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

Born a biological male, the plaintiff lost her job as an editor in the state’s Office of Legislative Counsel after she told her supervisor, Legislative Counsel Sewell R. Brumby, that she would be undergoing a gender transition and coming to work as a woman with a new name.  Glenn sued her former supervisors, Brumby, and other legislative officials but Brumby was the only remaining defendant. 

The question before the 11th Circuit was “whether discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the equal protection clause? ”

In a 19-page order, the panel found:  “We hold that it does.”  The Court relied on the 1989 decision of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court of the United States held that discrimination on the basis of gender stereotype is sex-based discrimination.  In Price Waterhouse, the court considered allegations that a senior manager at Price Waterhouse was denied partnership in the firm because she was considered “macho,” “overcompensated for being a woman” and should dress more femininely.  Id. at 235.  The Supreme Court agreed that such comments were indicative of gender discrimination and held that Title VII barred not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.  Id.

Applying this ruling to the facts of the case, the Eleventh Circuit found that “discrimination against a transgender individual because of her gender non-conformity is sex discrimination [under the Equal Protection Clause], whether it’s described as being on the basis of sex or gender.”

The opinion offers broad protection on gender rights:  

All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype…. An individual cannot be punished because of his or her perceived gender non-conformity

The only justification for Glenn’s firing offered by Brumbly on appeal:  his purported concern that other women might object to Glenn’s restroom use.  However, the Court found Brumbly’s evidence insufficient to show that he was actually motivated by concern of litigation regarding Glenn’s restroom use. 

The Eleventh Circuit joins the First, Sixth and Ninth Circuits in finding that anti-transgender discrimination is sex discrimination. Employers should be vigilant to avoid any activity in the workplace that arguably disadvantages transgendered employees. 

Section 503 prohibits discrimination by federal contractors and subcontractors against individuals on the basis of disability and requires affirmative action on behalf of qualified individuals with disabilities.  However, there continues to be a substantial discrepancy in unemployment rates between working age individuals with and without disabilities.  The current unemployment rate for individuals with disabilities is thirteen percent, one and one half times the rate of individuals without disabilities.  Moreover, almost eighty percent of individuals with disabilities remain outside of the labor force, compared to about thirty percent of those without disabilities. 

OFCCP’s proposed rule strengthens the affirmative action provisions by detailing specific actions contractors must take in the areas of recruitment, training, record-keeping and policy dissemination.  The proposed rule applies to contractors with at least 50 employees and contracts worth $50,000 or more. 

National Utilization Hiring Goal

The most significant proposed change to Section 503 is the establishment of a national utilization goal for individuals with disabilities.  This is the first time the federal government has tried to set fixed numerical targets for the number of people with disabilities in a company’s workforce.  Under the proposed rule, federal contractors are required to set a hiring goal of seven percent disabled workers in each job group in the workforce.  The goal is neither a quota, nor a restrictive hiring ceiling, and a failure to attain the goal does not necessarily constitute a violation of Section 503 or OFCCP’s regulations.  The U.S. Department of Labor noted that the goal is meant to serve as an important tool for employers to measure their progress towards achieving equal employment opportunity, and for assessing where in the workforce barriers to such opportunity remains. 

While the OFCCP is suggesting a national utilization goal of seven percent, it is asking for comments on using a range of values between four and ten percent.  Additionally, it is asking for comments regarding the concept of using a two percent sub-goal for individuals with certain particularly severe or targeted disabilities and if instated, what disabilities should be included in this sub-goal.

Effects On Data Collection, Record Keeping And Personnel Policies

Along with the creation of a hiring goal, the proposed rule expands data collection and record keeping requirements.  Currently, Section 503 requires that contractors maintain specific data such as the total number of applicants, the total number of job openings, and the number of jobs filled.  The proposed rule increases a contractor’s data collection obligations by requiring it to compile annually disability related data such as the number of individuals with disabilities applying for positions and the number of disabled individuals who were hired. 

In addition, the proposed rule mandates that contractors must invite applicants to voluntarily self-identify as “an individual with a disability” at the pre-offer stage of the hiring process, as well as invite post-offer voluntary self identification by anonymously surveying all employees annually.  Contractors will be required to invite applicants and employees to self-identify by using the language prescribed by the OFCCP.  An employee will only be asked about the general existence of a disability and not for information regarding the specific type.  The OFCCP is seeking comments on the potential self-identification text. 

Furthermore, the proposed rule adds an entirely new provision which requires contractors to develop and implement written procedures for processing requests for reasonable accommodations. 

Contractors’ personnel policies and procedures will also be affected by the proposed rule. First, the statutory terms within the existing Section 503 will be revised to conform with the ADA Amendments and the EEOC’s regulations implementing the ADA.  All personnel policies and procedures must be updated to reflect this change, as well as include an affirmative action plan.  Second, Section 503 provides recommended steps contractors must take to review their personnel processes, as well as physical and mental job qualifications.  Presently, these reviews are to be done “periodically.”  However, the proposed rule changes this provision and requires these self-reviews to be completed annually. 

Recruitment And Outreach Efforts

The proposed rule also imposes additional recruitment and outreach requirements.  In accordance with the proposed rule, contractors will have to engage in a minimum of three specific types of outreach and recruitment efforts.  The effectiveness of these efforts in identifying and recruiting individuals with disabilities must be reviewed annually, and this review must be documented.  Additionally, job openings must be listed with one-stop career centers and other appropriate employment delivery systems in order to increase the pools of qualified applicants.  Additionally, all records relating to a contractor’s recruitment and outreach efforts must now be kept for five years, which departs from the standard two year retention period.

Comments To The Proposed Rule

The public may comment on the proposed rule at www.regulations.gov or by mail to Debra A. Carr, OFCCP, Room C-3325, 200 Constitution Ave., NW, Washington, D.C., 20210.  All comments must be received by February 7, 2012 and include the identification number (RIN) 1250-AA02.  Federal contractors should continue to monitor the regulatory activity of the OFCCP and be prepared to make adjustments to their human resources practices and technologies to comply with the OFCCP’s expanded requirements.

On September 27, 2011, the EEOC filed suit against BAE Systems alleging that the company violated the ADA by firing a morbidly obese employee at one of its manufacturing plants.  The employee, who weighed more than 600 pounds, sorted parts on a raised platform, drove a forklift, and performed deskwork.  In its complaint, the EEOC alleged that BAE terminated the long-term employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.”  During the EEOC’s investigation, the company stated that the employee had difficulty bending, stooping, and kneeling.  It also contended that the employee had difficulty walking from the parking lot to the plant, from which it concluded that he had trouble walking around the facility.  BAE denied the employee's request to be moved to another position.  It also allegedly made no attempt to discuss reasonable accommodations.

At present, there are no federal laws designating weight as a “protected characteristic,” like race, sex, and religion under Title VII of the Civil Rights Act of 1991, or prohibiting against discrimination in employment on the basis of obesity.  Further, with the exception of Michigan and a few local jurisdictions (e.g., San Francisco), state and local laws likewise do not afford protection against obesity discrimination.  The EEOC’s suit against BAE, however, highlights an avenue that obese individuals may pursue for protection - the ADA.  Under the ADA, as revised by the ADA Amendments Act of 2008, an individual is considered disabled if he or she has a disability, has a record of a disability, or is regarded as disabled, and that disability “substantially limits one or more of [the individual’s] major life activities.”

Proactive employers can adapt their practices and policies to address this developing issue.  In addition to combating stereotypes about obese workers, employers should recognize obesity as a very real, potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA.  Employers may also consider other measures that address the root of obesity, such as implementing voluntary, private weight reduction programs or developing a healthier workplace culture, for example, by stocking vending machines with water and low-fat snacks, offering fitness fairs and health screenings, and partnering with local athletic clubs to offer employee discounts.

What This Means for California Employers

GINA already prohibits discrimination on the basis of genetic information in the areas of employment and health insurance.  Title II of GINA, which governs employers, prohibits the use of genetic information in hiring, termination, or making decisions related to compensation, terms, conditions, or privileges of employment.  Title II also restricts employers from requesting, requiring, or purchasing genetic information, with certain limited exceptions, and limits the disclosure of genetic information.  (A detailed discussion of the U.S. Equal Employment Opportunity Commission’s final regulations interpreting Title II of GINA can be found here.)  However, GINA’s scope is limited to employers who employ 15 or more employees.

SB 559 extends the prohibition on discrimination based on genetic information to employers employing five or more persons.  SB 559 also expands on the protections available under the federal law by prohibiting discrimination based on genetic information in the additional areas of housing, mortgage lending, public accommodations, emergency medical services, licensing exams, and programs administered or funded by the state.  In the employment context, SB 559 amends the California Fair Employment and Housing Act (FEHA), which already protects the right and opportunity of all persons to seek, obtain and hold employment without discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to also include genetic information as a prohibited basis for discrimination. 

FEHA’s definition of “genetic information,” as amended by SB 559, mirrors the definition set forth in GINA, defining “genetic information,” with respect to any individual, as (1) the individual’s genetic tests; (2) the genetic tests of the individual’s family members; and (3) the manifestation of a disease or disorder in family members of the individual.  “Genetic information,” as defined under both the state and federal law, also includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or family member of the individual.  Both laws, however, exclude from the definition information about an individual’s sex or age, which are already protected classes under state and federal civil rights laws.

Of particular importance to California employers is the greater potential for damages that potentially can be assessed for violations of SB 559 than for violations of GINA.  The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA, and Title VII’s cap on combined compensatory and punitive damages (excluding back pay and front pay) also applies to actions under Title II of GINA.  This cap ranges from $50,000 to $300,000, depending on the size of the employer.  In contrast, an employee who brings a civil action against her employer for genetic discrimination under FEHA faces no statutory limit on the amount of compensatory or punitive damages she may obtain.

Steps Employers Should Consider to Ensure Compliance with California and Federal Laws Prohibiting Genetic Discrimination

California employers should consider taking the below steps to ensure compliance with SB 559 and GINA: 

• Update company policies to include genetic information as a prohibited basis for discrimination, harassment, and retaliation;
• Train supervisors, human resources, and other hiring personnel regarding GINA and SB 559 compliance;
• Conduct an audit of any voluntary wellness programs to ensure that their policies with respect to genetic information comply with GINA;
• Revise any form requests for medical information to include the “safe harbor” language provided in the GINA regulations warning employees and health care providers not to provide genetic information in response to requests for medical information;
• Remove any genetic information from personnel files and place it in confidential medical files; and
• Post the most recent version of the “Equal Employment Opportunity Is The Law” poster, which reflects information about GINA.

Under Title VII, as under most other civil rights and fair employment statutes, plaintiffs alleging discriminatory discharge must “mitigate,” or limit, their economic damages by making diligent efforts to find subsequent work. The failure to mitigate is an affirmative defense, however. The defendant bears the burden to show a plaintiff has not been reasonably diligent in searching for comparable employment.

In Dresser Rand, a machinist was fired in December 2002 for insubordination, after he refused to perform work that he believed conflicted with his Jehovah’s Witness religion. He did not find a new job until 2004. When he filed suit over his discharge, the defendant employer filed a partial motion for summary judgment, asking the court to limit the plaintiff’s damages. The basis for the motion was that the employee had the opportunity to seek retraining on a different type of machine, “numerical controlled manufacturing machines” (called “CNC training”), but elected to seek only manual machinist jobs instead. The defendant submitted an expert report stating the employee “would have easily obtained employment as a CNC machinist by August 2003 had he taken advantage of available vocational retraining in the field of computer numerical controlled manufacturing.”  

The court granted the plaintiff’s motion to strike the expert testimony, finding the testimony irrelevant to the question of mitigation, since the employee was not under any obligation to pursue CNC training. The court noted “the duty to mitigate is not onerous, and an employee is not required to go into another line of work if substantially equivalent employment is unavailable.”

Significance To Employers

In the current economy, unemployment is obviously a significant issue. Companies facing wrongful discharge lawsuits thus have more interest than ever in raising a failure-to-mitigate defense, to minimize the impact of a discharged employee’s long-term unemployment. This may be a difficult defense to establish, however, if fired employees need not engage in any vocational training to expand the range of jobs available. Back pay and front pay awards may be higher as a result.

The EEOC has initiated an aggressive campaign to correct what it considers as widespread discriminatory practices in the hiring process. As part of this campaign, the EEOC is examining the alleged “emerging practice” of unemployment discrimination. On February 16, 2011, the EEOC held a public meeting in which advocates of the movement to prohibit unemployment discrimination testified that employers and staffing agencies are refusing to consider unemployed applicants for vacant positions at an increasing rate. According to these advocates, as well as the EEOC, unemployment discrimination has a “disparate impact” on minority, older, and disabled workers because those groups face higher-than-average unemployment rates.

Several members of Congress have supported the EEOC’s plans to prohibit employers from making hiring decisions based on unemployment status. Prior to the EEOC’s February public meeting, 54 members signed a letter to EEOC Chairperson Jacqueline Berrien encouraging the Commission to investigate the “very serious issue” of unemployment discrimination. Many of these Congress members also cosponsored H.R. 1113, a bill introduced by Rep. Henry Johnson, Jr. (D-GA) on March 16, 2011, which would amend Title VII to include “unemployment status” as a protected category, along with race, color, religion, sex, or national origin.

More recently, on July 12, 2011, Rep. Rosa L. DeLauro (D-CT) introduced another bill intended to prohibit unemployment discrimination. H.R. 2501, entitled the “Fair Employment Opportunity Act of 2011,” specifically targets employment actions commonly viewed as discriminatory against the unemployed, such as denying employment based on unemployment status, refusing to consider unemployed applicants, publishing job postings that bar applications by unemployed persons, and directing a staffing agency to do the same. Although the Act was introduced just weeks ago, it has already garnered the support of 30 cosponsors.

While it is too early to gauge just how far the EEOC and Congress will push the issue of unemployment discrimination, employers should be mindful of these recent trends.

In initially certifying the class, the court had accepted the plaintiffs’ argument that Dollar Tree’s payroll certification forms, which store managers were required to fill out weekly and which asked them to indicate whether they spent more than 50% of their work time each week performing exempt managerial duties, provided common proof of how the store managers were spending their time and would obviate the need for much individual testimony.  However, in the court’s July 8th decision, Judge Samuel Conti explained that subsequent developments in the case and in the case law had persuaded the court that individualized issues predominated and that trial as a class action would present “unmanageable difficulties.” 

With respect to developments in the case, Judge Conti observed that after the class was certified, briefings by both parties revealed that a majority of the class members had stated under oath that their payroll certification forms were not truthful or did not accurately reflect the time they actually spent performing managerial duties.  Thus, certification of the class could no longer be premised on the reliability of the forms as common proof of misclassification.  With respect to developments in the case law, Judge Conti explained that Dukes had “heightened” the court’s concerns and provided “a forceful affirmation of a class action plaintiff’s obligation to produce common proof of class-wide liability in order to justify class certification.”

Using language from the Dukes decision for support, Judge Conti found that the plaintiffs had “failed to provide common proof to serve as the ‘glue’ that would allow a class-wide determination of how class members spent their time on a weekly basis.”  Even though the plaintiffs had presented evidence of Dollar Tree’s centralized operational and human resources hierarchy and evidence that all store managers were given uniform training and training-related materials, received “daily planners” that required them to perform certain tasks, and were subject to other Dollar Tree policies that were intended to standardize the experiences of all store managers, Judge Conti observed that such evidence, although providing some proof that class members shared a number of common employment experiences, did not provide common proof of whether they were spending more than 50% of their time performing exempt tasks. 

Although it is too early to tell whether this decision is the beginning of a trend among federal courts, it is a positive sign that the Dukes case can be used as a meaningful weapon against not just overbroad employment discrimination class actions, but also against overbroad wage and hour class actions.  Stay tuned for further developments.

The plaintiffs sought to certify the class of current and former employees under Rule 23(b)(2) of the Federal Rules of Civil Procedure, which prescribes the rules for class actions seeking injunctive relief rather than money damages.  But, the Supreme Court, in an opinion delivered by Justice Antonin Scalia, held that the certification of the plaintiff class was inconsistent with both Rules 23(a) and 23(b)(2).

Under Rule 23(a)(2), the plaintiffs needed to show that there were “questions of law or fact common to” all of the plaintiff class members.  According to the Court, commonality requires the plaintiffs to demonstrate that the class members have suffered the same injury, which does not mean merely that they have all suffered a violation of the same provision of law.  Rather, “[t]heir claims must depend upon a common contention -- for example, the assertion of discriminatory bias on the part of the same supervisor.”  Slip op. at 9.   

The common contention, moreover, must be “affirmatively demonstrate[d]” because “Rule 23 does not set forth a mere pleading standard.”  Id. at 10.  One way to demonstrate a common contention is by presenting “significant proof that an employer operated under a general policy of discrimination … if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.”  Id. at 12-13 (citations and quotations omitted).  However, the Court found that “significant proof” is “entirely absent here.”  Id. at 13.  Although the Court recognized that Wal-Mart had a common “policy” of allowing discretion by local supervisors over employment matters, which can be the basis of Title VII liability under a disparate-impact theory, the mere existence of the policy does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common.  Rather, the Court found that “[t]o the contrary, left to their own devices most managers in any corporation -- and surely most managers in a corporation [like Wal-Mart] that forbids sex discrimination -- would select sex-neutral, performance-based criteria for hiring and promotion that produced no actionable disparity at all.”  Id. at 15. 

The Court, in a 5-4 decision, thus concluded that, because the plaintiffs failed to identify a common mode of exercising discretion that pervades the entire company, they failed to establish the existence of a common question, and reversed the class certification order.  Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented from the Rule 23(a) ruling, arguing that the majority blended Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones.  Justice Ginsburg added that “[t]he evidence reviewed by the District Court adequately demonstrated that resolving [plaintiffs’ claims of gender discrimination] would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores.  Rule 23(a)(2), setting a necessary but not sufficient criterion for class-action certification, demands nothing further.”  Dissenting op. at 8.

The Court also held that the plaintiffs’ claims for backpay were improperly certified under Rule 23(b)(2) because the monetary relief sought was not incidental to injunctive or declaratory relief.  Under Rule 23(b)(2), a class may be certified when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”  Rather than involving monetary damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief, the Court found that this case would require additional hearings to resolve the disparate merits and scope of each individual’s relief; and that contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay.  “[A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”  Id. at 27.  The Court thus concluded, in a 9-0 decision, that, “at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule.”  Id. at 20.

In McDonald-Cuba, the Tenth Circuit continued down the road paved by the court in its prior decision in Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).  In Martinez, the court held that conduct occurring after the filing of an employee’s Title VII complaint in federal court involving “discrete and independent actions” requires the filing of a new EEOC charge.  347 F.3d at 1210-1211.  Martinez had been fired after he filed his Title VII lawsuit.  Subsequently, without filing a new EEOC claim, Martinez attempted to add the claim in his summary judgment brief.  The court found that Martinez’s discharge was a “discrete and independent action” that should have been exhausted, even though it “occurred after the filing of the judicial complaint.”  Id. at 1211.  The difference in McDonald-Cuba was that the alleged retaliatory act involved the federal proceeding itself.

The plaintiff in McDonald-Cuba filed post-termination discrimination and retaliation charges with the EEOC against her employer.  After receiving a right-to-sue letter, she filed suit.  The defendant’s answer included three counterclaims: (i) breach of contract, (ii) intentional interference with prospective economic advantage, and (iii) breach of the duty of loyalty.  The plaintiff then filed an amended and supplemental complaint alleging that the defendant’s counterclaims constituted a bad faith effort to retaliate against her for engaging in protected activity.  The defendant later voluntarily dismissed the counterclaims.  The district court granted summary judgment for the defendant.  Upon review, the court, relying on Martinez, held that plaintiffs “must exhaust administrative remedies as to discrete acts of alleged retaliation that involve the filing of a counterclaim in federal court.”  Accordingly, the court vacated the district court’s entry of judgment on the added retaliation claim and ordered the district court to dismiss the claim without prejudice.

The Tenth Circuit’s decision is potentially at odds with a decision from the Fourth Circuit.  The Fourth Circuit found the exhaustion requirement satisfied where the EEOC charge alleged a “pattern of [retaliatory] conduct.”  Jones v. Calvert Group, Ltd., 551 F.3d 297, 304 (4th Cir. 2009) (finding that court could hear retaliatory discharge claim where plaintiff alleged retaliatory discharge in lawsuit but had alleged only retaliatory actions during her employment in EEOC charge).  As discussed above, the Tenth Circuit considered the defendant’s filing of counterclaims a “discrete act,” rather than an act that was part of a pattern of retaliation.  The court did not mention whether the plaintiff had alleged that the retaliation was continuing in nature in her EEOC charge.

The decision serves as a good reminder that employers cannot be “surprised” in litigation by allegations that a particular act was discriminatory, harassing, or retaliatory.  Employers should carefully review each of the plaintiff’s claims and ensure that every discrete act alleged to be discriminatory, harassing, or retaliatory has been included in a charge before the EEOC.  Where situations like that in Martinez and McDonald-Cuba arise in other jurisdictions, employers have an opportunity to argue for a similar hard-and-fast adherence to the exhaustion requirement. 

While the holding of the case is unambiguous, the Court left unanswered a number of important related questions, including whether an employer can insulate an adverse employment decision from prior discriminatory animus and whether any affirmative defense exists to the cat’s paw theory. The facts of the case, however, may provide a useful lesson to employers seeking to avoid being scratched by the cat’s paw.

Staub was employed by Proctor Hospital as a angiography technician. He also was a member of the U.S. Army Reserve, which required him to attend one weekend drill per month and to train full-time for a two to three week period each year. Staub’s first and second line supervisors were found at trial to be hostile to his military obligations. Collectively, they scheduled Staub for additional shifts without notice so that he could “pay back” his department for “everyone else having to bend over backwards” to cover his service; told a co-worker that he was a “strain” on the department and asked her to help “get rid of him;” made disparaging comments about his service; and issued him a biased “corrective action” and then recommended that he be terminated for violating the corrective action. 

The vice president of human resources, who ultimately terminated Staub’s employment, relied in part on the accusation from Staub’s supervisor that he had violated the corrective action in reaching her decision. She also reviewed the remainder of Staub’s file, which revealed complaints about his performance from other supervisors and co-workers. Staub challenged his discharge under the company’s internal grievance procedure and accused his supervisors of anti-military bias and of fabricating the claims underlying his corrective action. Critically, the vice president of human resources did not follow up on Staub’s claims of bias against his supervisors, and adhered to her earlier decision.

There was no evidence that the human resources executive harbored any anti-military bias towards Staub. However, her failure to follow up on Staub’s claim that his supervisors were discriminating against him was enough to create liability under the cat’s paw theory. Simply, she failed to take any action to sever the causal link between the discriminatory acts of the non-decision makers -- the biased corrective action and tainted recommendation that Staub be terminated -- and the company’s ultimate decision to terminate. Under a cat’s paw theory of liability, that inaction proved fatal to Proctor’s defense. 

Staub serves as a stark reminder to employers that employee allegations of illegal bias in their treatment by managers and supervisors should be independently investigated, regardless when and at what point in the discipline process the allegations are raised. Certainly, a senior human resources employee generally should be able to rely on the judgment and recommendation of lower level managers when considering whether to take disciplinary action against an employee. That said, an employer acts at its own peril by doing so in the face of claims of bias against the supervisor who is recommending the disciplinary action. By independently investigating Staub’s claim of anti-military bias, Proctor’s vice president of human resources might have verified the accuracy of his claims and rescinded the discipline, or determined that Staub’s termination was independently justified by the portion of his disciplinary file that was not tainted by the biased corrective action. Either way, she would have created a record that was much better suited to withstanding a cat’s paw discrimination challenge. 

The most prominent of these emerging types of claims is retaliation.  Retaliation claims have been filed with the EEOC at a steadily increasing rate in recent years. In 2010, for the first time in history, retaliation claims became the most frequently filed type of claim, even outnumbering claims of race and sex discrimination.  Retaliation claims can be problematic for employers. An EEOC spokeswoman was quoted by the Wall Street Journal as saying, retaliation “is easier [for an employee] to prove.” Adding to employers’ concerns, the Supreme Court recently expanded the rights of third parties to file retaliation claims. See Thompson v. North American Stainless, LP, 562 US __, 131 S. Ct. 863 (U.S. 2011). As retaliation claims continue to gain notoriety, and as employees become more aware of their rights to file this type of claim, the number of retaliation claims filed with the EEOC will assuredly continue to grow in the foreseeable future.

Another emerging type of claim about which employers should be concerned is disability discrimination. In 2010, the number of disability discrimination claims filed with the EEOC increased by nearly 20%. Due in large part to the enactment of the ADA Amendments Act of 2008 (ADAAA), this surge will continue as the EEOC publishes its final regulations concerning the ADAAA. These final regulations are expected to establish a broad definition of “disability,” thereby expanding the pool of qualified individuals who can file claims of disability discrimination. In fact, the final regulations reportedly will include a list of per se disabilities that cannot be challenged by employers. Official publication of the EEOC’s final ADAAA regulations is expected by April 2011. If these regulations prove to be as pro-employee as is anticipated, employers undoubtedly will face an increased number of disability discrimination claims.

Employers also should take note that the number of claims under the Genetic Information Nondiscrimination Act (GINA) may rise significantly in 2011. GINA is relatively new law and provides a new type of claim to individuals who believe they have been discriminated against because of their genetic information. In fact, the EEOC handled its first GINA claims in 2010. Although the number of GINA claims filed last year was relatively small (just 201 in total), employers should not overlook the expected emergence of this claim type. Since the end of the 2010 fiscal year, the EEOC has issued its final GINA regulations, which took effect on January 10, 2011. See EEOC Issues Final Regulations On The Genetic Information Nondiscrimination Act. Without question, employees will become more informed about their rights under GINA and more ambitious to test their rights under this new law.

It is critical that employers take appropriate steps to protect themselves against these emerging claims. Employers should update policies to correspond with the recent changes in law. Taking proactive steps now can contribute significantly in avoiding potential claims and in defending against claims filed with the EEOC and related local agencies.

This comes as the EEOC has hired more employees to handle the growth in volume and clear the backlog of unprocessed charges and actions. Despite the sharp increase in new charges filed during FY 2010, the EEOC was apparently able to slow the growth of charge inventory and ended the year with 86,338 pending charges -- an increase of only 570 charges, or less than one percent.  This is significant because during FY 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

The EEOC found no reasonable cause in 64.3% percent of the FY 2010 charges, and found reasonable cause in only 4.7% of charges. Of the 99,922 new charges, 35.9% were based on race, 29.1% based on sex, 11.3% based on national origin, 3.8% based on religion, 23.3% were based on age, 25.2% were based on disability, 1.% were based on the Equal Pay Act, 0.2% were based on the Genetic Information Nondiscrimination Act, and 36.3% were retaliation charges (in FY 2009, retaliation claims surpassed race as the most frequently filed charge).

The EEOC’s mediation program also set a record during FY 2010. Of the 99,922 new charges received, 9,370 or 9.3% were settled at the administrative stage, which was ten percent more than FY 2009 and resulted in $319.4 million in monetary benefits for claimants, not including monetary benefits obtained through litigation.

The EEOC also filed 250 lawsuits during FY 2010, resolved 285 lawsuits, and resolved a total of 104,999 private sector charges resulting in a total of $404 million in monetary benefits from employers, which the EEOC reported is “the highest level of monetary relief ever obtained by the Commission through the administrative process.”

The record level of charges and recoveries -- more than at any time in the EEOC’s 45 year history -- comes during the worst job market since the Great Depression, suggesting that the increase stems, in large measure, from an increase in adverse actions caused by the bad economy, and displaced employees who refuse to go without a fight.

The EEOC recently published its annual Performance and Accountability Report for its 2010 Fiscal Year.  In its Report, the EEOC attributed “[t]his surge” in the number of charges filed “to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act of 2008; the Genetic Information Nondiscrimination Act of 2008; and the Lilly Ledbetter Fair Pay Act of 2009,” as well as the “EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service.”

The number of discrimination charges filed with the EEOC likely will continue to increase into 2011.  As employers continue to feel pressure from the current economic climate to downsize and streamline their operations, it is more important than ever to follow and enforce lawful disciplinary and discharge policies, as well as ensure any leave and/or accommodation policies are compliant with the most recent amendments to the ADA, Genetic Information Nondiscrimination Act and the Lilly Ledbetter Fair Pay Act. 

For a complete breakdown of EEOC charge information by year, including the number of charges filed and the protected characteristic involved, please visit the EEOC’s website.

In 2008, Tratree was discharged because, he was told, his position monitoring oil flow on a section of a  pipeline was being eliminated, as his employer planned to decommission the section of pipeline on which Tratree worked.  The company ultimately did not decommission the section and replaced Tratree with a younger, white employee.  Tratree filed suit.

At a jury trial, a Texas district court excluded evidence that the decision maker who decided to “eliminate” Tratree’s position had a pattern of discriminating against African-American employees (e.g., every employee but one terminated by the decision maker was African-American, the decision maker never hired an African-American, and the decision maker allowed a culture of discrimination against African-Americans to persist).  The district court also excluded internal company  documents that, according to Tratree, showed its plan to target retirement-eligible workers for discharge.  After the jury rendered a verdict in the company’s  favor, the Fifth Circuit affirmed the district court’s evidentiary exclusions.

The Court last visited the “me too” evidence question in 2008 in Sprint / United Management Co. v.  Mendelsohn, 128 S.Ct. 1140 (2008).  In Mendlesohn, the “me too” evidence at issue was testimony by non-parties alleging discrimination at the hands of persons who did not play a role in the adverse employment action alleged by the plaintiff.  The Court held that it was for the trial court to decide whether to admit “me too” evidence, subject to abuse-of-discretion review.  Id. at 1145-1146.  The Court also said that the type of “me too” evidence at issue was neither per se admissible nor per se inadmissible, id. at 1143, and must be viewed in the context of the facts, id. at 1147. 

In asking the Court to hear his appeal, Tratree argues that his case is distinguishable from Mendlesohn because his “me too” evidence pertains to the practices of the decision maker at issue.  Tratree further argues that, since Mendlesohn, “lower courts remain confused about the standards for admission of ‘me too’ evidence.”

Should the Court accept Tratree’s case, it likely will clarify the standards of admissibility regarding “me too” evidence.  If the Court rules in favor of Tratree, employers may face tougher battles defending individual discrimination claims in some courts.  Such a ruling would certainly result in more “me too” evidence being used and admitted in certain cases. 

Read the Fifth Circuit Court of Appeals opinion from which Tratree appeals here.

In the recent Reid v. Google, Inc. decision, the California Supreme Court limited the application of the “stray remarks” doctrine and held that such comments cannot be “categorically” dismissed from consideration.  Fifty-two years old, Brian Reid joined Google as the company’s director of operations and director of engineering.  Every few weeks for the next two years, one of his supervisors allegedly made derogatory age-related comments to him, telling him that his ideas were “obsolete” and “too old to matter,” and that Reid was “slow,” “fuzzy,” “sluggish,” and “lack[ed] energy.”  Other coworkers allegedly referred to him as an “old man” and “old fuddy-duddy.”  Additionally, in his performance review, though he earned a rating that he “consistently [met] expectations,” another one of Reid’s supervisors commented: “Adapting to Google culture is the primary task for the first year here . . . . Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” 

Google eventually terminated Reid.  Reid subsequently filed an age discrimination lawsuit against Google.  The trial court granted Google’s summary judgment motion, but the court of appeal reversed.  On appeal, Google argued that the inappropriate remarks referenced by Plaintiff were irrelevant because they were made by non-decision-makers, were ambiguous, and were unrelated to the adverse employment decision.  The California Supreme Court granted review to decide whether to adopt the “stray remarks doctrine” which “deem[s] irrelevant any remarks made by non-decision-making coworkers or remarks made by decision-making supervisors outside of the decisional process.”  The court decided not to adopt the doctrine and instead held that California courts may not categorically dismiss “stray remarks” from consideration.  It further held that “a trial court must review and base its summary judgment determination on the totality of the evidence in record, including any relevant discriminatory remarks.” 

Even after the Reid decision, California plaintiffs will have a difficult time surviving summary judgment by relying on isolated statements not related to the adverse decision.  That said, this case serves as a good reminder to employers in California and across the country to train and re-train employees at all levels of the organization on proper workplace conduct.

In response, lawmakers introduced legislation in the House and Senate, including H.R. 3721 and S. 1756, which would effectively overturn Gross.  Legislators note that Gross imposes a higher burden for age discrimination plaintiffs than plaintiffs suing under Title VII or the Americans with Disabilities Act.  If passed, POWADA would standardize the burdens of production and proof in all employment discrimination cases.  Under POWADA, an age discrimination plaintiff -- like a Title VII plaintiff -- could prevail by proving either that an impermissible factor motivated the adverse action or practice complained of, even if other factors also motivated the action or practice; or by proving the action or practice would not have occurred in the absence of an impermissible factor.

Congressman Jerrold Nadler (D-NY), who chaired the hearings on H.R. 3721 in June, stated that Gross “creates substantially different standards across and between federal civil rights laws, thus undermining their predictability, scope, and effectiveness.”  According to Congressman Nadler, “H.R. 3721 seeks to restore the pre-Gross standard for proving age discrimination and the longstanding presumption that Title VII’s framework and precedent applies to other federal discrimination and retaliation laws.  We should act promptly to correct the Gross decision before more damage is done.” 

Congressman George Miller (D-CA), the Chairman of the Committee on Education and Labor who sponsored H.R. 3721, likewise notes that POWADA will “make the standard for proving age discrimination the same as those alleging race, national origin or religious discrimination,” and that Congress intends to “overturn the Supreme Court’s decision [in Gross] and ensure that workers with a legitimate claim will have their day in court.”  Congressman Miller introduced POWADA on October 6, 2009.  When contacted, representatives for Congressman Miller would not predict when a committee report may be issued on H.R. 3721, or when the bill might reach the House floor for a vote.  Bills start in House committees and enter Senate committees only after being passed by the House and received by the Senate.  Many bills are never referred to a committee at all, and most bills never receive committee consideration or are reported out.  POWADA remains in the first step of the legislative process, but it appears to have wide support and has been referred to numerous committees, including the House Subcommittee on Education and Labor and the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties.

In Kirleis, Alyson J. Kirleis filed a lawsuit against Dickie, McCamey & Chilcote. P.C., the law firm in which she was a shareholder, claiming sex discrimination, sexual harassment, unequal pay, and retaliation under both federal and state anti-discrimination laws.  Among other things, Kirleis alleged that she received less pay than her male counterparts and that discriminatory and harassing comments were made to her during her employment with the firm.  Among other allegations, Kirleis alleged that she was informed that she should give up her shareholder status to spend more time with her children.  She also claimed that she was told that “gals” in the firm should do lower level legal tasks, while the male lawyers took such cases to trial. The U.S. District Court for the Western District of Pennsylvania granted summary judgment to the law firm, based on the threshold question of whether Kirleis was an “employee” protected under the federal and state laws, or an “employer” without such protections. The district court held that certain factors of Kirleis’s shareholder position disqualified her from protection as an “employee” as defined by the federal and state laws, including Title VII and the FLSA.

In making its decision, the district court relied upon the six factors set out in a 2003 U.S. Supreme Court decision, Clackamas Gastroenterology Associates, P.C. v. Wells, which the Court used to determine whether a shareholder-director of a professional corporation is an employee or employer for application of federal anti-discrimination laws.  The six factors were based on a standard defined by the Equal Employment Opportunity Commission and focused on the amount of control the employing entity had over the shareholder-directors at issue. 

In affirming the district court’s decision, the Third Circuit agreed with the district court’s application of the Clackamas decision.  In particular the Court held that, because Kirleis was entitled to a percentage of the law firm’s profits and losses, could not be terminated from employment for cause without a three-fourths majority vote of the Board of Directors, and participated in firm governance, she was not a “mere employee” of the firm and therefore did not qualify for protection under federal and state anti-discrimination laws.

The Supreme Court’s Decision in Gross
In Gross, the Supreme Court ruled that plaintiffs must prove that their age was the “but for” cause of the adverse employment action to establish an age discrimination claim under the ADEA.  By doing so, the Court eliminated the use of the mixed motive theory to prove discrimination in ADEA actions.  As a result, plaintiffs cannot satisfy their burdens of proof by merely showing that age was a motivating factor in the adverse employment action.  Critics of Gross believe that the decision makes it nearly impossible for plaintiffs to win age discrimination claims unless they have the equivalent of a smoking gun. 

Responding to Gross
Currently H.R. 3721 has 32 co-sponsors and S. 1756 has 23 co-sponsors.  The bills are identical and their proponents hope that they will return age discrimination law to pre-Gross standards.  Specifically, the legislation establishes that the standard of proof for claims under the ADEA is “no different” from the mixed motive theory used in Title VII claims.  Additionally, the legislation states that the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to ADEA claims. 

Not Just Age Discrimination
Although the title of the legislation refers to age do not be fooled - the Protecting Older Workers Against Discrimination Act involves much more than the protected class of age.  In fact, the Act explicitly states that “the standard for proving unlawful disparate treatment under the [ADEA] and other anti-discrimination and anti-retaliation laws is no different than the standard for making such proof under [T]itle VII.”  With this language, the Act sweeps all other claims of discrimination or retaliation into its scope and as a result it has the potential to significantly impact numerous federal discrimination and retaliation laws.  Based on this, it seems apparent that the Act does more than just return age discrimination claims to the pre-Gross standard of proof. 

Clarification or Confusion?
The Act was created to clarify the standard of proof in age ADEA claims and to correct the perceived “misconceptions” relied on by the Supreme Court in Gross.  Yet, if this legislation is passed in its current form, it is likely that instead of simply bringing clarity to age discrimination claims, it will instead muddy the water in all other discrimination and retaliation claims.  The Act’s reference to “other anti-discrimination and anti-retaliation law” is not only broad but also ambiguous.  It will be necessary to turn to the courts for guidance on this ambiguity.  The Act will need to be further explained and this will likely be done through litigation where plaintiffs will rely on the Act’s broad scope to test the water with their various discrimination and retaliation claims.  Because the reach of this Act is beyond just age discrimination, it is important to track its progress and be alert to its potential affect on all “other anti-discrimination and anti-retaliation laws.”

The First Circuit Court of Appeals recently ruled on an FRD case, holding that “an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.”   Chadwick v. Wellpoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009).

According to a report released by the Center for WorkLife Law in February 2010, FRD litigation has increased 400 percent in the last ten years.  Joan C. Williams, a professor at the University of California's Hastings College of the Law and founding director of the Center for WorkLife Law, noted:

“Our database of family responsibilities discrimination suits contains 2,100 cases…. These cases have a 50 percent success rate. Let me say that again: a 50 percent success rate. That is really high. We code employers defeated at summary judgment as success and I think that's fair. The average verdict is over $570,000. There are 21 verdicts over $1 million and four over $10 million. So this is serious business.”

Two-thirds of the 2,100 lawsuits related to pregnancy and maternity leave. Nearly ten percent of the cases concerned elder care, while the rest involved care for sick children, care for ill spouses, time off for newborn care by fathers or adoptive parents, and care for a family member who has a disability. Most of the lawsuits were filed by women, while only twelve percent were filed by men.  Cases where employees achieved favorable verdicts include:

• Selecting an employee for layoff because she was pregnant.
• Denying a promotion to a female employee because she was the mother of young children.
• Firing a male employee who was on approved leave to care for a foster child.
• Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.

The report also identifies and highlights three factual patterns of which employers should be aware:

• New Supervisor Syndrome:  In some instances, employees with family care obligations were performing well and balancing family and work activities until their supervisor changed. The new supervisors often cancelled flexible work arrangements, changed employees’ shifts, or imposed new productivity requirements. On occasion, comments made by the new supervisors indicated that they were intentionally taking these actions to push family caregivers out.
• Second Child Bias:  In other cases, mothers reported little or no discrimination until they become pregnant with a second child or a multiple birth. Once the supervisor became aware that a female employee was having more than one child, he or she often took preemptive personnel action, apparently based on the assumption that the employee would no longer be sufficiently committed to work because of her additional family responsibilities.
• The Elder Care Effect:  In a growing number of cases, employees are discriminated against because they take time off to care for their elderly parents. As in second child bias cases, supervisors in elder care cases often act preemptively, seemingly based on the assumption that the employees’ commitment to work will be affected.

Employers can protect themselves against these situations and FRD lawsuits through supervisor training and sound legal advice.

The Paycheck Fairness Act would amend the Equal Pay Act of 1963 (prohibiting wage discrimination on the basis of sex) and significantly alter the proof and enforcement provisions of that long standing federal law.  The proposed amendments would provide additional remedies for claims of pay discrimination, including uncapped punitive damages, and would increase the burden on employers to prove that pay differences resulted from factors other than gender.  It also would prohibit retaliation against employees who inquire about, discuss, or disclose their own wages or the wages of other employees. 

Although it is difficult to predict whether the Senate will ultimately vote on and pass the Paycheck Fairness Act, the fact that a Senate committee is turning its attention to bill in today’s financial and political environment should signal to employers that the legislation is not likely to go away any time soon.  Indeed, President Obama mentioned the issue in his State of the Union address in January, stating,  “We are going to crack down on violations of equal pay laws -- so that women get equal pay for an equal day’s work.”  True to his words, the President created the National Equal Pay Enforcement Task Force in January.  In addition, the U.S. Equal Employment Opportunity Commission, which administers Title VII and Equal Pay Act claims, added more than 150 new hires by the end of 2009 and received an additional $23.9 million in funding for the current fiscal year for enforcement.  It is seeking $18 million on top of that for fiscal year 2011.

In light of the growing threat of legislative action, regulatory enforcement, and civil litigation (including class actions alleging systemic discrimination), employers should take proactive steps now to position themselves optimally for a legal challenge.  This may involve a privileged audit of the employer’s pay practices, including a review of policies and procedures and a statistical analysis of compensation data.  Because these are steps that undoubtedly would be taken in the event of a government audit or private lawsuit, employers should not wait until a legal proceeding to identify and address any problems that might exist.

Proactive steps such as these can have substantial benefits in risk reduction.  Employers need a well organized plan for identifying vulnerabilities, assessing employment policies and practices, monitoring outcomes of decisions on a statistical basis, and identifying solutions to address risk, all under the protection of attorney-client privilege.  In addition, employers need systems and tools to help ensure the most informed and defensible decision making.   A privileged compensation audit can help employers meet all of these needs.

These budget increases will allow the EEOC and DOJ to increase enforcement efforts.  EEOC Chairman Stuart Ishimaru noted that budget increases would “allow [the EEOC] to build on the progress [ ] made in hiring frontline staff, reducing a burgeoning inventory of charges, and increasing productivity.” BNA 20 Daily Labor Report AA-8.   Furthermore, Ishimaru, who has made the EEOC’s nationwide systemic enforcement program a top priority, noted that increased funding would enable the agency to “continue [its] focus on systemic enforcement.”  BNA 20 DLR AA-8

Systemic discrimination cases typically involve an employer policy or practice that results in a disparate impact upon a group of persons in a protected class or a class action.  Such cases often focus on employer hiring and promotion policies or practices.  Both the EEOC and the DOJ’s Civil Rights Division have authority to litigate systemic discrimination or pattern or practice cases under Title VII of the 1964 Civil Rights Act.  The EEOC handles systemic discrimination cases on behalf of employees in the private and federal sector while the Civil Rights Division litigates pattern or practice cases on behalf of persons employed by state and local governments.  In addition, the EEOC also has the ability to litigate systemic discrimination cases under many of the other laws that it enforces, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Systemic discrimination cases are important to the EEOC’s goal of eliminating employment discrimination because such cases often gain nationwide attention, can lead to large settlements or damage awards, and can impact a broad section of an industry or a profession.  Private employers should be aware that the EEOC often utilizes information that it gathers from individual charges and requests for information to build a case for potential systemic discrimination claims.

The EEOC’s fiscal year data, which ended September 30, 2009, reflects increases in certain types of discrimination and retaliation complaints.  Notably, disability complaints increased by 10 percent, from 19,453 to 21,451; national origin complaints increased 5 percent, from 10,601 to 11,134; and religious discrimination claims increased 3 percent, from 3,273 to 3,386.  Also, retaliation charges reached a record high of 2009, going from 32,690 to 33,613 over the span of a year.  Meanwhile, although the number of age bias claims decreased from 24,582 in 2008 to 22,778 in 2009, it was still the second-highest total ever. The EEOC also reported that it recovered a record high of $294 million through administrative enforcement and mediation. 

According to Stuart J. Ishimaru, acting chairman of the EEOC, “[t]he latest data tell us that, as the first decade of the 21st century comes to a close, the commission’s work is far from finished….Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.” 

Employers will likely see similar rises in liability risks and activity in the area of discrimination and retaliation in year 2010, particularly in light of the ADA Amendments Act of 2008, which went into effect on January 1, 2009, and expands the scope of the Americans with Disabilities Act by reversing or nullifying several Supreme Court rulings that significantly narrowed the scope of protection under the ADA. Similarly, the EEOC’s Fiscal Year 2010 Congressional Budget Justification includes, as the EEOC’s objectives for Year 2010, an increased focus on combating systemic discrimination (unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location) as well as charges raising priority, novel or emerging legal issues in the context of race discrimination.

To help manage exposure, employers should revisit their handbooks, policies, and day-to-day practices, and should take steps to make certain that their supervisors and human resources staff are trained to both identify and properly address potential discrimination and retaliation issues.
 

Although not an employment case, Iqbal did involve claims of intentional discrimination.  Accordingly, employers facing discrimination claims in federal court have been filing motions to dismiss complaints that do not meet the standard articulated in Iqbal. Many federal courts have been granting such motions and dismissing claims that likely would have survived prior to Iqbal.

Opponents of the Iqbal decision have not gone away quietly.  In July, Senator Arlen Spector (D-Pa) introduced the Notice Pleading Restoration Act (S. 1504).  More recently, on November 19, 2009, Representative Gerald Nadler (D-NY) introduced the Open Access to Courts Act of 2009 (H.R. 4115).  Both bills seek to reverse the Iqbal decision and reinstate a pleading standard articulated in a Supreme Court decision from 1957 (Conley v. Gibson).  Under that standard, a complaint was not subject to dismissal “unless it appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.”  The Supreme Court expressly overruled that standard in Iqbal.

The Iqbal decision rightly recognizes that lawsuits in which the plaintiff cannot even articulate specific facts to support a claim should be dismissed.  The new legislation, however, would prop up weak claims and ultimately make it more expensive for employers to fight off meritless lawsuits.  According to Representative Nadler’s press release,  the Open Access bill is supported by “a diverse coalition that includes the Leadership Conference on Civil Rights, Christian Trial Lawyer’s Association, Sierra Club, and National Senior Citizens Law Center.”

Although Congress certainly has other, more pressing issues on its current docket (e.g., health care, the economy, and environmental issues), we anticipate that proponents of these bills will push for prompt passage.

Genetic information includes information about an individual's genetic makeup or propensities (such as predisposition for medical problems) and those of an individual’s family members, and any information about diseases, disorders, or conditions that the individual’s family member has experienced.

Enforcement and remedies under GINA will be similar to those available under Title VII of the Civil Rights Act of 1964, as amended.  Thus, employers will face the possibility of increased litigation over claims of genetic discrimination.  Like other federal equal employment opportunity laws, GINA also prohibits employers from retaliating against a person for opposing or complaining about discrimination, filing a charge of discrimination, or participating in an employment discrimination inquiry, investigation or lawsuit.

Last month, the EEOC revised its “Equal Employment Opportunity is the Law” poster, which is a mandatory posting for covered employers, to include information about GINA.

ENDA defines sexual orientation as “homosexuality, heterosexuality or bisexuality”.  It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”  Like Title VII and other federal anti-discrimination statutes, ENDA would prohibit not only discrimination based on these factors but also retaliation against individuals who oppose discrimination or participate in any in an investigation, proceeding, or hearing under the Act.  ENDA would apply to employers, employment agencies, labor organizations and joint labor-management committees.

• Although ENDA would break much new ground, it is also notable for what it expressly would not do in its current version.  For example, ENDA would not:
• Require employers to provide employee benefits to unmarried couples;
• Require preferential treatment to any individual or group on account of an imbalance that may exist in any community, state, section, or other area;
• Require employers to collect statistics on actual or perceived sexual orientation or gender identity. 
• Allow claims of discrimination under a disparate impact theory;
• Prohibit uniform enforcement of rules and policies (such as anti-harassment policies) that do not intentionally circumvent the purposes of the Act;
• Prohibit an employer from denying an individual access to “shared shower or dressing facilities in which being seen unclothed is unavoidable” based on the individual’s actual or perceived gender identity, so long as the employer “provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition.”  (However, an employer would not be required to construct new or additional facilities in order to provide reasonable access.)

If ENDA passes, it will create new causes of action and likely will increase the amount of litigation currently faced by employers.  It also will create new obligations and costs that remain uncertain, such as costs related to modification of facilities (restroom facilities, locker rooms, etc.) and costs related to training and education of employees and managers.  It also remains unclear whether the proposed legislation might conflict with the constitutional rights of religious organizations.  Stay tuned for additional developments on this controversial bill.

Shiu is considered to be an aggressive advocate of employee rights and disadvantaged persons.  This, coupled with an expected increase in the OFCCP’s budget, suggests that the OFCCP’s enforcement efforts will be particularly active under her leadership.  Her new position currently is classified as a Deputy Assistant Secretary of Labor, which does not require Senate confirmation.  However, following a reorganization in the DOL, Shiu will report directly to Labor Secretary Hilda Solis, which could elevate her title to Assistant Secretary of Labor and require Senate confirmation.

Shiu has been an employment attorney with the Legal Aid Society of San Francisco since 1983.  She focuses primarily on employment cases of alleged race and sex discrimination.  Shiu also directs the Legal Aid Society’s Works and Family Project and is the Vice President of Programs.  Shiu graduated from the University of San Francisco School of Law, and spent several years in private practice before joining the Legal Aid Society.

In the federal arena, Shiu’s experience includes an appointment to the Department of Education’s Civil Rights Reviewing Authority during the Clinton administration.  She is also a former board member and past vice president of the National Employment Lawyers Association, a plaintiffs’ attorney group.

Under Lipnic’s leadership, the agency made the first revisions to the union financial disclosure regulations in forty years, and the Office of Federal Contract Compliance Programs (OFCCP) issued its first compensation guidance and regulations.  Lipnic also served as counsel for the House Committee on Education and Labor.  Before her work for Congress, Lipnic spent six years as in-house labor and employment counsel for the U.S. Postal Service, then the largest employer in the country.  Most recently, 1she has been Of Counsel with law firm Seyfarth Shaw LLP.   She received a B.A. from Allegheny College in 1982, and graduated from the George Mason University School of Law in 1991.  She is admitted to the Pennsylvania bar.

In July 2009, the President named Jacqueline A. Berrien as the next Chair of the EEOC.  Berrien has a strong background in civil rights advocacy, and particularly in the area of voting rights.  Since September, 2004, Berrien has been the Associate Director-Counsel for the National Association for the Advancement of Colored People (NAACP)’s Legal Defense and Educational Fund (LDF).  In that capacity, she supervises litigation, public education, and organizational work.  From 2001-2004, Berrien was a Program Officer in the Governance and Civil Society Unit of the Ford Foundation’s Peace and Social Justice Program.  Before that, she was an attorney with the Voting Rights Projects of the Lawyers’ Committee for Civil Rights and then Assistant Counsel for the LDF, where she coordinated the areas of voting rights and political participation. 

Berrien received a B.A. with high honors in government from Oberlin College.  She graduated from Harvard Law School, where she was General Editor of the Harvard Civil Rights-Civil Liberties Law Review.  She began her legal career by clerking for the Honorable U.W. Clemon, who was the first African-American U.S. District Court Judge in Birmingham, Alabama.  She has represented African-American voters before the United States Supreme Court and various U.S. Courts of Appeals and U.S. District Courts.  She also has taught trial advocacy at the Harvard and Fordham law schools, and is an Adjunct Professor of Law at New York Law School. 

In September 2009, President Obama chose Chai R. Feldblum to fill another vacancy on the EEOC.  Feldblum is a law professor at the Georgetown University Law Center, where she has taught since 1991.  She specializes in disability discrimination and gay and lesbian rights.  If confirmed, she will serve a five-year term.  Before Georgetown, Feldblum was legislative counsel to the American Civil Liberties Union (ACLU)’s AIDS Project, where she led efforts (among others) to draft and negotiate the Americans with Disabilities Act of 1990.  She also has also been instrumental in supporting the more recent ADA Amendments Act of 2008, and is considered an expert on the proposed Employment Nondiscrimination Act, which if enacted would prohibit discrimination based on sexual orientation.

Feldblum received her J.D. from Harvard Law School and her undergraduate degree from Barnard College.  She clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court.

All these nominations require Senate confirmation.  They are currently pending before the Senate’s Health, Education, Labor and Pensions Committee.  Some commentators speculate that Lipnic’s recent nomination will help speed along those of Berrien and Feldblum. 

President Obama has at least one other EEOC appointment on the horizon.  He will need to replace Commissioner Constance Baker, whose term expires in 2011. 

These new EEOC appointments may lead to new enforcement and litigation goals and priorities.  The Commission already has stepped up enforcement activity and likely will continue increasing the overall number of cases filed, particularly those involving systemic discrimination.  Focus likely will turn also to reducing the EEOC’s significant backload of charges, which has more than doubled since 2004.