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.
In an unwelcome, mid-summer surprise for the business community, President Obama signed the Fair Pay and Safe Workplaces Executive Order on Thursday July 31, 2014 requiring federal contractors to report violations of federal and state labor and employment laws and prohibiting certain contractors from requiring that employees arbitrate disputes alleging violations of Title VII or claims for sexual assault or harassment. The Executive Order also requires federal contractors to provide relevant information about hours worked and overtime on employee paychecks.
Last Tuesday, a Magistrate Judge in the United States District Court for the Southern District of New York granted partial class certification in a case where plaintiffs allege that the United States Census Bureau used arrest records to screen out job applicants, thereby transferring disparities in arrest and conviction rates for African-Americans and Latinos into the agency’s hiring practices and setting up hurdles to employment that disproportionately affected these groups in violation of Title VII. Read More
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
The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. Read More
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
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). Read More
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
The U.S. Supreme Court held on Monday that a plaintiff alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that retaliation was the “but-for” reason for an adverse employment decision. The mixed-motive analysis, whereby a plaintiff need only show that the illegal reason played a part in the decision, now no longer applies to retaliation cases. Read More
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. Read More