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.
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.
On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation. Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority. The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.
Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.
Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.
On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule addressing how the Americans with Disabilities Act (ADA) applies to wellness programs that are part of group health plans and that include medical examinations or questions about employees’ health. Although not final and still open for public comment, this proposed rule provides important guidelines for employers in administering wellness programs.
While the world moves quickly to contain the Ebola virus, businesses across the globe are scrambling to figure out how best to manage workplace concerns and protect their employees. But as employers develop their Ebola response strategies, they should also be mindful of employee privacy, anti-discrimination, and other employment laws and regulations.
The Supreme Court is set to weigh in on several key questions for employers this term related to employee discrimination. When does an employer have to accommodate a pregnant employee? How about a job applicant who wears a head scarf in an interview but does not make it clear she is doing so for religious reasons and needs an accommodation? Can a court decide whether the EEOC has done enough to resolve your case? Here are three key EEO cases to keep your eye on in the coming months. Read More
On October 7th, a federal district judge granted summary judgment against the U.S. Equal Employment Opportunity Commission (EEOC) in its lawsuit against CVS. The EEOC had challenged the nation’s largest integrated provider of prescriptions and health-related services for its employee separation agreement. The EEOC’s Chicago office had filed the suit in February, alleging the company’s separation agreement violated its employees’ Title VII rights to communicate with the EEOC and file discrimination charges. Read More
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.