Employer Settles Race Discrimination Lawsuit for $600,000

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Published on Monday, 07 May 2012 18:20

Race discrimination and retaliation violate Title VII of the Civil Rights Act of 1964. And, as a recent case demonstrates, race discrimination claims can be costly for employers. The case involves Bankers Asset Management, Inc., a real estate company in Little Rock, that has agreed to $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC). According to the EEOC, the company allegedly excluded black applicants for jobs based upon their race.

The EEOC also alleged that the company then retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting employees, by forcing one of the employees out of her job, and by suing others in state court. In addition to the settlement amount, the company must: (1) provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees; (2) have its president or another officer appear at the training to inform staff of the company’s non-discrimination policy; that the company will not tolerate such discrimination; and the consequences for discriminating in the workplace; (3) maintain records of complaints of race and retaliation discrimination; (4) provide annual reports to the EEOC regarding such complaints; (5) issue a memo to one of the hiring officials explaining that the company does not discriminate on the basis of race and retaliation; and (5) post a notice to employees about the lawsuit that provides the EEOC’s contact information.

EEOC General Counsel David Lopez commented on the settlement stating that “Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce…As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.” Read More.

EEOC Holds Title VII Prohibits Gender Identity Discrimination

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Published on Thursday, 26 April 2012 17:01

California law provides protection against discrimination on the basis of gender identity; however, historically federal law has not provided similar protections. In a recent case, Macy v. Holder, the Equal Employment Opportunity Commission (EEOC) appears to be reversing that trend, holding that “Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort…Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII."  The case involved Mia Macy who applied for a ballistics technician job as a contract employee with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (“Bureau of Alcohol et al”). Macy was allegedly advised by the lab’s director that she would be hired pending a background check. At this point, Macy still presented herself as a man. Macy alleges that the contractor responsible for filling her position contacted her for completion of the hiring paperwork.

Subsequently, on March 29, 2011, Macy advised the contractor that she was in the process of transitioning from male to female. Five days later, the contractor relayed this information to Bureau of Alcohol et al, and on April 8, 2011, the agency advised Macy that due to budget cuts, the position was not available. Macy filed a complaint with the EEOC after determining that the job had been filled by another person, supposedly because the individual was closer to clearing the background check. The EEOC alleged that this reason was pretextual, and that Macy was denied the job because of her gender identity. Read More.

EEOC Issues Updated Guidance on Employer Use of Arrest and Convictions Records

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Published on Thursday, 26 April 2012 15:35

The U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov. According to EEOC Chair Jacqueline A. Berrien, “When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance. We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance…The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.” Although Title VII does not prohibit employers from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful for employers to discriminate on the basis on race, color, national origin, religion, or sex. The EEOC previously held public meetings on the subject in 2008 and 2011. Topics in the guidance include:

How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;

Federal court decisions analyzing Title VII as applied to criminal record exclusions;

The differences between the treatment of arrest records and conviction records;

The applicability of disparate treatment and disparate impact analysis under Title VII;

Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and, best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm. Read More.

DOL Posts Updated Versions of its Model FMLA Forms

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Published on Wednesday, 25 April 2012 16:26

The US Department of Labor (DOL) has posted updated versions of the following model Family and Medical Leave Act (FMLA) forms:

"Certification of Health Care Provider for Employee’s Serious Health Condition" (WH-380-E) (Not for use by California employers- see below for information regarding the proper California medical certifcation form)

"Certification of Health Care Provider for Family Member’s Serious Health Condition" (WH-380-F) (Not for use by California employers- see below for information regarding the proper California medical certifcation form) 

"Notice of Eligibility and Rights & Responsibilities" (WH-381)

"Designation Notice" (WH-382)

"Certification of Qualifying Exigency for Military Family Leave" (WH-384)

"Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave" (WH-385)

The forms do not contain any substantive changes, although employers who use these forms should implement the new forms. California employers still cannot use the DOL’s medical certification form because it asks for a medical diagnosis, which is not permitted in California. California employers may use the Fair Employment and Housing Commission’s (FEHC) model medical certification form. In addition, the DOL’s medical certification forms and the FEHC’s medical certification form do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, regarding the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Therefore, employers should add the following language to the medical certification forms and any other document that requests medical information:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.''

The forms are in effect through February 28, 2015. More information can be located here.