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

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 screened out African Americans from employment. BMW used a contractor to provide logistics services at its facility in South Carolina. The workers who provided services to BMW were subject to criminal background checks consistent with the contractor’s policy, which reviewed only convictions from the prior seven years. When BMW switched contractors, the workers were told that they would need to re-apply for employment with the new contractor, and BMW instructed the new contractor to perform criminal background checks on all workers under BMW’s policy. BMW’s criminal convictions policy had no time limitation, excluding from employment all applicants with convictions in certain categories of crimes without regard to whether the conviction was a misdemeanor or felony, the age of the conviction, or the nature or gravity of the individual crime. One hundred incumbent workers, eighty percent of whom were African American, did not pass BMW’s inflexible criminal background check, including many who had worked for BMW for a number of years. All of these workers were denied employment with the new contractor.

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

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

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

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

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.


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 directly to Scott Jackson.

In or around 2009, Yazdian began noting incidents that he believed demonstrated Sweatt’s prejudice against Iranians and Muslims. In April 2010, Yazdian closed a major sale and drafted a news article about the sale he wished to have published in ConMed’s internal newsletter. After much back and forth, Sweatt stated that the article would not be published as written. Sweatt went on to describe the article as “embarrassing,” “poorly worded,” and “far too self-serving.” Yazdian confronted Sweatt about the comments stating “[y]ou don’t like the way I write, you don’t like the way I talk, I guess you don’t like my race, either.”

During a June telephone meeting, Yazdian accused Sweatt of creating a hostile work environment. Shortly after that call, Yazdian called Scott Jackson and requested a transfer to another division that was under a different manager. Yazdian also told Jackson that Sweatt was creating a hostile work environment, treating him differently from other territory managers and possibly discriminating against him. Jackson took no action.

Sweatt, Jackson and Karen Hutto, Vice President of Human Resources, met to discuss the tension between Sweatt and Yazdian and, after the meeting, Sweatt drafted an email to Hutto detailing examples of Yazdian’s “behavioral issues.” Hutto reviewed the email and directed an HR manager to prepare a written warning. Yazdian, however, was never provided an opportunity to respond or present his side of the story.

On July 13, 2010 Sweatt called Yazdian to inform him about the written warning and informed Yazdian that the reason for the warning was his “ongoing unacceptable conduct and behavior, particularly in his communications.” Sweatt provided the written warning and several supporting examples. In fact, Sweatt referenced Yazdian’s comment that Sweatt was creating a hostile work environment. Yazdian stated he would provide a response through his counsel in writing. Sweatt again drafted an email to HR and Jackson outlining the comments made by Yazdian during the call. Sweatt closed the email by stating, he was “not optimistic that there was anything close to a recognition [by Yazdian] of needed behavioral changes much less a commitment for improvement” to which Jackson asked what “next steps” should be taken. Sweatt found termination was the only appropriate next step.

Continue Reading 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

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 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,

Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. As such, employers should be mindful of varying cultural differences among their employees. While their are not as many religious holidays during