Category Archives: EEOC

Wellness Battle: AARP vs. EEOC

A federal lawsuit was just filed against the government agency that handles the rules on workplace wellness programs, according to the New York Times, which calls the suit “the first major legal challenge of the regulations, and will add fuel to one of the hottest debates in healthcare.”

The main point of contention in the suit is whether some programs that require an employee to fill out a health risk assessment or undergo biometric testing for conditions such as high blood pressure are forcing workers to hand over private medical or genetic information.

The suit was filed by AARP, the consumer advocacy group that represents older Americans, in Federal District Court in Washington. In the suit, the group argues that the programs violate anti-discrimination laws aimed at protecting workers’ medical information. It also questions whether the programs are truly voluntary when the price of not participating can be high.

The suit takes aim at the Equal Employment Opportunity Commission, the federal agency responsible for issuing the rules governing what employers can do. When the agency issued new rules on the programs in May, it said employers could set the incentive as high as 30 percent of the annual cost of a worker’s health insurance coverage.

The cost of individual coverage averages $6,435 a year, according to the Kaiser Family Foundation, which means refusing to participate could cost workers nearly $2,000.

Claiming that the commission reversed its longstanding position to protect employees’ privacy, the AARP described its members as facing “imminent harm flowing directly from the rules.” Older people would have to either incur significant financial penalties or divulge medical information that “once revealed, will never be confidential again.”

The AARP is seeking a preliminary injunction to stop the new rules, which go into effect in 2017.

James Gelfand, senior vice president for health policy for the Erisa Industry Committee, a trade group representing employers on issues like health benefits, was critical of the AARP suit. Employers, which are never told which employees have certain conditions, are not using the information to discriminate, he said.

“There’s no evidence of these things happening,” he told the Times.

The EEOC so far has declined to comment on the new lawsuit.

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The Democratic Party Platform: A Cheat Sheet

ThinkstockPhotos-476244660Turnabout is fair play — at least when it comes to politics in 2016. Last week I gave you a rundown on HR-related provisions in the Republican Party platform. Now it’s time for the Democrats.

Reflecting the unusual character of this year’s race, the document — formally approved on Monday — contains many direct attacks on GOP candidate Donald J. Trump. In some cases the narrative has to stretch a bit to do so. In declaring the party’s support for small business, for example, the platform says:

“The Democratic Party will make it easier to start and grow a small business in America, unlike Donald Trump, who has often stiffed small businesses—nearly bankrupting some—with his deceptive and reckless corporate practices.”

Anyway. Back to HR. Following are the main provisions of interest.

Minimum Wage: Language in the platform on the federal minimum wage reflects some tension between the party and Hillary Clinton’s presidential campaign. Clinton favors a raise from $7.25 an hour today to $12, leaving states and cities to set higher minimums. Her now-vanquished rival, Bernie Sanders, pushed for $15. What emerged in final platform language was a compromise: $15 … “over time.” The party also calls for eliminating minimum-wage exemptions for tipped workers and those with disabilities.

“No one who works full time should have to raise a family in poverty. … We should raise the federal minimum wage to $15 an hour over time and index it [to inflation].”

Employer incentives: The party also favors federal support for employers who “provide their workers with a living wage, good benefits, and the opportunity to form a union without reprisal.” The language doesn’t specify the form of this support, but suggests such employers would get preference in existing programs.

“The one trillion dollars spent annually by the government on contracts, loans, and grants should be used to support good jobs that rebuild the middle class.”

‘Card Check’: The platform reiterates a long-held argument in favor of allowing unions to organize workplaces where a majority of workers have signed cards indicating approval — with no election. The idea, called “card check,” has been proposed in Congress for more than a decade, so far without success.

The provision is part of a larger argument the party makes in favor of stronger legislative and regulatory support for labor unions.

“A major factor in the 40-year decline in the middle class is that the rights of workers to bargain collectively for better wages and benefits have been under attack at all levels. … We oppose legislation and lawsuits that would strike down laws protecting the rights of teachers and other public employees. We will defend President Obama’s overtime rule, which protects of millions of workers by paying them fairly for their hard work.”

Mandatory Arbitration: Federal regulators have been going after companies that require workers to sign arbitration agreements that waive their rights to sue or join class-action suits. The topic got a big boost this month with news that former Fox News chairman Roger Ailes is citing such a clause in the contract of former Fox commentator Gretchen Carlson to keep her sexual-harassment lawsuit out of court.

The 2016 platform adds the cause to a list of labor measures.

“We will support efforts to limit the use of forced arbitration clauses in employment and service contracts, which unfairly strip consumers, workers, students, retirees, and investors of their right to their day in court.”

Paid leave: After a passing reference to the party’s support for gender-based pay equity, the Democratic Party platform gets more specific about laws that would mandate family and medical leave.

“Democrats will make sure that the United States finally enacts national paid family and medical leave by passing a family and medical leave act that would provide all workers at least 12 weeks of paid leave to care for a new child or address a personal or family member’s serious health issue. We will fight to allow workers the right to earn at least seven days of paid sick leave. We will also encourage employers to provide paid vacation.”

Profit-sharing: Suggesting a program that may appeal to some employers, the party also backs an unspecified government incentive to some that provide profit-sharing bonuses to employees.

“Corporate profits are at near-record highs, but workers have not shared through rising wages. … we will incentivize companies to share profits with their employees on top of wages and pay increases, while targeting the workers and businesses that need profit-sharing the most.”

International trade: Trade policy is a sore subject for both parties, with Trump and Sanders railing against NAFTA and the proposed Trans-Pacific Partnership. The Democratic Party platform walks a narrow line, calling for tougher bargaining — without shutting the door on the TPP.

“Trade agreements should crack down on the unfair and illegal subsidies other countries grant their businesses at the expense of ours. … These are the standards Democrats believe must be applied to all trade agreements, including the Trans-Pacific Partnership.”

Immigration: The 2016 party platform reaffirms longstanding calls for comprehensive immigration policy reform — but makes no mention of increasing employment-based visa allowances to help companies recruit talent abroad.

“Democrats believe we need to urgently fix our broken immigration system—which tears families apart and keeps workers in the shadows—and create a path to citizenship for law-abiding families who are here, making a better life for their families and contributing to their communities and our country.”

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EEOC Steps Up Data Collection on Discrimination

In case you missed this bit of news on your rush out the door to start your weekend last Friday:

In an effort to improve the information available about religious discrimination, the U.S. Equal Employment Opportunity Commission  announced it will implement changes in the collection of demographic data from individuals who file charges with the agency. These changes, the agency says, will allow it to collect more precise data about the religion of the individual alleging discrimination – allowing the EEOC, as well as the public, to recognize and respond to trends in charge data.

Additionally, the EEOC also announced the release of a one-page fact sheet designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet is available at EEOC’s Youth@Work website, which presents information for teens and other young workers about employment discrimination.

Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes. The report from the effort is available at

Finally, EEOC plans to improve coordination with the Department of Labor’s Office of Federal Contract Compliance Programs, which enforces the prohibition of religious discrimination in employment by federal contractors and subcontractors. EEOC and OFCCP will work together to develop joint outreach and education efforts concerning discrimination based on religion.

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Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.







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EEOC Spotlights Diversity in Tech

A unusual forum held in the nation’s capital last week signals growing regulatory interest in the technology industry’s hiring and promotion practices.

ThinkstockPhotos-524374920The Equal Employment Opportunity Commission held the May 18 meeting about diversity in the industry as it released a report confirming what everyone already knows: tech is mostly white, male and young.

Does the hearing suggest the EEOC may soon come down on tech employers with formal guidance or even enforcement action? Labor lawyers say no — at least for now.

“I think the EEOC’s goal is to keep the issue in the spotlight,” says Erin M. Connell, a partner and employment lawyer at Orrick, Herrington & Sutcliffe in San Francisco who testified at the forum.

The effort continues a campaign by civil rights leader Rev. Jesse Jackson to pressure tech companies to become more diverse — and transparent — in employment, she notes.

Industry leaders “are hitting this at all levels,” says Connell, who counts many technology companies as clients. “They want to improve their numbers — because of the public pressure, because of the moral imperative … and because there’s a business case for diversity.”

Research has shown that “companies with higher diversity have better business results,” Connell says. This is particularly true when they serve — as tech companies do — a diverse population of customers.

The EEOC report looked at diversity data for the industry nationally as well as in Silicon Valley. It finds that whites account for 69 percent of the U.S. tech workforce, compared to 63 percent in all private employment. Among executives and managers in tech, 83 percent are white.

All employees Executives and managers
Tech All industries Tech All industries
White 69% 63% 83% 87%
Asian 14% 6% 11% 5%
Hispanic 8% 14% 3% 4%
Black 7% 14% 2% 3%
Other 2% 3% 1% 1%
Men 64% 52% 80% 71%
Women 36% 48% 20% 29%
Source: EEOC

Asian Americans also are overrepresented, compared to their share of all private employment. About 14 percent of tech employees, and 11 percent of tech managers and executives, are Asian American. That compares to 6 percent of workers across all industries.

Hispanic and black workers are, as a result, underrepresented in tech, often dramatically. And so are women: They account for 36 percent of all tech workers and 20 percent of executives and managers in tech, compared to nearly half of all jobs in private industry.

Though the report did not break down workers by age, another panelist at last week’s forum offered a scorching appraisal of the role age bias plays in the industry.

“Job postings declaring a preference for new or recent graduates are common, and some companies have actually specified which graduating class they are seeking,” said Laurie McCann, a senior attorney with the AARP Foundation, according to an EEOC news release.

Panelists didn’t necessarily agree about the best strategy for the industry to diversify. Some who testified put an emphasis on reform of industry hiring and funding practices. A cloistered world of CEOs and venture capitalists who look and think like each other perpetuates the problem, some argued. Greater emphasis on techniques to minimize unconscious hiring bias could help, they said.

Connell and others argued that improved educational opportunities are key, including industry-sponsored tech boot camps for girls and minority youth. Closing the gap in employment requires enlarging the pipeline of young people interested in the industry, she says.

In any case, Connell says she sees no sign that the EEOC plans to do more than nudge the industry to improve.

“It’s never off the table — I don’t want to give any false comfort there,” Connell says. But “I did not get the sense that any enforcement mechanisms are on the horizon.”

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Supreme Court Deals a Blow to the EEOC

The upshot of today’s U.S. Supreme Court unanimous ruling in favor of a trucking company in CRST Van Expedited Inc. v. EEOC is that a company can still be considered the prevailing party in a court case — and thus be eligible for reimbursement of its legal fees by the other party — even if it doesn’t win a favorable judgment on the merits of its argument.

CRST, a trucking company, had been awarded a record $4.7 million in legal fees against the Equal Employment Opportunity Commission by a trial court after a class action brought against the company by the EEOC on behalf of 154 female drivers was found to have been without merit. The EEOC’s suit had alleged that CRST allowed “severe and pervasive” sexual harassment against female drivers in its driver-training program. The case was later dismissed by the court because it found that the EEOC had failed to show a pattern or practice of discrimination, nor did it fully investigate the claims, find reasonable cause and attempt reconciliation prior to filing suit.

However, the 8th Circuit Court of Appeals vacated the $4.7 million award because the claims were dismissed without ruling on their merit and thus CRST was ineligible per Title VII of the 1964 Civil Rights Act, which grants attorney fee awards to “prevailing” defendants who can show the EEOC’s position was “unreasonable or frivolous.”

Writing for the court, Justice Anthony Kennedy said there was no indication that Congress had intended “that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on their merits.”

“It would make little sense if Congress’ policy of ‘sparing defendants from the cost of frivolous litigation’ depended on the distinction between merits-based and non-merits-based frivolity.”

The ruling sends the case back to the lower court for further review.

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Sieving Through the EEOC’s Data

Yesterday, the U.S. Equal Employment Opportunity Commission released its breakdown of workplace-discrimination charges that the agency received in fiscal year 2015 (Oct. 1, 2014, through Sept. 30, 2015)—and, to no one’s surprise, retaliation charges topped the list, representing 44.5 percent of all charges.

ThinkstockPhotos-177129299What is somewhat notable about the number of retaliation charges, however, is the fact that it climbed 5 percent from a year earlier. (Only disability charges, ranked third on the list after race, climbed more, at 6 percent.)

Thomas B. Lewis, a shareholder with Stevens & Lee law firm in Lawrenceville, N.J., is among the ranks of those not surprised by the number of retaliation claims being filed.

“In my view,” Lewis says, “retaliation is the most subjective charge that can be filed, because employees have different definitions of what retaliation means. Oftentimes, if employees haven’t been given a raise or given a promotion, they’re going to believe they’re being retaliated against… . It all comes down to what the employee believes is happening.”

Lewis adds that the 5 percent jump from the year before is significant. “There are retaliation claims out there in which employees believe they are being retaliated against just by the way the manager looks at them.”

Of the charges on the EEOC’s list, he adds, retaliation claims are extremely difficult to prove, both for the company and the employee.

We also probably shouldn’t overlook the fact that 10 percentage points separate retaliation claims from the next nearest category of charges: race. That’s a pretty noticeable gap between No. 1 and No. 2.

In its release, the EEOC reports that it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination through voluntary resolutions and litigation. However, as might be expected, most of the charges were resolved through mediation.

The agency, in fact, filed 142 merits lawsuits last year. Sure, that was an increase of nine from a year earlier, but still represents only a small portion of the 89,385 claims filed. “For a national organization covering all 50 states and trying to protect the rights of employees from all forms of discrimination,” Lewis said, “it’s [noteworthy] that so few discrimination claims actually resulted in the EEOC taking a position and advocating that position on behalf of employees.”

In case you’re wondering, the majority of the lawsuits filed alleged violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

Of course, if you’re an employer, it’s hard to find comfort in the number of claims being filed these days, especially the increase in retaliation claims. But for anyone who finds himself or herself on the receiving end of one or more claims, Lewis’ advice is to do your best to try to resolve them amicably. And if you can’t? Then try to resolve them through mediation, an approach, Lewis says, the EEOC will often push for.

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EEOC Wants Pay Data From Employers

Under a new proposal from the Equal Employment Opportunity Commission, all employers with more than 100 workers will be required to furnish pay data to the federal government as part of their Employer Information Report (EEO-1), beginning with the September 2017 report. The objective, says the EEOC, is to make it easier for the government to spot potential cases of pay discrimination and to assist employers in promoting equal pay in their workplaces.

The proposal will be announced today in conjunction with a White House ceremony commemorating the seventh anniversary of the Lily Ledbetter Fair Pay Act.

“More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans,” said EEOC Chair Jenny R. Yang in a statement. “Collecting pay data is a significant step forward in addressing discriminatory pay practices.”

“We can’t know what we don’t know,” said Secretary of Labor Thomas E. Perez. “We can’t deliver on the promise of equal pay unless we have the best, most comprehensive information about what people earn.”

The collected pay data will help employers evaluate their own pay practices to prevent pay discrimination in their workplaces while giving the Labor Dept. “a more powerful tool” to do its enforcement work, said Perez.

The EEOC proposal is in response to a task force set up by President Obama, which recommended new data-collection requirements to combat pay discrimination in the workplace.

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Avoiding Legal ‘Hot Spots’ in 2016

The Equal Employment Opportunity Commission’s Fiscal Year 2015 was another year of blockbuster decisions that significantly changed the landscape of EEOC-initiated litigation.

That’s according to Seyfarth Shaw, which has just released its annual report on EEOC legal activities and court rulings, entitled EEOC-Initiated Litigation: Case Law Developments In 2015 And Trends To Watch For In 2016.

Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year’s report compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2015.

Notably, FY2015 saw the EEOC nearing the end of its 2013-2016 Strategic Enforcement Plan. This year, the report has been arranged in to four main parts:

  • Part I of the book is structured as a “Corporate Counsel’s Guide to EEOC Litigation: Developments in FY2015.” In this section, the authors address the important developments in FY2015 as they relate to each stage of an EEOC enforcement action, from the filing of a charge of discrimination through settlement or a determination on the merits. The Guide includes a special section devoted to the pivotal Supreme Court ruling in Mach Mining, LLC v. EEOC, which arguably changed the game with respect to the conciliation phase, a crucial phase of any EEOC matter.
  •  Part II provides a broad overview of the substantive theories that the EEOC has focused on in FY2015, paying particular attention to how those theories relate to the enforcement priorities set out in the SEP. Again this year, the authors have analyzed the EEOC filings in FY2015 by statute and by discrimination type under Title VII. This year, the report takes a closer look at those trends as they relate to particular industries, aka the hot spots. The “Industry-By-Industry” section collects the number and types of filings that affect particular industries, and analyzes what this reveals about what particular industries must keep top of mind going into 2016. In FY2015, the breakdown of filings by industry was Hospitality (34); Healthcare (31); Business Services (25); Manufacturing (20); Retail (19); and Construction and Natural Resources (14).
  •  Part III examines important legislative and political developments, and takes a look at what may be on the horizon for EEOC litigation. The EEOC has increasingly focused its energies on the strategic use of large, high-profile “systemic” cases to drive its mission. These are cases that address policies or patterns or practices that have a broad impact on a region, industry or entire classes of employees or job applicants.
  •  Part IV contains every significant court decision that came down in 2015 regarding EEOC-initiated litigation. The decisions are categorized according to subject matter so as to provide practitioners with an easy reference manual for those decisions.

The full report is available at Seyfarth’s Workplace Class Action Blog.

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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,, 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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