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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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12 Sep 2012 Unverified EEOC Filing Not Good Enough, Says Northern District of Indiana

As many employers know, before proceeding to court, Title VII discrimination lawsuits must first be filed with the Equal Opportunity Employment Commission (EEOC) or a parallel state agency.  Aiming to protect employees by ensuring that a charging party is at least willing to make his or her claims subject to the penalties for perjury, federal statutory law further requires that the agency charge be filed “in writing under oath or affirmation[.]” 42 U.S.C. § 2000e-5(b). It is this less well known requirement that recently tripped…

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05 Sep 2012 EEOC Releases Its Draft Strategic Enforcement Plan Discussing Key Priorities for Fiscal Years 2012-2016

As part of its broader Strategic Plan for Fiscal Years 2012-2016, the Equal Employment Opportunity Commission (EEOC) has released a draft Strategic Enforcement Plan (SEP) for Fiscal Years 2012-2016, setting forth its primary priorities for the coming years, and seeks public commentary on same prior to voting on the SEP at the end of September 2012. The SEP, which can be found here, discusses the EEOC’s history, composition, and responsibilities, as well as the background events giving rise to the development of the SEP in…

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04 Sep 2012 OFCCP Audits Focus on Veteran Hiring

Although the new veterans hiring rules have been delayed, the Office of Federal Contract Compliance Programs (OFCCP) will focus its audits in aggressively interpreting the current regulations to support the affirmative action policies. The OFCCP has proposed new rules for veterans that would require contractors to track those who apply for jobs and write reports explaining decisions not to hire protected veterans. However, these proposed regulations have been delayed for at least nine months. Despite the regulatory delay, the OFCCP will use the audits as…

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30 Aug 2012 The EEOC’s “Fall Tour”

The EEOC is hitting the road this fall on a cross-country tour aimed at demystifying the Americans with Disabilities Act Amendments Act (ADAAA).  Two of the EEOC’s commissioners, Chai Feldblum and Victoria Lipnic, will hold a series of seminars dealing with issues such as essential job functions and job descriptions; the basics of reasonable accommodation; and leave, modified schedules and telecommuting as reasonable accommodations.  The dates and locations of the seminars are: Sept. 11 in Seattle (Doubletree Seattle Airport) Sept. 13 in Los Angeles (Four…

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27 Aug 2012 EEOC Sues Burger King Franchisee Over Employee’s Religious Accommodation Request

The Equal Employment Opportunity Commission (EEOC) is suing a Burger King franchisee – Fries Restaurant Management, LLC – for religious discrimination, a violation of Title VII of the Civil Rights Act of 1964. The facts underlying the lawsuit are straightforward: Ashanti McShan, a member of the Pentecostal Church, adheres to an interpretation of scripture regarding the wearing of clothing that is befitting of one’s gender. McShan allegedly informed Burger King of her religious belief during her employment interview, and was told she could wear a…

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16 Aug 2012 Indiana Plaintiff Defeats Legitimate Nondiscriminatory Reason Defense

A usually reliable defense in federal court employment cases is the legitimate, nondiscriminatory reason, but recently, that defense turned out not to be enough in a sex discrimination claim. As a refresher, an employee who believes she was not selected for a given position because of her race or sex – or any other protected characteristic, for that matter – can establish a prima facie case of discrimination at the summary judgment stage using the commonly used McDonnell Douglas method.  To do so, she must…

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08 Aug 2012 EEOC’s Litigation Focus Includes Cases Involving Teen Workers

While the EEOC receives thousands of charges each year, it selects very few to go forward to litigation with EEOC as the plaintiff. It is no easy task to predict which specific charges will become lawsuits litigated by EEOC, but charges that involve allegations of discriminatory treatment against multiple individuals – including teen workers – seem to be among those that attract attention at the federal agency. A case in point is the recent resolution for $1 million of a federal court lawsuit that EEOC brought in Wisconsin…

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07 Aug 2012 EEOC General Counsel Discusses Drop in Systemic Case Filings, Announces New Priorities

As the EEOC anticipates filing fewer systemic cases in fiscal year 2012 than it did in FY 2011, it also will shift its priorities to hiring discrimination cases and cases involving vulnerable workers, according to recent statements by EEOC General Counsel P. David Lopez. In discussing systemic case filings, Lopez attributed the drop to existing litigation and limited resources to take on new cases. The EEOC established its “Systemic Initiative” in 2006, defining systemic cases as “pattern or practice, policy and/or class cases where the alleged discrimination…

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25 Jul 2012 EEOC Cannot Claim “Deliberative Process Privilege” To Preclude Investigator’s Deposition

The United States District Court of the Southern Division of Alabama recently denied the Equal Employment Opportunity Commission’s (EEOC) motion to quash the deposition of the investigator assigned to the underlying Charge of Discrimination. In Equal Employment Opportunity Commission v. Southern Haulers, Inc., the EEOC argued that the “deliberative process privilege” prohibited the defendant from deposing the investigator about “the steps she took in conducting the investigation, the documents produced by EEOC as part of its investigative file, inconsistencies in the documents contained in EEOC’s…

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24 Jul 2012 Pennsylvania District Court Conditionally Recognizes Novel “Over-50” Class

The U.S. District Court for the Western District of Pennsylvania has denied an employer’s motion to certify various questions for interlocutory appeal in relation to the grant of conditional certification of a class of employees over the age of 50 in an Age Discrimination in Employment Act (“ADEA”) lawsuit filed against it.  Specifically, in Karlo v. Pittsburg Glass Works, LLC., No. 10-1283, slip op. (W.D. Pa., July 20, 2012) (Barry Fischer, J. ), the defendant sought leave to certify three questions for appeal in relation…

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