EEOC Enforcement Updates

It’s the most common employment law claim . . . retaliation.  In 2015, 44.5% of the total EEOC charges were based on retaliation, which exceeded even race-based charges of discrimination.  So it is not surprising that the EEOC decided to weigh in.  On August 29, 2016, the EEOC issued its final 76-page Enforcement Guidance on Retaliation and Related Issues, the first retaliation guidance provided by the EEOC since 1998.
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On Monday, June 1, the Supreme Court decided a religious discrimination case involving Abercrombie & Fitch and the EEOC. The Court held that “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Court also re-affirmed that to succeed on a disparate treatment discrimination claim (i.e., a discrimination claim related to a specific person), one must satisfy the motivating factor standard. The motivating factor standard requires a showing that the protected characteristic (e.g., one’s religion, race, etc.) was a “motivating factor” in the at-issue employment decision. A full copy of the Court’s opinion may be found here. (more…)

The Equal Employment Opportunity Commission (EEOC) recently announced the launch of its ACT Digital pilot program that allows the EEOC to communicate directly with employers through an online portal. Phase I of ACT Digital allows an employer against whom a charge has been filed to view and download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify contact information. The program applies to private and public employers, unions, and employment agencies. (more…)

The Americans with Disabilities Act, 42 U.S.C. § 12191, et seq. (“ADA”), expressly excludes from its protections individuals whose gender identity disorder is not the result of a physical impairment. The so-called “GID exclusion” is found in § 12211(b)(1) of the ADA, which provides, in no uncertain terms, that “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” do not fall under the Act’s definition of “disability.” (more…)

The holidays have come and gone.  I hope everyone enjoyed them, and I hope everyone received the gifts and presents they asked for.   I come from a big family—three siblings, 14 aunts and uncles, and nearly twenty cousins.  Growing up, opening presents around the holidays was a roll of the dice.  You were just as likely to receive a wool sweater with jingle bells as you were the must-have gift of the season.  If you ‘won’ the sweater, you’d wear it with a smile until mid-January, and then toss into the closet.  If you ‘won’ the must-have gift of the season, you’d play with it well into next Fall.  To this day, my Mom will tell you that the best way to judge a gift is to see how far into the next year you’re still enjoying it (i.e., how far into the next year you’re still playing with it / wearing it / riding it / using it / remembering where you last put it). (more…)