EEOC Proposes New Age Discrimination Regulations
Today the Equal Employment Opportunity Commission (EEOC) releases new regulations that will define employers' "reasonable factors other than age" or "RFOA" defense under the Age Discrimination in Employment Act (ADEA). The new regulations would reflect two Supreme Court cases interpreting the RFOA defense: Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratories (2008). Click here to read the EEOC's Proposed ADEA Regulations.
The Supreme Court held in Smith that employment practices having a disparate adverse impact on workers age 40 and older may violate the ADEA. The Court in Meacham then ruled that when a plaintiff proves such an adverse impact, employers have the burden of proving that the practice that caused the adverse impact was based on reasonable factors other than age.” Since Smith and Meacham, however, there have not been any interpretive regulations under the ADEA to guide employers on the RFOA defense.
The proposed rule defines a "reasonable factor other than age" as "one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances. To establish the RFOA defense under the new rules, an employer must show that the employment practice was both (1) reasonably designed to further or achieve a legitimate business purpose and (2) administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. The rule also provides a non-exhaustive list of six factors relevant to determining whether an employment practice is "reasonable":
- Whether the employment practice and the manner of its implementation are common business practices;
- The extent to which the factor is related to the employer’s stated business goal;
- The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
- The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
- The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
- Whether other options were available and the reasons the employer selected the option it did.
The EEOC's proposal also explains that the RFOA defense turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.
An employer who is considering a change in employment practices -- such as a layoff, change in employment qualifications, etc. -- should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC's six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC's six factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.
Supreme Court Lets Stand Ruling Allowing EEOC to Issue Subpoenas After Right-To-Sue
Yesterday the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision that allows the Equal Employment Opportunity Commission (EEOC) to continue investigating allegations of employment discrimination, and even to issue subpoenas to employers, after issuing a right-to-sue letter to the employee who filed the initial complaint. Click here to read the Ninth Circuit decision in Federal Express Corp. v. EEOC.
In order to file a lawsuit under Title VII of the Civil Rights Act of 1964, an employee must first file a complaint of discrimination with either the EEOC or an analogous state agency, a process known as "exhausting administrative remedies." Only after the EEOC issues a "right-to-sue letter" may the employee then file a lawsuit. It is not uncommon for an employee to file a complaint with the EEOC and withdraw it almost immediately, obtain the right-to-use letter and file a lawsuit, all before the EEOC has had a chance to investigate. In Federal Express, the employee did just that in order to join a pending class action lawsuit. The employer expected the EEOC to drop its investigation, but instead EEOC continued to investigate and issued a subpoena to the employer.
The Ninth Circuit enforced the subpoena, writing: "By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest." The Ninth Circuit's decision is in line with a decision from the Third Circuit, but contrary to decisions from the Fifth, Seventh and Tenth Circuits. The Supreme Court will often take a case like Federal Express to resolve such splits between the circuit courts, but declined to do so in this case. As a result, the EEOC's investigatory powers will continue to vary depending on where a complaint is made.
Given the Supreme Court's ruling in Federal Express, employers can no longer safely assume that the EEOC will drop its investigation once it issues a right-to-sue letter. The EEOC may choose to continue investigating charges of discrimination, especially in cases involving allegations of systemic or widespread violations of anti-discrimination law. Employers (at least those in the Ninth and Third Circuits) should be prepared to comply with EEOC investigations even after the right-to-sue letter has issued.
New TSA Regulations Potential "Gotcha" For Employers Interviewing Out-of-Town Candidates
As the economy rebounds (we hope) and hiring begins again, employers flying out-of-town job candidates in for interviews will need to be wary of new Transportation Security Administration ("TSA") regulations that require anyone booking air travel to provide the passenger’s date of birth and gender. Employers who are not careful about how they implement this rule may increase their exposure to possible discrimination claims from rejected and disgruntled candidates.
49 C.F.R. § 1540.107(b), part of TSA's Secure Flight program, requires an individual to provide name (as it appears on the ID to be used at the airport), date of birth (DOB), and gender when “the individual, or a person on the individual’s behalf, makes a reservation for a covered flight.” The purpose of the rule is to reduce the number of 4-year old girls and other "false matches" who accidentally end up on TSA “no fly” lists. While the regulation was enacted in December 2008, airlines have been slow to implement the necessary upgrades to their reservation systems. Some airlines may not be asking for the name, DOB and gender information now, but TSA expects all airlines to be in compliance by early 2010.
Continue Reading...GINA Requires Employers to Post Notice, Review Policies and Procedures
The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. Is your workplace ready? Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.
If you don't already have one, click here to download the full "EEO is the Law" poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. If you already have a copy of "EEO is the Law," then you can download and print the "EEO is the Law Supplement," which contains GINA information. (If you don't want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)
What else should employers do to prepare for GINA? Here's a short, non-exhaustive list of things you can do to get ready:
- Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;
- Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;
- If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;
- Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.
- Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.
- If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.
- Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.
Supreme Court to Decide Title VII Statute of Limitations Question
The U.S. Supreme Court agreed yesterday to hear a challenge to a Seventh Circuit Court of Appeals decision in a case with similar factual overtones to the Ricci case decided earlier this year. Like Ricci, this case involves a firefighter qualification test that had a disparate impact on black applicants; unlike Ricci, at issue here is the statute of limitations on a Title VII claim.
In this case, Lewis v. City of Chicago, the plaintiffs are a group of approximately 6,000 black firefighter applicants who filed charges of race discrimination with the EEOC more than 300 days after the initial announcement of their test results, but within 300 days of the hiring of the new firefighter class from which they allege they were denied consideration. The trial court held that the hiring of each new firefighter was a new violation of Title VII, so the EEOC charges were timely filed. On appeal, the Seventh Circuit reversed, holding that the “discrimination was complete when the tests were scored...and the applicants learned the results.” At issue for the Supreme Court is whether the limitations period for a Title VII claim begins to run when an employer announces the results of a test that could violate Title VII’s disparate impact provision, or if the right to sue begins only once the employer has acted on that policy.
At face value, it seems that the trial court probably got this one right and the Supreme Court should reverse the Seventh Circuit. How can an employee know what the actual disparate impact will be until the employer’s hiring decisions are actually made? If, for example, the employer’s business needs ultimately dictate that it need hire nobody, there has been no harm done regardless of the results of the test. An actual harm needs to occur before the right to sue accrues. Notwithstanding that analysis, and given the current makeup of the court, however, it is unclear which way the Court will go on this one. The World of Work will let you know when a decision is reached and how that decision may impact your workplace.
EEOC Proposes Rules Implementing ADAAA; Seeks Public Comments
The Equal Employment Opportunity Commission (EEOC) will in today's Federal Register publish proposed regulations implementing the ADA Amendments Act (ADAAA). The public will have 60 days - or until November 23, 2009 - to submit comments. Click here to read the full text of the proposed regulations.
Congress intended that ADAAA, which took effect January 1, 2009, would broaden the coverage of the Americans with Disabilities Act (ADA) by expanding the definition of "disability." The ADAAA also directed the EEOC to enact new regulations consistent with the purpose and goals of the ADAAA. Key changes now being proposed by the EEOC include:
- Redefining the term “substantially limits” to provide that a limitation does not have to “significantly” or “severely” restrict a major life activity to qualify an individual as "disabled." Under the new definition, an impairment constitutes a disability “if it ‘substantially limits' the ability of an individual to perform a major life activity as compared to most people in the general population.”
- Expanding the definition of “major life activities” and providing non-exhaustive lists of such activities and bodily functions.
- Removing the requirement that an individual seeking ADA coverage prove a " limitation in the ability to perform activities of central importance to daily life” to have a qualifying disability.
- Redefine “regarded as” disabled so that it is no longer necessary for an employee to prove the employer perceived him or her as substantially limited in a major life activity; rather, under the new rules, it is sufficient for the employee to prove that the employer took an employment action against him or her because of an actual or perceived impairment.
Unhappy with the new regulations? Have a suggestion to make them better? Want to express your wrath? You can do so by clicking on Regulations.gov, the U.S. Government's portal for regulations and comments. Want to know more about the ADAAA? You can click here for complete ADAAA coverage on the World of Work.
Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive
Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim. Click here to read the court's decision in Lytes v. DC Water and Sewer Authority.
Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009. The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA). The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively. The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date.
The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive. Notably, the Department of Labor has also taken the position that the law should not apply retroactively. And, at least for now, it appears that the Equal Employment Opportunity Commission agrees.
Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply. For more information on the ADAAA, click here for the World of Work's ADAAA coverage.
EEOC Issues Guidance on Severance Agreements and Waivers
Recognizing that severance agreements are becoming more and more prevailant in the down economy, the Equal Employment Opportunity Commission (EEOC) yesterday issued a new technical assistance document titled Understanding Waivers of Discrimination Claims in Employee Severance Agreements (click on the title to access the document). The new document is intended to help both employers and employees navigate the complexities of waivers in severance agreements.
Of particular interest is the EEOC's guidance regarding the Older Workers Benefit Protection Act, which places certain requirements on waivers of age discrimination claims by employees age 40 and older, including a 21 day period to consider the agreement and a seven day period to revoke acceptance. Also of note is the EEOC's admonition that signing a severance agreement and accepting payment to waive discrimination claims does not prevent an employee from then filing a charge of discrimination with the Commission or a similar state agency.
Employers should review their existing severance agreements in light of the EEOC's new guidance, as this document provides insight into how both the Commission and courts will review such agreements and how employees might find ways to avoid their waiver obligations.
