Employers who run background checks on prospective employees take note – applicants who sue prospective employers for Fair Credit Reporting Act violations for failure to provide notice in a stand-alone format may not be able to maintain a lawsuit unless they can show that they suffered an actual injury. As employers should know, the Fair Credit Reporting Act has specific … Continue Reading
Category Archives: Employment Discrimination Harassment & Retaliation
Subscribe to Employment Discrimination Harassment & Retaliation RSS FeedThe New Interview Taboo: Salary History Inquiries
Inquiries employers may make concerning job applicants have been under close scrutiny. Many states and cities already limit an employer’s ability to use or inquire about an applicant’s credit or criminal history. Now add salary history to the list of topics that may be off limits during an interview, depending on where your company operates. … Continue Reading
Gender Identity Discrimination – Prohibited or Not?
Still confused as to where the Trump administration stands on whether Title VII prohibits discrimination based on gender identity? Attorney General Jeff Sessions’ recent announcement should clarify that for you. So what’s an employer to do now that the Department of Justice has been instructed to take the position that Title VII does not bar gender identity discrimination but the … Continue Reading
R-E-S-P-E-C-T in Your Workplace
Are racial issues, religious differences, and gender norms creating tension in your workplace? Are the caustic exchanges so evident in news coverage today starting to crop up in the office? Are employees complaining of discriminatory treatment on social media? While it may feel like stepping into a hornet’s nest, employers cannot sit silently by and hope for the best. Employers … Continue Reading
Whistleblowing Increases with Increasing Visibility
While the current administration is taking steps to dismantle what it views as excessive regulation, one thing is clear: whistleblowers continue to blow the whistle, and ever more visibly so.… Continue Reading
Employees in Educational Programs: Expanded Options for Suits
Employers who are operating educational programs or activities – whether inside or outside educational institutions – take note: a recent court decision adds to a split in the federal appellate courts by allowing employees more than one avenue of relief for employment discrimination claims. … Continue Reading
Legislators Jump into Sexual Orientation Discrimination Ring
Employers take note: On the heels of the Seventh Circuit landmark and controversial ruling last week that Title VII does, in fact, prohibit sexual orientation discrimination in the workplace, a group of prominent Democratic U.S. Senators and representatives from New Jersey, Oregon, Rhode Island, and Wisconsin have jumped into the fray, attempting to use the decision to convince the courts … Continue Reading
Whistleblower Split Widens
Employers take heed: there is a further split in authority as to whether whistleblowers are protected under the Dodd-Frank Act if they only report securities-law violations internally, and not to the Securities and Exchange Commission. A recent decision from the Ninth Circuit Court of Appeals adds to the existing split among federal appellate courts as to who is entitled … Continue Reading
LGBT Rights Up in the Air
Changes that may impact LGBT rights in the workplace have employers spinning. This week’s news about the Trump administration’s rescission of federal guidance allowing transgender students to use bathrooms corresponding to their gender identity seems philosophically at odds with a White House statement last month in which the President said he would continue to enforce a prior executive order protecting … Continue Reading
What’s in a Pronoun? Liability for Employers
Political correctness in the workplace has become increasingly complex. Employers who have referred to transitioning employees with the wrong pronoun have found themselves in the crosshairs of the EEOC. But what about those employees who do not identify with either gender and prefer a gender neutral pronoun? Say, what?… Continue Reading
Medical Marijuana and the Workplace
With the growing list of states legalizing marijuana, are workplace drug policies up in smoke? As the new year begins, Arkansas, Florida and North Dakota join the growing list of states that have legalized medical marijuana. Currently, 28 states* and Washington, D.C., have legalized marijuana use for certain medicinal purposes, and eight states** and the District of Columbia have legalized … Continue Reading
EEOC Updates Guidance on National Origin Discrimination
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
Managing 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
