EEOC Rules Sexual Orientation Discrimination Prohibited

Posted on July 21, 2015 by SW Law

Employers cannot discriminate against employees on the basis of sexual orientation, according to a ruling by the Equal Employment Opportunity Commission (EEOC). The question is, will this ruling ultimately persuade federal courts to agree?

No federal law currently explicitly prohibits employment discrimination on the basis of sexual orientation. Several states do have such laws.

The case in question involved a federal air traffic controller who claimed he was denied a permanent position, in part, because he is gay. In a 3-2 opinion, the Commission held that discrimination on the basis of sexual orientation because it is gender based discrimination, which is illegal under Title VII of the Civil Rights Act of 1964.

In coming to this conclusion, the Commission noted that sexual orientation discrimination directly relates to gender. The opinion stated

For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.

In addition to this, the Opinion applied cases involving race discrimination to note that discrimination based on sexual orientation was “associational” discrimination. That is, discrimination based on associating with an individual who is in a protected class. In addition, the Commission stated that sexual orientation discrimination can be based on gender stereotypes, and is therefore illegal.

The EEOC’s decision only directly applies to federal employees. However, federal courts do give deference to the Commission’s interpretation of Title VII. Certainly, all the federal circuits could either accept or reject the EEOC’s interpretation. Any courts that disagree with the Commission decision could find that had Congress intended to provide protection for sexual orientation in Title VII, it would have explicitly done so.

The likely result of this will be a split in the federal circuits, which would probably lead to the Supreme Court having the final say. Of course, new legislation could moot this issue one way or the other.

Until this issue is clarified legislatively or by the Supreme Court, private employers covered by Title VII – those with 15 or more employees – should be aware that the EEOC’s decision has put sexual orientation discrimination on the table, and the agency will likely accept charges based on such alleged discrimination.

Now may be a good time to review policies and training to attempt to minimize potential exposure for the new charges and litigation that are almost certain to ensue.

Supreme Court Allows Judicial Review For EEOC Conciliation Efforts

Posted on May 1, 2015 by SW Law

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.

EEOC Issue Proposed Rules on Employer Wellness Programs

Posted on April 20, 2015 by SW Law

By R. Joseph Leibovich
(901) 328-8269

The EEOC today published a Notice of Proposed Rulemaking regarding employer wellness programs and the Americans With Disabilities Act.

Many employers have started instituting wellness programs aimed at a healthier workforce, which could also have the effect of lower health care costs.

Under proposed rules, wellness programs that offer incentives to employees for achieving certain health goals would be permissible. However, there would be limitations on them.

Such programs are aimed at issues such as weight loss, getting employees to stop smoking, and monitoring cholesterol levels.

The EEOC has not been terribly supportive of these programs – or at least in how they have been implemented, and the agency has sued employers over them.

Under the EEOC’s proposed rules, wellness programs would be significantly restricted.

According to a Fact Sheet published by the agency, such programs would have to meet the following criteria:

1. Wellness programs would have to be reasonably designed to promote health or prevent disease.

According to the EEOC, such programs must actually have a reasonable chance of improving participants’ health or preventing disease for participants. The programs must otherwise be compliant with the EEOC.

Furthermore, if such a program collects medical data, that data must actually provide feedback to the participants with that data or use it to properly design a program.

2. Participation must be voluntary.

According to the EEOC, this means that employees who refuse to participate cannot be denied health benefits or face discipline, and employers cannot coerce, intimidate or threaten employees to achieve health goals. Furthermore, there would have to be notice of what medical information will be collected, how it will be used, and how it will be kept confidential.Watch movie online The Transporter Refueled (2015)

3. Limited incentives would be allowed.

Under the proposed rules, an incentive in the form of lessened insurance costs to the employee may not exceed 30 percent of the cost of employee-only coverage. The example given by the EEOC explains that if employee only coverage costs an employee $5,000, the maximum reduction due to an incentive would be $1500.

4. Medical information must be kept confidential.

Wellness programs could not disclose individually identifiable medical information for employment purposes, and there would have to be appropriate training on dealing with confidentiality.

5. Reasonable accommodations for wellness programs would be required.

Thee EEOC gives examples of some possible accommodations, such as providing an interpreter for hearing impaired employees at nutrition classes, braille on program materials, and alternatives to blood testing if an employee’s disability would make blood testing dangerous.

The proposed rules are now in a 60 day public review period, during which individuals can provide their commentary. This is set to expire June 19, 2015. A final rule would follow.

Cover Photo By Brandon.wiggins (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

EEOC “Celebrates” Equal Pay Day

Posted on April 14, 2015 by SW Law

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.

EEOC Files Lawsuits Over Background Checks

Posted on June 13, 2013 by SW Law

By Joe Leibovich
(901) 328-8269

The EEOC has filed two lawsuits, including one against Tennessee based Dollar General Corp., over the use of criminal background checks. The lawsuits filed this week against Dollar General and BMW essentially allege that the background checks have a disparate impact on minority employees and applicants.

The EEOC takes the position that background checks affect African Americans adversely due to disparities in arrest and convict rates between minority and White individuals.

The Agency issued guidance to employers in April 2012 regarding the use of criminal background checks. In that guidance, the EEOC reiterated its position that the fact of an arrest has little meaning, as that does not provide proof of criminal wrongdoing.

On the other hand, a conviction is reasonable proof that the person did what they were accused of.

But, according to the Agency, that alone is not enough in light of the disparate impact on African Americans. The EEOC turned to a 1977 Eighth Circuit case, Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977), to describe when the use of criminal background checks may be valid. The EEOC listed three Green factors

1. The nature and gravity of the offense or conduct;

2. The time that has passed since the offense or conduct and/or completion of the sentence; and

3. The nature of the job held or sought.

The guidance went in depth into each of these factors, and ultimately provided a set of “Employer Best Practices”. The EEOC states employers should:

Eliminate policies or practices that exclude people from employment based on any criminal record.
Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
Identify essential job requirements and the actual circumstances under which the jobs are performed.
Determine the specific offenses that may demonstrate unfitness for performing such jobs.
Identify the criminal offenses based on all available evidence.
Determine the duration of exclusions for criminal conduct based on all available evidence.
Include an individualized assessment.
Record the justification for the policy and procedures.
Note and keep a record of consultations and research considered in crafting the policy and procedures.
Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The EEOC has indicated this issue is a high priority for the Agency. And these new lawsuits would seem to indicate that is the case. Both Dollar General and BMW deny their policies are unlawful.

It is certainly not possible to predict whether or not the EEOC’s lawsuits will ultimately prevail. But, it is vital for employers to note that the EEOC is looking at these policies. Both lawsuits do stem from individual complaints, but it is possible the Agency could aggressively pursue employers over this issue.

In any event, and certainly while we wait for the results of this litigation, employers should take a look at their background check policies to see if they are in compliance with the EEOC’s guidance.