EEOC’s Public Portal online now

Today the U.S. Equal Employment Opportunity Commission (EEOC) launched an EEOC Public Portal to provide online access to individuals inquiring about discrimination.

“This secure online system makes the EEOC and an individual’s charge information available wherever and whenever it is most convenient for that individual,” said EEOC Acting Chair Victoria A. Lipnic. “It’s a giant leap forward for the EEOC in providing online services.”

The EEOC Public Portal allows individuals to submit online initial inquiries and requests for intake interviews with the agency. Initial inquiries and intake interviews are typically the first steps for individuals seeking to file a charge of discrimination with EEOC. In fiscal year 2017, the EEOC responded to over 550,000 calls to the toll-free number and more than 140,600 inquiries in field offices, reflecting the significant public demand for EEOC’s services. Handling this volume of contacts through an online system is more efficient for the public and the agency as it reduces the time and expense of paper submissions.

The new system enables individuals to digitally sign and file a charge prepared by the EEOC for them. Once an individual files a charge, he or she can use the EEOC Public Portal to provide and update contact information, agree to mediate the charge, upload documents to his or her charge file, receive documents and messages related to the charge from the agency and check on the status of his or her charge. These features are available for newly filed charges and charges that were filed on or after Jan. 1, 2016 that are in investigation or mediation.

Five EEOC offices (CharlotteChicagoNew OrleansPhoenix and Seattle) piloted the new system for six months. Feedback from the public and the EEOC pilot offices led to improvements in the system for this nationwide launch.

The new system does not permit individuals to file charges of discrimination online that have not been prepared by the EEOC or to file complaints of discrimination against federal agencies.

In the next few weeks, the EEOC will also provide online access to charging parties for whom the agency has an email address, who have pending charges that are currently in investigation or mediation and were filed as of Jan. 1, 2016.

Individuals who do not have online access can call 1-800-669-4000 to get basic information about how to submit an inquiry to their local EEOC office.

Tips for your anti-discrimination policy

Employment Discrimination Lawyer

The EEOC recently posted some tips for employers looking to develop an anti-discrimination policy. The EEOC advises employers to:

  1. State that discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history) is illegal and will not be tolerated. Provide definitions and examples of prohibited conduct, as needed.*
  2. State that you will provide reasonable accommodations (changes to the way things are normally done at work) to applicants and employees who need them for medical or religious reasons, as required by law.*
  3. Explain how employees can report discrimination.
  4. If possible, designate more than one person to receive and respond to discrimination complaints or questions.
  5. Consider permitting employees to report discrimination to any manager.
  6. State that employees will not be punished for reporting discrimination, participating in a discrimination investigation or lawsuit or opposing discrimination.
  7. State that you will protect the confidentiality of employees who report discrimination or participate in a discrimination investigation, to the greatest possible extent.
  8. Require managers and other employees with human resources responsibilities to respond appropriately to discrimination or to report it to individuals who are authorized to respond.
  9. Provide for prompt, thorough and impartial investigation of complaints.
  10. Provide for prompt and effective corrective and preventative action when necessary.
  11. Consider requiring that employees who file internal complaints be notified about the status of their complaint, the results of the investigation and any corrective and preventative action taken.
  12. Describe the consequences of violating the non-discrimination policy.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

EEOC has good day on ADA case in Fifth Circuit

ADA_signingPresident George H.W. Bush signing the landmark Americans with Disabilities Act in 1990.  24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.

Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.

On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.

The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.

On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”

The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.

On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.

However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.

The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.

The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.

In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.

To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.

The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.

EEOC sues CVS for overbroad severance agreements

fine_print-2The EEOC [1] has launched a massive lawsuit against CVS Caremark, the nation’s second largest drugstore chain, for requiring employees to sign overbroad, misleading severance agreements that interfere with the rights to file charges of discrimination and participate in proceedings to enforce the federal anti-discrimination laws.

The terms of a standard severance agreement are filled with legalese such as “general release of claims,” “non-disparagement” and “covenant not to sue.” Employers rely on these contracts to end the threat of lawsuits. For giving up their rights to sue, departing employees receive money or benefits.

But the Equal Employment Opportunity Commission has taken issue with the fine print in CVS’s severance agreement. And the lawsuit is shaping up to be a test case on a widely used employment practice. Such lawsuits often accompany large financial funding [2] from the help of third parties.

The EEOC”s interest in a private contract stems from its extensive mandate to enforce laws against workplace bias. This includes targeting policies and practices that discourage people from exercising their rights under job discrimination laws or that impede the agency’s enforcement efforts.

One of those rights is that employees who sign separation agreements can still file a complaint with the EEOC if they believe they were discriminated against during their employment or wrongfully terminated. In addition, a severance pact can’t prohibit a discharged employee from participating in an EEOC investigation.

The EEOC claims that CVS interferes with a worker’s rights to bring charges with the agency. CVS said the EEOC’s suit is “unwarranted” because its severance agreement includes language “to state that it does not prohibit employees from doing so.”

Because the EEOC brought the suit even though CVS attempted to carve-out employees’ rights under discrimination laws, the case is being closely watched.

The suit raised basic questions such as how can a former employee participate in EEOC proceedings the employer demanded strict confidentiality and non-disparagement? The EEOC says the CVS agreement gives departing employees the general impression that they should “keep their mouths shut” and don’t dare even consider complaining about CVS’ workplace to any federal or state agency. The EEOC highlighted its objections to several aspects of the agreement, including these:

  1. The “cooperation” paragraph would require employees to notify CVS’ general counsel promptly by telephone and in writing if they were to receive an inquiry from an investigator with regard to an administrative proceeding related to the corporation.
  2. In the “general release of claims” section, the company includes language that states employees release “any claim of unlawful discrimination of any kind.”
  3. The “covenant not to sue” paragraph states that an employee agrees “not to initiate or file, or cause to be initiated or file, any action, lawsuit, complaint or proceeding” asserting any of the claims released in the agreement. If an employee violates the provision, the individual has to reimburse CVS for any legal fees.
“If you have one pound of rights buried in 50 pounds of prohibitions, people are going to react to the prohibitions,” EEOC attorney John Hendrickson [3] said. “That’s why we did this.”

The EEOC seeks to permanently stop CVS from using the separation agreement.  In addition, the EEOC asked the court to order CVS to take other corrective actions, such as informing employees that they retain the right to file a discrimination charge with the EEOC and cooperate with the agency without facing retaliation.

“One of our enforcement priorities is preserving access to the legal system,” Hendrickson said. “This agreement stands between people who signed these and any complaint they want to make. We want to take that barrier down and keep it down.”

[1] https://www.eeoc.gov/

[2] https://lawstreetcapital.com/settlement-funding/pre-settlement/

[3] https://www.eeoc.gov/eeoc/meetings/6-8-11/hendrickson_bio.cfm

What Arlington v. FCC means for employment law

The Supreme Court’s decision in Arlington v. FCC is helpful both to employees and to the United States Equal Employment Opportunity Commission.  In Arlington, a six justice majority held that federal courts owe “Chevron deference” to how an administrative agency interprets its own jurisdiction.  “Chevron deference” essentially means that a court must defer to an agency’s interpretation of a statute, even if the court believes the agency made a mistake.  So long as the agency’s interpretation is not “arbitrary or capricious” – that is, patently contrary to the statute itself – its interpretation has the full force and effect of law.  Chevron deference has been around for a long time, but Arlington is the first Supreme Court case to hold that agency interpretations of agency jurisdiction are entitled to it.

Why should employees (and employers) care about the case?  Because it means the EEOC can largely determine the scope of its enforcement jurisdiction over the civil rights laws.  Lots of employment cases rise and fall on the application of EEOC regulations to the facts.  When those regulations support employees, employers often challenge them as having exceeded the scope of the EEOC’s regulatory jurisdiction. Arlington means that federal courts can no longer review such challenges from scratch (or in legal terms, de novo).  Rather, they must afford substantial deference to the EEOC’s decision that it had the power to issue the regulation.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.
 

Prescription medications in the workplace

An Ohio company has been fined $50,000 by the EEOC after firing an employee who tested positive for a prescribed medication for her bipolar disorder. The agency accused the company of violating the Americans with Disabilities Act. Chassity Brady was a quality control lab technician in the Braselton, Ga. facility of Dayton Superior Corporation, a concrete and masonry construction company, according to the EEOC. After Brady had an adverse reaction at work to a drug prescribed to her to treat her bipolar disorder, Dayton Superior forced her to take a drug test. Even though the only thing she tested positive for was the bipolar drug, the employer fired her. The EEOC filed a lawsuit on Brady’s behalf in September. Under the settlement announced Jan. 4, Dayton Superior agreed to pay Brady $50,000 and to complete training, report to the EEOC, and post relevant notices.

Employers are never supposed to make hiring and firing decisions based on disabilities – including those that are only indicated by a prescription, and employers must be careful before firing someone for taking medically indicated prescription medications. In another case, the employer had an actual policy and practice of drug testing employees for not only illegal drugs but also a group of perfectly legal prescription medications. In that case, the EEOC fined a Tennessee employer $750,000. The EEOC said Dura Automotive Systems required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications. Dura also said employees could only keep their jobs if they stopped taking their meds. “Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications,” said the EEOC.

If your employer utilizes any such policy, talk to a lawyer or consider filing a charge with the EEOC. Making employment decisions on the basis of stereotypical assumptions about disability-based medications is one of the problems the ADA was designed to combat.

EEOC explains protections for employees who experience domestic or dating violence, sexual assault or stalking

The Equal Opportunity Employment Commission (EEOC) has released a fact sheet advising how employment practices that discriminate against applicants or employees who have experienced domestic or dating violence, sexual assault, or stalking may violate Title VII. While the EEOC acknowledges that there is no federal statute directed at prohibiting such discrimination, the publication titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” seeks to advise people how such discrimination may violate provisions of Title VII.

In a series of questions and answers, the EEOC provides examples of situations in which discrimination based on an individual being the victim of domestic or dating violence, sexual assault, or stalking may violate the law. For example, if an employer terminated an employee after learning that she had been subjected to domestic violence based on the belief that battered women bring drama to the workplace, the employer would be violating Title VII’s proscription against disparate treatment based on sex-based stereotypes. Another example offered involves a hiring manager who does not hire a male applicant after learning that he has obtained a restraining order against a male domestic partner, based upon a belief that only women can be “real” victims of domestic violence.

The EEOC also points out that sex-based harassment may violate Title VII if it is sufficiently frequent or severe or if it results in a “tangible employment action.” For example, an employer who learns that an employee was the victim of abuse, viewed him or her as vulnerable and made advances, and then terminates the employee when the advances are rebuffed is in violation of the law.

The Americans with Disabilities Act (ADA) can also be implicated in situations that involve applicants or employees that are the victims of domestic or dating violence, sexual assault, or stalking. The ADA prohibits employers from treating people differently based on actual or perceived impairment. For example, an employer would be in violation of the law if he or she learned that an applicant is a witness for the prosecution in a rape case and is receiving counseling as treatment for depression, and chose not to hire the individual based on the belief that he or she may require time off due to depression.

In the last section, the document describes when an employer may be required to make reasonable accommodations under the ADA for employees or applicants who have been the victims of sexual assault, domestic violence, or stalking. For example, an employer may be required to provide time off for an individual who requires treatment for depression or anxiety following a sexual assault, even if the employee has no sick leave and the employer is not covered by the FMLA.

Results: $500,000 in pregnancy discrimination case

Mr. Lamberton recently obtained a significant recovery for a client in a pregnancy
discrimination case, involving a current cash component and reinstatement offer
with a combined total cash value of more than $500,000.  The employer will also
revamp its written employment policies, and provide training to its managers on
the civil rights laws.