Category Archives: EEOC

Speak Up Now on EEOC’s Strategic Enforcement Plan

Just a brief note to inform or remind anyone in need of either that the U.S. Equal Employment Opportunity Commission is open to your thoughts on its Strategic Enforcement Plan. But that open window is fast closing.

A public meeting was held last Wednesday — July 18 — in Washington to take in comments from academicians, civil-rights representatives, business and federal-sector communities, as well as former EEOC leaders and current employees about the agency’s SEP, which — by terms of the agency’s overriding Strategic Plan — must be in place by Oct. 1.

In its release about the public meeting, the EEOC states that it will “hold open the … meeting record for 15 days [by my calculation of business days, that’s through Aug. 8, but I’ll let you know if that needs revising], and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting.” (Here are the minutes and testimonials from that meeting.)

According to the release, “participants noted the importance of the EEOC continuing to use systemic investigations and litigation to target specific issues and practices where government enforcement will have the greatest impact.”

In the words of EEOC Chair Jacqualine Berrien, “We welcome the views of interested members of the public as we consider how to better leverage the EEOC’s resources to improve enforcement, outreach and customer service. An open strategic planning process ensures that the commission is prepared for 21st-century challenges and also honors the spirit of open government.”

You can send your comments to Commission Meeting, EEOC Executive Officer, 131 M Street, N.W., Washington, DC, 20507, or email them to Commissionmeetingcomments@eeoc.gov.

Speak now or forever hold your peace.

 

Is the EEOC vs. The Picture People Ruling Part of Something Bigger?

I’m getting interesting feedback from attorneys close to the recently-decided EEOC vs. The Picture People case, suggesting the 10th Circuit Court of Appeals’ decision in favor of the national retail portrait studio chain marks a new wind blowing in from the federal courts — one that is increasingly critical of the U.S. Equal Employment Opportunity Commission.

The ruling, issued July 10, denies the EEOC’s appeal of a 2011 ruling by the U.S. District Court for the District of Colorado. That ruling granted summary judgment for Picture People on the grounds that its requirement that studio “performers” be strong in verbal-communication skills did not discriminate against a deaf worker.

In a nutshell, Picture People hired Jessica Chrysler in 2007 to work as a photographer in one of the company’s Littleton, Colo., studios, knowing she was deaf. Although she performed a number of her duties, she was later moved into the lab because of the difficulties she had communicating with customers by writing notes. (Though the company initially tried her out this way, it found the note writing was cumbersome and awkward given the 20-minute duration of each portrait sitting.) Picture People eventually cut her hours and she eventually left her job.

The EEOC sued, claiming the company did not do enough to accommodate her and the District Court sided with the company, holding that oral communication was an essential function of the performer job. The appeals court upheld that. For a whole lot more on this case than I could possibly blog about, here is a piece written for HREOnline by Merrily S. Archer of EEO Solutions in Denver, the attorney representing Picture People, and here is a summary of the District Court decision  as well as a summary of this latest Appeals Court ruling from a blog by Seyfarth Shaw partner Gerald L. Maatman Jr.

Although the EEOC press release announcing its lawsuit in October, 2009, was recently taken down from the agency’s website, my printed copy offers a much different account, saying “managers picked on Chrysler, forced her to work in the back of the store away from the public, and ultimately, eliminated her work hours entirely.” It also claims she was retaliated against for complaining. “Employers all too frequently underestimate the ability of deaf employees to serve in a customer-service capacity,” EEOC Phoenix Regional Attorney Mary Jo O’Neill says in that release.

On the contrary, Archer says, “this case is huge, because it demonstrates just how far the EEOC will go to substitute its judgment for our employers’ regarding what constitutes minimally effective job performance. As I laid out in my response brief,” she says, “Congress was very clear when it passed the Americans with Disabilities Act that an employer would never be required to fundamentally alter the essential functions of a job to accommodate a disabled employee.

“When Bush (41) signed the ADA into law on July 26, 1990, he talked about the careful balances that Congress struck between the disabled and employer communities,” says Archer. “This decision helps restore that balance from the weight of the EEOC’s aggressive ADA interpretations and enforcement.”

What’s even more interesting, says Maatman, chair of his firm’s class-action defense group, is that this decision is actually “one in a series of cases in which federal judges have, in essence, rejected the EEOC lawsuits for having [little to no] evidence to back them up.” He lists these other recent decisions against the EEOC on his blog as illustration:

* EEOC vs. Cintas Corp., 2011 U.S. Dist. LEXIS 86228 (E.D. Mich. Aug. 4, 2011) (ordering the EEOC to pay defendant $2,638,443.93 in attorneys’ fees and costs),
* EEOC vs. Tricore Ref. Labs., 2011 U.S. Dist. LEXIS 151417 (D. N.M. Oct. 26, 2011) (ordering the EEOC to pay defendant $140,571.62 in attorneys’’ fees),
EEOC vs. CRST Van Expedited Inc., 2010 U.S. Dist. LEXIS 11125 (N.D. Iowa Feb. 9, 2010) (ordering the EEOC to pay defendant $4,467,442.90 in attorneys’ fees),
EEOC vs. CRST Van Expedited Inc., 679 F.3d 657, 698 (8th Cir. Iowa 2012) (reversing and remanding the district court’s award of $4,467,442.90 in attorneys’ fees).

He’s telling his CHRO clients to make sure they discuss this new atmosphere in the judiciary with their legal counsel. “Knowing the EEOC has been sanctioned around the nation is one of a number of factors upon which you should [plot your defense, should you be the subject of an EEOC lawsuit].”

For the record, P. David Lopez, general counsel for the EEOC, says his agency “does not file unsubstantiated claims [and] we do not think there is a new trend in the federal judicial system finding against the EEOC due to lack of evidence.”

Like I said back at the top of this monolithic blog post, interesting feedback.

Federal Judge ‘Fry’ed Over Retailer’s Behavior

I don’t personally know U.S. District Court Judge Robert Lasnik, of course, but I can make a pretty reasonable guess that when he decides to make his next home-electronics purchase, it won’t be at Fry’s Electronics.

The San Jose, Calif.-based retail chain is being sued by the EEOC, which alleges an assistant store manager at one of its locations sexually harassed a store employee  and that a supervisor was fired in retaliation after he complained to upper management about the store manager’s behavior. The trial is set for November, but in the meantime Fry’s has been sanctioned twice by Judge Lasnik for what appears to be some pretty outrageous behavior.

In the latest sanction, announced earlier this month, Lasnik ordered the retailer to pay a $100,000 penalty for intentionally withholding evidence, raising a “fallacious” argument and demonstrating a “disturbing lack of candor to the tribunal.” “The Court finds that defendant’s conduct in this respect was unfair, unwarranted, unprincipled and unacceptable,” Lasnik said in announcing the sanctions. “Defendant has deliberately engaged in deceptive practices that undermine the integrity and orderly administration of these proceedings.”

In May, the court sanctioned Fry’s for willfully destroying the hard drives where relevant information would have been stored and ordered that the jury be instructed to make an “adverse inference” on one of Fry’s defenses.

In the latest sanction, the court found that the retailer withheld evidence of similar allegations of sexual harassment against the same assistant store manager by a different employee in 2001. Although this evidence had been requested by the plaintiffs, Fry’s withheld it until the end of May, just a few weeks before a related arbitration hearing held on this matter last month.

“As trial attorneys, we all expect zealous advocacy from the other side, but we also expect all parties to a lawsuit to play fair,” said EEOC Supervisory Trial Attorney John Stanley in an EEOC statement announcing the sanction. “Violating discovery rules and orders of the court drags our profession down and does nothing to further the cause of justice.”

Fry’s Electronics is being represented by the Jackson Lewis law firm, which did not respond to requests for comment.

All Eyes on EEOC’s Enforcement Guidance

To mix a couple metaphors, the fallout from today’s updated enforcement guidance from the U.S. Equal Employment Opportunity Commission — specific to employers’ use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 — has just left the gate.

The EEOC voted 4-1 today to approve the guidance document and also issued a question-and-answer document about it. Both documents can be found here.

“We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien in announcing the vote. “The new guidance clarifies and updates the EEOC’s long-standing policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other agency stakeholders.”

The guidance appears to have many supporters, including the Leadership Conference on Civil and Human Rights. In a letter to the EEOC prior to the vote, the Conference, joined by 54 other organizations, said that “due in part to racial profiling and discriminatory sentencing schemes, racial and ethnic disparities persist at all stages of the criminal justice system. … These inequities in the criminal justice system only magnify the discriminatory barriers already experienced by minorities and low-income individuals living in the United States.” (The link includes the full letter if you scroll down.)

I’m still waiting for a flood of legal alerts about today’s decision to balance out the applause and kudos. I’m sure they’ll be coming. In the meantime, advice issued Thursday by White Plains, N.Y.-based employment law firm Jackson Lewis gets to the heart of what employers might expect and should be doing in light of the new guidance.

“It is expected that the EEOC’s new guidance will substantially modify existing EEOC guidance on criminal background checks, which has been in existence since 1987,” the Jackson Lewis post reads. “Employers seeking to avoid Title VII litigation risks anticipated from the new guidelines may have to reconsider and refine their use of criminal background checks in making employment decisions, and individuals posing increased risk to co-workers, customers and the public, and to employers, may be hired or retained.

“Employers should review and modify, as necessary, their current criminal background-check practices once the new guidance is made known,” it reads.

That’s today, folks. Let the reviewing begin.

 

 

 

 

Concern Mounts over Expected EEOC Guidances

With the timing of their actual issuance still hanging in the balance, two widely anticipated background-check guidance documents from the U.S. Equal Employment Opportunity Commission are fanning some major flames.

Just last week, the U.S. Chamber of Commerce sent a letter to the Office of Management and Budget saying the EEOC “is now preparing to approve” the two guidance documents — one pertaining to credit-history information and the other to criminal-history information — “without making them available for public comments and without seeking review by the OMB.”

The letter strongly recommends the OMB be given a chance to review them, as it does other complex or controversial EEOC guidance documents. It also notes that, while the EEOC has held public meetings on the two topics at hand, the guidances themselves have not been addressed in a public notice or been afforded public comments in and of itself.

Here is a brief report from the Society for Human Resource Management about the letter, which includes concerns that the documents “will remove or significantly limit the use of two important tools that employers use in hiring and related decisions.”

Here is what we posted on HREOnline back in August 2011 after the EEOC held hearings on the role arrest and conviction records should and shouldn’t play in the hiring process. That story, by Dave Shadovitz, is chock-full of comments, some in favor of addressing the negative consequences criminal records have on employment opportunities and some stressing the need to tread ever-so lightly on employers.

I found this alert, posted on the Squire Sanders website just Monday, illustrating that latter concern quite well, including fears the new guidance “will significantly curtail the practice of checking a job candidate’s criminal or credit history, placing the burden on the employer to demonstrate a legitimate business need.” The alert also urges employers to “take this opportunity to ensure that their background-check practices are compliant with the Fair Credit Reporting Act and with state-specific laws and restrictions.”

I did reach out to the EEOC as well and got this note back from Christine Saah Nazer, acting director of communications: “I can tell you that we did receive the letter from the Chamber. The fact is, the Commission has held public meetings on employer use of credt and criminal-background checks and has solicited input from all stakeholder perspectives, and will continue to do so as we examine these issues. I have no information about any new guidance.”

I did not take her last sentence to mean this was all much ado about nothing.

 

The EEOC’s “Worrisome” Four-Year Plan

Correction added:

The Equal Employment Opportunity Commission recently released its 2012-2016 Strategic Plan and many management attorneys say it’s cause for some real concern. Of course, these folks are paid big bucks to, in part, be concerned about anything coming out of the EEOC. Nevertheless, considering that this particular document offers a roadmap as to where the EEOC plans to focus its resources during the next four years, HR leaders should definitely be paying attention.

Christopher DeGroff, cochair of Seyfarth Shaw’s complex discrimination litigation practice group, says the latest Plan would, among other things, combine the EEOC’s investigation and litigation arms, a move he says would result in an “integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation stage of the EEOC’s work from its litigation stage.” CORRECTION: The original post suggested this quote was from the EEOC’s actual Plan. The quote is actually from DeGroff himself. The EEOC’s 2012-2016 Strategic Plan does not explicitly say anything about removing any boundaries between the investigation/conciliation and litigation stages. By doing this, the agency will essentially be erasing whatever line once existed between the two, with the result that investigations will now most likely serve as “launching pads for future litigation,” DeGroff told me in a recent interview. This flies in the face of what the EEOC was originally intended to do, he said, which was to “allow employers to look at policies and issues [that may be discriminatory] and informally resolve them before litigation.”

Another element of the Plan that concerns DeGroff is its emphasis on combatting systemic discrimination. In particular, the plan notes that the EEOC will “establish target percentages that will increase year over year to ensure that a [to-be-determined percentage] of the agency’s litigation docket are systemic cases” by the end of 2016. This is essentially establishing a quota for litigating systemic discrimination cases, according to DeGroff, and the results could be profound. “Cases of alleged systemic discrimination are very high stakes, they can sometimes be nationwide, they’re very expensive for employers, and I would not want to see the EEOC bringing these types of cases to meet some sort of internal metric,” he said. (You can read more from DeGroff and his colleagues about the EEOC and other legal matters here.)

I’m waiting to get the EEOC’s response to these and other concerns raised by DeGroff and other attorneys for a story I’m writing that will appear on our website shortly.

 

Bias Charges at All-Time High

It’s probably not too much of a surprise — due to both the economy and a more aggressive enforcement atmosphere — that the U.S. Equal Employment Opportunity Commission reports that private-sector bias charges hit an all-time high in fiscal year 2011.

The EEOC reports that it received a record 99,947 claims of employment discrimination, with the top five being:

Retaliation: 37,334

Race Discrimination: 35,395

Sex Discrimination: 28,534

Disability Discrimination: 25,742

Age Discrimination: 23,465

Employment attorneys say they always expect more claims in tough economic times — since there are plenty of laid-off workers struggling to find new jobs with little else to do than think about suing their former employers for real or imagined offenses.

Last year, we reported on HREOnline™ that the EEOC received 99,922 job-bias charges — which then was the highest number in the agency’s history.

The agency also reported that it obtained $455.6 million for complainants through administrative programs and litigation in fiscal 2011, and for the second year in a row, resolved more charges than it took  in — decreasing its inventory for the first time since 2002.

As for the agency’s enforcement efforts, some attorneys are suggesting that the EEOC goes too far, too fast at times — and may try to stampede companies into admitting to violations without having actual proof of any violations. See our story on a recent case, where the EEOC was ordered to pay $2.6 million in legal fees to an employer it sued.

That story and this bylined article by a former EEOC attorney also offer some advice to HR leaders on what to do when faced with inquiries from the agency.

 

Balancing Employment Rights with Freedom of Religion

In a U.S. Supreme Court decision, handed down today, the justices unanimously ruled that churches and religious schools cannot be sued for employment discrimination by their “ministers.”

This probably has little widespread importance, but I thought I would share it anyway. The case is Hosanna Tabor vs EEOC, (PDF) and concerns a religious-school teacher, Cheryl Perich, who was fired by the Hosanna-Tabor Evangelical Lutheran Church and School in Missouri after she had taken a disability leave for narcolepsy.

Perich, who was a “commissioned minister” as opposed to a lay teacher at the school, wanted to return to the school in February 2005 after missing the 2004-2005 school year, according to the Supreme Court opinion authored by Chief Justice John Roberts. She was told her position had been filled by a lay teacher.

Nonetheless, Perich reported to work in February and refused to leave, threatening to sue the school, which she ultimately did — joining a lawsuit initially filed by the U.S. Equal Employment Opportunity Commission.

The suit was dismissed by the district court on a summary judgment, but that decision was reversed by the 6th U.S. Circuit Court of Appeals. The High Court today reversed again, dismissing the complaint:

The EEOC and Perich contend that religious organizations can defend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need — and no basis — for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

Whether this will be the end of the lawsuit is unclear. The opinion notes that “The Court expresses no view on whether the exception bars other types of suits.”

 

High-School Diploma Requirement May Violate ADA

Wow! The U.S. Equal Employment Opportunity Commission has added yet another wrinkle to the hiring process and has taken us that much further away from “the way it used to be.”

In this informal letter, issued Nov. 17, the EEOC has warned that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

“Under the ADA,” the letter states, “a qualification standard, test, or other selection criterion, such as a high-school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job-related for the position in question and consistent with business necessity.

“A qualification standard,” it says, “is job-related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

This legal alert from Ballard Spahr points out that “the informal letter, although not an official opinion, demonstrates that the hiring process can present a minefield of obstacles for employers.”

No kidding. I can only imagine what the job applications I filled out “back in the day” would look like if all discriminatory “mines” were ommitted. Name, address and Social Security number perhaps?

At least this would cut down on all the frantic phone calls to parents from teens and 20-somethings sitting in HR offices: “Hey, what month and year did I graduate high school again???” Oh, you didn’t get those? I did.

Compliance Help on the Rise

Funny, in the past two days, I’ve come across two new tools in the “HR space marketplace” designed to help employers comply with ever-changing legislation and regulations where the government seems to be leaving an ever-widening void.

Just today, I found a Top 10 Environmental and Safety Concerns list from KPA. (This link will take you to several other links about it, including a webinar you might want to check out.) The list helps managers in the auto industry, specifically dealerships and service centers, know what the latest hot buttons are for compliance and worker safety under the Occupational Safety and Health Administration.

“Until now,” this release states, “there was only one way for [these managers] to know what the hot buttons were … . They had to sift through OSHA’s annual publication of citations for the entire transportation industry. From that list, they could try to decipher which citations were most likely to happen at their facility.

“The problem is that the transportation industry is a general index, and there are big differences between safety concerns at a dealership and safety concerns at a shipyard, which means that OSHA’s list is too general to be helpful for most dealerships and service centers.”

Gosh, you’d think someone at OSHA would have been first with this Top 10 list, in the name of proactive governmental compliance guidance.

Then, just yesterday, in researching a piece on Equal Employment Opportunity Commission compliance help — and a perceived growing lack thereof by some employment attorneys — one of those attorneys pointed me to this tool at Biddle Consulting called the Adverse Impact Toolkit, which can audit and analyze all of a company’s practices—hiring, compensation, promotion, etc.—to determine risks that could spark or enflame an EEOC investigation.

Although all agencies do provide education and guidance, the list of regulations governing every industry is only getting more complex and hard to navigate. And, if we’re to believe a growing chorus of employment attorneys, governmental compliance help before a lawsuit or citation is filed is growing scarce.

I suspect I’ll be seeing a lot more of these kinds of tools hitting the market in the not-too-distant future.