By Steven M. Gutierrez
via www.coloradoemploymentlawblog.com
Employers continue to face increases in the number of discrimination charges and lawsuits. The EEOC continues to make enforcement in this area a high agency priority. The costs to employers are significant, given the use of wide-ranging subpoenas and discovery requests by the EEOC. Steven Gutierrez discussed the important issue yesterday in a post that is available by visiting www.coloradoemploymentlawblog.com.
Last week, the Equal Employment Opportunity Commission (EEOC) issued its final rule governing disparate impact claims arising under the Age Discrimination in Employment Act of 1967 (ADEA). A disparate impact occurs when a policy or practice that is facially neutral has a disparate, or significantly greater, impact on older workers than younger ones. The EEOC's final age bias rule addresses the “reasonable factors other than age” defense, or RFOA, under the statute. According to the EEOC, the rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA [reasonable factors other than age], and not business necessity[.]” For more information, see the post by my colleague, Scott Randolph.
By Mark Wiletsky
Following up on my post last week, the flap over employers asking applicants to turn over their passwords to social media accounts, such as Facebook, rages on. Two senators–Sens. Richard Blumenthal (D-Conn.) and Charles Schumer (D-N.Y.)–on March 25 asked the Department of Justice and the EEOC to investigate this practice (http://blumenthal.senate.gov/newsroom/press/release/blumenthal-schumer-employer-demands-for-facebook-and-email-passwords-as-precondition-for-job-interviews-may-be-a-violation-of-federal-law-senators-ask-feds-to-investigate). Facebook joined the fray by warning employers about this practice, and of course the ACLU has raised concerns as well (http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3). Is this issue being overblown? Other than media reports about a couple of public entities, it is unclear how many employers are demanding applicants turn over passwords to social media accounts as a condition of employment (or consideration for employment). Still, the heightened media attention is a good reminder for employers to review their hiring practices and their social media policies. If you have not yet read the NLRB's January 25, 2012 Operations Management Memo (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report), I recommend doing so. Even though I disagree with certain aspects of the Memo, it provides some good examples of things to avoid in both social media policies and discipline/termination situations involving social media–for Union and non-Union work environments.
Wow! The U.S. Equal Employment Opportunity Commission approved a new strategic plan on February 22, 2012.
In summary, the four-year strategic plan, adopted by a 4-1 vote, will focus on efforts to stop and remedy unlawful employment discrimination as a core mission. Commissioner Constance Barker noted that the plan’s focus will emphasize enforcement and litigation rather than education and outreach, which she believed was contrary to the EEOC’s legislative focus.
Perhaps the most dangerous component of the new plan will be the EEOC objective to increase the number of systemic discrimination cases it handles. These cases are focused on pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry. Systemic cases are also exceedingly expensive to defend. The EEOC will work over the next months to create the framework to “inform, justify and support the quantitative and qualitative performance measures throughout the plan.”
Fasten your seatbelts, it's going to be a bumpy night!
You can find the announcement at: http://www.eeoc.gov/eeoc/newsroom/release/2-22-12.cfm
For more information, contact Steven M. Gutierrez.
The EEOC announced last Thursday that it was filing suit against a large retailer under Title VII. The EEOC complained that retailer retaliated against an employee when she heeded mandatory evacuation warnings. According to the EEOC, the retailer terminated the employee for "excessive absenteeism." The case will now proceed in federal court. Whether or not the EEOC can prevail in its suit remains to be seen.
The lesson for employers is that the EEOC is paying close attention to claims of retaliation by employees and is filing suit when it believes that employers have retaliated against employees for engaging in protected activity. Employers should tread carefully in this area, as the costs of defending a suit can be significant, as can the negative publicity that can result from an EEOC enforcement action. In recent days, the EEOC has announced settlements of retaliation claims totaling thousands of dollars. In addition, some of the settlements have involved mandatory training for all company personnel and other policy changes. Employers are well advised to train their management team on these issues to ensure that all key personnel understand the importance of disconnecting complaints about protected activity from employment decisions about that individual.