Category Archives: Age Discrimination

Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

NEW LAW – Missouri Amends Its Human Rights Act

On June 30, 2017, Missouri Governor Eric Greitens signed Senate Bill 43 into law. This bill amends the Missouri Human Rights Act (MHRA) to more closely align this law with federal employment discrimination law standards and makes changes to rights and remedies for claims under Missouri’s discrimination law and claims for whistleblower retaliation.

These changes go into effect on August 28, 2017 and include the following:

  • Change in Standard of Proof to “Motivating Factor”: Plaintiffs must provide that the protected characteristic was the “motivating” factor for the adverse employment action.
  • Damage Caps: Compensatory and punitive damages are capped based on the size of the employer (ranging from $50,000 for employers with 100 or fewer employees to $500,000 for employers with more than 500 employees).
  • No Individual Liability: Managers, supervisors, and colleagues cannot be held personally liable for violations of these laws.
  • Required Summary Judgment: State Courts must use summary judgment to determine whether cases should proceed to trial based on the assembled evidence.
  • Business Judgment Defense: Employers are permitted to use a “business judgment defense” and the judge must provide a business judgment jury instruction for every MHRA case.
  • Limited Whistleblower’s Protection: Whistleblower claims can no longer be brought against the state and its political subdivisions and only certain employees qualify for whistleblower protections.

These changes only affect claims filed in Missouri state court after August 28, 2017.

Could your organization potentially be accused of Employment Discrimination?

Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.

Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:

  1. Take care when using an Employee Referral Program in your recruitment process.
    1. Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
      • If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
  2. Look at the numbers.
    1. The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
    2. Check your hiring ratio’s.
  • One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
  • More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.

Additional Information For Employers

Texas Roadhouse Learns a $12 Million Lesson about Age Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has settled with national restaurant chain, Texas Roadhouse, to resolve a nationwide age discrimination case. The EEOC had charged Texas Roadhouse with violating the Age Discrimination in Employment Act (ADEA) and in engaging in a pattern and practice of discriminating against job applicants who were over 40 years of age by systematically rejecting these “older applicants” for customer-facing jobs, including hosts, servers, server assistants and bartenders.

When commenting on the $12 million settlement, EEOC Deputy General Counsel James Lee confirmed that “The EEOC will vigorously protect the rights of job applicants to ensure that hiring decisions are based on abilities, not age.”

This settlement serves as a reminder to all employers that an applicant cannot be rejected because of his/her age. As explained by EEOC New York District Director Kevin Berry said, “Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.”

2016 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2016 fiscal year.  According to this report, the total number of EEOC charges received in 2015 increased from 89,385 received in 2015 to 91,503 received in 2016.

In addition, according to the report, in 2016, the EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation
42,018 45.9%
Race  32,309 35.3%
Disability 28,073 30.7%
Sex/Gender 26,934 29.4%
Age 20,857 22.8%
National Origin 9,840 10.8%
Religion 3,825 4.2%
Color 3,102 3.4%
Equal Pay Act 1,075 1.2%
Genetic Information Non-Discrimination Act 238 0.3%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 9,308 4,633 3,244 2,775 2,765 2,000
Florida 7,610 3,530 2,285 2,221 2,332 1,661
California 5,870 2,937 1,905 1,912 1,560 1,517
Georgia 5,273 2,577 2,165 1,462 1,684 1,028
Illinois 5,072 2,327 2,255 1,466 1,325 1,633
Pennsylvania 4,564 1,964 1,228 1,646 1,255 1,198
North Carolina 4,372 2,077 1,705 1,384 1,265 885
New York 3,740 1,604 1,084 1,061 1,202 865
Alabama 3,371 1,211 1,865 647 934 503
Virginia 2,945 1,242 1,069 921 881 583

The full state breakdown of claims is available here.

Questionable Termination Practice Proves Costly for One employer

In a recent federal case, a federal jury in New Jersey has rendered a verdict requiring Lockheed Martin Corp. to pay $51.5 million, including $50 million in punitive damages, in an age discrimination lawsuit filed by a former engineer.

In this lawsuit, the plaintiff claimed that Lockheed Martin has a discriminatory practice of laying off older employees while hiring younger workers for the same position. Case in point – the plaintiff was one of five employees terminated in a reduction in force at the facility where the plaintiff worked. All of the five people terminated from that facility were over 50 when they were laid off and the plaintiff claimed that at the time of his termination, Lockheed Martin continued to recruit and hire younger employees for positions for which the plaintiff was qualified.

While Lockheed Martin tried to argue that its employment decisions were made for legitimate, nondiscriminatory reasons, the federal jury did not agree. Instead the jury found that Lockheed Martin’s termination practice was discriminatory and violated both the federal Age Discrimination in Employment Act and the New Jersey Law Against Discrimination.

Take home for employers

This case serves as an important reminder to employers that when making a termination decision they need to ensure that the decision is not being made for an unlawful reason – or a reason that can be viewed as unlawful by a neutral party.

EEOC releases updated enforcement plan

The Equal Employment Opportunity Commission (EEOC) recently released its updated Strategic Enforcement Plan for fiscal years 2017-2021. This plan identifies and describes the areas that will be a priority focus for the EEOC’s enforcement efforts over the next 4 years.

In the updated plan, the EEOC has identified the following six national priority areas for enforcement:

(1) Eliminating Barriers in Recruitment and Hiring. Here, the EEOC will focus on class-based recruitment and hiring practices including that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities. These practices include exclusionary policies and practices, the channeling/steering of individuals into specific jobs due to their status in a particular group, job segregation, restrictive application processes (including online systems that are inaccessible to individuals with disabilities), and screening tools that disproportionately impact workers based on their protected status (e.g., pre-employment tests, background checks, date-of-birth inquiries, and medical questionnaires).
(2) Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination. Here, the EEOC will focus on job segregation, harassment, trafficking, pay, retaliation and other policies and practices against vulnerable workers (workers who are likely unaware of their rights under the equal employment laws, or reluctant or unable to exercise them).
(3) Addressing Selected Emerging and Developing Issues. Here the EEOC will monito trends and developments in the law, workplace practices, and labor force demographics relating to the following issues — qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).
(4) Ensuring Equal Pay Protections for All Workers. Here the EEOC will focus on compensation systems and practices that discriminate based on sex and any other protected basis.
(5) Preserving Access to the Legal System.

Here the EEOC will focus on policies and practices that limit substantive rights, discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or impede EEOC’s investigative or enforcement efforts. Specifically, EEOC will focus on: overly broad waivers, releases, and mandatory arbitration provisions, employers’ failure to maintain and retain applicant and employee data and records required by EEOC regulations, and significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.
(6) Preventing Systemic Harassment.

With harassment continuing to be one of the most frequent complaints raised in the workplace, the EEOC will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.

Take home for employers

With the new plan announced, it is recommended that employers review the plan and review their policies and practices to ensure compliance with federal and state anti-discrimination laws.