Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

EEOC rolls out “Digital Charge” program for private employers

Posted in Uncategorized

Thanks to my law partner Jill Stricklin, who has this news about the EEOC’s new pilot program. Jill is an employment litigator in Constangy’s Winston-Salem Office and was also just named to the 2015 North Carolina Business Legal Elite for employment attorneys.

The EEOC began use of a new “Digital Charge” pilot program last Friday in the Charlotte, North Carolina, and San Francisco, California, field offices for employment discriminationJill Stricklin charges filed against non-federal employers. The EEOC has already implemented this digital system for complaints filed by federal employees.

Under the “Digital Charge” process, an employer will no longer receive the usual forms informing it that a charge of discrimination has been filed against it. Instead, an employer will receive just a one-page letter entitled “Notice of Charge of Discrimination” that will include a link to view the entire charge online via a secure portal. This specific portal, which is shared between the employer and the EEOC, is to be used by the employer not only to view the full charge of discrimination, but also to submit electronically its initial documents to the EEOC, including notices of appearance, requests for extension of time, supporting documentation, and the employer’s position statement.

Because this new pilot program has not been well-publicized (it is not currently on the EEOC’s own website), it is especially important for employers to be aware of this new process, so that they can respond to such notices in a timely fashion. The EEOC’s plan is that on June 1, respondents in the jurisdictional areas of the Indianapolis, Phoenix, Detroit, Denver, and Seattle field offices will begin using the “Digital Charge” pilot program, with the rest of the country following suit this fall.

Did he quit, or was he fired? Constructive discharge quiz!

Posted in Discrimination, Harassment

Some employers really, really hate to fire employees. That doesn’t mean they won’t do it – but they’ll do just about anything to avoid calling it what it is.

Shovel Art.flickrCC.TonyAlter

“You should usually call a spade a spade.”

A few months ago, I wrote about “bogus RIFs” – when an employer tries to avoid “firing” an employee by claiming it’s really a “reduction in force.”

There’s another kind of “alternative” separation called a constructive discharge.

Under federal law, a “constructive discharge” occurs when the employer deliberately makes working conditions so intolerable that a reasonable person in the employee’s position will feel compelled to resign. It can also include a forced resignation. In the eyes of the law, a constructive discharge is the same as an out-and-out firing, and sometimes it’s worse.

The U.S. Supreme Court agreed this week to decide when exactly the statute of limitations begins to run on a constructive discharge claim.

Since constructive discharge is hot right now, it must be time for a quiz! As always, the answers are provided, so there’s no pressure.

Are you ready to test your knowledge? Set? GO!

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Michael J. Shershin, Jr., March 2, 1936-April 7, 2015

Posted in Uncategorized

Many of our long-time clients and friends remember our former law partner Mike Shershin, a labor practitioner. Mike died earlier in April after a short illness. We offer our condolences to Mike’s wife of 41 years, Martha, and to the rest of his family and friends. The following is a statement from Neil Wasser, Chairman of our firm’s Executive Committee:

It is with deepest sympathy, that I inform our Constangy family that Mike Shershin, one of the long-time partners in our Firm, has passed away. Mike worked actively in the Atlanta office from 1966 until 2004 when he went on an of-counsel basis and moved with his wife Martha to Laurel, Mississippi. Mike truly loved our Firm and remained connected with many of us – following the developments at the Firm and always offering support and encouragement regarding our growth over the years. He was a brilliant Board attorney and a mentor to a lot of young associates in the Firm. He probably was the definition of the term “prepared” when it came to his NLRB work or arbitration cases. For every case he handled there was a well organized color coded binder, oftentimes multiple binders, highlighted in yellow. Mike served as our Operations Partner, and along with a small core of lawyers, oversaw the business of our Firm for many years. As an associate here in the Atlanta office, I can say that Mike had an amazing knack for calling with an assignment on the “one day” when you might have left work a little early. Mike worked hard, always put the Firm’s interests first, and was a good friend to so many lawyers here. He will be missed.

Mike’s full obituary is available here.


EEOC transgender case in Detroit will go forward

Posted in Civil Procedure, Discrimination, Gender Identity Discrimination

As our readers know, the EEOC filed two lawsuits last fall against private employers, alleging discrimination against transgender individuals: one case against a medical practice in Florida, and the other against a funeral home operation in the Detroit area.

And as I reported last week, the Florida case settled for $150,000 plus some training and other non-monetary terms.EEOC Logo

Meanwhile, the defendants in the Michigan case filed a motion to dismiss the EEOC’s lawsuit, and their motion was denied on Wednesday. Judge Sean Cox rejected the EEOC’s position that “gender identity” discrimination was a protected category under Title VII but will still allow the case to go forward on a theory of “sex stereotyping,” which the Supreme Court has said is a violation of Title VII. Judge Cox’s decision contains an excellent discussion of the sex stereotyping issue.

The allegations in the Michigan case are straightforward. The EEOC claims that Amiee Stephens was a funeral director/embalmer for the defendants since 2007. In 2013, she announced that she was beginning the transition from male to female, planned to present as a female, and requested understanding. Shortly afterward, she was terminated “because ‘what she was proposing to do’ was unacceptable.” The EEOC also alleges that the funeral home provided a clothing allowance to male, but not female, employees.

Employers should be aware that a “motion to dismiss” is filed at the earliest stages of a lawsuit and is based on nothing other than the allegations in the lawsuit and applicable law. At this very early stage, the court is required to assume that all of the allegations in the lawsuit are true, and the employer is not allowed to present any evidence in its defense. If the allegations — even if true — don’t create a valid legal claim, then the suit can be dismissed. Otherwise, the parties proceed with the litigation.

Denial of a motion to dismiss does not mean that the allegations in the lawsuit actually are true or that the employer will not win at a later stage.

Hey – that EEOC wellness rule isn’t half bad

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Genetic Information Non-Discrimination Act, GINA, Retaliation

NOTE: As I breathlessly reported last week, the EEOC has issued its long-awaited proposed rule on employer wellness programs and the Americans with Disabilities Act. (Here is a nicer copy than the one that was available then.) Brian Magargle, who knows a lot more than I do about the Health Insurance Portability and Accountability Act and the Affordable Care Act, and I are working together on a “multidisciplinary” overview of the proposed rule. Meanwhile, here is my summary of the proposed rule.

Nurse Practitioner.flickrCC.Doug

“This won’t hurt a bit.”

What pressing issue does this proposed rule address? For the history of the ADA/wellness controversy, go here, here, and here.

Is the proposed rule good for employers, or bad? Pretty good overall. The EEOC has, for the most part, proposed that providing “incentives” for employees to participate in wellness programs (both rewards and penalties, which we’ll call “carrots” and “sticks”) will be all right as long as the employer complies with the limits in the HIPAA/Affordable Care Act. In other words, incentives to that extent would, for the most part, not make the wellness program “involuntary” for ADA purposes. Which means that medical inquiries made in connection with such a wellness program will generally not violate the ADA.

One catch: The wellness program would have to be associated with a group health plan (either insured or self-insured).

Another catch: The EEOC proposals don’t exactly match the HIPAA/ACA rules, but they’re reasonably close.

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Is telecommuting a reasonable accommodation, or is it not?

Posted in Americans with Disabilities Act, Discrimination

Inquiring minds want to know!

In the context of a lawsuit brought under the Americans with Disabilities Act, a recent court decision says that “regular attendance” is an essential function of the job. But what is “regular attendance”?

Which made me think of this:

(I promise – this is neither a pro- nor an anti-Hilary Clinton post, but I couldn’t resist the tie-in during this week of her big announcement.)

Back on topic: I was tickled to death to see that Ford Motor Company was vindicated last Friday in the telecommuting/accommodation lawsuit brought by the Equal Employment Opportunity Commission. I’ve posted about the case, brought under the Americans with Disabilities Act, here and here, and on Friday, the full U.S. Court of Appeals for the Sixth Circuit affirmed dismissal of the lawsuit.

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BREAKING!!!! EEOC issues proposed “wellness” regs

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

Law360 just reported that the EEOC has issued its long-awaited proposed rule on wellness programs and the Americans with Disabilities Act. The official version will be published Monday in the Federal Register.

I am out today and tomorrow to present some seminars, but I will have a full post on this as soon as I’ve had a chance to review. Meanwhile, here is a sneak peek of the proposed rule.

Quickie elections, ASAP!

Posted in Labor Relations

The National Labor Relations Board’s so-called “quickie election” rule, providing for expedited union votes, took effect yesterday. I can’t improve on what David Phippen of our Metro-Washington D.C. office posted about it here in December after the rule was first issued, so here ya go!

One of EEOC’s first transgender lawsuits has settled

Posted in Discrimination, Gender Identity Discrimination

Last September, I posted that the EEOC had filed its first two lawsuits against private employers alleging discrimination based on gender identity.

The EEOC announced this week that one of the lawsuits — against Lakeland Eye Clinic of Florida — has settled. The Clinic has agreed to make two payments of $75,000 to Brandi Branson, who had been the Clinic’s Director of Hearing Please Pay HereServices. According to the lawsuit, Ms. Branson was hired as a male and began transitioning to female after about six months on the job. The lawsuit claimed that doctors all but stopped referring patients to her and that her position was eventually eliminated in a bogus “RIF.” (A replacement was reportedly hired into the “eliminated” position only two months later.)

The EEOC alleged that the Clinic violated Title VII by discriminating against Ms. Branson because of her sex (failure to conform to gender stereotypes).

In addition to the payments, the Clinic has agreed to adopt a policy against discrimination because of gender identity or gender stereotyping, and to conduct training for management and employees on the subject.

The other EEOC lawsuit, against a funeral home operation in the Detroit area, is still pending.

In case you had not noticed, the federal government is serious about LGBT issues. In addition to these two EEOC lawsuits, the Office of Federal Contract Compliance Programs now requires federal contractors to include sexual orientation and gender identity as protected classes in EO statements, purchase orders, and other required documentation, and to provide training. And EEOC Commissioner Chai Feldblum reported last October that charges alleging LGBT discrimination are on the increase.

That having been said, it remains to be determined by the courts how far Title VII’s ban on “sex discrimination” applies to LGBT discrimination. There is no federal statute explicitly barring LGBT discrimination. A number of courts have found that Title VII’s ban on sex discrimination does apply to discrimination based on failure to conform to gender stereotypes and norms — precisely the issue involved in the two EEOC lawsuits. But it’s far less clear that Title VII applies to garden-variety “sexual orientation discrimination” where no “gender stereotyping” is involved.

Image credit: From flickr, Creative Commons license, by Steven Depolo.