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March 6, 2014

Religious Garb and Grooming – New Publication from the EEOC

Filed under: Compliance,EEO,Legal Issues,Title VII11:45 am

Dress codes are always a hot topic in HR!  Deciding what is allowed, what is not, and what kind of perception a company wants to create with its customers, are all affected by how its employees dress and groom.  Employers have been warned against being too strict in their dress code policies and to realize that at times they must make exceptions to their usual rules or preferences to be in compliance with Title VII of the Civil Rights Act of 1964.  For instance last year, clothing retailer, Abercrombie & Fitch, learned the hard way (several times) not to discriminate against an employee or applicant whose sincerely held religious beliefs require them to wear hijabs.

To help employers sort out this sometimes personal topic, the Equal Employment Opportunity Commission (EEOC) today issued a practical guide, entitled “Religious Garb and Grooming in the Workplace:  Rights and Responsibilities” along with a Fact Sheet regarding the same.  This guide provides practical advice for employers and employees, and includes a question-and-answer format with numerous examples based on EEOC litigation.  It is hoped that this guide will protect employees and applicants from job segregation, workplace harassment, retaliation, and discrimination based on their religious beliefs.

Check out the EEOC’s new publication today!

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December 18, 2013

Hiring Managers – Train Them!

Often when an employee receives a promotion to a managerial position, they are not always prepared for all the responsibilities that come with it, like managing employees.  Sure, they have knowledge and certain talents, and a solid understanding of the expectations of the job or they wouldn’t have been selected.  But, do they know how to hire skilled, qualified individuals and avoid discrimination?  And, better yet, do they know how to inform an applicant they have been denied the job?  If they don’t, it could cost you $80,000!

In a recent case, the Equal Employment Opportunity Commission (EEOC) settled a charge of age discrimination requiring Bay State Milling Company pay $80,185.  The EEOC’s suit charged that Bay State Milling Company discriminated against Gary Legore, a qualified applicant, when the hiring manager for the vacant miller position rejected him because of this age.  The hiring manager informed Legore of the company’s desire to hire a younger individual for the job.  [Italics are mine.]  The company ultimately hired a 22-year-old with less experience than Legore.  Ouch!

An EEOC official stated, “When a company is seeking someone to fill a vacant position, it is important that it looks to an individual’s qualifications and ability to do the job and not to his or her age, which should never be a factor in a company’s decision to hire.”  It is clear the EEOC does not tolerate discrimination of any kind and neither should you!

Training managers to be successful in a new position (or an established one) is imperative.  Giving them practical guidelines for interviewing and conversing with an applicant will help them practice focusing their attention on job-related information and the applicant’s qualifications using an unbiased view.  Hiring managers will appreciate your assistance and value the trust you have placed in them to build a skilled workforce.

Contact HRN for more information about hiring policies and other useful tools for managers.

 

Source:  www.eeoc.gov

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August 16, 2013

HR Fact Friday: Is Obesity a Disability Under the ADA?

Filed under: EEO — Tags: , , 6:00 am

The American Medical Association (AMA) recently designated obesity as a disease, calling it a “multi-metabolic and hormonal state” that leads to a number of health problems. This determination likely will mean that health insurers will rethink coverage for various obesity-related claims, but it also may have implications for employers. For example, commentators are now asking the question of whether courts and the Equal Employment Opportunity Commission (EEOC) will conclude that obesity is a disability under such anti-discrimination laws as the Americans with Disabilities Act (ADA). At least one commentator predicts the answer to this question will be “yes.”

The EEOC is on record stating that morbid obesity is a physical impairment that may be a disability under the ADA. Moreover, Congress amended the ADA in 2008 to broaden the definition of a disability to include more conditions and more persons with impairments. Thus, some believe the courts will soon find more circumstances where the newly-recognized disease of obesity is a basis for coverage under the ADA. HR professionals and supervisors need to keep an eye on this issue. Of course, no one should be fired because he/she is obese, but employers need to be aware that if you are firing an obese person a new claim under the ADA is possible and you should make sure the termination is documented, justifiable, and consistent with other business practices. Employers also may face requests for accommodations based on obesity and must be ready to analyze/deal with the same.

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May 24, 2013

HR Fact Friday: First GINA Lawsuits Filed

Filed under: EEO — Tags: 9:32 am

The EEOC has filed what is believed to be the first two lawsuits under the Genetic Information Nondiscrimination Act (GINA). GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process. In the EEOC”s first lawsuit (which was settled for $50,000 right after filing), the plaintiff was a temp working as a memo clerk for an Oklahoma fabrics distributor. When her temporary assignment was coming to an end, she applied for a regular job in that position. The employer made an offer of employment and sent the plaintiff to its contract medical examiner for a pre-employment drug test and physical. At the physical, the employee was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history (e.g. heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family). The lawsuit followed after the company rescinded its job offer.

Regarding the lawsuit, EEOC General Counsel David Lopez said, “Employers need to be aware that GINA prohibits requesting family medical history. When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis. “In the second lawsuit, according to the EEOC, a New York employer (a nursing and rehabilitation center) conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired, and as part of this exam the employer requested family medical history, a form of prohibited genetic information.

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September 21, 2012

HR Fact Friday: Investigation Confidentiality Instructions Questioned

Filed under: EEO,Employment Law,Legal Issues — Tags: , , , 6:00 am

The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have issued separate statements calling into question the legality of blanket employer instructions given to employees to keep workplace investigations confidential. The NLRB recently decided that an employer’s complaint policy that required an employee not to talk with co-workers about his/her workplace complaints during an investigation violated the National Labor Relations Act (NLRA) rule allowing employees to discuss workplace conditions with each other. This ruling applies in both union and non-union settings.

The NLRB said that rather than using a general blanket rule, an employer should only give such a confidentiality instruction in specific and individual cases where there is an established need to protect witnesses, avoid spoliation of evidence or fabrication of testimony or to prevent a cover-up. Employers probably should document specific findings of these possible problems before giving any confidentiality instructions and may want to update their policies to explain when such confidentiality instructions will be given. The EEOC’s critique of confidentiality instructions came in the form of a recent letter from a field office sent to an employer asserting that its confidentiality policy violated employee rights.

One of the issues the EEOC seemed concerned about was that the employer’s confidentiality policy was so broad it might be interpreted by employees as preventing them from going to the EEOC with complaints. Unlike the NLRB ruling, the EEOC letter does not have the force of agency law yet. Certainly, an employer should make sure that management and/or HR are not breaching the confidentiality of an employee’s complaint. However, the NLRB ruling alone should give employers pause before issuing confidentiality instructions to individual employees themselves. Various commentators are opining that it still may be safe to ask employees not to discuss the actual investigative interviews, given that this instruction still allows employees to discuss the underlying conduct with co-workers. This is probably one of those situations where the company’s employment lawyer should be consulted before a confidentiality instruction is given. It also is likely we may get further clarifications from the NLRB and/or the EEOC on this particular issue.

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August 24, 2012

HR Fact Friday: Background Checks and the FCRA (Part 2 of 2)

Part 2 of 2 – Part 1 published 8/17/2012

FTC STEP TWO – BEFORE YOU TAKE ADVERSE ACTION

Before you reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action based on information in a consumer report, you must give the applicant or employee:

  1. a notice that includes a copy of the consumer report you relied on to make your decision; and
  2. a copy of A Summary of Your Rights Under the Fair Credit Reporting Act, which the company that gave you the report should have given to you.  This is found at: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre35.pdf

Giving the person the notice in advance gives the person the opportunity to review the report and tell you if it is correct.

FTC STEP THREE- AFTER YOU TAKE ADVERSE ACTION

If you take an adverse action based on information in a consumer report, you must give the applicant or employee a notice of that fact – orally, in writing, or electronically. An adverse action notice tells people about their rights to see information being reported about them and to correct inaccurate information.  The notice must include:

  1. the name, address, and phone number of the consumer reporting company that supplied the report;
  2. a statement that the company that supplied the report did not make the decision to take the unfavorable action and can’t give specific reasons for it; and
  3. a notice of the person’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.

(more…)

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June 18, 2012

Pregnant and Over 40 – Still Discrimination Issues After All These Years

It’s sometimes difficult to spice up a blog on a rather mundane topic, such as the EEOC.  However, based on recent headline stories, the topic of EEOC is anything but mundane.  Below are some interesting statistics that pertain to two laws enforced by the EEOC.

Pregnancy Discrimination Act (PDA)

I thought all employers would be fully aware that it is illegal to discriminate against women because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, duly titled “The Pregnancy Discrimination Act”.  Apparently not.  The Washington Post recently reported that “nationwide in fiscal 2011, women filed 5,797 complaints with the EEOC alleging pregnancy discrimination at work or in hiring, a 23% increase from fiscal 2005.”

Unfortunately, it doesn’t stop there either.  After the baby is born, discrimination continues in the form of the “motherhood wage penalty” of up to 5% per child.

So what can be done?  The EEOC is stepping up their enforcement efforts, which could help raise awareness, along with increased guidance to employers as to how to comply.

Age Discrimination in Employment Act (ADEA)

The ADEA, in simple terms, prohibits employers from making employment decisions based on an employee’s age.  “Employment decisions” cover a variety of areas inlucindg compensation, terms, conditions, or privileges of employment.  The ADEA forbids age discrimination against people who are age 40 or older.

I have been reading a lot of news stories highlighting the difficulties “older” workers are having in securing a full-time job.  Even the AARP has a guide titled “Age Discrimination:  What Employers Need to Know”.  The guide seeks to inform employers that older workers are valuable resources to an organization.  In response to the statistics below, we are seeing more publications and articles referring to the benefits of “baby boomers” in the workplace.  Compare the statistics from 2001 to 2011 below:

 

  FY   2001 FY   2011
Receipts 17,405 23,465
Resolutions 14,672 26,080
Monetary   Benefits (Millions) $53.7 $95.2

 

By creating awareness of these issues regarding the PDA and ADEA, employers should step back and re-evaluate their processes.  Oftentimes, previous experiences have shaped our perceptions which have unintentionally influenced decisions.  We must work together to change that mindset and avoid further discrimination.  After all, we are in the 21st century; we are too smart to still be dealing with issues that are decades old.

 

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June 11, 2012

What are the Laws the EEOC Enforces?

This month we are blogging about the EEOC.  I don’t think we could have picked a subject that has more media attention than this one.  In one news feed this morning, there were four articles with “EEOC” in the headlines.  One would think with all the attention, the number of cases would be decreasing as we more awareness of discrimination is created.  That, however, doesn’t seem to be the case.  As written in my blog on June 6, the number of cases reported has increased for three years in a row.

So what exactly does the EEOC enforce?  In most cases, it is nothing new.  In fact, most of them have been in force for years and, in some cases, decades.  The most recent law is the Genetic Information Nondiscrimination Act of 2008 (GINA).  Below are the other laws enforced by the EEOC:

  • Title VII of the Civil Rights Act of 1964 (Title VII)
  • The Pregnancy Discrimination Act (Amendment to Title VII in 1978)
  • The Equal Pay Act of 1963 (EPA)
  • The Age Discrimination in Employment Act of 1967 (ADEA)
  • Title I of the Americans with Disabilities Act of 1990 (ADA)
  • Sections 102 and 103 of the Civil Rights Act of 1991
  • Sections 501 and 505 of the Rehabilitation Act of 1973

Stay tuned to future blogs as we explore each of the laws above, including what the EEOC’s requirements regarding compliance include.

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June 5, 2012

EEOC: Increase in Disability Discrimination Claims on the Radar

Filed under: Compliance,EEO,Employment Law12:59 pm

I still believe in the goodness of humankind.  That is, I believe that given the opportunity, most of us would do the right thing.  I have no doubt there are many that would disagree with me, but I can’t let go of one major tenet of my upbringing: “The Golden Rule.”  Still, just because most of us want to do the right thing, life isn’t black or white and we don’t always know the right answer.  We’re also faced with balancing the needs of our company with the needs of the individual employee.

The Equal Employment Opportunity Commission (EEOC) has responsibility for enforcing federal laws against discrimination.  The EEOC has the job of dealing with what happens when someone doesn’t follow “the Golden Rule,” to put it simply.  This month, we’re going to discuss interesting cases from the EEOC.

Within the last five years, the number of employment discrimination lawsuits under the Americans with Disabilities Act (ADA) has almost doubled.  The large increase can be accounted for by the passing of the Americans with Disabilities Act Amendments Act (ADAAA) of 2008.  The Amendments Act expanded the definition of what it means to be disabled and removed the “mitigating factors” test.  While claims have steadily risen, the number of cases in which the EEOC has determined there was “no reasonable cause” has also sharply increased.  In 2011, the total number of cases involving disability claims was almost 28,000, with nearly 18,000 of those deemed “no reasonable cause.”

In February, we told you the EEOC had issued clarification on its guidance related to employers who required a high school diploma of its applicants.  Here are some other interesting recent cases:

  • Garney Construction and Georgia Power – the contractor (Garney) withdrew a job offer to an applicant with epilepsy after he could not pass a DOT physical exam, citing contractual obligations with the electric utility.  Federal law does not require individuals in these types of positions to pass a DOT physical exam.
  • Children’s Hospital Colorado – The hospital withdrew a job offer to an applicant after a post-offer medical exam in which they discovered she suffered from fibromyalgia.  They settled for $95K and agreed to provide training for their employees in ADA requirements.
  • Christian Care Center of Johnson City – The skilled-nursing center fired an employee who was working as a Licensed Practical Nurse when they learned of the employee’s positive HIV-status.

Stay with us this month as we bring you more about the EEOC and how you can reduce legal liability.

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May 21, 2012

New EEOC Website to Check State Charges

I don’t know if it’s just me, but it seems our government is coming out with more on-line tools providing valuable information.  The most recent one is from the EEOC who unveiled a website last week where you can research your state’s charge data for fiscal years 2009-2011.  This data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges.

For example, my state of Kansas had 873 charges for FY 2011, up from 739 in FY 2010.  The highest percentage was in the category of retaliation (40.2%), followed by race (34.7%), sex (32.3%), disability (27.8%) and age (22.9%).  GINA had the fewest charges filed (0.5%).  Overall, the state of Kansas makes up 0.9% of the US total charges.

If you are an employer, it may be useful to know what types of charges are being filed in your state, along with where they fall within the makeup of U.S. charges.  When browsing through the various states, I found some interesting trends that are noteworthy to be aware of.

You can click here to link to the website to check out your state’s total charges.

 

 

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