue reading this entry

Is Being Overweight an Impairment?

EEOC
According to the Centers for Disease Control and Prevention (CDC), approximately 40 percent of U.S. adults are obese. The CDC uses the Body Mass Index (BMI) as the benchmark for obesity. BMI is a calculation based on height, weight and age. A BMI of 30 or more, applying the CDC standards, constitutes obesity. The question … Continue reading this entry

Parental Leave Benefits are Under Scrutiny – Be Sure Yours Don’t Discriminate!

Benefits
As the pool of talented employees tightens, more and more employers are offering perks and benefits to lure the best and the brightest into their ranks. Offering generous benefits for working parents is one of the particularly hot trends at the moment, with paid time off chief among them. Companies offer a range of paid … Continue reading this entry

Employee Need Not Give Severance Back Before Moving Forward

Severance
An employee signs a separation agreement and receives severance pay. The employee then has second thoughts, alleges she was coerced into signing the agreement, and wants to pursue her discrimination claims in court. Must the employee give back the severance before suing? On August 13, 2018, in McClellan v. Midwest Machining, the Sixth U.S. Circuit … Continue reading this entry

Employers Are Allowed to Choose Alternative Reasonable Accommodations if Effective

Accomodation
Employers generally understand their obligation to provide a reasonable accommodation to qualified individuals with disabilities as required under the Americans with Disabilities Act (ADA), as well as a number of state and local laws. A recent federal court case reminds employers that they may choose among reasonable accommodations and that as long as the selected … Continue reading this entry

What Now for Wellness?

Wellness
If you’re an employer trying to sponsor a wellness program for 2019, then the recent kerfuffle between the AARP and the Equal Employment Opportunity Commission (EEOC) affects you. The AARP has challenged the EEOC’s wellness program regulations on the grounds that the EEOC’s permissible wellness incentive of up to 30 percent of the cost of … Continue reading this entry

Sixth Circuit Confirms Title VII Protection for Transgender Status and Rejects Religious Belief Defense

cost
Earlier this month, we discussed the Second Circuit Court of Appeals’ decision concluding that Title VII prohibits discrimination on the basis of sexual orientation. Days later, the Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) issued a significant Title VII decision of its own when it concluded that a funeral home’s discharge … Continue reading this entry

You Signed A Consent Decree. So Now What?

Consent
Any employer who has been on the receiving end of a lawsuit filed by the EEOC or a similar state agency is aware that a standard requirement of settling this type of case is entering into a “consent decree.” A consent decree is a public record (which the agency will publicize on its website) that … Continue reading this entry

EEOC Scores Victory in Sexual Orientation Discrimination Lawsuit

EEOC
In recent years, the Equal Employment Opportunity Commission (EEOC) has increasingly focused its enforcement initiatives on prohibiting sexual orientation discrimination in the workplace. Now, the agency has a concrete victory to show for its efforts. A federal district court in Pittsburgh recently awarded more than $55,000, representing the statutory maximum in compensatory and punitive damages, … Continue reading this entry

Seventh Circuit Puts the Brakes on Never-ending Leave Under the ADA

Accomodation
Employers everywhere have been repeatedly warned not to automatically terminate employees who have exhausted their Family and Medical Leave Act (FMLA) leave. Instead, employers should first consider whether the employee might be entitled to some additional leave time as a reasonable accommodation under the Americans with Disabilities Act (ADA).  But the key question for employers … Continue reading this entry

The Trump Board is All Aboard: EEOC Still at the Station

EEOC
On September 25 the U.S. Senate confirmed the nomination of William Emanuel to the National Labor Relations Board (NLRB). This quickly followed the previous confirmation of Marvin Kaplan, thus bringing a full complement to the five-member panel. More significantly for employers, and consistent with long-standing precedent, the sitting president of the United States appoints three … Continue reading this entry

Keep Identifying Information out of Job Applications and Advertisements

Job
Certain job advertisements have drawn media scrutiny in recent weeks, including dozens of postings seeking applicants with a “neutral” accent for language teaching, sales, and IT support jobs. Another trend, in the opposite direction, is that some advertisements are specifically directed at foreign workers with H-1B visas, as one headline said “Java Developer – (H-1B … Continue reading this entry

Predictions And Practical Tips From EEOC Leadership

EEOC
Some of our attorneys attended an update meeting with the Equal Employment Opportunity Commission’s (EEOC) Miami leadership on June 16, 2017. Mike Farrell is the EEOC Miami District Director, and Bob Weisberg is the EEOC Regional Attorney who heads up litigation for the District.  Both spoke about recent trends that will be of interest to … Continue reading this entry

The EEOC Is Taking a Close Look at the Challenges Facing the ADEA

EEOC
The Equal Employment Opportunity Commission (EEOC) is paying close attention to the issue of age discrimination and to the many challenges facing the Age Discrimination in Employment Act (ADEA) 50 years after its enactment. On June 14, 2017, the EEOC launched its commemoration of the ADEA’s 50th Anniversary during its Commission meeting in Washington D.C. … Continue reading this entry

EEOC Orientation-Bias Guidance Stirs Controversy among Commentators

EEOC
The public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed workplace harassment guidance closed last week. The EEOC’s broad definition of sexual orientation bias drew attention from practitioners and advocacy groups alike. Amidst the uncertain legal landscape surrounding harassment based on sex, the EEOC’s proposed guidance takes a progressive stance on the … Continue reading this entry

Strategies for EEO Compliance: Focus on Leadership, Not Compliance

EEO Compliance
We observed last year that the legal industry is no more immune to the holdovers of sexism than any other profession. As we noted, in a step toward stemming this problem, the American Bar Association has passed a new model rule for attorney professional conduct, treating discriminatory actions by attorneys as ethical misconduct.  Rule changes, … Continue reading this entry

So – Are LGBTQ Rights Protected Under Federal Employment Law or Not?

LGBTQ
The most accurate answer to this question is, “it depends.” On March 10, 2017, the Eleventh Circuit Court of Appeals (covering Alabama, Georgia, and Florida) weighed in on LGBTQ protections – but the decision is not as clear as some of the headlines make it seem. For instance, some reports proclaimed that the court ruled … Continue reading this entry

How Will the EEOC Change Under the Trump Administration?

Ninth
Employers, human resource professionals, and employment attorneys all have the same burning question on their minds – what is the Trump administration’s Equal Employment Opportunity Commission (EEOC), with newly appointed Acting Chair Victoria A. Lipnic, going to do? An important part of this conversation is understanding the ways in which the EEOC is able to … Continue reading this entry

Federal Court Shoots Down EEOC Subpoena

EEOC Developments
Employers facing Equal Employment Opportunity Commission (EEOC) charge investigations may find themselves on the receiving end of overly broad, unduly burdensome and/or irrelevant information requests from the EEOC. If an employer refuses to comply with the requests, the EEOC has the authority to issue a subpoena.  However, the agency’s subpoena power is not without limitations. … Continue reading this entry

EEOC Issues New Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) recently issued proposed guidance crystallizing the agency’s expectation that employers be proactive in eliminating workplace harassment.  The Proposed Enforcement Guidance on Unlawful Harassment, which was published on January 10th, requires that employers implement programs to combat “known or obvious risks of harassment,” and states that a failure to do … Continue reading this entry

Mandatory Flu Vaccinations? Immunize Yourself Against Religious Discrimination Claims

Discrimination
You are an HR generalist at a 300-bed community hospital. Your boss has instructed you to make sure that all personnel files document that the employee received the hospital’s annual mandatory flu vaccination. However, you notice that seven employees still have not gotten their vaccinations, two weeks after the deadline. When you email them to … Continue reading this entry