A majority of US employers offer some sort of wellness program designed to reduce the cost of health insurance and healthcare costs, and to improve the health and well-being of employees. However, unless care is taken, even well-intentioned wellness programs may violate federal law.
Recently, the EEOC filed a lawsuit against Hire Dynamics, a staffing firm (click here for the EEOC press release). According to the complaint, after a Hire Dynamics employee filed a charge of discrimination against one of its clients, the staffing firm retaliated by failing to give the employee any further job assignments or opportunities. As this case highlights, it is important that staffing companies and their clients work together to comply with applicable fair employment practice laws.
Adria Richards is a self-described “endlessly enthusiastic technology evangelist.” While attending a large technology conference in Santa Clara, California, Ms. Richards overheard two men sitting behind her making a series of crude, sexually inappropriate jokes (click here for a link to Ms. Richards’ blog entry titled Forking and Dongle Jokes Don’t Belong at a Tech Conference). She tweeted “not cool,” and asked for help in talking with the offending men. The conference sponsors agreed with her, and spoke with the men. One of the men took to Twitter on Ms. Richards’ behalf, tweeting that she "had every right to report me to [conference] staff, and I defend her position.”
On January 29, 2013, the Department of Labor’s Office of Federal Contract Compliance Programs issued a Directive. pertaining to federal contractors’ use of arrest and conviction records in making employment decisions. This Directive is consistent with and incorporates guidance issued by the Equal Employment Opportunity Commission in April 2012.
EEOC Publishes Fact Sheet Describing the Application of Anti-Discrimination Laws to Victims of Gender-Based Violence
On October 12, the Equal Employment Opportunity Commission issued a new fact sheet titled: Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking. Employers may need to review and revise their anti-harassment, -discrimination, and -retaliation policies in light of this publication, which seems to extend gender and disability protections beyond traditional coverage.
Last week, in a case of first impression titled Kroll v. White Lake Ambulance Authority, the Sixth Circuit found that psychological counseling may qualify as a “medical examination” under the Americans With Disabilities Act (“ADA”), which forbids employers from requiring medical exams unless they are job-related. The Circuit Court vacated the lower court’s ruling in favor of White Lake Ambulance Authority on summary judgment in a discrimination case brought by Emily Kroll, a former employee. Kroll had refused to attend psychological counseling mandated by White Lake after other employees reported concerns about Kroll’s well-being and White Lake received a complaint that Kroll had been screaming at a male acquaintance on her cell phone while driving an ambulance in emergency status with lights and sirens. The district court found that such psychological counseling alone did not constitute a medical examination.
Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?
By David Barmak
Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.
On July 27, we published an entry written by David M. Katz, titled Morbid Obesity as a Covered Disability under the ADA. On August 10, David's entry was picked up and published in Employee Benefit News. Congratulations, David.
The National Labor Relations Board continues to expand the scope of the National Labor Relations Act in union and non-union workplaces – this time taking issue with an employer’s policy prohibiting employees from discussing ongoing internal investigations.
As sensible employers everywhere realize, it is important to maintain confidentiality during the course of an internal investigation. The Board apparently disagrees, taking the position that a blanket policy of requesting participants in an internal investigation to refrain from discussing the investigation violates the NLRA. Specifically, in Banner Health System, the Board found that an employer’s desire to protect the integrity of its investigations was not a legitimate business justification sufficient to overcome the employees’ NLRA section 7 rights to engage in concerted activity – that is, generally, to discuss issues related to their compensation, benefits or working conditions.
By this time, most employers realize that the Fair Credit Reporting Act governs all types of employment-related background checks, not just credit checks. If and to the extent there was ever any question whether Google searches or searches of various social media sites constitute “background checks” subject to the FCRA, that question has been put to rest with an $800,000 settlement with Spokeo, Inc. Further, if and to the extent there was ever a question about whether the FTC was serious about enforcing the FCRA, that question, too, has been put to rest with a $2.6 million dollar settlement between the Federal Trade Commission and HireRight Solutions, Inc.
Almost two years ago, we wrote that the EEOC had filed its first-ever lawsuit asserting that “severe” obesity was a protectable disability under the ADA. That case, EEOC v. Resources for Human Development, Inc., provided little guidance to employers about where the EEOC would draw the line on when obesity is “severe” enough to constitute an ADA-protected disability. Although it is still unclear where that line is, it is now clear that the EEOC considers “morbid” obesity” to be a protectable disability under the ADA.
According to a press release issued today, the EEOC has issued an updated Enforcement Guidance, relating to the use of arrest and conviction records in making employment decisions under Title VII of the Civil Rights Act of 1964. According to the release, the Enforcement Guidance "updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee."
The Enforcement Guidance and an associated Q & A document will be released and posted on the EEOC website. We will update this entry when we have had the chance to review and analyze this new development.
“Caregiver responsibilities” is not a protected category under federal fair employment practice laws, meaning that it is not unlawful to discriminate against individuals with caregiving responsibilities. Nevertheless, the EEOC has historically taken the position that such discrimination may be unlawful, if and to the extent stereotyping or other forms of disparate treatment are implicated. Recently, the EEOC has signaled a renewed interest in drawing attention to, and pursuing claims related to caregiver responsibility discrimination.
We have written before about the EEOC’s position that inflexible leave of absence policies may violate the Americans with Disabilities Act. For example, as discussed in a prior blog entry, in July 2011, the EEOC settled a lawsuit filed against Verizon and a number of its subsidiaries, which claimed that Verizon violated the ADA with its progressive discipline policy that imposed discipline for all absences, including those absences caused by an employee’s ADA-covered disability. To resolve the lawsuit, Verizon agreed to pay $20MM and to revise its attendance and ADA policies by providing exceptions to the no-fault attendance policy as reasonable accommodation for covered disabilities.
Employee is Not "Substantially Limited" Under the ADA When He is Able to Work a 40-Hour Week But No Overtime.
Some people just can’t catch a break. In recent years, this was certainly true of Michael Boitnott, an employee of Corning Incorporated. Mr. Boitnott, a maintenance engineer, worked a schedule that was typical for similarly-situated co-workers, which included twelve-hour shifts, alternating bi-weekly between day shifts and night shifts. Throughout 2002 through 2004, Mr. Boitnott experienced health problems for which he was periodically absent from work, including abdominal pain, a heart attack with further cardiac difficulties, and leukemia. In February 2004, following his leukemia-related absence, Mr. Boitnott regained his health and told Corning he was ready to return to work. According to his physician, however, Mr. Boitnott was limited to working a typical 40-hour, day-shift workweek without overtime. Thus, Mr. Boitnott could not return to his former schedule of twelve-hour rotating shifts.
Retaliation claims are here to stay. According to charge statistics recently released by the EEOC, retaliation claims rose to an all-time high of 37,344 in fiscal year 2011, and were included in 37.4% of all charges filed with the agency. Recent developments lead us to conclude that this trend will continue, in 2012 and beyond.
In December 2011, the U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”), released guidance pertaining to prohibitions against retaliation under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act (“FMLA”). The FMLA requires covered employers to comply with various notification requirements, and allows employers to obtain medical certifications from employees requesting leave. The Department of Labor (“DOL”) has authored various form notices and certifications, which employers may choose to use.
The DOL-drafted forms expire on January 31, 2012. New forms, which have been submitted to the United States Office of Management and Budget, are not likely to be approved before the old forms expire. Nevertheless, under the law, expired forms may continue to be used while new forms are awaiting approval.
But – and this is important – the soon-to-expire forms do not include the “safe harbor” language under the Genetic Information Nondiscrimination Act, which tells employees and their medical providers that they should not provide “genetic information” when responding to a request for certification.
Psychiatric Disabilities Under the ADA: proposed changes to diagnostic tool may result in a broader definition of "disability"
I just read a very interesting article. titled “Furor over DSM-V.” Apparently, the Diagnostic and Statistical Manual (DSM), published by the American Psychiatric Association as a diagnostic tool), is in the process of being revised (for the fifth time, hence “V”). Details of the proposed changes were recently released and, if implemented in their current form, may significantly impact employers’ obligation to accommodate disabilities under the Americans with Disabilities Act.
We previously wrote about the EEOC’s increasingly aggressive position against inflexible leave of absence policies that provide for automatic termination of employment when an employee does not or cannot return to work at the end of a specified maximum leave period, such as when the employee has exhausted available FMLA leave. We have also written about the public hearing held by the EEOC in June 2011, which discussed the use of extended leaves of absence as reasonable accommodation for a disability covered under the expansive Americans with Disabilities Act Amendments Act. A new development suggests that employers may also need to consider the use of extended leaves of absence as accommodation for employees’ religious beliefs.
On September 8, 2011, President Obama addressed a joint session of Congress, during which he unveiled a comprehensive jobs plan aimed at spurring job creation and jump-starting a stalled economy. The President’s proposal includes a provision banning companies from refusing to hire unemployed workers.
The EEOC recently published an informal discussion letter, outlining its perspective on the impact of the Genetic Information Nondiscrimination Act (GINA) on employer-sponsored workplace wellness programs. More specifically, the letter discussed how and to what extent employers may offer incentives to employees to participate in wellness programs without violating GINA.
EEOC: Employer Liable for Violating ADA Despite Employee's Failure to Adequately Document Disability or Need for Accommodation Prior to Filing Her Claim
In a case all employers should find troubling, the EEOC recently held that a federal agency-employer discriminated on the basis of disability by denying an employee’s request for accommodation, despite the fact that information the employee provided when making his request and during the time in which the employer and employee engaged in the required interactive process did not show either that the employee was disabled or how the accommodation related to his alleged disability. In Harden v. Astrue, EEOC DOC 0720080002 (August 12, 2011) the EEOC found that sufficiently detailed medical and other documentation was provided to the employer after the employee filed a charge of discrimination, during discovery process associated with the charge. Therefore, the EEOC concluded, the employee was disabled and entitled to reasonable accommodation.
Huh? So what’s an employer to do? From the EEOC’s perspective, the apparent answer is that an employer must continue to engage in the interactive process of accommodation indefinitely and must err on the side of allowing an accommodation.
Written by Joel Nolan.
A federal court in Oklahoma recently found an Abercrombie Kids store (a brand of Abercrombie & Fitch Stores, Inc.) liable for religious discrimination because the store did not hire a Muslim applicant who wore a headscarf during a job interview. Interestingly, the court found for the EEOC on summary judgment meaning that, as a matter of law, there was no possible way a jury could have found that Abercrombie had not discriminated against the applicant. A jury will be empanelled to determine damages.