Managers Beware: Individual Liability Confirmed Under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military.

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EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance on Retaliation In Nearly Two Decades

The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998.  The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades.  The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention.”  The 30-day input period on the guidance ends on February 24, 2016.

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Taking a Page from DOL’s Playbook, EEOC Seeks to Add Pay Data to EEO-1 Reports

In August 2014, the Department of Labor’s Office of Federal Contractor Programs (“OFCCP”) proposed that federal contractors report compensation information on an Equal Pay report. Amid significant contractor comments that OFCCP coordinate with the EEOC to amend the Employer Information Report (“EEO-1”), EEOC did so on January 29, 2016. The EEOC intends to ask the Office of Management and Budget to approve additional data collection that would require most employers to submit aggregate data on pay ranges and hours worked. The EEOC believes that the additional data “will assist [EEOC and OFCCP] in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.” However, questions remain whether this data would yield any meaningful analysis of actual pay differences that would assist either agency in uncovering pay discrimination.

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New York City Commission on Human Rights Will “Vigorously Enforce” New Legislation to Protect Caregivers From Employment Discrimination in New York City

On January 5, 2016, New York City Mayor Bill de Blasio signed a bill that added “caregiver” to the list of protected classifications under the New York City Human Rights Law.  The law, which takes effect on May 4, 2016, seeks to protect employees and applicants from discrimination because of their status or perceived status as a caregiver.  Carmelyn Malais, the Commissioner of the New York City Commission on Human Rights vowed that “the Commission will vigorously enforce this much-needed protection” for “every parent and family member caring for a loved one.”

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Leading the Way on Transgender Rights in NYC: City Commission on Human Rights Issues Detailed Enforcement Guidance

On December 21, 2015, the New York City Commission on Human Rights (Commission) issued Legal Enforcement Guidance (Guidance) clarifying New York City’s prohibitions against discrimination on the basis of gender identity and gender expression.   Discrimination based on gender identity and expression in employment, housing and public accommodations has been illegal under the New York City Human Rights Law (NYCHRL) since 2002.  According to the accompanying press release, the Guidance is intended to make clear, through specific examples, what the Commission considers gender identity and gender expression discrimination under the City law and to offer best practices to employers and other stakeholders on how to comply with the law.  The Guidance also solidifies New York City’s place as having one of the most protective laws in the country for transgender and other gender non-conforming individuals.

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Testing the Limits of Employee Privacy: Ninth Circuit Allows EEOC To Obtain Extensive Personal Information About Employees Despite Privacy Concerns

The Ninth Circuit recently held that during the course of an investigation, the EEOC can force employers to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of applicants and workers other than the charging party if the information is relevant to the underlying investigation.

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Big Data, Big Problems: The Liability Pitfall Lurking Beneath the Shiny Surface of “People Analytics”

The use of big data in employment decisions—a practice often referred to as “people analytics”—has exploded in recent years. Lately, however, the concept is gaining more and more attention not only for its appeal of faster and more efficient hiring, but also for the significant risks it can pose. One key risk is the potential for a disparate impact claim, particularly on a class-wide basis. So while proponents of using software tools and algorithms to identify and select job candidates claim people analytics is more efficient and effective than traditional recruiting and selection procedures, employers should take care when choosing tools and vendors, and should proactively monitor their implementation to avoid big liability.

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New York State Expands Equal Pay Law and Other Workplace Protections for Women

On October 21, 2015, New York State Governor Andrew Cuomo signed a group of eight bills, referred to as the Women’s Equality Agenda, which expand protections for women in the workplace and elsewhere in New York State.  The changes that will affect New York employers include an expansion of the existing State equal pay law, the addition of familial status as a protected category and the express requirement that employers reasonably accommodate pregnancy-related conditions.

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NYCCHR’s Enforcement Guidance on NYC Credit Check Law: Answers and New Questions

On September 2, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued Enforcement Guidance (Guidance) on the New York City Stop Credit Discrimination in Employment Act (SCDEA), which took effect on September 3, 2015.  As detailed in our earlier blog post, the NYCCHR has been charged with enforcing the SCDEA, which amends the New York City Human Rights Law (NYCHRL) to prohibit employers from requesting or using consumer credit history in hiring and other employment decisions, except in limited circumstances.

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Age is Just a Number: Ninth Circuit Ruling in Age Discrimination Case Adopts Seventh Circuit’s “Rebuttable Presumption” Approach for Age Differences of Less than 10 Years

On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA) plaintiff and the individual(s) promoted in lieu of the plaintiff creates a rebuttable presumption that the difference was insubstantial. The “rebuttable presumption” approach affords limited protection to an employer faced with an ADEA suit, and highlights the need for employers to implement appropriate policies and training to mitigate the risk of such claims.

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