Old laws meet new technology: sexual harassment via social media

Last week, the EEOC held a public meeting on workplace harassment. The most interesting testimony was provided by Jane Kow, of HR Law Consultants, who spoke about the impact of harassment on the modern workplace. One of the key areas she covered was the intersection of workplace harassment and social media:

The ease and speed of posting or responding to the proliferation of messages and images on social media—sometimes by employees at the 11th hour, right before bed, in 140 characters or less, and oftentimes without aforethought—has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cas es that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances. 

Employers are now grappling with how to lawfully regulate employees’ text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly.  

What does this mean for your business. The workplace's boundaries no longer begin a 9 and stop at 5. Technology connects employees to each other 24/7. This added connectivity creates opportunities for greater employee engagement and stronger workplace communities. It also creates opportunities for bad actors to do bad things, like harassment. It's important for employers to keep in mind that agencies and courts will apply the same rules to Facebook harassment as they would to face-to-face harassment. If they aren't treating any differently, neither should you.

More on the importance of being accommodating

Yesterday, I wrote about the need for employers to be more accommodating for their employees’ protected needs. Today, I bring you two real-world illustrations.

• Yesterday, the EEOC announced that it had filed suit on behalf of an employee who was denied the opportunity to return to work following some time off for a cardiac condition.
• Late last year, the EEOC reached an $85,000 settlement with an employer who fired an employee attempting to return to work following time off for cancer chemotherapy treatments.

In both instances, the EEOC made the same point—the ADA imposes on employers an absolute duty to determine whether or not they can accommodate an employee’s disability. Absent that consideration, the law has been violated. Moreover, after engaging in that interactive process, the employer can only deny the request: 1) if it poses an undue hardship, or 2) if the employee cannot perform the essential functions of the job with or without the accommodation. Otherwise, you may find yourself on the receiving end of an EEOC press release, which is not the position you want to be in.

EEOC 0-2 on severance-agreement lawsuits … but does it matter?

Recall that in October, a Chicago federal court dismissed a lawsuit filed by the EEOC against CVS, claiming that the pharmacy retailer’s severance agreements violated Title VII by employing allegedly retaliatory language. That court, however, failed to reach the merits of the case, instead dismissing the EEOC’s claims on procedural grounds (the agency’s failure to engage in pre-suit conciliation), thereby depriving employers guidance on whether certain garden-variety provisions in employment agreements violate Title VII’s anti-retaliation provisions. I held out hope that the practical guidance employers seek on this issue would come from a similar lawsuit pending in Colorado.

Last week, a Denver federal court dismissed that other EEOC severance-agreement-as-retaliation lawsuit. Like the earlier CVS dismissal, however, the dismissal in EEOC v. CollegeAmerica Denver was on procedural grounds, and offers little practical import for employers moving forward on this important issue.

Perhaps if there is any solace for employers looking to sue separation agreements to halt future litigation, and not to buy a future lawsuit by the EEOC, employers can look to footnote 3 in the EEOC v. CVS decision:

The “covenant not to sue” provision prohibits an employee from “initat[ing] or fil[ing] … a complaint or proceeding asserting any of the Released Claims.” The general release of claims is set out in ¶ 7 of the Agreement, but that section also includes the caveat that the release does not limit “any rights that the Employee cannot lawfully waive.” However, there is a specific carve out for an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws”; and further provides, “nor shall this Agreement prohibit [the employee] from cooperating with any such agency in its investigation.” … The verb participate is defined as “to be involved with others in doing something” and “to take part in an activity … with others.” http://www.merriam-webster.com/dictionary/participate. It is not reasonable to construe “the right to participate in a proceeding with any appropriate federal … agency,” to exclude the right of the employee from filing an EEOC charge. And, even if the Separation Agreement explicitly banned filing charges, those provisions would be unenforceable and could not constitute resistance to the Act.

In other words, the CVS court, albeit in dicta, believes that the EEOC is chasing an unsupportable claim by arguing that covenants not to file charges violate Title VII’s prohibitions on retaliation.

Employers, however, should not lull themselves into a false sense of security. Neither employer won either of these cases on the merits. For whatever reason, this issue is on the agency’s radar, and it will likely seek another case to prove its point regarding these agreements.

For now, the prudent course of action is to make sure that your agreements clearly and unambiguously, in a provision separate and distinct from the release, waiver, and covenant not to sue, state that employees retain their federally protected rights. I am using something like the following:

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of any of the provisions of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”—

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Do personality tests pass the ADA-compliance test?

The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.

I cautioned employers about this issue three years ago. This is what I said.

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Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. 

The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

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What does all this mean? The use of personality tests raises complex legal and business issues, even more so now that this issue is on the EEOC’s radar. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

EEOC wastes its scarce resources by filing lawsuits without claimants

The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.

According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation….  In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”

According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”

Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency. 

EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Is it legal to fire an employee for off-duty alcohol consumption?

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy—no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the EEOC took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.

The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the ADA protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.

Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 

Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.

[Hat tip: Drug & Alcohol Testing Law Advisor, c/o Texas Employment Law Blog]

This is what a retaliatory waiver of EEOC rights looks like

In case you missed it last Friday, a federal judge dismissed the EEOC’s lawsuit against CVS, which had challenged as retaliatory various garden-variety provisions in the retailer’s employment separation agreement.

On that same day, the EEOC announced the filing of another lawsuit, which also challenged as retaliatory a provision in an employment document. Unlike the CVS lawsuit, however, this lawsuit likely has merit.

The EEOC alleges that a Florida restaurant franchisor operator requires, as a condition of employment, all applicants and employees to submit all employment-related claims to binding arbitration, and waive their rights to file discrimination charges with the EEOC. You can read the allegedly offending arbitration clause here.

Unlike the challenged clauses in the CVS case, this clause expressly prohibits individuals from pursuing discrimination charges with the EEOC (or its state or local counterparts). The employment discrimination laws, however, prohibit as retaliatory any effort by an employer to require employees to forsake their rights to see redress with the EEOC. Thus, in my opinion, as a management-side employment lawyer, this employer’s agreement has problems.

The proper way to draft an arbitration agreement, or other agreement that waives certain rights or remedies, is to carve out EEOC charges. You would say something like this:

Nothing in this Agreement is intended to, or shall, interfere with the employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against the Employer, regardless of who filed or initiated any such complaint, charge, or proceeding.

Because this clause protects the EEOC’s right to investigate and remedy violations of, and otherwise enforce, the law, it should pass muster with the EEOC. (Of course, before you implement any such language in your agreements, you must consult with your own employment counsel).

My advice to the employer in this case is to settle with the EEOC as soon as possible on the best terms possible, and avoid the expense of a costly uphill legal battle that will be difficult to win.

BREAKING: Federal judge dismisses EEOC severance agreement lawsuit against CVS

The Chicago Tribune is reporting that U.S. District Judge John Darrah has granted CVS’s motion to dismiss a lawsuit filed by EEOC, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).

When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.

The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.

In the meantime, this is not the end of this issue. It is possible, it not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.

[Hat tip: Ameet Sachdev]

Hear what I had to say on @WCPN about #BanTheBox

Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.

Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.

Here you go.

Thanks Mike McIntyre for having me on. Let’s do it again soon.

Listen to me on WCPN tomorrow morning (8/26) from 9–10, discussing “Ban the Box”

If you’re near a radio tomorrow morning from 9 – 10, tune to 90.3 FM, WCPN, to hear me on The Sound of Ideas.

The topic of the day is “Ban the Box,” the disturbing legislative trend that prohibits employers from asking job applicants about criminal conviction histories on job applications. Given that we have an hour to fill, I imagine the discussion will also more broadly cover employment background searches in general.

If you miss the show live, I’ll have links for everyone to stream it at your leisure. You can also watch live on your computer here.

This is my second appearance on The Sound of Ideas, and I’m grateful to the show for having me back.

EEOC issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination

If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:

• Enforcement Guidance: Pregnancy Discrimination and Related Issues
• Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
• Fact Sheet for Small Businesses: Pregnancy Discrimination

Among the topics addressed by the EEOC are:

1. The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
2. Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
3. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
5. The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
6. The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
7. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.

All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.

The united colors of harassment claims

Let’s take a look at two recent settlements of harassment claims brought by the EEOC:

1. A Tampa, Florida, bank paid $300,000, resulting from a manager’s ongoing harassment of subordinate female employees, which included repeatedly trapping a 20-year-old behind the teller counter with his body, telling a woman she should wear a bathing suit to work, regularly staring at women’s breasts, and frequently caressing and grabbing a female employee.
2. A Charlotte, North Carolina, security-services company paid $155,000, resulting from a two managers’ repeated harassment of subordinate male employees, which included making offensive sexual comments, soliciting nude pictures, asking one to undress in front of him, soliciting sex in exchange for promotions, forcing accompaniment to a gay bar while on duty, touching certain employees’ chest and genitals.

It’s difficult to compare settlements in different cases based on value. They involve different parties, lawyers, judges, and allegations. Yet, it strikes me that if one compares the offensiveness of the misconduct alleged in these two cases, number two seems a whole lot more egregious than number one. Yet, number one paid double. I’ll ignore making the generalization that we, as a society, view same-sex harassment differently than the harassment of women by men, and, instead, conclude that similar cases offer lend to different results, often for arbitrary reasons.

I’ll leave you with the words of Lynette A. Barnes, EEOC regional attorney, who comments that employers need to halt all workplace sexual harassment:

All workers have the right to work in an environment free from sexual harassment. No one should have to put up with sexual comments or touching while they are just trying to make a living. Employers need to halt or prevent it—and the best prevention is training supervisors and managers on how to put a stop to such misconduct as soon as it appears.

I’ll let you decide about which of these two cases she made this observation.

U.S. Chamber of Commerce challenges EEOC over its “unreasonable” enforcement tactics

I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics (for example, here, here, here, here, and here).

Earlier this week, the U.S. Chamber of Commerce published a 25-page report [pdf] (h/t Wall Street Journal), in which it challenged the EEOC on its “unreasonable” enforcement tactics. According to the Chamber, its analysis of the EEOC’s enforcement and litigation strategies “reveals an agency which often advances questionable enforcement tactics and legal theories.” For example:

• EEOC will pursue investigations despite clear evidence that any alleged adverse action was not discriminatory—such as terminating an employee caught on videotape leaving pornography around the workplace.
• EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.”
• A federal case in which the judge criticized EEOC for using a “sue-first, prove later” approach. 
• A federal case brought by EEOC which the judge described as “one of those cases where the complaint turned out to be without foundation from the beginning.” 
• A federal case in which the judge criticized EEOC for continuing “to litigate the … claims after it became clear there were no grounds upon which to proceed,” describing the EEOC’s claims as “frivolous, unreasonable and without foundation.”

The report also challenges the EEOC’s amicus program, in which, according to the Chamber, federal courts rejected the agency’s legal interpretations (premised on its formal enforcement guidance and other policy statements) approximately 80% of the time.

From all of this data, the Chamber concludes:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However, … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of “too little, too late”: by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose.… 

What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national origin discrimination and credit-related background checks.

While the entirety of the 25-page report is intellectually interesting to employers, it doesn’t mean a hill of beans if the EEOC sues you. As we all know, lawsuits are expensive. It could cost you millions of dollars to prove the EEOC wrong. I doubt you want to spend millions defending one lawsuit? So what are you to do? Sadly, you are to do what the EEOC says, or risk ending up in the agency’s money-vacuum crosshairs.

Yet, I believe that the EEOC does not care how many times federal courts rebuke its litigation tactics—that the mere threat of an expensive enforcement action is sufficient deterrent for the agency to put forth its enforcement agenda. For example, is the EEOC correct that credit and criminal checks always have a disparate impact on minorities, no matter why an employer uses them? Probably not. But, the alternative is a potential million-dollar lawsuit. The agency is making law by the threat of lawsuits. This legislation-by-extortion is dirty pool, and undermines all of the good the agency does to promote equal rights for all in employment.

EEOC continues fight against severance agreements,while employers fight back

Earlier this year, I reported on a groundbreaking lawsuit the EEOC filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements (here and here). 

Earlier this week, the EEOC reported that it has filed a similar lawsuit in Colorado, against CollegeAmerica. From the EEOC’s news release:

Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyo., campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. These provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.…

The EEOC also claims that provisions which similarly chill employees’ rights to file charges and cooperate with the EEOC exist in CollegeAmerica’s form separation and release agreements, routinely used with its employees.…

“Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties,” said Mary Jo O’Neill, Regional Attorney for the EEOC’s Phoenix District Office…. “Otherwise, employers could easily do an end run around the law, employees would not be free to complain about discrimination, and the EEOC would never learn about violations of the law or have an opportunity to enforce it.”

Meanwhile, CVS is fighting back against the EEOC in its lawsuit. CVS has asked the district court to dismiss the complaint in its entirety, cap arguing that the mere inclusion of terms in a severance agreement does not violate Title VII. Business groups are also weighing in, the court has granted permission to the Retail Litigation Center to file a brief in support of CVS’s motion to dismiss. 

I continue to believe that this issue is the most important issue to employers that the EEOC is currently litigating. 

It is becoming clear that the CVS lawsuit was not an anomaly, and that challenging these types of provisions in severance agreements is high on the EEOC’s radar. For now, however, I think employers should take a wait-and-see approach. This issue is too important for employers to knee-jerk pull these key clauses from their agreements.

For now, what I wrote in February (which includes a draft carve-out) still holds true:

Don’t shred your settlement and severance agreements just yet.… Modify your agreements to bolster and clarify the protected-activity carve-out.… Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

Would you rather hire a liar or a criminal?

According to a recent survey conducted by background-screening company EmployeeScreenIQ, resume lies are more of a deal breaker for employers than past crimes.

Of the 600 HR professionals surveyed 45 percent said that they routinely ding candidates with a criminal history on their resume, while a whopping 90 percent refuse to hire some for whom a resume lie is discovered.

Two years ago, when the EEOC announced its Enforcement Guidance on the Consideration of Arrest and Conviction Records, I expressed reservations over regulatory guidance that limited the ability of employers to use criminal histories as a disqualifying factor for certain classes of jobs. I still believe that individuals with certain criminal histories should not hold certain jobs. For example, I remain steadfast that I cannot foresee a situation where a company would ever hire a convicted murdered or sex offender a delivery person.

I would never hire anyone who lies during the hiring process. The most important trait in hiring anyone for a job is honesty. If the bond of honest breaks down between employer and employee, the breakdown of the employment relationship will quickly follow. While not all criminal convictions depict an individual as dishonest, all resume lies do. The fact that this survey shows that double the number of employers refuse to hire candidates with resumes lies versus those who truthfully reveal past crimes does not surprise me in the least.

Readers, what say you? Would you rather hire a liar or a criminal? What is more troubling to you: the applicant who lies on a resume, or an applicant who discloses a criminal history on resume? Sound off in the comments, or on Twitter @jonhyman with the hashtag #liarorcriminal.

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit

Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws.