Tag: EEOC

EEOC & FTC Issue Joint Background Check Guidance

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The U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued joint informal guidance concerning the legal pitfalls employers may face when consulting background checks into a worker’s criminal record, financial history, medical history or use of social media.  The FTC enforces the Fair Credit Reporting Act, the law that protects the privacy and accuracy of the information in credit reports. The EEOC enforces laws against employment discrimination.

The two short guides, Background Checks: What Employers Need to Know andBackground Checks: What Job Applicants and Employees Should Know, explain the rights and responsibilities of both employers and employees.

The agency press releases state that the FTC and the EEOC want employers to know that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Employers also should know that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

Additionally, the agencies want job applicants to know that it’s not illegal for potential employers to ask someone about their background as long as the employer does not unlawfully discriminate. Job applicants also should know that if they’ve been turned down for a job or denied a promotion based on information in a background report, they have a right to review the report for accuracy.

According to EEOC Legal Counsel Peggy Mastroianni, “The No. 1 goal here is to ensure that people on both sides of the desk understand their rights and responsibilities.”

Article by:

Jason C. Gavejian

Of:

Jackson Lewis P.C.

EEOC Sues Wal-Mart for Age and Disability Discrimination – Equal Employment Opportunity Commission

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Keller Store Manager Harassed and Then Fired Because of His Age; Also Denied a Reasonable Accommodation for His Diabetes, Federal Agency Charges

Wal-Mart Stores of Texas, LLC discriminated against a store manager by subjecting him to harassment, unequal treatment and discharge because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in federal court today. The EEOC’s suit also alleges that Wal-Mart violated federal anti-discrimination law when it refused the manager’s request for a reasonable accommodation for his disability.

The EEOC charges in its suit that David Moorman, the manager of a Keller, Texas Walmart store, who was 54 at the time, was ridiculed with frequent taunts from his direct supervisor including “old man” and the “old food guy.” The supervisor also derided Moorman with ageist comments such as, “You can’t teach an old dog new tricks.” The EEOC further alleges that, after enduring the abusive behavior for several months, Moorman reported the harassment to Wal-Mart’s human resources department. The EEOC contends that not only did Wal-Mart fail to take any corrective action, but the harassment, in fact, increased, and the store ultimately fired Moorman because of his age.

The suit also alleges that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his disability. Following his diagnosis and on the advice of his doctor, Moorman, a diabetic, requested reassignment to a store co-manager or assistant manager position. Wal-Mart refused to consider his request for reassignment, eventually rejecting his request without any dialogue or consideration.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA) which prohibits discrimination on the basis of age 40 or older, including age-based harassment. It also violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide disabled employees with reasonable accommodations. The EEOC filed suit, Case No. 3:14-CV-00908-M, in U.S. District Court for the Northern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC seeks injunctive relief, including the formulation of policies to prevent and correct age and disability discrimination. The suit also seeks damages for Moorman, including lost wages and an equal amount of liquidated damages for Wal-Mart’s willful conduct. The EEOC will also seek damages for harms suffered as a result of the non-accommodation.

“Employers should be diligent about preventing and correcting conduct that can amount to bullying at the workplace,” said EEOC Senior Trial Attorney Joel Clark. “They have an obligation to stop ageist harassment after it is reported. The company’s failure to take remedial action to stop the harassment, as well as the denial of a reasonable accommodation for a disability, and the ultimate termination of the discrimination victim demonstrate a disregard for equal opportunity laws. The EEOC is here to fight for the rights of people like Mr. Moorman.”

Robert A. Canino, regional attorney for the EEOC’s Dallas District Office, added, “The open mockery and insulting of experienced employees who have committed themselves to work for a company are totally unacceptable. It’s unfortunate when supervisors and managers lose sight of the importance of valuing employees. But we are hopeful that a constructive resolution which promotes the common goal of achieving a respectful work environment will emerge from this process.”

Article by:

U.S. Equal Employment Opportunity Commission

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Office Romances: 3-Part Series on How to Shield Your Company from Liability Part 2

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More than ever, employers are facing serious claims arising from office romances.  Part 1of this three-piece series covered the potential claims, charges and lawsuits that may arise from workplace relationships.  In this installment, learn why it is imperative to adopt a company policy addressing fraternization.  Part 3 will address tips for employers to mitigate potential liability.

What Does Company Policy Say?

With Valentine’s Day around the corner, now is a good time for employers to update or create a policy governing dating among workers.  While some policies prohibit romantic relationships altogether, many employers recognize that employees will date each other regardless of policy.  In fact, they might “sneak around” to avoid violating the policy, which could create even more tension if the relationship is discovered or known only to a select few.  Moreover, strict no-dating policies may be difficult to implement and enforce, as they may not clearly define the conduct that is forbidden (e.g., does the policy prohibit socializing, dating, romantic relationships, or something else?).

Some policies interdict dating among management and staff, while others specify that there is to be no fraternization with outside third parties to avoid conflicts of interest or the appearance of impropriety.  Still, other organizations mandate that employees who date one another voluntarily inform the company about their relationship.

In such cases, the notification policies direct employees to report their dating relationships to Human Resources, the EEOC officer, or a member of management, and they ask employees to sign a written consent regarding the romantic relationship.  While this type of policy may seem intrusive, these documents are drafted to protect employers from unwanted complaints of future sexual harassment or retaliation.

When asking employees to sign consents, you should again advise them about the company’s sexual harassment policy and remind them about ramifications of policy violations.  Document that the employees entered into the relationship voluntarily, were counseled and – if/when the relationship ends – include a memo in their respective personnel records that the relationship ended, and the employees were reminded about the company’s sexual harassment policy.  You should require the dating parties to make certain written representations to shield the company from future claims:

  • The individuals have entered the relationship voluntarily and the relationship is consensual.
  • The employees will not engage in any conduct that makes others uncomfortable, intimidated, or creates a hostile work environment for other employees, guests, or third parties.
  • The employees do not and will not make any decisions that could impact each other’s terms and conditions of employment.
  • The employees will act professionally toward each other at all times, even after the relationship has ended.
  • The relationship will not cause unnecessary workplace disruptions or distractions or otherwise adversely impact productivity.
  • The employees will not retaliate against each other if/when the relationship ends.

Stay tuned for Part 3 for steps to take now to defend potential claims of discrimination and harassment.

 

Article by:

Mona M. Stone

Of:

Greenberg Traurig, LLP

The Seventh Circuit Breaks from the Pack; Prohibits Employers from Challenging the EEOC’s Pre-Lawsuit Conciliation Efforts

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When the United States Equal Employment Opportunity Commission (EEOC) makes a finding of reasonable cause after its investigation of a discrimination charge, Title VII of the Civil Rights Act instructs the EEOC to “…endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation and persuasion.” The statute also provides that the EEOC may proceed to filing a lawsuit against the employer only if it “…has been unable to secure from the Respondent a conciliation agreement acceptable to the Commission.” In EEOC v. Mach Mining LLC, No. 13-2456, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana and Wisconsin) recently held that employers may not challenge the EEOC’s pre-lawsuit conciliation efforts as an affirmative defense to the lawsuit. By its decision, the Seventh Circuit broke away from the majority of Federal Courts of Appeal. The EEOC called the ruling in Mach Mining a “landmark” victory in its press release.

As part of its recent initiatives, the EEOC has been very aggressive in filing lawsuits and in the past few years has suffered setbacks with many courts critical of the Agency’s pre-lawsuit investigatory and conciliation efforts. The defense tactic of raising the failure of the EEOC to engage in good faith conciliation efforts as an Affirmative Defense has been widely used by employers’ attorneys in discrimination lawsuits brought by the EEOC. In many cases the EEOC might fail to even attempt face-to-face negotiation, refuse to provide information requested by the employer to assist in conciliation, or simply make a “take it or leave it proposal” before rushing to the courthouse to file a lawsuit.

The essence of the Court’s decision is that conciliation is an informal process in which the EEOC is to “try” to obtain a settlement acceptable to it. The Court also found that Title VII gives the EEOC “sole discretion” to determine whether a conciliation proposal is acceptable and further noted that Title VII is silent as to the standards by which the adequacy of the Agency’s conciliation efforts can be measured. Finally the Court found that permitting the employer to raise inadequate conciliation efforts as a defense to a discrimination claim would undermine the enforcement goals of Title VII. According to the Court, employers could drag out discrimination litigation by turning “what was meant to be an informal investigation into the subject of endless disputes over whether the EEOC did enough before going to court.” At least in Illinois, Wisconsin and Indiana, the EEOC’s methods, the negotiation process and whether the EEOC has acted in good faith in attempting to resolve a charge before filing a lawsuit no longer matters.

Although it is not yet known whether Mach Mining will petition the United States Supreme Court to resolve the split between the Seventh Circuit and the majority of other Courts of Appeal, it is likely this issue will someday be decided by the Supreme Court.

Article by:

Steven J. Teplinsky

Of:

Michael Best & Friedrich LLP

The EEOC (Equal Employment Opportunity Commission) Made Employers Pay in 2013

Godfrey Kahn

After several years of record charge filings, the Equal Employment Opportunity Commission (EEOC) finally saw a decrease in the number of charges filed by employees during the fiscal year beginning on October 1, 2012 and ending September 30, 2013 (FY2013).  During FY2013, the EEOC received 93,727 charges of discrimination.  Although charge filings decreased by approximately 6,000 charges from the previous year, the EEOC still managed to obtain record monetary recoveries for charging parties.

The EEOC recently announced that, during FY2013, it obtained over $372 million in monetary awards for employees alleging unlawful workplace discrimination.  This record amount of recoveries includes awards obtained though litigation, mediation, voluntary settlements and conciliations.  The EEOC recovered the bulk of this money through its voluntary mediation program.  Specifically, the EEOC obtained over $160 million for employees through this method.  In comparison, the EEOC only recovered $39 million through its litigation efforts

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Employers, however, should not let these numbers lead them to believe that they can get a more favorable resolution through litigation than through mediation or informal settlements.  The $39 million recovered through litigation is based on the resolution of 209 lawsuits (not all of these lawsuits resulted in verdicts in favor of the EEOC).  The $160 million recovered through mediation, on the other hand, represents the successful resolution of 8,890 charges (another 2,623 mediations did not result in resolutions).

Further, litigating an employment discrimination claim is a costly proposition, whereas a successful mediation helps to avoid most of the costs of litigating such claims, especially if the parties agree to mediate early on in the process.  More importantly, a successful mediation leads to the dismissal of the charge, which is an added benefit that is not guaranteed with informal settlements reached by the parties outside of mediation.

For these (372 million) reasons, employers should carefully consider all resolution options the next time they receive a charge of discrimination filed with the EEOC.

Article by:

Rufino Gaytán

Of:

Godfrey & Kahn S.C.

EEOC Outlines Enforcement Priorities in Approved Plan

The National Law Review recently published an article, EEOC Outlines Enforcement Priorities in Approved Plan, written by Kelly H. Kolb of Fowler White Boggs P.A.:

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The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a Strategic Enforcement Plan (SEP) aimed at establishing national enforcement priorities and more effectively integrating enforcement responsibilities across the Commission’s 54 offices.

As part of the plan, the EEOC has identified six national priorities:

  • Eliminating barriers in recruiting and hiring;
  • Protecting vulnerable workers (such as immigrant workers);
  • Addressing emerging and developing employment discrimination issues;
  • Enforcing equal pay laws;
  • Preserving access to the legal system; and
  • Preventing harassment through systemic enforcement and targeted outreach.

The SEP notes that the EEOC will continue its focus on systemic discrimination, using individual discrimination charges as a vehicle to investigate all of the employment practices of employers. The EEOC will also pay particular attention to use of criminal background checks during the hiring process, an issue we have discussed in other newsletters and on radio, to LGBT discrimination, disability discrimination and to pregnancy discrimination claims.

The SEP lays out an aggressive agenda for the EEOC. Employers are well advised to take precautionary steps now to insulate against a possible EEOC “pandemic”.

©2002-2013 Fowler White Boggs P.A.

"The Sins of the Father": Third Party Retaliation Claims Allowed to Proceed

Recently posted in the National Law Review an article written by Ralph A. Morris of Schiff Hardin LLP about third-party retaliation claims :

A recent Texas federal court decision has further expanded the bases for Title VII retaliation claims against employers. In Zamora v. City of Houston, Christopher Zamora, a Houston police officer, alleged that the Houston Police Department demoted him in retaliation for the filing of a charge with the U.S. EqualEmployment Opportunity Commission (“EEOC”). In this case, however, the charge was not filed by Christopher Zamora, but by his father, Manuel Zamora, alleging that he, Manuel Zamora, had been discriminated against by the Department.

Earlier this year, in Thompson v. North American Stainless, LP, the United States Supreme Court permitted an employee’s Title VII retaliation claim to proceed where the employee’s fiancee had earlier filed an EEOC charge. The Court held that a Title VII retaliation claim could stand where the employee is subject to an adverse employment action because a co-worker to whom the employee is “closely related” engaged in protected activity.

The Supreme Court decided Thompson while the Zamora case was pending in the U.S. District Court for the Southern District of Texas. After the Thompson decision was issued, the Zamora court reversed its prior determination that dismissed Christopher Zamora’s claim. The court concluded that under Thompson, Mr. Zamora’s retaliation claim could proceed based on his father’s filing of an EEOC charge. Thus, under Zamora, in addition to a fiancee, a parent-child relationship satisfies the “closely related” test enunciated by the Supreme Court in Thompson.

Retaliation charges and lawsuits typically are more challenging to defend because the employee’s burden of proof is not as difficult to meet, as compared with a charge of discrimination. Thompson and Zamora now place an additional burden on employers by holding that employees themselves do not necessarily need to engage in the protected activity to have standing to sue for retaliation. These decisions may have a greater impact on employers that make it a practice to hire family members and friends of existing employees than on those with anti-nepotism policies.

The Supreme Court refrained from identifying a fixed class of relationships for which third-party retaliation claims are viable. Future cases will have to decide how far retaliation claims will be expanded: whether, for example, partners involved in a romantic relationship but who are not engaged, or familial relationships more distant than parent and child, are sufficiently close so as to fall within the zone of protection. Employers can help reduce the risk for these types of claims by reviewing their EEOC and anti-retaliation policies and ensuring that managers are trained and educated on compliance.

© 2011 Schiff Hardin LLP