EEOC

EEOC’s Transgender Claims Gain Momentum

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EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) made history recently by filing its first lawsuits alleging sex discrimination against transgender individuals.

The EEOC says Michigan-based RG & GR Harris Funeral Homes, Inc. and Florida-based Lakeland Eye Clinic discriminated against two transgender workers when they fired them for not conforming to “the employer’s gender-based expectations,” according to statements from the EEOC. Both complaints were brought under Title VII of the Civil Rights Act of 1964, on a gender-stereotyping theory.

Although the suits are the first of their kind to be filed by the EEOC, transgender individuals have been filing suits under state discrimination laws for several years. Earlier this year President Obama made it illegal for federal contractors to discriminate based on gender identity; however, the EEOC’s position that transgender individuals are protected by Title VII’s gender discrimination provisions is not clear on the face of Title VII and, until now, has not been tested in court.

Abercrombie & Fitch Hijab Case Heading To Supreme Court

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HijabLast week, the Supreme Court announced that it will decide whether Abercrombie & Fitch’s refusal to hire a woman wearing a Muslim hijab (that they said conflicted with their dress code), constituted religious discrimination.

The EEOC is appealing the Tenth Circuit Court of Appeals’ ruling that the retailer could not be found liable for discrimination against the job applicant because she didn’t say she needed a religious accommodation during her interview.

The Court will hear arguments next year, and we will keep you posted as the case develops.

Webinar- Back to School: Employment Law Update

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school-suppliesAs fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.

Tuesday, September 9, 2014
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER

TOPICS

• Supreme Court developments, including the important decisions in Noel Canning and Hobby Lobby
• The EEOC’s new challenges to release agreements and steps you should take to ensure enforceability
• What Illinois and New Jersey employers need to know about new laws limiting questions about an applicant’s criminal record
• Developments under the Americans with Disabilities Act, including working at a home as a reasonable accommodation
• New guidance on how far employers need to go in accommodating religious beliefs and practices
• The Supreme Court and IRS weigh in on taxability of severance payments and health insurance reimbursements
• What to expect from the DOL’s fresh look at overtime requirements
• Continued rollout of the Affordable Care Act in the coming year
• Key changes to requirements for federal contractors

And more…

CLE Credit Available | This program has been submitted to the HR Certification Institute for review.

QUESTIONS

Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com

The EEOC Strikes Again

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lawsuit-letterIn a suit filed in February, the Chicago District Office of the Equal Employment Opportunity Commission (EEOC) argued that the separation and release agreements used by CVS Pharmacy were “overly broad, misleading, and unenforceable.” Specifically, the EEOC argued that provisions in CVS’ agreements infringed on employees’ rights to file discrimination charges and participate in EEOC investigations. See our February 2014 post, EEOC Files Suit Over Separation Agreement Language for more details on that case.

Now, a different district office of the EEOC has filed a similar suit against another employer. The Phoenix District Office sued CollegeAmerica Denver on April 30, 2014 alleging that CollegeAmerica violated federal age discrimination laws by including various provisions in its form separation and release agreements impeding employee rights. The EEOC objects to CollegeAmerica’s broad release language, provisions limiting an employee’s ability to assist others with claims, and provisions requiring the employee to represent that he or she has not filed administrative claims or lawsuits.

Separation and release agreement language clearly is a “hot button” issue for the EEOC. Employers should review their form release agreements to ensure that they specifically permit an employee to file charges and participate in investigations by governmental authorities and do not place other impermissible limits on employee rights.

EEOC Files Suit Alleging Attendance Policy Failed to Accommodate Disabled Employees

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sealOn Friday, the EEOC filed suit against AutoZone, alleging that the car repair company violated the Americans With Disabilities Act by applying its attendance policy in a way that failed to accommodate certain disability-related absences.  This is the EEOC’s fourth disability discrimination case against AutoZone in the last 5 years.

Under AutoZone’s policy, employees received points for absences, with 12 points resulting in termination.  According to the EEOC, the policy did not make any allowances for disability-related absences (such as early departures by a diabetic employee who had insulin reactions), which the EEOC has alleged constituted a failure to accommodate.

Employers often — wrongly — assume that the fact that an employee doesn’t qualify for (or has exhausted) FMLA leave means that he can be terminated for his absences.  However, if the reason for the absence relates to the employee’s medical condition, it’s critical that the absence be considered under an ADA reasonable accommodation analysis as well.

EEOC Dealt Setback on Credit Check Claim

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gavelpictureOver the last couple years, the EEOC has been taking aim at companies that use credit checks as part of the application process, arguing that excluding applicants based on credit checks has a disparate impact on minority applicants.

However, on Wednesday, the U.S. Court of Appeals sitting in Ohio dealt the EEOC a significant setback. In its decision in EEOC v. Kaplan Higher Education Corp., the 6th Circuit Court of Appeals found that the EEOC’s expert witness could not be relied upon to establish discrimination because his analysis was “unreliable”.  As such, the appellate court upheld the lower court’s ruling in favor of Kaplan.  The appellate court’s opinion closes with a damning statement regarding the EEOC’s credit check cases: “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding [the expert’s] testimony.”

It remains to be seen whether the EEOC will heed the court’s admonition or continue to push forward.  Regardless, unless and until the EEOC finds an alternate way to establish that credit checks have a disparate impact on minority applicants, the Kaplan decision gives employers a strong response to any claim that relying on credit checks constitutes discrimination.

EEOC and FTC Offer Joint Tips on Use of Employment Background Checks

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UntitledOn Monday, the Federal Trade Commission and the Equal Employment Opportunity Commission issued joint publications offering informal guidance on conducting background checks that comply with the Fair Credit Reporting Act and anti-discrimination laws. The overlapping rules and jurisdiction of these two agencies in this area of the law can sometimes be confusing for employers.

The first brochure, Background Checks: What Employers Need to Know, offers nuts-and-bolts guidance for employers to consider when investigating the backgrounds of applicants and employees for use in hiring, retention, promotion, and reassignment decisions. The publication also reminds employers to review local laws regarding background reports and information because some states and municipalities regulate the use of that information for employment purposes in addition to what federal law requires. The brochure also has many helpful links to other EEOC and FTC guidance in this area.

The second brochure, Background Checks: What Job Applicants and Employees Should Know is geared toward job applicants and employees.

The EEOC press release describes the joint guidance as “a unique opportunity for the agencies to work together to provide user-friendly technical assistance to our stakeholders.” Given that the EEOC has not been particularly successful in the cases it has brought against companies for allegedly using background checks improperly, it is likely that the agency also has decided that getting employers to voluntarily alter their practices by providing additional guidance to them may be a better enforcement strategy.

New EEOC Guidance Highlights Religious Accommodations

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EEOC ImageThe U.S. Equal Employment Opportunity Commission has issued new, detailed guidelines for employers with respect to required accommodation of religious dress and grooming under Title VII of the Civil Rights Act. Businesses covered by Title VII must permit applicants and employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.

While the laws themselves are not new, the guide and fact sheet provide clear, practical advice for employers and offer several real-world examples from recent EEOC cases.

Religious Garb and Grooming in the Workplace: Rights and Responsibilities

Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities

Fewer EEOC Charges in 2013 than 2012

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graphThe EEOC’s recently released 2013 charge statistics show the agency received 5,685 fewer charges in 2013 than it did in 2012. This more than 5% reduction is somewhat surprising after three years of near flat charge filings.

Charges were down slightly for race, national origin, religion, and disability discrimination claims and more markedly for sex discrimination claims (-8.8%) and age discrimination claims (-6.4%). The only major area where the EEOC saw more charges in 2013 was retaliation claims (+1.8%).

While it’s difficult to draw conclusions from a single year’s data, the increase in retaliation claims is a good reminder of the importance of how an employer responds to a complaint of discrimination or harassment.

EEOC Files Suit Over Separation Agreement Language

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The EEOC filed suit Friday in U.S. District Court for the Northern District of Illinois claiming that CVS Pharmacy violated Title VII by using separation agreements that allegedly limited the rights of employees to communicate with the agency, file charges, and participate in investigations (EEOC v. CVS Pharmacy Inc., Civil Action No. 1:14-CV-683).  EEOC ImageThe EEOC specifically took issue with provisions in the separation agreements requiring employees to notify CVS if they receive a subpoena, deposition notice, interview request, or other inquiry from any investigator, attorney, or other third party; prohibiting employees from disparaging the company; prohibiting employees from disclosing confidential information; releasing “charges” against the company relating to “unlawful discrimination;” and agreeing not to sue the company.  As one of the remedies requested, the EEOC wants the court to give employees who were subject to the agreements the opportunity to file a charge within three hundred days, basically restarting their limitations period.  If the case moves forward, it will be interesting to see whether the court agrees with the EEOC’s position.  After all, the employees who signed the agreements presumably did so precisely because they had no intention of taking any sort of legal action against CVS.  Unfortunately, these types of cases often get settled early, allowing the EEOC to declare victory, but leaving employers uncertain about the law governing their agreements.