Category Archives: discrimination

Target Pays the Price for Problematic Assessments

You never have to look far for examples of big companies spending big money to deal with claims of discriminatory employment practices.

This week’s cautionary tale comes courtesy of Target Corp.

On Monday, the Minneapolis-based discount chain agreed to pay $2.8 million to resolve charges of discrimination stemming from employment assessments used by Target, which “disproportionately screened out applicants for exempt-level professional positions based on race and sex,” according to the Equal Employment Opportunity Commission. The payout will be distributed among more than 3,000 individuals.

In its investigation of the retail giant, the EEOC determined that the assessment tests Target administered to thousands of candidates—who were ultimately rejected—for upper-level positions were not job-related, and violated Title VII of the Civils Right Act of 1964.

In addition to finding that the assessments unduly eliminated individuals in particular groups from consideration—namely African-Americans, Asians and women, according to the EEOC—the Washington-based agency determined that one of the assessments Target had been using violated the American with Disabilities Act. In this case, applicants were subjected to medical examinations prior to an offer of employment, which, as the EEOC notes, is prohibited by the ADA. Finally, the EEOC found that Target committed recordkeeping violations by failing to maintain records adequately enough to evaluate the impact of its hiring processes.

While maintaining that it didn’t act improperly regarding the assessments, Target did stop using the tests in question during the EEOC’s investigation, and has “agreed to better track its testing process and check for impact based on race, ethnicity and gender,” according to Target spokeswoman Molly Snyder.

In the same statement, Snyder noted that Target had relied on these tests “over the past decade,” and said the EEOC concluded that “only a small fraction of the assessments … could have been problematic.”

The settlement underscores the “quite risky” nature of the pre-employment assessments commonly used by many employers, says Tashwanda Pinchback Dixon, an Atlanta-based attorney at Balch & Bingham, and a member of the firm’s labor and employment and litigation practice groups.

“It’s important that employers take a very close look at these tests and make sure there is a clear link to business necessity,” says Dixon, whose experience includes focusing on Title VII sex and race discrimination claims.

Ensuring such a connection “is even more critical with tests that seek medical information, because of the ADA and the Genetic Information Nondiscrimination Act,” adds Dixon.

In most instances, she says, “a case can be made for business necessity when the position requires manual labor, such as manual lifting requirements.”

In Target’s case, however, “the link to business necessity is not as obvious.”

In light of this week’s settlement, Dixon says that employers should expect their pre-employment assessments to come under scrutiny by candidates and—if brought to its attention—the EEOC.

As such, “employers should also evaluate and monitor whether their assessments have an adverse impact on any protected class,” she says, “including race, gender and individuals with disabilities.”

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Employers and Contraceptive Coverage

In case you missed it, a federal court of appeals ruled last Friday that religiously affiliated nonprofit employers can’t block their employees’ health care coverage for contraceptives.

The ruling in Catholic Health Care System v. Burwell finds that the plaintiffs, which include Catholic health care systems and Catholic high schools, are not burdened by having to formally object to covering contraceptives for employees.

The American Civil Liberties Union  supported the government’s arguments by participating in a friend-of-the-court brief.

The decision by the U.S. Court of Appeals for the Second Circuit held that the religious accommodation in the Affordable Care Act’s contraceptive rule imposed no substantial burden on the plaintiffs’ religious freedom.

The plaintiffs challenged a requirement that employers that object to including contraceptive coverage in their employee’s insurance plans notify their insurers or the government of their objection.  The insurer must then arrange and pay for the contraceptive coverage separately.

“Today’s victory is not only incredibly important for the more than 12,000 employees who stand to gain contraception coverage, but it also sends a clear message that an employer’s religious beliefs can’t be used to deny health care benefits to employees,” said Brigitte Amiri, senior staff attorney for the American Civil Liberties Union’s Reproductive Freedom Project. “We fight hard to protect religious freedom at the ACLU, but that right doesn’t allow employers to discriminate against their female employees.”

With Friday’s decision, the Second Circuit joins six other circuits that have found that the accommodation poses no substantial burden on the nonprofits’ religion, including the D.C., Third, Fifth, Sixth, Seventh, and Tenth Circuits.  No circuit court has ruled the other way.

Viewed purely from an HR perspective, the ruling seems to be yet another small — but welcome — step toward full equality in the workplace.

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EEOC Sues UPS Over Religious Discrimination

The U.S. Equal Opportunity Commission recently sued United Parcel Service, Inc., claiming the country’s largest package delivery company violated federal law by discriminating against employees’ religious rights.

The EEOC complaint, which was filed in the U.S. District Court for the Eastern District of New York, alleges that the company has failed to hire applicants and promote employees who wore either long beards or long hair due to their religion. The company’s policy requires supervisors and employees who come in contact with customers to shave their beards and also prohibits male employees in such positions from growing their hair below collar-length.

As an industry giant, UPS supports a sophisticated HR department that oversees roughly 300,000 employees nationwide. What went so wrong?

According to an EEOC statement, there were many examples of religious discrimination over the years. It mentions a Muslim who applied for a driver position in Rochester, NY. The man, who wore a beard as part of his religious observance, was told “he had to shave to get the position,” that “God would understand,” and that “he could apply for a lower-paying job if he wanted to keep his beard.” EEOC also pointed to Muslim and Christian employees at other UPS facilities who were “forced to shave their beards while they waited months or years for UPS to act on their requests for religious accommodation.”

Likewise, a part time load supervisor in Ft. Lauderdale, Fla., who was a Rastafarian, also did not cut his hair because of his religious beliefs. His manager told him that he did not “want any employees looking like women on (his) management team.” Apparently, the 1960s memo about gender equality has not reached everyone yet.

Rastafarians at other UPS facilities around the country were also denied positions. Some waited years for their requests for religious accommodations to be granted before getting positions they wanted.

Seems like we’ve been down this path before – companies blamed for violating Title VII of the Civil Rights Act of 1964. Just last June, for instance, the US Supreme Court accused Abercrombie & Fitch violated a Muslim woman’s religious rights when it refused to hire her for a store sales job because she wore a headscarf.

In this matter, “UPS has persistently enforced its appearance policy even when that policy conflicts with the religious beliefs of it applicants and employees,” states Robert D. Rose, the regional attorney for EEOC’s NY District Office. “No person should be forced to choose between their religion and a paycheck, and EEOC will seek to put an end to that longstanding practice at UPS.”

Not to fast. UPS is defending its employment practices, claiming they are legal and respect and accommodate religious differences. Automated forms for requesting religious accommodations are even posted on it website, www.upsjobs.com, adds Susan Rosenberg, a UPS spokesperson.

“UPS has for many years had protocols for employees to request religious accommodations including variations for appearance and grooming guidelines (i.e., hair length, beard) or work schedule adjustment for prayers,” she explains. “The company will review this case, and defend its practices that demonstrate a proven track record for accommodation.”

Stay tuned. This battle has just begun.

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EEOC’s ‘Historic’ Workplace Discrimination Ruling

In case you missed it late last week, the United States Equal Employment Opportunity Commission ruled workplace discrimination on the basis of sexual orientation is illegal under federal law.

“This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal,” Chad Griffin, president of the Human Rights Campaign in Washington, told Bloomberg BNA.

“While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life.”

The EEOC’s decision “is going to put an end to the vapid superficial treatment that this legal question has been getting for so long,” Greg Nevins, counsel for Lambda Legal’s southern regional office in Atlanta.

Many employers over the past few years have settled EEOC charges filed by workers alleging sexual orientation discrimination, Nevins said.

“I think there will be some employers that want to fight this, but there are already a lot who have said ‘we’re not going to be the ones arguing that employers can discriminate against gay and lesbian men and women,’ ” he said.

It will be very interesting in the coming weeks and months to see which organizations — if any — decide to challenge the EEOC’s ruling.

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EEOC Revises Pregnancy Bias Guidance

In case you missed it, the U.S. Equal Employment Opportunity Commission recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document, which are available on the EEOC’s website.

The updates to the Guidance are limited to several pages about the U.S. Supreme Court’s recent decision in Young v. UPS, issued in March 2015:

The updated Guidance reflects the Supreme Court’s conclusion that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. 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 decision in Young does not affect most of the July 2014 EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues and therefore the following topics remain the same:

  • the PDA’s application to current, past, and potential pregnancy;
  • termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy;
  • application of the PDA to lactation and breastfeeding;
  • prohibition of forced leave policies;
  • the obligation to treat women and men the same with respect to parental leave policies; and
  • access to health insurance.

The Court’s opinion did not address the effect of the ADA Amendments Act of 2008 on workers with pregnancy-related impairments. Therefore that discussion in the Guidance also remains the same. The Guidance notes that, “Changes to the definition of the term ‘disability’ resulting from enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”

Alexis Knapp, a Houston-based shareholder at Littler, says the guidance gives numerous examples of the EEOC’s view that employers who provide flexibility, leave, modified duty, and more to non-pregnant employees will be expected to extend those same opportunities to pregnant employees, in order to avoid an unlawful difference in treatment “because of” pregnancy.

She says the EEOC also encourages employers to look beyond the requirements of the Pregnancy Discrimination Act and into the Americans with Disabilities Act and other laws that may provide additional protections to employees who suffer from pregnancy related conditions.

“I think the message to employers,” she says, “is that, while we still have defensive strategies to draw from when challenged, the starting point is that we need to be having the conversation with the employee and engaging her in an interactive process about what her limitations are, how long she anticipates those limitations will last, and whether we can find a way to enable her to work safely in light of those limitations.  The answer may not always be ‘yes,’ but the conversation has to happen and must be in good faith. ”

But, she adds, there are additional things that HR needs to consider as well as a result of the new guidance.

“First, although this starts to sound repetitive after a while, we must be training our managers and supervisors about these obligations,” she says. “These conversations about pregnancy and potential accommodations begin (and often stay) at the line supervisor level—between an employee and to whom she reports.  We have to be wary of the manager or supervisor who responds ‘We don’t do that here’ or ‘This job doesn’t allow that.’  It is true that there will be times when a reasonable accommodation will not be available, or that it poses an undue hardship, but that is not a decision to be made in a vacuum without the benefit of someone who understands the organization’s obligations under the PDA and ADA and other applicable laws. ”

At an even more basic level, she adds, managers and supervisors need to know that the most casual conversation with an employee can give rise to these obligations, without the employee needing to use any magic words or, without them even knowing those protections exist.

“We also need to be revisiting our policies, she says, “and not just policies on light duty — as we learned from Young and the EEOC’s Guidance — but our attendance, accommodation, FMLA, leave, paid time off and other related policies that might contain unintentional — but nevertheless — impermissible differences in how we treat employees.

“In fact, it is not just about pregnant female employees, but it also includes policies that contain unlawful distinctions between men and women in the provision of parental leave, or caregiver policies that are narrowly defined to only apply to women,” she says.  “The EEOC has made it clear that these too will be a focus of their enforcement from here forward. “

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Overcoming the Barriers Disabled Americans Face

On July 26, it will be 25 years since George H. W. Bush signed into law the Americans with Disabilities Act, legislation that prohibited discrimination in employment, public accommodation and a number of other areas.

ThinkstockPhotos-457783527At the time of the signing, the president said …

“I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we’ve been committed to containing the costs that may be incurred … . Let the shameful wall of exclusion finally come tumbling down.”

Whether or not that “shameful wall of exclusion” has actually fallen is debatable. But with the release on Wednesday of a study titled the 2015 Kessler Foundation National Employment and Disability Survey, there’s now further evidence that people with disabilities are striving to work and are having some success in overcoming many of the barriers that have stood in the way. (Kessler unveiled the results to policymakers on Capitol Hill.)

Take the following finding in this study of 3,013 Americans with disabilities that was commissioned by the West Orange, N.J.-based Kessler Foundation and conducted by the University of New Hampshire: Nearly 69 percent of those surveyed are either working, looking for work or have worked since the onset of the disability.

“This clearly demonstrates that people with disabilities are ready and able to contribute their talents in the workforce,” says Kessler Foundation President and CEO Rodger DeRose.

Diving a little deeper into the data, the researchers found that Americans with disabilities who are employed work an average of 35.5 hours per week, with just over 60 percent of those working more than 40 hours per week.

The research did confirm, as might be expected, that many Americans with disabilities continue to encounter formidable barriers as they look for work, with the top three being the lack of sufficient education or training, employers that assume they can’t do the job and the lack of transportation. Then, once in the workplace, they face hurdles such as getting less pay than others in a similar job, negative attitudes of supervisors and negative attitudes of co-workers.

But, as mentioned earlier, the report does go on to make the point that a substantial percentage of the respondents are successfully overcoming many of these challenges. Of the 36 percent who reported employers assumed they couldn’t do a job, for instance, around 33 percent said they were able to overcome that barrier. Similarly, of the nearly 17 percent who said they were getting less pay than others in similar positions, nearly 39 indicated they were able to surmount that hurdle.

Earlier today, I asked John O’Neill, director  of employment and disability research at the Kessler Foundation, which of the findings surprised him most.

O’Neill specifically cited the finding that transportation may not be as significant a barrier as some have previously contended.

“When people think of barriers to job search, transportation is one of the first things to come to mind,” he says. “Yet of those looking for jobs, only 25 percent said they faced that barrier. Add, on top of that, that 42 percent of those facing that barrier had overcome it, and it would seem to be not as looming an issue as many people might have thought in the past.”

As for a takeaway for HR leaders, O’Neill points to the attitudes of supervisors and co-workers.

Roughly 16 percent of those with disabilities cited they had experienced barriers resulting from supervisors’ attitudes and about the same proportion experienced barriers resulting from co-workers’ attitudes, he says. But when you ask them about their ability to overcome those barriers, he adds, about 41 percent reported they were able to do so and 54 percent reported the same, respectively.

“Those figures,” he says, “are higher than I would have thought—and says that, while they’re [still] issues, people are finding ways to negotiate and work with their supervisors in terms of how they are being perceived.”

There no question a lot more work needs to be done when it comes to ridding the workplace of the many and varying barriers facing those with disabilities. But it’s also nice to see new research suggesting they aren’t insurmountable.

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Top 10 Reasons to Test Adverse Impact Correctly

This one caught my eye. Not that I’ve been a big David Letterman watcher (past my bedtime), but — as Merrily Archer put it in this 101390464 -- gavel and law booksLinkedIn post — “resuscitating the Top Ten list one last time” before it’s long forgotten was intriguing.

Even more intriguing was the content of her post, Top 10 Reasons to Acquire Adverse Impact Testing Skills — starting with 10. “The [Equal Employment Opportunity Commission]’s ‘Systemic Initiative’ to eliminate ‘discriminatory barriers in hiring’ — i.e., qualification standards — [was] launched nearly 10 years ago on April 4, 2006 — it’s not too late to catch up!” …

And ending with “the No. 1 reason HR practitioners and in-house employment counsel must understand the theory behind adverse impact analyses and how to conduct them: Turning over applicant flow data — or a hiring database — to the EEOC or in discovery that you have not analyzed for adverse impact is like disclosing a packet of documents that you’ve not read — i.e., legal malpractice!!”

Archer — an employment-discrimination litigator, legal coach and creator of the EEO Legal Solutions website — is very passionate about imparting what she knows about navigating your way through the ever-more-aggressive EEOC. She began her career as a trial attorney there and knows how it works. Or make that knows how it’s supposed to work and not supposed to work.

“I feel strongly that everyone needs to know how to test for AI and how to analyze their own hiring data, especially before turning anything over to the EEOC,” she says. “I’ve seen attorneys at big law firms hand over entire databases in response to an EEOC request for information, without having a clue about what the data actually reveals.”

For anyone who may not know, adverse impact, according to this post on USLegal.com, “refers to employment practices that appear neutral but have a discriminatory effect on a protected group. ”

More specifically, it says:

“Under the EEOC guidelines, adverse impact is defined as a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group. The EEOC agencies have adopted a rule of thumb under which they will generally consider a selection rate for any race, sex or ethnic group which is less than four-fifths or 80 percent of the selection rate for the group with the highest selection rate as a substantially different rate of selection. The selection rates for males and females are compared, and the selection rates for the race and ethnic groups are compared with the selection rate of the race or ethnic group with the highest selection rate.”

Sounds pretty convoluted, doesn’t it? In reality, it’s all about the calculations, so EEO and legal consultants would be advised. That said, though, Archer’s No. 7 reason to acquire these skills is worth noting: “Using FREE online adverse-impact calculators … is EASY, even for the math-phobics — i.e., lawyers.”

The Center for Corporate Equality, in its Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses, says determining whether selection, promotion and termination decisions result in adverse impact — i.e., whether “substantial differences in employment outcomes across groups exist” — is an extremely important topic for organizations, yet “there is limited guidance about the specific and proper ways in which these analyses should be conducted.”

In the EEOC’s “Uniform Guidelines on Employee Selection Procedures,” adverse impact falls under Section 4, item D.  It doesn’t offer much in the way of calculation help, but if you’re not perfectly clear on everything it says, you’d best read up, says Archer. Better yet, consider yourself warned, by her:

“[Many] defense attorneys put employers at the mercy of the EEOC’s AI analysis, which is likely statistically flawed, based on inaccurate assumptions about the hiring process and actual applicant flow, and calculated to maximize ‘shortfalls’ — i.e., the difference between the expected and actual number of hires in that minority, gender or age group — for settlement negotiations.

“Attorneys can be so myopic: ‘If they didn’t teach it in law school, it must not be relevant.’ Unfortunately, the exact opposite is true. … This area of law is still pretty nascent, but one day soon, I’m convinced that failing to audit for AI will become malpractice — it’s just part of the standard of care and protection that employers need in the systemic era.”

A few other compelling reasons to perfect your AI skills, from Archer’s Top 10:

“9. Since the EEOC shifted its enforcement focus nearly 10 years ago, ‘systemic discrimination’ has become the new phrase that PAYS at the EEOC and among employee-side lawyers.

8. The EEOC uses specific statistical tests to measure whether a challenged practice — e.g., criminal-background check, educational standard — has an ‘adverse impact’ and to calculate damages in conciliation negotiations: HR practitioners and attorneys MUST know how the database will be analyzed and what the numbers say.

2. EEOC systemic cases that have reached litigation demonstrate a high likelihood that the EEOC will [do the AI analysis of your database incorrectly] in a way that hurts [you,] the employer.”

 

 

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Here’s an Overnight Cure for Bias?

Here’s a question you might want to ponder … or maybe even sleep on. Can we snooze our gender and racial biases away?

ThinkstockPhotos-163819282Well, apparently researchers at Northwestern University, the University of Texas at Austin and Princeton University thought enough about that question to conduct a study. And guess what? They found that biases can indeed be counteracted while people sleep.

In the study, posted this week on the Science magazine website, researchers found that information recently stored in the brain can be integrated with other information during sleep and transformed into stable representations through a process known as systems-level consolidation.

“Taking into consideration the role of sleep in memory consolidation, we adapted procedures for reducing implicit social biases and reactivating this training during sleep,” the researchers said.

You can read more about how the study was conducted at Science. But cutting to the chase, the researchers “reactivated counterbias information during sleep using subtle auditory cues that had been associated with counterbias training.”

In the study, electrodes recorded the brain activity of participants as they napped. Then, during periods of deep sleep, one of the sound cues from the association test was repeatedly played.

As Xiaoqing Hu — postdoctoral fellow at University of Texas at Austin and one of the study’s researchers — writes in a piece appearing on The Conversation: “Prior research on prejudice and stereotyping shows that extensive counter-bias training can lessen automatic stereotyping. Building on this bias reduction and sleep-based memory consolidation research, we aimed to test whether people can further process such counter-bias memories during sleep. Can such learning reduce long-lasting stereotypes and social biases?

The researchers found that pre-existing stereotypes associated with the sound cue replayed during sleep were significantly reduced when the participant woke up …

 “We were surprised that this sleep-based intervention was so powerful when participants woke up: the biases were reduced by at least 50 percent relative to the pre-sleep bias level. But we were also surprised at how long the effect lasted. At the one-week follow-up test, the sleep-based intervention was still effective: bias reduction was stabilized and was significantly smaller (approximately 20 percent) than its baseline level established at the beginning of the experiment.”

As you might expect, those involved in the research acknowledge more work is needed. So, at least for the time being, you might want to hold off retrofitting your nap room—for the few of you who  have one—to include this kind of intervention or adding a sleep component to next year’s bias-training program.

Let’s hope your bias-training efforts don’t already induce said sleep.

 

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Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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Supremes Revive Young v. UPS Case

The reaction to yesterday’s Supreme Court decision to revive a pregnancy-discrimination lawsuit against United Parcel Service has been decidedly swift and, of course, decidedly mixed.

The Supremes based yesterday’s decision on the belief that lower courts had used the wrong standard to determine whether the company had discriminated against one of its drivers, according to the New York Times.

When Peggy Young’s doctor recommended that she avoid lifting anything heavy after she became pregnant, the company refused to give her lighter duties to accommodate her and placed her on unpaid leave, according to the 2006 lawsuit.

(UPS has since changed its policy to offer light duty to pregnant women, the Times reports.)

Barry Hartstein, co-chair of Littler’s EEO and diversity practice in Chicago,  says “the Court  essentially treated pregnancy under the classic disparate treatment theory, finding that discrimination can be inferred by certain employer conduct.”

Meanwhile, Katherine Kimpel, managing partner of Sanford Heisler Kimpel in Washington and co-author of an amicus brief in support of Ms. Young for medical providers and organizations involved in female and infant health and for the National Partnership for Women and Families, says the decision was more than just a victory for Young, who accused the delivery company of violating the federal Pregnancy Discrimination Act:

“The Supreme Court today handed a victory not only to Ms. Young but also to all pregnant women and mothers working in this country.  Ms. Young will have her day in court.  UPS does not get to subject women to a least-favored-nation status.  Other employers should be on notice.  The Supreme Court makes clear that the Pregnancy Discrimination Act has teeth.  Employers who accommodate everyone but pregnant workers will be held accountable.”

Meanwhile, Michael Droke, a Seattle-based partner in the labor and employment practice at the international law firm Dorsey & Whitney, calls the 5-4 decision a “fractured” one, adding that the Court “noted that the expansions to the Americans with Disabilities Act definitions of ‘disability’ might require companies to accommodate employees with temporary lifting restrictions, separate from the Pregnancy Discrimination Act.”

He says employers should beware that federal law, either under the ADA or Pregnancy Discrimination Act, protects disabled employees from discrimination and, in some cases, require reasonable accommodation.

“The Court refused to grant pregnant employees, in the Court’s words, a ‘most favored nations’ status,” he says. “In other words, an employer is not automatically required to give pregnant workers the same accommodations they would offer to others with temporary disabilities.

However, he adds, the Supreme Court required UPS to justify its treatment by establishing a legitimate, non-discriminatory reason for the difference.

“This may prove a very difficult burden for most employers to meet,” he says. “Employers must be very careful when granting leave requests or making job accommodations, because the Company might later be required to justify any difference in treatment for other employees.”

 

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