To borrow a line from a well-known Andy Williams song, “It’s the most wonderful time of the year.” The months of November through January are known for office holiday parties. All of this fun brings an increased risk of liability for employers, and for that reason it is important to be proactive and create a
A federal lawsuit alleging discrimination under Title VII must be filed within ninety days after the EEOC has completed its handling of the related discrimination charge and issued its Notice of Right To Sue. Some employers attempt to shorten the time for filing discrimination charges by getting employee or applicants to sign agreements to that…
The Equal Employment Opportunity Commission (EEOC) has announced the filing window for the newly required Component 2 pay data opens July 15, 2019. Private employers with at least 100 employees are required to submit pay data for calendar years 2017 and 2018 by Sept. 30, 2019. This new requirement is ordered by the court decision in the National Women’s Law Center v. Office of Management and Budget case.
The EEOC has taken a number of steps to assist employers with this new filing requirement.
The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.
Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII.…
Continue Reading United States Supreme Court makes it easier to get discrimination cases into court
Pay Data Required by September 30, 2019
Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers…
Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.
Porter Wright will continue to provide updates on this breaking news as more details become available.
It’s that time of year again. The 2018 EEO-1 Survey is open and must be filed with the Equal Employment Opportunity Commission (EEOC) Office of Enterprise Data and Analytics’ Employer Data Team. Employers must submit their reports by Friday, May 31, 2019.
What is the EEO-1 survey?
Federal law mandates that certain employers submit employment data for compliance purposes. The survey requires employers to submit data on employee race, ethnicity and sex categorized by one of ten job categories. Employers must gather this data from one pay period in October, November or December of each reporting year. Data must include both full-time and part-time employees.
In addition to sex, employers must report data on the following race and ethnicity categories:…
Continue Reading EEO-1 reporting; Now open for business
On Dec. 20, 2017, a D.C. federal judge held that the Equal Employment Opportunity Commission (EEOC)’s workplace wellness program rules – which permit employers to incentivize employees who participate in workplace wellness programs—will be vacated on Jan. 1, 2019. The judge held that the EEOC failed to provide a reasoned explanation for the rules, which he believed violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) without a reason for permitting an exception to the normal rules prohibiting disability-related inquiries, medical examinations and requesting genetic information. The judge further ordered the EEOC to promulgate any new proposed rules by Aug. 31, 2018 and to file a status report on the agency’s schedule for rulemaking by March 30, 2018.
Continue Reading D.C. Federal Judge vacates the EEOC’s Workplace Wellness Program Rules, effective Jan. 1, 2019
The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.
Background of the two agencies
The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the basis of sex, race, national origin, color, religion, sexual orientation, gender identity, disability and covered veteran status for covered federal contractors and subcontractors. Affirmative action is required on the basis of sex, race, national origin, disability, and covered veteran status in all employment decisions. The OFCCP takes a more proactive approach when enforcing nondiscrimination, requiring federal contractors to draft affirmative action plans that provide equal employment opportunities. The OFCCP audits federal contractors and subcontractors and can impose penalties and citations through the administrative process. Once OFCCP finds areas of noncompliance, it engages in conciliation with the contractor.
Following the report of a 16-member task force led by Equal Employment Opportunity Commission (EEOC) Commissioners Chai Feldblum (D) and Victoria Lipnic (R) in 2016, last week the EEOC issued proposed guidance for public comment on or before Feb. 9.
In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.
The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of the problem and ways in which harassment can be prevented and addressed. And it pulls that together in one document, superseding five existing EEOC enforcement documents.…
Continue Reading EEOC issues proposed guidance on harassment
Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.
After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.…
Continue Reading Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodation