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

The EEOC took this action in light of two relatively recent decisions by the U.S. Supreme Court relating to claims of disparate impact under the ADEA.  In Smith v. City of Jackson, 544 U.S. 228 (2005), the Court confirmed that an employer can defend against such a claim by showing that the challenged decision was based on a reasonable factor other than age (“RFOA”).  In Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008), the Court held that the burden falls on the defendant to prove the affirmative defense of an RFOA.  Neither case specifically stated what factors are “reasonable.” 

The proposed rule explains that a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances.  It is one that would be used in a like manner by a prudent employer mindful of its responsibilities under the ADEA.  The proposed rule lists six considerations as potentially relevant to the reasonableness determination:

• whether the employment practice and the manner of its implementation are common business practices;
• the extent to which the factor is related to the employer’s stated business goal;
• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately;
• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• the severity of the harm to individuals within the protected group, in terms of both the degree of injury and the number of persons adversely affected, and the extent to which the employer took preventative or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
• whether other options were available and the reasons the employer selected the option it did.

Not all criteria must point to reasonableness to establish the RFOA defense; the rule states that the list is illustrative, not exhaustive.  The rule also provides guidance regarding whether the factors considered by the employer were age-related.  The considerations for this inquiry include:

• whether supervisors are given unchecked discretion to subjectively evaluate employees;
• the extent to which supervisors were to evaluate employees based on factors known to be subject to age-based stereotypes; and
• the extent of training received by supervisors in applying evaluative factors and avoiding discrimination.

Assuming that the proposed rule will become final (after the public comment period expires), these considerations can serve as a filter for decision making.  Employers and their counsel who apply these considerations on the front end likely will find that risk is reduced, more sound decisions are reached, and challenges are more likely to be resolved in their favor.

Prior to issuing  its February 9 order, the district court dismissed the EEOC's Complaint, which asserted that 270 women had been sexually harassed by CRST.  By the time the EEOC's Complaint was dismissed, the court had disposed of the claims of all but 67 of the claimants on whose behalf the EEOC had brought suit.  In dismissing the EEOC's Complaint on behalf of the remaining 67 claimants, the court found that the EEOC "did not conduct any investigation of the specific allegations [of the 67 remaining claimants]...let alone issue a reasonable cause determination as to th[eir] allegations or conciliate them."  Specifically, the court found that with respect to the remaining claimants the EEOC failed to:  interview any of them or subpoena any documents to determine the veracity of their claims; make a reasonable cause determination as to their specific allegations; or attempt to conciliate any of their claims prior to filing the Complaint.  According to the court, the EEOC's failure to investigate the claims of the remaining claimants "deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of the dispute without the expense of a federal suit."

In awarding nearly $5 million in attorneys' fees and expenses to CRST, the court held that the substantial award to CRST was necessary to guarantee the observance by the EEOC of Title VII's procedures, particularly in the face of the EEOC's unreasonable conduct, which the court found imposed unnecessary burdens on CRST and the court.

This matter underscores the importance of formulating a sound litigation strategy, particularly as it relates to conciliation, during the EEOC's investigation of Title VII-related claims.  In the absence of such a strategy, an employer may miss a rare opportunity to recoup defense costs that are needlessly increased due to the agency’s failure to fulfill its statutory duties, and investigate the matter responsibly and fairly.  Conciliation should never be used or offered for any purpose other than to reach fair resolution of a case.  But an additional benefit of the conciliation position is that, if the EEOC declines to participate reciprocally, and in good faith, its position may expose the wholesale deficiencies of its litigation approach.  The result, as illustrated above, can be very satisfying to the employer.

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.
 

Facebook also played a prominent role in another recent legal case, Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  A plaintiff injured in a car accident alleged that he was suffering severe loss of enjoyment of life.  The defendant argued that photos and text on the plaintiff’s Facebook page might tell a different story.  An appellate court ruled that the material should have been produced in discovery, even if privacy issues might be implicated.

Individuals who post information on Facebook and other social media are not the only ones who face risks.  Currently the Equal Employment Opportunity Commission (EEOC) is considering the role that social media might play in actions under the Genetic Information Nondiscrimination Act (GINA), which became effective in November 2009.  GINA prohibits employers from making decisions based on genetic information, which includes information showing genetic predisposition to medical problems such as family medical history.  Because individuals might post such information on social media sites, employers easily could obtain such information.

Many employers search for information about job applicants and employees on social media sites.  Currently there are no prohibitions against doing so.  The prevailing rationale is that information made available to the public is equally available to employers.  Although GINA does not prohibit employers from obtaining genetic information through lawful internet searches, it does prohibit employers from making adverse employment decisions based on such information.  Once an employer obtains such information, from whatever source, the employee or the EEOC could argue that an adverse decision was motivated by such information. 

While individuals should exercise caution in the type of information they post about themselves on social media sites, employers also should beware of trying to obtain too much information about their employees and applicants.  A possible rationale for a legal challenge would be that employers would not seek such information if they did not intend to use it.  Thus, social media will continue to pose risks for employees and employers alike.

Solis said the DOL will be working with "advocacy groups and other stakeholders" to develop and distribute campaign materials to workers.  She noted that this initiative signifies her intent to increase both employee outreach efforts and enforcement efforts against employers who are accused of violating the law.  Solis had a strong rebuke for employers who are not in compliance with minimum wage and overtime standards: "There is no excuse for employers who disregard federal labor standards - especially those that are designed to protect the most vulnerable in the workplace."
 
To help support this effort, Solis has hired 250 new wage and hour investigators, who she says will ensure that the DOL can properly respond to complaints and "undertake more targeted enforcement."  Solis vows that the DOL "will not rest until the law is followed by every employer."
 
We have commented previously that the federal agencies charged with enforcing workplace protection laws, such as EEOC, OSHA, and NLRB, all have indicated that they will be pursuing employee complaints more aggressively.  Solis' recent announcement is yet another example that the Obama administration is taking a more employee friendly approach to federal enforcement.  Employers should be taking steps now to ensure that their pay practices comply with the FLSA and applicable state wage and hour laws, which may include a privileged pay practices audit by experienced legal counsel.
 

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.

Travel.  Employers should never require anyone who is exhibiting flu like symptoms to travel.  Also, the CDC has clear guidelines regarding which populations are at most risk for serious complications from H1N1.  Employees who fall within these risk categories may balk at travel to areas that do not have an appropriate level of health care.  Employers should try to work around such issues by postponing travel or using videoconference or other options to avoid travel to areas without sophisticated medical facilities.  For those employees who are able to travel without increased risk, employers should keep them informed of screening issues at their destinations.  For example, Japan and China are screening arriving passengers for flu like symptoms.  

Sickness at Work.  Of course, all employees who are exhibiting flu like symptoms at work should be sent home.  The current CDC guidelines are that individuals who do not work in health care should stay home from work until they have been fever-free for at least 24 hours.  This guidance is not foolproof.  Individuals can continue to spread the flu virus for days after they have stopped running a fever.  However, this approach should at least remove the obviously contagious from the workplace.  Some employers are going further and requiring employees who have family members with H1N1 to stay home due to the risk that the employee may be carrying the virus.  This precaution is not recommended, as it will likely have little impact on disease transmission in the workplace. 

Notifying Co-workers of an Employee’s H1N1 Diagnosis.  The EEOC has taken the position that employers cannot share information that a co-worker has H1N1 to others in the workplace who could have been exposed.  Clearly, this information cannot be shared if the employer only learned of the diagnosis through HIPAA protected information, and management should not ask employees who are out sick what is wrong with them.  However, where an employee with the flu has volunteered to management his or her diagnosis, the EEOC’s gag-rule seems beyond the scope of supporting law.  Employers should understand that there is legal risk associated with sharing this information (due to the EEOC’s position).  However, many employers are sharing the information with co-workers on a case by case basis if the circumstances warrant such steps, such as if the exposed co-workers are known to fall within one of the high risk categories (e.g., pregnancy).

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.