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Category Archives: EEO

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Sixth Circuit summarily rejects EEOC expert in Title VII challenge to credit history checks

Posted in EEO, Workplace Privacy

In a harsh rebuke of the EEOC’s method of attempting to prove that Kaplan Higher Education Corp.’s consideration of credit history for hiring in select positions was discriminatory, the Sixth Circuit, only three weeks after oral argument, issued a decision upholding the federal district court’s order excluding the EEOC’s expert opinion from evidence and dismissing the EEOC’s case.  The first sentence of the court’s opinion pretty much tells the EEOC all it needs to know: “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” Indeed, the EEOC alleged …


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Join us in Cleveland on April 29 for our Employment Relations Seminar: Keeping Your Workplace Healthy, Wealthy and Wise

Posted in EEO, Employee Benefits/ERISA, Events, Other Articles, Workers' Compensation

Join Porter Wright’s Employment Group for our Spring Employment Relations Seminar -Keeping Your Workforce Healthy, Wealthy and Wise – on Tuesday, April 29, 2014 in Cleveland.

Topics include:

Keeping Pace: Learn the Latest in Employment Law presented by Tracey L. Turnbull

De-Stress: Effectively Managing Mental Stress Claims in Workers’ Compensation Cases presented by Fred J. Pompeani

Shaping Up: Getting Your Health Care Reform Plan and Your Workforce in Shape for 2015 presented by Ann M. Caresani

Making Peace: Resolving Workplace Conflict Through An Alternative Dispute Resolution Program presented by Margaret M. Koesel

This program has been submitted for 3.0 hours …


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Ohio court says sexual orientation discrimination is not conduct “because of sex” under Ohio law and punts issue to the Legislature

Posted in EEO

In Burns v. The Ohio State University, an Ohio appeals court refused to recognize sexual orientation discrimination and harassment as prohibited “sex” discrimination under Ohio law, punting the issue once again to the Ohio legislature.

Background Facts 

Colby Burns was a resident of veterinary clinical sciences at the College of Veterinary Medicine at The Ohio State University. Burns worked under Dr. Stephen Birchard, an associate professor of veterinary clinical sciences. During the summer of 2008, Dr. Birchard learned Burns is a homosexual and allegedly began treating Burns differently than other students. Burns claimed Dr. Birchard excluded her from social …


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EEOC issues guidance on religious garb and grooming in the workplace

Posted in EEO

Last week, the EEOC issued guidance on religious garb and grooming in the workplace: a Q&A document and a fact sheet on the topic.

Highlights from the Q&A include:

  • A company’s “image” or marketing strategy regarding employee appearance to its customers or customer preferences cannot be used as a basis to deny employment or a religious accommodation or to segregate an employee wearing religious dress from interacting with customers.
  • Refusing to hire an employee based on an assumption that they will need a religious accommodation (such as an employee who wears a headscarf to an interview) violates Title VII in

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Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements

Posted in EEO, Social Media

We all understand the importance of including a confidentiality clause in settlement, severance, and separation agreements. While nothing can prevent a departing employee from going on a conspicuous shopping spree or driving around town in a flashy new car with his/her settlement dollars or severance payment, employers want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment and encourages legal challenges by other employees who may have different circumstances than the employee receiving the payment and/or causing discord among current employees who feel cheated by the departing employee receiving a payment …


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“Sex-Plus” Discrimination Claims Are Still Viable

Posted in EEO

The Sixth Circuit recently addressed the issue of whether a “sex-plus” claim of discrimination, where a former employee claimed that she was discriminated against specifically for being an African American female, can be made under Title VII. The case is significant for reinforcing the notion that the various traits protected by Title VII necessarily coexist and should not always be considered separate from each other, but also for its emphasis on the importance of e-mail traffic in discrimination cases.

Facts

In Shazor v. Prof’l Transit Mgmt., Marilyn Shazor, an African American woman, was assigned by her employer, Professional …


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Updates for Federal Contractors: New Minimum Wage Coming Soon; New Required Form for Self-Identification of Disability Published by OFCCP.

Posted in EEO, Workforce Strategies

Those of you who watched President Obama’s State of the Union Address know he announced that he will establish by Executive Order a minimum wage of $10.10 for all federal contractors and subcontractors. A proposal backed by the White House is currently pending in Congress to raise the federal minimum wage for all employers from $7.25 to $10.10.  There is strong opposition to the proposed law. The President’s anticipated Executive Order does not need Congressional approval because it will not impact all employers, just those who have federal contracts or subcontracts. Until a draft Executive Order is proposed, we will …


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Sometimes An Employer Just Can’t Win

Posted in EEO, Leave Administration, Traps for the Unwary, Workforce Strategies

In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.

Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working …


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Sixth Circuit Does Not Permit Amnesiac Plaintiff to Revive Memory Via Contradictory Affidavit

Posted in EEO, Leave Administration

I have to admit that I generally love it when a federal court judge begins an opinion with a flourish like this: “December 20, 2011, was defining day for Appellant Angela Powell-Pickett.” Almost made me think of Dickens’ “It was the best of times, it was the worst of times…” (OK, maybe not quite.) But I knew from that first line in the court’s opinion in would be a good one. And I wasn’t disappointed.

You see, on December 20, 2011, as the court points out, Ms. Powell-Pickett finally had her deposition taken in her lawsuit against her former employer …


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When an Employee’s 10-Foot-Tall and Bulletproof Attitude on Social Media Becomes a Workplace Reality (and Nightmare)

Posted in EEO, Other Articles, Social Media

It’s hard to believe that what someone says on social media may not be the whole truth and nothing but the truth. The truth is, people are more likely to say things on social media sites, like Facebook and Twitter, that they would never say to or about a person directly because the computer gives people a false impression that they can say or do whatever they want without repercussion. But as we have warned time and time again, comments made on social media sites may not be as private as the commenter may believe and can be very damaging, …


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Ohio Supreme Court Holds A Public Teacher Shall Not Disobey a School Board’s Directive Not To Display Religious Materials in the Classroom

Posted in EEO

This week, the Ohio Supreme Court issued a sharply divided 4-3 opinion in Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000(Nov. 19, 2013), which held that the Mt. Vernon City School District had “good and just cause” under Ohio Revised Code §3319.16 for terminating a controversial middle school science teacher for insubordination because he refused to remove religious displays from his classroom after being ordered to do so. While the Court also held that the school district violated Freshwater’s First Amendment rights when it ordered him to remove his personal Bible from …


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EEOC’S Campaign Against Criminal Background Checks Takes Recent Hits

Posted in EEO

As we have previously noted, the EEOC in April 2012 issued enforcement guidance addressing the use of arrest and criminal records in employment decisions under Title VII. Since then, the EEOC has filed two separate lawsuits in South Carolina and Illinois alleging that employer criminal background check policies violated Title VII because they adversely impacted minorities and were not job related and consistent with business necessity. In response, the Attorneys General of nine states (West Virginia, Alabama, Kansas, Montana, Colorado, Georgia, Nebraska, South Carolina and Utah) wrote a letter to the EEOC urging the EEOC to dismiss the lawsuits …


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Major Changes to Affirmative Action Requirements Effective March 24, 2014

Posted in EEO, Workforce Strategies

Companies covered by federal affirmative action obligations have some major changes for which to prepare. The Office of Federal Contract Compliance Programs (OFCCP) has issued two new rules which take effect March 24, 2014. The new rules expand the affirmative action requirements for covered veterans and disabled persons.

For over 30 years, regulations under the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) and under Section 503 of the Rehabilitation Act of 1973 have required covered employers to engage in good faith efforts to recruit and employ covered veterans and disabled persons. The requirements include the obligation to invite …


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The Supreme Court Lands a Stunning Blow to Employees

Posted in EEO

After putting employees on the ropes with its decision in Vance v. Ball State University (which we blogged on here), the United States Supreme Court finished employees off with the 5-4 decision in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013). The Justices held a plaintiff making a retaliation claim under Title VII must establish that his or her protected activity was the “but-for” cause of the alleged adverse action by the employer, rather than just a motivating factor.

Background
The University of Texas medical system is affiliated with Parkland Memorial Hospital (“Hospital”). The …


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SCOTUS Defines “Supervisor” For Title VII Cases as One Who Can Take Tangible Employment Actions

Posted in EEO

In Vance v. Ball State University, No. 11-556 (June 24, 2013), the United States Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if the employee is empowered by the employer to take tangible employment actions, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, against the victim. In defining the term “supervisor” under the more narrow definition proposed by the parties, the Supreme Court refused to define …


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Pick Your Poison – Violate State or Federal Law? Court Finds That Complying with State Law On Employee Criminal Background Checks Is Not a Defense to a Title VII Disparate Impact Claim

Posted in EEO, Workplace Privacy

I present on the topic of background checks often, and when it comes to Q&A time, I almost always get the question (or some variation of it): "How does Title VII come into play when an employer has state law requirements regarding criminal background checks?" In Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio Apr. 23, 2013), the Southern District of Ohio shed some light on this particular employer predicament and demonstrates the potential for employment discrimination liability for employers who have overly broad exclusionary hiring policies based on past criminal conduct, even when those policies are required …


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It Is All About How You Handle an Equal Opportunity Harasser: Sixth Circuit Finds Employer Correctly Killed Two Birds with One Stone

Posted in EEO

Cases involving an equal opportunity harasser are usually entertaining, but Colston v. Cleveland Public Library, (6th Cir. Apr. 15, 2013) is also educational because it demonstrates how an employer can properly get rid of an equal opportunity harasser and defeat discrimination and harassment claims based on the harasser’s conduct at the same time.

Plaintiff Mary Jane Colston was, and still is, a union security officer with the Cleveland Public Library ("CPL"). Ms. Colston alleged that the CPL, along with several of its employees, sexually harassed her, retaliated and discriminated against her because of her gender, and was liable to …


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OFCCP Enforcement and Regulatory Agenda Heightened for Fiscal Year 2013

Posted in EEO, Traps for the Unwary, Workforce Strategies

Federal contractors and subcontractors should take notice that, in the last couple of years, the Office of Federal Contract Compliance Programs (OFCCP) has been pursuing a much more aggressive enforcement and regulatory agenda. Final revised rules on disability and veterans affirmative action are expected soon. Later in 2013, proposed new rules for construction contractors and gender discrimination are expected. We will post to this blog when these are available.

As we are awaiting these new regulatory frameworks, it should be noted that OFCCP has also been conducting more in depth and more aggressive compliance evaluations of federal contractors and subcontractors. …


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Employers, Protect Yourself From Class or Collective Actions: New and Developing Case Law is Giving Employers a Number of Proactive Defensive Measures

Posted in EEO, Employment Class & Collective Actions, Workforce Strategies

All too often it seems employers are entirely unaware of the steps they can take to proactively protect themselves from employment litigation. Instead, employers and their attorneys do not address potential issues until litigation has actually been threatened or filed, by which time preventative measures have likely become a moot point. Yet, the law is providing more and more innovative opportunities to strategically protect an employer in ways much cheaper than actual litigation. This protection can reduce an employer’s potential monetary exposure for labor and employment matters by either minimizing litigation or by placing an employer in a position of …


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Caution: Recent Case Highlights Importance of Broad, Early Preservation Efforts

Posted in EEO

This blog post was co-authored by Margaret M. (Peggy) Koesel and Tracey L. Turnbull.

A company may discard data, documents or records in the ordinary course of its business. But routine destruction of information that may be relevant to a government investigation or a lawsuit must be suspended and information must be saved as soon as possible after a party has notice that it must preserve evidence. A recent case from the district court for the Southern District of Ohio looks at the events that triggered a bank’s duty to save particular data considered relevant by its opponent and …


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Don’t Judge a Book by Its Cover! The Sixth Circuit Provides Employers With A Roadmap For Hiring Persons With Disabilities

Posted in EEO

The Sixth Circuit Court of Appeals reversed the Michigan district court’s ruling in Keith v. County of Oakland, finding a deaf applicant’s rights under the Americans with Disabilities Act ("ADA") may have been violated when Oakland County ("the County") revoked its job offer to hire him as a lifeguard.

Nicholas Keith, who was born deaf, trained and successfully completed the County’s lifeguard training program in 2007. After receiving his lifeguard certification, Keith applied for a lifeguard position at Oakland County’s wave pool. The job announcement required each applicant be at least 16 years of age and pass the County water …


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Be Careful What You Dismiss as Not a “Real” Religion When Employees Seek Religious Accommodation: Court Holds Veganism Could Plausibly Be a “Religious Belief”

Posted in EEO, Traps for the Unwary

In a recent decision in Chenzira v. Cincinnati Children’s Hospital Medical Center, Case No. 1:11-cv-00917, the U.S. District Court for the Southern District of Ohio in Cincinnati held that sincerely held beliefs in veganism could plausibly be considered religious beliefs protected against religious discrimination under Title VII of the Civil Rights Act of 1964 and Ohio state law. The Court rejected the argument that veganism was merely a social philosophy or dietary preference.

Sakile Chenzira was a customer service representative for Cincinnati Children’s Hospital for over 10 years. In 2010, the Hospital terminated Chenzira for her refusal to be …


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Sometimes It Is Best to Bite Your Tongue! Sixth Circuit Holds University’s Diversity Interests Outweighed First Amendment Right to Freedom of Speech

Posted in EEO, Traps for the Unwary, Workforce Strategies

In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.

On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller …


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Sixth Circuit Decision Reminds Employers: Get Your Ducks in a Row at the EEOC Charge Stage and, for Goodness Sake, Know Your Own Policies

Posted in EEO, Employee Benefits/ERISA

Gaglioti v. Levin Group, Inc. (6th Cir. Dec. 13, 2012), serves as a good reminder to employers to pin down their reasoning for terminating an employee at the start, and stick to it. In addition, all reasons for terminating an employee should be included in the termination meeting with the employee, or at the very least, at the EEOC charge stage, even if it might bruise the employee’s ego. Any change or supplementation to the original reason can make put the entire termination decision seem made up and send the employer to trial. It is also imperative that employers know …


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