Tuesday, November 4, 2014

Sandwich “Secrets” and Noncompete Agreements



The sandwich chain Jimmy John’s is getting some unwanted attention from the federal government amid reports that it requires its low-level employees to sign noncompete agreements as a condition of employment. The story was first reported by the Huffington Post, and it resulted in Congressional Democrats sending a letter to the Federal Trade Commission (“FTC”)  and the U.S. Department of Labor (“DOL”), describing the restrictive covenants as “clearly anti-competitive and intimidating to workers.”  The House Democrats are asking for the FTC and the DOL to investigate the sandwich chain.
Is Jimmy John’s doing something illegal by making its sandwich-makers sign noncompetes?  The answer is “no.”  A better question to ask is whether it’s a good idea, and the answer to that is “not really.” 
In most states, this type of “restrictive employment covenant” is generally not favored, but will be enforced by the courts if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.
Despite the efforts to make this into a “federal case”, noncompete agreements are typically governed by state law, which can vary depending on where you live or operate a business.  For instance, in the state of Georgia, a noncompete agreement will be enforced only if the employee possesses selective or specialized skills, learning, abilities, customer contacts, customer information, and confidential information that that they have obtained as the result of working for the company.  In Tennessee, Texas and Maryland, such agreements are enforceable only against employees who had access to or were entrusted with the employer’s trade secrets or other confidential or proprietary information.  In other states, such as California, noncompete agreements are generally unenforceable.
In most of the matters I’ve handled involving noncompete agreements, the employees in question were either highly trained individuals in technical fields, with direct access to their employer’s trade secrets, or were high level sales people with similar access to confidential customer information.  The lesson to be learned is that the use of these agreements should be confined to key employees whose knowledge of trade secrets and other confidential information could cause serious damage if they went to work for a competitor.  I would be hard pressed to come up with a scenario where a fast food employer would legitimately need  to have a crew worker enter into a noncompete agreement. 
While I would be the first one to laud the attributes of a well-made sandwich, I think it’s fair to say that the average Jimmy John’s employee making your “J.J. Gargantuan®” is not privy to any company trade secrets.  By having low-level employees sign noncompete agreements, the company does not appear to be protecting any valid interest, and instead has brought itself some unwanted attention (and ridicule).

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com



Sunday, October 12, 2014

Dept. of Labor Delays FLSA Enforcement and Penalties Against Home Healthcare Companies

             Employers in the home healthcare industry will be getting a brief delay in the enforcement of new regulations extending minimum wage and overtime requirements to home healthcare workers under the Fair Labor Standards Act (“FLSA”). 
The U.S. Department of Labor’s (“DOL”) final rule is scheduled to take effect January 1, 2015, but on October 7, 2014, the DOL announced it would delay enforcement and the imposition of penalties for a period of six months, or until June 30, 2015.  For the following six months, or until December 31, 2015, the DOL will exercise its discretion in determining whether to bring enforcement actions, based on the extent to which employers have made “good faith efforts to bring their home care programs into FLSA compliance.”

 It is important for employers to remember that despite the DOL's enforcement delay, they are still required to begin complying with the new rule as of January 1, 2015.
            Up until the new rule, the FLSA contained an exemption that employees providing “companionship services” to elderly persons or individuals with illnesses, injuries, or disabilities were not required to be paid the minimum wage or overtime pay if they met certain regulatory requirements.
            This change will result in nearly two million direct care workers, such as home health aides, personal care aides and certified nursing assistants falling under the requirements of the FLSA.  Business groups and Congressional Republicans had strongly pushed for a complete suspension of the new rule, expressing fears that it would make home healthcare unaffordable and result in disruption to patient care.  In explaining its reason for the additional delay in active implementation, the DOL noted:
When we announced the final rule, we provided a 15-month implementation period before its effective date. We did so out of recognition that home care services financing is complex, and that making adjustments to operations, programs and budgets in order to comply with the rule would take time. Some states, tell us that they’re ready to implement the rule. Others, because of budget and legislative processes, have requested an extension.  After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services.
            For employers seeking more detailed information on the changes to the FLSA under the final rule, the DOL is providing an on-line fact sheet.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com


Monday, October 6, 2014

EEOC Says “Do as I Say” and “Pay no Attention to What I Do” in Background Check Battle

            In its litigation offensive against employers over the use of criminal/credit background checks in making employment decisions, the federal agency is getting put on the spot over its own employment practices in two high profile cases. 
 
            In earlier posts, I discussed the EEOC’s lawsuits against national retailer Dollar General, and car maker BMW Manufacturing Co., alleging that the employers’ criminal background check policies systematically discriminated against African-American job applicants or existing employees.
 
            In the Dollar General case, the EEOC is currently fighting a motion to compel filed by the retailer, in which Dollar General is asking a U.S. District Court in Illinois to force the anti-discrimination agency to disclose its own policies on using background checks and criminal histories in employment decisions.  In a South Carolina District Court, BMW also has filed a similar motion to compel, seeking all of the EEOC’s documents regarding its policies and guidelines for evaluating the criminal records of individuals applying to work for the federal agency.
 
            Not surprisingly, the EEOC is arguing to the Courts in both cases that it should not be required to turn over the information, claiming the agency’s own practices are irrelevant to the allegations against the two companies.  In response, BMW, echoing an earlier response by Dollar General, noted to the Court:
 
This is not the first time that the EEOC has refused to provide information about its own employee screening policies and procedures while claiming that the policies and procedures of others are        unlawful . . . [a]nd, in all cases, courts have concluded that the information is relevant to issues of business necessity and estoppel and have compelled the EEOC to provide it.

The other cases BMW and Dollar General are referring to likely include the crushing defeat handed to the EEOC earlier this year by the United States Court of Appeals in Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation.  In that case the EEOC sued the educational services company for implementing credit checks after discovering that some employees had stolen student’s financial aid payments. The credit check policy applied to job applicants seeking positions where they would have access to cash or financial information. The EEOC claimed the policy disproportionally impacted “more African-American applicants than white applicants.”
 
In its affirmation of the district court’s grant of summary judgment in favor of the company, the Sixth Circuit blasted the EEOC’s disparate impact theory of liability. In ruling against the EEOC, the Sixth Circuit noted that pursuant to its own personnel handbook, the EEOC runs the very same type of credit checks on its employees because “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” The court specifically and wryly noted that this was the very same reason that Kaplan adopted its policy. 



Thursday, September 25, 2014

EEOC “Spam” Gets a Green Light


          Merriam-Webster Dictionary defines “spam” as an “unsolicited usually commercial e-mail sent to a large number of addresses” or “a canned meat product.”  Another definition may now be “an aggressive investigative tactic of the Equal Employment Opportunity Commission (“EEOC”) which has been given a green light by the courts.”

On September 24, 2014, a U.S. District Court Judge in Washington, DC announced he will dismiss a lawsuit over the Equal Employment Opportunity Commission (“EEOC”) sending a blast of more than 1300 e-mails to a company’s employees, requesting they supply information to the agency as part of an investigation into allegations of age discrimination.

In my October 2013 post, “You’ve Got (Mass) Mail . . . From the EEOC?”, I discussed the federal lawsuit filed by construction equipment maker Case New Holland (“CNH”) in which the company alleged the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action.

Prior to the e-mail blitz, the company had cooperated with the EEOC’s investigative requests by producing ten of thousands of page of documents and hundreds of thousands of electronic documents.  The company heard nothing more from the agency for more than a year and a half, until the incident that caused the company to sue the EEOC.

At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions regarding alleged discrimination. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”

The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the workday and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.

CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.

However, in his ruling announcing his plans to dismiss CNH’s lawsuit, U.S. District Judge Reggie B. Walton stated that the company lacked standing to bring the suit because it was not able to establish how it was injured by the EEOC’s investigatory tactic, other than vague allegations of business disruptions.  Judge Walton announced he would issue a written opinion dismissing the case within the next two months.  At this time, the company has not announced if it plans to appeal the ruling.

Although the EEOC had never before utilized e-mail at this scale to try and identify alleged victims of discrimination, it had argued to the court that the tactic was clearly within the agency’s investigatory authority.

With the U.S. District Court giving the green light to the EEOC’s investigatory “spam”, at least for the time being, it appears highly likely that employers will be seeing much more of this tactic.  From the EEOC’s perspective, it is cheaper and quicker then actually sending investigators to a workplace, and has the added benefit of being able to target thousands of potential plaintiffs/class members with the click of a mouse.  Also, as noted in CNH's lawsuit, it has the effect of allowing the EEOC to cut the employer out of the investigative process.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Wednesday, September 24, 2014

EEOC Targets Mandatory Arbitration Agreements in Lawsuit Against Restaurant Franchisee

 
 
          A Florida company that owns franchise restaurants, such as Applebee’s and Panera Bread, has been sued by the Equal Employment Opportunity Commission (“EEOC”) for making its employees sign mandatory arbitration agreements.  The lawsuit, filed September 18, 2014 in the U.S. District Court for the Southern District of Florida, is the latest instance of the EEOC targeting employer practices which the agency  views as limiting employees’ right to file charges of discrimination or bring lawsuits under Title VII and other employment discrimination statutes.
            According to the agency’s allegations in EEOC v. Doherty Enterprises, Inc. (Civil Action No. 9:14-cv-81184-KAM), the company “requires each prospective employee to sign a mandatory arbitration agreement as  a condition of employment.  The agreement  mandates that all employment-related claims -- which would otherwise allow  resort to the EEOC -- shall be submitted to and deter­mined exclusively by  binding arbitration.”  The EEOC alleges the arbitration agreements interfere with employees' rights to file discrimination charges and “violates Section 707 of Title VII of the Civil  Rights Act of 1964, which prohibits employer conduct that constitutes a pattern  or practice of resistance to the rights protected by Title VII.
            The lawsuit is not surprising since the EEOC made it clear in its 2013 – 2016 Strategic Enforcement Plan that “[t]he EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.”  However, while these type of “test” cases by the agency result in substantial legal costs for employers, the EEOC does not seem to have been getting much bang for its buck when it actually gets in front of a federal judge.
            As noted in my September 21, 2014 posting, “EEOC Experiences “Separation Anxiety”in Lawsuit Against CVS”, last week the EEOC suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements for departing employees.  In that lawsuit, the EEOC had taken the same approach as it has in this latest case, alleging the drug store chain’s use of very standardized separation agreements demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 
            In comments about the agency’s lawsuit against Doherty Enterprises, EEOC Regional Counsel Robert E. Weisberg left little doubt that more lawsuits over arbitration agreements can be expected:
"Employee communication with the  EEOC is integral to the agency's mission of eradicating employment discrimination.  When an employer forces all complaints about  employment discrimination into confidential arbitration, it shields itself from  federal oversight of its employment practices.   This practice violates the law, and the EEOC will take action to deter further use of these types of overly broad arbitration agreements."
           
        As was the case of separation agreements in the CVS lawsuit, mediation agreements are commonly used by employers nationwide, and the EEOC’s litigation focus is troubling to the business community.  For employers who utilize arbitration agreements, it would be advisable to have them reviewed by legal counsel.
 Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com



Sunday, September 21, 2014

EEOC Experiences “Separation Anxiety” in Lawsuit Against CVS



          The details are still yet to be known, but word out of Chicago is that the EEOC has suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements.  Employers commonly use separation or severance agreements when the employment relationship ends. In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.
As reported in my August 8, 2014 post “Mad Men: The EEOC Advertises its Aggressive Agenda”, earlier this year, the EEOC filed a lawsuit against CVS, claiming the drug store chain’s use of its standard separation agreement demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 
The EEOC’s lawsuit was troubling for many in the business community, because employers nationwide commonly use the language being attacked in the CVS agreements. In the event the EEOC were to prevail, it could have result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.  
On September 18, 2014, U.S. District Court Judge John Darrah verbally granted CVS’s motion to dismiss based on the EEOC’s failure to state a claim, and an opinion is expected shortly that will give the Court’s basis for dismissing the EEOC’s lawsuit.  CVS has announced it is pleased with the decision and the EEOC is withholding comment until it sees the Judge’s written opinion.
It is not surprising that the EEOC filed the lawsuit.  In its Strategic Enforcement Plan for 2013-2016, the EEOC had announced its intent to target employer policies it claimed discouraged or prohibited individuals from exercising their legal rights, including overly broad waivers or settlement provisions that prohibited filing EEOC charges or providing information in EEOC or other legal proceedings.
In its rush to file a “test” case, the EEOC might have made the error of simply picking the wrong defendant to go after, or not bothering to actually read the agreements in question.  When it filed its motion to dismiss, CVS noted that its separation agreements expressly allowed for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. Specifically, CVS’s agreements expressly note that none of the provisions are:
“[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.

       The decision in the CVS case may not bode well for a similar lawsuit filed by the EEOC in the United States District Court of Colorado.  Some legal commentators have suggested that the EEOC may be trying to use this type litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Thursday, August 21, 2014

EEOC Successfully “Messes with Texas” Over Criminal Background Checks


It appears you can “mess with Texas” if you’re the EEOC.   As you’ll recall from the March 2, 2014 posting Don’t Mess with Texas Pt. 2, the Equal Employment Opportunity Commission had filed a motion to dismiss the State of Texas’s lawsuit alleging that the federal agency has overstepped its statutory authority by imposing limits on employers’ use of criminal background checks in making employment decisions.  These limits had been imposed under the EEOC’s updated 2012 enforcement guidelines.  In the lawsuit, the State sought injunctive relief to block the EEOC’s enforcement of the guidelines.
On Wednesday, August 20, 2014, a United States District Court Judge dismissed the State’s lawsuit on the grounds argued by the EEOC.  The Court held that Texas lacked standing to challenge the guidelines because there was no current risk of EEOC action against the state and any action by the Court would be premature.  The Court noted:

Importantly, Texas does not allege that any enforcement action has been taken against it by the Department of Justice … in relation to the guidance” [and]  b]ased upon this, the court cannot find a ‘substantial likelihood’ that Texas will face future Title VII enforcement proceedings from the Department of Justice arising from the guidance.

It is important to note that the dismissal of the State’s lawsuit was on a procedural basis and was not a ruling on the merits of the case.  It is not clear at this point whether the State of Texas will seek to appeal the ruling to the United States Court of Appeals for the Fifth Circuit.
In the original lawsuit filed by Texas, it alleged that the EEOC “purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment” and that the State of Texas and “its constituent agencies have the right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”
The basis of the EEOC enforcement guidelines is the agency’s position that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, and has a disparate impact in violation of Title VII of the Civil Rights Act. While not completely banning the use of background checks, the EEOC guidelines place a burden on employers to prove that such reliance is based on business necessity.
This victory for the EEOC comes after a string of litigation losses for the agency in cases they have filed against employers for alleged discriminatory use of background checks.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com



Monday, August 18, 2014

EEOC Sues Employer over Alleged “Onionhead” Religious Practices in the Workplace

 
 

I have to confess, I had never heard of “Onionhead” before reading a recent article in the Wall Street Journal entitled “EEOC’s New Religion.”  The article concerned the Equal Employment Opportunity Commission filing a lawsuit against United Health Programs of America, Inc., a Syosset, New York.-based health network, for allegedly coercing employees to participate in religious practices and terminating those employees who objected or did not participate fully.  As described by the EEOC in its lawsuit:

These activities included group prayers, candle burning, and discussions of spiritual texts. The religious practices are part of a belief system that the defendants' family member created, called "Onionhead."  Employees were told wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace.

 
The EEOC filed suit in U.S. District Court for the Eastern District of New York (Civil Action No. 14-cv-3673) after conciliation efforts failed.  The company claims that “Onionhead” is not a religion but is instead a workplace wellness program.  As described in the Wall Street Journal article:

The problem is that Onionhead, as it turns out, isn't a religion at all, but rather "a cartoon character used to peel layers for problem solving and conflict resolution skills," and is intended "to empower employees, improve communication and foster teamwork," according to a letter sent by the defendants' attorney, David J. Sutton, to Judge Kiyo A. Matsumoto last week. The employees voluntarily agreed to participate in Onionhead and never asked to opt out of the program, as other workers had.


The Wall Street Journal excoriates the EEOC for bringing such a frivolous lawsuit and in a statement, the company said “[t]he EEOC lawsuit is completely devoid of merit and we expect that it will be summarily dismissed.”  After looking at the case, I’m not so sure.
As related in my last posting, “Mad Men: The EEOC Advertisesits Aggressive Agenda”, in recent years, the EEOC certainly has been guilty of overreach in its implementation of the agency's Strategic Enforcement Plan for 2013 – 2016.  At first glance, the agency suing an employer over a cartoon character named “Onionhead” seems ridiculous and par for the course for the EEOC.
 
However, in looking over the allegations in the Complaint and other reports, if “Onionhead” is not a religion and merely a workplace wellness program, it certainly bears at least some of the trappings of a religious practice and at best is very close to the line.  Religion lawsuits under Title VII of the Civil Rights Act of 1964 usually involve an employer’s failure to reasonably accommodate an employee’s religious practice.  However, as alleged in the EEOC’s lawsuit, forcing an employee to take part in workplace religious practices, and taking an adverse employment action when they object also would be a Title VII violation. 
As mentioned above, I have very little information on “Onionhead” or its practitioners, and the EEOC’s lawsuit could very well be a loser for the agency if the court finds the employer has done nothing wrong.  In the EEOC’s case, it is alleged that a family member of the company’s owners conceived the “Onionhead” program, and that might explain best why the company implemented it. 
Having said all that, if a client approached me about implementing such a program in the workplace, I would consider it “just asking for trouble” and would strongly advise against it.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com



Friday, August 8, 2014

Mad Men: The EEOC Advertises its Aggressive Agenda

 
 
 
I.  Introduction
"The government has prohibited us from doing things like that, Peggy, they feel that it is not in the public interest."
~  Don Draper
            The television series “Mad Men” is set in an early 1960’s advertising agency, where employment discrimination and sexual harassment are common workplace occurrences.  One episode features a male employee openly chasing and groping a female secretary during an office party, egged on by the cheers and laughter of senior management.  Other episodes deal with employment decisions made on the basis of race, sex and religion.  Sexist jokes and comments in the office contribute to a generally hostile work environment.  
Don Draper and the rest of the partners at Sterling Cooper Draper Pryce Advertising Agency didn’t have to worry about being sued, because at the time, none of this was illegal.  However, that was all about to dramatically change, with the passage of the Civil Rights Act of 1964, and the subsequent establishment one year later of the Equal Employment Opportunity Commission (“EEOC”).
            However, as the EEOC prepares to celebrate its 50th anniversary next year, the federal agency has increasingly come under fire for what critics consider its misplaced priorities, overly aggressive enforcement agenda and a radical departure from its traditional core mission.  In this regard, critics claim the EEOC is exceeding the authority granted it by Congress and the laws it is charged with enforcing.  In an ironic reversal of roles, the EEOC is now finding itself the target of lawsuits.
The purpose of this article is to make employers and human resource professionals aware of the EEOC’s latest implementation of its Strategic Enforcement Plan and how it will impact your workplace.
II.  The EEOC’s Agenda in 1965
On July 2, 1964, President Lyndon Jonson signed into law the Civil Rights Act of 1964. Title VII of the Act prohibited discrimination by covered employers on the basis of race, color, religion, sex or national origin.  One year later, on July 2, 1965, the EEOC was established as the federal agency in charge of enforcing Title VII.  The EEOC’s first case came on November 4, 1965, when Thomas L. Jenkins, an African-American employee of United Gas Corporation in Texas, filed the first EEOC Charge of Discrimination, alleging systemic racial discrimination in his employer’s promotion practices.
Over the years, the EEOC would be further charged with the enforcement of other federal employment laws, including the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act, the Americans with Disabilities Act of 1990 and more recently, the Genetic Information Nondiscrimination Act of 2008
            III.  The EEOC’s Agenda in 2014
Generally speaking, the EEOC has made no secret of its general agenda over the next two years.  However, the devil is in the details.  It is the specific and aggressive implementation of the goals outlined in the EEOC’s Strategic Enforcement Plan for 2013 – 2016 that has caused serious concern among employers.
Released in January 2013, the Strategic Enforcement Plan establishes priorities for the EEOC in investigation, enforcement and litigation, with an emphasis on attacking “systemic discrimination.”  The Commission stated that the guiding principle for the Strategic Enforcement Plan is the agency's belief that "targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace."  The Commission’s stated nationwide priorities are as follows:
1.         Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
2.         Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
3.         Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
4.         Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
5.         Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.
6.         Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
A.        Increased EEOC Litigation Against Employer Use of Criminal Background/Credit Checks
Within the last year, the EEOC has filed lawsuits against national retailer Dollar General, and car maker BMW Manufacturing Co., LLC, alleging criminal background check policies that systematically discriminated against African-American job applicants or existing employees.  The EEOC continues to bring similar lawsuits against other employers nationwide.
Employers have long used criminal background checks as a hedge against employee theft, and in more recent years as a response to the increase in workplace violence.  In some instances, a failure to do a criminal background check on an employee could expose an employer to tort liability.  It’s important to note that currently, no federal law prohibits the consideration of criminal convictions in making employment decisions
The EEOC takes the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII, reflects the “systemic discrimination” targeted in the Strategic Enforcement Plan, and it recently has revised its enforcement guidelines to reflect that position. 
The stated rationale for EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction.  This is referred to as disparate impact discrimination.  The EEOC’s revised guidelines makes clear that the use of criminal histories also could support a claim of disparate treatment discrimination, including when decisions are made based on stereotypes about classes of individuals.  The EEOC takes the same position on the use of credit histories of job applicants.
Under the EEOC’s guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity.  In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought.  The EEOC’s guidelines place the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.
To the extent there is good news, the EEOC has not been doing well in these lawsuits and has found itself the target of harsh criticism by federal courts.  In the Maryland case of EEOC v. Freeman[1], the district court granted summary judgment in favor of the defendant, dismissing the EEOC’s claim that the company’s background check policies violated Title VII.  In so doing, the Judge in the case recognized Freeman’s policy of conducting criminal history or credit record background checks on potential employees as “a rational and legitimate component of a reasonable hiring process.”  The District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it,” disregarding the EEOC’s expert’s report as “laughable” and “an egregious example of scientific dishonesty.”
            Earlier this year, the United States Court of Appeals for the Sixth Circuit also issued a stinging rebuke to the EEOC.[2]  In Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, the EEOC sued the educational services company for implementing credit checks after discovering that some employees had stolen student’s financial aid payments.  The credit check policy applied to job applicants seeking positions where they would have access to cash or financial information.  The EEOC claimed the policy disproportionally impacted  “more African-American applicants than white applicants.”  In its affirming the district court’s grant of summary judgment in favor of the company, the Sixth Circuit blasted the EEOC’s theory of liability, and its reliance on the very same expert witness discredited in the EEOC v. Freeman case:
The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by person with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.
In ruling against the EEOC, the Sixth Circuit noted that pursuant to its own personnel handbook, the EEOC runs the very same type of credit checks on its employees because “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.”  The court specifically and wryly noted that this was the very same reason that Kaplan adopted its policy.
            The EEOC’s attack on the use of criminal background checks has sparked calls for Congressional action to rein in the EEOC.  It’s important to note that currently, no federal law prohibits the consideration of criminal convictions in making employment decisions, and the EEOC’s guidelines concede that point.  It’s also worth noting that the EEOC has no actual authority to issue binding guidelines because Congress intentionally withheld rulemaking authority from the EEOC when it passed the Civil Rights Act of 1964.
            In a June 10, 2014 hearing before the House Subcommittee on Workforce Protections, a spokesperson for the U.S. Chamber of Commerce testified that the EEOC’s efforts to regulate background checks puts employers “between a rock and a hard place” as far as complying with the EEOC’s enforcement guidelines, and that “[t]he EEOC gives short shrift to common sense employer concerns — workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one’s workforce.”  The Subcommittee also heard from a consumer activist who testified as to the rape and murder of her sister by a twice convicted sex offender who had been hired by a subcontractor doing work at the sister’s home.  In that instance, neither the contractor nor the subcontractor had conducted a criminal background check of the employee. 
The president of the National Small Business Association testified before the Subcommittee as to specific concerns about the EEOC’s guidelines:
·         EEOC’s requirement of individual assessment of job applicants difficult for small employers without human resource departments or access to specialized legal advice.
·         EEOC guidelines doesn’t offer “safe harbor” from Title VII liability even if state law requires a criminal background check.
·         Compliance with EEOC guidelines will not shield employers from tort liability for negligent hire if an applicant with a criminal record subsequently injures customers or co-workers.
·         Potential job killer because employers may choose not to hire rather than deal with EEOC’s complicated guidelines.
            The State of Texas has taken it a step further by filing a lawsuit against the EEOC, alleging that the federal agency has overstepped its statutory authority by imposing limits on employers’ use of criminal background checks in making employment decisions.[3]  The lawsuit alleges that the EEOC “purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment” and that the State of Texas and “its constituent agencies have the right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”
In its lawsuit, the State of Texas is asking the U.S. District Court to declare that the EEOC’s use of the guidelines are invalid and to enjoin the EEOC from challenging the State’s policy of not hiring convicted felons for certain state jobs.  Attorney Generals of other states also have criticized the EEOC’s guidelines, but to date, have taken no legal action.
While employers are prevailing in these cases brought by the EEOC, more often than not it can be a pyrrhic victory, where the employer is forced to bear the cost and time of defending itself against the resources of the federal agency.  So what are employers’ options to avoid litigation, but to still utilize background checks to maintain safety and security in the workplace?  Barring any imminent Congressional intervention, employers should utilize the following:
          Limit criminal background checks to seeking information only on crimes that you have identified as job related and consistent with business necessity.
          Eliminate blanket policies or practices that exclude people from employment based on any criminal record, except to the extent required for employment by an employer who is a federal contractor.
 
          Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
 
           Identify essential job requirements and the actual circumstances under which the jobs are performed.
           Determine the specific offenses that may demonstrate unfitness for performing such jobs.
           Identify the criminal offenses based on all available evidence.
           Determine the duration of exclusions for criminal conduct based on all available evidence.
           Record the justification for the policy and procedures.
 
           Note and keep a record of any consultations and research considered in crafting the policy and procedures.
 
          Include an individualized assessment.  Prior to making a decision to not hire based on a criminal history, interview the applicant about the circumstances to determine if there are mitigating factors or mistakes in the information. Allow the applicant to provide information on the following:
 
           The facts or circumstances surrounding the offense or conduct.
           The number of offenses for which the individual was convicted.
           Older age at the time of release from prison.
           Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.
           The length and consistency of employment history before and after the offense or conduct.
 
           Rehabilitation efforts, e.g., education/training.
           Employment or character references and any other information regarding fitness for the particular position.
          Document the reasons you considered certain convictions to be job related and consistent with business necessity for each position. This can be time-consuming and tedious (especially if your Company has a large number of different positions), but will strengthen your case if the EEOC decides to investigate your Company's policy.
          If federal laws prohibit hiring for particular positions based on a criminal history, do not have a policy that is more restrictive for those positions. For example, if federal law prohibits hiring an individual with a conviction in the last ten years, do not have a policy based on convictions in the last fifteen years.
          Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
          Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
 
B.        Attacks on Separation Agreements
            Separation or severance agreements are commonly used by employers when the employment relationship ends.  In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.  For the employer, it is an assurance that the business will not have to deal with the cost and time of any future litigation brought by the departing employee.
            In its Strategic Enforcement Plan, the EEOC focused on employers’ policies and practices it claims discourage or prohibit individuals from exercising their legal, including overly broad waivers or settlement provisions that prohibit filing EEOC charges or providing information in EEOC or other legal proceedings.  The EEOC is pursuing this agenda through the recent filing of two federal lawsuits. 
What is disturbing about the EEOC’s posture is that the severance agreement language it is attacking is commonly used by employers nationwide.   In the event the EEOC were to prevail, it could result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.
            On February 7, 2014, the EEOC filed its first suit against CVS Pharmacy, Inc. in the United States District Court for the Northern District of Illinois.[4]  In that suit, the EEOC alleges that CVS required employees to sign “an overly broad, misleading and unenforceable Separation Agreement” in order to receive a severance payment.  The lawsuit alleges a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC . . . .”  Specifically, the Complaint attacks the following provisions in CVS’s severance agreement:
·         A cooperation clause, requiring the employee to advise CVS, among other things, of any administrative investigation.
·         A non-disparagement clause, forbidding the employee from making statements that disparage the business or reputation of the company, and any officer, director or employee of the company.
·         A non-disclosure of confidential information clause, forbidding the disclosure of information concerning the company’s personnel, including the skills, abilities and duties of company employees, wage information, succession plans and affirmative action plans.
·         A general release of claims, including “any claim of unlawful discrimination of any kind.”
·         A covenant not to sue, in which the employee agrees not to initiate or file or cause to be initiated, any action, lawsuit, complaint or proceeding asserting any of the released claims against any of the released parties.”
The EEOC states that Section 707 of Title VII permits the agency to seek immediate relief without the same pre-suit administrative process that is required under Section 706 of Title VII, and does not require that the agency's suit arise from a discrimination charge.  CVS has moved to dismiss the case on the basis that the agreements expressly allow for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. 
What is puzzling and disturbing about the EEOC attacking the CVS agreements is that they specifically include language that would seem to clearly address the EEOC’s stated concern.  Specifically, CVS’s agreements expressly note that none of the provisions are:
 “[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.
            The EEOC filed the second lawsuit on April 30, 2014 against CollegeAmerica Denver, Inc. in the United States District Court of Colorado.[5]  According to the EEOC's lawsuit, Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyoming campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. 
The EEOC claims these provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.  The EEOC further claims that seven days after CollegeAmerica learned that Potts filed a charge against CollegeAmerica charging age discrimination and retaliation, the school sued Potts in Colorado state court for violating the severance agreement. The EEOC asserts that the state court lawsuit was filed in retaliation for Potts filing her charge.  The EEOC also claims that provisions which chill employees' rights to file charges and cooperate with the EEOC exist in CollegeAmerica's form separation and release agreements.
            The EEOC’s actions should be troubling for employers, because the language in the agreements at issue in these lawsuits is fairly standard, and likely is being used by many companies.  In light of the EEOC’s focus on the issue, employers should have any such form agreements reviewed by legal counsel.  Some legal commentators have suggested that the EEOC may be using litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation.
C.        EEOC Conciliation that’s Not Very Conciliatory
            “Conciliation” is just a fancy word for trying to reach a settlement before an EEOC Investigation and determination evolves into an actual lawsuit brought by the agency.  It's an option many employers want to at least explore before having to engage in the costly defense of a discrimination suit brought by the EEOC.  The requirement that the EEOC engage in good faith conciliation is not discretionary, and is expressly required under Title VII.
            When the EEOC makes a “reasonable cause” determination in the course of investigating a charge of discrimination, it triggers a mandatory responsibility under 42 U.S.C. § 2000e-5(f)(1) to engage in good faith conciliation efforts before filing a lawsuit. This responsibility is not supposed to be a mere formality that is satisfied by merely making a few telephone calls and then checking a box on an agency form.  Conciliation, after all, serves important public interests by, among other things, guaranteeing administrative due process to the accused, protecting the public from unwarranted litigation expense, and conserving scarce administrative and judicial resources. It is for these reasons that federal courts uniformly recognize that the responsibility of good faith conciliation is so important that honoring it is a condition precedent to the EEOC filing a lawsuit.  
To satisfy the statutory requirement of good faith conciliation, the EEOC must: (1) outline to the employer the reasonable cause for its belief that the law has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. If a court finds that the EEOC terminated conciliation prematurely or failed to conciliate in good faith, it may stay the action and compel the EEOC to conciliate or dismiss the lawsuit. 42 U.S.C. § 2000e-5(f)(1) (1976) (the court may “in its discretion stay further proceedings for not more than sixty days pending further efforts of the Commission to obtain voluntary compliance”).[6]
            Asserting bad faith conciliation can be an important defense available to employers in federal court.  So what are some hallmarks of “bad faith” conciliation? Denying an employer’s reasonable request for a face-to-face meeting is a common and compelling factor in finding that the EEOC has failed to conciliate in good faith.[7]
Another very common tactic found by the courts to be unreasonable and in bad faith is if the EEOC takes an “all-or-nothing” approach to settlement. As noted by the United States Court of Appeals for the Fifth Circuit, “[t]he EEOC's take-it-or-leave-it demand for more than $150,000 represents the coercive, ‘all-or-nothing approach’ previously condemned by this court…”[8]  Lastly, federal courts have held that the EEOC’s failure to explain its monetary demands is not reasonable and does not allow a defendant to properly respond.[9]
On June 30, 2014, the U.S. Supreme Court announced that it had agreed to hear a case to decide whether federal courts can review the conciliation efforts of the EEOC. The EEOC takes the position that conciliation efforts are not reviewable by federal courts. The agency  recently scored a significant victory court victory as to that position, and that is the case that will be reviewed by the Supreme Court.[10]  In EEOC v. Mach Mining, LLC, the United States Court of Appeals for the Seventh Circuit ruled that an alleged failure by the EEOC to conciliate is not an affirmative defense to the merits of a discrimination suit.  The Seventh Circuit further noted that “conciliation is an informal process entrusted solely to the EEOC’s expert judgment and that the process is to remain confidential” and “[a] court reviewing whether the agency negotiated in good faith would almost inevitably find itself engaged in a prohibited inquiry into the substantive reasonableness of particular offers – not to mention using confidential and inadmissible materials as evidence – unless its review were so cursory as to be meaningless.” 
Mach Mining has petitioned for review by the United States Supreme Court because the Seventh Circuit’s decision conflicts with the rulings in other circuits, and the EEOC also asked   the Supreme Court to review the ruling so as to definitively determine if the EEOC’s pre-litigation conciliation efforts are subject to federal court review.  The Supreme Court will hear the case in its 2014-15 term, which begins in October.
D.        “You’ve Got Mail!” and Other Bad Behavior
            With the EEOC’s  new focus on large-scale, high-impact and high-profile investigations and lawsuits, it has come under fire and paid the price for heavy-handed litigation tactics and a “sue first, ask questions later” attitude.  In a recent sexual harassment lawsuit brought by the agency against an Iowa trucking company, the EEOC was ordered to pay the nearly $4.7 Million dollars in attorneys’ fees and expenses incurred by the employer in defending the case.[11]  The  District Court for the Northern District of Iowa ordered the sanctions against the EEOC for bringing a pattern-or-practice claim and 153 individual claims that were “frivolous, unreasonable or groundless.”
In a recent reversal of roles, the EEOC’s aggressive tactics have resulted in the agency being sued by an aggrieved employer in a lawsuit filed in the U.S. District Court for the District of Columbia.[12]
The lawsuit alleges the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action. The suit claims the EEOC violated the law by sending a mass e-mail, utilizing the company’s business e-mail domains, to over 1300 management and non-management employees, requesting the employees complete a survey and supply evidence of discrimination against the employer.
For employers more familiar with the typical EEOC procedures associated with a Charge of Discrimination, the mass e-mailing and request for information, without any notice to the company, raises some serious red flags.
The facts of the case are as follows. In March 2011, the EEOC notified CNH America, LLC (“CNH”) that it was launching a nation-wide review of the company for alleged violations of the Age Discrimination in Employment Act.  The company employs approximately 10,000 people in the United States. The EEOC made a sweeping request for information and documents.
According to the lawsuit, in January 2012, the company produced to the EEOC 300 documents totaling 5,707 pages and over 600,000 electronic records from CNH databases, totaling 66,630 pages of documents. After complying with the agency’s request, the company received no communications of any sort from the EEOC until June 5, 2013, eighteen months later.
At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”
The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the work day and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.
CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.
The lawsuit seeks a permanent injunction prohibiting the EEOC from soliciting CNH employees by e-mail, and additional injunctive relief to prevent the EEOC from utilizing any of the information obtained through the mass e-mailing. The lawsuit claims:
"The EEOC has never, before June 5, 2013, sent out emails through business email servers, without any prior notice to the respondent employer, in an attempt to unearth plaintiffs against the employer"
            Whatever the outcome of the lawsuit, this extremely aggressive approach by the EEOC should concern employers because it seems to be a deliberate effort to cut employers and their legal counsel out of the investigatory process.  The EEOC has always had the investigatory right to interview non-management employees without an employer representative or attorney present. However, because a statement by a member of management could be considered a binding admission on the part of the company, an employer is entitled to have legal counsel present for such interviews. It’s very easy to envisage a manager being cowed by a very official and intimidating e-mail into providing information, unbeknownst to the employer.
E.        Expansion of Employers’ Obligations to Accommodate Pregnant Employees
            Since the start of 2014, the EEOC has filed a string of lawsuits pursuant to the Pregnancy Discrimination Act of 1978 (“PDA”), with more lawsuits likely to follow.  The PDA prohibits employment discrimination on the basis of pregnancy, childbirth or related medical conditions, and requires employers to treat pregnant employees the same as any other similarly situated non-pregnant employee. The increased litigation should not come as a surprise, since in its Strategic Enforcement Plan, the EEOC announced it would prioritize issues relating to pregnancy-related limitations and the need for accommodations.
On July 14, 2014, the agency issued new enforcement guidelines on pregnancy discrimination.  This is the first comprehensive guidance issued by the EEOC since 1983, and in addition to addressing employers’ obligations under the PDA, it also discusses the application of the Americans with Disabilities Act (“ADA”) to pregnant employees and under what circumstances an employer must provide the reasonable accommodation required under the ADA.  Unlike the ADA,  the PDA itself does not impose a reasonable accommodation requirement on employers
Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, back pain, preeclampsia and post-partum depression.
An employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of a pregnancy-related disability, unless the accommodation would result in undue hardship, meaning significant difficulty or expense.
According to the EEOC guidelines, examples of reasonable accommodations that may be necessary for a pregnancy-related disability include:
·         Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
·         Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations;
·         Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
·         Allowing a pregnant worker placed on bed rest to telework where feasible;
·         Granting leave in addition to what an employer would normally provide under a sick leave policy;
·         Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
·         Temporarily reassigning an employee to a light duty position.
However, there is a sense among some legal commentators that the EEOC unwisely jumped the gun with the release of the guidelines, because less than two weeks earlier, the United States Supreme had announced it was going to review a case involving the very same issues.  There is the possibility that the guidelines the EEOC is offering to employers now, could end up in conflict with the decision ultimately handed down by the Court.
On July 1, 2014, the Court agreed to decide whether the PDA requires an employer who provides workplace accommodations to non-pregnant employees with physical limitations to also offer the same accommodations to pregnant employees who were similar in their ability or inability to work.  The case being appealed is Young v. United Parcel Service,[13] in which a pregnant driver for the company, whose job involved loading and delivering packages, claimed her rights under the PDA were violated when she was denied alternative work assignments during her pregnancy.  Under a collective bargaining agreement, the company provided such alternative work assignments to employees who were unable to perform their regular duties because of an on-the-job injury, or because of a condition or impairment that qualified as a disability under the ADA.  The district court granted summary judgment in favor of the company on the basis that Young could not show evidence of discrimination or that the policy was a pretext for discrimination.  The United States Court of Appeals for the Fourth Circuit affirmed the decision.  The Supreme Court will hear the case during its 2014-2015 term.
            In light of the release of the EEOC guidelines and in anticipation of the ruling by the Supreme Court, it would be a prudent practice for employers to carefully review and consider any reasonable accommodation requests related to pregnancy or pregnancy related conditions.
F.         EEOC Issues Guidelines for Accommodating Religious Dress and Grooming in the Workplace
            On March 6, 2014, the EEOC issued two new technical assistance publications addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII of the Civil Rights Act of 1964.  The question-and-answer guide, entitled "Religious Garb and Grooming in the Workplace: Rights and Responsibilities," and an accompanying fact sheet, is intended to offer practical advice for employers and employees, and presents numerous case examples based on the EEOC's litigation.
Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or an Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
Employers covered by Title VII must accommodate exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons. Topics covered in the publications include:
·         Prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb;
·         Accommodating religious grooming or garb practices while ensuring employer workplace needs;
·         Avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment; and
·         Ensuring there is no retaliation against employees who request religious accommodation.
What are the major points that employers should note from the EEOC’s most recent take on religious discrimination?  They are as follows:
·         An employer cannot justify a refusal to accommodate based on its belief that the employee’s religious beliefs are not “sincere.”
·         Employer must show actual “undue hardship” and not speculative hardship.
·         Customer complaints or preference is not a defense for failure to accommodate.
There has been a steady rise over the past few years in the number of religious discrimination charges filed with the EEOC, and the agency has brought more religious discrimination lawsuits.
IV.  Conclusion
            By advertising its agenda through its Strategic Enforcement Plan, the EEOC has let employers know what they can expect over the next two years.  With that knowledge, employers can update their policies, procedures and training to avoid liability.


[1] EEOC v. Freeman, Civil Action No. 09-cv-2573 (D. Md. Aug. 9, 2013).
[2] Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, 2014 WL 1378197 (6th
Cir. 2014).
[3] Texas v. EEOC, Civil Action No. 5:2013-cv-00255 (N. D. Texas Nov. 4, 2013).
[4] EEOC v. CVS Pharmacy, Inc., Civil Action No. 1:14-cv-00863 (N.D. Ill. Feb. 7, 2014).
[5] EEOC v. CollegeAmerica Denver, Inc., n/k/a Center For Excellence in Higher Education, Inc., d/b/a
CollegeAmerica, Civil Action No. 14-cv-01232 (D. Colo. April 30, 2014).
[6] See also EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (“Courts remain free to impose a stay for the
EEOC to continue prematurely terminated negotiations, and where the EEOC fails to act in good faith, dismissal
remains an appropriate sanction.”). “
 
[7] See, e.g., EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009); EEOC v. Pacific Maritime Assoc., 188
F.R.D. 379, 380-381 (D. Or. 1999).
[8] See, e.g., Agro, 555 F.3d at 468); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (“As
we have said before, such an ‘all or nothing’ approach on the part of a government agency, one of whose most
essential functions is to attempt conciliation with the private party, will not do”).
[9] See, e.g., EEOC v. Golden Lender Fin. Group, No. 99 CIV. 8591 (JGK), 2000 WL 381426, at *5 (S.D. N.Y. Apr.
13, 2000) (holding that the EEOC did not meet its statutory obligation to conciliate when it ended conciliation after
the charged party sought additional information regarding the requested damages of certain alleged victims); EEOC
v. Pac. Mar. Ass’n, 188 F.R.D. 379, 381 (D. Or. 1999) (ordering a stay for further conciliation where “meaningful
conciliation efforts were thwarted” during conciliation after “[c]ounsel for [defendant] reasonably requested that the
EEOC investigator explain his calculation of the monetary settlement offered”).
[10] EEOC v. Mach Mining, LLC, 718 F.3d 171, 121 FEP Cases 327 (7th Cir. 2013).
[11] EEOC v. CRST Van Expedited, Inc., Civil Action No 07-cv-95.
[12] Case New Holland, Inc. and CNH America LLC v. EEOC et al., Civil Action No. 1:13-cv-1176 (D.C. Aug. 1,
2013).
[13] Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013).