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BT Currents - Hot Topics in Employment Law
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22 May 2013 Hot Topic: The Use of Criminal Records to Make Hiring Decisions

Medical testing giant Quest Diagnostics Inc. (42,000 employees worldwide) recently found out the hard way that government agencies across the country are ramping up enforcement of state and federal laws restricting the use of criminal convictions when making hiring decisions. While the Equal Employment Opportunity Commission (EEOC) uses Title VII’s prohibition against disparate impacts against employees relating to race or national origin to investigate companies’ hiring policies in relation to criminal records, many states, such as New York, have laws specifically limiting the use of…

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17 May 2013 EEOC Offers Updated ADA Guidance Q&A’s Pertaining to Cancer, Diabetes, Epilepsy and Intellectual Disabilities

In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities – to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types…

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14 May 2013 EEOC Seeks Comments on Quality Control Plan for Investigations and Conciliations

Last Friday, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it was seeking public comment of its draft principles for the Quality Control Plan (Plan) which will revise the criteria for measuring the quality of the agency’s investigations and conciliations. The Plan was developed by an internal work group of EEOC front-line staff and managers, and addresses the issues of timeliness and quality. The EEOC stated the standard of review in assessing the quality of investigations and conciliations, nationally, will be “whether the actions…

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08 May 2013 Is the EEOC Set to Scrutinize Employer Wellness Programs?

On May 8, 2013, the Equal Employment Opportunity Commission (EEOC) hosted a meeting with a group of invited panelists on the treatment of wellness programs under federal law. According to the EEOC, the discussion will focus on various ways employer wellness programs may implicate the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other anti-discrimination statutes enforced by the EEOC. Whether this is a beginning of a new enforcement initiative remains to be seen. Either way, employers should be mindful of potential pitfalls under…

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04 Apr 2013 ADA Charge Verified by Counsel Is Insufficient; Plaintiff Failed to Exhaust Administrative Remedies

In Davenport v Asbury, Inc, the plaintiff, Lori Davenport, brought several claims against her former employer, including an alleged violation of the Americans with Disabilities Act, as amended (ADA). The U.S. District Court, Eastern District of Tennessee dismissed Ms. Davenport’s ADA claim, holding that she failed to exhaust her administrative remedies. The dismissal occurred as a result of a technicality wherein Ms. Davenport personally failed to verify the allegations set forth in her EEOC Charge of Discrimination, which must be filed prior to litigating any…

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22 Mar 2013 ADA Reasonable Accommodations and Wellness Programs

As a means of dealing with ever increasing healthcare premiums, many employers have chosen to implement wellness programs to improve the health of their workforce, thereby reducing claims. The EEOC has recently issued an interpretation letter stating that employers have an obligation to provide a reasonable accommodation for their employees who are participating in a health contingent wellness program. These types of wellness programs require an employee to meet certain standards related to a health factor (i.e. reducing blood pressure or losing weight, etc.) to achieve a…

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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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