Employer Law Report

Tag Archives: EEOC

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 … Continue Reading

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 … Continue Reading

EEOC issues updated enforcement guidance on pregnancy discrimination and related issues

Over the dissents of Commissioners Lipnic and Barker, the U.S. Equal Employment Opportunity Commission (EEOC) on Monday, July 14, 2014, issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

According to the EEOC, the guidance sets out the fundamental PDA requirements that an employer may not … Continue Reading

Two lessons learned from JP Morgan Chase’s recent $1.45 million EEOC settlement

In a widely publicized case, the EEOC obtained a $1.45 million settlement on behalf of female mortgage consultants in Columbus, Ohio who it alleges were subjected to a hostile work environment and denied lucrative sales leads and training opportunities. Employers can learn two lessons from the case: (1) the method of distributing sales leads, customers, and territories should be defensible and (2) litigation holds should be promptly and effectively implemented as soon as litigation is anticipated.

Aimee Doneyhue worked at JPMorgan Chase in Columbus, Ohio as a mortgage consultant, a commission-based sales position. Doneyhue alleged that she was subject to … Continue Reading

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

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 … Continue Reading

EEOC issues guidance on religious garb and grooming in the workplace

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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Sixth Circuit Holds that Subcontracted Employees Can Sue the General Contractor on Construction Project as Their De Facto Employer

Yesterday, the Sixth Circuit revived the Equal Employment Opportunity Commission (EEOC)’s lawsuit against Skanska USA Building, Inc., holding that it was the de facto employer for subcontracted employees, a decision with potentially broad-reaching implications for employers with subcontracted employees and independent contractors, particularly in the construction industry.

Skanska was the general contractor for a hospital construction project. It subcontracted with C-1 Inc. Construction Company to provide operators for temporary elevators on the construction site. A C-1 employee, Maurice Knox, alleged that other workers at the work site engaged in racial slurs directed toward him and other black employees of C-1. … Continue Reading

EEOC’S Campaign Against Criminal Background Checks Takes Recent Hits

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 … Continue Reading

No One Said Anything About Light Duty!

Seventh Circuit Court of Appeals affirmed the District Court’s grant of Summary Judgment in James v. Hyatt Regency Chicago reminding employers they are under no obligation under the FMLA to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.

So here are the facts—Carris James was employed at Hyatt Regency as a steward for over 22 years. Although James was born with very poor vision, he was able to perform his job functions by wearing correctable eyeglasses and using magnifying glasses. Hyatt also accommodated him by increasing the … Continue Reading

OFCCP Signals Formal Change of Course on Pay Discrimination

 On February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) rescinded two Bush-era enforcement guidance documents on pay discrimination from 2006—the “Compensation Standards” and “Voluntary Guidelines.” This is consistent with OFCCP’s stated focus on pay discrimination since the beginning of the Obama administration.

OFCCP’s Director, Patricia Shiu, issued a press release and authored a blog article, stating that OFCCP intended to align its analysis of pay discrimination with the principles used to enforce Title VII. She stated that OFCCP intended to no longer limit its pay discrimination focus to equal pay in the same job but to expand … Continue Reading

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

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 … Continue Reading

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

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 … Continue Reading

EEOC Issues Guidance on the Application of Title VII and the ADA to Applicants and Employees Who Experience Domestic Violence, Sexual Assault, or Stalking

The Equal Opportunity Commission has issued a new fact sheet titled: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking, which explains how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. Because these laws do not expressly prohibit discrimination against those who experience domestic violence, sexual assault, or stalking, the potential discrimination and retaliation against these individuals may be overlooked, the Commission explained. The Fact Sheet does not establish new employee protections; rather, … Continue Reading

Fourth Circuit Rejects EEOC Position That Supreme Court Cleveland Decision Does Not Apply To Enforcement Actions

In 1999, in Cleveland v. Policy Mgmt. Sys. Corp., the U.S. Supreme Court held that in order to avoid summary judgment in a disability discrimination case brought under the ADA, a plaintiff must provide a "sufficient" explanation regarding any conflicting statements made in a Social Security disability application.  According to the Supreme Court, that explanation must be "sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.’"

Last week, in EEOC v. Greater Continue Reading

EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed

The Equal Employment Opportunity Commission (EEOC) decided on April 20, 2012 that discrimination against an employee on the basis that they are transgender was the equivalent of sex discrimination under Title VII of the Civil Rights Act of 1964. Macy v. Holder, EEOC Case No. 0120120821. Title VII protects employees against discrimination on the basis of a several protected classes, including sex. While many states and municipalities include transgender and sexual orientation as protected classes, Title VII has not been interpreted to protect these individuals on this basis alone. Individuals must show that the discrimination was based on their … Continue Reading

EEOC Issues Enforcement Guidance On Criminal Background Checks

On April 25, 2012, the EEOC issued a new Enforcement Guidance memorandum focusing on potential race and national origin discrimination arising out of employer use of criminal background checks in making employment decisions. The Guidance discusses disparate treatment and disparate impact analysis under Title VII and concludes that the use of criminal background information may result in a violation of Title VII under either theory of discrimination. Specifically, the Guidance notes that a disparate treatment violation may occur when an employer treats criminal history information differently based on an applicant’s or employee’s race or national origin. Or, an employer’s neutral … Continue Reading

EEOC’s Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements

Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.

That requirement seems reasonable — except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be … Continue Reading

Another Federal Court Refuses To Enforce Overly Broad EEOC Subpoena

We previously have reported on the EEOC’s increasingly aggressive agenda to expand the scope of its charge investigations by subpoenaing employer documents that far exceed any potential need. Fortunately, many federal courts have rejected these fishing expeditions. EEOC v. Loyola University Medical Center presents another good example.

In Loyola, the charging party filed a disability discrimination charge with the EEOC when she was asked to submit to a psychological evaluation as part of a fitness for duty examination ("FDE") that she was required to undergo in order to return to work from a medical leave. As part of its … Continue Reading

Does Your EPLI Policy Provide A Defense or Coverage for Cases Brought Against You by the EEOC?

If you don’t know the answer to this question with absolute certainty, you had better go back and check your policy. In Cracker Barrel v. Cincinnati Insurance Company, a Tennessee federal court concluded that the employer’s EPLI policy provided neither coverage nor even a defense to a Title VII action brought against it by the EEOC. Why? The policy in question defined a "covered claim" as "a civil, administrative, or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective employees." The court read this provision literally and concluded … Continue Reading

Sixth Circuit Rules for Employer in First Published Decision on “Associational” Disability Discrimination Claim

In a decision issued in July, the Sixth Circuit addressed the standard for a claim under the "associational" provisions of the Americans with Disabilities Act and affirmed summary judgment on plaintiff’s claim that his employment was terminated due to his wife’s disability.

The plaintiff was the highest ranking manager for Air Wisconsin at the Kalamazoo Airport. His wife suffered from various conditions, including a rare and debilitating auto immune disorder that required expensive treatment.

Plaintiff was terminated for poor performance based on failure to report security violations, supervise employees properly and stay within budget. In filing suit, he claimed that … Continue Reading

Federal Court Reels In EEOC’s Fishing Expedition

Last month, we reported on a Seventh Circuit case demonstrating the broad scope of the EEOC’s investigative and supervisory powers. In that case, EEOC v. Konica Minolta Business Solutions U.S.A., Inc., the court upheld an EEOC subpoena seeking to obtain the production of hiring data from the employer in response to a charge alleging racial discrimination with respect to terms and conditions of employment and eventually discharge. Today, we report on a case that demonstrates that the EEOC’s investigative and subpoena powers are not limitless.

In EEOC v. UPMC, Carol Gailey, the charging party, was terminated by The … Continue Reading

Seventh Circuit Endorses EEOC’s Expansive Subpoena Power

Last Friday, the Seventh Circuit Court of Appeals issued a decision in EEOC v. Konica Minolta Business Solutions U.S.A., Inc. that will embolden the EEOC’s aggressive use of its investigatory powers to require production of evidence in a single employee charge that could support a more systemic investigation.

In Konica, a salesperson filed a discrimination charge with the EEOC alleging that, although he had been hired only eight months previous, he was subjected to different terms and conditions of employment and then ultimately discharged due to his race. During the course of its investigation into the charge, the … Continue Reading

EEOC Releases Final Rule on ADAAA-Expect Continued Increase in Disability Charges

Yesterday, the EEOC released its Final Rule implementing the American with Disabilities Act Amendments Act, which we discussed back in September 2008 and which was signed by President George W. Bush on September 25, 2008. The Final Rule, which runs 202 pages long, includes many revisions. But the most significant revisions as discussed in the EEOC’s Fact Sheet are:

  • The definition of disability should be interpreted broadly in favor of broad coverage of individuals, in direct contradiction to several Supreme Court decisions that had, according to Congress, too narrowly interpreted the definition of "disability;"
  • The determination of whether an individual
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FTC’s Interim Report to Congress on National Study of Credit Report Accuracy Warrants Pause Before Doing Credit History Checks on Employment Candidates

There has been a lot of discussion lately about the EEOC’s decision to sue Kaplan Higher Education Corporation on the grounds that its policy of using credit histories as part of its applicant screening process had a discriminatory impact on minorities. Also, as noted at the end of last year in the Delaware Employment Law Blog, Illinois just became the fourth state to prohibit employers from disqualifying candidates based on credit history and, as of last summer, 15 other states had similar legislation pending. Ohio’s bill, which was introduced in 2009, never gained any traction. Though I continue to believe that an … Continue Reading