In the first-of-its-kind ruling last week, the Fifth Circuit held that the EEOC’s investigators and lawyers cannot rely on its “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” to bring enforcement actions. Finding that the guidance amounted to a substantive rule, the Fifth Circuit panel determined that the guidance overstepped EEOC’s authority to force the State of Texas to consider hiring convicted felons to state-wide positions. The decision on its face confirms the general principle that EEOC does not have the authority to engage in rulemaking on substantive discrimination laws and was limited to a specific injunction. However, the decision could have far-reaching consequences for the EEOC’s various substantive guidelines. READ MORE
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.
Following up on our recent post regarding pregnancy discrimination developments, the Equal Employment Opportunity Commission issued the Enforcement Guidance: Pregnancy Discrimination and Related Issues on July 14, 2014. This is the first comprehensive update of the EEOC’s guidance on discrimination against pregnant workers in thirty years, since its 1983 Compliance Manual chapter. One major development in the new Enforcement Guidance is that pregnancy discrimination claims are not limited to the current pregnancy under the PDA – they can be based on “past pregnancy, childbirth, or related medical conditions.” Thus, the EEOC will more likely find a causal connection between a past pregnancy and the challenged employment action if there is close timing between the two, however a longer time gap between the pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination.