Retaliation Still the Most Filed Charge with the EEOC: How Employers Can Guard Against Costly Retaliation Claims

By Sharon Gold

The EEOC released its fiscal year charge data and for another year in a row, retaliation is the most filed charge.  Behind retaliation are charges for race, disability and sexual discrimination.  The full list of charge data is:

• Retaliation: 41,097 (48.8 percent of all charges filed)
• Race: 28,528 (33.9 percent)
• Disability: 26,838 (31.9 percent)
• Sex: 25,605 (30.4 percent)
• Age: 18,376 (21.8 percent)
• National Origin: 8,299 (9.8 percent)
• Religion: 3,436 (4.1 percent)
• Color: 3,240 (3.8 percent)
• Equal Pay Act: 996 (1.2 percent)
• Genetic Information: 206 (0.2 percent)

[These percentages add up to more than 100 because some charges allege multiple bases.]

Any employer who has been through litigation concerning a retaliation claim knows

The Importance of Regular Harassment Training in the Workplace

By Sharon Gold

The end of 2017 saw a barrage of sexual harassment allegations in the news and, subsequently, the termination of multiple high profile men in the entertainment and corporate industries.  TIME magazine named the “Silence Breakers” as its “Person of the Year” for exposing the harassment that pervades the entertainment industry.  Thousands of women and men came forward on social media with the #METOO campaign with their own stories of harassment in the workplace.  What can an employer do to end harassment in the workplace?

Long before the recent wave of allegations, the EEOC created a Task Force and issued a report of recommendations to decrease sexual harassment in the workplace.  The primary findings were:

New EEO-1 Form on Hold Indefinitely

By Julie A. Laemmle

The Equal Employment Opportunity Commission’s (“EEOC”) proposed new EEO-1 Form is on hold indefinitely pending further review by the Office of Management and Budget (“OMB”).

The proposed EEO-1 Form, created during the Obama Administration, seeks to combat pay inequality by including more categories for compensation and total hours worked in addition to the already-collected demographic data.  However, the OMB believes the collection of this additional proposed data conflicts with standards of the Paperwork Reduction Act, which was designed to reduce the amount of paperwork burden the federal government places upon

Sixth Circuit to Weigh In on Religious Protection and Transgender Rights

By Amanda Warford Edge

Last week, a Detroit funeral home filed a brief with the Sixth Circuit arguing that it could fire a transgender employee who refused to follow its sex-specific dress code. According to the funeral home, allowing the employee (who was transitioning from male to female) to wear women’s clothes at work — namely, a skirt suit — would violate the religious beliefs of the home’s owner.

Last year, at the district court level, the Court said that the Religious Freedom Restoration Act (“RFRA”) shielded the funeral home from liability because the termination stemmed from its owner’s devout Christian worldview. In other words, the Court held that the funeral home was entitled to a religious exemption under RFRA and, therefore, did not violate federal employment discrimination law. In making its ruling, the Court reasoned, in part, that transgender people are not protected by federal anti-bias law.

The EEOC appealed this ruling and filed its brief in February. The funeral home has now asked the Court to affirm the holding that Title VII does not protect transgender people because the meaning of “sex” when Title VII was passed did not include the concept of gender identity. The funeral home also remains adamant that RFRA provides a legal defense for its enforcement of its sex-specific dress code.

The case is EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424.

The AARP’s Position on EEOC Wellness Program Rules

By Amanda Warford Edge

While the focus in the Bluegrass state over the past couple of weeks has been on horses and bourbon, a lobbying group for older Americans — the AARP — has asked a federal judge in Washington, D.C. to rule that the EEOC’s new guidelines for employee wellness programs are illogical and arbitrary.  According to the AARP, the guidelines allow companies to violate workers’ medical privacy rights.  The AARP filed its summary judgment motion on Friday, April 28.  The lawsuit was initially filed in October 2016.  Wellness programs, of course, include programs where an employer provides incentives for workers to quit smoking, lose weight or undergo preventative health screenings, among other things.  Workers who participate in such programs are usually asked by employers to provide certain confidential medical information.

Previously, the EEOC had maintained that any financial incentive rendered wellness programs involuntary.  In adopting new guidelines last year, the EEOC ruled that

Do Your Severance Agreements Violate Federal Law?

By Michelle Wyrick

In light of the enforcement positions taken recently by the Securities and Exchange Commission (“SEC”) and the Occupational Safety and Health Administration (“OSHA”), which administer several whistleblower statutes, employers (and especially publicly-traded companies) should review the release provisions in their severance agreements and update them if needed.

For many years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers may not require employees who sign severance and release agreements to waive their rights to file charges with the EEOC or to participate in EEOC investigations.  The EEOC, however, has permitted employers to require employees to waive any right to monetary recovery in connection with any EEOC charges filed.  See EEOC Enforcement Guidance Non-Waivable Employee Rights under Equal Employment Opportunity Commission (EEOC) Enforced Statutes.

Now, the SEC has taken a more restrictive position.  Last month, the SEC fined two companies for using severance agreements that restricted

Seventh Circuit Rejects Claim of Sexual Orientation Discrimination

By Jordan M. White

Just last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at