Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

During a House Subcommittee hearing, Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien responded to questions about recent agency enforcement and regulatory initiatives. Among other topics, Berrien touched on an employer’s use of credit, criminal, and unemployment histories in making employment decisions, as well as the agency’s renewed focus on systemic discrimination cases.

Subcommittee Chairman Rep. Tim Walberg (R-MI) opened the hearing by commenting that the agency has “traditionally focused its enforcement activities on individual complaints of discrimination,” but that under the recently-approved Strategic Plan, the agency has “shifted more attention toward systemic discrimination that involves an alleged pattern or practice of discrimination. The commission has set a goal that up to 24 percent of all litigated cases be systemic in nature.” Walberg criticized this approach as not being in the best interest of employers and employees. He said that many such investigations “are launched without any employee alleging discrimination.” What purpose does it serve, he asked, when the EEOC investigates businesses without any evidence of wrongdoing? He claimed that the EEOC should not be diverting its resources to investigating “a hunch.”

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Pursuant to the agency’s Strategic Plan, the Equal Employment Opportunity Commission (EEOC) has revised and updated four disability guidance documents. Among other goals outlined in the Strategic Plan is to ensure the EEOC “provides up-to-date guidance on the requirements of antidiscrimination laws.” To that end, the agency has made available revised question and answer documents on how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities.

According to the EEOC:

the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

Photo credit: timmy

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Last week the Equal Employment Opportunity Commission (EEOC) settled its first lawsuit involving a discrimination claim based on an applicant’s genetic history. The lawsuit alleged that Fabricut, a fabric distributor, violated the Genetic Information Nondiscrimination Act (GINA) when it requested a family medical history in its post-offer medical examination to a temporary employee and then violated the Americans with Disabilities Act (ADA) by denying a regular position to the temporary employee because it regarded her as having carpal tunnel syndrome.

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The Equal Employment Opportunity Commission (EEOC) is seeking input from “individuals, employers, advocacy groups, agency stakeholders and other interested parties” on its Quality Control Plan (QCP) draft principles. The QCP’s purpose is to revise the standards used to assess the quality of the agency’s investigations and conciliations of discrimination complaints. In February 2012 the EEOC approved a more comprehensive Strategic Plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Pursuant to this Strategic Plan, the EEOC is to develop and approve a QCP that will measure the agency’s performance in handling discrimination claims.

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Two bills introduced in both chambers of Congress on Thursday would extend employment protections and leave benefits to members of the gay and lesbian community. The first bill, the Employment Non-Discrimination Act (ENDA) (H.R. 1755, S. 815), would prohibit employment discrimination on the basis of sexual orientation and gender identity, while the second measure, the Family and Medical Leave Inclusion Act (H.R. 1751, S. 846), would allow employees to take leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse or partner and additional family members.

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By Joshua Roffman and Jade Cobb

The DOL’s Office of Federal Contract Compliance Programs (OFCCP) recently issued a final Notice rescinding its 2006 Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (Standards) and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination (Guidelines) regarding compensation discrimination. As discussed in the Notice, the Standards established “analytical procedures to be followed generally by OFCCP when issuing a Notice of Violation (NOV) alleging systemic compensation discrimination,” while the Guidelines provided a “methodology for contractors’ self-evaluation of their pay practices” that if followed, could provide contractors with a “safe harbor” during compliance reviews. In rescinding this guidance, the agency explained that it will no longer limit itself to one single approach that focuses exclusively on systemic discrimination, requires the use of multiple regression analyses, and mandates that employees be grouped by a “similarly situated employee group.” Other than stating that OFCCP will apply “Title VII principles” as the basis for determining whether a contractor has violated the Executive Order 11246’s ban on pay discrimination, however, the Notice, by design, provides no clear details regarding what will replace the 2006 Standards.

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Before adjourning for a week-long President’s Day recess, members of Congress introduced several bills addressing such issues as the use of an individual’s credit and/or bankruptcy history in employment; OSHA’s Voluntary Protection Program; minimum wage for tipped employees; and OFCCP and NLRB rulemaking. The following briefly discusses the labor and employment bills introduced the week of February 10, 2013:

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The DOL’s Office of Contract Compliance Programs (OFCCP) has issued a new directive advising federal contractors and subcontractors about potential discriminatory liability that could result from using criminal records as a screening device. According to the agency, policies and practices that exclude workers with criminal records without taking into account the age and nature of the offense could run afoul of Title VII of the Civil Rights Act by adversely impacting minority candidates. In addition to discussing the ways in which using criminal background checks may violate anti-discrimination laws, the directive provides information on the recently updated Equal Employment Opportunity Commission enforcement guidance on this topic, as well as the Training and Employment Guidance Letter (TEGL) issued by the DOL’s Employment and Training Administration that addresses the relevance of excluding candidates with criminal records to existing nondiscrimination obligations of public workforce system entities.

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The Equal Employment Opportunity Commission (EEOC) has made available on its website various data tables containing the agency’s discrimination charge and litigation statistics for fiscal year 2012. Overall, the EEOC received 99,412 private sector charges of discrimination between October 1, 2011 and September 30, 2012, down slightly from the 99,947 charges it received the prior fiscal year. The agency also filed fewer lawsuits in 2012 – 122 in 2012 compared to 261 in 2011 – and also resolved fewer cases – 254 in 2012 compared to 276 in 2011. The lawsuit resolutions in 2012 resulted in a total monetary recovery of $44.2 million, down from the $91 million obtained in the prior year.

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On Friday the U.S. Supreme Court agreed to decide whether a plaintiff asserting a retaliation claim under Title VII of the Civil Rights Act and similarly worded statutes must prove that the protected activity was the sole cause of, or merely a motivating or contributing factor to, the adverse employment action. A Supreme Court determination that such cases call for a motivating factor standard of proof instead of the more stringent “but-for cause” threshold could significantly increase the number of retaliation lawsuits filed against employers.

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The Equal Employment Opportunity Commission (EEOC) has announced its approval of a Strategic Enforcement Plan (SEP) that establishes agency priorities and integrates all components of the EEOC's private, public, and federal sector enforcement activities. The stated purpose of the SEP is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” Members of the Commission voted 3-1 on December 17, 2012 in favor of the SEP, a component of the EEOC’s larger Strategic Plan for 2012-2016. The final SEP includes some significant differences from the draft plan released in September, which will be discussed below.

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The U.S. Commission on Civil Rights (USCCR) has announced that it will hold a public briefing to examine the use of criminal background checks in employment. The meeting will discuss in particular how criminal background checks impact African American and Hispanic workers, as well as the Equal Employment Opportunity Commission’s (EEOC) recently-approved updated enforcement guidance on this topic in general. The fact that the USCCR is holding this public forum indicates that the use of criminal histories in employment continues to be a hot-button issue months after the EEOC issued its guidance. 

The briefing will take place from 9:00 am to 2:00 pm on Friday, December 7, 2012 at 1331 Pennsylvania Ave., NW, Suite 1150, Washington, DC 20425. The briefing will be broken up into three separate panels comprising government officials and academics; business and advocacy group members; and representatives from various trade associations.

Photo credit: Kirby Hamilton

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The Equal Employment Opportunity Commission’s (EEOC) newly released Performance and Accountability Report (PAR) (pdf) for fiscal year 2012 states that the agency recovered more than $365.4 million in monetary benefits through its private sector administrative activities, and $44.2 million through litigation. The PAR details the agency’s assessment of its program and financial performance for FY 2012, including number of private sector charges received, federal lawsuits filed, and monetary awards recovered. A more detailed breakdown of the EEOC’s charge statistics will be released later this year.

The PAR notes that the EEOC is in the early stages of implementing its Strategic Plan for Fiscal Years 2012–2016, the four-year plan that outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The FY 2012 PAR discusses the various benchmarks established by the Strategic Plan, and how well the agency met those goals this year. Highlights of the PAR include the following:

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The Equal Employment Opportunity Commission has released a question and answer fact sheet that appears to extend Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to protect employees or applicants who have experienced domestic or dating violence, sexual assault, or stalking outside of the workplace. The EEOC acknowledges that no federal employment statute specifically prohibits discrimination based on these categories, but provides examples of situations in which it believes employer actions stemming from the employee’s experience with sexual/domestic violence or stalking can give rise to Title VII or ADA violations.

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To commemorate Freedom From Workplace Bullies Week, presidents of the Service Employees International Union (SEIU) and National Association of Government Employees (NAGE) spoke in favor of legislation targeting workplace bullying. During the press conference sponsored by the Workplace Bullying Institute (WBI), WBI Director Gary Namie called for unions to support the Healthy Workplace Bill (HWB), a measure that has been introduced in 21 states since 2003, according to the organization.

Among other things, the HWB would define and make unlawful an “abusive work environment," and create a cause of action for “health harming cruelty at work.” Workplace bullying would be grounds for termination or other adverse employment actions. Aggrieved employees would be permitted to hold both the employer and the bully accountable, and would be entitled to seek backpay, benefits, compensation for emotional distress, and punitive damages, among other remedies. Under the terms of the bill, employers would be required to take preventative measures to avert bullying.

These initiatives are all pending at the state level. Notably, the WBI claims that state lawmakers in Massachusetts and New York have been relatively receptive to measures introduced in those jurisdictions. At this time, however, there is no indication that legislation will be introduced at the federal level, although the WBI claims that “negotiations are underway to hold an informational Congressional hearing on the topic to raise awareness among congressional legislators.” It is likely that unions will attempt to include anti-bullying clauses in collective bargaining agreements before such terms are passed as legislation at either the state or federal level.

Photo credit: Diego Cervo

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On September 19 Senator Bob Casey (D-PA) introduced the Pregnant Workers Fairness Act (S. 3565), a bill that would require employers to make reasonable accommodations for pregnant employees and job applicants as well as those with limitations related to childbirth. Modeled after provisions in the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act would institute certain anti-discrimination and retaliation protections for workers who request a reasonable accommodation related to their pregnancy, childbirth, or associated medical conditions, and prevent employers from requiring that a pregnant employee take leave if she could perform her job with a reasonable accommodation. The bill would also make it unlawful for an employer to require an applicant or employee affected by pregnancy or childbirth to accept a particular accommodation.

The same rights and remedies afforded by Title VII of the Civil Rights Act would apply to any violations of the Pregnant Workers Fairness Act. Public sector employees would be given similar remedies available under related civil rights statutes. Finally, the measure would direct the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the law within two years of the bill’s enactment.

In a press release, Sen. Casey said: “Pregnant workers face discrimination in the workplace every day, which is an inexcusable detriment to women and working families in Pennsylvania and across the country,” adding: “My bill will finally extend fairness to pregnant women so that they can continue to contribute to a productive economy while progressing through pregnancy in good health.”

A House version of this bill (H.R. 5647) was introduced by Rep. Jerrold Nadler (D-NY) on May 8, 2012. That bill has not advanced out of committee.

Photo credit: istockphoto

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On September 13 members of the House of Representatives introduced two measures that would expand and strengthen whistleblower protections in the private sector. The Non-Federal Employees Whistleblower Protection Act (H.R. 6406), introduced by Reps. Jackie Speier (D-CA) and Todd Platts (R-PA), would extend whistleblower protections to non-federal government contractors and subcontractors who disclose information about the misuse of federal funds. The Private Sector Whistleblower Protection Streamlining Act of 2012 (H.R. 6409) introduced by Rep. Lynn Woolsey (D-CA) seeks to expand and streamline the administration of whistleblower protections for private-sector employees.

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The Equal Employment Opportunity Commission (EEOC) has released a draft of its Strategic Enforcement Plan (SEP) for public comment. The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, a proposal approved in February 2012 that directed the EEOC to develop a SEP that (1) establishes priorities for the EEOC and (2) integrates all components of EEOC's private, public, and federal sector enforcement. Earlier this summer the EEOC held a public meeting to solicit input on the SEP’s development.

The draft SEP identifies the following priorities for national enforcement in both the private and public sectors:

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According to a new report on the collection of pay data, any increased efforts by the Equal Employment Opportunity Commission (EEOC) or Office of Federal Contract Compliance Programs (OFCCP) to gather detailed compensation information absent a more comprehensive plan for obtaining and measuring such data – as would be required under legislative and regulatory proposals – may increase employer burdens without providing the agency with beneficial statistics. The National Academy of Science’s (NAS) report – Collecting Compensation Data from Employers, Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin – concluded that agencies have yet to set forth a strategy for gathering and using the wage data to combat discrimination. The report provides a number of suggested steps that the EEOC and related agencies should take before imposing additional compensation reporting requirements on employers.

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Legislation was introduced earlier this week that would extend whistleblower protections to employees who provide information to the Department of Justice (DOJ) regarding criminal antitrust violations. Introduced by Senators Patrick Leahy (D-VT) and Chuck Grassley (R-IA), the Criminal Antitrust Anti-Retaliation Act (S. 3462) (pdf) would amend the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 by adding a new section on whistleblower protections for employees, contractors, subcontractors, and employer agents.

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Legislation introduced on July 26, 2012 would make it unlawful for an employer to ask job applicants whether they have ever been convicted of a crime until after a conditional offer of employment is made, except in limited circumstances. Specifically, the Ban the Box Act (H.R. 6220), introduced by Rep. Hansen Clarke (D-MI), would prevent an employer from “mak[ing] inquiries of an applicant for employment or otherwise seek[ing] information about such an applicant (including through the use of any form or application) relating to whether such applicant has ever been convicted of a criminal offense.” The measure would permit such questions only after a conditional offer for employment has been made, or where offering the applicant the position before a criminal background check is conducted “may involve an unreasonable risk to the safety of specific individuals or to the general public.”

The bill would direct the Equal Employment Opportunity Commission (EEOC) to issue regulations defining the categories of employment applicable to the limited exceptions, and factors that employers would consider in assessing whether an individual's past criminal history poses an unreasonable risk.

Aggrieved job applicants would be able to avail themselves of the same rights and remedies offered to them under Title VII of the Civil Rights Act.

The bill is not expected to advance this year. In April the EEOC approved enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions.

Photo credit: Kirby Hamilton

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On Wednesday, July 18, 2012, the Equal Employment Opportunity Commission (EEOC) held a public meeting to solicit input as the agency finalizes its Strategic Enforcement Plan (SEP). The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, approved on February 22, 2012, which includes three elements: (1) strategic enforcement, with increased focus on systemic discrimination claims and increased litigation of systemic cases; (2) education and outreach, including partnering with various stakeholders; and (3) improving operations, particularly focusing on quality control efforts among its offices around the country.

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On June 25, the U.S. Supreme Court agreed to decide whether an employer is liable for a supervisor’s harassment if those supervisors are given the authority to direct and oversee their victim’s daily work, or only when the harassers have the power to “hire, fire, demote, promote, transfer, or discipline” their alleged victim. The Second, Fourth, and Ninth Circuits have held employers liability in the first instance, while the First, Seventh, and Eighth Circuits have limited the employer’s liability to the stricter supervisor liability standard.

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Legislation introduced in both the House and Senate on Thursday would lower the bar for class action certification in employment discrimination cases, and effectively invalidate last year’s Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes. In that case, the Supreme Court adopted a more rigorous standard for determining when a case may proceed as a class action. Based on Dukes, it is no longer sufficient for plaintiffs seeking class certification to allege a common question of law or fact. Instead, the Court held, they must establish that a classwide proceeding will generate common answers that will resolve the central issues in the case “in one stroke.” The Court noted that “[d]issimilarities within the proposed class ...have the potential to impede the generation of common answers.” More specifically the Court held that company practices permitting subjective decision-making by managers are insufficient to establish sufficient commonality to warrant a discrimination class action unless there is “significant proof that an employer operated under a general policy of discrimination.”

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On June 12 the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss the merits of the bipartisan Employment Non-Discrimination Act (ENDA) (H.R. 1397, S. 811), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. This bill was reintroduced in both the House and Senate last year, and has the President’s support.

Generally, ENDA would make it an unlawful employment practice for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

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As expected, supporters of the Paycheck Fairness Act (S. 3220) failed to muster the votes needed to advance the bill to a final Senate vote. Despite the Administration’s Statement of Policy (pdf) “strongly support[ing]” the measure’s passage, the Senate voted 52-47 in favor of moving it forward, 8 votes shy of the 60 needed. A procedural maneuver to bring companion legislation (H.R. 1519) to the House floor recently failed as well, effectively killing any chance of passage the Paycheck Fairness Act would have this year.

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Updated: September 18, 2012

In the week leading up to Memorial Day, Senators Robert Casey (D-PA) and Mark Pryor (D-AR) introduced legislation that would increase reemployment and leave protections for veterans and returning members of the National Guard and Reserves. The first bill, the Servicemembers Access to Justice Act (S. 3233) (pdf) introduced by Sen. Casey, would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) – which provides reemployment protections for returning service members and prohibits discrimination based on military service – by making it easier for those seeking redress under this Act to bring an action in civil court. As outlined in a press release, the provisions of this bill would, among other things:

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On May 22, 2012, Sen. Barbara Mikulski (D-MD) reintroduced the Paycheck Fairness Act (S. 3220) in the Senate with 31 co-sponsors. This legislation would amend the Fair Labor Standards Act (FLSA) to, among other things, provide for potentially unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims. According to one report, Sen. Majority Leader Harry Reid (D-NV) intends to file a motion to advance this bill the week of June 4.

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The U.S. Equal Employment Opportunity Commission (EEOC) has created an online database that allows users to access private sector workplace discrimination charge statistics for each U.S. state and territory for fiscal years (FY) 2009-2011. The charge receipt data is broken down by type of discrimination alleged, as well as by the percent of total state and national charges. The EEOC intends to update this database each fiscal year.

In November 2011, the agency released its FY 2011 Performance and Accountability Report (PAR), which included details about the charge statistics filed during that period.

Photo credit: Eclipse Digital

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Stuart Ishimaru, who stepped down as a Commissioner with the Equal Employment Opportunity Commission (EEOC) on April 30, will now serve as the director of the Office of Minority and Women Inclusion (OMWI) at the Consumer Financial Protection Bureau (CFPB). The CFPB is charged with, among other tasks, rule-making, supervision, and enforcement for federal consumer financial protection laws; promoting financial education; monitoring financial markets for new risks to consumers; and enforcing consumer finance non-discrimination laws. 

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On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance. The Commission was scheduled to address guidance on reasonable accommodations under the Americans with Disabilities Act (ADA) as well, but did not consider this topic during the April 25 meeting. Although the use of credit history for employment screening had been a topic of discussion during an earlier Commission meeting, the Commission has not issued guidance on this topic either. Given Commissioner Stuart Ishimaru’s (D) impending resignation, it is likely that any new guidance on reasonable accommodation or credit history would need to be a bipartisan effort with only four Commissioners if such guidance is issued at all anytime soon.

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In a landmark decision, the Equal Employment Opportunity Commission (EEOC) has determined that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. The case, Macy v. Holder, was brought by Mia Macy, a former male police detective who contends she was denied a job as a ballistics technician with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Agency”) on account of her decision to become a woman. The EEOC’s finding that Macy may proceed with this cause of action could have wider repercussions in the private sector.

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The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act (ADA).

The April 25 meeting will not be the first time the EEOC has considered these issues. In July 2011, the EEOC held a public meeting to discuss the use an applicant’s criminal record. Three months later the EEOC’s Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. This non-binding document suggested that the Commission (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. It is expected that the EEOC will offer additional guidance on this topic during the April 25 meeting.

Similarly, in June 2011 the EEOC held a separate meeting to discuss reasonable accommodations and leaves of absence under the ADA. During that meeting the agency indicated that it would release further enforcement guidance on these ADA matters. It is anticipated that the EEOC will provide such guidance during next week’s meeting or shortly thereafter.

The meeting is scheduled to begin at 9:30 ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Those interested in attending are asked to arrive 30 minutes ahead of time due to limited seating.

Photo credit: VladKol

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During a hearing conducted on Wednesday by the House Subcommittee on Health, Employment, Labor, and Pensions, panelists – including Littler shareholder Alissa Horvitz – debated the merits of recent regulatory and enforcement initiatives established by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). According to Horvitz, while the OFCCP’s mission is a laudable one that should be supported, many in the business community are becoming frustrated with the overly burdensome requirements that the agency imposes on federal contractors. Within the past couple of years the OFCCP has instituted a number significant policy and regulatory changes. Horvitz testified (pdf) that a number of employers are terminating their contracts with the federal government while others are deciding not to become government contractors because of the onerous compliance barriers imposed.

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The Equal Employment Opportunity Commission (EEOC) has released its final rule (pdf) amending its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. The changes were spurred by the 2005 U.S. Supreme Court decision Smith v. City of Jackson, in which the Court held that disparate impact claims are cognizable under the ADEA and that an employer could use RFOA as a defense against such a claim. Three years later in Meacham v. Knolls Atomic Power Lab the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case. The final rule seeks to clarify the scope of the RFOA defense in this context.

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On March 13, 2012, lawmakers reintroduced a bipartisan bill in the Senate that would overturn a 2009 Supreme Court decision that toughened an employee’s burden of proof in bringing a discrimination claim under the Age Discrimination in Employment Act (ADEA). The Protecting Older Workers Against Discrimination Act (POWADA) (S. 2189) introduced by Senators Tom Harkin (D-IA), Chuck Grassley (R-IA), and Patrick Leahy (D-VT) would explicitly reject the June 18, 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc., which held that a plaintiff bringing a claim under the ADEA must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. In order to establish a viable claim under Title VII of the Civil Rights Act, by contrast, an employee need only demonstrate that the protected category such as race or sex was a contributing factor in the adverse employment decision. In such a “mixed motive” case the burden then shifts back to the employer to show that it would have made the same decision regardless of the unlawful contributing factor.

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The Equal Employment Opportunity Commission (EEOC) has issued revised guidance documents for employers and disabled veterans that address how various employment laws govern veterans’ employment. According to the EEOC, the revised documents incorporate the changes made by the Americans with Disabilities Act Amendment Act (ADAAA), “which make it easier for veterans with a wide range of impairments – including those that are often not well understood – such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.” The first guidance document aimed at employers differentiates between the protections afforded to veterans with service-connected disabilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities; and provides employers with information on the applicable laws and regulations governing this topic. For example, the guidance explains that:

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On February 22, 2012 the Equal Employment Opportunity Commission (EEOC) voted 4-1 in favor of its 4-year strategic plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. As with the draft version of the plan released last month for public comment, the final document places a great deal of emphasis on enforcement and the targeting of systemic discrimination.

One way the new strategic plan differs from the EEOC’s prior plan, according to the agency, is how it measures its performance in reaching the following three strategic objectives: combating employment discrimination through strategic law enforcement; preventing employment discrimination through education and outreach; and delivering excellent and consistent service through a skilled and diverse workforce and effective systems. According to EEOC Commissioner Chai Feldblum during the Feb. 22 meeting, the plan “focuses less on measuring numbers for numbers’ sake, and more on measuring what we need to do in order to achieve our long-term goals.” As stated in the Message from the Commission,  the diminished reliance on specific number goals:

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Three separate panels of witnesses testified at the February 15 Equal Employment Opportunity Commission (EEOC) meeting to discuss the laws that govern pregnancy- and caregiver-based employment discrimination, current charge statistics on these types of claims, and how to help employers comply with the many laws involved. Several panelists urged the Commission to update and clarify current guidance to better assist employers.

Discrimination Statistics

EEOC legal counsel Peggy Mastroianni discussed the general requirements of the Pregnancy Discrimination Act, as well as the provisions of the Americans with Disabilities Act (ADA) that may apply to pregnant workers. Mastroianni stated that the EEOC has long worked to eliminate discrimination based on sex, including discrimination based on pregnancy, relying on a combination of enforcement, policy, and outreach efforts. She noted that, more recently, the Commission has “expanded our focus to address newer forms of discrimination, including unlawful discrimination against individuals with caregiving responsibilities.” According to Mastroianni, over the past decade the EEOC and state and local Fair Employment Practices agencies (FEPAs) “have received 53,865 charges alleging pregnancy discrimination, resolved 52,396 charges, and obtained $150.5 million in monetary benefits for Charging Parties.”

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After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma. In the discussion letter, the EEOC stated that:

If an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

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On Wednesday, February 15, 2012, the Equal Employment Opportunity Commission (EEOC) plans to hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities. According to the meeting agenda, three separate panels will address the following topics: understanding pregnancy and caregiver discrimination in today’s workplace; statutory framework and enforcement efforts; and the way forward: implications for the future.

In April 2009, the EEOC released a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. More recently, the Department of Labor issued a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA), a law that, among other provisions, extends current military caregiver leave entitlements. At this point, it is unclear whether the agency plans to update its guidance regarding either pregnancy- or caregiver-related employment discrimination.

Those wishing to attend the meeting, to be held at 9:30 a.m. in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507, are encouraged to arrive at least 30 minutes in advance due to limited seating.

Photo credit: VladKol

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Because the Equal Employment Opportunity Commission (EEOC) received no adverse comments to a proposed rule extending certain recordkeeping and reporting requirements to entities covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), the agency is adopting the proposal as final. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The final recordkeeping rule “does not require the creation of any documents or impose any reporting requirements,” but rather amends current Title VII and Americans with Disabilities Act (ADA) recordkeeping regulations to add references to GINA. These recordkeeping regulations under Title VII and the ADA “require all covered entities to preserve all employment and personnel records that they make or keep for a specified period of time, and to preserve all records relevant to a Title VII or ADA charge until the charge is resolved.” The same obligations are now applicable for GINA-related charges.

The final rule becomes effective on April 3, 2012.

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According to the newly-released enforcement and litigation statistics, private sector employees filed a record number of charges with the Equal Employment Opportunity Commission in 2011. A total of 99,947 charges of employment discrimination were filed with the EEOC in the 12-month period ending on September 30, 2011. During this period, the EEOC filed 261 merit-based lawsuits across the U.S., an increase of 11 lawsuits over the prior year. In addition, claimants received $455.6 million in relief through agency enforcement, mediation and litigation efforts. These findings were first brought to light in the EEOC’s Fiscal Year (FY) 2011 Performance and Accountability Report (PAR) released in November 2011. The charge statistics flesh out the types of claims that were filed during the year, giving employers some indication as to which charges of discrimination are the most frequent and/or most costly to resolve. Highlights of the 2011 data include the following:

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The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012-2012, and is soliciting public comment before the five-year plan is finalized. The Congressionally-required strategic plan outlines the agency’s goals for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The document discusses 13 performance benchmarks that it will use to measure how well the agency achieves its three main performance goals of (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent service through effective systems, updated technology, and a skilled and diverse workforce. According to the EEOC, the revised plan “requires significant changes in the agency’s approach to fulfilling its mission. As a result, during the first 1-2 years of the plan, the agency will establish new baselines so that it can finalize the milestones and targets for its measures.”

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A recent U.S. Supreme Court decision has reinforced the protections afforded to religious organizations against employment discrimination lawsuits. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (pdf) the Court unanimously held that the so-called “ministerial exception” included in the Americans with Disabilities Act (ADA) and other employment law statutes prevents a former religious school teacher who taught a full secular curriculum as well as a daily course on religion and regularly led students in prayer and worship – from bringing ADA claims against her employer, as she qualified as a ministerial employee even if the majority of her duties involved secular instruction.

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On Thursday the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss barriers that the unemployed face in the job market. During the hearing, Committee Chairman Tom Harkin (D-IA), along with other Democratic senators, promoted legislation introduced this term that would prohibit discrimination against job applicants based on their unemployment status. Ranking member Mike Enzi (R-WY), on the other hand, said that incidents of outright discrimination against the unemployed, including claims of job advertisements banning unemployment applicants, were “greatly exaggerated,” and that bills targeting unemployment in hiring were misguided. He further argued that Congress should instead focus its attention on the promotion of job training.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued its long-awaited proposed rule (pdf) amending the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors. Specifically, the rule revises the regulations that implement Section 503 of the Rehabilitation Act of 1973, as amended. Section 503 requires most federal contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities, and prohibits discrimination against them. According to the notice to be published in the December 9 edition of the Federal Register, the proposed regulations would strengthen these affirmative action requirements, describe the specific actions a contractor must take to satisfy its obligations, increase the contractor’s data collection obligations, and establish specific utilization benchmarks to help measure the effectiveness of the contractor’s affirmative action efforts. In addition, the proposal revises the nondiscrimination provisions to conform to changes made by the ADA Amendments Act (ADAAA) of 2008.

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On December 1, 2011 the Senate passed 93-7 the National Defense Authorization bill that extends reemployment rights to members of the National Guard mobilized for domestic emergencies, and stipulates that certain health care providers under the TRICARE network are not to be considered subcontractors subject to Office of Federal Contract Compliance Programs (OFCCP) requirements.

USERRA Rights

Introduced by Sen. Roy Blunt (R-MO), Amendment 1133 to the National Defense Authorization Act for Fiscal Year 2012 (S. 1867) would amend sections of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides certain employment and reemployment rights to returning service members, and prohibits employers from taking adverse actions against them. Specifically, the amendment would extend these rights to members of the National Guard who have been called up to carry out homeland security missions in the United States. Current law does not afford National Guard members serving domestically the same USERRA protections it does for those serving overseas. The amendment revises section 4312 of USERRA to include full time National Guardsmen called up for federal homeland security missions for possible exemption from the Act’s 5-year limit on service. This amendment had been introduced as a standalone bill – the National Guard Employment Protection Act (H.R. 1811, S. 1823) – in both the House and Senate this year, but had failed to advance.

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On November 15, 2011, the EEOC announced the publication of the Fiscal Year (FY) 2011 Performance and Accountability Report (PAR). (pdf) The PAR measures the EEOC’s performance and financial accountability based on its Strategic Plan for FY 2007 through FY 2012. During FY 2011 the EEOC received a total of 99,947 charges -- the highest number of charges in its 46 year history. Since FY 2006, there has been a dramatic increase in the level of charge activity, except for a minor dip in FY 2009, as shown by the following:

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During a public meeting held on November 16, the Equal Employment Opportunity Commission (EEOC) voted 3-2 in favor of a draft final rule defining the parameters of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The rule will now be sent to the Office of Management and Budget (OMB) for review, and upon approval, published in the Federal Register as a final rule. Following the vote, the Commission held a panel discussion on hiring obstacles that face disabled veterans.

EEOC Rule

The need to clarify the scope of this RFOA defense was brought about by two U.S. Supreme Court cases that addressed an employer’s defense against claims that a facially neutral employment policy or practice has a disparate impact on older workers.

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The Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) have updated the Memorandum of Understanding (MOU) (pdf) between the two agencies “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort.” The substantive revisions to the MOU – last edited in 1999 – clarify how discrimination complaints or charges filed with one agency are to be processed if they involve issues subject to the jurisdiction of the other.

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The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.

According to the agency’s semiannual regulatory agenda, the EEOC intended to issue a final rule clarifying the meaning of the RFOA defense used against an ADEA claim and the disparate impact burden of proof under the ADEA by October 2011. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims are cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed to address the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM in February 2010 to address the scope of the RFOA defense. It is unclear whether the agency plans to vote on and issue the final rule to coincide with the meeting, or whether the hearing will focus on a draft version.

Another listed topic for discussion is “overcoming barriers to the employment of veterans with disabilities.” Although a detailed meeting agenda is not yet available, this portion of the event will likely involve a panel discussion.

As seating for the meeting is limited, the agency suggests arriving at least 30 minutes in advance.

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The Equal Employment Opportunity Commission's Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. The non-binding letter provides some insight into the Commission's current enforcement position and suggests the Commission: (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. To learn more about the EEOC's advisory opinion and its potential impact on employers, please continue reading Littler's Insight,EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records, by Rod Fliegel and Jennifer Mora.

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The U.S. Commission on Civil Rights (“USCCR” or “Commission”) has issued a briefing report – English Only Policies in the Workplace (pdf) – recommending that an employer’s English-only policy be deemed unlawful only if such policies are enacted to harass, embarrass, or exclude employees and/or applicants based on their national origin. The report also suggests that Congress amend Title VII of the Civil Rights Act to clarify the meaning of discrimination on the basis of national origin. This recommendation runs contrary to the Equal Employment Opportunity Commission’s (EEOC) stated guidelines on this issue, which, in fact, the briefing report advises should be withdrawn.

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As expected, proponents of the American Jobs Act (S. 1660)  failed to garner the 60 Senate votes needed to proceed with further consideration of the jobs legislation. Democratic senators Ben Nelson (D-NE) and Jon Tester (D-MT) joined 46 Republican senators in voting against further consideration of the measure Tuesday evening. Fifty Democratic senators voted in favor of proceeding, ten votes shy of the number needed to prevent a filibuster.

Among other provisions affecting employers, the American Jobs Act would prohibit unemployment discrimination; temporarily ease payroll taxes for employers; provide incentives for hiring veterans and long-term unemployed workers; encourage employers to develop temporary work sharing positions in lieu of layoffs; extend emergency unemployment compensation; extend 100 percent business expensing of investments in certain business assets through 2012; mandate that all laborers and mechanics employed by contractors and subcontractors on projects funded directly by the bill be paid the prevailing wage rate; provide additional funding for transportation infrastructure projects; and require that all projects funded by the bill use American-produced iron, steel, and manufactured goods. The bill would be financed by a $5.6 surtax on millionaires, a change from the initial bill aimed at increasing Democratic support.

Even if this bill had been allowed to progress in the Senate, it would have faced tough opposition in the Republican-controlled House of Representatives. The Obama Administration has stated that it would be amenable to splitting the measure into smaller bills that would have a greater likelihood of passage. At this point, it is uncertain which provisions of the bill, if any, would receive support as standalone legislation.

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President Obama has formally released a draft of his jobs bill to Congress for consideration. As discussed during his address to a joint session of Congress last Thursday, several provisions of the American Jobs Act (pdf) are aimed at easing payroll taxes for employers, promoting hiring of the unemployed and veterans, and prohibiting discrimination against the unemployed. Generally, the Act pieces together a number of bills that have already been introduced in some form within the past year or two.

Unemployment Discrimination

Subtitle D of the American Jobs Act – Prohibition of Discrimination in Employment on the Basis of an Individual's Status as Unemployed – incorporates a previously-introduced bill that would make it unlawful for an employer or employment agency to discriminate against individuals based on their unemployment status or history of unemployment. The Fair Employment Opportunity Act of 2011 would, among other things, prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages. These terms would apply to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. A person would be considered to have a “status as unemployed” if the individual, “at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.”

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On September 9, Rep. Lloyd Doggett (D-TX) reintroduced the Wounded Veteran Job Security Act (H.R. 2875), legislation that would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit acts of discrimination and reprisal against an employee who is absent from work to receive medical treatment for a service-connected illness, injury or disability. Specifically, this bill would expand the definition of “service in the uniformed services” to include the time “for which a person is absent from a position of employment for the purposes of obtaining medical treatment for an injury or illness recognized by the Secretary of Veterans Affairs as a service-connected, or for which a ‘line of duty’ document has been granted by the Secretary of Defense.” This amendment would therefore permit veterans on such leave to, among other things:

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The new Commodity Futures Trading Commission (CFTC) rule implementing whistleblower and bounty hunter provisions established under the Dodd-Frank Wall Street Reform and Consumer Protection Act is scheduled to take effect on October 24, 2011. Section 748 of the 2010 Dodd-Frank Act amends the Commodity Exchange Act (CEA) by, among other things, creating a “Commodity Whistleblower Incentives and Protection” program that rewards whistleblowers who contribute original information that leads the agency to recover monetary sanctions of $1,000,000 or more with 10-30% of any amount recovered. The provisions also prohibit employers from discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for: (1) providing information to CFTC in accordance with the commodity whistleblower incentive program; or (2) assisting in an investigation or judicial or administrative action relating to the information provided. The Dodd-Frank Act creates a similar program under the Securities and Exchange Act.

The final rule has garnered significant criticism from business advocates for its failure to require employees to first avail themselves of their organization’s internal reporting process. Instead, the rule states that the CFTC would factor into the consideration of any award amount whether the employee first reported potential misconduct internally. A bill has been introduced that would require employees to first report potential misconduct through the company’s internal reporting system before being eligible to cash in on the monetary rewards offered under the CFTC and SEC whistleblower bounty programs.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued an advance notice of proposed rulemaking (ANPRM) (pdf) to solicit public input on the agency’s development and implementation of a new compensation data collection tool. According to the agency’s summary of this ANPRM, to be published in the August 10, 2011 edition of the Federal Register, “[p]ossible uses for the collected data include generating insight into potential problems of compensation discrimination at the establishment level that warrant further review or evaluation by OFCCP or contractor self-audit.” The agency further states that the data provided could be used “to conduct analyses at the establishment level, as well as to identify and analyze industry trends, Federal contractors’ compensation practices and potential equal employment-related issues.” The agency claims that the tool would likely be used “primarily as a screening tool” that would enable the agency to “effectively and efficiently identify supply and service contractors whose compensation data indicates that further investigation is necessary” as well as be used to “identify contractors for compensation focused reviews as well as full compliance reviews.”

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On August 4, 2011, the Commodity Futures Trading Commission (CFTC) approved its Final Rule implementing the whistleblower and bounty hunter provisions applicable to the Commodity Exchange Act (CEA) under Section 748 the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The Final Rule establishes a “Commodity Whistleblower Incentives and Protection” program nearly identical to the whistleblower incentive and protection program created under Section 922 of the Dodd-Frank Act, which provides financial incentives for employees to report violations of federal securities laws.

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Spurred by a Government Accountability Office (GAO) assessment of the Occupational Safety and Health Administration’s Whistleblower Protection Program, the agency has announced that it plans to strengthen its efforts to investigate and enforce whistleblower complaints. OSHA is charged with enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). According to OSHA, the GAO found “significant problems with OSHA's transparency and accountability, training for investigators and managers, and the internal communication and audit program.” To that end, OSHA commissioned an internal investigation of its Whistleblower Protection Program to examine the “national and regional program structure, operational procedures, investigative processes, budget, equipment, and personnel issues.”

As a result of this investigation, which, according to OSHA, confirmed the GAO’s assessment of the Program, OSHA plans to implement the following changes:

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In an informal discussion letter, (pdf) the Equal Employment Opportunity Commission’s Office of Legal Counsel reiterates the position that an employer-provided wellness program that offers financial inducements to provide genetic information as part of a wellness program runs afoul of Title II of the Genetic Information Nondiscrimination Act (GINA). Among other restrictions, GINA limits the ability of health insurers and employers to collect genetic information, which includes family medical history. Whether and to what extent employer-provided wellness programs and health surveys that solicit information about family medical history violate GINA and other statutes and regulations is a rising concern for employers.

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On Tuesday the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss how an individual’s arrest and conviction records impede employment, but failed to reveal whether it would alter its enforcement guidance on this topic. Currently, under the Commission’s Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, if an employer’s conviction-based screening policy causes a disparate impact, the employer must show that it considered the “nature and gravity of the offense,” the “time that has passed since the conviction and/or completion of sentence,” and the “nature of the job held or sought.” These guidelines have been in place since 1987. However, in a recent Third Circuit case, the court held an employer to a higher burden if its conviction screening policy disparately impacted protected classes. Specifically, in El v. South Eastern Pennsylvania Transportation Authority (SEPTA), the Third Circuit ruled that if an employer’s conviction-based screening policy results in such a disparate impact, the employer must produce “empirical evidence” justifying its screening policy in order to establish a “business necessity” affirmative defense under Title VII. Notably, the EEOC is currently prosecuting a disparate impact lawsuit against at least one employer based on its conviction-based screening policy, has initiated “systemic discrimination” investigations against other employers, and has been holding meetings on this topic.

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During a web chat to discuss the Office of Federal Compliance Programs’ (OFCCP) regulatory agenda, OFCCP Director Patricia Shiu touted the agency’s recent accomplishments and fielded a number of questions about various OFCCP regulations and other initiatives. The agency has been considerably more active on the enforcement and regulatory front this year. In fact, Shiu claimed that in comparison to the same time period last year, the agency completed 44 financial conciliation agreements that include $5.66 million in awards and 657 job offers for 8,090 individuals in the first 6 months of Fiscal Year 2011, representing a 25 percent increase in agreements and more than double the amount in monetary awards.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new Directive updating the application and approval procedures for Functional Affirmative Action Program (FAAP) Agreements. OFCCP regulations allow federal supply and service contractors to develop affirmative action programs (AAPs) that are based on their business function or unit instead of establishments based on physical location. In order to do so, contractors must get prior OFCCP approval. In essence, the OFCCP Director must determine that “the contractor’s overall operational structure, compliance history, and proposed functional AAPs meet the criteria” set forth in the new Directive, effective June 14, 2011.

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The Department of Defense (DoD) will issue a final rule (pdf) that extends the existing restrictions on a contractor’s use of mandatory arbitration agreements in certain instances. Currently, a provision in the DoD and Full-Year Continuing Appropriations Act bans contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” This restriction does not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S., nor does it apply to the acquisition of commercial items, including commercially available off-the-shelf items. The Secretary of Defense is permitted to waive the applicability of this prohibition to a particular contract or subcontract in the interest of national security.

The final rule extends the arbitration restrictions to large contracts awarded with funds provided under the DoD appropriations act for the year 2011 and subsequent DoD appropriations acts. A final rule implementing these restrictions for funds awarded by the 2010 DoD Appropriations Act was issued in December 2010. The final rule states that: “Since DoD anticipates that this will be an ongoing requirement, this rule applies to use of all subsequent fiscal year funds appropriated or otherwise made available under subsequent DoD appropriations acts.” If the restriction is removed at a future date, DoD notes that it will amend the Defense Federal Acquisition Regulations accordingly.

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By E. Ashley Sims

Many in the employment law community expressed surprise at the Equal Employment Opportunity Commission’s topic for the June 22, 2011 meeting: Disparate Treatment in Hiring.  Long gone are the days of overt gender and race discrimination in hiring. Well, aren’t they?

According to the Commission, sort of. American business has come a long way, but the EEOC claimed that there is more work to do. “Forty-five years after the Civil Rights Act of 1964, [the EEOC] still receives meritorious charges on hiring discrimination,” said EEOC Chair Jacqueline Berrien. She continued, “The EEOC will continue to address this problem through enhanced education and outreach and through vigorous enforcement of the law.” Commissioner Constance Barker echoed the Chair’s sentiments, stating “discrimination is evolving” and asked the panelists to weigh in on how the Commission can combat modern hiring discrimination.

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In a decision favorable to employers, the U.S. Supreme Court has held in Wal-Mart Stores, Inc. v. Dukes (pdf) that the lower court improperly certified a massive class action lawsuit. Specifically, the Court found that the plaintiffs failed to prove that their allegations of discrimination were common to all purported class members, and therefore resolution of the matter though a class action lawsuit would be inappropriate. Similarly, the Court reasoned that their claims for monetary damages were also improperly certified for class action consideration, as such remedies are necessarily determined – and defended against – on an individualized basis.

In this case, a purported class of approximately 1.5 million current and former female employees alleged that the discretion over pay and promotion decisions exercised by their company’s local supervisors violated Title VII of the Civil Rights Act. The group did not allege that the company had any express discriminatory policy, but claimed that the local managers’ discretion resulted in more favorable treatment of men, and that this alleged discrimination was applicable to all female employees. The group sought injunction and declaratory relief, as well as backpay.

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The Equal Employment Opportunity Commission (EEOC) has announced that it will hold a public meeting to discuss “disparate treatment in 21st Century hiring decisions.” The meeting is scheduled to take place on Wednesday, June 22, 2011 at 9:30 a.m. ET, and will be held in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are advised to arrive a half hour beforehand. At this time, a meeting agenda and list of panelists are not yet available, although copies of the speakers’ testimony are usually posted on the EEOC’s website following agency meetings.

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By Peter Petesch

How do you know the appropriate amount of leave to provide an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA)?

You don’t.

The United States Equal Employment Opportunity Commission (EEOC) expects to issue guidance in late summer or early autumn on the topic of reasonable accommodations and leaves of absence under the ADA. On June 8, the EEOC held a public meeting on the subject, with additional written comments welcomed over the next 15 days. In the aftermath of two highly publicized EEOC consent decrees and an expanded number of individuals protected under the law as a result of the ADA Amendments Act (ADAAA) and its implementing regulations, employers can expect to encounter far more situations involving leave of absence as a reasonable accommodation.

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The Equal Employment Opportunity Commission (EEOC) will hold a meeting open to the public to discuss, among other topics, the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). According to the meeting agenda, which is subject to change, invited panelists will discuss the EEOC’s current position and policy statements on the topic and provide advice on how to comply with the law and appropriately grant leave to employees. Question-and-answer sessions will follow each discussion. The meeting will be held on Wednesday, June 8, 2011 at 9:30 A.M. EST in the Commission Meeting Room located on the first floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are encouraged to arrive 30 minutes in advance of the meeting.

Photo credit: Alex Nikada

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The Equal Employment Opportunity Commission (EEOC) has issued a proposal to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The agency’s proposed rule, published in the June 2 edition of the Federal Register, seeks to amend its current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal does not request the creation of additional documents nor does it impose any reporting requirements under GINA, “but merely require[s] employers to maintain the records that they do create,” although the agency reserves the right in the future to issue reporting regulations “as may be necessary to accomplish the purposes of GINA.”

Comments on this proposal are due on or before August 1, 2011, and may be submitted through the federal eRulemaking portal, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114.

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By Amy E. Mendenhall

The Securities and Exchange Commission (SEC) has issued its final rule (pdf) implementing the securities whistleblower incentives and protection program contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd Frank Act, signed into law in July of 2010, created sweeping new federal whistleblower protections for employees. Among other things, the Dodd-Frank Act created an incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations and prohibits retaliation against those who blow the whistle on securities-related violations.

Section 922 of the Act provides monetary rewards to those who voluntarily contribute original information that leads the SEC to recover monetary sanctions of $1,000,000 or more in criminal and civil proceedings in federal court or through administrative action. Whistleblowers may be eligible for amounts between 10% and 30% of the monetary sanctions that are collected, based on the original information provided by the whistleblower.

Final regulations adopted on Wednesday by the SEC clarify and expand upon several aspects of both the whistleblower “bounty” provision and anti-retaliation provisions. Perhaps the most significant and highly anticipated aspect of the new rules is their treatment of internal complaints. When the SEC issued its proposed rule in September 2010, many in the business community expressed concern that the incentive program encouraged employees to circumvent internal compliance and reporting procedures. Although the SEC did not issue a rule requiring that employees first report violations through their company’s internal channels in order to qualify for the award, it did attempt to address these concerns by creating incentives for employees to do so.

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By David Goldstein

In an obscure notice published in the May 12, 2011 Federal Register, the Office of Federal Contract Compliance Programs (OFCCP) announced an intention to alter the forms it uses to collect information in connection with compliance reviews. These changes, if implemented, will substantially impact federal contractors in their record retention practices and in their responses to audit scheduling letters.

OFCCP commences its audits by first sending a “Scheduling Letter” to the selected government contractor advising it of the audit and requiring the contractor to provide certain information. The Scheduling Letter is always accompanied by a standard form known as the “Itemized Listing,” which sets forth the information and documentation that the contractor is required to produce.

The May 12 Federal Register Notice indicates that OFCCP intends to change the text of the Scheduling Letter and alter the Itemized Listing. In a supporting statement prepared by OFCCP in connection with these proposed changes – but not published in the Federal Register – OFCCP states that its revisions to the body of the Scheduling Letter are simply made for clarity. However, the agency acknowledges that its proposed changes to the itemized listing are substantive and that some of the proposed changes would be very significant. 

Continue reading at Littler's ASAP: OFCCP Looks to Overhaul Audit Procedures Through Revisions to Scheduling Letter and Itemized Listing.

Photo credit: shironosov

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The Office of Federal Contract Compliance Programs (OFCCP) has announced that it will hold an online information session to discuss its new Active Case Enforcement (ACE) protocol, the process by which the agency conducts supply and service (S&S) compliance evaluations. In December 2010, the OFCCP issued a directive discontinuing the former Active Case Management (ACM) process that had been in place since 2003. Two months later, the agency issued a second directive outlining the new ACE procedures for conducting S&S compliance evaluations, which includes full desk audits, increased onsite evaluations, focused evaluations, and full reviews.

According to the webinar invitation, OFCCP representatives will explain what contractors can expect when scheduled for a S&S compliance evaluation using ACE procedures, including a discussion of key terms and how ACE procedures differ from the discontinued ACM process.

Attorneys in Littler’s OFCCP Practice Group have observed that under the new ACE procedures, contractors are receiving lengthy information requests much earlier in the audit process, in some cases even before the initial desk audit submission has been received. These requests seek documentation and evidence of the contractors’ compliance with all of the regulations that OFCCP enforces, including in particular the regulations dealing with outreach to individuals with disabilities and veterans, and a few questions pertaining to compliance with OFCCP’s regulations addressing sex discrimination (Part 60-20), and religion/national origin discrimination (Part 60-50).

The webinar will be conducted on Tuesday, May 17, 2011 from 2:00 - 3:30 PM EDT. Registration for this information session is required, and can be made here.

Photo credit: doram

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The Office of Federal Contract Compliance Programs (OFCCP) is proposing to amend its regulations regarding a contractor’s and subcontractor’s affirmative action and nondiscrimination obligations towards protected veterans under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This law prohibits employment discrimination against specified categories of veterans by federal government contractors and subcontractors, and mandates that each covered contractor and subcontractor take affirmative action to hire and promote veterans. According to a summary included in the notice of proposed rulemaking, (pdf) the intended regulatory changes would strengthen these affirmative action provisions, describe specific actions a contractor must take to satisfy its obligations, increase the contractor’s data collection obligations, and require the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts.

The proposal addresses two sets of VEVRAA regulations. Those found at 41 CFR part 60-250 generally apply to government contracts of $25,000 or more entered into before December 1, 2003. The regulations found at 41 CFR part 60-300 apply to government contracts entered into on or after December 1, 2003. The threshold amount to trigger coverage by the affirmative action plan (AAP) requirements for this group is a single contract of $100,000 or more, entered into on or after December 1, 2003. Because of the extensive changes to these regulations, the OFCCP is proposing to rescind part 60-250 in its entirety, as the agency assumes that few, if any, unmodified contracts entered into before December 1, 2003 for $25,000 or more currently exist. The agency seeks comment, however, to determine if any such contracts are still, in fact, in effect.

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Timed to commemorate National Equal Pay Day on April 12, various lawmakers reintroduced the Paycheck Fairness Act (H.R. 1519, S. 797) and the Fair Pay Act (H.R. 1493, S. 788), bills that would amend the Fair Labor Standards Act (FLSA) to promote pay equity. The first measure, the Paycheck Fairness Act, would amend the FLSA to provide for potentially unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims, among other things. As previously discussed in this blog, the measure would:

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Update: On April 13, 2011, Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), and Susan Collins (R-ME) introduced a companion bill (S. 811) in the Senate.

Rep. Barney Frank (D-MA) has once again introduced the Employment Non-Discrimination Act (ENDA) (H.R. 1397), legislation that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. The bill, which was introduced with 111 cosponsors, would make it an unlawful employment practice for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

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By Ilyse Schuman and Barry Hartstein

The Equal Employment Opportunity Commission (EEOC) has released its long-awaited final rule (pdf) implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of “disability”, enabling more individuals to be covered by the ADA. As discussed in the final rule, the ADAAA retains the basic definition of disability contained in the ADA, which considers an individual disabled if he or she (a) has an impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. The ADAAA, however, expands the interpretation of these elements making it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’” To that end, the final rule revises the prior ADA regulations, and includes new interpretive guidance as an appendix to the rule.

These regulations, which take effect 60 days after their publication in the March 25, 2011 edition of the Federal Register, apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

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UPDATED: August 8, 2011

A month after the Equal Employment Opportunity Commission (EEOC) conducted a public hearing on unemployment discrimination, Rep. Henry Johnson (D-GA) has introduced a measure that would make this practice unlawful. The Fair Employment Act of 2011 (H.R. 1113) would amend Title VII of the Civil Right Act to add “unemployment status” to the list of protected classes. “Unemployment status” is defined in the legislation as “being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment.”

In a statement, Rep. Johnson said: “[e]mployer discrimination against unemployed job applicants is fundamentally wrong,” adding, “With unemployment at about 9 percent and with nearly 14 million Americans out of work, this discrimination will only prolong the crisis.”

This bill, which has 15 co-sponsors, has been referred to the House Committee on Education and the Workforce, although it faces dim prospects for advancing. 

UPDATE:  On July 12, 2011, Reps. Rosa DeLauro (D-CT) and Henry Johnson (D-GA) introduced similar legislation that would make it unlawful for an employer or employment agency to discriminate against individuals based on their unemployment status or history of unemployment. The Fair Employment Opportunity Act of 2011 (H.R. 2501) would, among other things, prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages. This bill has been referred to the House Committee on Education and the Workforce.  Sen. Richard Blumenthal (D-CT) introduced a companion bill (S. 1471) in the Senate on August 2, 2011.

Photo credit: amphotora

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On Tuesday the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting  to discuss the employment of individuals with mental disabilities. According to EEOC Chair Jacqueline A. Berrien, the hearing “provided an important opportunity to dispel myths and learn about effective ways to dismantle barriers to employment for people with disabilities.” The meeting was divided into three panels to address the employment rates of people with mental disabilities; the requirements of the Americans with Disabilities Ac t (ADA) and how the Act applies to individuals with mental disabilities; and litigation to enforce the rights of people with mental disabilities.

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In an opinion that potentially expands an employer’s liability in discrimination cases, the Supreme Court has found that an employer can be found liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the discriminatory intent of company officials who influenced – but did not make – the ultimate adverse employment decision. In Staub v. Proctor Hospital, (pdf) the Court held that an employer is liable under USERRA “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,” and that act “is a proximate cause of the ultimate employment action.” Appellate courts have applied varying standards under this “cat’s paw” theory of imputed liability, which holds an employer accountable for the unlawful motives and actions of an official who dupes or influences an unbiased decision maker into acting unlawfully.

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The DOL’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive outlining Active Case Enforcement (ACE) procedures for conducting Supply & Service (S&S) compliance evaluations. In December 2010, the agency issued a directive to discontinue the former ACE process that had been in place since 2003. According to the agency, the former system was “primarily an abbreviated desk audit process” to expedite the closing of S&S contract compliance evaluations where there existed no evidence of systemic discrimination. The agency claimed that the former process “eroded” its enforcement authority and was of “limited utility.” According to the new directive, the updated ACE process “will more effectively utilize [the OFCCP’s] resources and strengthen its enforcement efforts.”

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to address the alleged “emerging practice” of excluding currently unemployed job-seekers from applicant pools. In a letter (pdf) urging EEOC Chair Jacqueline Berrien to address this issue, several members of Congress requested that Berrien “issue a statement detailing how employers discriminating against the unemployed can open themselves up to disparate impact claims because a larger percentage of the unemployed population consists of minorities.” To that end, the EEOC’s meeting was broken into three panels to discuss the Department of Labor’s latest unemployment data, the use of unemployment status screening, and the impact of this alleged screening practice on the unemployed.

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In a decision that may subject employers to more retaliation lawsuits, the Supreme Court in Thompson v. North American Stainless (pdf) has held that under certain circumstances, a third party has standing to bring a retaliation suit under Title VII of the Civil Rights Act. In this case, the plaintiff and his fiancée worked at the same company. The fiancée filed a charge of sex discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). Shortly thereafter, the company terminated the plaintiff, who subsequently filed suit alleging he had been illegally retaliated against because his fiancée had filed a discrimination complaint. A divided Sixth Circuit Court of Appeals ultimately found that Title VII “does not permit a retaliation claim by a plaintiff who did not himself engage in protected activity.” The Supreme Court disagreed, finding that because he fell within the “zone of interests” protected by Title VII, the third-party plaintiff had standing to sue.

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During Friday’s online chat to discuss the Office of Federal Contract Compliance Programs’ (OFCCP) regulatory agenda, Director Patricia Shiu spent a significant amount of time fielding questions about possible changes to the agency’s compensation data analysis methods. Recently, the agency issued a proposed rescission of its interpretive standards and voluntary guidelines regarding the analysis of compensation data. Shiu acknowledged that the agency is “taking a much stronger approach to enforcement on compensation discrimination, as part of our effort to, once and for all, end the wage gap between men and women.” To that end, the agency plans to publish next month an advance notice of proposed rulemaking (ANPRM) to solicit public comments about developing a new compensation tool to help the OFCCP better collect data about wages. In addition, the OFCCP will hold a series of stakeholder meetings to gather information regarding ways to analyze compensation.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is proposing to rescind guidance materials addressing compensation discrimination that would ultimately give the agency more leeway in finding federal contractors and subcontractors liable for pay disparities. According to the agency, the first guidance document at issue – Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) (pdf) – has limited the OFCCP’s ability to “effectively investigate, analyze and identify compensation discrimination.” As for the second document up for rescission – Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation Discrimination (Voluntary Guidelines) (pdf) – the OFCCP claims that it has been “largely unused” by federal contractors and is not an effective enforcement strategy.

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This second installment of the two-part EEOC year-end roundup includes a review of noteworthy EEOC court opinions involving EEOC subpoenas, challenges to EEOC litigation based on the failure to engage in good faith conciliation, the applicable statute of limitations in EEOC pattern or practice cases and potential discovery involving the EEOC. Click here to read Part I, which focused on EEOC charges, time targets, and litigation. While there have been a substantial number of published decisions involving the EEOC over the past several months, cases involving the following areas are particularly worth mentioning:

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On Tuesday, the House of Representatives approved by a 215 – 144 margin the FDA Food Safety Modernization Act (H.R. 2751), legislation that, among other things, provides whistleblower protections to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Although the Senate had passed this measure in November, the bill was later invalidated for technical reasons. Meanwhile, on December 9 the House approved a continuing appropriations bill that contained the food safety provisions. In a surprise vote last Sunday, the Senate re-approved the standalone bill by unanimous consent.

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As 2010 comes to a close and employers continue to deal with an emboldened EEOC, there are various noteworthy EEOC developments to consider, including both agency and court developments. The first of this two-part series on the EEOC’s year-end review includes highlights from the EEOC's Annual Report, particularly focusing on the increased number of EEOC charges and time targets for investigating discrimination charges and a summary of recent EEOC litigation, including the types of lawsuits being filed and the primary jurisdictions recently involved.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive discontinuing the agency’s Active Case Management (ACM) procedures. Instituted in July 2003, the ACM process was “primarily an abbreviated desk audit process” to expedite the closing of supply and service (S&S) contract compliance evaluations where there existed no evidence of systemic discrimination. The agency considered cases with fewer than 10 potential victims to fall under this category. According to the directive, absent such evidence of widespread discrimination, full desk audits were to be performed only once out of every 25 such cases, and onsite evaluations only once out of every 50th review. The OFCCP claims in the directive that the ACM has caused the agency to “narrow the focus of its enforcement efforts” and has “eroded” its enforcement authority, thereby prompting its revocation.

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On Wednesday the House of Representatives approved a continuing appropriations bill that incorporates the FDA Food Safety Modernization Act (S. 510), including its food industry worker whistleblower protection provisions. The Senate had approved the food safety measure on November 30. The House cleared the broader 2011 Full-Year Continuing Appropriations Act (H.R. 3082) by a narrow 212-206 margin. The larger funding bill will now need Senate approval.

The whistleblower provisions at issue apply to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Under these provisions, an employer in the food industry would be precluded from firing or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee informed the employer or a government official of a perceived violation of the food safety act; testified or otherwise assisted in a proceeding regarding the violation; or objected to or refused to participate in an activity or practice that he or she believed to be in violation of the Act. The aggrieved employee would have the right to file a complaint with the Department of Labor and, if the complaint were to remain unresolved within a proscribed time period, an action in federal court.

Photo credit:  MBPHOTO, INC.

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Buried in the food safety bill that recently passed the Senate is provision granting employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food whistleblower protection rights. The whistleblower provisions contained in the food safety legislation reflect the continuing effort by Congress to expand whistleblower protections. Section 402 of the FDA Food Safety Modernization Act (S. 510),  would make it unlawful for an employer in the food industry to:

discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee) --

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The newly-released Equal Employment Opportunity Commission’s (EEOC) Performance and Accountability Report (PAR) for Fiscal Year 2010 indicates that the EEOC is making a dent in the backlog of discrimination charges filed with the agency. According to EEOC Chair Jacqueline Berrien, the agency “is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination.” Key findings of the PAR include the following:

Private Sector Charges

According to the agency, the growth of private sector charge inventory slowed dramatically from 2009 to 2010. The year began with 85,768 pending charges, but ended with 86,338 – an increase of less than 1% – despite the fact that a total of 99,922 charges were filed with the EEOC in FY 2010, the highest number in the agency’s 45-year history. The charge inventory had increased by 15.9% between fiscal years 2008 and 2009. Of these private sector charges, 38.3% - slightly lower than the 39.7 % reported for 2009 – were completely resolved within 180 days.

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Speaking at a White House Middle Class Task Force event, Vice President Joe Biden announced that the Department of Labor’s Wage and Hour Division (WHD) and the American Bar Association (ABA) have forged a partnership to help process certain employment-related claims filed with the Division. Starting in December, the WHD will provide workers whose minimum wage, overtime, or family medical leave claims cannot be pursued by the DOL with a toll-free number through which they will be able to obtain the contact information of an ABA-approved attorney in their area. According to the DOL, due to limited resources, the agency is unable to pursue “thousands” of wage and hour claims. The toll-free legal referral service, said Biden, will help workers pursue their cases “in a way that is affordable.” Most of these ABA-vetted lawyers will provide their services on a contingency basis. According to the ABA, this partnership between a federal agency and the private bar is the first of its kind.

Photo credit:  Simon McConico Photography

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As expected, supporters of the Paycheck Fairness Act (S. 3772) failed to garner enough votes to advance the measure in the Senate, effectively killing the bill for the foreseeable future. The motion to move the bill closer to a vote failed by a margin of 58-41, short of the needed 60 votes. Senator Ben Nelson (D-NE) joined all Republicans present in opposing the bill. Senator Lisa Murkowski (R-AK) did not vote. At least 60 votes were needed to avoid the inevitable filibuster against the legislation, which would have, among other things, amended the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases, weakened an employer’s affirmative defense against such claims, incorporated anti-retaliation provisions into the FLSA, eliminated the requirement that employees work in the same establishment for wage comparison purposes, reinstated the Office of Federal Contract Compliance Programs (OFCCP) Equal Opportunity Survey, and required employees to “opt-out” of instead of “opt-in” to a class action lawsuit. These changes would likely have led to a dramatic increase in equal pay lawsuits, and undermined an employer’s ability to defend against them. As Sen. Mike Enzi (R-WY) stated before his vote was cast, “a better title for this bill should be the Jobs for Trial Lawyers Act.”

Sen. Majority Leader Harry Reid (D-NV) reintroduced the Paycheck Fairness Act in September. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). It was probably believed that the measure had the best shot of passage during Congress’s lame duck session, as fewer supporters will remain in both the House and Senate come January as a result of the midterm election.

Photo credit: MBPHOTO, INC.

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The Equal Employment Opportunity Commission (EEOC) has posted on its website two new guidance documents on the recently published final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The first guidance document provides background information on the Title II rule, while the second focuses on questions that might arise for small businesses.  Both guidance materials are presented in question and answer format, and clarify many of the provisions contained in the final rule.

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Nearly a year after the employment provisions of the Genetic Information Nondiscrimination Act (GINA) took effect, the Equal Employment Opportunity Commission (EEOC) has issued a final rule (pdf) implementing these sections. Title II of GINA – which took effect on November 21, 2009 – prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information. Title II also prohibits retaliation against employees who complain about genetic discrimination. According to the EEOC, the final rule implements the various provisions of Title II consistent with Congress’s intent, provides some additional clarification of those provisions, and explains in greater detail the sections where Congress incorporated by reference provisions from other statutes. The final rule becomes effective 60 days after its publication in the Federal Register, which is scheduled for November 9, 2010.

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The Securities and Exchange Commission (SEC) has issued its proposed rule (pdf) implementing the securities whistleblower incentives and protection program contained in the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd-Frank Act contains sweeping new provisions that create new federal whistleblower protections for employees. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations, and prohibit retaliation against an individual who takes advantage of this program.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to gather information about the use of credit checks as an employment screening device. Nine panelists representing the views of employers, workers, and the credit reporting industry discussed the reasons for using such reports in the hiring process, employee rights and employer responsibilities under the Fair Credit Reporting Act (FCRA), and current scientific research on credit scores and its correlation to job performance. While a number of panelists claimed that the use of credit reports in employment leads to discriminatory hiring practices and urged the agency to issue new guidance on this topic and increase its enforcement efforts, others explained the necessity of using credit checks in the employment arena, the circumstances under which credit check are used by employers and how existing protections provide sufficient safeguards against discrimination.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued guidance in the form of Frequently Asked Questions (FAQs) that explains how the Genetic Information Nondiscrimination Act (GINA) impacts employer-provided group health plans and insurance providers. Among other things, Title I of GINA prohibits group health plans and health insurance issuers from discriminating based on genetic information, and prohibits the collection of such information, including family medical history, prior to or in connection with plan enrollment or for insurance underwriting purposes. As explained in the FAQs, unlike the provisions of Title I of the Health Insurance Portability and Accountability Act (HIPAA) that exempt very small health plans with less than two participants who are current employees, the nondiscrimination provisions of GINA apply to all group health plans.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

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The Equal Employment Opportunity Commission (EEOC) will conduct a public meeting to discuss the use of credit checks in the employment context. According to the notice (pdf) published in today’s edition of the Federal Register, the meeting will be held on Wednesday, October 20, 2010, at 9:30 a.m. EDT in the EEOC’s meeting room on the first floor of the EEOC office building, 131 M Street, NE., Washington, DC 20507. Due to limited seating and the security process, attendees are encouraged to arrive at least 30 minutes in advance.

The use of credit checks in employment has been receiving some attention in Congress. Last month, the House Financial Services Committee conducted a hearing to discuss the Equal Employment for All Act (H.R. 3149), a bill that would amend the Fair Credit Reporting Act to make it unlawful, with certain limited exceptions, to base adverse employment decisions against prospective and current employees on consumer credit reports. This legislation has not advanced in Congress.

This is the second meeting held in recent years in which the use of credit checks in the employment process has been discussed at an EEOC meeting. On May 16, 2007, a public meeting was held in which the EEOC discussed “how agency-enforced laws apply to employment testing and screening ”

Topics of discussion at the 2007 meeting included the use of credit histories in the pre-employment process. No formal action was taken by the EEOC following the 2007 meeting.

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On Wednesday, Sen. Majority Leader Harry Reid (D-NV) filed a cloture motion to proceed with consideration of the Paycheck Fairness Act (S. 3772). This procedural action sets up a vote on the bill – which would, among other things, amend the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims – when the Senate returns from the recess for upcoming elections.

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On Thursday, the House Financial Services Committee held a hearing to discuss the Equal Employment for All Act (H.R. 3149), legislation that would make it unlawful, with certain limited exceptions, to base adverse employment decisions against prospective and current employees on consumer credit reports. While a number of panelists spoke in support of limiting the use of such employment-based credit checks, others testified that doing so is unnecessary and could put employers at risk.

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It is widely expected that a vote on the reintroduced Paycheck Fairness Act (S. 3772) could occur as early as this week. This legislation – which cleared the House of Representatives in January 2009 – would subject employers to potentially unlimited compensatory and punitive damages for violations of gender-based wage discrimination law, and would weaken the affirmative defense available to employers in such cases.

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Legislation that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act (EPA) and make it more difficult to defend against such claims was reintroduced in the Senate on Monday. Sen. Majority Leader Harry Reid (D-NV) introduced the Paycheck Fairness Act (S. 3772) with 13 cosponsors. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). The White House recently urged the bill’s passage during a forum on work and family issues, calling it “a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”

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The Occupational Safety and Health Administration (OSHA) will issue three interim final rules that outline the procedures for handling retaliation complaints under the whistleblower provisions of the Surface Transportation Assistance Act (STAA), National Transit Systems Security Act (NTSSA), Federal Railroad Safety Act (FRSA), and the Consumer Product Safety Improvement Act (CPSIA). OSHA enforces the anti-retaliation provisions of 19 separate statutes, including the four mentioned above. The new rules governing the NTSSA and the FRSA, (pdf) the STAA, (pdf) and the CPSIA (pdf) seek to establish and/or clarify and improve the procedures and time frames for handling retaliation complaints under these laws. In general, the complaint procedures outlined in each set of rules are consistent with one another. The similarities among the rules include the following:

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Before recessing for six weeks, the House of Representatives passed by a 315- 93 margin the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 (H.R. 5851), a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. The Offshore Oil and Gas Worker Whistleblower Protection Act was incorporated into broader oil spill response legislation, the Consolidated Land, Energy, and Aquatic Resources Act of 2010 (H.R. 3534), which the House passed by a vote of 209-193.

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The newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) contains a provision that will impose diversity requirements on businesses in the financial industry. Section 342 of the bill mandates that within six months various federal agencies that deal with financial firms, such as the Treasury Department and the Securities and Exchange Commission, establish an Office of Minority and Women Inclusion (OMWI). The director of each such office will be charged with, among other things, developing and implementing standards for ensuring “to the maximum extent possible, the fair inclusion and utilization of minorities, women, and minority-owned and women-owned businesses in all business and activities of the agency at all levels, including in procurement, insurance, and all types of contracts.”

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During the White House Middle Class Task Force forum on work and family issues, the White House and various members of the administration called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), equal pay legislation that cleared the House of Representatives in January 2009. Specifically, this measure would, among other things, expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards, amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex, and would eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will issue an Advance Notice of Proposed Rulemaking (ANPRM) (pdf) to invite public comments as to how the agency can strengthen the affirmative action requirements relating to Section 503 of the Rehabilitation Act. As discussed in the ANPRM, Section 503 requires covered federal contractors to:

• employ nondiscriminatory employment practices;
• provide reasonable accommodations to qualified job applicants and employees with disabilities;
• after a job offer is extended but before employment begins, invite job applicants to voluntarily and confidentially self-identify as to whether or not they have a disability in order to benefit from any affirmative action programs covered contractors may have;
• maintain personnel and employment records; and
• for those contractors and subcontractors with 50 or more employees and a contract of $50,000 or more, develop and maintain a written affirmative action program (AAP).

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The newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) contains sweeping new provisions which create new whistleblower protections for employees in the financial services industry. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act violations; allow aggrieved employees to bring a civil action in court; and establish a more stringent burden-shifting approach to certain whistleblower claims. The new law also includes provisions that impact mandatory pre-dispute employment arbitration agreements of whistleblower retaliation claims. Finally, the new law amends other statutes like Sarbanes-Oxley and the False Claims Act to provide broader protection to whistleblowers. Additional information on existing whistleblower laws is available in the national treatise entitled “Retaliation and Whistleblowing: A Guide for Human Resources Professionals and Counsel” (3rd edition 2010) by Littler Shareholder Greg Keating.

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On Wednesday, the House voted 237-192 to approve the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173), the massive financial overhaul legislation otherwise known as the “Wall Street” reform bill. As previously discussed, this measure contains a number of provisions – including those impacting arbitration, executive compensation, and whistleblower protection – that would affect the workplace. Earlier in the week, supporters scrambled to revise the conference report (pdf) to find alternative means of paying for the $19 billion measure in order to gain sufficient votes for passage. In a compromise move, lawmakers decided to, among other things, end the Troubled Asset Relief Program (TARP) earlier than scheduled. Although President Obama had said he hoped to sign the final bill before the Fourth of July break, it is unlikely that the Senate will begin consideration of the bill before it reconvenes on July 12.

Photo credit:  MBPHOTO, INC.

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This week the U.S. Supreme Court agreed to decide two additional employment-related cases for the next judicial term. On Monday, the Court announced that it will hear arguments in Chamber of Commerce of the U.S. of Am. V. Candelaria, in which the Court of Appeals for the Ninth Circuit upheld (pdf) the Legal Arizona Workers Act, Arizona’s immigration law mandating the use of the E-Verify employment verification system, and permitting the state to suspend or revoke employers’ business licenses if they knowingly hire undocumented workers. The question before the Court is whether these requirements are preempted by federal law, and therefore invalid.

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Last week, House and Senate committee members agreed to the terms of the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173), otherwise known as the “Wall Street” or “Financial Reform” bill. Now that the 2,319-page conference report (pdf) has been filed, both chambers will need to vote on the final measure. While the bulk of this massive overhaul bill deals with banking regulation and consumer protection, it does contain other provisions that impact the workplace. A number of sections address executive compensation regulation, arbitration limitations, and provisions that extend and strengthen current whistleblower protection laws. A summary of these provisions follows.

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The U.S. Supreme Court on Monday issued two decisions that impact employers. One decision will make employers more vulnerable to charges of disparate impact discrimination claims; the other makes it easier for fee claimants in ERISA actions to seek attorneys’ fees. In the first case, Lewis v. City of Chicago, (pdf) the Court held that a disparate impact employment discrimination charge filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of a discriminatory practice’s application – not merely the announcement of its adoption – will be deemed timely. The practical effect of this decision is that employers will now be subject to disparate impact lawsuits years after initially unchallenged policies are implemented.

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The day after the House Subcommittee on Health, Employment, Labor and Pensions conducted a hearing on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756), the Senate Health, Education, Labor and Pensions (HELP) Committee held its own hearing on the issue, highlighting the significant attention the bill is receiving on Capitol Hill.  The POWADA would, among other things, reverse last year’s U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc. in which the Court toughened an employee’s burden of proof in bringing a mixed-motive discrimination claim under the Age Discrimination in Employment Act (ADEA). Specifically, in Gross, the Court held that a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. In contrast to Title VII discrimination cases, in ADEA cases an employer does not need to prove that it would have made the same decision regardless of age, even if the employee were to produce some evidence that age may have been a contributing factor in the decision.

Three of the five witnesses at the HELP Committee hearing – Jack Gross, plaintiff in the Supreme Court case at issue; Eric Dreiband, former General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC) currently in private practice; and Gail E. Aldrich, member of the AARP Board of Directors – also testified at yesterday’s House subcommittee hearing. A full list of the Senate committee’s witnesses, their testimony, and a video of the hearing can be found here.

Photo credit:  Skynesher

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The Department of Labor (DOL) has launched an interactive web tool to help employers comply with various disability-related employment discrimination laws. The Disability Nondiscrimination Law Advisor “is designed to help employers determine which federal disability nondiscrimination laws apply to their business or organization,” and “helps recipients of federal financial assistance understand their responsibilities under these laws.” The new Advisor, which is the newest in a series of Employment Laws Assistance for Workers and Small Businesses, or “elaws,” asks users to answer questions to help determine which federal disability nondiscrimination laws apply to them. Based on the responses given, the website generates an applicable list of federal disability laws that apply to that particular employer, along with information about the employer’s responsibilities under those laws.

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On Wednesday, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756), legislation that would overturn the June 18, 2009 Supreme Court decision in Gross v. FBL Financials Services, Inc.  In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA. In reversing Gross, POWADA would establish that when a victim shows discrimination was a “motivating factor” behind a decision, the burden would be on the employer to show it complied with the law, and clarify that the motivating factor framework applies to all anti-discrimination and anti-retaliation laws.

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According to the Equal Employment Opportunity Commission’s (EEOC) semiannual regulatory agenda, final rules on Title II of the Genetic Information Nondiscrimination Act (GINA) and the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) are imminent. The EEOC intends to issue a final rule on GINA sometime next month. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information, as well as imposes certain confidentiality obligations. The EEOC issued a proposed rule in March 2009. The final rule has already been sent to the Office of Management and Budget (OMB) for review.

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President Obama has issued a proclamation establishing April 20 as “National Equal Pay Day.” This day is meant to symbolize “the day when an average American woman's earnings finally match what an average American man earned in the past year.” In a statement supporting Equal Pay Day, Labor Secretary Hilda Solis called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), legislation that cleared the House of Representatives “and is gaining momentum in the Senate.” This measure would expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards. In addition, it would amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex. The bill would also eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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On Tuesday, Victoria Lipnic was sworn in as a member of the Equal Employment Opportunity Commission (EEOC), making the five-member Commission complete for the first time in nearly two years. EEOC Chair Jacqueline Berrien and Commissioner Chai Feldblum were sworn in earlier this month, joining current members Stuart Ishimaru and Constance Barker. Lipnic, the Republican nominee to the EEOC, was one of 15 recess appointments President Obama made over the spring legislative recess.

Before her appointment to the EEOC, Lipnic practiced management-side labor and employment law. Prior to entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

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The U.S. Supreme Court has agreed to decide when employers can be held accountable for company officials who cause or influence the outcome of an adverse employment action, but do not themselves make that decision. The case, Staub v. Proctor Hospital (09-400), will therefore resolve conflicting opinions from several circuit courts of appeal regarding when employers may be held liable for the unlawful motives and actions of an official other than the formal decision maker, often referred to as the “cat’s paw” theory of imputed liability.

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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The Equal Employment Opportunity Commission’s (EEOC) Office of Legal Counsel recently made available two informal discussion letters addressing how two common and seemingly innocuous hiring practices could, under certain circumstances, inadvertently subject employers to charges of disparate impact discrimination. Although these advisory letters are intended as informal discussions of the specific issues only, they should serve as warnings to employers to double-check their use of credit checks and education degrees as selection criteria.

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Despite increasing opposition, President Obama on Saturday announced his appointment of 15 individuals to various federal agencies, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Among those appointed was Craig Becker, the controversial NLRB Democratic nominee. Also given a recess appointment to the NLRB was the other Democratic nominee, Mark Pearce. However, the President did not give a recess appointment to the Republican nominee, Brian Hayes. On Thursday, Republican Senators sent a letter to Obama urging him not to do so. Randel K. Johnson, the U.S. Chamber of Commerce Senior Vice President of Labor, Immigration, and Employee Benefits, said of Becker’s appointment: “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” Becker has been widely criticized for advocating admittedly “provocative” positions in this academic writings. During a hearing, Becker tried to distance himself from these statements, such as his belief that a new body of representation election rules should be created to limit employer involvement, including the holding of so-called “captive audience” meetings. Many lawmakers and business interests continue to question, however, whether Becker can be impartial as a member of the Board. Becker’s term will now last until the end of 2011, unless the Senate appoints him to a full term.

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On Wednesday, the House of Representatives overwhelmingly approved by a vote of 416-1 the National Guard Employment Protection Act of 2010 (H.R. 1879), legislation that would extend certain employment and reemployment rights to members of the National Guard who are ordered to report for full-time duty. The bill amends section 4312 of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which exempts certain military members from the requirement that their absence from the job due to military service be no longer than 5 years in order to take advantage of the bill’s reemployment rights. The National Guard Employment Protection Act would include in this exemption National Guard members who are called to full-time service to support critical homeland defense missions or other activities deemed critical by the Secretary of Defense.

Photo Credit: soldiersmediacenter

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The Equal Employment Opportunity Commission (EEOC) will issue in tomorrow’s edition of the Federal Register a notice of proposed rulemaking (NPRM) (pdf) to define the meaning of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The need to clarify the scope of this defense was brought about by two recent U.S. Supreme Court cases that address the RFOA defense when plaintiffs claim an employer’s facially neutral policy or practice has a disparate impact on older employees.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation statistics for fiscal year 2009 ending on September 30. This data shows that 93,277 workplace discrimination charges were filed, the second-highest total for the agency, although down from last year’s all-time record of 95,402 charges. Private sector charges alleging disability, religion and/or national origin discrimination reached record highs, while the most frequent charges filed in 2009 alleged discrimination based on race (36%), retaliation (36%), and sex (30%). According to an EEOC press release, the “near-historic” level of total discrimination charges could be due to a number of factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

The EEOC’s year-end data also shows that a total of 281 merit lawsuits were filed, resulting in $82.1 million in monetary relief for the plaintiffs. Total monetary relief obtained for claimants totaled $376 million, which includes benefits gained through administrative enforcement and mediation as well as through litigation.

Photo credit:  blackred
 

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The Equal Employment Opportunity Commission (EEOC) has identified three proposed and four final rules that will dominate the agency’s regulatory activities for the coming year, according to its Semiannual Regulatory Agenda (pdf) released online yesterday. Of the seven regulations at issue, the EEOC’s Regulatory Plan (pdf) singles out the regulation at the final rule stage to implement the equal employment provision of the Americans with Disabilities Act Amendments Act (“ADAAA” or “ADA Amendments Act”), and the regulations defining Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) at the proposed rule stage as the most important significant regulatory actions the agency will take.

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The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers?  GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.  Continue reading at Littler's Workplace Privacy Counsel blog.

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According to the Equal Employment Opportunity Commission’s (EEOC) annual report released this week, the agency received 93,277 private sector discrimination charges in 2009, the second highest number in 20 years. The Performance and Accountability Report FY 2009 (PAR) (pdf) noted that the number of private sector charges is projected to exceed 100,000 by the end of fiscal year 2010.

According to the PAR, the increase in charges is due in part to the additional statutory authority given to the agency through the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Lilly Ledbetter Fair Pay Act of 2009. The EEOC claims that it has already felt the effects of the ADAAA, as there was a 10.6 percent rise in the number of ADA charges filed (21,451) compared to the 19,401 ADA charges filed in FY 2008. The agency anticipates a small increase in the number of charges filed with EEOC as a result of the enactment of the Genetic Information Nondiscrimination Act of 2008 (GINA), the employment provisions of which take effect on November 21, 2009.

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The Equal Employment Opportunity Commission (EEOC) has posted on its website an updated “EEO is the Law” poster (pdf) and supplement (pdf) to reflect changes made by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which goes into effect November 21, 2009. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. The new posters also revise information in light of the Americans with Disabilities Act Amendments Act of 2008.

Employers can either print and post the new November 2009 “EEO is the Law” poster, or post the “EEO is the Law” supplement poster alongside the EEOC’s September 2002 “EEO is the Law” or the OFCCP’s August 2008 “EEO is the Law” posters. Information on how to order new posters can be found here.

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Sen. Claire McCaskill (D-MO) has introduced legislation that would expand whistleblower protections to non-federal employees who disclose information about the misuse of federal funds. The Non-Federal Employee Whistleblower Protection Act of 2009 (S. 1745) would shield employees of companies that receive funding from any government agency (in the form of either grants or contracts) from retaliation for making protected disclosures involving waste or fraud. The bill also expands the scope of covered actions, outlines the burden of proof in whistleblower cases, and prevents employers from forcing employees to waive their whistleblower rights.

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The Equal Employment Opportunity Commission (EEOC) has issued an updated Technical Assistance Document (TAD) – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – to address how employers may prepare their workplaces for pandemic influenza outbreaks and still remain in compliance with the Americans with Disabilities Act (ADA). The TAD was amended in response to employers’ frequently asked questions about workplace preparation for, and reaction to, outbreaks of the H1N1 virus, which has become more widespread in recent months.

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In an informal opinion letter released October 6, 2009, the Equal Employment Opportunity Commission (EEOC) determined that requiring employees to complete a health risk assessment as a precondition to receiving payment from an employer-funded health reimbursement arrangement can violate the Americans with Disabilities Act (ADA) in certain circumstances.

The letter, written by EEOC Assistant Legal Counsel Peggy Mastroianni, was in response to an employer that asked whether requiring employees to answer more than 100 questions in several categories, including “Personal Health,” “Health Choices-Alcohol and Tobacco,” “Health Changes,” and “Family Health History,” as a prerequisite to receiving health expense reimbursement under an employer-funded health reimbursement plan would violate the ADA. Mastroianni explained that the ADA permits employers to make disability-related inquiries and obtain medical information from employees in certain circumstances, such as if the inquiry is job-related and consistent with business necessity, is part of a follow-up to a request for a reasonable accommodation, or is part of a voluntary wellness program. A program is considered “voluntary” if the employees are neither required to participate nor penalized for non participation.

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As expected, lawmakers have introduced legislation in both houses of Congress that would overturn the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc., a decision that made it tougher for employees to bring mixed-motive discrimination claims under the Age Discrimination in Employment Act (ADEA). In Gross, the Supreme Court held that employees must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse decision. An employer therefore does not carry the additional burden of proving that it would have made the same decision regardless of age, even if the employee were to produce some evidence of age bias in the decision-making process. According to a press release, the new bill, Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756):

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The Supreme Court has agreed to decide whether the deadline for filing a disparate impact employment discrimination claim under Title VII of the Civil Rights Act should be 300 days after a discriminatory practice is announced or after it is implemented. In the case at issue – Lewis v. City of Chicago – the City of Chicago administered a written test to 26,000 firefighter applicants. The results of this test were divvied up by score into three levels: “well qualified,” “qualified,” and “not qualified.” Only about 11 percent of the 1,782 applicants who fell into the “well qualified” category were African American. Although applicants whose scores landed them in the “qualified” tier would be placed on the eligible list for the jobs since they passed the exam, shortly after the scores were announced the City reported that it expected to hire only about 600 of the 1,782 “well qualified” applicants, leading the remaining job hopefuls to believe they would not be hired. The actual hiring process took several months.

A class of approximately 6,000 African American applicants who fell into the “qualified” category filled suit against the City over a year later, claiming that the test had a disparate impact on minority candidates. A federal judge in Chicago initially ruled in favor of the plaintiffs. The Seventh Circuit reversed this decision last year, finding that the plaintiffs failed to file a claim with the Equal Employment Opportunity Commission (EEOC) within the statutorily-prescribed 300 days of the announcement of the test results. According to the Seventh Circuit, “[t]he first injury in this case was the classification of the black applicants as merely ‘qualified’ on the basis of a test that they contend was discriminatory.” The court therefore rejected the plaintiff’s argument that the discriminatory event was the application of the test results – i.e., the failure to hire the affected African American candidates. The Seventh Circuit also rejected the plaintiff’s “continuing violation” theory, explaining that “the statute of limitations begins to run upon injury (or discovery of the injury) and is not restarted by subsequent injuries.”

In their petition for Supreme Court review, the plaintiffs allege that the circuits are split on this issue of timeliness. The Second, Fifth, Ninth, Eleventh, and District of Columbia circuits, they claim, have held that each time an employer relies on a facially neutral policy that disparately impacts a protected class constitutes a new violation of Title VII. The Third and Sixth circuits, in contrast, have held that a claim ripens when the employees or applicants become aware of the alleged discriminatory practice.

The outcome of this case will be significant. If the Supreme Court agrees with the firefighter applicants, an employer might be subject to a disparate impact discrimination lawsuit years after an initially unchallenged policy is adopted.

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Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, announced on Tuesday that his committee will hold a hearing to examine two U.S. Supreme Court decisions that benefit employers. The hearing, “Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination,” will undertake a review of the Court’s 2001 decision in Circuit City Stores v. Adams, which extended the scope of the Federal Arbitration Act (FAA) to cover employment contracts, and thus sanctioned certain mandatory pre-dispute arbitration agreements, and the more recent opinion in Gross v. FBL Financial Services, Inc. (pdf), which toughened an employee’s burden of proof in bringing a mixed-motive discrimination claim under the Age Discrimination in Employment Act (ADEA). 

Among the witnesses scheduled to testify at the October 7 hearing is the plaintiff in Gross v. FBL Financials Services, Inc. The Court in this case held that a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. Unlike in Title VII discrimination cases, an employer does not need to prove that it would have made the same decision regardless of age, even if the employee were to produce some evidence that age may have been a contributing factor in the decision. In July, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, criticized this decision and also called for a committee hearing to examine its repercussions. Both Miller and Leahy have likened Gross to Lilly Ledbetter v. Goodyear Tire, a pay discrimination case that was subsequently overruled by the Lilly Ledbetter Fair Pay Act, signed into law earlier this year. Following next week’s hearing, it is possible that legislation to overturn the Supreme Court’s opinion in Gross will be introduced. Bills aimed at invalidating mandatory, predispute arbitration agreements validated by the Circuit City decision have already been introduced this session, but have thus far received little attention.

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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. According to a press release, these funds will be used to assist discrimination victims; conduct seminars for workers, employers and immigration service providers; distribute educational materials in various languages; and place advertisements in local communities through both mainstream and ethnic media to educate workers and employers about their rights.

In a statement, Loretta King, Acting Assistant Attorney General for the Civil Rights Division, said: “[a]warding grants to professional and community-based organizations better enables us to educate workers and employers about their rights and responsibilities under federal immigration law,” adding, “[o]ur grant recipients, who are well known and respected in their communities, will collaborate with us to prevent immigration-related discrimination in the workplace.”

The twelve groups slated to receive DOJ funding for the immigration-related anti-discrimination initiative are: the Arizona Attorney General’s Office, Civil Rights Division; Asian Pacific American Legal Center of Southern California; Catholic Charities of Dallas; Catholic Charities, Diocese of St. Petersburg, Fla.; Colorado Legal Services; Legal Aid Foundation of Los Angeles (LAFLA); National Farm Worker Service Center; National Immigration Law Center (NILC); New York City Human Rights Commission; Texas RioGrande Legal Aid; University of Iowa; and the Washington Farm Labor Association.

Earlier this month, U.S. Attorney General Eric Holder revealed that with the increased 2010 fiscal year DOJ budget, the agency intended to substantially enlarge the Civil Rights Division and improve enforcement of antidiscrimination laws.

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The Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has posted to its website three technical assistance documents for contractors. These guides do not create any new legal requirements, but rather are intended to serve as basic resources for contractors and subcontractors that are subject to laws enforced by the agency.

An updated version of the Technical Assistance Guide for Federal Construction Contractors (pdf) is intended only for government contractors who have construction contracts or subcontracts, including contractors who have federally assisted construction contracts. According to the OFCCP, this document is designed to help these contractors and subcontractors understand their contractual obligation to comply with the laws administered by OFCCP; understand the role of the OFCCP in enforcing federal equal employment opportunity and affirmative action laws that apply to federal contractors and subcontractors; develop written affirmative action programs where appropriate; implement the affirmative action steps that are described in the Standard Federal Equal Employment Specifications; and prepare for an OFCCP compliance evaluation.

A second guide is designed for non-construction contractors and subcontractors who are nonetheless subject to laws enforced by the OFCCP. Such entities include subcontractors who furnish supplies or services that are necessary to perform a federal contract. The Supply & Service Technical Assistance Guide (pdf) provides information on these supply and service contractors’ obligations to comply with OFCCP-enforced nondiscrimination and affirmative action laws, and discusses how to development written affirmative action plans and to prepare for a compliance evaluation.

The final compliance document now available online is a New Contractors’ Guide (pdf). According to the OFCCP, this guide is intended “to introduce new contractors to their EEO obligations, the enforcement process, and the array of resources OFCCP offers to assist contractors in meeting their obligations.”
 

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The Equal Employment Opportunity Commission (EEOC) has published in today’s Federal Register (pdf) its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 (ADAAA). Last week, the EEOC published on its website a question and answer guide regarding these proposed rules.

Effective January 1 of this year, the ADAAA rejected a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA. The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

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The Equal Employment Opportunity Commission (EEOC) has published a question and answer guide addressing the proposed regulations drafted in response to the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA). On Wednesday, the EEOC approved the notice of proposed rulemaking (NPRM) by a vote of 2-1 along party lines. Text of the proposed regulations is slated for publication in the Federal Register next week, to be followed by a 60-day public comment period.

The ADAAA, which went into effect on January 1, 2009, significantly expands the definition of “disability” under the ADA, allowing more individuals to fall under the ADA’s protection. Although the ADAAA, like the ADA, defines “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the ADAAA changes how each of these components of the definition should be interpreted. According to a Notice issued by the EEOC, the ADAAA:

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In a recent New York Times article, U.S. Attorney General Eric Holder, Jr. revealed that the Department of Justice (DOJ) intends to substantially increase the Civil Rights Division and enforcement of antidiscrimination laws. The Civil Rights Division prosecutes violations of criminal civil rights statutes and enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, and national origin. Such laws enforced by this division include the Civil Rights Act, the Americans with Disabilities Act, and the Immigration Reform and Control Act.

According to the article, the fiscal year 2010 budget requests an increase of approximately $22 million for the Civil Rights Division, up 18 percent from the prior year. The Division seeks to hire more than 50 civil rights attorneys, a significant boost to this department.

The expansion of the Civil Rights Division and its enforcement efforts is part of a greater predicted trend for this administration. Budgets for the Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) have similarly received substantial funding increases for fiscal year 2010. Labor Secretary Hilda Solis has emphasized that stepping up enforcement of workplace laws is a top priority, particularly for the Wage and Hour Division, Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA). For example, the Wage and Hour Division – the DOL sub-agency responsible for enforcing, among other laws, federal minimum wage, overtime, and child labor requirements of the Fair Labor Standards Act (FLSA) – is expected to hire more than 200 new compliance officers for this purpose. Therefore, employers can anticipate increased scrutiny from these agencies, and should take the necessary steps to comply with workplace laws before facing an agency audit or inspection.
 

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The Equal Employment Opportunity Commission (EEOC) has revised a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay Act, which was enacted on January 29 of this year. This law overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which required plaintiffs to file a charge of compensation discrimination within 180 days (300 in jurisdictions that have a local or state law prohibiting the same form of pay discrimination) of the discriminatory act or decision. The new law reinstates the “paycheck rule,” which allows courts to consider the receipt of a paycheck or other benefits stemming from the initial discriminatory pay decision to constitute a separate discriminatory act for statute of limitations purposes. The revised Compliance Manual reflects this shift in section 2-IV C.4, Compensation Discrimination, by stating that the period for submitting a claim of pay discrimination under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Rehabilitation Act or the Age Discrimination in Employment Act (ADEA) begins when any of the following situations occur:

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Four Senators have introduced a bi-partisan bill that would ban employment discrimination on the basis of sexual orientation or gender identify. The Employment Non-Discrimination Act of 2009 (ENDA) (S. 1584), introduced by Senators Jeff Merkley (D-OR), Susan Collins (R-ME), Edward Kennedy (D-MA) and Olympia Snowe (R-ME), would prohibit employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity. In June, Rep. Barney Frank (D-Mass.) introduced similar legislation in the House of Representatives.

In a press release, Sen. Collins said of this bill:  “Similar to the current law in several states, including Maine, and the policies of many Fortune 500 companies, the Employment Non-Discrimination Act would close an important gap in federal civil rights laws by making it illegal to discriminate in employment based on sexual orientation.”

Although House versions of ENDA have failed in the past, momentum is building in Congress to enact more expansive civil rights legislation. This latest bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

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The Obama Administration has selected Patricia A. Shiu, a public interest employment lawyer, to head the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans.

Shiu is currently the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. According to biographical information posted by the National Employment Law Association (NELA), Shiu joined the Employment Law Center in 1983, and has focused on employment discrimination and family and medical leave cases. She has also served as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

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Last week the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document outlining an employee’s rights and obligations when presented with a severance package in exchange for a waiver of employment discrimination claims. The document, Understanding Waivers of Discrimination Claims in Employee Severance Agreements, explains in a question and answer format when a waiver of rights under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) would be deemed valid. The document places special emphasis on waivers of rights under the ADEA by clarifying the seven factors that must be satisfied under the Older Workers Benefit Protection Act (OWBPA) for an ADEA waiver to be considered “knowing and voluntary.” The document also presents a checklist for employees in the event they are offered a severance agreement and a sample waiver form.

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As we predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has announced that he intends to hold a hearing regarding the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, which was issued on June 18.  In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

Although a positive ruling for employers, Miller criticized this decision in a press release, stating: “The Supreme Court’s ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case.” He further warned that “[l]ike with the Lilly Ledbetter case, Congress may be forced to clarify the law’s intent so we can prevent the damage this decision will have on workers’ civil rights.” The Lilly Ledbetter Fair Pay Act – which was signed into law in January – expressly overturned the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. by extending the time period in which employees can assert pay discrimination claims. Therefore, expect the introduction of legislation aiming to amend the ADEA to effectively nullify the Gross opinion, and make it easier for a plaintiff to bring successful disparate impact age discrimination claims against employers.

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The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying scores, and was therefore unlawful under Title VII of the Civil Rights Act, according to the U.S. Supreme Court in Ricci v. DeStefano. (pdf)  In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

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Rep. Barney Frank (D-Mass.) has reintroduced the Employment Non-Discrimination Act of 2009 (H.R. 2981), a bill that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. For purposes of this bill, “gender identity” is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” “Sexual orientation” means “homosexuality, heterosexuality, or bisexuality.” The provisions of this bill would impact the private sector as well as local, state and federal government employers.

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In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. (pdf) has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

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In a public meeting held Wednesday, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to revise its Americans with Disabilities Act (ADA) regulations to conform with changes to the law made by the ADA Amendments Act of 2008 (ADAAA). The proposed revisions will now be forwarded to the Office of Management and Budget (OMB) for review before they can be formally published in the Federal Register.

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Last week Rep. Carolyn Maloney (D-NY) and Sen. Jeff Merkley (D-OR) introduced the Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244), a bill that would, among other things, amend Title VII of the Civil Rights Act to clarify that breastfeeding and expressing breast milk in the workplace are protected activities; amend the Fair Labor Standards Act (FLSA) to require large employers to provide time and privacy for lactation; and establish a tax credit for employers that provide a suitable environment for employees to breastfeed or express milk.

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On Monday the House of Representatives passed by voice vote the Wounded Veteran Job Security Act (H.R. 466), a bill that would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit acts of discrimination and reprisal against an employee who is absent from work to receive medical treatment for a service-connected illness, injury or disability. Specifically, under this legislation these employees:

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The Department of Labor’s (DOL) Administrative Review Board (ARB) has upheld an administrative law judge’s (ALJ) finding that three hospitals that receive payments from a Health Maintenance Organization (HMO) for providing medical services to U.S. Government employees are covered federal subcontractors that must comply with the equal employment opportunity and affirmative action obligations imposed by the Office of Federal Contract Compliance Programs (OFCCP).

The three hospitals at issue in OFCCP v. UPMC Braddock had HMO contracts with the University of Pittsburgh Medical Center (UPMC) health plan to provide medical products and services to federal employees. The UPMC health plan, in turn, had contracted with the U.S. Office of Personnel Management (OPM) to provide such medical coverage. The three hospitals, therefore, did not directly contract with the OPM.

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A bill recently introduced in the Senate would prevent employers from firing or otherwise disciplining volunteer firefighters and other emergency medical personnel for missing work while responding to emergencies or other major disasters. The Volunteer Firefighter and EMS Personnel Job Protection Act (S. 1025), introduced by Sen. Thomas Carper (D-Del.), would apply to volunteer workers who are specifically deployed to respond to an emergency situation. Employees must, however, provide employers with written verification—within a reasonable period of time—that the absence was due to a legitimate emergency, and that the employee responded in an official capacity.

The protections offered by this bill would not extend to emergency duty-related absences exceeding 14 days in a given year. Additionally, the protections would not apply if the employee responds to an emergency or major disaster without being officially requested to do so, and if he or she fails to provide the requisite verification of the emergency. Additionally, the terms of this bill would permit an employer to reduce an employee’s regular pay for the time the employee is absent due to the emergency situation. The bill provides employees with a private right of action in civil court against an employer for violations of this Act. The bill would also direct the Secretary of Labor to conduct a study on the impact that this legislation would have on employers of volunteer firefighters and emergency workers.

This bill has been referred to the Senate Committee on Health, Employment, Labor and Pensions.
 

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The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

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Within the next six months, the Equal Employment Opportunity Commission (EEOC) expects to develop and/or issue six regulations affecting workplace laws and practices. According to the agency’s spring regulatory agenda released on Monday, regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA) are expected to be issued by the end of this month. The EEOC’s proposed GINA regulations were published earlier this year.

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A number of federal agencies including the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) are requesting information in advance of a future rulemaking on group health plans. Specifically, the EBSA’s Request for Information (RFI) seeks input on questions related to the mental health parity provisions made by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The RFI was published in the April 28, 2009 edition of the Federal Register.

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To commemorate Equal Pay Day, Sen. Tom Harkin (D-Iowa) and Rep. Eleanor Holmes Norton (D-DC) reintroduced the Fair Pay Act (S. 904, H.R. 2151).  While full text versions of these bills are not yet available, they are believed to be substantially similar if not identical to the bills Harkin and Holmes Norton introduced during the last congressional session. Notably, this bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work. Specifically, the Fair Pay Act would make it unlawful to discriminate against employees:

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The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, a guidance document the EEOC released on this topic in 2007. The earlier document specifically examines how federal anti-discrimination laws apply to workers with certain family caregiving obligations. The new guidance provides suggestions for best practices that an employer can proactively adopt to potentially lessen the chances of committing EEO violations against caregiving employees. Suggestions include implementing personal or sick leave policies that allow employees to use leave to care for sick family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

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The Equal Employment Opportunity Commission (EEOC) announced that it will hold a public meeting on Wednesday, April 22 to discuss discrimination against employees with caregiving responsibilities. At this meeting, the agency will release a new document, Employer Best Practices for Workers with Caregiving Responsibilities. This document will supplement formal guidance the EEOC issued on this topic in 2007.

The meeting will be held at the EEOC’s Washington, D.C. headquarters at 131 M Street, N.E. at 10 a.m. (Eastern Time). The scheduled panelists include: Cynthia Calvert, Deputy Director, The Center for WorkLife Law; Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families; Heather Boushey, Senior Economist, Center for American Progress; and Jeff Norris, President, Equal Employment Advisory Council.
 

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In an opinion released today, the U.S. Supreme Court in 14 Penn Plaza L.L.C v. Pyett held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.

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President Obama has picked Kathleen Martinez to be the Assistant Secretary for Disability Employment Policy (ODEP). The ODEP is a sub-cabinet level policy agency in the Department of Labor that coordinates efforts to develop and implement policies and practices for the hiring of people with disabilities in both the public and private sectors.

Blind since birth, Martinez has specialized in promoting disability rights throughout her career. She is currently the executive director of the World Institute on Disability (WID). In this position she has been instrumental in producing the international webzine DisabilityWorld (www.disabilityworld.org) in English and Spanish. Martinez also directs Proyecto Visión, the WID’s National Technical Assistance Center, to increase employment opportunities for Latinos with disabilities in the United States.

In 2002, Martinez was appointed by former President Bush as one of fifteen members of the National Council on Disability, an independent federal agency responsible for advising the President and Congress on disability policy. In 2005, Martinez was appointed as one of eight public members on the State Department’s Committee on Disability and Foreign Policy
 

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Bills introduced in both chambers of Congress would amend the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code to prohibit preexisting condition exclusions in health plans. The Preexisting Condition Patient Protection Act of 2009 (H.R. 1558, S. 623) would preclude exclusions in group health plans as well as health insurance coverage in the group and individual markets.

The legislation also orders the Secretary of Health and Human Services (HHS) to provide Congress with a report within two years of the law’s enactment on the Act’s impact on health benefits coverage. Pursuant to this report, the HHS is authorized to request data from group health plans and health insurance issuers, including the number, nature, and dollar amount of claims made by enrollees, changes in the demographic composition of enrollees, and other information the Secretary deems appropriate.

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In an informal discussion letter dated March 6, 2009, the Equal Employment Opportunity Commission (EEOC) has determined that requiring employees to take health risk assessments in order to obtain health insurance coverage would violate the Americans with Disabilities Act (ADA).  According to EEOC Associate Legal Counsel Peggy R. Mastroianni, such a mandatory health assessment would violate the ADA’s provisions requiring disability-related inquiries and medical examinations to be job-related and consistent with business necessity.

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A bill introduced this week would guarantee employers the right to implement English-only policies in the workplace.  Introduced by Rep. Tom Price (R-GA) and co-sponsored by 34 others, the Common Sense English Act (H.R. 1588) would amend the Civil Rights Act of 1964 by adding the following provision:

(o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to require employees to speak English while engaged in work.

Earlier this month, the United States Commission on Civil Rights (USCCR) re-opened the period for public comment on English-only policies in the workplace.  On December 12, 2008, the USCCR held a briefing on this issue. According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

The Common Sense English Act has been referred to the House Committee on Education and Labor.

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The Department of Labor has made available to employers a nationwide database of job candidates with disabilities.  The database currently lists 1,921 candidates seeking employment in a variety of fields. Private sector, nonfederal government and nonprofit employers can request unlimited searches by contacting the DOL’s Employer Assistance and Recruiting Network toll-free at (866) 327-6669.

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A bill introduced last week would amend several provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Servicemembers Access to Justice Act of 2009 (H.R. 1474) adds a number of new sections that, among other things, enhance USERRA enforcement and increase employer penalties in the event of a violation.

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Pursuant to the Obama administration’s announced intent to reverse a midnight regulation governing health care providers, the Department of Health and Human Services has published in the Federal Register its proposed rescission of the so-called provider conscience rule, published on December 19, 2008. The rule prohibits employment discrimination against health care workers if they harbor religious or moral objections to providing certain services such as abortion and the dispensing of birth control. This rule was controversial not only because it might have limited women’s access to certain health care services, but also because it subjected employers to potentially conflicting laws regarding religious discrimination in the workplace.

Comments on this proposed rescission are due by April 9, 2009. Such comments may be submitted electronically at http://www.Regulations.gov. Click on the link: “Comment or Submission” and enter the keywords: “Rescission Proposal.” Alternatively, comments may be made via email to proposedrescission@hhs.gov. Written comments (one original and two copies) may also be sent to: Office of Public Health and Science, Department of Health and Human Services, Attention: Rescission Proposal Comments, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Room 716G, Washington, DC 20201.

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The United States Commission on Civil Rights (USCCR) has re-opened the period for public comment on English-only policies in the workplace. On December 12, 2008, the USCCR held a briefing on this issue. A transcript of that briefing is available at the USCCR’s website.  Written statements of invited panelists and a link to the C-SPAN broadcast can also be found at the agency’s site.  (click on the heading: Commission Extends Comment Period on English in the Workplace Briefing until April 20, 2009).

According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission (EEOC) has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

Comments on English-only policies will be accepted until April 20, 2009.  Such comments may be sent by mail to: English in the Workplace Comments, US Commission on Civil Rights, 624 Ninth Street, NW, Washington, DC 20425, or via e-mail to comments@usccr.gov.

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The Equal Employment Opportunity Commission (EEOC) has published in the Federal Register its proposed regulations for Title II of the Genetic Information Non-Discrimination Act (GINA). GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.  Comments on the proposed regulations are due by May 1, 2009.

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As anticipated, the Obama administration has initiated steps to reverse the former administration’s midnight regulation governing health care providers. The Office of Management and Budget (OMB) announced today that it is reviewing a proposal to revoke the provider conscience rule. Once that process is complete, the proposal will be published in the Federal Register, followed by a 30-day public comment period.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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The Equal Employment Opportunity Commission (EEOC) announced that it will seek public comment on proposed regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA). The proposed regulations are expected to be published in tomorrow’s edition of the Federal Register. Comments will be due 60 days after the publication date.

GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.

For more information on GINA, see Littler’s ASAP: Genetic Antidiscrimination Law Creates New Compliance Challenges for Employers by: Philip L. Gordon and Jennifer L. Mora.

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Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. If passed, this bill would amend the Immigration and Nationality Act to require E-Verify for all employers. The E-Verify system is currently voluntary, unless mandated by applicable state law.

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Just ten days into his term, President Obama has signed into law a bill that will make it easier to bring wage discrimination lawsuits against employers. The Lilly Ledbetter Fair Pay Act, which Congress made retroactive to May 28, 2007, extends the time period for employees to assert pay discrimination claims by making each paycheck a discriminatory act; not just the initial pay determination.

For more information on this law and how it will affect employers, see Littler’s ASAP: Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lilly Ledbetter Fair Pay Act by Alison N. Davis, Stephanie L. Hankin, and Tyree Ayers Jackson.

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As expected, the Lilly Ledbetter Fair Pay Act (S. 181) breezed through the U.S. House of Representatives today by a vote of 250 to 177. The House had previously voted to consider the bill under a closed rule excluding the introduction of amendments, virtually guaranteeing its passage. The Senate approved S. 181 on January 22 by a vote of 61-36 without amendment, despite a number of modifications Republican senators attempted to make to this wage discrimination legislation to limit its scope.

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Not even a full month into the year, the new Congress keeps flooding the docket with employment-related bills. Despite organized labor’s push to introduce union-friendly legislation early in President Obama’s term, and the many civil rights and work/family balance bills expected to be introduced, instead, the recent employment-related bills reflect the current financial crisis and rising unemployment. Providing health care and other assistance to the unemployed appears to have taken precedence over the drive for increased union membership and providing for enhanced employee rights and benefits, at least for now.

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In what will be the first employment-related bill to reach President Obama’s desk, the Lilly Ledbetter Fair Pay Act of 2009 (S. 181) cleared the Senate yesterday by a vote of 61 to 36. If signed – as pledged by President Obama and indicated by the presence of the bill’s namesake on President Obama’s train ride to Washington for his inauguration – this legislation will likely lead to an increase in the number of wage discrimination claims filed against employers and make it more difficult to defend against such actions.

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The Senate voted by a margin of 72 to 23 today to effectively limit all debate on the Lilly Ledbetter Fair Pay Act of 2009 (S. 181), virtually guaranteeing its passage. A bill with identical terms easily cleared the House without amendment by a vote of 247-171 last Friday. The House measure had been combined with H.R. 12, the Paycheck Fairness Act, which had also received House approval on Jan. 9 by a vote of 256-163. This week the Senate decided to consider the two bills separately, most likely to ensure that at least one employee-friendly bill gets signed when President-elect Obama takes office next week.

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As anticipated, the House swiftly passed two pay-related bills that will make it easier for employees to sue for wage discrimination. The Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were put to a vote without amendment, as they had been heavily vetted in the last Congress, yet failed to survive the Senate. The House today voted 256-163 in favor of the Paycheck Fairness Act, and 247-171 in favor of the Lilly Ledbetter Fair Pay Act. They will be sent to the Senate – which is likely to be more receptive to these bills this time around – as a package. Consideration may begin as early as next week. If approved, President-elect Obama will almost certainly sign them into law, starting the 111th Congress off to a decidedly worker-friendly start. Interestingly, Congress got off to a similar start in the Clinton era by passing a previously-vetted Family and Medical Leave Act as its first major bill weeks after Clinton took office.

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In the absence of EEOC regulations on the new Americans with Disabilities Act Amendments Act of 2008 (ADAAA) – which made significant changes to the Americans with Disabilities Act of 1990 (ADA) by, among other things, broadening the scope of who is disabled under the ADA and Section 503 of the Rehabilitation Act– two organizations with the Department of Labor have created publications and other compliance resources for employers.

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Before the 111th Congress has even convened, House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process. In anticipation of a possible Democratic White House in 2009, congressional Democrats in the 110th Congress launched a comprehensive labor and employment law legislative agenda. (For more information, see Littler’s Report Transition to a New (Work) Day: An Initial Look At Workplace Change in the Obama Era). Congressional Democrats intended to vet this agenda in advance so that when the 111th Congress convened on January 6, 2009, these laws could be quickly enacted with the threat of a presidential veto removed. The introduction of the Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act directly to the House floor is the first installment in the full-implementation of this strategy.

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The Department of Labor issued guidance explaining how a faith-based organization receiving DOL financial assistance can seek exemption under the Religious Freedom Restoration Act (RFRA) from the prohibition that religion not be used as a hiring criteria.

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The Department of Health and Human Services (HHS) issued a final rule that aims to protect health care workers from discrimination if they harbor religious or moral objections to participating in reproductive health care services such as abortion and the provision of birth control. This rule expands protections articulated in sections of three federal laws (the so-called Church, Coats and Weldon Amendments) that safeguard an individual’s right to refuse to provide the aforementioned health services if those services violate that person’s religious beliefs or moral convictions. The proposed rule expands the scope of these statutory protections to include institutional health care providers and individual employees who work for entities that receive certain HHS funds. Additionally, the rule mandates that recipients of certain HHS funds certify compliance at the risk of losing federal funding.

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When the ADA Amendments Act (ADAAA) goes into effect January 1, 2009, regulations interpreting this new law will not be forthcoming. On December 11, the EEOC failed to approve a notice of proposed rulemaking on this new act, which overturns a number of U.S. Supreme Court cases that narrowly interpreted the scope of the ADA’s coverage. 

The four commissioners deadlocked along party lines on whether to approve Republican Chair Naomi Earp’s proposed regulations, which then would have been subject to a 60-day comment period after OMB review and publication in the Federal Register. Reportedly, the sticking point for the Democratic commissioners was that a public meeting on the content of the proposed regulations was premature, as they were not yet finished. Drafts of the regulations have been in the making since August.

Since a transcript of the EEOC meeting is not yet available, the details of the draft regulations are unknown. Thus, it is still unclear as to whether the regulations are objectionable on substantive grounds or just incomplete. What is certain is that regulations or other interpretive guidance on the ADAAA will not be enacted until the next administration, when two new EEOC commissioners will be in place. Since it is anticipated that those vacancies will be filled by employee advocates, the next set of regulations will be more likely to appease the disability rights groups who objected to swift approval of the current version of the act.
 

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Within the next two years, employers can expect to see the reintroduction of employment discrimination legislation that seeks to significantly broaden remedies available to aggrieved employees, weaken employers’ affirmative defenses in harassment claims, and eliminate an employer’s ability to use binding arbitration in employment disputes. Much of this legislation, which was first introduced in the last Congress, is intended to respond to limitations imposed by courts and Congress over the last 10 years.

The Civil Rights Act of 2008, introduced in January of this year (S. 2554, H.R. 5129), never made it past the legislative starting block. However, all or part of the Act will likely re-emerge in the next two years to a more receptive Congress. The provisions of this new law would:

• Eliminate the current $300,000 cap on compensatory damages.
• Add the availability of punitive damages for violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
• Make employers who are in violation of the Fair Labor Standards Act subject to compensatory and punitive damages, in addition to remedies already available to aggrieved employees.
• Render ineffective an employer’s affirmative defense in an Equal Pay Act claim that there exists a “bona fide factor other than sex” for the pay disparity.
• Require employers defending harassment claims to demonstrate that they have established and adequately publicized effective and “comprehensive” harassment prevention policies and complaint procedures and prove that they have undertaken “prompt, thorough and impartial investigations” of such claims. Currently, an employer can defeat a claim of harassment by proving it has exercised reasonable care to prevent and correct any harassing behavior, and that the aggrieved employees have not availed themselves of such procedures.
• Render pre-dispute arbitration agreements often found in employment applications, contracts and handbooks unenforceable with respect to civil rights disputes.

While many of these provisions were met with vociferous opposition from business interests, employers can expect to see serious consideration of these measures in the coming years.
 

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