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.
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.
The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court. Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit. Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation. In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.
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.
On April 16, 2015, the New York City Council, by a vote of 47-3, approved legislation that would prohibit the use of credit checks in employment decisions except in limited circumstances. The bill, which is expected to be signed by Mayor Bill De Blasio, would amend the New York City Human Rights Law to make use of credit history in employment decisions an unlawful discriminatory practice. In passing this law, New York City joins the growing number of states and municipalities that have enacted legislation to restrict the ability of employers to request or use the credit history of applicants and employees. These state and local initiatives stem from the increased use of credit history as an employment screening tool and from concerns that credit history is not relevant to the performance of many jobs, and moreover, may adversely affect certain groups, including minorities and low-income individuals. The New York City bill is noteworthy in that it is one of the most restrictive laws to date, even after certain exceptions were added to the proposed legislation.
For the second time in less than two months, a federal district court judge has dismissed a U.S. Equal Employment Opportunity Commission (EEOC) challenge to an employer’s separation agreement due to the agency’s failure to conciliate. On December 2, a federal district court judge in Colorado dismissed the portion of a lawsuit against CollegeAmerica alleging that the college’s separation and release agreements interfered with employees’ rights under the Age Discrimination in Employment Act (ADEA). In dismissing the claim, the judge held that the EEOC failed to give notice to the college or engage in conciliation efforts regarding the separation agreements being challenged in the lawsuit. This decision comes on the heels of a dismissal of a similar suit brought by the EEOC against CVS Pharmacy, which we wrote about in an earlier blog post.
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
The EEOC suffered another fatal blow to its systemic discrimination initiative on Monday when the Second Circuit held that the Commission’s Equal Pay Act (EPA) complaint against the New York Port Authority was too barebones to survive.
