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 or more employees and by federal contractors with 50 or more employees. As you know, the federal EEO-1 currently requires only that you report the number of employees at each covered establishment and corporate-wide, by ten broadly defined job categories and broken down by race, gender, and ethnicity. If adopted, the EEOC’s recently-announced proposed wage reporting rules will require that compensation data be added to the EEO-1 report. In addition to the administrative burden this will cause, employers have real concerns about the ways in which the EEOC promises to use the data.

Continue Reading EEOC proposed wage reporting rules: could be a major problem

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

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

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 his desk, the firing was affirmed because Freshwater’s refusal to remove other religious materials on display in his classroom supplied sufficient “good and just cause” for termination required under §3319.16 for terminating a public school teacher’s contract. Having upheld the insubordination finding, the Court avoided having to address the more thorny constitutional issue of whether the teacher impermissibly imposed his religious beliefs in his classroom.

Background
In 2007, a student and his parents claimed that Freshwater: (1) used an electrostatic device to make a mark on the student’s arm resembling a cross; (2) participated in the student group Fellowship of Christian Athletes when he was only permitted to monitor it; and, (3) had religious materials in his classroom.

School officials repeatedly told Freshwater to remove religious icons and materials from his classroom, including a collage incorporating the Ten Commandments and a poster showing a Biblical verse. Freshwater was also informed that Bibles and other religious materials needed to be kept out of the students’ sight. Freshwater did not listen. In fact, disregarding the school’s instructions, Freshwater checked out two religious books from the school library and displayed them in his classroom.
Continue Reading Ohio Supreme Court Holds A Public Teacher Shall Not Disobey a School Board’s Directive Not To Display Religious Materials in the Classroom

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 applicants and employees to “self-identify” as a veteran or disabled person and to take additional affirmative action measures. Contractors with over 50 employees and covered contracts which exceeded certain trigger limits also must prepare annual written affirmative action plans (AAPs) for veterans and disabled persons. However, until now, there was no obligation for employers to develop and retain hiring and other employment data or to set numeric goals for employment of veterans or disabled persons, as is required in the affirmative action rules for minorities and females.

The new rules require employers to gather and retain data showing the results of their recruiting and hiring efforts and to set numeric targets for hiring veterans and disabled persons. The new rules also include significant additional obligations for reviewing, analyzing, and documenting good faith efforts and results.
Continue Reading Major Changes to Affirmative Action Requirements Effective March 24, 2014

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.
Continue Reading The Supreme Court Lands a Stunning Blow to Employees

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

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 by state law.

In 2007, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children. (HB 190, eff. Nov. 14, 2007) According to the law, if an employee had been convicted of any of a number of specified crimes, no matter how far in the past they occurred, nor how little they related to the employee’s present qualifications, the law required the employer to terminate the employee.

To comply with the law, in 2008 the Cincinnati Public Schools terminated 10 employees with criminal convictions, nine of which were African American. Two of those nine, Gregory Waldon, who was found guilty of felonious assault in 1979 and incarcerated for two years, and Eartha Britton, who was convicted in 1983 of acting as a go-between in a $5.00 marijuana deal, sued the school district alleging that the state law had a racially discriminatory impact on African Americans contrary to Title VII and comparable Ohio state law.

The Defendant filed a motion to dismiss asking the court to throw out Plaintiffs’ suit claiming it simply followed Ohio law when it terminated their employment. The Defendant contended it maintained no particular employment practice that caused a disparate impact, and that it was a business necessity for it to follow Ohio law and that to force it to litigate the suit would force it to defend a criminal records policy it had no role in creating.

The terminated employees argued that Title VII trumps state law, such that their terminations were "unlawful employment practices" based on disparate impact" and that compliance with the state law was no defense because a violation is a violation. In Plaintiffs’ view, "whether Defendant was complying in good faith to state law goes to the remedy the Court should ultimately craft, and not to whether the terminations were in violation of Title VII."

The court found that Plaintiff "adequately plead[ed] a case of disparate impact" and that there was "no question that Defendant did not intend to discriminate"; however, the court went on to note that "intent is irrelevant" in a disparate impact case and the practice it "implemented had a greater impact of African-Americans than others."

The biggest issue on briefing was whether Plaintiffs could even attack Defendant’s facially-neutral policy based on the state law mandate. The court rejected "Defendant’s view that the state law must ‘purport’ to discrimination in order to be trumped by Title VII. Such a view would gut the purpose of Title VII …." Quoting Title VII, the court went on to note that an employer may defend against a prima facie showing of disparate impact only by showing that the challenged practice is "job related for the position in question and consistent with business necessity".

Continue Reading 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

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