Tag Archives: EEOC

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Discrimination for being “unmanly”

The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.

In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the  court reviewed the jury’s findings and awarded damages.  The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”

This case arose when a worker, Kerry Woods, was subjected to sex harassment.  Woods was often sexual derogatory terms regarding Woods’ sexuality.  In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods.  When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”

After trial the jury found that this verbal and physical harassment occurred daily.  The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.

via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.

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Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

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EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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EEOC wins over $1.5 million in sexual harassment case

The EEOC has issued a press release announcing a big victory for sexual harassment cases.  These cases are often dismissed.  For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints.  Of these, 53% were found to have no reasonable cause.  This is an increase from 2010, where the percentage was of 50.1%.  Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar  sexual remarks at the company’s Avaya Memphis area warehouse facility.  Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

 

via Jury Awards More Than $1.5 Million in EEOC Sexual Harassment and Retaliation Suit against New Breed Logistics | U.S. Equal Employment Opportunity Commission (EEOC) – JDSupra.

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EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking

The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:

Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.

The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It’s a good summary.

via Workplace Prof Blog: EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking.

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EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts

From ABA:

The Equal Employment Opportunity Commission has published new guidance that illustrates why a blanket ban on hiring employees with criminal records could violate discrimination laws.The guidance uses statistics to show how a blanket ban could have a disparate impact based on race and national origin. Such bans would violate Title VII, absent a showing by the employer that the exclusions are “job related and consistent with business necessity,” the guidance says.

The Enforcement Guidance can be found here.

via EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts – News – ABA Journal.

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EEOC Class Action Backfires; 8th Circuit Sides with Defendant Facing ‘Moving Target’ of Discovery

A federal appeals court ruling has made it more difficult for the Equal Employment Opportunity Commission to pursue large discrimination cases in the Midwest.

The ruling by the St. Louis-based 8th U.S. Circuit Court of Appeals criticized the agency for waiting until discovery to investigate sexual harassment claims on behalf of 67 women in its class action against a trucking company. According to the Associated Press, the EEOC suit “has backfired and put the agency on trial.”

The story quotes management side lawyer Gerald Maatman Jr. The opinion is “incredibly significant,” he said. “It is a signal by the federal courts that the tactics the EEOC has been using over the last several years may be improper.”

The EEOC filed the suit against interstate trucking company CRST Van Expedited Inc. after receiving a complaint from Monika Starke of Azle, Texas, who claimed one of her trainers made inappropriate comments and another forced her to have sex to get a passing grade.

The EEOC first sued on behalf of 270 women, but U.S. District Judge Linda Reade of Cedar Rapids, Iowa, said the agency used “a ‘sue first, ask questions later’ litigation strategy” and barred many of the claims. The EEOC appealed the dismissal of claims on behalf of 107 women, including 67 claims dismissed for failure to investigate and conciliate.

The appeals court opinion upheld most of Reade’s decision, but reinstated claims by Starke and and one other woman who said her trainer entered the cab wearing only his underwear, according to the AP account.

“There was a clear and present danger that this case would drag on for years as the EEOC conducted wide-ranging discovery and continued to identify allegedly aggrieved persons,” the appeals court said, quoting from Reade’s opinion. “The EEOC’s litigation strategy was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial.”

via EEOC Class Action Backfires; 8th Circuit Sides with Defendant Facing ‘Moving Target’ of Discovery – News – ABA Journal.

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No Fault Attendance Policies

A nationwide class disability lawsuit against telecommunications giant Verizon Communications has been settled for $20 million and significant equitable relief, the U.S. Equal Employment Opportunity Commission (EEOC) was no doubt happy to announce today – it’s the largest single disability bias settlement in the agency’s history. The EEOC filed suit against 24 named subsidiaries of Verizon Communications, alleging the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

via Verizon will pay $20 million to settle EEOC nationwide disability bias suit over inflexible attendance policy | Employment Law Daily.

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EEOC on GINA and ADA

Maintaining employees’ personal and occupational health information in a single electronic medical record (EMR), particularly one that permits individuals with access to the EMR to view any information in the record, “presents a real possibility” that the ADA or the Genetic Information Nondiscrimination Act (GINA), or both, will be violated, according to an EEOC informal discussion letter released on June 30, 2011.

An agency letter, dated May 31, 2011, and signed by EEOC Legal Counsel Peggy R. Mastroianni, addresses two issues:

1. whether an employer or its agent should have access to an employee’s personal health information without the employee’s consent; and

2. the manner in which employers must safeguard employees’ medical information.

Title I of the ADA and Title II of the GINA both limit employer access to medical information. The letter provides a roadmap to when personal health information about applicants or employees may be accessed, regardless of whether an employer or an occupational health provider maintains information in paper or electronic files.

via Keeping employees’ personal and occupational health information in one file poses risk of ADA and GINA violations, EEOC letter warns | Employment Law Daily.

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