Category: Civil Rights

U.S. Equal Employment Opportunity Commission Rules That Sexual Orientation Discrimination Violates Title VII Of The 1964 Civil Rights Act

In a potentially groundbreaking decision that increases legal protections throughout the U.S. for lesbian, gay and bisexual employees, the Equal Employment Opportunity Commission (EEOC) ruled on June 15, 2015, that existing civil rights law bars sexual orientation-based employment discrimination.  The EEOC addressed the question of whether the ban on sex discrimination in Title VII of The Civil Rights Act of 1964 (“The Civil Rights Act”) bars anti-LGB discrimination in a charge brought by a Florida employee.

EEOC Employment discrimination LGB discrimination sexual orientation

The ruling was issued without objection from any members of the five-person commission, and while it technically only applies directly to federal employees’ claims, the EEOC also applies such rulings across the nation when it investigates claims of discrimination in private employment.  Although only the Supreme Court can issue a final, definitive ruling on the interpretation of The Civil Rights Act, EEOC decisions are given significant deference by federal courts.

Although the EEOC had been moving in this general direction with cases and field guidance addressing specific types of discrimination faced by gay people, the July 15 decision unequivocally states that sexual orientation is inherently an unlawful “sex-based consideration,” reasoning that sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and constitutes “associational discrimination on the basis of sex.”  In making this ruling, the EEOC joins approximately 22 states that provide sexual orientation discrimination protections in employment.

Given that this EEOC decision is entitled to deference by federal courts, employers across the U.S. should anticipate that practices that could be construed as discriminatory on the basis of a worker’s sexual orientation will be challenged in federal court and subject the employer to potential liability.

For EEOC guidance on this issue, click the following link: http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

ARTICLE BY Gary M. Gansle of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

EEOC Sues Wal-Mart for Disability Discrimination And Harassment: Agency Says Retailer Denied Accommodations to Disabled Cancer Survivor

Agency Says Retailer Denied Accommodations to and Harassed a Disabled Cancer Survivor

CHICAGO – Wal-Mart Stores, Inc. violated federal law by failing to provide reasonable accommodations to an employee at its Hodgkins, Ill., store who was disabled by bone cancer and failing to stop harassment of the employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed yesterday.

According to Julianne Bowman, the EEOC’s district director in Chicago, who managed EEOC’s pre-suit administrative investigation, the Walmart store initially agreed to comply with employee Nancy Stack’s request that the company provide a chair in her work area in the fitting room and limit her scheduled work hours because treatment for bone cancer in her leg limited her ability to walk and stand. After complying with her scheduling accommodation for many months, the store revoked it for no reason. And the store did not ensure that a chair was in Stack’s work area, at one point telling her that she had to haul a chair from the furniture department every day, which was of course hard for her to do given her disability. Finally, the store transferred Stack from the fitting room to a greeter position, which did not comply with her restrictions on standing.

To add insult to injury, Bowman added, a co-worker harassed Stack by calling her names like “cripple” and “chemo brain,” imitated her limp, and removed or hid the chair the employee needed in her work area. Stack complained repeatedly, but the store took no action to stop the co-worker’s harassment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to disabled employees and subjecting disabled employees to a hostile work environment.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. Wal-Mart Stores, Inc., Civil Action No. 15-5796, was filed in U.S. District Court for the Northern District of Illinois, Eastern Division, and was assigned to U.S. District Judge Sharon Coleman. The government’s litigation effort will be led by Trial Attorney Ann Henry and supervised by EEOC Supervisory Trial Attorney Diane Smason.

“It’s hard to believe a retailer the size of Wal-Mart could not manage to consistently provide such a simple accommodation as a chair,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “Telling a disabled employee that she needs to drag a chair across the store every day is no accommodation at all. Employers have to provide reasonable accommodations unless doing so would be an undue hardship. EEOC is aware of no hardship that required Wal-Mart to suddenly change Stack’s schedule, deny her the use of a chair, and transfer her out of the fitting room where she had performed her job well for years.”

EEOC Trial Attorney Ann Henry commented, “No employee should have to go to work and face mocking and name calling because she had cancer. Employers who know about such vile harassment in their workplace have an obligation to stop it. Wal-Mart did not do that here, and the EEOC will seek to hold the company liable for that violation.

In July 2014, the EEOC filed a lawsuit against Wal-Mart alleging that it violated the ADA by firing an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

This press release originally appeared in the EEOC Newsroom. 

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

Uncertainty Follows Judicial Decision Enjoining DOL’s Same Sex Spouse Rule Change

Dinsmore Shohl LLP

Following Indiana Governor Mike Pence’s decision to sign the Religious Freedom Restoration Act (RFRA), a decision by Texas District Court Judge Reed O’Connor adds to the controversy and conversation surrounding the lesbian, gay, bisexual, transgender (LGBT) rights movement.

Opponents to the Indiana law say it will allow businesses to deny services to customers based on customers’ sexual orientation or gender identity and justify this denial based on religious beliefs. A day after Governor Pence signed Indiana’s RFRA into law, on March 27, 2015, the Arkansas legislature voted to enact its own religious freedom legislation known as the “Conscience Protection Act”, and the bill is currently before Governor Asa Hutchinson.

While the Arkansas Governor is set to consider religious freedoms and LGBT discrimination, Arkansas’s Attorney General has been battling the Department of Labor (DOL) in another issue impacting LGBT employees. On March 26, 2015, in Texas v. United States, N.D. Texas No. 7:15-cv-00056-O, Judge O’Connor granted an injunction to Texas, Arkansas, Louisiana, and Nebraska to temporarily halt the DOL’s Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (FMLA).

The DOL’s Final Rule took effect on March 27, 2015 and changed the definition of “spouse” to include individuals in same-sex marriages if the marriage was valid in the place it was entered into regardless of where they live. The Final Rule reads as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

29 C.F.R. § 825.102. This change enables eligible employees in legal same-sex marriages to take FMLA leave to care for a spouse with a serious medical condition. The Final Rule no longer looks to the laws of the state in which the employee resides but rather relies on the laws of the jurisdiction where the marriage was entered into–i.e. the place of celebration.

Texas law, similar to Ohio, does not recognize same sex marriage. Texas, joined by Arkansas, Nebraska, and Louisiana, argued that the DOL exceeded its jurisdiction by requiring them to violate the Full Faith and Credit Statute and/or state law prohibiting recognition of same-sex marriages from other jurisdictions. Texas argued that the Final Rule would require it to violate state law which prohibits it from giving any legal benefits asserted on the basis of a same-sex marriage. Judge O’Connor also relied on Section 2 of the Defense of Marriage Act (DOMA) to hold that Congress intended to preserve a state’s ability to define marriage differently than another state or jurisdiction. Finding that the Final Rule would require Texas agencies to recognize out-of-state same-sex marriages in violation of state law, Judge O’Connor temporarily halted the application of the Final Rule pending a full determination of this matter on the merits.

In these four states, Judge O’Connor’s decision prevents employees in same-sex marriages from receiving the benefits afforded heterosexual married couples until the issue is resolved through legal channels. However, employers are not prohibited from granting family leave benefits to qualifying employees to care for a loved one. Despite the decision—only applicable in four states—the Final Rule is currently in effect. For this reason, employers should proceed in accordance with the DOL’s regulation and fulfill its obligations to its LGBT employees by revising their family and medical leave policies and providing FMLA benefits to employees in legal same-sex marriages.

ARTICLE BY

Anjali Chavan
Sadhna G. True
Dinsmore & Shohl LLP

Utah Passes Law Prohibiting LGBT Employment Discrimination

Squire Patton Boggs (US) LLP law firm

On March 12, Utah Governor Herbert signed into law S.B. 296, which amends the Utah Antidiscrimination Act to prohibit discrimination in employment by Utah employers on the basis of sexual orientation and gender identity. Notably, and perhaps not surprisingly given that 60% of Utah residents identify as Mormons, although the law had the support of the Church of Jesus Christ of Latter-Day Saints, it exempts from coverage religious institutions, organizations, and affiliates (as well as the Boy Scouts of America) from its definition of employer.

It also allows for employee expression of religious or moral beliefs in the workplace – which would appear to include opposition to LGBT issues or lifestyles – as long as such expression is “reasonable, non-disruptive and non-harassing.” In passing this law, Utah becomes the 18th state (including the District of Columbia) to adopt LGBT anti-discrimination legislation. (LGBT discrimination is also prohibited against federal employees pursuant to Executive Order 13672, signed by President Obama in June 2014.)

ARTICLE BY

Daniel B. Pasternak
Squire Patton Boggs (US) LLP

Oregon’s Same-Sex Marriage Ban Unconstitutional, Judge Rules

Jackson Lewis Law firm

 

Oregon’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection, newly appointed U.S. District Court Judge Michael McShane has held in a case filed on behalf of four couples in Multnomah County. Geiger v. Kitzhaber, No. 6:13-cv-01834-MC (May 19, 2014).

Judge McShane explained the measure discriminates against same-sex couples. “The state’s marriage laws unjustifiably treat same-gender couples differently than opposite-gender couples. The laws assess a couple’s fitness for civil marriage based on their sexual orientation: opposite-gender couples pass; same-gender couples do not. No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”

A state Constitutional amendment, enacted pursuant to a 2004 ballot initiative organized and sponsored by the Defense of Marriage Coalition, had prohibited same-sex marriage, stating that only “marriage between one man and one woman shall be valid or legally recognized as a marriage.” This initiative and the subsequent Constitutional amendment were in response to the Multnomah County commissioner’s decision to issue marriage licenses to same-sex couples. During the Geiger litigation, Oregon’s Attorney General stated she found it impossible to legally defend the ban because “per- forming same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual’s capacity to establish a loving and enduring relation- ship.” With Geiger, and the U.S. Supreme Court’s 2013 decision in United States v. Windsor invalidating the federal Defense of Marriage Act, same-sex marriage is valid under Oregon state and federal law.

Further, although Oregon enacted a domestic partnership law in 2008, the Family Fairness Act, granting domestic partners similar rights and privileges to those enjoyed by married spouses, the Legislature acknowledged domestic partnerships did not reach the magnitude of rights inherent in the definition of marriage. For example, same-sex couples in Oregon were not entitled to the rights or benefits under the federal Family and Medical Leave Act because Department of Labor guidance recognizes same-sex marriage only if valid under the employee’s state of residence. The DOL, however, has proposed a rule expanding the term “spouse” and, if implemented, will recognize same-sex marriages when recognized in the couple’s state of residence or if performed in a state recognizing same-sex marriage. According to the Secretary of Labor, “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver. Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.” No changes have been proposed, however, for purposes of the Employment Retirement Income and Security Act (“ERISA”), the federal law governing employee benefit plans. The DOL counsels employers that, for purposes of ERISA, same-sex marriage should be recognized if valid in the state it is performed.

While Geiger will simplify the legal landscape, employers should review policies, procedures, and benefit plans closely to ensure that same-sex spouses are treated equally in all respects. In addition, Oregon law further prevents employment discrimination based on sexual orientation and family status. Requiring same-sex couples to “prove their status” or take other similar measures that are not required of opposite-sex couples may increase the risk of potential litigation under these laws.

Mei Fung So contributed to this article. 

ARTICLE BY

Scott Oborne
Bryan P. O’Connor
Roger S. Kaplan
 
OF
Jackson Lewis P.C.

Office for Civil Rights (OCR) to Begin Phase 2 of HIPAA Audit Program

Mcdermott Will Emery Law Firm

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) will soon begin a second phase of audits (Phase 2 Audits) of compliance with Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy, security and breach notification standards (HIPAA Standards) as required by the Health Information Technology for Economic and Clinical Health (HITECH) Act. Unlike the pilot audits during 2011 and 2012 (Phase 1 Audits), which focused on covered entities, OCR will conduct Phase 2 Audits of both covered entities and business associates.  The Phase 2 Audit Program will focus on areas of greater risk to the security of protected health information (PHI) and pervasive noncompliance based on OCR’s Phase I Audit findings and observations, rather than a comprehensive review of all of the HIPAA Standards.  The Phase 2 Audits are also intended to identify best practices and uncover risks and vulnerabilities that OCR has not identified through other enforcement activities.  OCR will use the Phase 2 Audit findings to identify technical assistance that it should develop for covered entities and business associates.  In circumstances where an audit reveals a serious compliance concern, OCR may initiate a compliance review of the audited organization that could lead to civil money penalties.

The following sections summarize OCR’s Phase 1 Audit findings, describe the Phase 2 Audit program and identify steps that covered entities and business associates should take to prepare for the Phase 2 Audits.

Phase 1 Audit Findings

OCR audited 115 covered entities under the Phase 1 Audit program, with the following aggregate results:

  • There were no findings or observations for only 11% of the covered entities audited;
  • Despite representing just more than half of the audited entities (53%), health care providers were responsible for 65% of the total findings and observations;
  • The smallest covered entities were found to struggle with compliance under all three of the HIPAA Standards;
  • Greater than 60% of the findings or observations were Security Standard violations, and 58 of 59 audited health care provider covered entities had at least one Security Standard finding or observation even though the Security Standards represented only 28% of the total audit items;
  • Greater than 39% of the findings and observations related to the Privacy Standards were attributed to a lack of awareness of the applicable Privacy Standard requirement; and
  • Only 10% of the findings and observations were attributable to a lack of compliance with the Breach Notification Standards

The Phase 2 Audit Program

Selection of Phase 2 Audit Recipients

Unlike the Phase 1 Audit Program, which focused on covered entities, OCR will conduct Phase 2 Audits of both covered entities and business associates.  OCR has randomly selected a pool of 550–800 covered entities through the National Provider Identifier database and America’s Health Insurance Plans’ databases of health plans and health care clearinghouses.  OCR will issue a mandatory pre-audit screening survey to the pool of covered entities this summer.  The survey will address organization size measures, location, services and contact information.  Based on the responses, the agency will select approximately 350 covered entities, including 232 health care providers, 109 health plans and 9 health care clearinghouses, for Phase 2 Audits.  OCR intends to select a wide range of covered entities and will conduct the audits between October 2014 and June 2015.

OCR will notify and send data requests to the 350 selected covered entities this fall.  The data requests will ask the covered entities to identify and provide contact information for their business associates.  OCR will select the business associates that will participate in the Phase 2 Audits from this pool.

Audit Process

OCR will audit approximately 150 of the 350 selected covered entities and 50 of the selected business associates for compliance with the Security Standards, 100 covered entities for compliance with the Privacy Standards and 100 covered entities for compliance with the Breach Notification Standards.  OCR will initiate the Phase 2 Audits of covered entities by sending the data requests this fall and then initiate the Phase 2 Audits of business associates in 2015.

Covered entities and business associates will have two weeks to respond to OCR’s audit request.  The data requests will specify the content, file names and other documentation requirements, and the auditors may contact the covered entities and business associates for clarifications or additional documentation.  OCR will only consider current documentation that is submitted on time.  Failure to respond to a request could lead to a referral to the applicable OCR Regional Office for a compliance review.

Unlike the Phase 1 Audits, OCR will conduct the Phase 2 Audits as desk reviews with an updated audit protocol and not on-site at the audited organization.  OCR will make the Phase 2 Audit protocol available on its website so that entities may use it for internal compliance assessments.

The Phase 2 Audits will target HIPAA Standards that were sources of high numbers of non-compliance in the Phase 1 Audits, including:  risk analysis and risk management; content and timeliness of breach notifications; notice of privacy practices; individual access; Privacy Standards’ reasonable safeguards requirement; training to policies and procedures; device and media controls; and transmission security.  OCR also projects that Phase 2 Audits in 2016 will focus on the Security Standards’ encryption and decryption requirements, facility access control, breach reports and complaints, and other areas identified by earlier Phase 2 Audits.  Phase 2 Audits of business associates will focus on risk analysis and risk management and breach reporting to covered entities.

OCR will present the organization with a draft audit report to allow management to comment before it is finalized.  OCR will then take into account management’s response and issue a final report.

What Should You Do to Prepare for the Phase 2 Audits?

Covered entities and business associates should take the following steps to ensure that they are prepared for a potential Phase 2 Audit:

  • Confirm that the organization has recently completed a comprehensive assessment of potential security risks and vulnerabilities to the organization (the Risk Assessment);
  • Confirm that all action items identified in the Risk Assessment have been completed or are on a reasonable timeline to completion;
  • Ensure that the organization has a complete inventory of business associates for purposes of the Phase 2 Audit data requests;
  • If the organization has not implemented any of the Security Standards’ addressable implementation standards for any of its information systems, confirm that the organization has documented (i) why any such addressable implementation standard was not reasonable and appropriate and (ii) all alternative security measures that were implemented;
  • Ensure that the organization has implemented a breach notification policy that accurately reflects the content and deadline requirements for breach notification under the Breach Notification Standards;
  • Health care provider and health plan covered entities should ensure that they have a compliant Notice of Privacy Practices and not only a website privacy notice;
  • Ensure that the organization has reasonable and appropriate safeguards in place for PHI that exists in any form, including paper and verbal PHI;
  • Confirm that workforce members have received training on the HIPAA Standards that are necessary or appropriate for a workforce member to perform his/her job duties;
  • Confirm that the organization maintains an inventory of information system assets, including mobile devices (even in a bring your own device environment);
  • Confirm that all systems and software that transmit electronic PHI employ encryption technology or that the organization has a documented the risk analysis supporting the decision not to employ encryption;
  • Confirm that the organization has adopted a facility security plan for each physical location that stores or otherwise has access to PHI, in addition to a security policy that requires a physical security plan; and
  • Review the organization’s HIPAA security policies to identify any actions that have not been completed as required (e.g., physical security plans, disaster recovery plan, emergency access procedures, etc.)
ARTICLE BY

Patrick Callaghan
Daniel F. Gottlieb
Edward G. Zacharias
Of:
McDermott Will & Emery

Executive Order Extends Workplace Anti-Discrimination Protections to LGBT Workers of Federal Contractors

Jackson Lewis Law firm

Though it took longer than expected, President Barack Obama has signed an Executive Order extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community. Signed July 21, 2014, the Executive Order prohibits discrimination by federal contractors on the basis of sexual orientation or gender identity, adding to the list of protected categories. It does not contain any exemptions for religiously affiliated federal contractors, as some had hoped. Religiously affiliated federal contractors still may favor individuals of a particular religion when making employment decisions.

The President directed the Secretary of Labor to prepare regulations within 90 days (by October 19, 2014) implementing the new requirements as they relate to federal contractors under Executive Order 11246, which requires covered government contractors and subcontractors to undertake affirmative action to ensure that equal employment opportunity is afforded in all aspects of their employment processes. Executive Order 11246 is enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

The Executive Order will apply to federal contracts entered into on or after the effective date of the forthcoming regulations. OFCCP likely will be charged with enforcement authority.

We recommend that employers who will be impacted by this Executive Order review their equal employment opportunity and harassment policies for compliance with the Executive Order. For example, employers who are government contractors should add both sexual orientation and gender identity as protected categories under these policies and ensure that mechanisms are put in place to ensure that discrimination is not tolerated against LGBT employees.

We will provide additional information and insights into the proposed regulations when they are available.

Article By:

Eric J. Felsberg
Michelle E. Phillips
Of:
Jackson Lewis P.C.

U.S. Supreme Court Upholds Michigan’s Law Prohibiting Use of Race in College Admissions

Barnes Burgandy Logo

On Tuesday, April 22, 2014, the U.S. Supreme Court issued an opinion that upholds a Michigan law prohibiting the use of race as a factor in admissions to public collegesand universities. In Schuette v. BAMN, Case No. 12-682 (argued Oct. 15, 2013) the high court reversed a Sixth Circuit Court of Appeals ruling that overturned the voter-enacted state constitutional amendment referred to as “Proposal 2” or Article I Section 26. Although the court’s 6-2 opinion stated “this case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” the decision is likely to influence other states to adopt similar constitutional bans on affirmative action in state-funded higher education.

Since 2003, Michigan has provided a venue for legal challenges to affirmative actionprograms in education. In that year, the U.S. Supreme Court reviewed the constitutionality of race-based admission policies of both the University of Michigan’s undergraduate college and its graduate law school. The outcomes of these cases were mixed. In Gratz v. Bollinger, 539 U.S. 234 (2003) the court struck down the undergraduate admission policy as a violation of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. In contrast, the court ruled in Grutter v. Bollinger, 539 U.S. 306 (2003) that the school’s more limited admissions policy for its law school was constitutionally permissible. Following those decisions, a number of states, including Texas, California, Oklahoma, Florida and Washington, have adopted constitutional amendments or other laws that prohibit affirmative action in school admissions and public employment.

In 2006, Michigan voters approved the following amendment to the state constitution by a margin of 58-42 percent: “The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” In a 8-7 decision issued in November 2012, the 6th Circuit Court of Appeals held this language as unconstitutional because Proposal 2 placed “special burdens on minority interests” by targeting a program that “inures primarily to the benefit of the minority.”

In Justice Kennedy’s opinion, joined by Chief Justice Roberts and Justice Alito, the court considered whether authority existed to overturn a constitutional amendment adopted by a state’s ballot initiative. In order to do so, and based on the appellate court’s strong reliance on Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) the court would be able to overturn a ballot initiative that made it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest.” This expansive reading, Justice Kennedy reasoned, could not conform to principles of equal protection because courts should not be required to declare which political policies serve the interests of a group defined in racial terms. Justice Kennedy cautioned: “…in a society in which those [racial] lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.”

This significant decision upholds states’ rights to enact constitutional amendments by voter ballot initiatives. The broader implications of the Schuette decision are unclear. However, the outcome confirms public universities and government employers have a vested and ongoing interest in the changing shape of affirmative action policies.

Article By:

Kenneth J. Yerkes
John T.L. Koenig
David B. Ritter
William A. Nolan
Eric H. J. Stahlhut
Mark S. Kittaka
Of:
Barnes & Thornburg LLP

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

EEOCSeal

 

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

Of:

U.S. Equal Employment Opportunity Commission

Illinois Federal Court Issues Reminder That "100% Healed" Requirements Violate ADA (Americans with Disabilities Act)

vonBriesen

 

On February 11, 2014, an Illinois Federal District Court issued a decision reminding employers that “100% healed” return-to-work requirements violate the Americans with Disabilities Act (“ADA”). In EEOC v. United Parcel Service, Inc., the U.S. Equal Opportunity Commission (“EEOC”) filed a lawsuit alleging that United Parcel Service’s (“UPS”) “100% healed” requirement violated the ADA. UPS moved to dismiss the complaint, claiming that the EEOC could not state a claim that there was a violation of the ADA. The Court denied UPS’s motion and permitted the EEOC lawsuit to proceed.

UPS maintained a leave policy requiring employees to be “administratively separated from employment” after 12 months of leave. In 2007, an employee returned from a 12-month medical leave. After returning, the employee requested certain accommodations, including a hand cart. UPS refused to provide any accommodation. Shortly thereafter, the employee injured herself and needed additional medical leave. Instead of granting leave, UPS terminated the employee under its 12-month leave policy.

The EEOC alleged that UPS’s 12-month leave policy acted as a “100% healed” requirement because it functioned as a “qualification standard” under the ADA. UPS argued that the ability to regularly attend work was an essential job function and not an impermissible “qualification standard” and, therefore, not in violation of the ADA.

Although the Court conceded that regular job attendance is an essential job requirement, the court found that the lawsuit was not based on attendance requirements, but rather on the “100% healed” requirement that an employee must satisfy before returning to work. As a prerequisite to returning to work, the 12-month policy was a “qualification standard” and not an essential job function subject to accommodation. A “qualification standard” is “the personal and professional attributes, including the skill, experience, educational, physical, medical, safety and other requirements established by a covered entity as requirements an individual must meet in order to be eligible for the position held or desired.”

The court relied on the Seventh Circuit’s previous determination that a “100% healed” policy is per se impermissible because it “prevents individualized assessments” and “necessarily operates to exclude disabled people that are qualified to work.” A “100% healed” requirement limits the ability of qualified individuals with a disability to return to work. Thus, a “100% healed” acts as a prohibited “qualification standard” because it removes the opportunity for the employee to pursue reasonable accommodation, in violation of the ADA. Accordingly, the court denied UPS’s motion to dismiss and permitted the EEOC’s lawsuit to proceed.

Although this case does not provide a definitive answer to the EEOC’s lawsuit, it does provide a strong reminder to employers that “100% healed” policies violate the ADA. Employers should review their return to work policies to ensure that they do not contain “100% healed” requirements. When dealing with leave issues, employers also should remember to enter into the interactive process when necessary and balance obligations under federal, state and local disability and leave requirements, in addition to those created by contract or agreement.

Article by:

Geoffrey S. Trotier

Of:

von Briesen & Roper, S.C.