Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

The EEOC recently voted to move forward on new regulations that will likely make it easier for older workers to bring disparate impact claims, and harder for employers to defend against such claims.  The EEOC is taking the position that employers have to prove their choices are reasonable when adopting policies that might adversely affect older workers, and the rules provide several guidelines for consideration.  In light of the new regulations, employers should revisit the factors used in making hiring, promotion, and termination decisions and take steps to minimize the use of subjective criteria and procedures.  Employers should also consider the likelihood that litigation costs may increase as more cases may survive summary judgment, and consult with legal counsel to determine whether additional precautions must be put into place to proactively address potential disparate impact issues.

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The national unemployment rate, as reported by the Department of Labor, has stubbornly remained at about 9% or higher for more than two years. As many of these unemployed individuals search for new jobs, some have purportedly been denied available employment opportunities simply because they were unemployed. Unemployment discrimination, as it is often called, is not currently prohibited under federal law. The EEOC and Congress, however, have taken steps focused on so-called unemployment discrimination that could affect how employers conduct their hiring processes.

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In March, we reported on the increasing attention that federal and state legislatures, as well as the EEOC, were paying to employers’ use of employee credit checks in employment decisions. At the time of posting, four states had laws regulating employer use of credit history data and fourteen additional states were considering similar measures. Earlier this month, Connecticut passed Public Act No. 11-223 regulating employer use of credit reports.

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By proposing to amend its Scheduling Letter and Itemized Listing, the Office of Federal Contract Compliance Programs (“OFCCP”) is at it again, imposing greater burdens on federal contractors.  Following its recent proposal to strengthen contractors’ affirmative action efforts for veterans, the OFCCP has now issued a proposal to modify its Scheduling Letter and Itemized Listing used in compliance reviews and compliance checks.  On May 12, 2011, the OFCCP published Notice in the Federal Registry requesting comments on its proposed changes.  The current Scheduling Letter and Itemized Listing are set to expire on September 30, 2011.  Comments on the proposed changes must be submitted by July 11, 2011.

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A recent Tenth Circuit decision sends a strong message that the court takes seriously the jurisdictional prerequisite that plaintiffs exhaust their administrative remedies in a Title VII claim prior to taking a claim to court.  The process to do so is well-known -- before an employee can file a lawsuit alleging discrimination against his or her employer, he or she must file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”).  Requiring individuals to exhaust their administrative remedies prior to filing a lawsuit serves, hopefully, to eliminate facially meritless charges, facilitate internal resolution, and help avoid litigation.  This is often the case, as many charges filed with the EEOC never end up on a court’s docket.  But what happens if the parties are already enmeshed in litigation and the plaintiff claims that the defendant’s conduct during the course of that litigation is retaliatory?  Can the plaintiff amend his or her complaint to include that allegation?  Or must he or she go back to the EEOC and file a charge for that claim?  In McDonald-Cuba v. Santa Fe Protective Services, Inc., the Tenth Circuit held that the latter is true.  No. 10-2151 (10th Cir. May 9, 2011).  The Fourth came down the other way in a similar case.

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In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

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During the past 50 years, the American workforce has changed drastically. One of the most noticeable changes has been the absorption of immigrants into the workforce who do not speak English as their first language.

In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work. These so called “English-only” polices may violate the national origin protections of Title VII of the Civil Rights Act of 1964. Employers that implement these policies are at risk of being sued not only by employees who feel wronged by the policy, but also by the U.S. Equal Employment Opportunity Commission.

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The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic -- not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

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A commonly used pre-employment screening method--conducting credit checks--has drawn increased scrutiny in recent months. Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks. Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions. 

Only four states--Hawaii, Illinois, Oregon, and Washington--currently have laws regulating employer use of credit history data. Sparked by the downturn in the economy, fourteen additional states--California, Colorado, Connecticut, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Texas, Vermont--are considering similar measures.

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When an employer faces litigation following an unfavorable cause determination by the EEOC, it may seek to depose the EEOC investigator who made the finding. However, the scope of discovery obtainable from the EEOC is somewhat different from that available from a non-governmental third party. The EEOC may seek to quash a subpoena by asserting that the information sought is protected by the deliberative process privilege, which is available to the agency in addition to the more common protections of attorney-client privilege and work product protection.

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Expanding on our December 21 post, the U.S. Equal Employment Opportunity Commission on January 11, 2011, announced that private sector workplace discrimination charge filings reached the “unprecedented level” of 99,922 during fiscal year 2010, which ended on September 30, 2010.  According to the data, all major categories of charge filings in the private sector, including charges against state and local governments, increased significantly.

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The fiscal year 2010 was a record-setting year for the number of private-sector discrimination charges filed with the United States Equal Employment Opportunity Commission.  Nearly 100,000 charges were filed -- the most charges in the commission’s  45-year history.  This number represents an increase of just over seven percent from 2009, becoming the third consecutive year in which over 90,000 charges were filed.

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The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in hiring and employment decisions based on an individual’s genetic information.  So, for example, a company cannot refuse to hire a woman because her mother had breast cancer.  The law also prohibits requesting, requiring and/or purchasing genetic information, with limited exceptions, and prohibits disclosure of genetic information.  There are many open questions about the law, such as whether companies can have wellness programs anymore (restricted genetic information is routinely gathered as part of such programs) or whether it is a violation of the law for a supervisor to learn about genetic information by accessing an employee’s page on a social networking site, or by asking innocent questions about the employee’s health, such as “How are you?.”  The EEOC issued final regulations last week in an attempt to answer these and other questions under the law.  A short discussion follows.

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With the closing of the first month of the federal government’s 2011 fiscal year, employers may be curious to know what the EEOC’s litigation landscape looks like.  For instance, what type of employers are being sued, and for what?  Importantly, what can employers learn from the EEOC’s litigation efforts?  A review of recently filed lawsuits that the EEOC has announced in its October press releases found that few claims have been brought under recently passed laws and only a small portion of the defending employers are Fortune 500 companies.

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In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

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For those who thought the proposed Paycheck Fairness Act had faded away, here is a wake-up call.  After more than a year since the bill was passed by the House of Representatives and introduced in the Senate, the Senate Committee on Health, Education, Labor and Pensions is holding a new hearing on March 11 to focus on equal pay issues.

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In an order issued on February 9, 2010, a United States District Judge in Iowa sent a stark reminder to the EEOC that its statutory obligations to investigate and conciliate Title VII claims are not to be ignored.  More than three years after the EEOC filed its complaint alleging systemic sex harassment, the court, in its February 9 order, awarded Defendant CRST Van Expedited, Inc. ("CRST") $4.5 million in attorneys' fees and $460,000.00 in expenses as a prevailing party, following a finding that the EEOC abandoned its statutory obligations under Title VII.

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The Obama Administration announced on February 1, 2010, that it requested $385.3 million for the Equal Employment Opportunity Commission for fiscal year 2011.  In addition, the administration requested $162 million for the Civil Rights Division of the Department of Justice.  Significantly, the requests represent an $18 million dollar budget increase for the EEOC and a $17 million dollar budget increase for the DOJ Civil Rights Division.

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The EEOC reported that workplace discrimination charges reached near-record highs in 2009.  According to the EEOC, there were 93,277 charges filed in fiscal year 2009 -- the second-highest level in its history. 

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Recently a woman found out just how serious social media can be when she lost her benefits as a result of photos she had uploaded to her Facebook page.  She posted photos on her Facebook page that showed her having fun on vacation and also enjoying a “Chippendales” show.  The problem was that she was on extended sick leave from her job at the time, purportedly because she was suffering from depression.  Her employer’s insurance company saw the photos and discontinued her benefit payments, concluding that she was not unable to work due to depression.  She argued her doctor recommended that she try to have fun to help her forget about her problems.

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In August 2009, the Obama administration named Patricia A. Shiu the new Director of the Office of Federal Contract Compliance Programs (OFCCP).  The OFCCP, part of the Department of Labor (DOL), enforces the non-discrimination and affirmative action obligations of federal contractors under Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, and the Rehabilitation Act.

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President Obama recently announced his intent to nominate P. David Lopez for the position of General Counsel of the Equal Employment Opportunity Commission (EEOC).  Lopez currently holds the position of Supervisory Trial Attorney for the EEOC’s Phoenix District Office.

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President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.
 

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On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver releasing my employer from all claims?" and "If I file a charge with the EEOC after signing a waiver, will I have to return my severance pay?"  (The EEOC’s answers to these questions are “yes,” and “no,” respectively.)  The EEOC also explains its position on what constitutes a "knowing and voluntary" waiver under Title VII, the Americans with Disabilities Act and the Equal Pay Act, and what is required for a waiver to be effective under the Age Discrimination in Employment Act. In view of the fact that the EEOC has taken the effort to publish this guidance, and considering that the current administration has served notice that federal agencies like the EEOC will continue to vigorously enforce the nation's labor and employment laws, employers should have their current release agreements reviewed by labor and employment counsel.

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