EEOC Guidance on Retaliation

The Equal Employment Opportunity Commission (EEOC) has recently published updated enforcemesealnt guidance on retaliation. This is the first time that the guidance has been updated since 1998. The 70 page guidance provides court interpretation and examples to help determine what constitutes illegal retaliation.

Each of the EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

Retaliation charges are the most popular of all charges received by the EEOC. In fiscal year 2015, the EEOC reports that 44.5% of all charges received alleged retaliation.

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Genetic Nondiscrimination Law Affects Many Work Practices

Take steps now to avoid running afoul of the Genetic Information Nondiscrimination Act (GINA), which prohibits discrimination in health coverage and employment on the basis of genetic information. Title II addresses discrimination in employment, and prohibits employers from acquiring genetic information about employees, and from using genetic information for hiring, firing or promotion decisions, and for any decisions regarding terms of employment.

Since the term “genetic information” is defined broadly, it’s important that employers understand the many situations in which GINA can apply. Final regulations from the Equal Employment Opportunity Commission provide guidance on this.

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Workplace Retaliation: Reduce the Chances of a Claim

In order to prevent illegal retaliation from occurring in your workplace, you Push Pinshave to understand some basic definitions.

  • Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity.
  • An adverse action is taken to keep someone from opposing a discriminatory or harassing practice or participating in an employment discrimination proceeding. Examples of adverse actions include terminating an employee, denying a promotion and giving an unjustified negative performance evaluation.
  • For purposes of federal employment laws administered by the EEOC, covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in protected activity are also covered. For example, it is illegal to terminate an employee because his spouse (who is also an employee) participated in employment discrimination litigation.
  • Note: In addition to the employment laws administered by the EEOC, retaliation can occur against individuals who may be protected by other federal, state, or local laws. This includes the federal Family Medical Leave Act and whistleblower laws that bring attention to ethical, financial, or other concerns.
  • Protected activity includes opposing a practice believed to be unlawful discrimination. For example, an employee complaining about treatment he or she believes is discriminatory — directed at the employee or a co-worker. Protected activity also includes participating in an employment discrimination proceeding or requesting a reasonable accommodation based on religion or disability.

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Employment Background Checks: Proceed with Caution

caution-943376_1280Recently there have been an increased number of class action lawsuits against employers due to background screenings.  Many employers use background checks, referred to as “consumer reports,” to obtain information about an individual such as reputation, character, credit worthiness, criminal background, civil lawsuits, driving record, education verification and other information. The information obtained through these consumer reports is used to make employment related decisions such as hiring new employees or promoting existing employees.

The Equal Employment Opportunity Commission (EEOC) reports that, in one survey, a total of 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks.  Reasons for employers to use background checks include federal, state and local laws, as well as preventing theft, fraud, and workplace violence, and reducing the likelihood of negligent hiring liability.

Excluding information regarding genetic and medical history, employers legally have the right to request additional background information regarding any applicant or employee of their company.  But be cautious, as there are federal and state regulations which employers must comply with when using consumer reports.

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Warn Your Managers – EEOC is Now Sending Notice of Charges via Email

The Equal Employment Opportunity Commission (EEOC) enforces Federal laws prohibiting employment discrimination. exclamation-311742_1280 These laws protect employees and job applicants against employment discrimination when it involves:

  • Unfair treatment because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability.
  • Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

The EEOC reports receiving about 90,000 new complaints each year.  To handle these complaints, the EEOC created the Action Council for Transformation to a Digital Charge System (ACT Digital) to develop a set of online applications for use by the public.

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Employers: Understand When Disability Discrimination Occurs

In multiple cases this year, the Equal Employment Opportunity commission (EEOC) has taken action against employers for alleged discrimination in cases involving disabled individuals. hands-460872_1280

Although the total number of cases filed against employers in 2014 was down slightly from the year before, charges are up significantly from a decade earlier.  The EEOC has not given a reason for the long-term increase.  However, many HR professionals and employment law attorneys attribute it to the aging population and an expanded disability definition that took effect in January 2009.

Under federal law, disability discrimination can occur when:

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