EEOC issues its final updates to its Covid-19 guidance

With the Covid-19 National and Public Health Emergencies now concluded, the EEOC just published what should be its final updates to its COVID-19 technical assistance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

These updates address employers' ongoing obligations to employees related to Covid-19 in the workplace.

An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

Correlation isn’t necessarily causation … except when it is

According to a recently filed EEOC lawsuit, Dollar General violated Title VII by firing a sales employee because of her pregnancy. More to the point, Dollar General, the EEOC alleges, fired her immediately after she advised her manager of her pregnancy. It listed "health" as the reason for her termination on her separation notice, after advising her of concerns for her safety.

Abortion travel benefits don’t discriminate against non-abortion-seeking pregnant workers

Within hours of the Supreme Court releasing its opinion in Dobbs v. Jackson Women’s Health Organization and reversing Roe v. Wade, DICK'S Sporting Goods announced that it will provide up to $4,000 in travel expense reimbursement for an employee, spouse, or dependent enrolled in its medical plan (plus one support person) to travel to the nearest location where abortion care is legally available. 

Last week, America First Legal, an ultra-conservative non-profit legal group run by "patriots" such as Stephen Miller and Mark Meadows, filed a charge of discrimination with the Equal Employment Opportunity Commission asking the agency to conclude that DICK'S offering of abortion travel benefits discriminates against female employees who choose to give birth. According to America First Legal Senior Counselor and Director of Oversight Reed D. Rubinstein, "Subsidizing travel for an abortion, while denying an equivalent benefit to a mother welcoming a new baby, is perverse and unlawful."

“Abortion discrimination” = illegal pregnancy discrimination … even after Dobbs

Is it legal to fire an employee who has an abortion? This is question that a lot of employers and employees will now be asking in light of the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization that that there is no constitutional right to abortion.

As controversial and divisive of an issue as abortion is (perhaps now more than ever), the law is clear that an employer cannot fire an employee for having one. Nothing the Supreme Court did in Dobbs changes this.

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

Coronavirus Update 10-28-2021: EEOC publishes its own internal Religious Accommodation Request form

"Jon, we have so many employees asking us for religious accommodations from our workplace Covid rules, including our vaccine mandate. Do you have a form we can use to document the request?" 

I certainly do. But it's not mine. It's the EEOC's. The Agency just published the internal form it uses for its own employees' religious accommodation requests.

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

“Beware systemic discrimination,” says EEOC to employers

Systemic discrimination has multiple meanings, according to the EEOC:

• A "pattern or practice, policy, and/or class cases where the discrimination has a broad impact on an industry, profession, company, or geographic location."
• "Bias that is built into systems, originating in the way work is organized," referring to "structures that shape the work environment or employment prospects differently for different types of workers."
• "Patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity."

Regardless of you define it, in a report published last Friday, the EEOC says that it pursuing systemic discrimination as an enforcement priority to dismantle the pattern, practice, or policy that results in or facilitates discriminatory decisions.

Frivolous litigation has a price … sometimes a big price

In 2005, Monika Starke filed a charge of discrimination with the EEOC alleging that her employer, CRST Van Expedited, Inc., subjected her to sexual harassment. The EEOC expanded that initial charge into a federal-court lawsuit over whether CRST engaged in sexual harassment against myriad of its female driver trainees.

What followed was 14 years of litigation, several trips to the court of appeals, one trip to the U.S. Supreme Court, and an attorney-fee award of over $3.3 million against the EEOC for frivolous, unreasonable, or groundless conduct in the filing and prosecution of the underlying claims.

New EEOC case is a not-so-subtle reminder that we still have a lot of work to do to improve race relations

The allegations in this case—which the EEOC just filed against a Louisiana river transporter—remind us that while race relations have improved over the past several decades, they are far from perfect and we remain a nation with a lot of work to do.

6th Circuit holds that an employee cannot contractually shorten Title VII’s statute of limitations

In Thurman v. Daimler Chrysler, the 6th Circuit agreed that the following agreement between an employer and an employee shortening the time in which an employee has to file a lawsuit was lawful.

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

I’ve long argued that because of Thurman, employers should consider having all employees agree to a shortened statute of limitations to limit the duration of their potential exposure to employment claims. Yesterday, however, the same court punched big hole in this litigation avoidance strategy.

This is what sex discrimination will look like if the Department of Justice gets its wish to legalize sex stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional

If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

The three things you need to know from the EEOC's 2018 charge data

Yesterday, the EEOC released its charge statistics for 2018. There are three big things you need to know.

Compliance-by-carrot trumps compliance-by-stick

Democratic administrations are about enforcement.
Republican administrations are about education.

The endgame is still enforcement, but each side approaches this goal very differently.

This dichotomy might be an oversimplification, but, in at least in contrasting the Obama Administration to the Trump Administration, it is very true.

Temporary employees have permanent legal rights

Temporary employees do not leave their legal rights at your door. In fact, they enjoy the same rights as your permanent employees.

Consider, for example, EEOC v. Massimo Zanetti Beverage USA, in which an employer recently agreed to pay $65,000 to settle claims brought by a temporary employee that she was subjected to a sexually hostile work environment and fired after repeatedly complaining about it.

The allegations are not pretty.

LaToya Young began working as a temp at Massimo Zanetti in late January 2015. Within 10 days of starting her placement, a male co-worker began making sexually harassing comments to her:

• Telling Young that he had "blue balls" and asking her "Why don’t you help me out with that?"
• Telling Young that he wanted to "suck [her] bottom lip."
• Telling Young that he wanted to have sex with her, often using lewd language.
• Telling Young that he imagined himself engaging in sexual relations with her.
• Telling Young that he would "ball [her] up like a pretzel" and would "have [her] screaming."
• Grabbing his groin area while looking directly at her.
• Blowing kisses at her.
• Licking his lips and biting his bottom lip while looking at her.

Young complained three times to her supervisor. The harassment continued unabated after the first complaint. After the second complaint, Young alleges that her supervisor warned her that going to HR "would jeopardize her employment." After the third complaint, she was fired. 

According to EEOC Regional Attorney Kara Haden, "Employers must take appropriate action to stop harassment of all employees, including temporary workers." She adds, "We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect all employees from workplace harassment."

Take heed of this lesson. Your temporary employees have the same civil rights as your permanent employees.

* Photo by Sunyu on Unsplash

As our workforce ages, age discrimination is only going to worsen

Happy Golden Birthday, Age Discrimination in Employment Act.

On June 13, 2018, the ADEA turned 50.

To commemorate this milestone, the EEOC just released a report entitled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA).

9.8 million reasons to consider transferring a disabled employee to a vacant position

Photo by Taber Andrew Bain
Licensed via Creative Commons 

Earlier this month, American Airlines agreed to pay $9.8 million to settle a disability discrimination lawsuit brought by the EEOC.

The agency claimed that the employer’s return-to-work policy—which allegedly refused to consider transfers to open positions for disabled employees, but instead required the employees to apply for and compete for vacant position upon their return to work—violated the ADA.

Dads are parents, too — baby bonding and sex discrimination

Should new dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.