In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list. On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.
The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” ...
My colleagues Nancy L. Gunzenhauser, Kate B. Rhodes, and Judah L. Rosenblatt at Epstein Becker Green have a Retail Labor and Employment Law blog post concerning a recent EEOC modification to employment discrimination protection: “EEOC Rules Discrimination Based On Sexual Orientation Illegal Under Title VII.”
Following is an excerpt:
The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” The EEOC noted that sex-based considerations also ...
Employers in the technology industry should take note of last week’s decision by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. New Breed Logistics (PDF). The court declined to reconsider a panel holding that, in the context of a retaliation claim, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity under Title VII.”
Three former employees of New Breed Logistics, a supply-chain logistics company, asserted that they had engaged in protected activity by telling their supervisor to stop making advances and sexual comments. The ...
In the wake of the U.S. Supreme Court’s decision in Young v. UPS, [1] the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with disparate treatment and light duty.
Under the prior guidance, issued in 2014, the EEOC asserted that a pregnant worker could prove a violation of the Pregnancy Discrimination Act (“PDA”) simply by showing that she was “treated differently than a non-pregnant worker similar in his/her ability or inability to work.” The 2014 guidance also took the position that an ...
My colleagues Nathaniel M. Glasser and Kristie-Ann M. Yamane (a Summer Associate) at Epstein Becker Green have published a Financial Services Employment Law blog post concerning recent modifications to pregnancy discrimination that will be of interest to many of our readers: “EEOC Updates Pregnancy Discrimination Guidance.”
Following is an excerpt:
In the wake of the U.S. Supreme Court’s decision in Young v. UPS, [1] the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with ...
My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter. In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.
My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter. In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.
My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter. In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.
My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter. In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.
On June 1, 2015 the U.S. Supreme Court revived a religious discrimination claim against Abercrombie & Fitch (“Abercrombie”) after the fashion retailer denied employment to a Muslim woman because the headscarf, or hijab, worn as part of her religious observance violated the company’s dress code. EEOC v, Abercrombie & Fitch Stores, Inc., 2015 U.S. LEXIS 3718 (June 1, 2015). In overturning summary judgment granted in favor of Abercrombie, the Court held that Title VII does not require proof that the employer had actual knowledge of the individual’s need for religious ...
Our colleagues Steven M. Swirsky; Adam C. Solander; Brandon C. Ge; Nancy L. Gunzenhauser; and August Emil Huelle contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues confronting retailers:
Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees. In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity. Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender ...
To register for this complimentary webinar, please click here.
I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.
Below is a description of the webinar:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with ...
To register for this complimentary webinar, please click here.
I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.
Below is a description of the webinar:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with ...
To register for this complimentary webinar, please click here.
I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.
Below is a description of the webinar:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with ...
My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.
Following is an excerpt:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the ...
My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.
Following is an excerpt:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the ...
My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.
Following is an excerpt:
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the ...
Our colleagues Adam C. Solander, August Emil Huelle, Stuart M. Gerson, René Y. Quashie, Amy F. Lerman, Frank C. Morris, Jr., Kevin J. Ryan, and Griffin W. Mulcahey contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this special edition, we address important health care issues confronting technology, media, and communications employers:
We recommend our colleagues’ post on the Retail Labor and Employment Law blog: Three Lawsuits Brought by the U.S. EEOC Challenge Employer Separation Agreements, by Lauri F. Rasnick, Susan Gross Sholinsky, Frank C. Morris Jr., and Nancy L. Gunzenhauser.
Following is an excerpt:
The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting ...
The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Retail employers have not been exempted from the agency’s scrutiny. A ...
Guest Post By Charles Diamond and Lynnann Whitbeck, Alvarez & Marsal
A substantial amount of litigation is being brought against companies, both public and private, because of “glass-ceilings” allegedly found within firms. More recently, the financial services industry has been a target of glass ceiling allegations and a number of other discriminatory employer practices against legally protected groups. Nationally, the U.S. Equal Employment Opportunity Commission (“EEOC”) has implemented a Strategic Enforcement Plan through 2016 to reduce and deter ...
Our colleagues Kara Maciel, Adam Solander, and Lindsay Smith have co-authored a Bloomberg BNA article titled, "Future New Year's Resolutions: Will Your Wellness Program Still Be There to Help?"
Following is an excerpt:
With the New Year squarely in the rear view mirror, now is the time when many of our grandiose resolutions to get healthy may run out of steam. For individuals who are relying upon their employer's wellness initiative to provide them with the resources they need to succeed in their resolutions, recent regulatory and legislative changes could jeopardize their ...
By: Kara M. Maciel
The EEOC is holding a public meeting tomorrow, May 8, 2013, to discuss wellness programs and how the EEOC should interpret them under the ADA, GINA and other laws. This is welcome news to the employer community, who has been left without any guidance from the agency since 2000 as to how it will enforce wellness programs. The uncertainty generated by this lack of guidance has hampered businesses from implementing, or expanding, effective wellness programs.
As we have explained in previous articles, the EEOC regulations, and the EEOC’s Interpretive and ...
The April 2013 issue of Take 5 was written by David W. Garland, Chair of Epstein Becker Green's Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.
In it, he summarizes five recent labor and employment actions that employers should consider:
- EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
- Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
- House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
- New York City Human Rights Law Expanded to Prohibit ...
By Frank C. Morris, Jr. and Jordan B. Schwartz
An employer's wellness program—despite certain "penalty" provisions—was recently held not to be discriminatory under the Americans with Disabilities Act ("ADA") by the U.S. Court of Appeals for the Eleventh 
Circuit in Seff v. Broward County. The Eleventh Circuit found the wellness program, sponsored by Broward County, Florida ("County"), was established as a term of the County's insured group health plan and, as such, fell under the ADA's bona fide benefit plan "safe harbor" provision. This ruling is welcome news for employers with or considering wellness programs.
However, if the County's wellness program had not been found to be a part of the County's health benefits plan, then potential plaintiffs or the Equal Employment Opportunity Commission ("EEOC") would likely have argued that the wellness program runs afoul of the EEOC's views on "voluntariness" requirements for employer-sponsored wellness programs.
The ADA's Impact on Wellness Programs
Wellness initiatives seek to boost employee productivity and reduce both direct and indirect medical costs, which are desirable outcomes for employers. Employer-sponsored wellness programs have grown exponentially over the past decade, as employers have increased their focus on controlling health care costs and improving the overall safety and health of employees. According to recent studies, approximately 46% of participating employers had implemented wellness programs. Despite the growing popularity and positive aspects of wellness programs, legal uncertainties surrounding these programs—including restrictions imposed by the ADA, the Genetic Information Nondiscrimination Act ("GINA"), and the Health Insurance Portability and Accountability Act ("HIPAA")—have presented obstacles to their implementation and growth.
Certain ADA restrictions have contributed to many employers declining to start wellness programs. Specifically, the ADA prohibits employers from making disability-related inquiries or requiring medical examinations of prospective or current employees unless they are job-related or subject to a business necessity exception. On the other hand, voluntary medical exams are permitted so long as the information obtained is kept confidential and not used to discriminate. There is little guidance, however, either from the courts or the EEOC, analyzing whether an employer-sponsored wellness program that encourages participation by providing incentives, or penalizes non-participation, can be considered "voluntary" and therefore permissible under the ADA.
The ADA has certain safe harbors for insurers and bona fide benefit plans that exempt such programs from ADA restrictions. Under these safe harbors, employers, insurers, and plan administrators are permitted to establish a health insurance plan that is "bona fide" based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law. Thus, if a wellness program qualifies for the ADA's safe harbor provision, an employer need not worry whether such program otherwise would have been considered voluntary. Notably, the EEOC has not addressed wellness programs and the ADA's safe harbor provision.
Seff v. Broward County
In October 2009, the County adopted a wellness program for its employees as part of its health plan open enrollment. The wellness program consisted of three parts: (1) a biometric screening consisting of a "finger stick" to measure glucose and cholesterol; (2) disease management for five specified conditions; and (3) an online Health Risk Assessment ("HRA"). Participation in the program was not required as a condition of participation in the County's health plan, but employees who did not undergo the screening or complete the HRA incurred a $20 bi-weekly charge subtracted from their paychecks.
In response to this program, current and former County employees who enrolled in the County's health insurance plan and incurred the $20 bi-weekly fee filed a class action lawsuit in the U.S. District Court for the Southern District of Florida. They alleged that the wellness program's biometric screening and online HRA violated the ADA's prohibition on non-voluntary medical examinations and disability-related inquiries. The County argued that its wellness program was part of its health plan and, as such, fell under the ADA's safe harbor provision.
The primary question addressed by the district court was whether the wellness program was a "term" of a bona fide benefit plan, which would allow it to come within the ADA's safe harbor provision for such plans. In granting summary judgment to the County, the district court determined that the program was indeed a "term" of the County's group health plan based on the following three factors:
- The health insurer offered the wellness program as part of its contract to provide insurance, and paid for and administered the program;
- The wellness program was available only to plan enrollees; and
- The county presented a description of the wellness program in at least two employee benefit plan handouts.
By Forrest Read
In recent years, the Equal Employment Opportunity Commission (EEOC) has taken the aggressive approach of expanding charges it receives from one or a few individuals into larger-scale class actions in federal courts. Last week, in EEOC v. United Road Towing, Inc., the U.S. District Court for the Northern District of Illinois declined to challenge the adequacy of the EEOC’s administrative practices, thus giving ammunition to the EEOC to continue its approach of widening litigation involving alleged discrimination.
In that case, the employer, URT, argued that the ...
by Anna A. Cohen and Desiree E. Busching
On April 20, 2012, in a noteworthy decision, the Equal Employment Opportunity Commission (“EEOC”) ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects transgender individuals from disparate treatment. Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012). The case therefore opens up a new protected category which, while already recognized under many state and local anti-discrimination statutes and by some federal courts, had not previously been formally recognized by the ...
By Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi
On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an enforcement guidance document titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq." (the "Guidance"), with respect to employers' use of arrest and conviction information in connection with employment decisions.
Disparate Treatment v. Disparate Impact
Although ...
by Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi
The On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an enforcement guidance document titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq." (the "Guidance"), with respect to employers' use of arrest and conviction information in connection with employment decisions.
Disparate Treatment v. Disparate Impact
Sadly, workplace violence continues to be a topic that challenges many organizations. Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace. As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry. One of the struggles that employers face is trying to prevent violent conduct by ...
by Carrie Corcoran, Matthew T. Miklave, and Susan Gross Sholinsky
The U.S. Equal Employment Opportunity Commission ("EEOC") has issued a long-awaited final rule ("Final Rule"), which amends the regulation on the "reasonable factors other than age" ("RFOA") defense available under the Age Discrimination in Employment Act ("ADEA"). The Final Rule is available at 29 C.F.R. Part 1625. The EEOC previously published proposed rules regarding the RFOA defense on March 31, 2008, and then on February 18, 2010. The Final Rule takes into account public comments received on those proposals.
by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman
Effective April 3, 2012, the Equal Employment Opportunity Commission ("EEOC") extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment ...
By Lauri F. Rasnick and Margaret C. Thering
The Equal Employment Opportunity Commission (“EEOC”) has once again turned its focus to caregiver discrimination. On February 15, 2012, for the first time in nearly 30 years, the EEOC held a meeting about caregiver and pregnancy discrimination. As “caregivers” are not specifically included as a “protected category” under any federal law, the EEOC discussed the various laws which would possibly prohibit certain caregiver discrimination, such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and ...
by Ian G. Nanos
The Equal Employment Opportunity Commission (“EEOC”) recently issued its Performance and Accountability Report for Fiscal Year 2011. As reported by the EEOC, 2011 was a record year. A quick review of these highlights, as well as the pending docket, reveals a growing trend and employers should pay attention.
First the highlights. During FY 2011, the EEOC received a record number of discrimination charges – nearly 100,000 against private sector employers alone. More importantly, the EEOC also recovered a record $364 Million through administrative ...
The Equal Employment Opportunity Commission (“EEOC”) has increased its efforts to encourage large corporations to enter into Nationwide Universal Agreements to Mediate (UAM). To date, more than 200 private-sector employers, including several Fortune 500 companies, have entered into UAM agreements with the EEOC at the national level. Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local level.
The EEOC’s focus on UAMs, which apply to individual-charges of discrimination, but not to class ...
By: Kara M. Maciel and Casey Cosentino
The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive quest to challenge “inflexible” medical leave policies, as Denny’s Inc. agreed earlier this month to pay $1.3 million to settle a nationwide class action lawsuit. Denny’s also entered into an injunction barring its restaurants from future violations of the Americans with Disabilities Act (ADA), including denying disabled employees reasonable medical leave and retaliating against employees for bringing disability discrimination claims.
The ...
At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.
One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area. The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the ...
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