Supreme Court Allows Judicial Review For EEOC Conciliation Efforts

By Joe Leibovich
(901) 328-8269

The Supreme Court in a unanimous decision this week struck a blow to the Equal Employment Opportunity Commission’s ability to file lawsuits against employers without trying in good faith to work out the issues first.

The EEOC is the federal agency that enforces the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.  Under Title VII, if the EEOC investigates a charge of discrimination and finds reasonable cause to pursue it, the agency must make efforts to remedy the alleged discrimination through an informal conciliation process prior to filing a lawsuit in federal court.

In Mach Mining, LLC v. EEOC, a woman claimed she had not been hired as a coal miner due to her gender.  She filed a charge with the EEOC, and the agency determined that the employer had discriminated against the individual and women in general.  The EEOC did send a letter to the company and the complainant inviting them to conciliate.  The record does not indicate what happened next, but about a year later the EEOC advised Mach Mining that conciliation efforts had been attempted and were unsuccessful, and the EEOC filed suit.

Mach Mining contended that the EEOC had not properly attempted conciliation efforts as required by Title VII.  The trial court requested the opportunity to review the efforts to conciliate. The EEOC was allowed to take up an immediate appeal as to whether or not judicial review is proper.  The Seventh Circuit held it was not.  The Supreme Court, however, disagreed.

Justice Kagen’s opinion holds that a court can review the EEOC’s conciliation efforts.  She stated “Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”

The opinion also set forth the level of review that is appropriate, and did so narrowly.  The Court had to take into account the fact that conciliation efforts are protected by confidentiality.  Thus, the Court held that:

1.  The EEOC must inform the employer about the specific allegation, such as through a “Reasonable Cause” letter;

2.  The Notice must describe what the employer did and which employees (or classes of employees) have suffered as a result; and

3;  The EEOC must try to engage the employer in some form of discussion in an effort to give the employer a chance to remedy the alleged discriminatory practice.

The opinion states that a court should not go beyond this bare bones review to determine whether or not the EEOC complied with its conciliation obligations.

The Mach Mining decision is helpful to employers as it should afford them a genuine opportunity to address alleged discriminatory practices prior to the EEOC filing a lawsuit against them.  Nothing in this opinion affects an individual’s right to file a suit after receiving a Dismissal and Notice of Rights letter from the EEOC.  So, although this opinion only applies in certain Title VII lawsuits, it is one that can help limit lawsuits by the EEOC where an employer has truly not been given the opportunity to remedy a problem.

Interestingly in light of this week’s grand opening of the Bass Pro Shop in the Pyramid in Downtown Memphis, this was an issue in a lawsuit by the EEOC against that company.  In 2011, the EEOC filed a lawsuit against Bass Pro alleging race discrimination.  In that case, Bass Pro argued that the lawsuit should be dismissed as it claimed the EEOC did not give it a proper opportunity to conciliate the case.  A federal judge in Texas ultimately did review the conciliation efforts and determined that the EEOC had not acted unreasonably or arbitrarily, and, therefore the court refused to dismiss the lawsuit. The issue is now on appeal to the Fifth Circuit.

Employees Given New Cause Of Action For “Guns In Trunks”

 

By R. Joseph Leibovich
(901) 328-8269

Tennessee Governor Bill Haslam this week signed into law a “clarification” of the state’s so called “Guns In Trunks” Law.

The original law, passed in 2013 (Tenn. Code Ann. 39-17-1313) gave individuals with a carry permit the right to store their handguns in their cars on any parking lot they were entitled to be on, including their employer’s.

An Attorney General’s opinion stated that while the law legally allowed permit holders to store their guns, nothing in the law prohibited employers for firing individuals who did so in violation of company policy.

This week, Governor Haslam signed Tenn Code Ann 50-1-312, which, in part states “No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area…”

The law does specifically state that an employee bringing a cause of action under this statute has the burden of proof of showing that adverse employment action was based solely on the employee’s possession or transportation of a handgun or ammunition.

The “solely” standard is often a difficult one for a plaintiff to meet, but employers do need to be cognizant of this new law and be sure that terminations or other adverse actions are for articulable, genuine reasons other than an employee’s lawful storage of a weapon in their car.Watch movie online The Transporter Refueled (2015)

Tennessee employers should review their handbooks and potentially tweak any weapons policies they may have in place.

The new law goes into effect July 1, 2015.

Photo by http://flickr.com/photos/glasgows/ (http://flickr.com/photos/glasgows/432945997/) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

 

EEOC “Celebrates” Equal Pay Day

By R. Joseph Leibovich
(901) 328-8269

The EEOC has noted that today is Equal Pay Day for 2015.  Equal Pay Day is the day into a new year that, on average, a woman must work to equal the wages paid to a man in just the prior year.  In other words, according to the EEOC, if a statistically average man and a woman both started work on January 1, 2014, the woman would have to work until April 14, 2015 to make the same amount of money the man did in just 2014.

This is based on statistical data which shows, nationwide, women make on average 78.3 cents for each dollar a man makes.

To address the disparity in pay, the EEOC has put out a fact sheet on Equal Pay, which can be found here.  The EEOC notes that wage disparity “not only includes discrimination in the regular rate of pay but also in overtime pay, bonuses, stock options, profit-sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and other benefits.”

Of course, the 78.3 cent figure is a national average. CNN has put together a chart showing the average disparity state by state.  Women in Tennessee, for example, make on average 82.7 cents for ever dollar men earn.

EEOC chair, Jenny Yang this week sent out a message indicating that the EEOC has taken and will continue to take action to address pay disparity through education and enforcement procedures.

According to Ms. Yang, employers can, and should, take the following steps to help eliminate pay disparity:

– Evaluate compensation systems annually and take action to correct problems;

– Designate individuals to monitor pay practices;

– Provide training to supervisors;

– Ensure that job related criteria are used to determine base pay, raises, overtime, and bonuses and in making decisions about performance evaluations, job assignments, and promotions;

– Set starting salaries that eliminate discriminatory pay gaps on the basis of prior salary or salary negotiations.Watch movie online The Transporter Refueled (2015)

Employers should carefully look at their pay practices to make sure that they have not unintentionally created pay practices that maintain or widen the gender gap in pay instead of reducing it.

 

Poking Into Applicants’ Facebook Accounts Is Dangerous

By Joe Leibovich
(901) 328-8269
jleibovich@swlawpllc.com

Some employers want to be friends with job applicants. And that’s a dangerous situation.

In an effort to get to know applicants better, some employers have started asking for potential employees’ Facebook passwords, so they can gain access to online posts and other information. The thinking is that this will really let the employer know a lot more about the people they may hire than a standard interview would.

This may sound like a good idea, but it is a volatile one.

First, privacy advocates are screaming that this is a massive violation of individual rights, and it is likely that companies that engage in this practice will receive some negative publicity.

But there are also legal issues in play.

According to the Associated Press,Senators Chuck Schumer and Richard Blumenthal of Connecticut have suggested that this practice is a violation of the federal Stored Communications Act or the Computer Fraud and Abuse Act, and are requesting the Department of Justice and the EEOC investigate the practice.  There are also states considering legislation that would prohibit such inquiries.  Having someone’s password gives you access to more than their posts.  It lets you read private correspondence and messages.  This, on its face, seems to be overreaching and an invasion of privacy.

But even if this practice is legal, is it advisable?  The answer to that question is likely no.  Facebook profiles and postings contain a gold mine of information, certainly.  But some of that information is material potential employers should not have and should not want to have.

Facebook postings can contain information on matters that employers are prohibited from asking about in an interview, such as age, religion and disability status.

“Great!” some employers think.  “This gives me data I want without having to directly ask about it!”

Well, that sounds good. But is it really?  Having this data also opens up employers to discrimination claims.  An applicant who is rejected for valid reasons could easily point to data on their Facebook postings that show they have a medical condition, or that they are over 40, and claim that is why the hiring decision was made.  Can employers eventually overcome that in court?  Maybe.  But why should they give plaintiffs that extra weapon to muddy up the water?

Employers have many perfectly legal tools to gather information on applicants that do not expose them to this potential level of liability and the expense of litigation, whether it is frivolous or not.

It seems that the best practice for employers is to be anti-social when it comes to social media and potential employees.