As we observed (here), the heated tone of the recent presidential election poses unprecedented challenges for employers attempting to manage employee interactions in the workplace, especially when issues related to immigration and national origin inevitably come up. Right on cue, on November 21, 2016, the EEOC, emphasizing the rising numbers of immigrant workers in many of the United … Continue Reading
Category Archives: Employment Discrimination Harassment & Retaliation
Subscribe to Employment Discrimination Harassment & Retaliation RSS FeedManaging Employee Interactions in the Wake of the Trump Election
You may have been able to keep politics away from the annual Thanksgiving gathering of relatives with diverging viewpoints, but the workplace requires daily interaction. What’s an employer to do with emotions still running high from a divisive election? Employers should be vigilant and insist that all employees act with professionalism and respect. Employers should ensure that each employee, regardless … Continue Reading
The Age of “Big Data”: How Your Electronic Applicant Searches May Be Complicating Your Talent Search
How do you hire only the “best” employees? How does any employer find the time to “vet” the hundreds or even thousands of job seekers applying for positions? A number of employers have turned to “big data” – the use of various algorithms to quickly analyze competing employees for coveted positions. These algorithms contain series of predictive data variables that … Continue Reading
Gig and Technology Sectors Targeted in EEOC Enforcement Plan
The EEOC is targeting the “21st-century workplace” by focusing on gig economies and the technology sector in its new Strategic Enforcement Plan. The new Enforcement Plan also targets what the EEOC calls “complex employment relationships,” such as temporary workers, staffing agencies and independent contractors. Employers should closely evaluate issues surrounding these 21st-century workplace norms and identify … Continue Reading
Takeaways from the EEOC’s Loss of Noteworthy Transgender Rights Case
Since the EEOC first ruled in 2012 that discrimination based on transgender status constitutes sex discrimination in violation of Title VII, the EEOC has continued to expand protections for transgender employees, finding that intentional misuse of a transgender employee’s new name and pronoun may represent sex-based harassment and/or discrimination (decision available here); that an employer’s failure to revise its … Continue Reading
Employers Take Note, EEOC Issues Final Retaliation Guidance
Employers should review their policies concerning retaliation and Americans with Disabilities Act (ADA) interference in light of the new Enforcement Guidance on Retaliation published by the EEOC this week. As retaliation is now the most frequently alleged basis of discrimination, employers should take note. … Continue Reading
EEOC Announces Launch of Online Charge Status System
Employers can now electronically monitor and respond to EEOC charges of discrimination via a secure online portal. This means employers can receive updates and transmit information to the EEOC much more quickly than in the past. The EEOC’s Online Charge Status System is now available and can be accessed at http://www.eeoc.gov/employees/charge_status.cfm. This system also allows charging parties to electronically … Continue Reading
EEOC Tells Employers To Reconsider Their Position On Position Statements
Employers should be specific in position statements they submit to the EEOC, and must recognize that those position statements and supporting documents will now routinely be sent to the charging party for further response, under new guidelines and procedures issued recently by the EEOC.… Continue Reading
EEOC Files First Sex Orientation Discrimination Lawsuits
For the first time since announcing last year that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964, the EEOC has filed two sex discrimination cases against private employers based on sexual orientation.… Continue Reading
Eleventh Circuit Announces New Standard for Employers to Win Cases on Summary Judgment
Employers in Florida, Georgia, and Alabama should adjust their analysis of discrimination claims in light of a recent court decision that changes the legal standard for employers seeking early dismissal of discrimination cases. Previously, employee claims based on circumstantial evidence were evaluated under a burden-shifting framework. An employer could win summary judgment before trial by showing that a) it had … Continue Reading
Sleeping on the Job Not Enough to Bar Transgender Bias Suit
A jury should decide whether a transgender employee caught sleeping on the job in a customer’s car was unlawfully terminated because of her transgender status, the Eleventh Circuit Court of Appeals has ruled. Although the employer had initially persuaded the trial court to rule in its favor, a three-judge panel from the Eleventh Circuit (covering Florida, Georgia and Alabama) reversed … Continue Reading
Employers Are Put On Notice: EEOC Issues Proposed Retaliation Guidance
On January 21, 2016, the U.S. Equal Employment Opportunity Commission (“Commission” or “EEOC”) released proposed guidance to update and clarify its position on retaliation and related issues under EEOC-enforced laws, including these key points: (1) retaliation must be the “but for” cause of an employer action to be unlawful; (2) a complaint may be oral or written to be protected … Continue Reading
Pay Data Required in Proposed New EEO-1 Reporting Form
Employers with 100 or more employees will be required to submit pay data by race, sex, ethnicity and job category under proposed new revisions to the EEO-1 reporting form. The changes were announced Friday by the EEOC on the 7th anniversary of the Lily Ledbetter Fair Pay Act, and published today in the Federal Register. The additional data will … Continue Reading
2015 L&E Developments
As we begin 2016, it is a good time to look back at 2015 labor and employment law developments that employers must keep in mind during the new year. 2015 was indeed a busy year.… Continue Reading
An Unsolved Problem? Claims of Post-Employment Retaliation by the (Formerly) Problem Employee
Most employers know that various employment laws prohibit retaliation against employees who engage in protected activity, such as those who complain of discrimination, report purportedly unlawful conduct, or support fellow employees’ charges of similar conduct. What fewer employers may realize is that legal prohibitions on retaliation may, in some circumstances, extend beyond employees’ actual employment. Some of the post-employment conduct … Continue Reading
EEOC: Sexual Orientation Discrimination Illegal Under Title VII
The EEOC has found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964. On July 15, 2015, the EEOC reversed the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected … Continue Reading
EEOC Encouraged to Address Social Media and “But-for” Causation in Revising Guidance on Retaliation
At a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace.… Continue Reading
Pregnancy Discrimination Prohibition To Be Included in Florida Civil Rights Act
In April 2014, the Florida Supreme Court held in Delva v. The Continental Group, Inc. that pregnancy discrimination was encompassed within “sex” discrimination as protected in the then-enacted version of the Florida Civil Rights Act (the “FCRA”), even though it was not explicitly mentioned in the FCRA. In response to this holding, the Florida legislature has now passed Senate Bill … Continue Reading
Second Circuit Confirms That Providing “Effective” Reasonable Accommodation Sufficient Under ADA and NYS Law
In Noll v. Int’l Bus. Machs. Corp., 13-cv-4096 (2d Cir May 21, 2015), the Second Circuit Court of Appeals addressed the extent to which, under the ADA and New York State law, an employee must be provided with the precise accommodation he or she requests and whether, if the employer offers a different type of accommodation, its failure to … Continue Reading
Supreme Court Rules Against Employer on Religious Accommodation Standard for Job Applicant
The U.S. Supreme Court has held that to prevail in a Title VII disparate-treatment (i.e., intentional discrimination) claim, a job applicant need only show that his need for a religious accommodation was a motivating factor in the employer’s decision. An applicant does not need to show that the employer had knowledge of his need for the religious accommodation. EEOC v. … Continue Reading
EEOC Has a Limited Duty to Conciliate, Supreme Court Rules
Before filing suit against an employer, the Equal Employment Opportunity Commission has a duty to notify the employer of the claim and give the employer an opportunity to discuss the matter. But the EEOC has no duty to engage in good faith negotiations with the employer, according to the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC (April … Continue Reading
Supreme Court Rules on, But Fails to Clarify, Pregnancy Discrimination Law
The Pregnancy Discrimination Act extends Title VII’s prohibition against sex discrimination to include pregnancy. It also says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” But what does this latter provision mean when … Continue Reading
EEOC Will Now Process Sexual Orientation Discrimination Claims
On February 3rd, the Equal Employment Opportunity Commission released an internal memorandum stating that the EEOC will now process and investigate claims of discrimination based on sexual orientation, transgender status, and gender identity. The EEOC will treat such claims as charges of sex discrimination under Title VII.… Continue Reading
New York Trial Court Provides Guidance on Application of Corrections Law Factors
It should come as no surprise to New York employers that making an employment decision based on an applicant or employee’s criminal background can be unlawful.See N.Y. Corr. Law § 752; see also N.Y. Exec. Law § 296 (15). Despite this general prohibition, there are two statutory carve outs which permit employers to make such a decision: (1) when … Continue Reading
