You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC announces record settlement in ADA case challenging rigid attendance policy

Last month I reported on the EEOC’s public meeting on leaves of absences as ADA reasonable accommodations. At the time, I recommended the following:

Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.

Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.

Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.

Today, the EEOC reported a record settlement in a disability discrimination class action lawsuit that underscores my points:

Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by EEOC…. The suit … said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans….

The EEOC charged that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

According to the EEOC, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” I could not agree more. If you are considering taking an adverse action against an employee whose medical leave has butted up against a rigid attendance or leave policy, please take 15 minutes and call your employment counsel first.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC holds public meeting on 21st century hiring discrimination … and misses the biggest issue

There is perhaps no issue more important to the topic of hiring in the 21st century than social media. Yet, yesterday the EEOC held a public meeting entitled, “Disparate Treatment in 21st Century Hiring Decisions,” and completely ignored this key issue.

In fact, it’s hard to find much of anything new or cutting edge presented by the EEOC at the meeting. Instead, the meeting provided a rehash of longstanding principles against hiring discrimination. Nevertheless, the advice provided by management-side attorney Grace Speights to employers to help avoid hiring discrimination is worth repeating and taking to heart:

1. Develop strong EEO policies, train managers on the policies and the law, and hold managers responsible for failing to follow the policies.
2. Increase HR’s participation and oversight in the hiring and promotion processes as a form of checks and balances to monitor compliance with company policies and legal requirements.
3. Implement diversity training for employees.
4. Identify and remove perceived barriers to hiring and promotion, such as by advertising open positions in sources that reach a more diverse applicant pool.
5. Conduct periodic self-analyses to determine whether current employment practices are tied to job requirements, job performance, and business necessity.
6. Foster training and mentoring programs that provide all workers the opportunity, experience, and information necessary to qualify for promotions.

If you want to learn more about the role of social media in the vetting and hiring of employees, and the impact the discrimination laws have on these practices, pick up a copy of HR and Social Media: Practical and Legal Guidance, available from Thompson Publishing in the coming weeks. And, if you find yourself at SHRM 2011 in Las Vegas next week, stop by Thompson's Booth (#1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC to explore disparate treatment in hiring

The EEOC has spent a lot of its time lately examining employers’ hiring practices. For example, it has held public meetings looking at whether certain neutral hiring practices—such as the use of credit, employment status, and criminal and arrest records—have a disparate impact based on race. It is also currently litigating a class action in federal court in Cleveland challenging an employer’s use of credit as a hiring criteria.

Next week, the EEOC will turn its attention from unintentional hiring discrimination to intentional hiring discrimination. It has announced that it will hold a public meeting entitled, Disparate Treatment in 21st Century Hiring Decisions. Little else is known about this meeting, including the specific hiring tactics and criteria the EEOC will examine. The use of “21st century,” however, suggests that the EEOC’s agenda may include current cutting-edge hiring practices, such as the use of social media by employers to vet potential candidates (a topic I’ve covered before).

I will have much more to say about this important topic after the EEOC publishes its agenda and speakers' commentary.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC and employers differ on the use of neutral maximum leave of absence policies

As I reported earlier this week, yesterday the EEOC held a public meeting on the use of leave as a reasonable accommodation. Opinions differed sharply on whether an employer can satisfy its obligations under the ADA by implementing a neutral leave of absence policy that caps a maximum allowable leave (for example, a policy that says, “Employees who do not return to work following a maximum of six months leave will be presumed to have resigned,” or “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return”).

John Hendrickson, an EEOC Regional Attorney who litigated this issue in the high-profile EEOC v. Sears Roebuck & Co. case (which resulted in a $6.2 million settlement), offered the following five observations on the EEOC’s view of these policies:

1. An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer’s duty of reasonable accommodation.
2. The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy.
3. Separating leave administration—like the administration of worker’s compensation benefits or disability benefits—from ADA administration is risky for employers.
4. Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers.
5. The Commission occupies a unique role in litigating these cases.

Management-side attorney Ellen McLaughlin argued the employer’s position:

One way employers attempt to control or manage the impact of employee leaves of absence on their business is to institute a neutral maximum leave of absence policy that sets a maximum duration for which an employee can be away from work…. The intent of these neutral leave programs is to provide employers with some level of control over their ability to manage their headcount and business operations. Employers know in advance how much time off an employee may take, and can track when an employee approaches that maximum in order to provide it an opportunity to begin planning coverage/replacement options sooner…. 

The case law is extremely undeveloped on the maximum leave issue, but what exists establishes that a universally applied maximum leave policy is not, per se, violative of the ADA…. In the midst of this confusion, the EEOC has begun aggressively litigating against employers with neutral maximum leave policies.

I echo Ellen’s sentiments that neutral leave policies provide employers the necessary flexibility to run their businesses in the face of leaves of uncertain duration. The EEOC needs to better consider the needs of the business community and provide greater guidance on this issue.

Employers, however, need to be practical and tread very lightly around these issues until the EEOC softens its position. The agency is aggressively pursuing businesses that enforce these neutral leave policies to the detriment of disabled employees. Unless you want to end up in the EEOC’s crosshairs, I recommend the following:

1. Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.
2. Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.
3. Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
4. Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.
5. You should document all costs associated with any extended unpaid leaves (modified schedules, added overtime, temporary hires, lost productivity, etc.) to help make your undue hardship argument, if needed.

Remembering “A, E, I, O, and You” will help you avoid the defense of a costly disability discrimination lawsuit.

EEOC to consider the use of leave as a reasonable accommodation

I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks:

• Has the ADA swallowed the FMLA for employee medical leaves?
• ADA may require leaves of absence beyond FMLA mandates

Later this week, the EEOC will hold a public meeting to discuss this very issue. According to the EEOC’s press release:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, June 8, at 9:30 a.m. (Eastern Time), … to examine the use of leave as a reasonable accommodation…. The Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations

Considering that the Agency’s agenda includes a discussion of “how to comply with the law and appropriately permit leave to employees,” I do not expect to hear any paradigm-shifting revelations. Instead, this meeting should merely highlight for employers the importance of considering an unpaid leave of absence as a reasonable accommodation, and the illegality of inflexible and hard-capped leave of absence policies.

Nevertheless, the EEOC is using these public meetings to highlight regulatory and enforcement issues it is prioritizing (e.g., the use of employment status and credit history as hiring criteria, and the plight of older workers). Because the EEOC appears to be targeting leaves of absence for heightened enforcement, employers should pay special attention to this issue. I will have a full summary of the EEOC’s public meeting later this week.

[Hat tip: Workplace Prof Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC: subpoenas or witch hunts?

The Witch: I’m not a witch! I’m not a witch!
Sir Bedevere: But you are dressed as one
The Witch: *They* dressed me up like this!
Crowd: We didn’t! We didn’t…
The Witch: And this isn’t my nose. It’s a false one.
Sir Bedevere: [lifts up her false nose] Well?
Peasant 1: Well, we did do the nose.
Sir Bedevere: The nose?
Peasant 1: And the hat, but she is a witch!
Crowd: Yeah! Burn her! Burn her!

   – Monty Python and the Holy Grail (1975)

In EEOC v. Konica Minolta Business Solutions USA., Inc. (7th Cir. 4/29/11) [pdf], the 7th Circuit blessed the EEOC’s use of its subpoena powers in single-employee cases to try to develop systemic discrimination claims against the charged employer. By defining the EEOC’s subpoena powers broadly, this court permits the agency to conduct nothing short of witch hunts with very little, if any, evidentiary support.

The facts of the case are simple. Elliot Thompson worked in one of Konica’s four Chicago facilities. Thompson filed a charge with EEOC alleging that Konica discriminated against him because of his race and fired him after he complained about it. The EEOC, in turn, issued a subpoena to Konica seeking information about its hiring practices at all four of its Chicago facilities. Konica refused to comply, arguing that the requested materials were irrelevant to Thompson’s specific charge.

The 7th Circuit agreed with the district court that the EEOC’s subpoena was not overly broad in relation to the underlying charge:

The Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination. Here, Thompson alleged both a specific instance and such a pattern of race discrimination…. The question … is whether information regarding Konica’s hiring practices will “cast light” on Thompson’s race discrimination complaint.

We have no trouble concluding that the information the EEOC is seeking meets that standard. The answer to the question whether Konica discriminates in hiring or in assigning employees to its various facilities will advance the agency’s investigation into possible discrimination against Thompson based on his race, as well as any more general case it might choose to bring….

Nothing in this record suggests that the EEOC has strayed so far from either Thompson’s charge or its broader mission that it has embarked on the proverbial fishing expedition. The Commission has a “realistic expectation rather than an idle hope” that the hiring materials it seeks will illuminate the facts and circumstances surrounding Thompson’s allegations of race discrimination…. [T]he EEOC limited its inquiry to the four Konica branches in the Chicago area and to sales personnel. We conclude that the information sought by the EEOC in this case is properly tailored to matters within its authority.

It should come as no surprise that the EEOC conducts investigations with blinders off. It is always on the lookout for patterns and practices of systemic discrimination. Every discrete charge of discrimination lodged by a single employee is an opportunity for the EEOC to look for its witch, even where she doesn’t exist. And, at least some courts are willing to indulge the EEOC’s efforts. Employers should not let their guards down and assume that the investigation of an employee’s charge is limited to that employee and that charge. If there are broader problems, the EEOC will find them, or paper you with subpoenas trying.

[Hat tip: Employer Law Report and Outten & Golden Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Nuisance value

$22,000 doesn’t buy you a whole lot in litigation land. It’s not enough to take a case through trial, or even to trial. Depending on the case, it might be enough to take some discovery. If your case has a lot of motion practice, it might not even get you any discovery at all. In litigation land, $22,000 is called cost-of-defense, or, better yet, nuisance value. For this reason, I question the EEOC’s decision to boast in a press release on its website that it has settled a retaliation lawsuit for that very number. I know that the EEOC serves a purpose higher than dollars and cents, but it doesn’t make any sense to publicly brag about your nuisance value settlement … unless you happen to be the employer bragging about how you hooked some naive plaintiff on a lowball settlement.

[Hat tip: LawMemo Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The 5 most interesting things about the ADAAA Regulations

Last Friday, the EEOC published its long-awaited (and hotly debated) regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA) [pdf]. The blawgosphere has lit up with extensive summaries. Instead of doing the same, I thought I’d share with my readers what strikes me as the five most interesting things I’ve found in these regulations.

     1. Broad Coverage. In case there is any doubt in anyone’s mind, the purpose of the ADAAA is to make it easier for employees seeking the ADA’s protection to establish a disability within its meaning. In other words, employers, the EEOC, and courts are supposed to interpret the definition of disability “broadly.” As a result, ADA cases will no longer focus whether an employee qualifies as disabled, but instead on the merits of the challenged employment decision. Notwithstanding the breadth of these amendments, groups such as the U.S. Chamber of Commerce and SHRM (registration required) are applauding the EEOC for the pro-business changes incorporated into the regulations.

    2. Individualized Assessments for Medical Conditions. The regulations abolish any notion that certain medical conditions will always qualify as disabilities. Instead, the regulations call for an “individualized assessment” of whether a certain condition “substantially limits a major life activity.” For many conditions, this assessment should be simple and straightforward. For example, deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia will usually, but not automatically, qualify as disabilities.

     3. Handling of Episodic Conditions and Ameliorative Effects. The current effects of a disability are not the only factors that one considers in determining whether a medical condition is substantially limiting. Impairments that are episodic or in remission—including cancer, epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia—qualify as disabilities if substantially limiting when active. Additionally, mitigating measures—those that eliminate or reduce the symptoms or impact of an impairment—do not factor into the “substantially limiting” calculus. These mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (except ordinary eyeglasses or contact lenses), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

     4. Most Adverse Action Claims Going Forward Will Be “Regarded As” Claims. The ADAAA does not change the statute’s three-pronged approach to defining disability:

• a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”)
• a record of a physical or mental impairment that substantially limited a major life activity (a “record of disability”)
• when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as” disabled).

What has changed, however, is the agency’s approach to how these definitions factor into claims brought by employees. There is no rule that an employee must use a particular prong when challenging an employer’s actions. However, because an employer is not required to provide a reasonable accommodation for a “regarded as” disability, an employee claiming a denial of a reasonable accommodation must bring the claim as an “actual disability” claim or a “record of” claim. While an employee can bring an adverse action claim under any of the three definition, the EEOC believes that they should be brought under the “regarded as” prong because of its ease of coverage.

     5. Coverage for Temporary or Short-Lived Impairments. The ADAAA substantially expanded the circumstances in which employers may be liable under the “regarded as” prong by removing the requirement that an employee prove that the perceived impairment substantially limits a major life activity. The only exception to the “regarded as” prong is for “transitory and minor” impairments. “Transitory and minor” is an affirmative defense that employers must prove. It is only a defense, however, to claims brought under the “regarded as” prong. It is not a defense to actual disabilities or a record of disability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC to review “significant regulations”; do you smell trouble?

According to the EEOC, it is “beginning a new, periodic retrospective review of its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed, to make the EEOC’s regulatory program more effective and/or less burdensome in achieving its regulatory objectives.” Huh? Cutting through the government-speak, I think the EEOC is trying to say that it is looking to rewrite its regulations. Given the current political tenor of this agency, does this concern you? It certainly concerns me.

Do you have suggestions for the EEOC on why a regulation should be modified, streamlined, expanded, or repealed; data on the costs and benefits of a regulation; or how the EEOC could better achieve a regulation’s objective? If so, I suggest you email them to:

Public.Comments.RegulatoryReview@eeoc.gov

You can be sure that 1) employee advocates will be submitting their thoughts, and 2) the agency has its own agenda to further. Employers, make your voice heard in what may be a significant re-writing of the EEOC’s interpretation of Title VII, the ADEA, and other civil rights laws.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Employee alcohol testing

Under the ADA, an employer is prohibited from making disability-related inquiries and requiring medical examinations of employees unless if the inquiries are job-related and consistent with business necessity. In September, the EEOC filed suit against Pittsburgh-based U.S. Steel, claiming that it violated these rules by requiring random alcohol testing of probationary employees.

According to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees, the ADA differentiates between drug testing and alcohol testing. The ADA does not regulate the drug testing of employees because drug tests do not qualify as medical examinations. Blood, urine, and breath analyses to check for alcohol use, however, are considered medical examinations regulated by the ADA. Employers are permitted to maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace. Employers are also permitted to conduct alcohol testing pursuant to such a rule if they have a reasonable belief that an employee may be under the influence of alcohol at work.

Random testing is just that, random. It is not tied to any reasonable belief about the employee’s on-the-job use of alcohol. I can make a very compelling argument that in any safety-sensitive position alcohol testing is job-related and consistent with business necessity. Nevertheless, and regardless of the circumstances, employers who intend to subject employees to alcohol testing should be mindful of these rules. Those that test without first consulting with employment counsel risk incurring the EEOC’s wrath.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? EEOC reports record charge filings for 2010

The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.

Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.

Here’s what the EEOC has to say about the cause of this record number of filings:

This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.

These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.

What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC is.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit weighs in on administrative exhaustion of EEOC charges

Before an employee can file a Title VII lawsuit, the employee must first file a timely administrative charge with the EEOC. As a general rule, an employee cannot bring claims in a lawsuit that were not included in the EEOC charge. However, because employees, and not attorneys, typically file EEOC charges, courts review them liberally, and typically will consider any claims that are reasonably related to or grow out of the factual allegations in the EEOC charge.

In Younis v. Pinnacle Airlines, Inc. (6th Cir. 6/30/10) [pdf], the 6th Circuit explains what it means for a claim to be reasonably related to or grow out of the factual allegations in the charge. In Younis, the employee alleged discrimination and harassment based on religion and national origin, in addition to retaliation. The 6th Circuit upheld the dismissal of the harassment and retaliation claims because the EEOC charge lacked any specific reference to those claims:

The problem in this case is that in his EEOC filing, Younis did not allege a claim of hostile work environment, and he cited only discrete acts of alleged discrimination, limited to three or four isolated comments by his peers that occurred over a three-year period. In order to establish a claim of hostile work environment, however, a plaintiff must present evidence of harassment that “unreasonably interfer[es] with [his] work performance and creat[es] an objectively intimidating, hostile, or offensive work environment.” … As a result, we have suggested in several unreported cases that the inclusion in an EEOC charge of a discrete act or acts, standing alone, is insufficient to establish a hostile-work-environment claim for purposes of exhaustion. We now hold that such evidence, cited in an EEOC charge to support a claim of disparate treatment, will not also support a subsequent, uncharged claim of hostile work environment “unless the allegations in the complaint can be reasonably inferred from the facts alleged in the charge.” …

Younis’s retaliation claim suffers from the same deficiency…. The EEOC form included a specific check-off box to indicate a charge of retaliation. Although Younis marked other boxes on the form evincing an intent to charge discrimination based on religion and national origin, he did not indicate that he was alleging retaliation. Moreover, there is nothing in the narrative portion of the EEOC charge that could be interpreted as claiming retaliation, nor is there any language that would have put the EEOC or the employer on notice that Younis was alleging retaliation by Pinnacle.

This ruling shows that courts give serous consideration to whether a plaintiff exhausted all claims with the EEOC. This exhaustion requirement furthers two key policies for employers:

1. It provides the employer information concerning the conduct about which the employee complains.
2. It affords the EEOC and the employer an opportunity to settle all disputes through conference, conciliation, and persuasion.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What employers need to know about EEOC investigations

You’ve just received notice from the EEOC (or its state equivalent, the OCRC, for example) that an employee has filed a charge of discrimination against you. What happens next is often confusing to businesses, and mistakes can have serious consequences in later lawsuits.

Let’s start with the basics – what happens when a charge has been filed against you?

1. The EEOC will notify you that a charge of discrimination has been filed against you. The charge packet will include the name and contact information of the investigator assigned to your case.

2. The charge will likely include a offer to submit the case to voluntary mediation. Mediation can be useful for two purposes – to see if you can resolve the charge early and cost-effectively, or to obtain early informal discovery from the charging party.

3. Absent mediation, the case will proceed to an investigation. During the investigation, you will be required to submit a written statement of position. This document is your chance to tell your side of the story. It is the most critical piece of the agency investigation. More on this in a bit.

4. The investigation will may also include a request for information (documents), a request for an on-site visit, or contact information for witness interviews of management and non-management personnel. Do not assume, however, that you have to turn documents over, open up your business, or make people available simply because the agency is asking. The requests still must comply with basic notions of relevancy and discoverability.

5. Once the investigator has completed the investigation, the EEOC will make a determination on the merits. If EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter, with a copy to the employer.

6. If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to resolve the charge through an informal conciliation process. If conciliation fails, the EEOC has the authority to file a lawsuit in federal court or issue the same Notice of Right to Sue, releasing the employee to file his or her own lawsuit within 90 days. The process is differently with the OCRC, which ends with a formal administrative hearing and a right to appeal to common pleas court. Also, under Ohio’s civil rights laws the employee always has the right to bypass the agency and proceed directly into court.

There is an inclination within companies to go it alone in EEOC and other agency proceedings, believing that the expense of hiring an attorney is not justified at this early junction. I cannot more strongly caution against this urge.

As I said above, the statement of position is the critical piece of the agency investigation. It not only tells your story, but it locks in your story because it is discoverable by the employee in a later lawsuit. One of the easiest ways to create a jury question on the issue of pretext and lose a summary judgment motion is to give a reason for termination different than that set out in your EEOC position statement.

You should assume that every charge – no matter the merit – will turn into a lawsuit. Employment litigators can interview witnesses, review policies and personnel files, and make decisions as to your best defense. Not involving an attorney as early as your first receipt of the charge of discrimination can cost valuable insight into your best effort to win the case.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

Shoot first and ask questions later, and don't worry, no matter what happens, I will protect you.
—Hermann Goering

In EEOC v. CRST Van Expedited (N.D. Iowa 2/9/10) [pdf] (courtesy of Ross Runkel and Workplace Prof Blog), a federal judge tagged the EEOC with $4,467,442.90 in attorneys’ fees and costs for its “sue first, ask questions later litigation strategy” in pursuing a systemic sex discrimination case. What did the EEOC do (or, more accurately, what didn’t it do) that led to this huge fine?

• Following summary judgment 67 of the original 270 plaintiffs remained in the case. Those 67 claims, however, never made it to trial.

• The court dismissed the claims of the remaining 67 plaintiffs because the EEOC “did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint—let alone issue a reasonable cause determination as to those allegations or conciliate them.” Indeed, “the EEOC did not even interview any witnesses or subpoena any documents to determine whether any of their allegations were true.”

• The EEOC did not make a reasonable cause determination as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing the Complaint. In fact, 27 of the women alleged they were sexually harassed after the lawsuit was filed, and the EEOC did not learn the substance of the allegations of another 38 until after it filed its Complaint.

• The court concluded that the EEOC’s failures prejudiced the employer: “The EEOC’s failure to investigate the claims of the 67 allegedly aggrieved persons deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit.”

My first instinct is to applaud this court for holding the EEOC’s feet to the fire. It’s comforting to witness governmental accountability for a lack of diligence in an era of increased vigilance in the enforcement of EEO laws.

Yet, I think this decision will have deeper implications for the agency and businesses. While it will act as an important check on the EEOC’s recent run of federal filings, it will also cause the EEOC to dig deeper and wider at the investigatory stage to support the lawsuits that it does file. The agency now has a roadmap from a federal court setting forth what is necessary pre-suit: complainant and witness interviews, document reviews, reasonable cause determinations, and an offer of conciliation.

In other words, applaud the visceral appeal of seeing the EEOC take one on the chin, but be very wary of the increased administrative burden this decision will likely place on your business in future EEOC investigations.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC announces curious partnership as it expands community outreach

The EEOC has announced that it has partnered with Beachwood’s Maltz Museum of Jewish Heritage to help employees file discrimination complaints. The agency will set up a temporary charge intake station at the museum on the last Thursday of each month. According to EEOC Cleveland Field Office Director Dan Cabot, “It’s a good partnership for us and for the community.”

To me, it’s a weird partnership. I understand the theming – the EEOC fights intolerance in the workplace and the Maltz Museum advocates for tolerance among religions and ethnicities. But, anyone who knows Cleveland geography will understand that no one in Beachwood and its surrounding communities needs help getting to the EEOC’s main office downtown. While this staged synergy sounds like a publicity stunt, it is one that employers should pay close attention to. The EEOC is clearly empowered, and employers who ignore their EEO responsibilities in today’s political climate do so at their own risk.

[Hat tip: Warren & Hays Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

New EEO poster required for all employers with 15 or More employees

Federal law requires all employers covered by the federal anti-discrimination laws (those with 15 or more employees) to post multilingual notices describing the federal laws against job discrimination. To account for two new laws – the Genetic Information Non-Discrimination Act and the ADA Amendments Act – the Equal Employment Opportunity Commission has updated its mandatory posting. Employers have two options to comply with this new requirement, both of which are available on the EEOC’s website at www.eeoc.gov/posterform.html:

1. Print out and post a supplement to their existing “EEO is the Law”; or
2. Print and post the EEOC new poster.

Alternatively, employers can order up to 10 copies of the poster, free of charge, from the same EEOC site linked above. If you need more than 10 copies, that same website has the address and phone number of the EEOC Clearinghouse to contact.

The new posting is mandatory effective November 21, 2009.

[Hat tip: World of Work]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio Supreme Court permits 3rd party discovery by employers in OCRC investigations

Often times, companies have to respond to administrative discrimination complaints in a vacuum. They have a vague understanding of the allegations based on the few sentences in the charge form, and are limited to the information in their own files and records. Companies rarely if ever have access to the OCRC's own materials, and discovery is not part of the process. In State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., the Ohio Supreme Court opened the door to a whole new world of information to assist employers in defending against charges of discrimination, and held that at an employer's request the Ohio Civil Rights Commission must issue a subpoena during a preliminary investigation of an administrative complaint.

If you have been lucky to have never been part of an OCRC investigation, let me give you a quick summary of the process. Upon receipt of a complaint alleging discriminatory conduct, the Commission conducts a preliminary investigation into the allegations. The Commission's function during this first step is to discover evidence to determine if it is probable that an unlawful discriminatory practice has occurred. If the Commission determines there is no probable cause, it will dismiss the Charge. At that point, the employee has three options: 1) walk away; 2) appeal the dismissal to common pleas court; or 3) file a civil action under 4112.99. On the other hand, if the Commission finds probable cause, it will attempt to eliminate the discriminatory practice through conciliation. If conciliation fails, the Commission will issue a formal complaint prosecuted by the Attorney General's office at a formal hearing.

State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. concerns the first step in this process -- the preliminary investigation. Carol Van Slyke, the charging party, filed a complaint with the OCRC against the American Legion Post 25 claiming that its executive director had sexually harassed her and fired her in retaliation for complaining about it. When contacted by the commission, the Legion explained that it had fired Van Slyke shortly after receiving an anonymous letter that she was a felony offender. During the investigation, the Legion requested, by letter from its attorney, that the OCRC issue a subpoena on its behalf compelling the production of information about her felony conviction. The Commission refused to issue the requested subpoena. The Commission did, however, during the investigatory phase, issue a subpoena on its own behalf for the same information. Because the information became the Commission's work product, the Legion was not permitted to review it. After the Commission issued a probably cause determination, the Legion filed suit to compel the OCRC to issue the requested subpoena.

In ruling that the Legion had a clear right to the issuance of the requested subpoena, the Court relied upon the plain language of R.C. 4112.04(B)(3)(b), which provides:

Upon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.

This decision provides employers with an important weapon in defending against OCRC complaints. Often times, employers are shooting in the dark responding to administrative charges. This case enables employers to defend charges on a much more level playing field by preventing the OCRC from limiting employer's access to factual information by hiding behind its curtain of agency work product. This tool is important for two reasons. First, and more obviously, it will enable employers to more efficiently gather key information at an earlier stage in the process to help get more charges dismissed as early as possible. Secondly, and perhaps more importantly, better access to information will limit unintentional misstatements by employers that a plaintiff could use against them in subsequent litigation.

No company wants to defend an OCRC charge. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., however, makes the process a little more palatable.

EEOC posts huge gain in discrimination charges

According to this EEOC press release, discrimination charges filed with the EEOC increased by 9% in 2007. The 82,792 private sector discrimination charges filed last year was the highest volume of incoming charges since 2002 and the largest annual increase since the early 1990s.

Race was the most frequently filed claim, with retaliation a close second and having the greatest percentage increase:

Basis of Charge Filing	2007	2006	Percentage Increase/Historical Comparison
RACE	30,510	27,238	Up 12% to highest level since 1994
RETALIATION	26,663	22,555	Up 18% to record high level, double since 1992
SEX/GENDER	24,826	23,247	Up 7% to highest level since 2002
AGE	19,103	16,548	Up 15%, largest annual increase since 2002
DISABILITY	17,734	15,575	Up 14% to highest level since 1998
NATIONAL ORIGIN	9,369	8,327	Up 12%, above 9,000 for second time ever
RELIGION	2,880	2,541	Up 13% to record high level, double since 1992

EEOC Chair Naomi C. Earp believes that companies' failures in combating workplace discrimination explains these numbers: "Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively. To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium on fostering inclusive and discrimination-free work environments for all individuals."

Ms. Earp's statement would be more telling if the EEOC also released data on the percentage of charges on which the EEOC found probable cause as compared to how many were dismissed. This increase is much more likely the result of the economic downtown and more job losses, instead of companies avoiding their EEO responsibilities.

EEOC issues new EEO-1 Form for 2007

As most companies should be aware, the EEO-1 Report is a confidential government form required of employers with 100 or more employees or with 50 or employees and with government contracts of $50,000 or more. It requires those employer to annually provide to the Employment Opportunity Commission and the Department of Labor, Office of Federal Contract Compliance Programs a count of their employees by job category and by ethnicity, race, and gender. The annual deadline for filing September 30. You may not be aware, however, that for the 2007 filing year the EEOC has approved a revised EEO-1.

The new EEO-1 Report subdivides the current job category for “Officials and Managers” into two levels based on responsibility and influence within the company: Executive/ Senior Level Officials and Managers (who plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO), and First/Mid-Level Officials and Managers (who direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations). It also moves business and financial occupations from the Officials and Managers category to the Professionals category, for the express purpose of improving data for analyzing trends in mobility of minorities and women within Officials and Managers.

The revised form also makes a number of changes to the race and ethnic categories. The revised EEO-1 report: adds a new category titled "Two or more races"; divides "Asian or Pacific Islander" into two separate categories; renames "Black" as "Black or African American"; renames "Hispanic" as "Hispanic or Latino"; and strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers.

Separate and apart from the new categories, the self-identification aspect of the new EEO-1 Form is the most intriguing facet of this new program. The EEOC wants to employers to shy away from visually identifying employees' race and ethnicity, ostensibly to avoid stereotyping, and instead is encouraging employers to ask employees and new hires to self-identify. The EEOC endorses what it calls the "Two Question Format." Employers are first to ask if an employee is Hispanic or Latino (ethnicity), and second ask what race/races the employee considers himself or herself to be. The EEOC even goes so far as to suggest that employers may ask, but are not required to ask, employees to specify particular races instead of simply checking “Two or More Races.” Even if, however, employees supply detailed race data, employers should count such employees in the “Two or More Races” category on the new EEO-1. This process should make for some very interesting workplace conversations as we get closer to the September filing deadline.