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.
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Fourth Circuit Rejects EEOC Position That Supreme Court Cleveland Decision Does Not Apply To Enforcement Actions
By Brian Hall on
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…
EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed
By Porter Wright on
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 sex, which is often shown by arguing that stereotypes about genders played a role in the decision making.
The claimant in this case, Mia Macy, was a police detective in the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Macy, then male, applied for a transfer within ATF. During the background check for the transfer, Macy informed the investigator that he was transitioning to a female. Five days after ATF learned this information, Macy was informed that the position was no longer available due to budgetary restrictions. Macy later learned that someone else had been hired for the position. Macy was later told that the other individual was hired because the individual was further along in the background check process. Macy believed that the other individual was chosen because of discrimination against Macy as a transgender person.
Macy filed a complaint with the EEOC alleging discrimination on the basis of “gender identity, change of sex, and/or transgender status.” ATF argued that this was not a recognizable claim under Title VII. Macy appealed to the EEOC for a determination. Initially, Macy also claimed sex discrimination on the basis of stereotyping, but that claim later was withdrawn. Courts have long-held that sex stereotyping—that an individual does not conform to the stereotypes for the male or female gender—is actionable.Continue Reading EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed
EEOC Issues Enforcement Guidance On Criminal Background Checks
By Brian Hall on
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 policy (e.g., excluding applicants from employment based on certain criminal conduct) that disproportionately impacts individuals based on their race or national origin would violate Title VII if the policy is not job related and consistent with business necessity.
The Guidance addresses the differences between arrest and conviction records. With respect to arrest records, the Guidance states that the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. By contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct, but according to the EEOC, under certain circumstances, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
The Guidance spends the most time discussing the potential disparate impact arising out of criminal background checks. According to the Guidance, national data generally supports a finding that criminal record exclusions have a disparate impact based on race and national origin. As a result, the EEOC will scrutinize a criminal record exclusions. This does not mean that employers cannot demonstrate that the particular exclusion it utilizes will automatically be found to have a disparate impact based on race or national origin. Instead, the EEOC will assess relevant evidence in determining whether a disparate impact exists. For instance, the EEOC will look at applicant flow information, workforce data, criminal history background check data, demographic availability statistics and incarceration/conviction and other similar data for the relevant labor market. Therefore, the employer may demonstrate the lack of any disparate impact by showing that local statistics show that African Americans and/or Hispanics are not arrested or convicted at disproportionately higher rates in the geographic area from which it does its hiring.Continue Reading EEOC Issues Enforcement Guidance On Criminal Background Checks
EEOC’s Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements
By Porter Wright on
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.
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Another Federal Court Refuses To Enforce Overly Broad EEOC Subpoena
By Brian Hall on
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.
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Does Your EPLI Policy Provide A Defense or Coverage for Cases Brought Against You by the EEOC?
By Brian Hall on
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.
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Sixth Circuit Rules for Employer in First Published Decision on “Associational” Disability Discrimination Claim
By Charlie Warner on
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 the termination was due to consideration of his wife’s disability, which he alleged impacted his work performance and caused him to be inattentive at work.Continue Reading Sixth Circuit Rules for Employer in First Published Decision on “Associational” Disability Discrimination Claim
Federal Court Reels In EEOC’s Fishing Expedition
By Brian Hall on
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 Heritage Shadyside on June 22, 2008, for exceeding her maximum available leave of absence. Heritage Shadyside is a wholly-owned subsidiary of UPMC Senior Communities, Inc., which in turn is a wholly-owned subsidiary of UPMC. Heritage Place employs 170 people while UPMC employs over 48,000 people. Ms. Gailey filed a charge with the EEOC alleging disability discrimination. In response, Heritage Shadyside filed a position statement and attached several UPMC policies, including the leave of absence policy, which provided the basis for termination. The EEOC then sent a request for information to UPMC – not Heritage Shadyside – requesting the identities of employees at "all facilities in the Pittsburgh region" who had been terminated pursuant to the UPMC leave and disability policies for the period July 1, 2008 "to the present." UPMC objected to the scope of the EEOC’s request and the EEOC issued a subpoena for this information.Continue Reading Federal Court Reels In EEOC’s Fishing Expedition
Seventh Circuit Endorses EEOC’s Expansive Subpoena Power
By Brian Hall on
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.
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