Let’s Talk About Sex: U.S. Department of Labor Targets Transgender & Gender Identity Discrimination

On Tuesday, August 19, 2014, the U.S. Department of Labor issued a directive to “clarify that existing agency guidance on discrimination on the basis of sex . . . includes discrimination on the bases of gender identity and transgender status.”  This directive follows President Obama’s Executive Order 13672, issued on July 21, 2014, amending existing orders to specifically prohibit federal contractors from discriminating based on gender identity.

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Home Sweet Home: 6th Circuit Rules that Showing up for Work is not Required

Changes in telecommuting practices may be around the corner for many employers, as the recent 2-1 decision in EEOC v. Ford Motor Co., 2014 FED App. 0082P (6th Cir. 2014) may usher in significant changes in what constitutes a reasonable accommodation for an employee with a disability under the ADA. According to the Sixth Circuit, given the advances in technology, employers need to be more open to telecommuting arrangements and cannot assume that coming to work is always an essential job function. But the U.S. Chamber of Commerce warns—in an amicus brief filed in early June—that these changes may have a “devastating” effect on employers by allowing employees to choose “where and when” they want to work. Read More

The EEOC Takes Aim, Once Again, at Employers’ Separation Agreements

On April 30, 2014, the U.S. Equal Employment Opportunity Commission filed suit against a private college, charging for the second time in two months that an employer’s severance agreement was unlawful. The EEOC alleged that CollegeAmerica, Inc.’s Separation and Release Agreements violated federal law by conditioning the receipt of severance payments and benefits on the employee’s promise not to file a charge with, or cooperate in investigations by, the EEOC against CollegeAmerica. Read More

Did the EEOC Try Hard Enough to Resolve Your Case Before Filing Suit?

March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC. Read More

California Court of Appeal Holds Employer Cannot Shorten Statute of Limitation on California Discrimination and Retaliation Claims

Can employers enter into binding agreements with employees to shorten the statute of limitations on discrimination and other employment claims? A California Court of Appeal decision answered that question with a resounding “no” in a recent case, reinstating claims by a woman who filed suit prior to the expiration of the applicable statute of limitations, but after the deadline she had agreed to in an employment agreement signed at the time of hire. Read More

EEOC Cut Short for Shortcutting Path to Court – Again

Last week, the EEOC suffered another major loss when a New York district court found that the EEOC once again shirked its pre-litigation obligations under Title VII. Read More

U.S. Supreme Court Adopts a Narrow Definition of a Supervisor in Harassment Claims

Resolving a split among the circuits, the U.S. Supreme Court held that a “supervisor” for Title VII harassment liability is limited to those who have the power to take a tangible employment action against the alleged victim (e.g., hire, fire, demote, promote, transfer, or discipline). Merely overseeing and directing the alleged victim’s daily work is insufficient to meet this heightened standard.   Read More

If You Can’t Say Anything Good about Someone, Well, Keep Talking – The EEOC Challenges the Legality of Non-Disparage Agreements

As the saying goes, if it didn’t end badly, it never would have ended. That is often the case for former employees who no longer simply gripe to spouses or close friends about their former employers. Disgruntled former employees and disengaged current employees often take to social media in railing on the Company for everything from a toxic work environment to lousy product to scaling back employee perks. Read More

The EEOC Aggressively Pursues Criminal Background Check Policies

On June 11, 2013, the Equal Employment Opportunity Commission (“EEOC”) filed two separate lawsuits against Dollar General and BMW Manufacturing Co. LLC, accusing each company of discriminating against Black job applicants through the improper use of criminal background screens. The aggressive positions taken by the EEOC in these cases demonstrate the agency means business with respect to cracking down on criminal background check policies that it feels are not consistent with its April 25, 2012 enforcement guidance on the use of criminal conviction and arrest records in employment decisions. The lawsuits also underscore the importance of reviewing existing policies in light of the EEOC’s emphasis on this issue.

For decades, the EEOC has taken the position that criminal background check policies pose a particular threat of adverse impact discrimination against Black and Hispanic job applicants in light of statistics showing that they are convicted at a rate disproportionally greater than their representation in the population. The agency’s first written policy guidance on the use of criminal background screens, published in 1987, explains that “the Commission has held and continues to hold that [criminal background check policies are] unlawful under Title VII in the absence of a justifying business necessity.” In April 2012, the EEOC issued new guidance on the topic (click here to read our April 30, 2012 blog entry on the EEOC’s guidance). Technically, the new guidance did not establish new rules. It undoubtedly illustrates, however, the increased scrutiny under which EEOC is reviewing criminal background check policies such as those at issue in the Dollar General and BMW lawsuits. Read More

Prisoner 24601 May Report For Duty, Says the EEOC

Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a check of criminal records into a hiring decision without risking legal liability.[1]  Read More