Tag: EEOC

EEOC Proposes Rule Requiring Employers to Disclose Pay Data on EEO-1 Forms and Key Recent Pro-Employee Changes in New York State’s and New York City’s Employment Laws and Regulations

EEOC EEO-1 Form Pay Data Requirement Raises Risks for Management

In a proposed regulation announced on January 29, 2015, the U.S. Equal Employment Opportunity Commission set forth changes that would require federal contractors and all other private-sector employers throughout the nation of more than 100 employees to report wage and salary data on their annual EEO-1 Forms. This new rule would mandate that such employers disclose compensation ranges and hours worked on their EEO-1 Forms, which already must contain data on employees’ gender, ethnicity, and race.

The Commission’s plans to require management to submit this data is part of the Obama Administration’s aggressive efforts to enforce the federal Equal Pay Act and other fair employment statutes and to promote pay equity in the workplace. Complying with the new regulation would require employers to spend substantial additional time and resources in gathering compensation information, which often involves many variables, and then organizing it into the format that the EEOC will mandate. Reporting this data to the EEOC would give the U.S. Government data without context and may lead to burdensome Commission investigations and enforcement actions based on misunderstandings of incomplete compensation information. Further, even though EEO-1 data enjoys some protections, the confidential status of employers’compensation information will now be vulnerable either to Freedom of Information Act requests or to kind of hacking attacks to which the federal government, with its antiquated IT systems in agencies such as the EEOC, has already suffered.

In sum, employers in New Jersey, New York, and around the country would become subject to higher EEOC scrutiny of their payroll practices, would face more Commission inquiries and litigations, would have to expend additional resources to complete EEO-1 Forms, and would need to live with a higher risk that their competitors will be able to obtain the confidential compensation data that the new rule would require management to submit each year to the EEOC.

Key Pro-Employee Changes in New York State and New York City Employment Laws and Regulations

New York State and New York City made significant changes in their labor and employment laws and regulations last year and this month. The NYS Legislature enacted, and Governor Cuomo signed, key revisions to laws that affect management throughout New York State. Mayor de Blasio and the City Council expanded local laws that further burden employers in the City. These important developments include:

A. New York State Women’s Equality Agenda

The Women’s Equality Agenda that went into effect on January 19, 2016 significantly amended New York State’s sex discrimination, sexual harassment, and equal pay laws to afford women greater protection in the workplace. These new statutes promoting gender equality in New York State include provisions that:

1. Amend New York State’s Equal Pay Act to require that an employer which pays lower wages to women than to men, for a job of equal skill, effort, and responsibility, demonstrate that such disparity is due to a bona fide factor other than sex, such as education, training, or experience, and that the difference in pay is job related and consistent with business necessity.

2. Make it unlawful for employers, in general, to prohibit employees from discussing or disclosing their wages — a new provision which affects both women and men.

3. Significantly increase the penalties for New York State Equal Pay Act violations by allowing employees to recover liquidated damages of three times (300%) the unlawfully unpaid wages, in addition to making the employee whole by requiring payment of the unpaid wages.

4. Allow a court to award attorneys’ fees to a prevailing plaintiff in sexual harassment and other sex discrimination actions.

5. Add familial status as a protected class under the New York State Human Rights Law. This new provision applies equally to men and women who are parents or guardians.

6. Expand the New York State Human Rights Law’s coverage of sexual harassment claims to all employers, including employers of from one to three employees who were not previously covered.

7. Require employers to provide reasonable accommodation for pregnancy-related medical conditions.

B. New NYS and NYC Protections for Transgender Individuals

1. Earlier this month, the New York State Division of Human Rights adopted regulations that make discrimination on the basis of a person being transgender unlawful under the New York State Human Rights Law. These regulations also prohibit harassment of transgender persons and require New York employers to reasonably accommodate employees who have been diagnosed with a “gender dysphoria” medical condition.

2. On December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines on discrimination against transgender individuals, which the New York City Human Rights Law prohibits. The guidelines provide for penalties of up to $250,000 for violations that are found to be willful, wanton, or malicious.

C. New NYC Protections for Caregivers

1. The New York City Council has amended the New York City Human Rights Law to include caregiver as a protected class. The new local legislation, which Mayor de Blasio signed on January 5, 2016, defines caregivers as persons who provide direct and ongoing care for a minor child or a care recipient, such as a relative or individual with a disability who resides in the caregiver’s household. This amendment will go into effect on May 4, 2016.

Article By David I. Rosen, Galit Kierkut & Charles H. Kaplan of Sills Cummis & Gross P.C.

© Copyright 2016 Sills Cummis & Gross P.C.

EEOC Releases New Guidance on Rights of HIV-Positive Employees Applicable to Health Care Providers and Employers

In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry.  This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” discusses rights provided under the Americans with Disabilities Act (ADA).  Although the guidance is directed to applicants and employees with HIV infection, there are key takeaways for employers.  First, the EEOC emphasizes the workplace privacy rights of those with HIV infection, but reminds individuals that in certain situations an employer may ask medical questions about their condition.  Second, HIV infection should be treated as a disability and HIV-positive individuals are protected against discrimination and harassment at work because of the condition.  Finally, those with HIV infection may have a legal right to reasonable accommodations at work, which may include altered break and work schedules, changes in supervisory methods (e.g., written instructions from a supervisor), accommodations for visual impairments, ergonomic office furniture, unpaid time off (e.g., for treatment), and reassignment to a vacant position.

The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work,” informs physicians about their HIV-positive patients’ rights to reasonable accommodations at work.  While the guidance effectively coaches health care providers to advocate for their patients’ rights to accommodation, the EEOC reminds providers that that their legal and ethical obligations are not altered by the ADA.  Thus, providers should only disclose the medical information if requested by the patient and an appropriate release is signed.  Further, providers are reminded not to overstate the need for a particular accommodation in case an alternative accommodation is necessary.

Health care entities should be aware that, in its press release regarding the guidance, the EEOC continues to take the position that HIV-positive employees, even in health care settings, should not be excluded from jobs unless they pose a “direct threat” to safety, a strict standard under the ADA.  The EEOC—following CDC guidance—has said that “HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially defined exposure-prone invasive procedures, do not pose a safety risks in their employment based on HIV infection.”  For example, says the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.

The EEOC guidance makes clear that HIV infection is a disability under the ADA.  Employers should be aware that applicants and employees have a right to privacy and, in most situations,  need not reveal the exact diagnosis of their medical illness. Employers should not unnecessarily inquire about the exact illness diagnosis if it is not needed for the purposes of determining reasonable accommodations.  Most importantly, health care employers should not use stereotypes or misinformation in evaluating patient safety implications for those employees with HIV infection.  Even in safety sensitive positions, an HIV-positive health care employee generally poses no safety risk when using standard precautions.  Health care employers should make sure that their front-line supervisors are also aware of the rights of their subordinates who may have HIV infection.

Article By Nathaniel M. Glasser & Jonathan K. Hoerner of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected to continue through 2016, employers should prepare themselves for a barrage of agency activity, especially from the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), and Department of Labor (“DOL”).  Our summary is below.

Expected Agency Activity of 2016

Based on the 2015 Supreme Court decisions in Young v. UPS and EEOC v. Abercrombie & Fitch Stores, Inc. and the EEOC’s interest in systematic discrimination in the workplace, we predict the EEOC will focus heavily on companies’ policies regarding pregnancy and religious discrimination and accommodation in 2016.  As a refresher, in Young the Court held a genuine factual dispute existed as to whether UPS provided more favorable treatment to at least some employees whose situation “cannot reasonably be distinguished” from Ms. Young’s —e.g., workers unable to lift up to 70 pounds due to reasons other than pregnancy limitations such as a workplace injury or a recognized disability.  In Abercrombie (blogged about here) the Court concluded an employer violates Title VII by rejecting an applicant in order to avoid making a religious accommodation, even if the employer only has an “unsubstantiated suspicion” that the applicant may eventually request an accommodation.

Along with discrimination/accommodation policies, we predict the EEOC and NLRB will focus on company-wide social media policies in 2016. While the NLRB has been hounding employers on social media policies since 2010, the EEOC did not really begin gathering information on the issue until 2014.   We believe 2016 will be the year the EEOC begins targeting employers’ social media policies to evidence discrimination.  We also predict the EEOC’s focus on gender identity discrimination and the NLRB’s focus on FLSA class action settlements will continue with full force into 2016.

With the DOL’s Final Rule on overtime exemption updates expected to roll out this year, we predict the agency will focus on wage-hour reform and that employers will be expected to get into compliance sooner rather than later. Although Solicitor of Labor Patricia Smith stated in November 2015 that final guidelines will not likely be issued until “late 2016,” we believe the DOL will push them out before November’s presidential election.  Employers should expect the Final Rule to increase the minimum salary exemption requirement from $455/week to $970/week.  We would not be surprised if the DOL also finalizes revisions to the duties test, which is a factor along with salary level used to determine whether an employee qualifies under a white collar exemption to minimum wage and overtime rules.

Although the 2016 federal legislation horizon looks bleak, President Obama and his executive agencies are poised for a busy final year. Stay tuned for further developments.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

Happy New Year: Looking Back and Looking Ahead at EEOC’s Strategic Plan

EEOCSealIn December 2012, the EEOC adopted its Strategic Enforcement Plan for Fiscal Years 2013-2016 (the “SEP”), in which it highlighted the agency’s enforcement priorities for the coming three years.  Now two years into the plan, the EEOC continues to refine its strategic enforcement efforts and employers are responding to them.

The EEOC’s SEP identified six priorities:

  1. Eliminating Barriers in Recruitment and Hiring.

  2. Protecting Immigrant, Migrant and Other Vulnerable Workers.

  3. Addressing Emerging and Developing Issues.

  4. Enforcing Equal Pay Laws.

  5. Preserving Access to the Legal System.

  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

In 2015, the EEOC continued its effort to pursue these stated priorities through systemic investigations and litigation arising from those investigations, despite a mixed record of success in the courts.  For example:

  • Background Check Litigation: Despite some notable setbacks, such as the Fourth Circuit’s affirmance of summary judgment against the EEOC and scathing rebuke of its litigation conduct in EEOC v. Freeman, the EEOC has continued to pursue cases involving background checks in furtherance of its stated priority of eliminating barriers in hiring.

  • Pregnancy and Disability Discrimination: Following the United States Supreme Court’s decision in Young v. UPS, the EEOC reissued its pregnancy discrimination guidance, noting that the “Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.”  The EEOC also noted that the ADAAA does not require an impairment to “last a particular length of time to be considered substantially limiting,” thereby potentially including pregnancy.  The EEOC filed numerous ADA lawsuits in 2015, particularly focusing on reasonable accommodation issues.

  • Equal Pay: Although the EEOC continues to assert its pronounced attention to alleged violations of the Equal Pay Act, it has not expended litigation resources commensurate with its statements.  The EEOC may well monitor developments in equal pay protection under state law (e.g., California’s Equal Pay Act, effective January 1, 2016) to assess the value of its own litigation efforts.

  • Sexual Orientation or Gender Identity Discrimination: In an effort to address “emerging and developing issues,” the EEOC continues to include sexual orientation or gender identity discrimination in its definition of discrimination based on sex.  In its August 2015 fact sheet, the EEOC identified numerous private sector lawsuits initiated by the EEOC or in which the EEOC filed amicus briefs, addressing LGBT-discrimination-related issues.

The EEOC appears poised in 2016 to continue pursuing the SEP aggressively through the use of systemic investigations.  Employers can expect the EEOC to seek to expand investigations of individual charges, particularly in substantive areas aligning with the SEP.  Although the United States Supreme Court ruled in Mach Mining, LLC v. EEOC (2015) that the EEOC’s pre-suit obligation to attempt to conciliate alleged unlawful workplace practices is subject to judicial review, the EEOC will continue to test the limits of judicial review of EEOC’s investigations and attempts to conciliate.  As the new year begins, employers must remain vigilant when challenging failures by the EEOC to conciliate or properly investigate charges and pay particular attention to charges alleging disability, pregnancy and sexual orientation or gender identity discrimination.

Article By James J. Swartz, Jr. of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

Hillshire Brands Company Pays $4 Million to Settle Race Discrimination Suit

EEOCSealAfrican American Bakery Workers Subjected to Racist Comments and Graffiti in the Worksite, Federal Agency Charged

DALLAS – Hillshire Brands Company (formerly known as the Sara Lee Corporation) will pay $4 million to a group of 74 African-American former employees and provide other significant relief to settle a lawsuit where they were subjected to a racially hostile work environment at a former Sara Lee facility in Paris, Texas, the agency announced today.

EEOC claimed African-American employees were subjected to racist graffiti on the walls of the bathrooms and locker room. The former bakery employees also alleged that during work hours, they were berated with racial slurs by supervisors and other white co-workers, and complaints by the plant workers went unaddressed by management.

Race discrimination in the workplace, including race harassment, violates Title VII of the Civil Rights Act of 1964.  The EEOC filed suit (Case No. 2:15-cv-1347) in U.S. District Court for the Eastern District of Texas, Marshall Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

“The Commission completed an extensive investigation at the Sara Lee plant, which included conducting interviews with the former bakery workers,” said Meaghan L. Shepard, trial attorney for the Dallas District of EEOC. “EEOC determined racial slurs and graffiti continued at the facility in Paris for years, until the doors finally closed in November 2011.”

“EEOC strongly believes it is critically important for companies to set policies and provide effective avenues for complaints to address racial harassment in the workplace,” said EEOC Supervisory Trial Attorney Suzanne Anderson. “African-American workers on the Sara Lee bakery production lines in Paris felt embarrassed and intimidated by the graffiti in the bathroom and the racial slurs on the production floor. Strong corporate policies and quick remedial action protects against this type of workplace discrimination.”

The two-year consent decree settling the case provides for an injunction where Hillshire Brands will implement various preventative approaches regarding discrimination or harassment against any employee on the basis of race and will periodically report incidents or investigations to EEOC. Hillshire Brands also agreed to engage in remedial measures such as anti-discrimination training and implementation of procedures to prevent and promptly address graffiti issues.

Belinda McCallister, acting director of EEOC’s Dallas District Office, said, “We are pleased with the approach taken by the employer to acknowledge the hostile environment that once existed and for taking positive steps toward ensuring a healthy workplace in the future.”

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov.

See original news release here: http://www1.eeoc.gov/eeoc/newsroom/release/12-22-15.cfm

© Copyright U.S. Equal Employment Opportunity Commission

EEOC Sues McDonald's for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EEOC Sues McDonald’s for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EEOC’S Lawsuit Against Costco to Proceed

Costco smallA federal district court judge ruled that the U.S. Equal Employment Opportunity Commission’s (EEOC) claim that Costco violated Title VII of the Civil Rights Act of 1964 by failing to prevent a male customer from stalking and harassing a female employee at the company’s Glenview, Ill. warehouse will be decided by a jury.

Judge Ruben Castillo, the chief judge of the U.S. District Court for the Northern District of Illinois in Chicago, denied Costco’s motion for summary judgment on EEOC’s claim it failed to protect one of its former employees from a sexually hostile work environment. The decision in EEOC v. Costco Wholesale Corp., 14-cv-6553, was entered on Dec. 16, 2015. The court announced it will select a jury trial date at a status hearing in January.

The court said it found evidence the employee was subjected to harassing behavior by a customer for more than a year, including ominous staring, unwanted physical touching, unwanted requests for dates and overly intrusive personal questions. The court found evidence the customer interactions continued to escalate, even though he had been talked to by Costco’s managers and the Glenview police to avoid her. The court also concluded that, added together and given the length of time over which the incidents occurred, they amounted to a level of a hostile work environment.

The court also found evidence Costco failed to take reasonable steps to stop the harassment, noting that Costco waited more than a year to ban the customer from the store. The court granted summary judgment for Costco on EEOC’s constructive discharge claim.

Costco is an international membership warehouse retailer which, according to its website, has over 650 locations worldwide, annual revenues over $100 billion, and over 125,000 employees in the United States.

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.

EEOC enforces federal laws prohibiting employment discrimination. This information was previously published on the EEOC website, www.eeoc.gov.

Article By U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

EEOC Seeks to Clarify Application of GINA to Wellness Programs

Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) published a proposed rule that would amend the agency’s regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (“ADA”) as they relate to employer wellness programs. Now, the EEOC has turned its attention to Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as it relates to employer wellness programs that are part of group health plans.

On October 20, 2015, the EEOC issued a proposed rule, or Notice of Proposed Rulemaking (“NPRM”), to amend the regulations implementing Title II of GINA, together with a fact sheet and a series of questions and answers. The proposed rule, which is available in its entirety online, would allow employers that offer wellness programs as part of group health plans to provide limited financial and other incentives or “inducements” in exchange for an employee’s spouse providing information about his or her current or past health status.

Title II of GINA protects job applicants and current and former employees from employment discrimination based on their genetic information. As stated in the NPRM, Congress enacted GINA to address concerns prevalent at the time that individuals would not take advantage of the increasing number of genetic tests that could inform them as to whether they were at risk of developing specific diseases or disorders due to fear that genetic information would be used to deny health coverage or employment. Consequently, GINA expressly prohibits employers with 15 or more employees from using genetic information in making decisions about employment in all circumstances, without exceptions. It also restricts employers from requesting, requiring or purchasing genetic information. In addition, it strictly limits employers from disclosing genetic information. Genetic information includes, among other things, information about the manifestation of a disease or disorder in the family members of an individual. The term “family members” includes spouses.

There are only six very limited circumstances under GINA in which an employermay request, require, or purchase genetic information about an applicant or employee. One of the six exceptions applies when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. The proposed regulations are in response to the numerous inquiries received by the EEOC questioning whether an employer violates GINA by offering an employee an inducement if the employee’s spouse who is covered under the employer’s group health plancompletes a health risk assessment that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.

The proposed regulations would clarify that GINA does not prohibit employers from offering limited inducements (whether in the form of rewards or penalties avoided) for the provision by spouses covered by the employer’s group health plan of information about their current or past health status as part of a health reimbursement account, which may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both, as long as the provision of the information is voluntary and the individual from whom the information is being obtained provides prior, knowing, voluntary, and written authorization, which may include authorization in electronic format. The proposed regulations do not allow inducements in return for the spouse’s providing his or her own genetic information (including results of his or her genetic tests), for the current or past health status information of an employee’s children, or for the genetic information of an employee’s child.

The proposed regulations would include a requirement that any health or genetic services provided in connection with the requests for genetic information be reasonably designed to promote health or prevent disease, thereby aligning GINA’s regulations with those promulgated under the ADA as they relate to wellness programs. (The ADA permits employers to collect medical information as part of a wellness program only if the program and the disability-related inquiries and medical examinations that are part of the program are reasonably designed to promote health or prevent disease.) As discussed in the NPRM, collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease. Additionally, a program would not be deemed reasonably designed to promote health or prevent disease if it imposes, as a condition of obtaining a reward, an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations on employees. A program is also not reasonably designed if it exists merely to shift costs from the employer to targeted employees based on their health.

The proposed regulations would limit the total inducements (both financial and in-kind inducements, such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties) to the employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current and past health status to not more than 30 percent of the total cost of the plan in which the employee and any dependants are enrolled. The maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.

Finally, it is important to note that this proposal would not alter GINA’s absolute prohibition against the use of genetic information in making employment decisions.

The EEOC’s approach to wellness programs is still developing, and interested members of the public have until Tuesday, December 29, 2015, to submit comments on the NPRM to the EEOC in order to seek clarity or request changes and/or additions to the proposed rules.

Article By Mary Pat Gallagher of Gonzalez Saggio & Harlan LLP

Gonzalez Saggio & Harlan LLP | Copyright (c) 2015

EEOC Defends “Mark of The Beast” Ruling – Religious Beliefs Don’t Have To Make Sense To Be Protected

EEOCSealIn August 2015, the EEOC prevailed in a religious discrimination lawsuit against Consol Energy and was awarded in excess of $500,000.00.  Former Consol mine worker Beverly Butcher, who had been with the company for over 35 years, refused to use Consol’s new biometric hand scanners that were installed to track employee time and attendance.  He explained that he believed that scanners would leave the “mark of the beast” and would be a sign for the antichrist.  Consol required Butcher to use the scanners and refused to consider alternate means of tracking Butcher’s time, and Butcher believed he had no choice other than to retire.

Consol recently moved for judgment as a matter of law or for a new trial, arguing that Butcher had admitted that he did not actually believe the scanner would give him the mark of the beast (or any mark at all), but instead believed that future versions of the device would be capable of doing so. Butcher further admitted that his pastor did not agree with him that the hand scanners had any relationship to the mark of the beast.

The EEOC has responded to Consol’s motion and stated that although Butcher admitted that the current version hand scanner left no mark, he testified that these scanners “are being used as part of a system of identification being put into place that will be used to serve the antichrist as foretold in the New Testament Book of Revelation and which creates an identifier for followers of the antichrist known as ‘The Mark of the Beast,’” and that “[t]he fact that a believer draws a line at the first step in what he sincerely believes to be an immoral process rather than the last step of that process does not alter the employer’s accommodation duty.”

The EEOC responded to Consol’s efforts to poke holes in the logic of Butcher’s beliefs, stating that it is unconstitutional for Consol to demand theological accuracy or consistency.  “[A]s EEOC has previously pointed out, and as the Court instructed the jury, religious beliefs need not be seen as rational, doctrinally consistent, or accurate in order to be protected under Title VII.”

The takeaway of this is that if an employee seeks an accommodation based on religion, an employer should not subjectively evaluate the logic or wisdom of the employee’s beliefs, but instead should only consider whether the employee sincerely believes.

The case is EEOC v. Consol Energy, Inc., 1:13-cv-00215 in the United States District Court for the Northern District of West Virginia.

Article By Douglas M. Oldham of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP