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BT Currents - Hot Topics in Employment Law
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23 Dec 2013 Seventh Circuit: Failure to Conciliate is Not a Defense in EEOC Lawsuits

Employers who are defendants in actions brought by the EEOC in federal court cannot assert failure to conciliate as an affirmative defense, the U.S. Court of Appeals for the Seventh Circuit has ruled. In so doing, the Seventh Circuit is the first federal circuit court of appeal to explicitly reject the failure-to-conciliate defense, the Court noted in its lengthy opinion released Friday. In determining a question of law brought up on an interlocutory appeal, the Seventh Circuit ruled in EEOC v. Mach Mining, LLC that…

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12 Nov 2013 OSHA Develops Plan to Publish Injury and Illness Data Online

The U.S. Occupational Health and Safety Administration (OSHA) contends that giving greater publicity to data on workplace injuries and illnesses will allow employers to distinguish themselves as workplaces that are committed to safety. That is one of the stated reasons behind OSHA’s Notice of Proposed Rulemaking to Improve Tracking of Workplace Injuries and Illnesses. If the new rule goes into effect after a period for notice and comment, then employers with 250 or more employees will be required on a quarterly basis to submit electronically…

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16 Oct 2013 U.S. Supreme Court Dismisses Age Case Without Reaching Disputed Question

The United States Supreme Court will not be providing an answer – at least for now – to the question of whether state and local government employees can bypass the Age Discrimination in Employment Act and instead head straight to court with age claims under 42 USC 1983. The Court this week dismissed the appeal in Madigan v. Levin, as “improvidently granted.” While the Court did not provide an explanation, it appears from summaries of the oral argument on Oct. 7, 2013 that the justices determined…

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04 Oct 2013 EEOC Cases Continue to Make Waves Despite Shutdown

While the EEOC is all but completely closed this week due to the federal government shutdown, that hasn’t stopped federal courts from issuing interesting rulings in EEOC employment discrimination cases. A quick roundup of a few recent cases of note: 1. The Circuit Court of Appeals this week issued a blow to EEOC when it addressed the extent to which an employer is responsible for offering a religious accommodation in EEOC v. Abercrombie & Fitch Stores, Inc. The appellate court held that the lawsuit failed because the…

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02 Oct 2013 U.S. Supreme Court to Kick Off New Term With Age Discrimination Issue

When the Supreme Court holds its first day of arguments of the new term (traditionally, the first Monday in October), it will hear an Illinois case that raises the issue of whether public employees who claim age discrimination can bypass the requirements of the Age Discrimination in Employment Act and head straight to court under the Equal Protection Clause and 42 U.S.C. 1983. Barring any delays associated with the government shutdown, the Court is expected to hear arguments on Oct. 7, 2013 in Madigan v….

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05 Sep 2013 Code of Silence is a Challenge When Employers Address Workplace Bullying

While a certain amount of levity in the workplace can promote collegiality and teamwork, if employees’ playful banter crosses the line into relentless taunting and bullying, morale can suffer and the risk of lawsuits can increase. Yet employers may find it difficult to uncover and eradicate bullying because employees are afraid to speak up. The immense pressure for victims to remain silent is illustrated in a recent Chicago Tribune article that gave prominent attention to the subject of workplace bullying. The news report described in detail how employees of…

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20 Aug 2013 Is EEOC Conciliation Subject to Judicial Review? Seventh Circuit to Decide

When the EEOC files federal court lawsuits alleging discriminatory conduct,  defendant-employers routinely assert a “failure to conciliate” defense.  Thus, the issue becomes whether and to what extent a court can review the EEOC’s internal pre-suit conciliation process. In its case against Mach Mining LLC, pending in the Southern District of Illinois, the EEOC took the position that the court cannot review its conciliation efforts. However, the District Court rejected that position and determined that conciliation is subject to at least some level of judicial review.  In particular,…

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08 Jul 2013 Employers Should Use Care to Avoid Discrimination When Using Temporary Staffing Agencies

Employers that use staffing agencies to fill temporary work assignments should be prepared to meet the challenges inherent in such relationships for purposes of compliance with Title VII, as illustrated by the EEOC’s litigation against a small manufacturer in Illinois. Although the Illinois manufacturer claimed it was not subject to Title VII because it had fewer than the statutory minimum 15 employees, the EEOC argued that temporary employees needed to be counted. The EEOC contended that the employer should be held liable if the actions…

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25 Jun 2013 Supreme Court Endorses Narrow Definition of “Supervisor” in Discrimination Claims

On Monday, June 24, 2013, the Supreme Court provided clarity for lower courts and employers when it ruled that an employer may be vicariously liable for a supervisory employee’s harassment (to the extent that it did not culminate in a tangible adverse employment action) only when the employer has empowered the employee to take tangible employment actions against the alleged victim of the harassment. And in the process, the Court soundly rejected the EEOC’s enforcement guidance as “nebulous” and unpersuasive. While the ruling in Vance…

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30 May 2013 The Trouble With The So-Called “Equal Opportunity Harasser” – Another Cautionary Case

Under Title VII, if a supervisor is obnoxious and abusive to everyone in the workplace, subjecting women and men alike to a barrage of insults, vulgar innuendo, and sexual propositions, the employer is not liable for hostile work environment sexual harassment under Title VII. The rationale is that if a person is an “equal opportunity harasser” then the harassment is not “because of sex” and thus Title VII provides no remedy. Therefore, the equal-opportunity harasser defense may let employers off the hook for liability for sexual harassment, depending…

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