Saturday, October 25, 2014

OFCCP issues two new “FAQs”

The OFCCP recently added two new “FAQs” to its website to help explain contractors’ obligations under new Section 503 and VEVRAA regulations.  The first addresses the information contractors must maintain related to efforts to invite voluntary self-identification of disability.The FAQ informs contractors that if the contractor uses an electronic version of the required disability self-identification form to solicit disability status, the contractor need only retain the data, not the form or copy of the form, provided that its system does not store completed forms.  However, if the contractor only maintains this form of data, it must also be able to demonstrate how it delivered or displayed the invitation to self-identify so that the OFCCP can verify that the contractor used the OMB-approved form.  If the contractor used paper invitations to invite self-identification of disability, it must retain either hard copies of the forms or electronic copies of the forms (such as scanned pdf files).Contractors utilizing paper forms must also retain any data compilation prepared that records the information from the paper self-identification forms.
The second new FAQ informs contractors that where they have openings for a remote position, that opening should be listed with the state workforce agency “where the work unit, division, department or supervisor to which the employee will report or be assigned is located.”
The new FAQs are the product of the OFCCP’s ongoing efforts to answer questions surrounding Section 503 and VEVRAA regulatory updates put in place last year.

EEOC files second wellness program lawsuit against an employer

The U.S. Equal Employment Opportunity Commission (“EEOC”) sued an employer claiming it violated the Americans with Disabilities Act (“ADA”) when the employer cancelled coverage and transferred 100% of the premium to the employee for failing to complete biometric screening and a health risk assessment. Employees who completed the screening were charged only 25% of the premium. This lawsuit follows the EEOC’s ADA lawsuit earlier this year against a different employer that terminated an employee for failing to participate in the employer’s wellness program. The EEOC has taken the position that wellness programs must be voluntary and cannot compel participation by cancelling coverage or imposing onerous penalties.
The EEOC’s Press Release can be found here.

EEOC sues over transgender discrimination

Why it matters: In its first cases alleging bias against transgender employees, the Equal Employment Opportunity Commission has filed suit against a Florida eye clinic and a Michigan funeral home. In both actions an employee began the process of transitioning from male to female and both employers reacted by terminating the employees at issue, according to the EEOC. Although the Florida employer claimed the position was being eliminated, it hired a new employee soon after, while the agency said the funeral home director told the employee what she was proposing to do was “unacceptable.” The EEOC alleged that the employers engaged in discriminatory sex-based considerations because the employees were transgender, transitioning in gender, and/or because the employees did not conform to the employer’s sex- or gender-based stereotypes, preferences, or expectations. The two lawsuits reiterate the EEOC’s intent to focus on “coverage of lesbian, gay, bisexual and transgender individuals” as part of its Strategic Enforcement Plan. Employers should be prepared to avoid allegations of discrimination if an employee identifies as transgender or, like the plaintiffs in the EEOC suits, states an intent to transition.

Please read more here

Laying a foundation for diversity & inclusion: a case study

In a previous interview, Michelle P. Wimes, Esq., the Director of Professional Development & Inclusion at Ogletree Deakins, identified challenges that diversity initiatives face and how to overcome them. Here, she describes how she laid a foundation for a successful diversity and inclusion program.
Jathan Janove: You joined Ogletree Deakins in September 2011. What was first on your agenda?
Michelle Wimes: I focused on creating a shared vision with the firm’s leaders. My goal was to create a coordinated, strategic approach to diversity as a business imperative, including integrating that approach in the firm’s professional development programs and overall firm strategy.
JJ: How did you get started?
MW: Before pursuing any particular program or plan, I felt we needed to create a foundation. We conducted a needs assessment and had a phenomenal response rate—86 percent! The assessment provided valuable insight into the firm’s culture, perceived needs, and priorities. And the information gained enabled us to go to the firm’s Board of Directors and make a credible case for what needed to done.
JJ: What else did you do to establish a foundation?
MW: We overhauled the firm’s diversity committee. When I arrived, it consisted of nearly 100 attorneys and lacked structure or focus. We created the Diversity and Inclusion Steering Committee, which replaced the diversity committee, and limited the number of members to 14 shareholders who were well-respected and committed to diversity. The committee included attorneys from both majority and minority groups.
Working with the steering committee, we identified metrics and goals and set up periodic assessments. We developed attrition reports, gathered exit interview data, and compared minority employment in each office and geographic area to the relevant demographic data in each office.
We developed a list of activities for committee members including attending job fairs, writing articles or blog posts, organizing or attending diversity events, and mentoring diverse attorneys. Committee members committed to doing at least three of these items. We scheduled telephonic meetings every 60 days with 3 in-person meetings per year.

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Obama: No rush to end affirmative action

In a new interview, President Obama said courts should allow affirmative action for the foreseeable future, but he believes he can do more for the cause of racial justice with policies to help black students obtain high school diplomas.
The president said former Supreme Court Justice Sandra Day O’Connor’s guidance in 2003 that affirmative action should expire within 25 years “was sort of a ballpark figure in her mind” and not a binding rule. The interview with The New Yorker magazine hit newsstands Monday.
Mr. Obama told author Jeffrey Toobin that racial preferences should be allowed to continue “if the University of Michigan or California decides that there is a value in making sure that folks with different experiences in a classroom will enhance the educational experience of the students, and they do it in a careful way.”
The president added, “most of the time the law’s principal job should be as a shield against discrimination, as opposed to a sword to advance a social agenda, because the law is a blunt instrument in these situations.”

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Obama on Affirmative Action in Higher Ed

In an interview in The New Yorker, President Obama expressed support for affirmative action in higher education, and questioned how precisely a Supreme Court deadline for phasing out the consideration of race should be viewed. The article looks broadly at President Obama's influence on the federal court system, and touches on affirmative action toward the end of the piece. In a landmark Supreme Court decision upholding the right of public colleges to, under certain circumstances, consider race in admissions, Justice Sandra Day O'Connor suggested that they should no longer be needed in 25 years. Justice O'Connor, since retired from the court, wrote the decision in 2003. Asked about that deadline, Obama told the magazine that Justice O’Connor would “be the first one to acknowledge that 25 years was sort of a ballpark figure in her mind.”

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Postal Workers Take on Harvard President

Criticism of Harvard University is coming from an unusual quarter: postal workers.
The American Postal Workers Union is calling for President Drew Gilpin Faust to resign her seat on office supply store Staples’ board of directors if she won’t criticize the company.
The attack on Faust, who usually makes news only when she wants to, is an unlikely extension of the union’s fight with the United States Postal Service. But Faust is apparently the first sitting Harvard president to serve on a corporate board.
In particular, the union has rallied around the idea that the postal service is trying to outsource some of its jobs because of a deal it struck last year with Staples to offer mail service in the company’s stores.
Under the deal, which has since been scaled back amid union pressure, Staples employees – not unionized postal workers – would be handling the letters and packages.

Please read more here