A federal court recently ruled that an employer’s rigid application of its light-duty policy could be used as evidence of pregnancy discrimination. The employer had a policy of providing light-duty jobs only to employees with on-the-job injuries, which the Court here, and the EEOC (Equal Employment Opportunity Commission) in general, have blessed as not showing disability bias against those with impairments caused off-the-job. Here, however, a pregnant certified nursing assistant who had a temporary lifting restriction was denied a light-duty job. Since her job required lifting in assisting nursing home residents, the employer considered her to have “resigned” when the employee gave notice of the doctor’s restrictions. The employee sued.
Continue Reading Rigid Application of Light-Duty Policy May Discriminate Against Pregnant Employees
Religious Accommodation Ruling Confirms Employment Law Trend Toward Candid Interactive Discussion
A federal circuit court’s recent ruling provides more evidence of a prevalent employment law trend that has developed in the last few decades. The trend? Candid interactive communication about an employee’s rights and an employer’s responsibilities.
Over the past few decades, attentive employers have seen courts favor those who communicate forthrightly concerns or issues and correspondingly disfavor those who do not. While there are anecdotal exceptions, we have seen this trend in the following:
Continue Reading Religious Accommodation Ruling Confirms Employment Law Trend Toward Candid Interactive Discussion
EEOC Continues Attack on Employer Practices that “Automatically” Disqualify
A trucking company has a practice of not returning any trucker to a driver position if that trucker has admitted to being an alcoholic, even if the trucker completes a treatment program. The EEOC sued on behalf of a trucker and challenged this practice. In this instance, however, the trucker did not complete a treatment program. He explained that he did not complete a program since it would be futile – he could not get his job back anyway.
In a recent ruling, a District Judge in Arkansas ruled that the trucking company’s practice of automatic disqualification of the alcoholic trucker violated the Americans with Disabilities Act (“ADA”). The Court ruled that a jury will have to decide the merits of the specific driver’s claim, but the Court entered an injunction against the trucking company from further use of its practice. EEOC v. Old Dominion Freight Line, Inc. (W.D. Ark. June 24, 2013) found here.
Continue Reading EEOC Continues Attack on Employer Practices that “Automatically” Disqualify
EEOC Continues Aggressive Look at Employer Leave Policies
The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).
Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.Continue Reading EEOC Continues Aggressive Look at Employer Leave Policies
EEOC Approves Strategic Plan, Focus Includes Equal Pay and Systemic Enforcement
The Equal Employment Opportunity Commission (EEOC) has approved its strategic plan for fiscal years 2013 to 2016 to set the agency’s national enforcement priorities. The Plan identifies the following six national priorities: eliminating barriers in recruitment and hiring; protecting immigrant, migrant, and other vulnerable workers; addressing emerging and developing employment discrimination issues; enforcing equal pay
Requiring Employee to Seek Counseling May Violate ADA
The Americans with Disabilities Act (ADA) prohibits a covered employer from requiring an employee to undergo a “medical examination,” unless the examination is shown to be job-related and consistent with business necessity. The Sixth Circuit Court of Appeals recently held that an employer’s demand that an employee seek psychological counseling as a condition of continued employment may constitute a violation of the ADA.
In Kroll v White Lake Ambulance Authority, Case No. 10-2348 (6th Cir. 2012), the plaintiff, Emily Kroll, was an Emergency Medical Technician for White Lake Ambulance Authority (WLAA). She had an affair with a married co-worker and began to exhibit stress and anger at work. Several co-workers expressed to management concern for her well-being. On one occasion, while transporting a patient in emergency status, she was screaming at someone on her telephone. WLAA questioned whether Kroll could perform her job safely and told her that she must attend counseling in order to continue working. There was a dispute whether WLAA required that the counseling be psychological in nature. Kroll refused to seek counseling and did not return to work at WLAA.
Continue Reading Requiring Employee to Seek Counseling May Violate ADA
EEOC Issues Guidance on Domestic Violence Responses
The EEOC recently issued guidance on how an employer’s stereotypical responses to victims of domestic violence, sexual assault or stalking could run afoul of the discrimination laws. The guidance gives some examples which, to the savvy employer, may appear obvious examples of inappropriate (and unlawful) stereotyping. However, the guidance is worth the read. Why? A
Last Chance Agreements – Asking for Waiver of Discrimination Claims Perilous
Some employers use last chance agreements (“LCA”), particularly in union settings, to allow hourly employees “one last chance” to improve performance. In return, the employee waives the right to use the union’s grievance and arbitration process if later termination is due to continued failure to improve performance or due to another policy violation. Employers will explain that the employee otherwise would be terminated, but can remain employed in return for signing this “one last chance” agreement; if the employee fails to sign the LCA, the employee will be terminated for the underlying violation which led the employer to offer the LCA.
Some employers also require employees to release statutory civil rights in an LCA. As an employer recently learned, this practice is hazardous and can lead to significant liability.Continue Reading Last Chance Agreements – Asking for Waiver of Discrimination Claims Perilous
EEOC Issues Guidance on Criminal Background Checks
On April 25, the EEOC approved enforcement guidance on an employer’s use of criminal background checks in making hiring decisions. By a 4-1 vote, the EEOC clarified that a criminal background check is not unlawful.
BUT, the Commission explained its view that the use of criminal histories can be discriminatory in “impact” on minorities and will result in liability for employers if they cannot show “business necessity” for rejecting an applicant based on the applicant’s criminal past.Continue Reading EEOC Issues Guidance on Criminal Background Checks
Transgender Status Now Protected Under Title VII
The EEOC recently ruled that Title VII’s prohibition of discrimination “because of . . . sex” now includes protection for any transgender individual. With this ruling, the EEOC expressly overturns earlier EEOC decisions to the contrary dating back to 1984, 1994 and 1996. Employers should be aware that, according to the EEOC’s current interpretation, any transgender applicant or employee enjoys all of Title VII’s protections against discrimination or harassment.
The complainant had applied for a job with the ATF while a male and believed she was going to be hired given certain promises made in the application process. Later, when the ATF learned she was transitioning from male to female, she was told that funding for the job was no longer available; that information, she later learned, was not accurate.Continue Reading Transgender Status Now Protected Under Title VII