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BT Currents - Hot Topics in Employment Law
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19 Feb 2014 EEOC Challenges Standard Severance Agreement Language

  A new EEOC lawsuit could have repercussions on employers’ standard severance agreements. At issue in the lawsuit, which was filed last week in the Northern District of Illinois, is the language of a standard severance agreement which – according to the EEOC – unlawfully prevents employees from communicating with the agency or filing discrimination claims.   As many employers know, general principles of contract law allow an employee who enters into a severance agreement to waive the right to file a legal claim seeking…

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10 Feb 2014 EEOC Charges Drop In 2013, But Wait, There’s More!

The EEOC has disclosed the number of charges filed last year and the overall trend for employers is positive. For the third year in a row, the number of charges dropped – to 93,727 down from 99,412 in 2012 and the record high of 99,947 in 2011. The chart below illustrates the drop and puts the numbers into perspective back to 1997. As illustrated, the good news is that the number of charges are down; the bad news is that the number of charges essentially…

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07 Feb 2014 EEOC Releases Detailed FY 2013 Statistics Showing Highest Monetary Recovery in Agency History

As we previously reported, the EEOC issued its Performance and Accountability Report for FY 2013 in December, which in part summarized the agency’s activity from October 2012 through September 2013. As promised in December, the agency has released more detailed charge and litigation statistics for its FY 2013 activity, providing better insight into what is on its radar (and what employees are complaining about). Data tables provide detailed breakdowns for intake and resolution of charges, in addition to initiated and resolved litigation. A summary of…

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03 Jan 2014 The Importance and Limitations of Internal Investigations

Many companies pride themselves on maintaining and rigorously enforcing equal employment opportunity (EEO) policies. From a business perspective, EEO policies help ensure a company is regarded as a fair place to work – improving employee morale and productivity. From a legal perspective, strong EEO policies (a) help protect the company from discrimination, harassment or retaliation claims by identifying and (hopefully) resolving problems ahead of costly litigation; (b) force the company to create a record of its position with respect to an employee’s claims and the…

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31 Dec 2013 EEOC Measures its Performance in FY 2013

The Equal Employment Opportunity Commission (EEOC) has released its Performance and Accountability Report (PAR) for Fiscal year 2013. The report summarizes the agency’s activity and assessment of its financial performance from October 2012 through September 2013. It reveals some interesting details about the agency’s work this past year. Highlights from the EEOC’s report include the following: 1. The agency received a total of 93,272 private sector charges of discrimination, a 6,000 charge decrease from the prior three fiscal years. 2. 97,252 charges were resolved, nearly…

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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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06 Dec 2013 Don’t Forget About Potential Associational Claims

At this point, most employers (we hope) are well aware that the ADA prohibits discrimination against “qualified individuals with a disability.” Nevertheless, many employers may not realize that the ADA also protects applicants and employees from discrimination based on their relationship or association with an individual who has a disabling condition. According to the EEOC, the purpose of the association provision of the ADA is to “prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who…

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26 Nov 2013 GINA: Much Ado About Nothing?

Earlier this year it was reported that the EEOC had filed two lawsuits against employers, one in New York and the other in Oklahoma, for violating the Genetic Information Nondiscrimination Act (GINA) by requesting family medical information from employees.  GINA, which became law over five years ago, prohibits discrimination on the basis of genetic information, and specifically makes it unlawful for an employer to discriminate, refuse to hire or discharge any employee because of the employee’s genetic information. After GINA went into effect, there was…

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23 Oct 2013 A Quick Reminder Regarding Complaints in the Workplace

Last year we reported on a landmark EEOC decision where the Agency concluded that discrimination against transgender individuals is actionable under Title VII. In that case, the EEOC held that Title VII prohibits an employer from taking adverse action based on the fact an employee/applicant fails to “adhere” to gender-based expectations or norms. It remains to be seen whether courts will agree with the EEOC’s position, but the decision appears to suggest that the argument may be viable in some jurisdictions. There’s another angle to…

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17 Oct 2013 Hope for Employers Who Have Ever Felt Bullied by the EEOC

A recent order from an Atlanta federal court should give hope to all employers who have ever felt bullied by the Equal Employment Opportunity Commission. In EEOC v. HomeNurse, Inc., Case No. 1:13-cv-2927, a former employee filed a charge with the EEOC alleging that HomeNurse discriminates against disabled persons, persons who are 40 years old or older, persons with pre-existing genetic conditions and African Americans.  Oddly, though, the former employee was none of these things. She was not disabled, was under 40, had no genetic…

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