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BT Currents - Hot Topics in Employment Law
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11 Oct 2013 Another Criminal Background Case, Another Blow To The EEOC

Earlier this week, a divided Sixth Circuit Court of Appeals issued another blow to the Equal Employment Opportunity Commission (EEOC) in its pursuit of discrimination claims against employers and criminal background checks.  In a 2-1 decision, the appellate court affirmed the lower court’s award of $751,942 in attorney’s fees, expert witness fees and other litigation costs to Peoplemark, Inc. after the company produced thousands of documents refuting the allegation that it had a “blanket policy” of denying jobs to individuals with felony records.  (EEOC v….

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09 Oct 2013 Government Shutdown Continues And Enforcement Agencies Remain Closed

As we enter the second week of the government shutdown, the federal enforcement agencies remain closed. Among the closed enforcement agencies are the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL). Each agency has prepared contingency plans during the course of the shutdown. Although the Equal Employment Opportunity Commision (EEOC) is currently closed, it has indicated that the time limits for filing a charge of discrimination will not be extended during the shutdown. Instead, claimants are encouraged to still file the charge during the closure and…

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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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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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13 Aug 2013 EEOC Not Faring Well in Background Check Disparate Impact Cases

The EEOC’s crackdown on the use of background checks has taken another body blow, this time delivered by federal Judge Roger Titus out of the District of Maryland. After a recent spate of adverse decisions in such cases (including cases against BMW Group and Kaplan Higher Education Corp.), national event planning company Freeman found itself in the agency’s cross-hairs. The opinion, granting Freeman summary judgment, can be found here.  While acknowledging that it is possible to prove a discriminatory disparate impact (here, against African-Americans and…

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09 Aug 2013 EEOC Hit With $4.7 Million in Attorneys’ Fees and Costs

On Aug. 1, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to pay $4.7 million in attorneys’ fees and costs in the litigation it brought against CRST Van Expedited (CRST) in 2007. In that litigation, the EEOC alleged that female workers had been sexually harassed by male employees and trainers. CRST challenged the sweeping sexual harassment claims brought by the EEOC and U.S. District Court Judge Linda R. Readle agreed, describing the EEOC’s tactics in identifying the class of female workers as a “moving…

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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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18 Jun 2013 EEOC Makes Good On Its Promise To Rekindle Disparate Impact Claims: Files Lawsuits Against Dollar General and BMW

You can’t say that we didn’t warn you.  Last week, the EEOC made good on its promise to protect those adversely affected because of criminal background checks. The EEOC filed two lawsuits – one in federal court in Chicago against the national small-box retailer, Dollar General; and another in South Carolina against BMW. These lawsuits appear to be the first lawsuits filed by the EEOC since it issued its criminal background check enforcement guidance in April of 2012 – and the first since issuing its…

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07 Jun 2013 Don’t Overlook The Gems In EEOC Files

A recent decision out of a Louisiana federal court demonstrates that all employers who are sued in cases where the Equal Employment Opportunity Commission (EEOC) handled an administrative charge should promptly send out a FOIA request to obtain the EEOC’s file. In Williams v. Cardinal Health Systems 200, LLC, a female employee reported to her employer that her husband had gotten into a fistfight with one of her co-workers, allegedly because the co-worker was sending her inappropriate text messages. The employee was fired shortly thereafter…

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