Tag Archives: EEOC

September 13, 2016

Colorado Hospital Targeted For Alleged Age Discrimination Against Nurses

senior nurse A Chief Nursing Officer (CNO) is alleged to have stated that a younger nurse could “dance around the older nurses.” Not hard to imagine that such a statement would raise the hackles of many nurses over age 40, but do comments like that mean that the hospital discriminated against one or more nurses on the basis of their age when the nurses were discharged or resigned? That is the question facing Montrose Memorial Hospital after the Equal Employment Opportunity Commission (EEOC) filed an age discrimination lawsuit against the Western Slope hospital last Friday.

EEOC Cites Numerous Age-Related Comments

In its complaint, the EEOC alleges that Montrose Memorial Hospital’s CNO, Joan Napolilli, made various age-biased statements to charging party Katherine Casias and other nurses. Casias began work for the hospital in 1985 as a licensed practical nurse but then earned her degree cum laude as a registered nurse (RN). The alleged comments attributed to Napolilli include:

a younger RN could “dance around the older nurses;”
younger nurses are “easier to train” and “cheaper to employ;”
Casias was not “fresh enough” and was chastised for not smiling or saying hello enough;
referring to Casias as an “old bitch;”
older workers at the hospital were “a bunch of monkeys” and she’d “like to fill the hospital with new nurses and get rid of all the old ones;” and
telling a nurse supervisor to “work that old grey-haired bitch into the ground” and to work her “long and hard until she quit or got fired.”

The complaint also alleges that Nurse Manager Susan Smith told an RN that “you’re getting too old for this job.”

If proven to have actually been said, comments expressing an aversion to workers over 40 and a preference for younger workers can be direct evidence of age discrimination under the Age Discrimination in Employment Act (ADEA). Read more >>

September 6, 2016

Tips For Avoiding Retaliation Claims Under EEOC’s New Guidance

By Bryan Benard

In recent years, the Equal Employment Opportunity Commission (EEOC) has received more retaliation charges than any other type of discrimination claim. Last year, almost 45 percent of EEOC charges included an allegation of retaliation – yes, almost half!

Because of the alarming frequency of charges and the need for employees to report discrimination without fear of reprisal, the EEOC recently issued a new enforcement guidance on retaliation that replaces and updates its 1998 compliance manual on the subject. Even though the EEOC’s position is not necessarily the final word on these issues, as courts often disagree with the EEOC’s interpretation of federal discrimination laws, employers should know how EEOC staff, including its investigators and litigators, will approach retaliation charges. Here is a look at the new guidance with tips on how to avoid becoming another retaliation charge statistic.

Overview of Retaliation and Protected Activities

The federal discrimination laws enforced by the EEOC, such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and others, prohibit employers from taking adverse action against an employee or applicant because the individual engaged in “protected activity.” Adverse actions that can be seen as retaliatory by the EEOC include not just discipline or discharge, but also transferring the employee to a less desirable position or shift, giving a negative or lower performance evaluation, increasing scrutiny, or making the person’s work more difficult.

“Protected activity” falls into two categories: participation and opposition. Participation activity is when an individual “participates” in an EEO process, which can include filing a charge, being involved in an investigation, or testifying or serving as a witness in a proceeding or hearing. Opposition activity is when an individual complains, questions, or otherwise opposes any discriminatory practice. Employees have the right to engage in both types of protected activity without being subject to retaliation from their employer.

Harassment As Retaliation

According to the EEOC, harassing conduct can be seen as retaliation, even if it does not rise to the level of being severe or pervasive enough to alter the terms and conditions of employment. The agency states that harassment can constitute actionable retaliation so long as the conduct is sufficiently material to deter protected activity in the given context.

Evidence That May Support a Retaliation Finding

To determine whether there is a causal connection between a materially adverse action and the individual’s protected activity, the EEOC will consider different types of relevant evidence, alone or in combination. Some of the facts that may lead to a retaliation finding include:

Suspicious timing, especially when the adverse action occurs shortly after the individual engaged in protected activity;
Inconsistent or shifting explanations, such as where the employer changes its stated reasons for taking the adverse action;
Treating similarly situated employees more favorably than the individual who engaged in protected activity;
Statements or other evidence that suggest the employer’s justification for taking the adverse action is not believable, was pre-determined, or is hiding a retaliatory reason.

February 23, 2016

EEOC Providing Employer Position Statements To Charging Parties

By Mark Wiletsky

No reciprocity exists in the new nationwide procedure announced by the U.S. Equal Employment Opportunity Commission (EEOC) late last week. The EEOC now will provide employer position statements and any non-confidential attachments to a charging party during an investigation upon request. It then will permit the charging party to submit a response within 20 days. However, the EEOC will not afford employers the right to receive a copy of the charging party’s response.

As you may know, after an employee or other aggrieved individual files a charge with the EEOC, the agency begins an investigation of the allegations. As part of the investigation, the EEOC will request that the employer (the respondent) submit a position statement, responding to the allegations and providing supporting documentation of its employment decisions that allegedly affected the charging party.

Some EEOC regional offices already release employer position statements to the charging party and allow the charging party to file a response. For employers in those EEOC districts, there is little change in procedure. According to the EEOC, however, this new nationwide procedure is intended to provide a consistent approach in all of its offices.

Take note – these procedures apply to position statements you already may be drafting, or have recently submitted, as they apply to all EEOC requests for position statements made to respondents on or after January 1, 2016.

EEOC Providing Only The First Formal Document From Each Side

In justifying its policy to provide the employer’s position statement to the charging party, but not providing the charging party’s response to the employer, the EEOC states that it is releasing the first formal document received from each party. The respondent receives the Charge and the charging party may receive the respondent’s position statement. The EEOC does not intend to release other documents during the investigation process.

Does this amount to a one-sided discovery request? In other words, by requesting copies of what the respondent submitted to the EEOC, does the charging party get the unreciprocated right to learn the identification of witnesses, decision-makers, applicable company policies, internal documentation of the employment decision, and other important information? The EEOC states this new process is intended to help accelerate the investigation and allow it to better tailor its requests for additional information. But, employer respondents will likely see the procedure as requiring it to lay its cards on the table while permitting the charging party to keep its cards largely hidden.

Use Care With Confidential Information

Respondents who rely on confidential information in their position statements should use care in segregating that information in separate attachments that are labeled “Confidential” or some similar designation. Examples of “confidential” information include birth dates, confidential commercial or financial information, trade secrets, non-relevant personally identifiable information of witnesses, comparators or third parties, references to charges filed against the respondent by other charging parties, and sensitive medical information of others (not the charging party). The EEOC states, however, that it will not accept blanket or unsupported assertions of confidentiality, so be prepared to justify why particular information must be protected.

Be careful, too, when submitting position statements and attachments through the EEOC’s online portal. Once you click “Save Upload” to submit your position statement and any attachments, you will not be able to retract them.

Will The New Procedure Change Outcomes?

It’s important to ask whether the early release of the respondent’s position statement (with supporting documents) to the charging party during the EEOC’s investigation will change the outcome of charges. As with any case, it largely depends on the facts. If you have bad facts or poor documentation on your side, the charge may result in a probable cause finding. Or, the charging party may hold out for more during settlement talks or mediation. However, if you have good policies in place, enforce them uniformly, and document your decisions properly, the release of your defense may help resolve the matter earlier in the process, short of litigation.

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January 29, 2016

EEOC Proposes To Collect Pay Data From Employers

By Mark Wiletsky

The U.S. Equal Employment Opportunity Commission (EEOC) plans to collect pay data from employers with more than 100 employees in order to reveal potentially discriminatory pay practices. Through a proposed revision to the Employer Information Report (EEO-1), large employers will report the number of employees by race, gender, and ethnicity that are paid within each of 12 pay bands. The revision is expected to apply to the September 30, 2017 EEO-1 reports.

By gathering this new pay data by race, gender, and ethnicity, the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) intends to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” The agencies also believe the data will assist employers in promoting equal pay in their workplaces.

Employers To Be Covered By Revised EEO-1

Employers with 100 or more employees, including federal contractors, would be required to submit pay data on the revised EEO-1. Federal contractors with 50-99 employees would not be required to report pay data, but still would be required to report sex, race, and ethnicity, as is currently required.

Pay Bands For Proposed EEO-1 Reporting

Under the EEOC’s proposal, employers would use employees' total W-2 earnings for a 12-month period looking back from a pay period between July 1st and September 30th. For each of the EEO-1 job categories, the proposed EEO-1 would have 12 pay bands. Employers would tabulate and report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band.

The proposed pay bands mirror the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 – $24,439;

(3) $24,440 – $30,679;

(4) $30,680 – $38,999;

(5) $39,000 – $49,919;

(6) $49,920 – $62,919;

(7) $62,920 – $80,079;

(8) $80,080 – $101,919;

(9) $101,920 – $128,959;

(10) $128,960 – $163,799;

(11) $163,800 – $207,999; and

(12) $208,000 and over.

The EEOC published a Question & Answer page on its website to help explain how the pay data would be reported.

Comment Period to Follow

The EEOC’s announcement of the pay data collection on the revised EEO-1 coincides with a White House commemoration of the seventh anniversary of the Lilly Ledbetter Fair Pay Act. The proposed changes will be officially published in the Federal Register on February 1, 2016. Interested parties and members of the public may submit comments for the 60-day period ending April 1, 2016.

We expect that a significant number of employers, business organizations, and industry associations will submit comments, opposing this additional reporting requirement. Groups also may challenge the changes in court. We will keep you posted as this proposal goes forward.

In the meantime, if your organization has concerns about its pay practices, now is a good time to review those practices and proactively address any troubling issues.

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July 23, 2015

EEOC Concludes Sexual Orientation Discrimination Violates Title VII – Will Courts Agree?

By Dustin Berger

According to an opinion from the Equal Employment Opportunity Commission (EEOC) last week, Title VII’s bar on sex discrimination also forbids employment discrimination based on sexual orientation. It is unclear, however, whether courts facing Title VII sexual orientation or gender identity discrimination claims will agree with the EEOC’s conclusion.

Federal Employee Alleged He Was Denied Permanent Position Because He Is Gay

An employee of the Federal Aviation Administration (FAA) filed a complaint alleging that he was denied a permanent position as a Front Line Manager at the Miami Tower TRACON facility because he is gay. He alleged that his supervisor, who was involved in the selection process, had made several negative comments about his sexual orientation, such as “We don’t need to hear about that gay stuff.”

The FAA declined to process the employee’s claim under rules that govern federal employee complaints of Title VII. The employee appealed to the EEOC. This teed up the issue of whether Title VII covers claims of sexual orientation discrimination.

Three Reasons Why Sexual Orientation Already Covered As Sex Discrimination

In its decision, the EEOC details three reasons why it concludes that sexual orientation discrimination is sex discrimination prohibited by Title VII:

Sexual orientation discrimination necessarily entails treating a worker less favorably because of that person’s sex. As an example, the EEOC states that if an employer suspends a lesbian employee for having a picture of her female spouse on her desk but does not suspend a male employee for displaying a photo of his female spouse, the employer took an adverse action against the lesbian employee that it would not have taken if she were male.
Sexual orientation discrimination is associational discrimination on the basis of sex. The EEOC views sexual orientation discrimination as treating a worker differently for associating with a person of the same sex. It opines that if associating with a person of a different race, such as an interracial marriage or a biracial child, constitutes race discrimination, as numerous courts have ruled, then discrimination based on associating with a person of the same sex constitutes sex discrimination.
Sexual orientation discrimination involves discrimination based on gender stereotypes. In its 1989 Price Waterhouse v. Hopkins decision, the U.S. Supreme Court ruled that Title VII prohibited an employer from discriminating against a female employee who the employer deemed was not “feminine enough” and did not conform to the female stereotype. Pointing to numerous court cases from the past decade, the EEOC stated that discrimination against LGBT employees based on gender stereotypes constitutes prohibited sex discrimination under Title VII.

No New Protected Class Needed

The EEOC acknowledges that Title VII does not specifically prohibit employment discrimination based on sexual orientation. It doesn’t have to, says the EEOC.

The EEOC asserts that interpreting Title VII as not covering sexual orientation as part of prohibited sex discrimination would insert a limitation into the text of Title VII that Congress had not included. It suggests that nothing in the text of Title VII supports the conclusion that Congress intended to “confine the benefits of [the] statute to heterosexual employees alone.” Instead, the EEOC states that even if Congress did not envision the application of Title VII to protect LGBT employees, the interpretation of the law should not be limited only to what Congress had in mind when it passed the law in 1964.

To dispel claims that the EEOC’s interpretation creates a new class of covered persons, the EEOC points to other expanded interpretations of Title VII which did not result in a new protected category. For example, when courts held that Title VII protected employees based on their association with persons of a different race, it did not create a new protected class of “people in interracial relationships.” Similarly, when the Ninth Circuit ruled that religious discrimination under Title VII extended to protect an employee who lacked religious beliefs, no new class of “non-believers” was created. Instead, the EEOC asserts that “courts have gone where the principles of Title VII have directed.”

What Does This Mean?

Sexual orientation and/or gender identity discrimination is already prohibited by law in many states and municipalities. In addition, federal contractors are prohibited from discriminating on those bases as well. If your organization is a federal contractor or is covered by a state or local law prohibiting employment discrimination on those grounds, you should already have updated your equal employment opportunity policies and practices to prohibit harassment, discrimination and retaliation based on sexual orientation and gender identity.

If your organization is not covered by those laws, but is subject to Title VII (which covers employers with 15 or more employees), consider whether to adopt the EEOC’s position. The courts may interpret Title VII differently and ultimately may reject the EEOC’s inclusion of sexual orientation as a form of sex discrimination.

Indeed, for many years, as advocates of the right to same-sex marriage pressed their cases in courts, many courts rejected the argument that discrimination based on sexual orientation was a form of discrimination based on sex. However, as the EEOC observes in its opinion, many courts that have taken up this question more recently have been willing to conclude that discrimination based on sexual orientation is a form of sex discrimination. The EEOC points to both the Ninth Circuit’s landmark Perry decision and the U.S. Supreme Court’s recent same-sex marriage decision in Obergefell as signaling that courts are ready for this interpretation.

While it may take some time for the federal appellate courts to provide more definitive rulings, be aware that the EEOC will pursue claims on behalf of, or in support of, allegedly aggrieved LGBT employees and applicants. You’ll need to weigh your risk tolerance to determine how to respond. We will keep you posted on further developments.

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April 29, 2015

EEOC Conciliation Efforts Are Reviewable, Says Supreme Court

By Dustin Berger

Employers have a narrow right to seek judicial review of the Equal Employment Opportunity Commission’s (EEOC’s) statutory obligation to give an employer adequate notice of the charges against them, including the identity of the employees (or class of employees) claiming discrimination, and to engage in informal resolution of the charges. In a unanimous decision, the U.S. Supreme Court ruled that courts have the authority to review whether the EEOC has met its duty under Title VII to attempt informal resolution of alleged discriminatory practices prior to filing suit. Mach Mining, LLC v. EEOC, 575 U.S. ___ (2015).

While the scope of review is limited, it is good news for employers as it limits the EEOC’s ability to take high priority cases to court without first engaging in any discussion with the employer to remedy the alleged unlawful practices. Unfortunately, however, under the Supreme Court’s decision, the courts’ review of the EEOC’s conciliation efforts will be too limited to ensure that the EEOC makes a genuine and meaningful attempt to reach a voluntary resolution of a charge before the EEOC sues.

Title VII Mandates Informal Methods of Conciliation

Title VII, the primary federal law that prohibits employers from discriminating against individuals on the basis of race, color, sex, religion, or national origin, sets forth a procedure to be followed by the EEOC when handling a complaint of employment discrimination. In part, the law requires that when the EEOC finds reasonable cause to believe discrimination occurred, it must first attempt to eliminate the alleged unlawful practice through “informal methods of conference, conciliation, and persuasion.” The EEOC may choose which informal method it chooses to attempt resolution of the charge, and the agency ultimately retains the right to accept any proposed settlement or to sue the employer.

Letter From EEOC Without Follow-Up Was Insufficient Conciliation Effort

In the case before the Court, a female applicant filed a charge alleging that Mach Mining, LLC had refused to hire her as a coal miner because of her sex. The EEOC investigated her charge and found reasonable cause to believe that Mach Mining had discriminated against not only that applicant, but also a class of women who had similarly applied for mining jobs.

The EEOC sent Mach Mining a letter inviting both the company and the female applicant to participate in informal conciliation and stated that an EEOC representative would contact them soon. That never happened. Instead, about a year later, the EEOC sent Mach Mining a second letter stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and further stated that any further efforts would be “futile.” The EEOC proceeded to sue Mach Mining in federal court alleging sex discrimination in hiring.

Mach Mining asserted that the EEOC had failed to conciliate in good faith prior to filing suit, as was required by Title VII. Although the federal district court agreed with Mach Mining that it should review whether the EEOC had met its conciliation duty, the Seventh Circuit Court of Appeals overruled that decision and held that a party could not assert as a defense that the EEOC had failed to conciliate the claim as Title VII required. The Seventh Circuit explained that conciliation was solely within the EEOC’s expert judgment and that there was no workable standard that would allow judges to review that process. Furthermore, the Seventh Circuit believed that court review of conciliation would complicate Title VII lawsuits by allowing the focus of the litigation to drift from the merits of the Title VII claim to the sufficiency of the EEOC’s conciliation effort.

Although other federal appellate courts, however, have held that Title VII does allow a court to review the EEOC’s conciliation effort, there was no uniformity among the other appellate courts in what that review should entail. The Supreme Court agreed to take the Mach Mining case to resolve whether and to what extent courts may review the EEOC’s conciliation attempts.

Notice to Employer and Discussion Required

Justice Kagan, writing for a unanimous Court, first explained that courts routinely enforce compulsory prerequisites to suit in Title VII cases. Although Congress had given the EEOC wide latitude over the conciliation process, the Court refused to allow the EEOC to police itself on whether it had complied with its conciliation duty. Accordingly, it overruled the Seventh Circuit’s decision and held that courts have the authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation of discrimination charges.

The Court then turned to the proper standard of judicial review. In other words, it considered what the EEOC must show in order to meet its conciliation duty as a precondition to filing suit. The agency argued for minimal review, suggesting that its letters to Mach Mining were a sufficient attempt at conciliation. Mach Mining argued for a much deeper review, urging that the Court adopt a standard from the National Labor Relations Act that would require a negotiation in good faith over discrimination claims. The Court rejected both approaches and took a middle line.

The Court explained that judicial review was available but was limited to ensuring that the EEOC provided the employer with notice and an opportunity to discuss the matter tailored to achieving voluntary compliance. The Court stated that the EEOC must inform the employer not only about the specific allegations of discrimination, but also about which employees (or what class of employees) have suffered as a result. Ordinarily, the Court noted, the EEOC’s “reasonable cause” letter will provide this notice. Then, the EEOC must attempt to engage in some form of discussion with the employer to give the employer a chance to remedy the allegedly discriminatory practices prior to being sued. That discussion may be in written or oral form and the EEOC will retain a great deal of discretion about how to conduct its conciliation efforts and when to end them.

Evidence of the conciliation efforts may be supported or challenged through written affidavits. Ordinarily, the EEOC’s affidavit will show it has met its conciliation duty, but employers may create a factual issue through affidavits or other credible evidence that indicates that the EEOC did not provide the requisite information about the charge or attempt to engage the employer in discussion prior to filing suit. If a reviewing court finds in the employer’s favor on such a challenge, the appropriate remedy is for the court to order the EEOC to engage in conciliation.

Confidentiality of Conciliation

In reaching its decision, the Court focused in part on Title VII’s non-disclosure provision. This provision states that “[n]othing said or done during and as a part of such informal endeavors may be made public by the [EEOC], its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Mach Mining argued that this confidentiality provision meant only that the actions taken and statements made taken during conciliation could not be used as evidence of the merits of the claim. The Court rejected that argument and reiterated that the non-disclosure provision protects actions and statements made during conciliation from disclosure for any evidentiary purpose. And, the Court explained, the non-disclosure provision alone precluded the courts from engaging in any deeper inquiry into the EEOC’s actions during conciliation.

What This Means For You

As the EEOC has been aggressively pursuing employers on novel theories of discrimination, it is beneficial to have the ability to ask a court to review whether the EEOC provided proper notice of the allegedly discriminatory practice and the employees allegedly affected by it and offered the employer an effort to discuss the matter for the purpose of achieving voluntary compliance. Although this review is narrow, it is an improvement over the Seventh Circuit’s view because it gives employers a limited opportunity to hold the EEOC accountable for satisfying its statutory obligation to conciliate claims. If your organization receives a “reasonable cause” finding, be sure to track what efforts the EEOC makes to engage you in discussions to pursue voluntary compliance. If those efforts do not meet the standard announced by the Court, you can seek to compel the EEOC to make an effort compliant with its statutory obligations before it proceeds with its suit.

What the Mach Mining decision will not do, however, is allow an employer to seek the aid of a court in requiring the EEOC to make a genuine effort to achieve a voluntary resolution of a charge. For instance, the Mach Mining decision does not require the EEOC to negotiate in good faith, apprise an employer of “the smallest remedial award the EEOC would accept,” lay out the legal and factual basis for its position or any request for a remedial award, refrain from “take-it-or-leave-it” offers, or provide any particular amount of time for an employer to consider and respond to the EEOC’s position or offers. Accordingly, you are well advised to set expectations of the conciliation process at a low threshold and, to the extent you believe voluntary resolution is desirable, take the initiative in working with the EEOC after receiving a reasonable cause determination letter.

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April 14, 2015

EEOC Fails to Show Telecommuting Would Be A Reasonable Accommodation

By Mark Wiletsky

The Americans With Disabilities Act (ADA) “does not endow all disabled persons with a job—or job schedule—of their choosing,” according to the majority of judges on the full Sixth Circuit Court of Appeals. In an 8 to 5 decision, the Sixth Circuit Court ruled en banc that Ford Motor Company did not violate the ADA when it denied an employee’s request to telecommute up to four days per week in order to accommodate her irritable bowel syndrome. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015).

“Good, Old-Fashioned Interpersonal Skills” Made In-Person Attendance Essential

The Equal Employment Opportunity Commission (EEOC) argued that a resale buyer for Ford, Jane Harris, who had irritable bowel syndrome that made it difficult for her to be far from a restroom, should be allowed to work from home up to four days per week. The agency cited Ford’s telecommuting policy that allowed other workers, including some resale buyers, to telecommute as evidence that Harris’ telecommuting request was a reasonable accommodation under the ADA.

The Court disagreed. It ruled that regular and predictable on-site attendance was an essential function of the resale-buyer position at Ford. Resale buyers needed to purchase raw steel from steel suppliers and then resell it to parts manufacturers to make parts used in Ford vehicles. Although some interactions could be done by email and telephone, the Court found that many required “good, old-fashioned interpersonal skills,” and resale buyers needed to be able to meet face to face with suppliers, parts manufacturers and Ford employees during core business hours.

Importantly, the Court reiterated the general rule is that regular attendance at work is essential to most jobs, especially interactive ones. It pointed to past court opinions as well as to EEOC regulations that support the premise that regular and predictable on-site attendance is an essential job function. The Court even relied on that “sometimes-forgotten guide” – common sense, stating that non-lawyers (as well as judges in other appellate circuits) recognize that regular in-person attendance is an essential function, and a prerequisite to other essential functions, of most jobs.

Other Buyers Telecommuted on a Predictable, Limited Basis

But what about the fact that Ford had a telecommuting policy that allowed other employees, including resale buyers like Harris, to work from home? Wouldn’t that make telecommuting a reasonable accommodation for Harris?

The Court said no, because she proposed to telecommute four days per week on a schedule of her choosing. The other resale buyers who telecommuted did so only one established day per week and they agreed in advance that they would come into work that day, if needed. They were also able to perform well and maintain productivity. Harris, on the other hand, wanted to be able to pick and choose which days she would telecommute, up to four days per week, without agreeing to come in those days, if necessary. The Court found that none of these other employees’ more predictable and more limited telecommuting schedules removed regular on-site attendance from the resale buyer’s job.

As a result, the Court ruled that Harris’ proposed telecommuting accommodation unreasonable.

In addition, Ford had allowed Harris to telecommute on an as-needed basis on three separate occasions and her performance suffered. Other attempts to improve Harris’ attendance also failed. The Court found that Harris could not perform the essential functions of her job and was unable to establish regular and consistent work hours. Therefore, it ruled that she was not a “qualified individual” under the ADA.

Technology Did Not Carry the Day

The EEOC argued that advances in technology make on-site attendance less essential. The Court disagreed in this case, stating that there was no evidence presented that specific technology made personal interactions unnecessary for resale buyers.

No Blind Deference to Employer’s Judgment

The Court made a point of stating that its opinion did not open the door for courts to blindly accept as essential whatever an employer says is essential for a particular job. It emphasized that an employer’s words, policies and practices were all important in deciding whether a particular task or requirement is an essential job function.

In Ford’s case, the evidence supported Ford’s judgment that regular and predictable in-person attendance was essential for resale buyers. The Court affirmed the district court’s grant of summary judgment in favor of Ford.

No Retaliation For Termination

The Court also ruled that Ford did not retaliate against Harris when it fired her for poor performance just four months after she had filed a charge of discrimination with the EEOC. Key was Ford’s good documentation of Harris’ performance and interpersonal issues. She had been ranked in the bottom 10% of her peer group before she filed her charge. Documentation showed that she failed to update spreadsheets, complete her paperwork, schedule training sessions, price items correctly and finish her work on time. Despite the closeness in time of the firing to her charge filing, the Court ruled that the EEOC failed to present evidence from which a reasonable jury could find that the real reason that Ford terminated Harris was unlawful retaliation instead of poor performance.

Dissent: Either Physical Presence is Not Essential or Telecommuting is A Reasonable Accommodation

Five judges on the Sixth Circuit dissented, believing that the EEOC had presented enough evidence to send the EEOC’s claims to a jury. Specifically, the dissent stated that the evidence was sufficient to show that there remained genuine disputes over whether Harris was a qualified individual, either because in-person attendance was not an essential function of her job, or because telecommuting would be a reasonable accommodation for her. It pointed to Ford’s telecommuting policy which allowed for “one to four days” of telework each week. It noted that Harris proposed that she be able to work from home up to four days each week, as was arguably allowed under the policy, not that she be permitted to telecommute four days each and every week.

The dissent also asserted that Harris’ past attendance issues that were a result of her disability should not be used against her in deciding whether a telecommuting arrangement during core business hours would be a reasonable accommodation under the ADA. Moreover, the dissent found that Ford should have engaged in a more interactive process to clarify Harris’ telecommuting accommodation request. Finally, the dissent believed that there was a genuine dispute over whether Ford retaliated against Harris for filing her discrimination charge.

Lessons for Employers Facing ADA Telecommuting Accommodation Requests

The majority’s decision finding that regular and predictable in-person attendance is an essential function of most jobs, especially interactive ones, is favorable for employers. But it does not mean that telecommuting can never be a reasonable accommodation. In fact, the dissent in this case demonstrates that telecommuting requests for disabled employees is likely to continue to be an issue with which employers will grapple in coming years.

If face-to-face interactions and in-person attendance at meetings or other work-related functions is essential for certain jobs at your workplace, be certain to include those tasks in your job descriptions. If you generally allow telecommuting, be sure to have a written policy and apply it consistently. If presented with a request to telecommute in order to accommodate a disability, engage in an interactive process to discuss whether telecommuting would be appropriate for that particular position and employee, whether it would constitute an undue hardship for your organization and if alternative accommodations would allow the employee to perform his or her essential functions. And by all means, make sure you have concrete documentation of an employee’s poor performance or policy infractions before taking adverse action against anyone who has filed a discrimination charge.

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March 12, 2015

EEOC Strategic Enforcement Priorities: More Insight from Denver’s Director (Part Two)

By Jude Biggs

As we wrote last week, John Lowrie, the new director of the EEOC’s Denver Field Office, recently offered insight into the agency’s national Strategic Enforcement Plan (SEP) and how his office will approach those enforcement goals. Here is the second article in the series exploring the third and fourth priorities in the EEOC’s SEP.

Priority #3 – Developing Issues

Field Director Lowrie explained the EEOC and its individual field offices are working to advance a number of developing issues. These include:

Reasonable ADA accommodations – one example is telecommuting, where an employee’s physical presence at the company is not an essential job function. The EEOC has successfully pursued this in a case against the Ford Motor Company but the case is being reexamined by the full Sixth Circuit Court of Appeals so may not stand.
Pregnancy discrimination – Mr. Lowrie discussed the lengthy Pregnancy Discrimination Act (PDA) enforcement guidance issued last July. The guidance document contains many hypothetical situations that the agency deems would violate the PDA as well as a section on employer best practices.
Title VII accommodations – Mr. Lowrie pointed to the Abercrombie & Fitch religious accommodation case which is currently before the U.S. Supreme Court as an example of how the agency looks to ensure employers make reasonable accommodations for characteristics protected by Title VII. At issue in the Abercrombie case is whether a Muslim job applicant who wore a headscarf to her job interview and was denied employment was required to request a reasonable accommodation on religious grounds in light of the company’s “look policy” which would not have permitted wearing the headscarf at work.

Priority #4 – Equal Pay Act

The fourth priority in the EEOC’s SEP is enforcement of the Equal Pay Act (EPA). Mr. Lowrie noted that Jenny Yang, who was appointed as the EEOC’s new chairperson last September, had made a recent visit to the Denver field office during which she specifically mentioned EPA issues to the Denver investigators and staff. Because equal pay issues are high on the Chair’s agenda, charges involving allegations of unequal pay based on gender will receive additional attention by EEOC investigators and attorneys.

Mr. Lowrie also noted that Wyoming is the worst state in the nation for pay disparity issues. Because the Denver field office has jurisdiction over Wyoming (as well as Colorado), the Denver field office may look to change Wyoming’s poor ranking through vigilant enforcement of equal pay charges that come into its office.

Steps to Avoid Additional Scrutiny

Because the EEOC is giving priority status to these types of charges, you need to take time to review your compliance efforts related to these issues. First, take a look at your reasonable accommodation process. Have you trained your managers and supervisors to recognize when an accommodation is being requested? Do you engage in an interactive process with the applicants and employees who make accommodation requests? Be certain to document your interactive process and all accommodations decisions you make. Second, review your policies as they relate to pregnant employees. Make sure that you do not treat pregnancy less favorably than other medical conditions and consider possible ADA accommodations if circumstances so warrant. Third, audit your pay grades and compensation structure to make sure that you are paying workers doing the same work equally, regardless of gender.

Next Installment Will Focus on Final Two EEOC Priorities

In the next and final article in this series, we will offer insight into the last two of the EEOC’s strategic priorities. Both are areas in which the EEOC has vigorously sued employers whose policies and practices it deems are discriminatory, so stay tuned.

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March 2, 2015

EEOC Strategic Enforcement Priorities: Insight from Denver’s Director (Part One)

By Jude Biggs

Knowing the Equal Employment Opportunity Commission’s (EEOC’s) top priorities can help you direct your risk management efforts and avoid enhanced scrutiny. John Lowrie, the new director of the EEOC’s Denver Field Office, recently spoke to the Labor and Employment Section of the Colorado Bar Association about the agency’s national Strategic Enforcement Plan (SEP) and how his office will approach those enforcement goals. This article is the first in a series that will share Mr. Lowrie’s insight into how EEOC investigators and attorneys in the Denver Field Office work toward fulfilling the national enforcement priorities.

Certain EEOC Charges Get Immediate Attention

The Denver field office currently has 12.5 investigators, 7 attorneys, 3 mediators and 1 administrative law judge. With the volume of charges received by the Denver office remaining steady at between 1,800 to 2,000 charges each year, charges alleging certain types of claims get enhanced attention which can include immediate review by the legal staff, up to and including the director himself.

Which charges receive this immediate attention? Any charge that touches on one of the EEOC’s six national strategic enforcement priorities. Here we discuss the first two priorities in the national SEP, including Mr. Lowrie’s perspective from the Denver Field Office.

Priority #1 – Remove Barriers to Employment

According to Field Director Lowrie, there are two main components to the EEOC’s first enforcement priority of removing barriers to employment: (1) arrest and conviction records, and (2) medical screening questions and procedures. If a charge alleges discriminatory use of criminal background checks in hiring or the inappropriate timing or use of medical questions or exams, the EEOC will escalate that charge for immediate review.

The EEOC has brought several high-profile lawsuits in the past few years alleging that blanket “no hire” policies that prohibit hiring an applicant with a criminal record have a discriminatory impact on African Americans and other protected classes in violation of Title VII. In the Peoplemark case, however, the EEOC was ordered to pay the prevailing employer over $750,000 in attorneys’ and expert witness fees when the court ruled that no company-wide criminal background check policy existed, an allegation that was essential to the EEOC’s case. Similarly, in the Freeman case, a federal appeals court recently upheld the dismissal of the EEOC’s case, calling its expert’s analysis “utterly unreliable.” Despite its losses, the EEOC is pursuing claims based on criminal background checks, with lawsuits against BMW, Dollar General and other companies still ongoing.

Priority #2 – Vulnerable Workers

The second strategic enforcement priority is the protection of vulnerable workers. Field Director Lowrie explained that this includes agricultural workers, immigrant and migrant workers and mentally disabled workers.

When discussing immigrant and migrant workers, Mr. Lowrie noted the EEOC does not look at whether the workers are authorized to work in the U.S. or if they are in the country illegally, commenting that the EEOC is not ICE or Homeland Security. Instead, the EEOC looks to enforce the anti-discrimination laws under its jurisdiction so that employers do not escape enforcement just because they use unauthorized workers.

As for protecting mentally disabled workers, Mr. Lowrie specifically mentioned the EEOC’s win in a case against a turkey farm in the Midwest in which over thirty men with intellectual disabilities were housed in substandard facilities, denied medical care and harassed both verbally and physically for years.

Stay Tuned for Insight into Other Top EEOC Priorities

In the next few weeks, we will explore the EEOC’s remaining strategic priorities. In the meantime, review your background check policy to ensure you do not have a blanket “no hire” criminal record exclusion. Check that your employment application does not state that applicants will be automatically excluded if they have a criminal record. Make sure that you do not ask for medical information, such as family medical history, or send applicants for a medical exam until after a conditional job offer has been made. Be careful with wellness programs, ensuring they are voluntary. And if you employ vulnerable workers, make certain that your policies and practices do not single them out for disparate treatment in pay, job assignments or other conditions of employment.

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October 21, 2014

EEOC’s Failure to Engage in Conciliation Dooms Its Separation Agreement Lawsuit Against CVS Pharmacy

By Mark Wiletsky

Chalk up a loss for the Equal Employment Opportunity Commission (EEOC) in its lawsuit against CVS Pharmacy’s separation agreements. As we reported earlier, the EEOC sued CVS alleging that CVS’s separation agreements deterred employees from filing charges and communicating with the EEOC about discrimination and retaliation. Dismissing the case, a federal judge recently ruled that the EEOC failed to engage in the required procedural steps, including conciliation, before filing its lawsuit.

EEOC Dismissed Employee’s Charge, Then Went After Employer

This lawsuit is an example of the aggressive, proactive nature of the EEOC in extending the protections of Title VII to new and novel claims. The case arose after CVS terminated Tonia Ramos, a pharmacy manager. Ms. Ramos signed CVS’s standard separation agreement, which included a release of claims and a covenant not to sue. She then proceeded to file a charge with the EEOC claiming that her discharge was based on sex and race in violation of Title VII. Almost two years later, the EEOC dismissed Ms. Ramos’s charge.

The EEOC then contacted CVS asserting that based on the separation agreement, CVS was engaging in a pattern or practice of resistance to their employees’ full enjoyment of rights under Title VII. In other words, the EEOC concluded that even though the individual employee did not have a valid discrimination claim against CVS, it would bring a pattern or practice case against CVS based on the language in its standard separation agreement used with potentially hundreds of former employees.

No Conciliation, No Lawsuit

Under Title VII enforcement procedures, the EEOC has the authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed on behalf of an allegedly harmed employee or by the EEOC itself. The procedures require that the EEOC try to resolve any alleged unlawful employment practices through informal means before filing a lawsuit. Such means include conferences, conciliation and persuasion. Although the EEOC and CVS discussed potential settlement by telephone twice before the EEOC filed suit, the EEOC failed to engage in conciliation, which proved fatal to its case. Because an attempt at reaching a conciliation agreement is a prerequisite to the EEOC filing suit and it was undisputed that the EEOC did not engage in any conciliation process, the federal court dismissed the EEOC’s case against CVS.

Judge’s Guidance is in the Footnotes

The case was dismissed on procedural grounds, but the judge took the opportunity to offer his view on the merits of the EEOC’s arguments in several footnotes in the opinion. First, the EEOC argued that the term “resistance” as used in Title VII should be interpreted broadly to extend to the language in CVS’s separation agreement even if that language did not amount to discrimination or retaliation under the Act. The judge rejected that argument, stating that the term “resistance” requires some retaliatory or discriminatory act.

Second, the judge discussed the “covenant not to sue” provision in CVS’s separation agreement. Even though the provision stated that an employee could not “initiate or file . . . a complaint or proceeding asserting any of the Released Claims,” the release of claims (in another paragraph of the separation agreement) stated that it did not limit “any rights that the Employee cannot lawfully waive.” In addition, the agreement contained two carve out provisions specifying an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws” and that the agreement did not prohibit the employee from cooperating with any such agency in its investigation. The judge wrote that these provisions would allow an employee to file an EEOC charge. He went on to write that even if the separation agreement explicitly banned filing charges, those provisions would be unenforceable and could not constitute “resistance” under Title VII.

One Case Down; One Still Pending

The dismissal of the CVS lawsuit is good news for employers who use separation agreements, especially in light of the judge’s comments signaling that the EEOC’s arguments were without merit. However, a similar case filed by the EEOC against College America is still proceeding through the federal court in the District of Colorado. (We wrote about the College America case here.) Like CVS, College America has asked the court to dismiss the EEOC’s case. We will let you know when the court rules on that motion. In the meantime, employers should review their separation agreements to ensure they include a provision that the agreement does not prohibit employees from filing a charge, participating in an investigation or otherwise cooperating with an appropriate federal, state or local government agency that enforces discrimination laws.

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