Discrimination Law

New Checklist from OFCCP Related to Affirmative Action

Posted on August 14, 2015

The Rehabilitation Act prohibits discrimination against individuals with disabilities and requires government contractors and subcontractors to take affirmative action to give jobs to and promote qualified individuals with disabilities.  According to the DOL, an affirmative action program is meant to provide individuals with disabilities with equal employment opportunity-it is supposed to be dynamic in nature and have measurable objectives and involve internal auditing.  These affirmative action requirements under Section 503 apply to all government contracts and subcontracts over $15,000 for the purchase, sale or use of personal property or nonpersonal services.  The written affirmative action programs requirements found in Subpart C of the Section 503 rule apply to every government contractor with 50 or more employees and a contract of $50,000 or more. The regulatory authority (OFCCP) has now developed an interactive checklist for contractors—the purpose of the checklist is to make contractors aware of their obligations and help them to comply with these obligations.…

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Stray Remarks by De Facto Decisionmaker Support Discrimination Claim

Posted on July 31, 2015

When is an employer liable for “stray” remarks? How connected do the stray remarks need to be to the adverse employment action? Earlier this summer, the Second Circuit reversed a district court’s award of summary judgment to an employer on a discrimination claim involving stray remarks in a denial of tenure case where the remarks were made by the de facto decisionmaker within the same school year as the denial of tenure, clearly suggested racial bias and were about the plaintiff’s qualifications as a teacher. Tolbert v. Smith, et al., No. 14-1012 (2d Cir. June 24, 2015).…

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EEOC Rules– Sexual Orientation Discrimination Equals Sex Discrimination under Title VII

Posted on July 24, 2015

On July 15, 2015, the EEOC clarified that, at least for claims made against the federal government, all complaints of discrimination based on sexual orientation constitute sex discrimination claims under Title VII. Baldwin v. Foxx, Secretary, Dept. of Transportation, EEOC Appeal No. 0120133080. The case involved David Baldwin, an air traffic controller who filed an EEO complaint against the Federal Aviation Administration, claiming that he was subjected to discrimination on the basis of his sex and retaliation for his prior protected activity. Baldwin claimed that he was not chosen for a permanent position as a front line manager because he is gay, pointing to numerous negative comments made by his supervisor about his sexual orientation (like “we don’t need to hear about that gay stuff” in response to Baldwin talking about a trip with his partner and being told that he was a distraction when he talked about his male partner).…

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Transgender former police officer states a claim under Title VII-but fails to show sufficient evidence of discrimination

Posted on June 18, 2015

Last week, the district court ruled that although discrimination based on transgender status was a cognizable claim under Title VII, the plaintiff had failed to demonstrate that the rejection of her application to be part of a volunteer mounted patrol was discriminatory. Finkle v. Howard County, Maryland, Case No. SAG-13-3236 (D. Md. June 12, 2015).…

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Employers face possible claims for failure to accommodate even where there is no actual knowledge of a need for accommodation

Posted on June 5, 2015

Back in March, I posted about the case before the United States Supreme Court involving a girl who claimed that she was discriminated against because of her religion when Abercrombie & Fitch didn’t hire her because of her headscarf. The Tenth Circuit had found that because the plaintiff did not inform Abercrombie before its hiring decision that her practice of wearing a headscarf was based on her religious beliefs and that she would thus need an accommodation. On Monday, the Supreme Court reversed that decision, holding that to prevail in an disparate treatment claim under Title VII, an applicant must only show that her need for an accommodation was a motivating factor in the employer’s decision, and not that the employer actually knew of her need. EEOC v. Abercrombie & Fitch, Inc., 575 U.S. ___ (2015).…

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Can the EEOC come after your company without at least trying to resolve the matter?

Posted on May 8, 2015

Not without at least complying with its duty to attempt to conciliate the matter. In a unanimous decision issued last week, the Supreme Court held that courts have the authority to review whether the EEOC has fulfilled its obligations under Title VII to attempt conciliation. Mach Mining, LLC v. EEOC, No, 13-1019 (April 29, 2015). This is important for employers and gives them more of a legitimate chance to resolve a matter if the EEOC has found cause in a Title VII case. However, the review permitted is fairly limited.…

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Instagram intel—can an employer use it?

Posted on May 1, 2015

Let’s say one of your employees has a tendency to call in sick on Fridays when it just so happens to be 72 degrees and sunny out. Another employee reports to you that last Friday, that same worker posted a picture of herself on Instagram at a nearby water park, despite the fact that she had claimed to have had a stomach bug. Can you act on this report?…

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What if an employer fails to abide by its own disciplinary process—what’s the harm?

Posted on April 10, 2015

According to a decision from the First Circuit Court of Appeals earlier this year, an employer’s failure to take action in accordance with its own disciplinary process could support a finding of discrimination. Soto-Feliciano v. Villa Cofresi Hotels, Inc., No. 13-2296 (February 20, 2015). Specifically, this failure can support a finding that an employer’s alleged reasons for firing an employee were merely pretext.…

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Supreme Court ruling strengthens protections under PDA

Posted on March 27, 2015

Earlier this week, the United States Supreme Court recently ruled in favor of protections afforded to pregnant women under the PDA, but stopped short of giving pregnant women “most-favored-nation” status. Young v. United Parcel Service, Inc., Case No. 12-1226.…

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Does an employee have to specifically ask for a religious accommodation?

Posted on March 6, 2015

The United States Supreme Court heard argument this past week on this very issue in the case of EEOC v. Abercrombie & Fitch Stores, Inc., a case appealed from the Tenth Circuit Court of Appeals. Samantha Elauf was a teenager in Tulsa, Oklahoma who applied to work at an Abercrombie & Fitch store in 2008. Elauf, a Muslim, wore her headscarf (“hijab”) to the interview. Abercrombie has a “not hats” policy for sales associates and thus did not hire Elauf. Of course, Title VII prohibits denying employment based on a religious practice, unless accommodating the practice would impose a substantial burden. The EEOC brought a lawsuit on Elauf’s behalf and won in federal district court, but then the Tenth Circuit reversed the decision, agreeing with Abercrombie’s argument that it was not required to give Elauf a religious accommodation because she had not specifically asked for one (basically never told Abercrombie that she wore her hijab for religious reasons).…

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