Wyatt Employment Law Report


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The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of Continue reading


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EEOC Proposes Updated Guidance to Address Increasing Number of Retaliation Claims

By Michelle D. Wyrick

With retaliation again reigning as the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”) and retaliation charges having doubled since 1998, the EEOC has proposed updated guidance on retaliation. It seeks input on its proposed guidance through February 24, 2016. Comments may be submitted here in letter, email or memoranda format, or hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The EEOC’s proposed guidance, which is more than seventy pages long, updates the EEOC Compliance Manual on Retaliation, which was issued in 1998.

The guidance explains the elements of a retaliation claim under federal anti-discrimination statutes and gives examples of what an EEOC investigator might look for in connection with a retaliation charge. Federal equal employment opportunity (“EEO”) laws preclude employers from Continue reading


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The EEOC’s Performance and Accountability Report for 2015

By Rachel K. Mulloy

EEOCThe U.S. Equal Employment Opportunity Commission (EEOC) released its annual Performance and Accountability Report on November 19, 2015, reporting record results in the agency’s enforcement efforts during fiscal year 2015.  The report, which numbers over 100 pages, relates numerous instances of progress the EEOC made in 2015, its 50th year of operation, including that it:

  • Successfully secured over $525 million for victims of discrimination in private, state and local government, and federal workplaces;
  • Resolved 268 systemic investigations before filing litigation, obtaining more than $33.5 million in remedies (systemic cases address patterns or practices of discrimination or policies that have a broad impact on a region, industry, or a group of employees or job applicants);
  • Reached 336,855 people through participation in 3,700 no-cost educational, training, and outreach events throughout the year. The EEOC’s national Training Institute trained over 12,000 individuals at events that focused on the agency’s Strategic Enforcement Plan priorities, including small businesses, vulnerable workers, underserved geographic areas and communities, and emphasized new statutory responsibilities, issues related to migrant workers, human trafficking and youth;
  • Achieved record success in its conciliation of Continue reading


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EEO-1 Survey for 2015 Now Open

By Michelle Tolle High

The U.S. Equal Employment Opportunity Commission (EEOC) has completed its mailing of the 2015 Employer Information Report (EEO-1) survey notification letters.  All companies that filed the EEO-1 report for the 2014 reporting period should have received the 2015 EEO-1 notification letter by this time.

The EEO-1 survey must be completed and filed by all private employers with 100 or more employees and federal government contractors, or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more by September 30, 2015.  The EEOC’s preferred method for completing the EEO-1 report is the web-based online filing system.   This system requires you to log into your company’s database with a Login ID contained in the annual Notification Letter, password obtained from the login screen, and your company contact’s email address.  Beginning with this year’s survey, companies have the ability to obtain and reset their passwords themselves.  In addition, company locations with the same address and same NAICS code must consolidate the locations into one record.

 


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EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.


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Employers Must Accommodate Religious Practices Even Without Actual Knowledge: Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015)

By Chelsea K. Painter

Supreme CourtClothing retailer Abercrombie & Fitch (“Abercrombie”) refused to hire Samantha Elauf (“Elauf”), a practicing Muslim, because the headscarf required by her religion violated Abercrombie’s “Look Policy” prohibiting “caps” of any kind. Although Elauf’s interviewer informed the store manager that she believed “Elauf wore her headscarf because of her faith,” the store manager directed her not to hire Elauf. Elauf did not mention her faith and/or religion to her interviewer or the store manager prior to their decision.  After Abercrombie refused to hire Elauf, the EEOC sued Abercrombie on Elauf’s behalf, claiming religious discrimination under Title VII. The District Court granted the EEOC summary judgment on the issue of Continue reading


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2014 EEOC Enforcement and Litigation Statistics

By Courtney Ross Samford

On February 4, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released enforcement and litigation statistics for fiscal year 2014.  A total of 88,778 workplace discrimination charges were filed in 2014, which is down slightly from prior years.  StatisticsRetaliation charges were at an all-time high and comprised nearly 43% of all charges.  Thirty-five percent of charges alleged race discrimination, while 29% claimed discrimination based on sex, which includes pregnancy and sexual harassment.  The EEOC’s enforcement activities resulted in almost $300 million over the last year.

The data also indicates that the EEOC’s Office of General Counsel was busy in 2014, filing a total of 133 lawsuits on the merits against employers across the country.  The EEOC secured $22.5 billion in monetary relief through litigation and mediation.

Finally, the EEOC released updated statistics on a state-by-state basis.  Texas led all states with more than 8,000 charges.   Tennessee charges increased to 3,221, while charges in Kentucky, Indiana and Mississippi decreased to 975, 2,700, and 1,781, respectively.