Archive for category Employment Discrimination Laws

The EEOC in 2014

Last year was a record-breaking year for the Equal Opportunity Commission (“EEOC”), which obtained approximately $372 million for workers alleging workplace discrimination. In the EEOC’s annual report, the agency asked for $75 million to support their litigation efforts in 2014…thus, they show no sign of slowing down. According to EEOC Commissioner Constance Barker, “Since we’ve got so much authority delegated to the agency’s general counsel, 2013 really became the year of litigation, and I think 2014 will continue that trend…I think private companies ought to expect to see more aggressive use of the litigation process, more aggressive pursuit of systemic discrimination cases and more cases bypassing the commission’s review and vote.”

The EEOC is approximately halfway through its FY 2012-2016 Strategic Enforcement Plan (“SEP”), which is a road map for the agency’s enforcement and litigation strategy. The SEP identifies six major priorities for the Commission, including:

  1. Eliminate barriers in recruitment and hiring.
  2. Protect immigrants, migrants, and other vulnerable workers.

3. Address emerging & developing issues. Specifically, these three:

    1. Reasonable accommodation under the ADA.
    2. Accommodation for pregnancy-related limitation under the ADA and Pregnancy Discrimination Act.
    3. Coverage of LGBT individuals under Title VII’s sex discrimination provisions.

4. Enforce equal pay laws.

5. Preserve and improve access to the legal system.

6. Prevent harassment.

It is my prediction that the EEOC will focus heavily on sexual orientation and gender discrimination in the coming year and begin pursuing more genetic discrimination cases pursuant to GINA, which was passed several years ago but is now just becoming a hot-button topic.

If you are an employer and would like more information about policies and best practices that can help protect you and your business from EEOC claims, contact an employment law attorney today.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

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A Review of the EEOC in 2013

One of the best ways that employers can know what liability risks they are most likely to encounter in any given year is to review what an agency was targeting in the previous year and to review the agency’s work plan. I recently reviewed some 2013 statistics from the Equal Employment Opportunity Commission (“EEOC”) that are worth sharing:

  • The EEOC resolved 209 merits lawsuits in federal district courts last year. Of these resolutions, 135 contained Title VII claims, 59 contained Americans with Disabilities Act (ADA) claims, 16 contained Age Discrimination in Employment Act (ADEA) claims, four contained Equal Pay Act (EPA) claims, and one contained Genetic Information Nondiscrimination Act (GINA) claims.
  • Thirteen EEOC cases made it to trial. Eleven of these trials were heard before juries.  The EEOC was victorious in nine of the 11 jury trials, resolved one by consent decree, and lost the remaining bench trial.
  • In the case, EEOC v. Hill Country Farms, Inc. (S.D. Iowa), a jury found that a company had subjected 32 intellectually disabled men to verbal and physical harassment, harsh living conditions, and other abuses for 2 years. In this case, the EEOC obtained the largest award in its history – over $240 million.
  • The Commission just launched the Systemic Watch List, a software application designed to coordinate the investigation of multiple charges filed against the same employer involving similar issues. As designed, when a new charge is filed that matches another ongoing investigation or lawsuit, the program issues an automatic alert to staff working on the case.

To say that the EEOC was busy in 2013 is an understatement. Perhaps the most impressive statistic is this: despite a furlough and hiring freeze due to the sequester, the EEOC still brought in more money in 2013 for aggrieved workers (about $372 million) than in any other year in the agency’s history. So, what are the EEOC’s priorities this year? Check back on Wednesday for some more information about what we can expect from the Commission.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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The Use of Background Checks in Hiring Procedures

The Sixth Circuit (encompassing Kentucky, Michigan, Tennessee and Ohio) recently sent a strong message that baseless suits against employers will not survive summary judgment. The case, Equal Employment Opportunity Commission v. Kaplan Higher Education Corp. et al., No. 13-3408 (6th Cir., Apr. 9, 2014), involved the use of credit checks in hiring decisions.

The employer and defendant in the case, Kaplan, had a practice of running credit checks on potential employees applying for certain positions. The purpose, according to Kaplan, was to screen out applicants who may be tempted by financial pressures to commit unlawful acts. In 2010, the EEOC sued Kaplan for this practice, alleging that the use of credit history in making hiring decisions has a disparate impact on African American applicants, therefore violating Title VII. Kaplan argued that their practice was unrelated to race, was necessary for certain jobs that involve access to student loan information, and was instituted after former employees misappropriated student payments.

During the discovery process, Kaplan learned that the EEOC uses the same type of background checks for its own applicants. According to the EEOC personnel handbook, an employee’s personal “debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” Despite this finding, the EEOC proceeded with litigation. In 2013, the Federal District Court granted summary judgment in favor of Kaplan.

In conjunction with its award of summary judgment, the District Court rejected EEOC’s expert witness and his disparate impact theory. In fact, the court found that the expert’s methodology (which consisted of using a “race rating” system that involved identifying race through driver’s license photos to assess the effect of Kaplan’s credit check system) was unscientific and failed the requirements for admissibility of expert testimony.

The case proceeded to the Sixth Circuit Court of Appeals, where the Court affirmed the District Court’s holdings. In a, seven page opinion, the Court criticized the EEOC for bringing suit that hinged on the basis of “homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only be the witness himself.”

Nevertheless, employers must be cautious when using background checks in the hiring process, so as to avoid unintentional discrimination. The EEOC has identified one of its six priorities for the upcoming year as “eliminating barriers in recruitment and hiring.” As part of this initiative, EEOC seeks to curtail employers’ use of credit checks. Accordingly, employers should look to their policies and seek advice of counsel to ensure that the use of background checks does not have a discriminatory purpose or impact.

If you would like more guidance on best hiring practices, contact a McBrayer employment law attorney today.

Preston Worley

 

 

 

 

 

 Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

 

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“Sex-Plus” Discrimination Equals Possible Liability, Part II

On Monday, we discussed the Shazor v. Prof’l Transit Mgmt., Ltd. case. The Sixth Circuit held that an African American woman had triable race and sex discrimination claims under Title VII even though she was replaced with a Hispanic female. In other words, in a “sex-plus” case such as Shazor’s, an employer is not permitted to undermine a black female’s prima facie case by showing that “white women and African American men received the same treatment” as the plaintiff.

Once the court found Shazor had established a prima facie case of discrimination, PTM argued that it had a legitimate, nondiscriminatory reason for firing Shazor based on the alleged lies she made.  The court ruled that Shazor raised a material factual dispute about whether this reason was pretextual (meaning, that the nondiscriminatory reason offered by PTM was really just given to cover up their true motives), and that the company could not avail itself of the “honest belief” doctrine because it failed to adequately investigate Shazor’s alleged lies.

There are several lessons to be learned from Shazor. First, discrimination claims can be based on an intersection of two or more protected categories.  For employers, this means that they should take precautions to ensure employment decisions are based on legitimate reasons – not discriminatory intentions..

Second, employment decisions should always be well-supported by reasonable investigation. Shazor’s supervisor, Tom Hock, spoke to only one person about Shazor’s alleged lies, and this single conversation did not establish sufficient facts about the truth (or lack of it) behind her statements. Had Hock conducted, and documented, a more thorough investigation, PTM may have been able to prove a legitimate, nondiscriminatory reason for firing Shazor.

Lastly, and this should really go without saying by now, but watch what you put in emails! Shazor successfully argued that the emails referring to her as a “helluva bitch” and a “prima donna” were really code for “angry black woman” or “uppity black woman.” Although workplace emails are increasingly replacing face-to-face conversations, management should never put something in writing that they would not want to be introduced as evidence in court. Keep employee-related discussions private and, better yet, never use derogatory or discriminatory language when referring to employees.

Shazor signifies that intersectional “sex-plus” claims are viable in the Sixth Circuit and that employers can never be too careful when it comes to making adverse employment decisions.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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“Sex-Plus” Discrimination Equals Possible Liability

The Sixth Circuit recently addressed whether a “sex-plus” claim of discrimination can be made under Title VII of the 1964 Civil Rights Act. “Sex plus” refers to policies or practices by which an employer classifies employees on the basis of sex plus another characteristic, such as race or age. The case, Shazor v. Prof’l Transit Mgmt., Ltd., 2014 BL 42520, 6th Cir., No. 13-3253, 2/19/14, reinforces the concept that employers must consider employees’ protected traits as an “intersectional” whole, rather than separate, individual aspects.

The plaintiff, Marilyn Shazor, is an African American woman assigned by her employer, Professional Transit Management (PTM), to serve as the CEO of a regional transit authority (SORTA). After assuming the role, senior management officials began to question Shazor’s allegiance to PTM – rumors spread that she might be trying to get directly hired by SORTA.  Two PTM officials (Setzor and Scott) exchanged emails wherein they referred to Shazor as a “prima donna” and “one helluva bitch,” as well as disloyal and disrespectful.

Setzer was Shazor’s direct supervisor until August 2009, when he was replaced by Tom Hock.  In 2010, Shazor was fired by Hock for allegedly dishonest statements she had made to the SORTA board. PTM replaced Shazor with a Latina woman. Shazor then filed suit asserting race and gender discrimination. The District Court granted PTM summary judgment. On appeal, the Sixth Circuit reversed the lower court’s ruling.

The Sixth Circuit found that Shazor had established a prima facie case of discrimination necessary to survive summary judgment because she had shown that she was replaced by someone outside of her statutorily protected class with respect to her race discrimination claim. Although her replacement was of the same sex, Shazor’s sex bias claim “cannot be untangled from her claim of race discrimination.”

According to the Court, the protected classifications of race and sex “do not exist in isolation.” Rather, “African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.”

There is more to learn from this case – check back on Wednesday for a continued discussion of its implications.

Amy Cubbage

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of  state and federal law and does not constitute legal advice

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All in the Family: What You Need to Know about Hiring Relatives

Recently, a business owner asked me if it is illegal to hire relatives to work in his company.  I replied, “No, but sometimes it is.” Confused, he continued, “A few of the people who already work here are related to other employees, but should I establish a policy prohibiting nepotism?”  My response was, “Yes, but maybe not in the way you think.”  There is no easy answer to the question of how to handle nepotism in the workplace.  Employers must strike a balance in their policies and practices to avoid pitfalls on both sides of the issue.

During these tough economic times, many employers understandably want to help struggling family members by offering them employment opportunities.  Generally, in the private sector, nepotism – which most people understand to mean favoritism directed toward relatives regardless of merit – is not illegal.  Therefore, no one has a legal cause of action against a private employer simply for engaging in such hiring or promotion practices.  Nevertheless, there are limited circumstances where nepotism in the workplace can cause trouble for an employer.  By the same token, however, absolutely prohibiting nepotism in the workplace can also be discriminatory.

The Kentucky Civil Rights Act (KRS Chapter 344), the commonwealth’s law adopting the protections set out in Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of race, color, religion, national origin, sex, age (40 years and older), disability (as long as the person is otherwise qualified), or smoking status (as long as the employee complies with any workplace smoking policy).  The law covers employers with eight or more employees, except for the provision prohibiting disability discrimination, which applies to employers with 15 or more workers (the same as in the American with Disabilities Act).  The Kentucky Equal Opportunities Act also prohibits employment discrimination based on physical disability, including acquired immunodeficiency syndrome (AIDS), ARC (AIDS-related complex), and human immunodeficiency virus (HIV) infection.  That law covers employers with eight or more employees.

No Kentucky law specifically addresses the employment of related individuals in the private sector.  (Some states do regulate nepotism in private workplaces).  Even so, if an employer hires relatives and fails to consider people with disabilities or those of other races, creeds, genders, or ages, he or she may be discriminating against such groups.  Likewise, if an employer forces out an existing employee to make room to hire a relative, the employer may be liable.  Further, some employers prohibit nepotism altogether. Depending upon how they are written or applied, policies and practices which prohibit the employment or restrict the advancement of spouses or relatives may also be discriminatory.

The best practice for an employer is to strive to hire or promote the best qualified person for a position.  To that end, he or she should establish a policy which neither restricts nor favors  any individual in matters of hiring, pay, promotion, assignment, or other working conditions on account of a familial relationship with another company employee.  Also, procedures should be in place to ensure, to the extent possible, that company managers do not supervise relatives.  A well-crafted and evenly-applied policy will reduce the perception of nepotism by providing that individuals cannot influence the hiring, promotion, or discipline of a close relative.

 

Kembra Sexton Taylor

 

 

 

 

 

 

 

 

Kembra Sexton Taylor, partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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Varying Maternity Leave Policies, cont.

On Monday, it was discussed that it is typically acceptable to offer different maternity leave benefits for employees at separate employer locations (such as a corporate office versus store locations). Further, it was noted that it is generally acceptable to have varying policies amongst employees, so far as the policies are applied within the parameters of the law (i.e., not discriminatory).

If as an employer you are going to structure a different policy for different employees, it makes sense to do so based upon a clear distinction such as full/part time status, exempt/nonexempt, job group or even department.  Also, when approached by an employee who is inquiring about maternity leave, it is generally best to have the employee set up a meeting with your company’s HR Director or personnel to discuss privately all options and to make sure there is clear understanding of the pending leave.  If there is language in the employee policy handbook related to the matter, the employee should of course be directed to it.

Employers should additionally be open to negotiations in this respect.  Can the employee work from home for a period of time? Is she willing to train a new employee before leaving? There are some aspects of maternity leave that can be negotiated just the same as any other benefits. However in taking any steps, care should be taken to make sure the employee’s privacy is respected. When preparing for a pending maternity leave an employee should not become the topic of office gossip.

As always, employers must adopt policies not only in compliance with federal law (such as the FMLA, if applicable), but also state law.  Maternity leave is a complicated concern for every employer and those who fail to handle it properly can be subject to unwanted litigation and legal expense.  If you are an employer, and unsure how to address maternity leave or other pregnancy-related issues at your business, please feel free to contact the employment law attorneys at McBrayer.

Luke Wingfield

 

 

 

 

 

 

 

Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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