EEOC Consent Decrees are its Most Powerful Enforcement Mechanisms

The vast majority of settlements between an employer and the Equal Employment Opportunity Commission (“EEOC”) take the form of a court-approved consent decree. This document is a public record designed to highlight and account for certain wrongs in a way that sidesteps an admission of guilt in favor of the implementation of remedial measures to prevent further unlawful practices. A consent decree includes certain action and reporting mandates that employers must follow, providing the EEOC with the most powerful enforcement tool in its arsenal.

Consent decrees function as a heightened form of scrutiny of an employer’s actions fSerious judge about to bang gavel on sounding block in the courtor a set duration of time. The value of the consent decree to the EEOC is that, rather than re-litigate a claim against an employer, the EEOC may simply move for contempt of court for failure to comply with an injunctive provision of a decree, as the decree is both a contract and a court order. This effectively keeps the company on the road to compliance with a minimum of effort from the EEOC. The consent decree may contain provisions for dispute resolution or mediation in the event of noncompliance.

Where employers are concerned, however, a consent decree is the bad bet when compared with a standard settlement. A consent decree gives the EEOC far more control in enforcement as against a company than other settlement agreements, and district courts have broad powers to enforce these decrees due to the “continuing jurisdiction” language present. Continuing jurisdiction provisions allow for continuous supervision of the settlement by the district court for the duration of the decree. Courts have generally upheld this expansive power, giving significant deference to the agency in question to define the terms of the agreement. As the Second Circuit Court of Appeals held in SEC v. Citigroup, the role of court in reviewing a consent decree is to “assess (1) the basic legality of the decree; (2) whether the terms of the decree, including its enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind.”[1] This deference gives the EEOC significant leeway in setting the terms of the consent decree, with the continuing jurisdiction of the court providing the muscle in strictly enforcing it.

Employers should seek to mitigate the effects of this particularly strong enforcement mechanism at the negotiation stage, opting for a standard settlement without injunctive relief or continuing jurisdiction whenever possible. Once continuing jurisdiction of the decree is locked in, the EEOC has gained a powerful tool, with a far stronger, more efficient and vastly quicker means for enforcing compliance. An employer must then jump through EEOC hoops on command for the duration of the consent decree, a position no employer wants to find itself in.

If you are negotiating an agreement with the EEOC or would like more information about consent decrees and their effect on your business, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at or at (502) 327-5400.

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

[1] U.S.S.E.C. v. Citigroup Global Markets, Inc., 752 F.3d 285, 294-95 (2d Cir. 2014)

The Law of Mandatory Flu Shot Requirements

The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26.

Doctor Making Insulin Or Flu VaccinationSubsequently, the Supreme Court upheld similar mandatory vaccination requirements enforced as a prerequisite for school enrollment. Zucht v. King, 260 U.S. 174, 177 (1922). Pursuant to these powers, a few states have also enacted requirements for influenza vaccinations for health care workers. See CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS (current as of December 2013), statevaccsApp/default.asp. See generally Abigale L. Ottenberg, Joel T. Wu, and Gregory A. Poland, et al., Vaccinating Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate, 101 Am. J. P. Health 212-216 (2011).

Mandatory flu vaccination requirements are not exclusive to state and local government directives. Two somewhat recent cases addressed whether private entities could impose upon health care workers the requirement that they receive the flu vaccine. First, in Mason Hospital v. Washington State Nurses Association, the Ninth Circuit upheld an arbitrator’s decision to strike down a hospital directive that all nurses must receive the flu vaccination. 511 F.3d 908 (9th Cir. 2007). The reason for this decision was that the requirement was not implemented in accordance with the nurses’ collective bargaining agreement. Id. Second, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a receptionist objected to a hospital’s mandatory flu vaccination policy on the grounds that it violated her vegan dietary restrictions, which were as closely held to her as though they were religious. S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). The court denied a motion to dismiss, finding that the plaintiff had a plausible claim for religious discrimination. Id. Finally, though not a court case, the Equal Employment Opportunity Commission has stated that employees with certain disabilities or religious beliefs should be exempt from mandatory flu vaccination requirements imposed on their employees. See -48k-2009-10-21.

Therefore, it appears that there is no general constitutional right that would prohibit someone from being compelled to be vaccinated for influenza. However, the requirement must still be implemented and enforced in accordance with other rights of employees or vendors. For example, if the requirement ran afoul of a contract with the hospital or an individual’s disability or religious belief, courts would be unlikely to enforce it. Finally, some states do provide workers with the ability to opt out by law. However, it does not appear that Kentucky is counted among that number. CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

Pregnancy Discrimination in the Workplace – The Supreme Court Weighs In on Employer’s Duties

In our previous blog post, we discussed and detailed the Pregnancy Discrimination Act and the stringent Enforcement Guidelines distributed by the EEOC this summer. On December 3rd, the United States Supreme Court will hear oral argument in Young v. United Parcel Service, and decide whether the EEOC interpreted the Pregnancy Discrimination Act correctly in deciding that an employer is “obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.”

Pregnant office worker walking with folders in the office




Young v. UPS arose because Peggy Young, a female delivery driver for UPS, became pregnant and asked for a light-duty assignment due to a twenty-pound lifting restriction recommended by her doctor and midwife. After Young approached the appropriate representative at UPS, her request was denied because her situation did not fall within the limited situations in which UPS will grant light-duty assignments. In response to UPS’s refusal to accommodate her, Young took unpaid leave and sued UPS for pregnancy discrimination. The federal district court and the Court of Appeals for the Fourth Circuit found in favor of UPS. Specifically, the Fourth Circuit held that UPS had “crafted a pregnancy-blind policy.” Subsequently, Young (the plaintiff-appellant) appealed to the United States Supreme Court for review, and the petition seeking review was granted. Two weeks later, the EEOC released new Enforcement Guidance on pregnancy discrimination in the workplace, discussed in detail in Monday’s blog.

Both Young’s and UPS’s arguments focus on the text of the Pregnancy Discrimination Act. Briefly, UPS relies on its Collective Bargaining Agreement, which establishes three situations where UPS may make alternative work assignments available to workers: (1) injuries sustained on the job, (2) employees who have a cognizable impairment under the ADA, and (3) drivers who lose their Department of Transportation certification because of a failed medical examination, a revoked or suspended driver’s license, or involvement in a motor vehicle accident. Thus, UPS asserts that light-duty assignments were unavailable under the policy to all employees, pregnant or not pregnant, who were unable to perform their normal work assignment due to lifting restrictions or other physical conditions. Likewise, UPS claims that if a pregnant worker did qualify under a category of accommodation, she would receive a light-duty work assignment. Lastly, UPS urges the Court to recognize that Young’s reading of the Pregnancy Discrimination Act would mandate special treatment for pregnant employees, obligating an employer to provide an accommodation to her if the same accommodation has ever been provided to any other employee for any reason, a difficult requirement for employers to meet.

On the other hand, Young claims that because light-duty assignments are provided for other employees, including employees who suffer off-the-job injuries or medical conditions that cause them to lose their Department of Transportation certification, UPS’s failure and refusal to provide accommodated workers who experience similar work restrictions due to pregnancy creates a disparity that violates the Pregnancy Discrimination Act’s requirement that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same … as other persons not so affected by similar in their ability or inability to work.”

As mentioned above, this important issue is now up to the United States Supreme Court to decide. However, it should be noted that the current law in Kentucky was established in a case before the Sixth Circuit, whose rulings apply to all Kentucky employers, and conflicts with the Fourth Circuit’s holding in Young v. UPS. In Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), the Sixth Circuit determined that the district court erred in granting summary judgment for the defendant and that the plaintiff had established a prima facie case of discrimination where she alleged that the United States Postal Service discriminated against her in violation of the Pregnancy Discrimination Act by refusing to grant her benefits and alternative duties, which were available to temporarily disabled employees, while she was pregnant. Therefore, the Supreme Court’s decision in Young v. UPS could reverse or solidify the law pronounced by the Sixth Circuit in 1996, and is one for Kentucky employers to keep a close eye on.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

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

The Equal Pay Act—Is Your Business Helping or Hurting the Cause?

In 1963, when the Equal Pay Act (“Act”) was signed by President Kennedy, women were earning an average of 59 cents on the dollar when compared to men.[1] Today, women earn about 80 cents on the dollar.[2] President Obama addressed the issue of equal pay in his second inaugural address, “[O]ur journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts.” Where does your business stand on the journey to equal pay? Equal pay may not be something that is high on your radar as an employer, but you should always be assessing if your business is compliant with applicable laws and whether employees are being treated fairly.

The Act generally requires covered employers to provide equal pay to persons (both men and women) who are performing the same job. It is important to know that job titles are irrelevant in the ‘same job’ assessment; it is the content that determines whether jobs are substantially similar. All forms of pay are subject to the Act—salary, overtime pay, bonuses, benefits, etc. The Act is an amendment to the Fair Labor Standards Act, thus employers are prohibited from retaliating against an employee who files a claim pursuant to the Act.

An employee does not have to show that the employer’s pay disparity is intentional or based on gender; the fact of a pay disparity for substantially similar jobs is enough. Interestingly, an individual alleging a violation of the Act can go directly to court and is not required to file a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) beforehand. It is the only law enforced by the EEOC which allows for this course. An individual can bring a claim within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years.

In addition to the Act, there are other federal and state laws that prohibit employers from discriminating on the basis of gender in employment decisions. Title VII of the Civil Rights Act of 1964, for example, makes it illegal to discriminate based on sex in pay and benefits, too. If you are an employer and have questions about the Equal Pay Act or other federal or state law, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC for answers.


Ryan Daugherty






Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reached at or at (859) 231-8780.

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




Discrimination in the Workplace Continued….

Following up on our blog post from Wednesday, Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace, the topic really isn’t so far removed from what is going on right in our own community.  In late July the Fayette County Board of Education updated the language of their anti-discrimination policy to include gender identity and sexual orientation as protected classes.  The decision was approved unanimously and applies to students, teachers and school district employees. This adds Fayette County to the list of approximately six other public school districts that have specific prohibitions for these protected classes.  Gender discrimination is banned by all 174 public school districts in Kentucky.

In 1966 Kentucky was on the cutting edge of discrimination legislation, passing the South’s first civil rights law – prohibiting discrimination in employment and public accommodations based on race, national origin, color and religion. Establishing The Kentucky Commission on Human Rights as the enforcement arm was also a first for the South.  In 1968 Kentucky became the first State in the South to enact fair housing laws, prohibiting these same discriminations.  More recently, the City of Louisville was one of the first in the country to pass a fairness ordinance that included gender identity.

Although Kentucky prohibits discrimination based on sexual orientation and gender identity, it only applies to the public employment sector.  There are revealing trends, like the action taken by the Fayette County Board of Education, which point to the mainstream moving ever-closer toward the inclusion of these two classes (gender identity and sexual orientation) in all areas of discrimination protection.  The Senate Committee on Health, Education, Labor and Pensions (“HELP”) heard testimony June 12, 2012 on the Employment Non-Discrimination Act (“ENDA”) – legislation aimed at creating comprehensive employment and anti-discrimination protection for individuals based on sexual orientation or gender identity.  ENDA is has been circulating in Congress since last year and has bipartisan and Presidential support.   With more issues regarding sexual orientation, preferences and gender identity being played out on the national stage, such as the Chick-Fil-A marriage equality debate, and locally the Richmond, Kentucky Fairness Ordinance debate, it seems logical that every employer should consider updating their discrimination policies and practices.  As attorney, Benjamin Riddle pointed out in his recent blog post, The Slippery Slope of Social Media in Hiring, it is always necessary for employers to be aware of and address quickly developing law on both the federal and state levels.  It is your company’s best protection.

Given our State’s history with civil rights, and being a pioneer in that area of the law, we will be watching this issue closely, eager to see if our state’s history holds true.  We are always prepared to update you on how you can stay ahead of the legal curve.







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

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







Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace

Kentucky currently has no laws prohibiting discrimination on the basis of sexual orientation or gender identity.  However, since 1999 Louisville-Jefferson County and Lexington-Fayette County and Covington (in 2003) have had local ordinances banning discrimination in employment, housing and public accommodations due to sexual orientation.  In June 2008, Governor Steve Beshear reinstated an Executive Order banning discrimination of state employees based on sexual orientation and gender identity.  On April 23, 2012 the EEOC delivered a landmark ruling, in favor of protection against discrimination for transgender people working for the federal government.  With the introduction of HB 188/ SB 69 Statewide Fairness Act and the federal Employment Non-Discrimination Act on the horizon, we are prompted to encourage every employer to give fairness policies and procedures a serious review.

First on our list of Non-Discrimination Best Practices, is to modify all organizational documents addressing issues of non-discrimination to include “gender identity or expression” in the list of protected classes.  The company non-discrimination policy, anti-harassment policy, equal employment opportunity policy, application form, and job postings should all be included.

The second step to ensuring fairness in your workplace is to allow employees and candidates to self-identify their preferred name, and pronoun. A great way to accomplish this is to develop a system that uses the employees’ or candidates preferred name and pronoun on all personnel records, internal and external documents and communications, business cards, websites and other written and electronic records.

Third, incorporate the concept of gender identity into all training programs and materials related to discrimination, harassment, diversity, supervision, leadership and company policy.  Educate employees – particularly HR staff, management, supervisors, decision-makers, security, and reception staff – about transgendered people and the policies that are in place to protect against discrimination for all current and potential employees.

Rewriting your organizations policies and procedures is generally an annual process.  However, when monumental markers are presented in the form of EEOC rulings, legislation or Executive Orders, we should all take a moment to make sure our company has the proper protections in place for both the employee and the employer.

As always, you should have a lawyer review each step in this process, every document, and training presentation, and we are here to assist you, making sure you and your employees are protected against discrimination claims. This is an ever-changing area of the law that moves with the shifting views in our culture environment, and is definitely one to watch.







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

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

High School Diploma Requirements, Potential Violations of the Americans with Disabilities Act?

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Informal Discussion Letter (“EEOC Letter”)[1] which opined that employers who require high school diplomas as a minimum standard for job applicants, and who often advertise as such, may be in violation of the Americans with Disabilities Act, because they screening out individuals who are unable to graduate because of a learning disability.  Though Informal Discussion Letters give guidance regarding a particular inquiry and are not binding precedent, this letter serves as a wake-up call for employers of skilled and unskilled workers alike, who have long considered a high school diploma requirement to be a minimal, achievable and useful standard to ensure that its workforce possesses basic reading, writing and math skills.

The Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (“ADA”), is applicable to employers who employ more than fifteen (15) employees, and prohibits employers from discriminating against a qualified individual – those who can perform the essential functions of the employment position with or without reasonable accommodation — on the basis of his or her disability, during all stages of the employment relationship, including throughout “job application procedures;” during the “the hiring, advancement, or discharge of employees;” and with regard to “employee compensation, job training, and other terms, conditions, and privileges of employment.”  42 U.S. C. 12111(8) and 12112.  A disability is defined with the ADA as a “physical or mental impairment that substantially limits one or more major life activities of such individual” [generally including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working]; or “a record of such an impairment; or “being regarded as having such an impairment”.  42 U.S.C. 12102.

According to the recent EEOC Letter, an employer may still apply the high school diploma requirement (and presumably other degree or certification requirements) if it can demonstrate that such a requirement is “job related and consistent with business necessity,” which essentially requires a showing that the functions of the particularly job position cannot be easily be performed by someone who does not have a high school diploma.  For example, for a legal secretary, who must possess significant reading, writing, word processing, and math skills to perform such a job, a high school diploma requirement may be deemed “job related and consistent with business necessity,” but the same may not be true for a grocery bagger, hair stylist or delivery driver, who may not utilize the same skills taught in high school as a part of his or her job functions.

In light of this letter, and the reality that the EEOC may soon be inclined to apply this new position in the right case, it is prudent for employers to take another look at its job advertisements and applications to determine: (1) whether a high school diploma is actually essential to the job position; (2) what skills taught in high school are actually required for the position; and (3) how they can revise their job advertisements and applications to reflect the skill requirements necessary to the particular job, rather than a threshold diploma requirement.  It is also advisable to re-train management to ensure that they are not discriminating against applicants with learning disabilities who can perform the essential job requirements with or without reasonable accommodation, but who have not been able to achieve a high school diploma.  While an employer is not required to prefer the learning disabled applicant over other better qualified applicant, it must consider the applicants true ability to perform essential job functions through demonstration of skills, work history considerations, etc., in lieu of a strict high school diploma requirement.








Ryan Colleen Daugherty is an associate and member of the firm’s Litigation and Planning & Zoning groups. She focuses on employment, real estate and other commercial litigation, as well as other estate administration and family law matters. She joined the firm in 2008 after graduating from the University of Kentucky College of Law and the University of Georgia College of Environmental Design. In addition to her law practice, she is a LEED Accredited Professional, and a member of the Board of Directors of the U.S. Green Building Council’s Kentucky Chapter, serving as its Legislative Task Force Chair. She is also a LFUCG Greenspace Commissioner and volunteers on various civic organizations such as Bluegrass Tomorrow, Race for Education and Girls on the Run. She recently was selected as one of the Lexington Young Professionals Association’s 2010 Rising Stars, and as one of five Emerging Leaders chosen to attend the 2010 Louisville and Lexington Chamber’s joint Leadership Expedition. Ms. Daugherty can be reached at or at (859) 231-8780, ext. 197.