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Confused or overwhelmed about the new obligations and regulatory activity related to federal contractors? – You aren’t alone

The Office of Federal Contacts Compliance Programs (OFCCP) has been very busy changing the rules for federal contractors and subcontractors. There are 8 new developments from the second half of 2014 that all covered contractors should be aware of:

  1. Final rule prohibiting discrimination against sexual orientation and gender identity for federal contractors subject to Executive Order 11246.
  2. New scheduling letter released requiring submission of data regarding veterans, disabled persons, compensation, and other items not previously required.
  3. New form for annual submissions about veterans to be used beginning in 2015 (replaces VETS-100A and VETS-100).
  4.  Proposed rule to prohibit federal contractors from

Ohio Appellate Court upholds employee termination for Facebook threats

A recent Ohio appellate court decision highlights how an employer’s response to employee threats of violence made on social media sites can impact a court’s decision when the employee challenges their termination. In Ames v. Ohio Dept. of Rehabilitation and Correction, the plaintiff was employed by ODRC as a Senior Parole Officer. In 2009, after the plaintiff returned from a medical leave of absence due to depression and anxiety, her co-workers and supervisors began noticing what they described as a pattern of interpersonal conflicts, erratic behavior, and emotional outbursts at work. Later that year, while discussing her work situation …

Covered affirmative action employers — more scary news from the OFCCP

On August 6, 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that should be of real concern to covered affirmative action federal contractors. The OFCCP is the agency that enforces federal affirmative action laws. If the proposed rule is adopted, it will add compensation data to the information that covered employers must submit with their annual EEO-1 reports. Keep in mind the “web” of coverage under affirmative action laws reaches far. Coverage is triggered not just by direct federal contracts but also by contracts to provide goods or services to any private sector entity, as …

President Obama issues executive order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity

On July 21, 2014, President Obama issued an executive order amending Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes for federal contractors and subcontractors. Under the amended Executive Order 11246, federal contractors and subcontractors are required to select and employ individuals without regard to sexual orientation and gender identity.  Executive Order 11246’s nondiscrimination provisions apply to contractors and subcontractors with over $10,000 in total government contracts and subcontracts in one year. This executive order does not include a religious exemption, which was the subject of negotiation between the White House and religious …

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 …

Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.

Factual background

George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and …

University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act

Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.


Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast …

Articulating inconsistent reasons for an employee’s discharge results in a denial of summary judgment

The Sixth Circuit Court of Appeals recently revived an age discrimination lawsuit brought against printing giant QG LLC by a former Plant Facilities Manager, finding that QG could not hide behind the poor economic climate and its own decision to reduce headcount when it discharged the manager and replaced him with a younger employee, particularly given that it offered inconsistent reasons for the discharge.

In Pierson v. Quad/Graphics Printing Corp., James Pierson was discharged from his position as Plant Facilities Manager at the age of sixty-two.  QG was experiencing financial setbacks and decided to cut costs and eliminate various …

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 …

Sixth Circuit reverses course and holds that telecommuting may be a reasonable accommodation

Courts in the past, including in the Sixth Circuit (which includes Ohio), have held that telecommuting is not required as a reasonable accommodation because regular attendance at work on a predictable schedule is an essential function of almost all jobs (excepting those that are regularly done by all employees from a remote location). On April 22nd, however, the Sixth Circuit reversed course in a 2-1 decision in EEOC v. Ford Motor Company and revived the EEOC’s lawsuit on behalf of a fired Ford worker with irritable bowel syndrome.

The employee utilized intermittent FMLA leave over a period of …

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 …

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

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 …

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

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

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 …

“Sex-Plus” Discrimination Claims Are Still Viable

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.


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

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

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 …

Sometimes An Employer Just Can’t Win

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 …

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

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 …

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

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, …

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

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 …

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 …

Major Changes to Affirmative Action Requirements Effective March 24, 2014

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 …

The Supreme Court Lands a Stunning Blow to Employees

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.

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

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

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 …