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BT Currents - Hot Topics in Employment Law
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18 Mar 2013 Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

It was no surprise for practitioners and their clients alike to learn that, statistically, retaliation claims remain the largest number of claims brought before the EEOC (in 2012, almost 38,000 charges alleged retaliation—38.1% of all charges). Worse, retaliation claims are expensive to defend. This point is painfully highlighted in this week’s submissions with the U.S. Supreme Court. Last week, the U.S. Chamber of Commerce (along with the Retail Litigation Center) filed with the Supreme Court an amici curiae brief in a case in which retaliation…

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27 Feb 2013 Court Upholds Random Alcohol Testing of New Coke Plant Employees

For the last couple of years, the Equal Employment Opportunity Commission (EEOC) has been targeting companies that have implemented random employee drug-testing for class-action lawsuits. Under the Americans with Disabilities Act (ADA), employers are generally limited as to when they can administer medical examinations, including drug tests. The two main exceptions to this limitation are when the examination is job-related and consistent with business necessity (which remains, in the words of the court, “a nebulous concept”), and when confirmation is needed to support an accommodation…

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30 Jan 2013 2012 EEOC Charge Filing Stats Are In

A few weeks ago, we looked at the total number of EEOC charges filed with the agency from 1997-2011. The charge numbers for 2012 just came in and as expected, the total numbers have dropped – but by an almost imperceptible amount. Here is the updated chart: The total number of charges filed in 2011 was 99,947.  For those with magnifying glasses, this fell in 2012 by a little more than 500 to 99,412.  Looking at the chart as a whole, it is clear that the…

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03 Jan 2013 The EEOC’s Plan of Attack

The United States Equal Employment Opportunity Commission (EEOC) recently approved its Strategic Enforcement Plan (SEP) to establish national enforcement priorities. The SEP is an outgrowth of the EEOC’s Strategic Plan for 2012-2016. The purpose of the SEP is to coordinate the EEOC’s resources to have a “sustainable impact” on reducing discriminatory practices in the workplace. To that end, the SEP identifies six national enforcement priorities, which include: ·         Eliminating barriers in recruitment and hiring:  The EEOC will target class-based recruitment and hiring practices that discriminate against…

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20 Dec 2012 All I Want For Christmas Are Some Stats

The following chart graphically depicts the total number of EEOC charges filed with the agency from 1997-2011.  http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm  What is immediately apparent from this chart is the relationship between the overall economy and the number of filings. The chart begins in the prosperous 90’s (this is how far back the EEOC’s historical online information goes). As the country continued with the dot-com boom, you can see the number of filings going down. The filings, however, tick up again beginning in 2000 as the economy worsened into recession and…

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20 Dec 2012 Businesses Brace for Another Round of EEOC Challenges

On Dec. 17, 2012, the EEOC revealed its “priorities and goals,” giving businesses some forecast of the EEOC climate and danger zones during next four years. In technical terms, the Commission approved (by a 3-1 vote) its formal Strategic Enforcement Plan (SEP), which identified the following six (6) national priorities: – Eliminating barriers in recruitment and hiring – Protecting immigrant, migrant and other vulnerable workers – Addressing emerging and developing employment discrimination issues – Enforcing Equal Pay Laws – Preserving Access to the Legal System – Preventing Harassment through Systemic Enforcement and Outreach In other words,…

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12 Dec 2012 Outreach Agreement May Signal EEOC Focus on National Origin Discrimination

The EEOC recently announced that its Phoenix District Office entered a Memorandum of Understanding with several consulates of Mexico in Arizona. The Agreement establishes a collaborative relationship between the EEOC and the Mexican consulates with the purpose of addressing issues and providing resources aimed at preventing employment discrimination involving Mexican nationals in the workplace. As part of the Agreement, the EEOC will provide the Mexican consulates with Spanish-language materials “explaining the laws enforced by the EEOC.” Further, the EEOC will supply representatives to meet with Mexican nationals in Arizona for…

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05 Dec 2012 Census Bureau Release Workforce EEO Numbers

Last week, the U.S. Census Bureau released the 2006-2010 American Community Survey EEO tabulation that examines the diversity in the U.S. labor force. In the past, the Census Bureau has produced the tabulation after every 10-year census. However, for the first time, the bureau used the 2006-2010 American Community Survey estimates in its report.  The actual tables produced by the tabulation can be generated at the Census Bureau’s American FactFinder page available here. Federal agencies use the numerous tabulations as a monitoring device while employers…

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26 Nov 2012 Seventh Circuit Rejects EEOC’s Claim of Confidentiality Violations Under the Americans with Disabilities Act

In its opinion issued in EEOC v. Thrivent Financial for Lutherans, No. 11-2848, which can be found here, the U.S. Court of Appeals for the Seventh Circuit affirmed the award of summary judgment to Thrivent Financial for Lutherans (Thrivent), and rejected the Equal Employment Opportunity Commission’s (EEOC) arguments that Thrivent had violated the Americans with Disabilities Act (ADA) when it had revealed information regarding a former contract employee’s migraine condition to a prospective employer. The Seventh Circuit’s rationale hinged on the fact that Thrivent had…

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26 Oct 2012 EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here.  Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that…

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