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EEOC issues new guidance on employer-provided leaves as a reasonable accommodation

Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:…

EEOC issues fact sheet in response to state bathroom laws

Likely in response to laws recently passed in North Carolina and Mississippi (and being considered in other states, including Ohio), the EEOC has issued a fact sheet regarding bathroom access for transgender employees under federal anti-discrimination law. In the fact sheet, the EEOC takes the position that transgender status is protected under Title VII and, accordingly, employers may not:

  • Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination
  • Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure
  • Avoid the requirement to provide equal

Website accessibility case shows big risks to companies

We have reported previously on the emerging trends in litigation over website accessibility. Briefly, Title III of the Americans with Disabilities Act (ADA) requires accessibility for disabled persons to places of public accommodation. Increasingly, disabled persons are pursuing litigation or threats of litigation, arguing that a company’s website which provides access to goods and services must be accessible under the ADA. The law remains somewhat unsettled. Federal courts have reached varying conclusions on the question of whether websites are places of public accommodation and, if they are, what steps are required to make them accessible under the ADA. The …

Update: the EEOC enters the digital age with electronic notice of charges

Earlier this week we reported on the EEOC’s new “digital charge” system. The EEOC has issued a press release announcing it will now, on a nationwide basis, share position statements with charging parties. In the past, many EEOC offices would provide a verbal summary of the employer’s position statement to the charging party but would not share the document with him/her. That has now changed. Apparently the EEOC “may” redact confidential information before providing it to the charging party, so employers should clearly indicate information they consider confidential, including any attachments submitted with the position statement. The policy is …

The EEOC enters the digital age with electronic notice of charges

We are seeing more and more employers receive electronic notice of new EEOC charges through the EEOC’s new “digital charge” system. This system was piloted in certain EEOC districts starting last May. Starting Jan. 1, 2016, all EEOC offices will notify employers via email of new EEOC charges filed against them. However, this last month and a half we have continued to see a few new charges come in the traditional way via snail mail.

What happens when you receive a digital charge? The EEOC will send an email to the email address on file for the employer. The EEOC …

EEOC proposed wage reporting rules: could be a major problem

Think for a moment about all of the employment law obligations you face as a Human Resources professional or employment legal counsel. As extensive as those are, there is actually very little that you have to report to the federal or state government on a regular basis about your employment activity. You have very few obligations to report to the government on your personnel actions, including compensation – at least as of now. In fact, about the only obligation to report information to the federal government is the annual federal EEO-1 report, which must be filed by companies with 100 …

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased …

EEOC issues guidance directed specifically to HIV positive employees and their physicians

Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with Disabilities Act to job applicants and employees living with HIV. Although the EEOC previously issued a more general guidance about the ADA’s protections for individuals with HIV/AIDS in 2012, these two new publications are notable in that they are specifically directed to HIV positive applicants …

OFCCP’s final compensation reporting rule expected in May

OFCCP has said that it will issue final rules in May 2016 requiring federal contractors and subcontractors to submit electronic pay data.  This rule has been highly controversial since it was first proposed in 2011.  Currently there is no obligation for contractors to submit pay data to OFCCP except in the course of an affirmative action compliance review.  The proposed rule would require contractors with 100 or more employees and federal contracts or subcontracts totaling $50,000 or more to submit summary compensation data by race, ethnicity, and sex annually.  The  data would then be aggregated by industry groups and published …

Website accessibility regulations delayed until 2018 but businesses should not table the issue until then

The U.S. Department of Justice (DOJ) yet again delayed the anticipated rulemaking for website accessibility under the Americans with Disabilities Act (ADA). The guidelines are now expected sometime in 2018 (delayed from the most recent expected date of April 2016). But, as I will discuss below, that does not mean that businesses transacting business with the public through websites and mobile applications should ignore web-based accessibility entirely until 2018.

The ADA and public accommodation

By way of background, the ADA requires that “places of public accommodation” be accessible to the disabled. Most businesses operating some form of physical facility open …

EEOC’s wellness rules to be finalized early 2016

The Equal Employment Opportunity Commission’s (EEOC) regulatory agenda indicated that it intends to finalize its two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016. You can read about the proposed ADA changes here. The EEOC just recently published its proposal to amend the rules implementing GINA as they relate to employer wellness plans in late October, 2015. If adopted, these rules would allow an employer that offers a wellness program as part of a group health plan to provide limited financial and other incentives in …

The use of criminal background checks to make employment decisions is not without peril

One of the first cases filed by the U.S. Equal Employment Opportunity Commission (EEOC) following its 2012 updated guidance on the use of arrest and conviction records in employment decisions has been resolved. Last month, a federal court in South Carolina approved a settlement in which BMW Manufacturing Co., LLC (BMW) agreed to pay $1.6 million and offer jobs to aggrieved African-American former employees and applicants. BMW had already voluntarily changed its criminal conviction policy.

The EEOC filed suit against BMW in 2013 claiming that BMW’s criminal conviction policy was not job related and consistent with business necessity and disproportionately …

New Developments for Federal Contractors – New Executive Order on paid sick leave, final rule on pay transparency and new veterans benchmark

Paid Sick Leave

In conjunction with the Labor Day holiday, President Obama signed a new Executive Order requiring paid sick leave for employees of federal contractors and subcontractors. This executive order comes on the heels of a patchwork of state and local paid sick leave laws and failed efforts to enact any federal paid sick leave law for all employers. The Executive Order applies only to federal contractors and subcontractors—not other employers. It will take effect for covered contracts or subcontracts entered into or awarded after January 1, 2017.

This paid sick leave may be used for the employee’s own …

Be careful what you ask on pre-employment tests to avoid a multimillion dollar EEOC action

Pre-employment tests are commonly used by employers to prescreen applicants and/or determine if applicants are suitable for hire. Employers should be careful what they ask on these tests for two reasons: (1) the ADA and (2) potential disparate impact discrimination claims.

The EEOC recently settled its challenge to Target’s pre-employment testing for $2.8 million. The EEOC alleged that several questions (the content of the questions was not made public) on Target’s pre-employment tests had a disparate impact on candidates on the basis of race or sex. Disparate impact claims arise when a neutral screening method or criteria affects a particular …

New app allows consumers to buy based on which companies are female-friendly

Thanks to Summer Associate Christopher Hawthorne for his assistance with this blog entry.

In an era of consumers making choices based on whether companies have ethical labor and sourcing practices, a new app now tracks how female friendly a company is. “Buy Up Index,” reveals whether a company’s workplace policies and practices accommodate and empower its female employees. Through this app, consumers no longer have to rely on the company’s public persona.

The app uses four criteria—women employees, women’s leadership, corporate citizenship, and marketing—to create an overall score that grades the company’s treatment of its female employees. Employers are graded …

Sixth Circuit Court of Appeals reverses district court’s ruling in Title VII retaliation case, proving that getting the entire story is key for employers

The Sixth Circuit Court of Appeals reverses district court’s summary judgment ruling in Yazdian v. ConMed Endoscopic Tech., Inc., on a Title VII retaliation claim, finding a reasonable jury could conclude the former employee was terminated for engaging in protected activity.

Background

Reza Yazdian, an Iranian-American Muslim, was employed with ConMed Endoscopic Tech., Inc. from April 1, 2005 through July 26, 2010, as a territory manager. In 2009, Yazdian received favorable ratings in all categories and was described as a talented salesman. Yazdian’s direct supervisor from 2008 until the time of his termination was Timothy Sweatt, and Sweatt reported …

Employment law and recent events: Confederate flag unrest

Thanks to Porter Wright Summer Associate Carolyn Alford for her assistance in preparing this blog post.

The recent tragedy in South Carolina, where a reputed white supremacist opened fire on a crowd of Black churchgoers, has propelled the Confederate flag as a symbol of racism back into the public spotlight, after a picture surfaced of the shooter posing with a gun in front of a Confederate flag. The attention the Confederate flag has received nationwide will no doubt be reflected in the workplace as well. But what are an employer’s responsibilities when an employee or manager wants to display the …

OFCCP posts sample affirmative action plans for individuals with disabilities and veterans

The Office of Federal Contract Compliance Programs (OFCCP) recently posted sample affirmative action plans (AAPs) for individuals with disabilities and veterans to its website, available here.

The forms should be helpful guidance for companies who are federal contractors and subcontractors who are looking to comply with new regulations that took effect on March 24, 2014 but are only now being integrated into AAPs that were already in existence on the regulations’ effective date. Many contractors and subcontractors are incorporating or incorporated these regulatory changes into their annual AAPs in 2015 for the first time.

The samples are designed to …

Join us in Cleveland on Wednesday, May 13 for our Spring Employment Relations Seminar – Fresh Ideas for Employers

Fresh ideas header

Need to refresh your workplace?

Join Porter Wright’s Labor and Employment Group on Wednesday, May 13 as we share Fresh Ideas for Employers

Topics Include:

Freshly Picked: A Review of Recent Employment Law Updates Tracey L. Turnbull, Porter Wright

As you look to make sure your policies and practices reflect recent developments, you will not want to miss this session. We will review recent significant judicial and administrative decisions addressing a variety of employment law issues. This review will highlight the best practices and instincts that will ensure you are complying with new laws and developments.

Straight Off the Vine:

Courts can (barely) weigh in on whether EEOC satisfies its conciliation obligations

On Wednesday of this week, the U.S. Supreme Court unanimously vacated and remanded a 7th Circuit decision that said courts could not review whether the Equal Employment Opportunity Commission (EEOC) satisfied its conciliation obligations under Title VII. Mach Mining LLC v. EEOC, No. 13-1019 (2015). The review the Court permitted, however, remains limited and courts are only to enforce the EEOC’s obligation to give an employer notice and a chance to achieve voluntary compliance. The court made a point to recognize that the EEOC still had “extensive discretion to determine the kind and amount of communication with an employer …

EEOC issues proposed rule on ADA application to employer wellness programs

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements for employer wellness programs that are already found in HIPAA’s non-discrimination provisions, as amended by the Affordable Care Act (“ACA”), but there are some key differences and the EEOC’s proposed rule leaves open some questions that hopefully will be addressed when the final rule is …

Sixth Circuit in EEOC v. Ford: Sometimes showing up really is an essential function of the job

Almost a year ago, we wrote that a panel of the Sixth Circuit in EEOC v. Ford Motor Company, bucking the trend elsewhere, had held that an employer could be required to permit an employee to work from home as a reasonable accommodation for a disability. Last week, however, the entire Sixth Circuit, in an 8-5 decision, issued an opinion overturning the panel’s decision and finding that in-person attendance at the work site is generally an essential function of most jobs, particularly those that are interactive. The court recognized that advances in technology may mean that regular on-site …

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now …

New “significant burden” test for pregnancy discrimination

Yesterday, in a 6-3 decision, the U.S. Supreme Court clarified the Pregnancy Discrimination Act (PDA) and answered the question of how to apply the law to an employer’s policy that accommodates many, but not all, workers with non-pregnancy related issues.

Peggy Young was a part-time driver for United Parcel Service (UPS). After becoming pregnant, her doctor advised her she should not lift more than 20 pounds. UPS required drivers like Young to routinely lift up to 70 pounds. UPS told Young that she could not work while under the temporary lifting restrictions which accompanied her pregnancy.  At the time, UPS …

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