Category Archives: Discrimination

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Consistently Inconsistent? Fifth Circuit Appears to Have Conflicting Approaches to Damages Under the ADEA and FLSA

Can a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”. Legal Framework. As we all know, the ADEA explicitly limits a … Continue Reading

Anxiety, Absenteeism, and the ADA

As accommodating and flexible as the Americans with Disabilities Act (ADA) compels employers to be, the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable … Continue Reading

Don’t Go Changing: White House Keeping Obama LGBTQ Order in Place

Over the weekend several media outlets reported that a draft executive order was being circulated that overturned President Obama’s 2014 directive prohibiting federal employers and contractors from discriminating on the basis of sexual orientation and gender identity in the federal workforce and by federal contractors.  Executive Order 13672, which was signed on July 21, 2014, … Continue Reading

Why Not Ask About Prior Pay? It’s Against the Law in Some Places and Dangerous Everywhere

Setting a new employee’s pay based on what he or she made at a prior job is a fairly common practice—but now an illegal one in Philadelphia, PA. You heard right, Philadelphia has banned questions about salary history. This local law follows a Massachusetts law (similar but not identical) aimed at closing the pay gap … Continue Reading

You Mean It’s Un-American to Hire Only Americans? DOJ Issues Final Rule on Unfair Immigration-Related Employment Practices

If you thought it would be safer to require every new hire to be an American citizen—think again. The U.S. Department of Justice (DOJ) has a new rule revising its prior regulations on Section 274B of the Immigration and Nationality Act (INA), which prohibits unfair immigration-related employment practices. This new rule, effective January 18, 2017, … Continue Reading

Apply Here! (with Everyone Else): ADA Does Not Mandate Noncompetitive Reassignment

When you can’t reasonably accommodate a disabled employee in the current position, do you have to give the employee a vacant position or can you follow your usual, competitive process? In EEOC v. St. Joseph’s Hospital, Inc., the Eleventh Circuit found that employers need only provide meaningful equal employment opportunities to comply with the Americans … Continue Reading

What Employers Can Expect from the New Administration – Part 2: Immigration, the Affordable Care Act & Social Issues

In our second in a three-part series on what to expect from the Trump administration, we discuss immigration policy and the Affordable Care Act (ACA), as well as what may be in store for parental leave, marriage equality and transgender bathrooms. 1. Immigration During the campaign, Mr. Trump signaled that his administration would take a … Continue Reading

Supreme Court Refuses to Hear Push-Up Case

There is an update on the Fourth Circuit decision that ruled that the FBI could reject a male agent candidate who failed his physical fitness test by not being able to do one additional push-up. On Monday, the U.S. Supreme Court justices refused to hear an appeal from a Fourth Circuit ruling that differing physical … Continue Reading

Sign of the Times: EEOC Settles Case of Employer Failing to Provide ASL Interpreter for Job Interview

A deaf person applies for a job and the employee who takes applications asks you “how can a deaf person do this job?” What if an essential function of the job requires interaction with the public or the ability to communicate with team members or to respond to an audible safety warning? Be careful—take a … Continue Reading

Can A Job Applicant File A Disparate Impact ADEA Claim? No—According to the Eleventh Circuit

Is there such a thing as a disparate impact age claim? The Eleventh circuit last week says not for people applying for a job. On October 5, 2016, the Eleventh Circuit Court of Appeals issued an opinion shutting down claims under that theory for applicants. Mr. Villarreal, the plaintiff, was an applicant for a manager position with … Continue Reading

When to Say When? Fifth Circuit Rules on When an Accommodation Isn’t Working

In a published opinion, the Fifth Circuit has held that an employee’s poor performance in a light-duty position can relieve the employer from any further obligation to find a reasonable accommodation under the Americans with Disabilities Act (ADA). This opinion highlights the importance of the interactive process, and emphasizes that both the employer and the … Continue Reading

Repercussions of Retaliation: EEOC Revises its Guidance on Retaliation

For the first time in 18 years, the U.S. Equal Employment Opportunity Commission (EEOC) has issued revised guidance (the Guidance) regarding retaliation. The Guidance, which broadens and clarifies the definition of protected applicant/employee activities, became effective August 29, 2016. There have been seven U.S. Supreme Court decisions addressing retaliation since the EEOC’s last update in … Continue Reading

Bend Don’t Break: The EEOC Says Inflexible Attendance Policies Violate the ADA

In managing employee attendance, be careful about policies that suggest automatic termination after a certain number of absences as the Equal Employment Opportunity Commission (EEOC) believes such policies violate the Americans with Disabilities Act (ADA). The EEOC has filed suit against Wayne Farms, a poultry plant, alleging the company’s attendance policy, which allegedly required the … Continue Reading

Check Your Neutral Policies: The EEOC Joins the ACLU’s Challenge to Dignity Health’s Exclusion of All Care Related to Sex Transitions as Sex Discrimination

The ACLU filed a complaint against Dignity Health, claiming that the total exclusion of care related to “sex transformation surgery” in Dignity’s employee health insurance plan is unlawful sex discrimination. Now the EEOC wants a piece of the action and is seeking permission to file an amicus brief urging the California federal court not to … Continue Reading

What the EEOC’s Revised Pay Rule Means for Employers

The EEOC’s revised pay rule expands collection of pay and hours-worked data from employers filing EEO-1 reports. The proposed rule requires employers, including federal contractors, with 100 or more employees to report summary W-2 income by sex, race, ethnicity, and job group. The proposed rule is the EEOC’s most recent tool focusing on discriminatory pay … Continue Reading

HR to the Rescue: Prompt Investigation Beats EEOC’s Sex Harassment Claim

Don’t listen to all the doubters – HR truly can save the day. A recent federal court decision from the Western District of Tennessee illustrates the point again: prompt and appropriate investigation of a sexual harassment complaint can prevent employer liability. In Equal Employment Opportunity Commission v. Autozone, Inc. and Autozoners, LLC (collectively, “Autozone”), the … Continue Reading

Down Goes HB 1523: Judge Reeves Enjoins Mississippi from Enacting Controversial Religious Freedom Law

Late last Thursday night, Judge Carlton Reeves, United States District Court for the Southern District of Mississippi, entered a 60-page order striking down HB 1523, Mississippi’s controversial “Protecting Freedom of Conscience from Government Discrimination Act.” As discussed in our past posts, Tale of Several Lawsuits: Filings in North Carolina and Mississippi Regarding Gender Identity Laws and Bathrooms, Cakes, … Continue Reading

United States Supreme Court Upholds University of Texas Affirmative Action Policy

In a 4-3 decision released today, in Fisher v. University of Texas at Austin, the United States Supreme Court affirmed that the University’s race-conscious admissions policy meets strict judicial scrutiny and is lawful under the Equal Protection Clause. Fisher, who is white, claimed that the University’s consideration of race as one factor in a “holistic review” … Continue Reading

No More Mad Men: The OFCCP Leaves its Bell Bottoms Behind and Moves into the 21st Century

Not since the 1970s has the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) amended its Sex Discrimination Guidelines for federal contractors. With the newly issued final rule effective August 15, 2016, federal contractors have further enlightenment regarding obligations on matters such as equity in compensation, sex discrimination and harassment, and proper treatment … Continue Reading

Add Another Box: Oregon Judge Allows Citizen to Classify Gender Identity as “Non-Binary”

Judge Amy Holmes Hehn of Portland, Oregon has added yet another option in gender classification by granting Jamie Shupe’s request to switch sexes from female to non-binary. Shupe was assigned the gender of male when born, but began transitioning to female in 2013. However, Shupe never fully identified as either male or female and originally … Continue Reading

Beauty is in the Eye of the…Defendant? Termination for Attractiveness Found Not to be Gender Discrimination

Is cuteness a protected class? Most of our mothers would say it should be. However, a recent decision in New York found a woman could not bring suit against her former employer based on her allegation that she was terminated because the boss’s wife was concerned that her husband found the woman to be attractive. … Continue Reading

What is National Origin Discrimination under Title VII? The EEOC Weighs In

The EEOC recently proposed enforcement guidance on national origin discrimination and is giving the public until July 1, 2016 to comment. Once issued, this guidance will assist EEOC staff in investigation of national origin discrimination charges and provide information to prospective employees, employees, and employers so that they may understand their rights and responsibilities under … Continue Reading
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