Tag Archives: EEOC

New EEOC Rule Requires Employers to Retain Workers Records to Prove Compliance with GINA

Arnstein & Lehr attorney Lori Adelson

Lori Adelson

The U.S. Equal Employment Opportunity Commission (EEOC) has implemented a new record-keeping rule that requires employers to retain workplace records for potential Title II investigations to demonstrate their compliance with Title II of the Genetic Information Nondiscrimination Act (GINA). GINA prevents the use of genetic information to discriminate against individuals whose genetic records may call into question the costs associated with potential medical treatment. This new record-keeping rule goes into effect on April 3, 2012.

Read full article

The EEOC probably prefers Coke: Pepsi agrees to pay $3M to settle charges relating to discriminatory background checks

For further evidence that the EEOC is ramping up enforcement efforts related to job applicant background checks, one need look no further than Pepsi.  Pepsi recently agreed to pay more than $3 million to settle EEOC charges alleging that Pepsi’s use of criminal background checks adversely affected more than 300 African American job applicants.  Click here to read the EEOC’s press release on this subject.

According to the EEOC, Pepsi’s background check policy led to Pepsi’s rejection of job applicants who had been convicted of minor offenses even when those convictions were unrelated to the jobs applied for.  Even more troubling, Pepsi relied on its background check policy to reject job applicants who had merely been arrested – but not convicted – of crimes.

Read full article

EEOC Performance in 2011, What it Could Mean for Employers in 2012

by Ian G. Nanos

The Equal Employment Opportunity Commission (“EEOC”) recently issued its Performance and Accountability Report for Fiscal Year 2011 As reported by the EEOC, 2011 was a record year.  A quick review of these highlights, as well as the pending docket, reveals a growing trend and employers should pay attention.

First the highlights.  During FY 2011, the EEOC received a record number of discrimination charges – nearly 100,000 against private sector employers alone.   More importantly, the EEOC also recovered a record $364 Million through administrative enforcement.  Even with this high volume of new charge activity, the EEOC made a lot of progress closing cases – as one could expect given the record high recovery – and managed to reduce its charge backlog by 10%.  This reduction is also a significant development because the EEOC has not been able to reduce its pending charge backlog from one year as compared to the previous year since it did so back in FY 2002. 

Read full article

George Asimou was featured in "EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries," published by RBMA

George Asimou was featured in “EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries,” published by RBMA

EEOC on the Americans with Disabilities Act: One rule– No Clear Boundaries
By: George Asimou

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C. The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

Read full article

EEOC Continues to Challenge "Inflexible Leave" Policies and Reaches a $1.3 Million Settlement with Denny’s

By:  Kara M. Maciel and Casey Cosentino

The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive quest to challenge “inflexible” medical leave policies, as Denny’s Inc. agreed earlier this month to pay $1.3 million to settle a nationwide class action lawsuit. Denny’s also entered into an injunction barring its restaurants from future violations of the Americans with Disabilities Act (ADA), including denying disabled employees reasonable medical leave and retaliating against employees for bringing disability discrimination claims.

The EEOC filed the class action in 2009 in federal court in Maryland alleging, among other things, that Denny’s violated the ADA by enforcing a leave policy that automatically denied additional medical leave beyond a predetermined limit, even when the employee requested additional leave as a reasonable accommodation. This “inflexible” leave policy, common to many employers, led to the termination of the employees.

Read full article

EEOC on ADA: One rule — no boundaries

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C.  The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

Read full article

New Regulations Make ADA Claims More Accessible

by Teiko Shigezumi and Carrie Corcoran

The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009.  The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage.  The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. The Regulations, however, alter the interpretation and application of this term in fundamental ways. 

Read full article

Why Doesn’t the Supreme Court Provide a Pathway Through the Morass of Retaliation Law?

The EEOC has reported that it receives more charges of retaliation than any other type of employment discrimination charge, and that there are thousands of cases involving allegations of illegal retaliation filed every year.  Retaliation is often prohibited by statute, but the Supreme Court has expanded the scope of actionable retaliation lately, holding that there was a cause of action for retaliation even though the statute in question did not expressly cover the situation at issue.

The Fair Labor Standards Act (FLSA) prohibits discrimination against an employee “because such employee has filed any complaint” under the Act.  In Kasten v. Saint Gobain Performance Plastics Corp. (PDF), 563 U.S. ___ (2011), the U.S. Supreme Court held that, although there can be no retaliation if the employer is not on fair notice of the initial complaint, a complaint need not necessarily be in writing to trigger protection under the Act.  

Read full article

Best Practices for Compliance with the New ADA Regulations

The Equal Employment Opportunity Commission (“EEOC”) recently issued the final Regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”).  The Regulations become effective on May 24, 2011.  It has taken the EEOC over two (2) years from the effective date of the ADAAA (January 2009) to issue the regulations.   The ADAAA and the Regulations are designed to change the focus of inquiries under the American with Disabilities Act of 1990 (“ADA”) from whether an individual’s impairment meets the definition of a “substantial impairment” that constitutes a disability, to issues of discrimination, qualifications, the interactive process, and reasonable accommodation.

The Regulations also lower the bar for finding a “substantial limitation,” and the Regulations take the position that an impairment need not last a particular length of time to qualify under the ADAAA –an impairment lasting less than six months can be “substantially limiting.”  Most ADA claims will now focus on whether the employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.

Read full article

Be Prepared for New EEOC Enforcement Efforts

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position.  Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.

Read full article