Tag: EEOC

U.S. Supreme Court: Request for Religious Accommodation Not Necessary to Trigger Discrimination Liability

The U.S. Supreme Court decided the widely publicized case filed by the Equal Employment Opportunity Commission (EEOC) against Abercrombie & Fitch (Abercrombie), in which a Muslim female applicant who wore a headscarf was denied employment with Abercrombie based on the company’s dress code policy. EEOC v. Abercrombie & Fitch, U.S. Supreme Court, No.14-86 (June 1, 2015).

Samantha Elauf, a practicing Muslim, applied for employment with Abercrombie. She came to the interview wearing a headscarf. The assistant store manager rated Elauf as qualified for the position, but expressed concern to her superiors that Elauf’s headscarf would violate Abercrombie’s Look Policy, which prohibits the wearing of “caps.” The term “caps” is not defined in the policy. The assistant manager also informed her superiors that she believed Elauf’s headscarf was worn pursuant to her religion. The district manager directed that Elauf be denied employment, because the headscarf would violate the Look Policy, just as any other headgear would, whether worn for religious reasons or not.

The EEOC filed suit against Abercrombie. The district court entered judgment in favor of Elauf, and a trial on damages resulted in a $20,000 award to Elauf. Abercrombie appealed to the Tenth Circuit, which reversed the district court and entered summary judgment in favor of Abercrombie. Elauf appealed to the U.S. Supreme Court.

Title VII makes it unlawful for an employer to deny employment to an applicant because the employer desires to avoid extending reasonable accommodation based on the applicant’s religious beliefs. In this case, Abercrombie argued that this prohibition applies only when the applicant requests a religious accommodation or otherwise notifies the employer of the need for an accommodation. In this case, Elauf did not at any time make a request for reasonable accommodation, and therefore, argued Abercrombie, she cannot prove that Abercrombie had knowledge of the need for accommodation, which should be a prerequisite to proving religious discrimination.

The Supreme Court disagreed. The Court held that an applicant or employee need not necessarily show that the employer had actual knowledge of the need for an accommodation, only that the need for an accommodation was a “motivating factor” in the employment decision. The Court drew a distinction between the statutory language of the Americans with Disabilities Act’s accommodation provisions, which discusses an employer’s obligations with respect to “known physical or mental limitations” (emphasis added), and with the language of Title VII’s religious accommodation provision, which is silent on the knowledge requirement. According to the Court, the rule for a failure to accommodate claim under Title VII’s religious discrimination provision is “straightforward”: an employer may not consider an applicant’s religious practice, confirmed or otherwise, as a factor in employment decisions. The Court’s opinion offers an example of an employer who assumes that an orthodox Jew who applies for employment will need Saturdays off for the Sabbath. If the employer acts on this assumption and denies the applicant employment because of it, Title VII would be violated, regardless of whether the applicant ever make a request for Saturdays off or otherwise stated a request for accommodation.

While the Court noted that an employee’s request for religious accommodation may make it easier to prove it was a motivating factor in the employer’s decision, it is not a necessary component to the claim. Thus, the Supreme Court reversed the Tenth Circuit’s decision awarding summary judgment to Abercrombie, despite the fact that Elauf never made a request for an accommodation.

Speculation About Accommodation May Be Enough

This decision has potentially far reaching effects. The Supreme Court has made clear that an individual need not use specific words or terminology relating to the need for religious accommodation, or even make a request at all, in order for liability for failure to accommodate to arise. Whether the need for accommodation is actually known, or merely speculated, assumed, or otherwise factored into an adverse employment decision, liability can arise — even if the need has not been expressed or substantiated at the time of the employment decision.

ARTICLE BY Julie Furer Stahr of Schiff Hardin LLP
© 2015 Schiff Hardin LLP

Supreme Court Calls Out the EEOC for Arguing It Alone Can Determine Whether It Followed the Law

We suggested last year that if you felt paranoid that the federal agencies seemed out to get employers, perhaps it was not paranoia at all. The Equal Employment Opportunity Commission’s (EEOC) spate of recent lawsuits — or at least its apparent haste to sue employers and make examples out of them over such things as wellness programs (even before issuing proposed guidance on what was permissible relative to such well-intentioned programs) — clearly did not help with this concern. However, a decision by the Supreme Court last week tightened the reins on the EEOC and reminded it that, in seeking to pursue litigation against employers for violations of law, the Commission must follow the law itself and answer to claims that it has failed to do so.

Pursuant to Title VII, the EEOC must attempt to eliminate unlawful employment practices through “informal methods of conference, conciliation, and persuasion” before suing an employer for employment discrimination. Employers may feel this does not always happen because the EEOC has lately seemed more intent on filing suit (and getting press attention for its agenda…) than working things out. Consequently, employers assert they receive insufficient information from the EEOC and are forced to make a decision on a take-it-or-leave-it basis which, if wrong, can have costly consequences. The Commission has stood firm on its use of federal muscle by asserting the courts cannot review whether it has fulfilled its pre-suit conciliation obligation; only the EEOC can review whether the EEOC can do what the EEOC is supposed to do (which seems imminently fair, right?). The Supreme Court has just said otherwise.

The case arose from litigation filed by the EEOC in 2011 on behalf of a class of female applicants not hired by the employer as miners. The employer raised as a defense the argument that the EEOC had failed to conciliate in good faith prior to filing suit, based on two letters sent by the Commission. The first informed the employer that a finding of reasonable cause had been made and “[a] representative of this office will be in contact with each party in the near future to begin the conciliation process.” The second letter declared that conciliation had “occurred” and failed, though it appears that the EEOC’s actual conciliation efforts were thin at best.

The EEOC argued that its conciliation efforts were immune from court review and that, if the courts had the power to review such efforts, it could only review its actions based on the two letters. In response, the court noted the obvious point that without court review, “the Commission’s compliance with the law would rest in the Commission’s hands alone.” Justice Elena Kagan, writing for the court, also rejected the EEOC’s second argument, stating that “[c]ontrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. . . . to treat the letters as sufficient — to take them at face value, as the Government wants — is simply to accept the EEOC’s say-so that it complied with the law.”

The court then instructed the EEOC on what it must do to follow Title VII: 1) give the employer notice of the “specific allegation,” including “what the employer has done and which employees (or class of employees) have suffered as a result”; and 2) “try to engage the employer in some form of discussion (written or oral), to give the employer an opportunity to remedy the allegedly discriminatory practice.” Justice Kagan then asserted that while judicial review is limited exclusively to whether or not the EEOC has fulfilled these requirements, if the employer provides credible evidence that the EEOC did not fulfill the requirements then a court must conduct the fact finding necessary to decide that limited dispute. If the evidence shows a failure to properly conciliate, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. Accordingly, while stays of cases may be entered until the EEOC is given the opportunity to do what it was supposed to have done, it is unlikely that any case will be dismissed for failure to meet the pre-suit requirements.

This decision is absolutely a win for employers, as it calls the EEOC out for its improper use of federal muscle through litigation and make an example of an employer without first giving it a legitimate opportunity to assess its options. While the decision will not put employers in control, or even on equal standing, with the EEOC prior to suit, it does create leverage to insist the EEOC meet the minimum requirements. As a practical matter, this may cause the EEOC to be more forthcoming, and cooperative, at least when pressed. And employers should do exactly that if necessary and carefully document circumstances when it feels the EEOC has not done what it must.

Authored by: Gregory D Snell of Foley & Lardner LLP

© 2015 Foley & Lardner LLP

The New OFCCP Sexual Orientation And Gender Identity Protections Are Now In Effect

Proskauer Rose LLP, Law Firm

Executive Order (“EO”) 11246, as amended by EO 13762, officially went into effect, representing the first time in the federal sector that sexual orientation and gender identity have been expressly protected. On July 21, 2014, President Obama issued EO 13762, which amended EO 11246 to prohibit federal contractors from discriminating against employees on the basis of sexual orientation or gender identity. These additional protections are being incorporated into the Federal Acquisition Regulations (“FAR”), which will become effective tomorrow, April 10, 2015.

In order to educate the public on these new protections, the Office of Federal Contractor Compliance Programs (“OFCCP”) is conducting a series of webinars regarding the new sexual orientation and gender identity protections. Thus far, the webinars have focused on the obligations of federal contractors and the procedures available to claimants for filing a complaint under the new protections. We have summarized below key points from the webinar:

To Whom Does This Apply?

These new protections apply to any federal contractor, subcontractor, or government funded construction contractor that enters into or renews a federal contract or contracts valued at $10,000 or more per year. These new protections only apply to contracts entered into or renewed on or after April 8, 2015. These protections do not apply to organizations receiving grants from the federal government.

Administrative Changes Required By Employers

Under the new protections, employers must update the EEO language on their job advertisements, their EEO policies, and their “EEO is the Law” poster. The poster need not be updated until the OFCCP releases a supplement. The OFCCP has not yet announced when this supplement will be released.

With respect to the EEO language, the OFCCP has said that employers can simply say “Equal Employment Opportunity” on their job postings. However, if the employer chooses to list out the protected groups, it must list “sexual orientation” and “gender identity.” The OFCCP does not endorse the use of the acronym “LGBT,” as this is not representative of the entire protected class.

Dual Filing With The EEOC

The OFCCP clarified that any complaints alleging sexual orientation or gender identity discrimination are considered “dual-filed” with the EEOC. This means that the OFCCP will stand in the shoes of the EEOC when investigating the Title VII component of the complaint. While Title VII does not overtly protect against gender identity and sexual orientation discrimination, the EEOC has taken the position that these classifications are protected under Title VII and will pursue cases on behalf of these individuals.

As a consequence of the dual-filing process, if the OFCCP does not find cause or does not dispose of a case within 180 days, an employee can request a Notice of Right to Sue from the OFCCP to bring a private cause of action against the employer. This is significant as EO 11246 does not provide for a private cause of action. The OFCCP clarified, however, that it does not intend to pursue the compensatory and punitive damages available under Title VII (which are not available under the EO).

Religious Affiliated Contractors

In one of the webinars, the OFCCP clarified that all federal contractors, including religiously affiliated federal contractors, are required to comply with the new protections. This means that even those contractors who have been granted certain religious exemptions under EO 11246 may not discriminate based upon sexual orientation or gender identity.

Restroom Access Policies

The OFCCP clarified how employers must approach restroom access under the new protections. OFCCP explained that employers must allow employees to use restrooms based upon their gender identity. This means that if an employee was identified as a male at birth, but identifies as a female, the employer must permit that employee to use the female restroom if the employee desires to do so.

Benefits

The new protections provide that the same benefits must be provided to same-sex spouses as non-same-sex spouses. However, employers are not required to provide the same benefits to couples in civil unions or domestic partnerships as long as the denial of benefits is not based on discrimination. Consequently, if a contractor provides heterosexual domestic partners with benefits, it must provide homosexual domestic partners with the same benefits.

ARTICLE BY

Connie N Bertram
Alex C Weinstein
Proskauer Rose LLP

Still Waiting for ADA and GINA Guidance on Wellness Incentives

Jackson Lewis P.C.

March is here. The EEOC’s perspective on wellness program incentives is not. Yet again.

In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA.  The EEOC listed these same amendments on its Spring 2014 regulatory agenda. The regulatory agenda is a preliminary statement of priorities under consideration and is not a binding commitment to issue the regulations on the stated date.

The EEOC noted on its agenda that these amendments were needed to address whether an employer’s compliance with HIPAA rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), also complies with the ADA. The EEOC added that an amendment would also address the size of inducements allowed under GINA “to employees’ spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.”

The allowed size of wellness incentives matters to the growing number of employers with wellness programs. The ACA has a clear compliance standard for such incentives.  Until 2014, the EEOC had stayed on the sidelines of the wellness incentive debate, not offering any guidance beyond its general view that if the incentive was too large, the program was not “voluntary.”

In 2014, the EEOC sued three employers, claiming the size of their wellness incentives (or penalties, depending on your perspective) transformed otherwise voluntary wellness programs into involuntary programs. In the third case, the EEOC sought to enjoin the company from continuing the incentives in its wellness plan. There was no claim that the incentives violated the ACA standard. Our report on that case is here.

At the oral argument on the injunction hearing, the court asked the EEOC numerous times to define the line between a lawful and unlawful incentive under the ADA and GINA. The EEOC declined to define a specific line. The court denied the EEOC’s injunction request.

More than a year ago, we posted that waiting for the EEOCs guidance on incentives under wellness programs is like waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. The waiting continues.

ARTICLE BY

Michael J. Soltis
OF
Jackson Lewis P.C.

Statements of Samantha Elauf and David Lopez Following Oral Argument at the Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc.

U.S. Equal Employment Opportunity Commission Seal

Samantha Elauf filed the original charge of religious discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) that led to today’s argument in the Supreme Court. She has the following statement for the press:

I was born and raised in Tulsa, Oklahoma. When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion.  I had worked in two other retail stores and was excited to work at the Abercrombie store.  No one had ever told me that I could not wear a head scarf and sell clothing.  Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith.  This was shocking to me.

I am grateful to the EEOC for looking into my complaint and taking this religious discrimination case to the courts.  I am not only standing up for myself, but for all people who wish to adhere to their faith while at work. Observance of my faith should not prevent me from getting a job.

David Lopez, General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), made the following statement at the conclusion of the Supreme Court argument in EEOC v. Abercrombie & Fitch Stores, Inc., a case involving religious accommodation.

This year we celebrate the 50th Anniversary of the Equal Employment Opportunity Commission, established as part of Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination because of race, color, sex, national origin, and religion.  The prohibition against religious discrimination reflects this country’s historical tradition of religious freedom and religious tolerance. Since that time, the Commission has led the effort to enforce laws that prohibit religious discrimination for persons of all faiths. Today’s case is the latest effort to ensure all persons protected by  Title VII are not placed in the difficult position of choosing between adherence to one’s faith and a job.

Finally, I would be remiss not to recognize the courage and tenacity of Samantha Elauf.  Regardless of the outcome of this case, her effort to stand up for the important principles at issue is an inspiration.  Samantha now has a brief prepared statement that will be read by Christine Saah Nazer, EEOC spokesperson.

ARTICLE BY

U.S. Equal Employment Opportunity Commission

Statements of Samantha Elauf and David Lopez Following Oral Argument at the Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc.

U.S. Equal Employment Opportunity Commission Seal

Samantha Elauf filed the original charge of religious discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) that led to today’s argument in the Supreme Court. She has the following statement for the press:

I was born and raised in Tulsa, Oklahoma. When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion.  I had worked in two other retail stores and was excited to work at the Abercrombie store.  No one had ever told me that I could not wear a head scarf and sell clothing.  Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith.  This was shocking to me.

I am grateful to the EEOC for looking into my complaint and taking this religious discrimination case to the courts.  I am not only standing up for myself, but for all people who wish to adhere to their faith while at work. Observance of my faith should not prevent me from getting a job.

David Lopez, General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), made the following statement at the conclusion of the Supreme Court argument in EEOC v. Abercrombie & Fitch Stores, Inc., a case involving religious accommodation.

This year we celebrate the 50th Anniversary of the Equal Employment Opportunity Commission, established as part of Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination because of race, color, sex, national origin, and religion.  The prohibition against religious discrimination reflects this country’s historical tradition of religious freedom and religious tolerance. Since that time, the Commission has led the effort to enforce laws that prohibit religious discrimination for persons of all faiths. Today’s case is the latest effort to ensure all persons protected by  Title VII are not placed in the difficult position of choosing between adherence to one’s faith and a job.

Finally, I would be remiss not to recognize the courage and tenacity of Samantha Elauf.  Regardless of the outcome of this case, her effort to stand up for the important principles at issue is an inspiration.  Samantha now has a brief prepared statement that will be read by Christine Saah Nazer, EEOC spokesperson.

ARTICLE BY

U.S. Equal Employment Opportunity Commission

Wal-Mart to Pay $150,000 to Settle EEOC Age and Disability Discrimination Suit

U.S. Equal Employment Opportunity Commission Seal

Keller Store Manager Was Harassed and Fired Because of His Age and Denied Accommodation for His Diabetes, Federal Agency Charged

Wal-Mart Stores of Texas, L.L.C. (Wal-Mart) has agreed to pay $150,000 and provide other significant relief to settle an age and disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged in its suit that Wal-Mart discriminated against the manager of the Keller, Texas Walmart store by subjecting him to harassment, discriminatory treatment, and discharge because of his age. The EEOC also charged that Wal-Mart refused to provide a reasonable accommodation for the man’s disability as federal law requires.

According to the EEOC’s suit, David Moorman was ridiculed with frequent taunts from his direct supervisor, including “old man” and “old food guy.” The EEOC further alleged that Wal-Mart ultimately fired Moorman because of his age. 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.

The EEOC’s suit also alleged that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his diabetes. Following his diagnosis and on the advice of his doctor, Moorman requested reassignment to a store co-manager or assistant manager position. According to the suit, Wal-Mart refused to engage in the interactive process of discussing Moorman’s requested accommodation, eventually rejecting his request. Under the Americans with Disabilities Act (ADA), Wal-Mart had an obligation to reasonably accommodate Moorman’s disability.

The EEOC filed suit on March 12, 2014, (Case No. 3:14-cv-00908 in U.S. District Court for the Northern District of Texas, Dallas Division) after first attempting to reach a pre-litigation settlement through its conciliation process.

“Mr. Moorman was subjected to taunts and bullying from his supervisor that made his working conditions intolerable,” said EEOC Senior Trial Attorney Joel Clark. “The EEOC remains committed to prosecuting the rights of workers through litigation in federal court.”

Under the terms of the two-year consent decree settling the case, Wal-Mart will pay $150,000 in relief to Moorman. In addition, Wal-Mart agreed to provide training for employees on the ADA and the ADEA. The training will include an instruction on the kind of conduct that may constitute unlawful discrimination or harassment, as well as an instruction on Wal-Mart’s procedures for handling requests for reasonable accommodations under the ADA. Wal-Mart will also report to the EEOC regarding its compliance with the consent decree and post a notice to employees about the settlement.

“The EEOC is pleased that Wal-Mart recognized the value of resolving this case without any further court action,” said EEOC Dallas District Director Janet Elizondo.

ARTICLE BY

U.S. Equal Employment Opportunity Commission
OF
U.S. Equal Employment Opportunity Commission

Will Religiously Based Federal Contractors Challenge OFCCP's New LGBT Regulations?

Gonzalez Saggio & Harlan logo

As 2014 headed toward close, the Office of Federal Contract Compliance Programs (“OFCCP”) gave the federal contractor community, already presented with five Executive Orders in 2014, one last compliance gift. On December 9, 2014, without notice or an opportunity for public comment, OFCCP issued its final rule (“Rule”) implementing Executive Order (“EO”) 13672. President Obama signed EO 13672 on July 14, 2014, extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community by amending Executive Order 11246 to add sexual orientation and gender identity as protected characteristics. It also requires contractor employers to take affirmative action to ensure that applicants and employees are treated without regard to their sexual orientation or gender identity during their employment. The Executive Order was effective immediately. The Rule is effective April 8, 2015, and applies to all new or modified federal contracts and subcontracts after that date.

The issuance of EO 13672 and the requirements of its implementing Rule highlight OFCCP’s intention to focus on LGBT protections and might be seen as steps to squarely tee up the issue of enforcement of LGBT protections in the post-Hobby Lobby era. First, and seemingly to leave no doubt of its intention, OFCCP had also issued Directive 2014-02 in August 2014, with its stated purpose, “[t]o clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the bases of gender identity and transgender status.” The directive explicitly piggybacked off of the EEOC’s 2012 decision in Macy v. Holder, where the EEOC concluded that gender identity and transgender status did not need to be specifically addressed in Title VII in order to be protected bases of discrimination, as they are simply part of the protected category of “sex” under Title VII. Anticipating the question of why EO 13672 was then necessary if already protected under Title VII, OFCCP offered a questionable explanation that the directive “does not address gender identity as a stand-alone protected category, which (along with sexual orientation) is the subject of Executive Order 13672.”

Second, as written, the Rule is relatively straightforward. It amends EO 11246’s implementing regulations by replacing the phrase “sex or national origin” with the phrase “sex, sexual orientation, gender identity, or national origin” wherever the former appears in the regulations.  The Rule also places the following obligations on employers:

  1. Ensure that applicants and employees are not discriminated against based on their sexual orientation or gender identity.

  2. Update existing affirmative action plans and all equal opportunity, harassment, and nondiscrimination policies to reflect the additional protected categories.

  3. Make available to applicants and employees a revised version of the “EEO is the Law” poster that includes a notice regarding the protections for LGBT workers.

  4. Include “sexual orientation” and “gender identity” as protected traits in the equal opportunity job solicitation taglines. (OFCCP suggested in the Rule preamble that “equal opportunity employer” may be sufficient to cover all protected categories of EO 11246.)

  5. Incorporate the new categories into new or modified subcontracts and purchase orders.

  6. Report to OFCCP and the Department of State any suspicion that it cannot obtain a visa for an employee, from another country with which it does business, due to the employee’s sexual orientation.

  7. Ensure that facilities (e.g., restrooms, locker rooms, and dressing areas) provided for employees are not segregated on the basis of sexual orientation and gender identity.

The Rule does not burden contractor employers with the same data collection and analysis obligations that are required with respect to females and minorities and does not require contractor employers to set placement goals on the bases of sexual orientation or gender identity, nor does it require them to collect or analyze any data with respect to the sexual orientation or gender identity of their applicants or employees. Contractor employers are also not required to, or prohibited from, soliciting applicants or employees to self-identify regarding their sexual orientation or gender identity.

Finally, it is notable that EO 13672 and its implementing Rule were issued despite the growing number of states (currently 20 states plus the District of Columbia) that have implemented protections against sexual orientation and/or gender identity discrimination. And further, that they are set within the larger context of the legalization of same sex marriage by, as of this article, 37 states, as well as the US Supreme Court’s consideration of the status of same sex marriage this year. Thus, the issue brought to focus by these OFCCP actions and the Executive Order may be more pointed than an identification of sexual orientation and gender identity as protected traits and may go towards whether a religious contractor employer may base employment decisions on the LGBT status of an applicant or employee.

EO 13672 contains no exemption for religiously affiliated federal contractors. Section 204(c) of EO 11246, which allows a religious corporation, association, educational institution or society, to base employment decisions on the religious membership of a particular individual (rather than on the beliefs of the organization), was specifically not amended by EO 13672. Possibly by design, this may result in a test of the reach of the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc., which, broadly speaking, allowed a closely-held, for-profit corporation to be exempt from the Affordable Care Act’s birth control mandate based upon its owners’ religious objection because it found that there was a less restrictive means of furthering the law’s interest.

A similar legal challenge may play out in the arena of employee benefits governed by EO 13672. OFCCP enforcement of the new Rule’s nondiscrimination prohibitions would bring within OFCCP’s purview the provision of benefits to an employee’s same sex spouse. Title VII and Supreme Court precedent require employers to make available the same benefits for spouses regardless of the gender of the employee. Closely-held contractor employers who oppose same sex marriage as a violation of religious belief may object to this requirement’s enforcement as a burden on their religious beliefs, similar to the arguments made by Hobby Lobby. While the Hobby Lobby majority attempted to dismiss the idea that its decision might allow an employer to “cloak as religious practice” prohibited acts, such as racial discrimination in hiring, the reach of the Hobby Lobby decision is far from settled, and the next batch of cases may seek to extend that decision to regulations requiring equal benefits based upon sexual orientation or gender identity.

And, lest employers think that the OFCCP was done, just today it announced that on January 30, 2015, it will publish a Notice of Proposed Rulemaking to update contractors’ obligations to not discriminate on the basis of sex under EO 11246 to “reflect present-day workplace realities and align OFCCP’s rules with current law under Title VII.” The new rules will touch on “compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiver discrimination, among other topics.” The regulatory landscape for federal contractors saw many changes in 2014, and it seems 2015 is shaping up to be no different.

ARTICLE BY

Jill Pedigo Hall
Gonzalez Saggio & Harlan LLP

Will The EEOC Get its Wings Clipped? Mach Mining's Challenge to the EEOC Before the Supreme Court

On Jan. 13, during oral argument, U.S. Supreme Court Justice Antonin Scalia echoed businesses’ skepticism about the EEOC’s pre-suit settlement strategy, saying  “there is considerable incentive on the EEOC to fail in conciliation so that it can bring a big­deal lawsuit and get a lot of press and put a lot of pressure on this employer and on other employers. There are real incentives to have conciliation fail.”

Justice Scalia made his comments in the case of Mach Mining L.L.C. v. Equal Employment Opportunity Commission. In the Mach Mining case, the EEOC sued the company for sex discrimination on behalf of a class of women who were denied jobs. The EEOC’s pursuit of high-profile litigation (accelerated during the Obama Administration and intended to “send a message to employers”)  is supposed to come after the EEOC has attempted to conciliate discrimination charges. But that conciliation process, and–in particular, court review of that process—is now before the Supreme Court.

By law, the EEOC is to “conciliate” cases after having found “reasonable cause” that a violation of the law has occurred, andbefore filing a lawsuit against the employer. Importantly, the language of Title VII specifically requires the EEOC to “endeavor to eliminate” alleged discrimination by “informal methods of conference, conciliation, and persuasion.”

But, after the EEOC filed suit against Mach Mining, the company accused the EEOC of failing to conciliate in good faith. The battle over the “good faith” conciliation has derailed the underlying case and for nearly two years, the case has been mired in a mini-battle about whether the EEOC has discretion on conciliation, or its conduct should be reviewed by a court. The EEOC’s position is that it has the discretion and should not be second-guessed; Mach Mining insists that “conference, conciliation, and persuasion” must be done in good faith, and subject to court review.

During the oral argument, Chief Justice Roberts said, “I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law.” Justice Kennedy noted that he couldn’t find another situation in which a court “has essentially declined to review a statutory precondition” to filing a lawsuit.

Yet, some justices were sympathetic to the EEOC’s position that companies are turning conciliation tactics into a legal strategy– to fight the EEOC about “good faith” conciliation to avoid and prolong the underlying discrimination case.

In the end, there seemed to be some agreement that judicial review of the conciliation process is appropriate, but, as Justice Breyer queried, “the issue is how much.” The lawyers and justices hinted at several options, even including directing the EEOC to issue regulations. Mach Mining and its supporters hope that the prospect of court review will cause the EEOC to be reasonable in its demands to employers before rushing to the Courthouse.

For more detailed legal analysis, visit the Supreme Court blog.

ARTICLE BY

Jeanine M. Gozdecki
OF
Barnes & Thornburg LLP

The Year in Social Media: Four Big Developments from 2014

Barnes Thornburg

As social networking has become entrenched as a tool for doing business and not just a pastime of our social lives, employers, government agencies, and even academia have taken big steps in 2014 to define how social media can and cannot, or should and should not, be used. Below is a summary of some of the big developments in social media in the workplace this year.

The EEOC Turns Its Attention to Social Media

The Equal Employment Opportunity Commission has turned its attention toward social networking, meeting in March to gather information about social media use in the workplace. To no surprise, the EEOC recognized that although using social media sites such as LinkedIn could be a “valuable tool” for identifying employment candidates, relying on personal information found on social networks, such as age, race, gender, or ethnicity, to make employment decisions is prohibited.

More controversially, the EEOC expressed concern that employers’ efforts to access so-called “private” social media communications in the discovery phase of discrimination lawsuits might have a “chilling effect” on employees filing discrimination cases. However, it is unclear how the EEOC might prevent employers from getting this information if it is relevant to a plaintiff’s claims. It remains to be seen what steps the EEOC might take to address this “chilling effect.”

 The NLRB Continues to Refine Its Position on Social Media Policies

The National Labor Relations Board has spent the past few years attacking social media policies as overbroad, but perhaps a shift in that policy is at hand. This summer, an NLRB administrative law judge upheld a social media policy that discouraged employees from posting information on social networks about the company or their jobs that might create morale problems. The ALJ held that the policy did not prohibit job-related posts, but merely called on employees to be civil in their social media posts to avoid morale problems. The ALJ’s finding is at odds with recent NLRB decisions, which have gone much further to limit any policies that might affect employees’ rights under the National Labor Relations Act. While it is unclear whether this holding is an outlier or a shift in the NLRB’s approach, it brings with it some hope that the NLRB may be moving toward a more pro-employer stance.

States Continue to Limit Employers’ Access to Employees’ Social Media Accounts

State governments also are getting involved with social media regulation. In April, Wisconsin became the newest state to pass legislation aimed at protecting employees’ social media accounts, passing the Social Media Protection Act. The Act bars employers, schools, and landlords from requiring their employees, students, and tenants to produce their social media passwords. Significantly, the Act does not ban them from viewing social media posts that are publicly accessible.

Wisconsin was not alone in enacting legislation to protect social media passwords this year, as Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island and Tennessee enacted similar laws during 2014 and 12 other states did so in previous years. While not every state has passed such legislation, it is clear that state governments increasingly will not tolerate employers asking employees or applicants for access to their private social networking accounts. Employers should be mindful of their state laws before seeking social media information that might be protected.

Academia is Drawing Its Own Conclusions Regarding Social Media in the Workplace

Federal and state governments are not the only institutions weighing the implications of social media in the workplace. University researchers also are studying employers’ stances on social media – a North Carolina State University study concluded that applicants tend to have a lower opinion of employers that looked at their social media profiles before making a hiring decision, and a Carnegie Mellon University study concluded that employers risked claims of discrimination by reviewing applicants’ social media profiles, based on employers being more likely to screen out candidates based on their personal information such as ethnicity.

While these studies weigh against employers searching applicants’ social media before making hiring decisions, there is certainly logic to the contrary, as employers are entitled to view publicly-accessible information about their applicants, and thorough employers will want to learn as much as they can to do their due diligence in making important hiring decisions.

Laws, best practices, and public opinion regarding social media in the workplace will continue to evolve in 2015. Employers would be wise to look at the most recent developments before making any major decisions affecting their social media policies and practices.

ARTICLE BY

Douglas M. Oldham
OF
Barnes & Thornburg LLP