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EEOC

EEOC roundup

by Walter Olson on July 17, 2014

  • “U.S. Chamber of Commerce challenges EEOC over its ‘unreasonable’ enforcement tactics” [Jon Hyman, more on House oversight hearing, earlier on court rebuffs to agency and more]
  • On summary judgment: “EEOC case alleging ADA violations against Womble Carlyle nixed by federal judge” [ABA Journal]
  • By 3-2 commissioner vote, EEOC adopts detailed, restrictive new guidance on pregnancy discrimination [Eric Meyer, Hyman]
  • Commission thinks its investigation, mediation and other pre-litigation procedures should be immune from court oversight and public transparency [Merrily Archer]
  • Survey: “Are Employers Adapting to EEOC Guidance on Employment Background Checks?” [Nick Fishman, Employee Screen, related earlier]
  • Commission sues Wisconsin Plastics, Inc. for terminating employees with low-rated English skills as part of English on the job policy [Scott Greenfield, EEOC, my two cents way back]
  • “Is the EEOC the new NLRB?” [John Holmquist, Michigan Employment Law Connection]
  • “House Report criticizes EEOC for litigation before conciliation” [HRM America, attention-stirring Merrily Archer survey and more]
  • Do you gripe about upward spiral of executive salaries? Do you want to force employers into fuller pay disclosure? Be aware of the tension between those two positions [Gary Shapiro of CEI, Daily Caller]
  • Because the union is all about respect: Laborers/LIUNA brings giant inflatable rat to St. Louis funeral home [KTVI]
  • Reality-based: “during five of last six federal minimum wage increases, nation fell into recession” [Thomas Firey, Cato via @scottlincicome] Minimum wage and automation [Ira Stoll, earlier]
  • Minnesota legislature expands employer regulation under apple-pie heading of “Women’s Economic Security Act” [Courtney Ward-Reichard guest-posting at Daniel Schwartz's] How well are state-mandated employee leaves working in California? [Coyote]
  • “EEOC continues fight against severance agreements, while employers fight back” [Jon Hyman, earlier on CVS case]
  • OSHA targets auto suppliers in South for enforcement crackdown, rationale to be supplied later [Sean Higgins, DC Examiner via Instapundit ("Well, he can't come right out and say it's about hurting non-union shops")]
  • Los Angeles officials push SEIU-backed scheme to fasten unions on nonunion workforce at LAX airport [Brian Sumers, Contra Costa Times]
  • Want to empower cities? Reform binding labor arbitration [Stephen Eide, Urbanophile]
  • “Explainer: What Does President Obama’s Equal Pay Day Executive Order Change?” [Rachel Homer, On Labor]
  • One lawyer’s advice: “when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves” [Jon Hyman on Sixth Circuit retaliation case]
  • Detroit juggles pension numbers to fix deficit, papers over the real problem [Dan Kadlec, Time; Shikha Dalmia, Washington Examiner]
  • No room left to cut budget, part 245,871: federal grants promote labor unions [Examiner]
  • More on EEOC’s campaign to limit employment criminal background checks [Coyote, Daniel Schwartz]
  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

Courts rebuff EEOC again

by Walter Olson on April 10, 2014

I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is

all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.

The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.

For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.

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  • If you imagine the primary goal of occupational licensure is to protect consumers, think again [Donald Boudreaux, Ramesh Ponnuru]
  • “U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks” [Nick Fishman, Employee Screen; Seyfarth Shaw]
  • Pennsylvania lawmakers consider ending union exemption from stalking laws; Illinois, Nevada and California also shelter them from liability [Washington Examiner]
  • “How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think” [Michael Fox]
  • “A call for the DOL to fix what is wrong with our wage-and-hour laws” [Jon Hyman]
  • Restaurant Opportunities Center, known for staging employee protests, bars own employees from same privilege [Florida Watchdog via Sean Higgins]
  • Conference honoring assassinated professor Marco Biagi showcases classical liberal labor law scholarship (or so one would hope) [my comment at Workplace Prof, related call for papers, earlier]

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EEOC roundup

by Walter Olson on March 18, 2014

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To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)

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Disabled rights roundup

by Walter Olson on January 13, 2014

  • “US Airways has agreed to pay $1.2 million in fines because it provided inadequate wheelchair service at the Charlotte and Philadelphia airports” [Charlotte Observer, USA Today; on abuses of the right to request wheelchair service at airports, see links in our post last May] Support animals on airplanes, cont’d [NYT]
  • In New York, indefinite leave of absence may be deemed a reasonable accommodation that employer is obliged to grant [Erin McPhail Wetty, Seyfarth] Per Second Circuit in NYC case, timely attendance not essential job function [Mark Kittaka, Barnes & Thornburg]
  • US disability rate fell 25 percent between 1977-87, then more than doubled [Tad DeHaven, Cato via Bryan Caplan] Has a Kentucky attorney found holes in the SSDI system? [Jillian Kay Melchior]
  • Per EEOC, employer may be obliged to grant employee’s request to work from home as reasonable accommodation [Johanna Wise, Seyfarth]
  • Lawprof suspended for allegedly yelling at subordinates sues under ADA [Althouse, Above the Law]
  • “None of the people who complained had even been into the store” [San Diego Reader]
  • And yet more from EEOC: employer “integrity testing” meant to assess applicants’ honesty, trustworthiness and dependability can run afoul of disabled-rights law [link]

As mentioned yesterday, the federal Equal Employment Opportunity Commission has either had a stretch of really, really bad luck in court lately, or else it’s been caught out by a series of judges for outrageously aggressive litigation sometimes crossing over into misconduct. Among the recent cases, the Sixth Circuit upheld a fee award of $750,000 to a company that the commission had sued over a purported policy of not hiring convicted felons. Here’s Molly DiBianca of the Delaware Employment Law Blog:

The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents. Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit. The suit, asserted on a class of individuals, alleged that the company’s policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.

The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons. Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.

More from Eric Paltell/Kollman & Saucier; DeGroff & Maatman; Greg Mersol, Baker Hostetler; EEOC v. PeopleMark.

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For the fourth time in two months a judge has chastised the Equal Employment Opportunity Commission for its high-handed ways, reports Claire Zillman at Fortune:

According to court filings, EEOC personnel arrived with subpoenas in hand, intimidated the small office’s staff, rifled through its confidential personnel and patient files, and illegally took company documents. The EEOC acted “as if it were the FBI executing a criminal search warrant,” HNI said in a court filing.

On September 30, a federal magistrate judge in Atlanta ruled that the commission’s tactics constituted a “highly inappropriate search and seizure operation.” The agency’s “failure to follow its own regulations, its foot-dragging, its errors in communication which caused unnecessary expense for HNI” constituted a “misuse of its authority as an administrative agency.”

Last month federal judge Loretta Preska in Manhattan whacked the agency in a discrimination suit against Bloomberg LP, dismissing most charges and ruling that the agency had failed to shoulder its responsibility to investigate before litigation. [Reuters, NY Post, NY Daily News]

Much more on the agency’s waywardness: Hans Bader; DeGroff and Maatman on 10th Circuit TriCore case.

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EEOC v. Boh Brothers

by Walter Olson on October 2, 2013

EEOC v. Boh Brothers is a new Fifth Circuit en banc decision allowing liability on a theory of hostile workplace environment sex discrimination arising from crude and aggressive locker-room banter in an all-male workplace (on facts differing somewhat from those in Oncale v. Sundowner, the 1998 Supreme Court case countenancing such liability). The dissent by Judge Edith Jones, p. 46 at footnote 3, cites my “Sentence First, Verdict Afterward,” from the July issue of Commentary magazine, on the federal government’s unhealthy interest lately in developing legal doctrines that pressure private institutions into adopting speech codes aimed at protecting listeners’ sensitivities.

Don’t miss the “Etiquette for Ironworkers” parody legal memo on p. 58, either. How many dissents include a parody legal memo?

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  • “Is the main effect of the minimum wage on job growth?” [Tyler Cowen] Minimum wage is transitional wage; most workers who receive it will earn higher rate in the next year if they stay employed [same] “Obama’s Bogus Case for a ‘Decent Wage’”[Ira Stoll]
  • “Equipment manufacturer sues EEOC over email survey trolling for potential class members” [Jessica Karmasek, LNL]
  • Don’t mess with SEIU? “Service Employees Suit Assesses Harsh Penalties against Breakaway Reformers” [Steve Early, Labor Notes]
  • NLRB is fully staffed now, so watch out employers [Rod Kackley, Crain's Detroit Business]
  • Major League Baseball latest to face suit over unpaid volunteer workers [ABA Journal]
  • Dent in lawyers’ business plan? Judge doesn’t think Michigan meatpacking workers’ $1,000 don/doff claim is adequate basis for $140,000 legal fee award [Free Press]
  • Workplace vagrants: many employees quit jobs regularly as garnishment catches up to them [Coyote]
  • EEOC guidance lost big in last week’s SCOTUS employment decisions [Daniel Fisher, Michael Greve]
  • Classification of obesity as a “disease” has huge employment law implications [Jon Hyman]
  • EEOC goes after BMW, Dollar General over criminal background checks on job candidates [ABA Journal, Althouse, Michael Carvin and Eric Dreiband ("The Government Checks Criminal Records. Why Can't Private Employers?"), Employer's Lawyer, earlier] “So the gov’t convicts minorities at a disproportionate rate. Then the gov’t sues companies that checks those records, smart.” [Surya Gunasekara] Why not ban Google too? (Don’t give them ideas, please) [ Mike Riggs]
  • Wage and hour suits soar, record number filed so far in 2013 [Corp Counsel, Overtime Lawyer, I-Sight] Related: what’s wrong with the epithet “wage theft” [Hyman]
  • Employer’s claim: I can’t get due process from Connecticut Commission on Human Rights and Opportunities [Daniel Schwartz]
  • The First Amendment protects our speech rights against the government, not against those we deal with in the workplace who may disapprove [Schwartz and more on Connecticut employment proposal] NLRB “attempting to sanction a California newspaper despite a federal appeals court’s decision that such a ruling threatened the publisher’s First Amendment rights.” [Washington Free Beacon]
  • “Bergen, Passaic County towns saddled with costs as lawsuits filed by police add up” [Bergen Record via NJLRA]

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“A group of Spanish-speaking custodial workers in Colorado have filed a complaint with the Equal Employment Opportunity Commission alleging that the Auraria Higher Education Center in Denver discriminated against them by failing to provide Spanish translations.” [Caroline May, Daily Caller; Denver Post]

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  • Gov. Christie vetoes bill enabling workers and job applicants to sue employers who asked about Facebook use [NJLRA, Star-Ledger, more]
  • “Shockingly a British pub might want to hire British employees,” NYC Human Rights Commission sees things differently [Amy Alkon]
  • Anticlimax: despite fears, NLRB won’t ban at-will disclaimers in employee handbooks [Jon Hyman]
  • “Equally injurious to the children of the laboring classes is their utilization by their parents in theatrical and operatic shows” [Kyle Graham]
  • Senate confirms plaintiffs’ class action attorney as newest appointee to EEOC [Stoel Rives]
  • Public accounting: “Two advances for pension transparency” [Josh Barro]
  • At least there’s one category of young worker for whom job prospects remain bright, namely kids of Andrew Cuomo’s friends [David Boaz]