Wednesday, May 29, 2013

EEOC files first genetic discrimination class action against nursing and rehabilitation center


Littler Mendelson
  • USA    May 21 2013
    On May 16, 2013, the U.S. Equal Employment Opportunity Commission filed its first class action lawsuit under the Genetic Information Nondiscrimination Act (GINA) against a nursing and rehabilitation center. The EEOC filed this class action just 11 days after it filed—and then immediately settled—its very first lawsuit alleging genetic bias. The EEOC’s filing of these two lawsuits in such close succession signals to employers its commitment to pursuing genetic discrimination claims.
    Full Story:

    Goodwill Industries of Southern California settles sex discrimination case with US Department of Labor

    News Release

    OFCCP News Release: [04/25/2013]
    Contact Name: Deanne Amaden or Jose A. Carnevali
    Phone Number: (415) 625-2630 or x2631
    Email: or
    Release Number: 13-0706-SAN

    Agreement includes more than $130,000 in back wages for 200 male applicants and 18 job offers
    LOS ANGELES — The U.S. Department of Labor today announced that Goodwill Industries of Southern California has agreed to settle allegations of systemic discrimination stemming from the federal contractor's selection practices. Investigators with the department's Office of Federal Contract Compliance Programs determined that Goodwill's hiring process favored female applicants for entry-level positions as attendants at local donation centers, in part because of perceptions that women have better customer service skills. The investigation concluded that 200 qualified men were denied the opportunity to advance to the offer stage.
    "Sex discrimination in the workplace can take many forms, and we are committed to fighting all of them," said OFCCP Director Patricia A. Shiu. "That means getting away from outdated notions about what constitutes 'men's work' and what constitutes 'women's work.' Throughout the past century, both the Labor Department and Goodwill have shared a common purpose of serving the disadvantaged and making workers self-sufficient. This settlement builds on that proud tradition by giving every worker a fair shot at a good job."
    OFCCP's Los Angeles District Office conducted the investigation. Under the terms of the conciliation agreement, Goodwill will pay $130,970 in back wages to the affected individuals and as openings occur will make 18 job offers to qualified men who were not previously offered positions. Goodwill also has agreed to undertake extensive self-monitoring measures and training to ensure that all hiring practices fully comply with Executive Order 11246, the federal law that prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex or national origin. Covered government contractors must take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
    Goodwill Industries of Southern California operates dozens of retail stores and donation centers in parts of Los Angeles, Riverside and San Bernardino counties. Goodwill has more than $2.5 million in contracts with several branches of the U.S. military and federal government agencies in California, and participates in a contract with the U.S. General Services Administration to provide custodial, facilities, grounds maintenance and other services at federal sites as part of its employment training and assistance programs. Proceeds from sales at Goodwill retail stores help support its employment and training services.
    In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. These three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP's toll-free helpline at 800-397-6251 or visit

    Goodwill Industries and OFCCP settle reverse sex discrimination findings


    Proskauer Rose LLP
  • USA       May 22 2013
    The Department of Labor announced that Goodwill Industries, best known for their donation centers and retail stores, has agreed to settle allegations of systemic discrimination stemming from Goodwill’s selection practices. 
    Full Story:

    $3.5m in punitive damages vacated


    Sherman & Howard LLC
  • USA       May 21 2013
    An employer avoided $3.5M in punitive damages by proving it took sufficient steps to stop and prevent harassment. Otto May Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir. May 14, 2013). In this case, the plaintiff was subjected to dozens of threats and derogatory graffiti messages, from 2002 until 2005, based on his race, religion, and national origin. He complained to his employer about the co-worker harassment. He specifically asked the employer to install cameras near his work station; the employer did not.
    Full story:

    Disability Discrimination -

    U.S. Equal Employment Opportunity Commission
    To view the entire document go to:

    Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability.
    Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
    The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship").
    The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
    Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.

    Disability Discrimination & Work Situations

    The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

    Disability Discrimination & Harassment

    It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
    Harassment can include, for example, offensive remarks about a person's disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
    The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

    Disability Discrimination & Reasonable Accommodation

    The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
    A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
    Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
    While the federal anti-discrimination laws don't require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA. For more information, call: 1-866-487-9243.

    Disability Discrimination & Reasonable Accommodation & Undue Hardship

    An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the employer.
    Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

    Definition Of Disability

    Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
    A person can show that he or she has a disability in one of three ways:
    • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
    • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
    • A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

    Disability & Medical Exams During Employment Application & Interview Stage

    The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
    For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

    Disability & Medical Exams After A Job Offer For Employment

    After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

    Disability & Medical Exams For Persons Who Have Started Working As Employees

    Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
    The law also requires that employers keep all medical records and information confidential and in separate medical files.

    Available Resources

    In addition to a variety of formal guidance documents, EEOC has developed a wide range of fact sheets, question & answer documents, and other publications to help employees and employers understand the complex issues surrounding disability discrimination.

    EEOC issues updated guidance for specific disabilities

    Ogletree Deakins
  • USA       May 23 2013
    The Equal Employment Opportunity Commission (EEOC) recently issued information on protection against disability discrimination in the form of four revised documents. The federal agency issued these guides, which are included in the EEOC’s “Disability Discrimination, The Question and Answer Series,” consistent with the EEOC’s Strategic Plan, which aims to provide timely guidance on antidiscrimination laws. 
    Full Story:

    New Washington Law Protects employees' social media accounts

    Lane Powell PC
  • USA    May 23 2013
    On May 21, Governor Jay Inslee signed a new Washington state law that makes it unlawful for employers to require an employee or applicant to disclose social networking website usernames or passwords, or to force an employee or applicant to add any person to the employee’s list of social networking contacts. This law becomes effective July 28.
    Full story:

    House Subcommittee Questions Recent EEOC Activities

    Littler Mendelson
  • USA       May 23 2013
    During a House Subcommittee hearing, Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien responded to questions about recent agency enforcement and regulatory initiatives. Among other topics, Berrien touched on an employer’s use of credit, criminal, and unemployment histories in making employment decisions, as well as the agency’s renewed focus on systemic discrimination cases.
    Full Story:

    Reflections of Another Affirmative Action Baby

    ACLU Blog of Rights

    By Cecillia Wang, ACLU Immigrants' Rights Project at 11:20am

    As the Supreme Court takes up affirmative action once again, the word "diversity" has found its way into many legal briefs. For me, it is not an abstract concept. If today I am a supportive colleague, a successful civil rights lawyer, a good citizen in the broadest and best sense, it is thanks to affirmative action.

    Full Story:

    "Without continuing affirmative action in higher education, I worry that Kabir will not have the same enriching college experience that I enjoyed."

    ACLU Blog of Rights
    By Brian Stull, ACLU Capital Punishment Project at 10:20am

    At age four, my family moved for "better" schools from Detroit to a suburb just north of 18 Mile Road. Remember the movie 8 Mile, the story of Eminem's emergence from Detroit's suburban borderline? 18 mile road is 10 miles north, but 100 times whiter. With very few nonwhites, school was not a model of diversity or mutual respect. Here was Jeanette, the only Black girl, who squirmed in her seat during the lesson on slavery, not due to the topic but (I believe) because she felt like a spectacle. There was Frank, from a Vietnamese background, whom cruel (and ignorant) children occasionally called "Chink." I remember Rupert, valedictorian, a terrific athlete, and a wit, but known often as the "Indian kid" (if not by a Middle Eastern epithet). We white children lived blind to our own privilege.

    Full Story:

    Racial Diversity Efforts Ebb for Elite Careers, Analysis Finds

    The New York Times
    By and
    Published: May 27, 2013   

    HOUSTON — As a partner and chief diversity officer at Thompson & Knight, Pauline Higgins was not afraid to press the issue of hiring minorities at the 126-year-old Texas law firm. But when she left in 2008, she was replaced by an associate with less influence.

    Full Story:

    Don't Celebrate Just Yet...

    The Huffington Post
    Rev. Al Sharpton
    Posted: 05/28/2013 4:20 pm

    Sometimes, we need to take a moment and pause. As a nation, where are we in 2013, and what exactly do we want our future to look like? When President Obama was elected in 2008, it was a notable, historic moment for all of us. Re-electing him in 2012 only strengthened our collective commitment towards progressing forward. But while we praise our achievements in moving past many of the previously established blockades in society, we cannot and should not engage in premature celebration before we have completed the journey. At this very moment, the lack of diversity in places like corporate America, in the medical and legal fields, in boardrooms and at entry-level positions in a multitude of industries are severely lacking, if not regressing backwards. Simultaneously, we see attempts at removing equalizers such as Affirmative Action, and attacks against the Voting Rights Act itself. If this tells us anything, it's that our work is just beginning.

    Full Story:

    Waiting for Fisher: Affirmative action’s future and upcoming court decisions

    Constitution Daily
    May 28, 2013
    It’s been months since the Supreme Court heard arguments in a potentially landmark affirmative action case. So what’s holding up a decision by the justices?
    350px-Supreme_Court_US_2010The case of Fisher v. University of Texas is one of the most prominent and controversial issues in front of eight (and not nine) justices this term. (Justice Elena Kagan is not involved in the Fisher decision, due to her prior position as solicitor general.)
    The case was argued last October and is the last one from that session that hasn’t seen a public ruling by the court.

    Full Story:

    Supreme Court affirmative action decision: Don't be fooled by flawed theories

    Christian Science Monitor

    One of the most specious arguments the Supreme Court has heard in the Fisher v. University of Texas affirmative action case deals with 'mismatch theory.' It says affirmative action harms minorities because it puts them in universities where they are outmatched by their peers.
    By Angela Onwuachi-WilligOp-ed contributor / May 28, 2013
    Grinnell, Iowa
    The Supreme Court’s much-awaited decision on affirmative action in the Fisher v. University of Texas case could be handed down as soon as this Tuesday, May 28. The court – and the public – have heard a host of arguments both for and against the practice. One opposing argument in particular has been more specious than many of the others.

    Full Story:

    Friends of Affirmative Action

    Inside Higher Ed
    August 14, 2012 - 3:00am

    When the U.S. Supreme Court last issued a ruling on the consideration of race in admissions decisions, Justice Sandra Day O'Connor's decision (which preserved the right to consider race and ethnicity) specifically cited briefs filed by various groups that were not themselves parties to the case. Describing the value of diversity in higher education, Justice O'Connor wrote: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." And she quoted briefs from business groups and military leaders to back up her point.

    Read more:
    Inside Higher Ed


    The OFCCP BlogSpot
    Tuesday, May 21, 2013

    by Kayo Sady, Ph.D., Consultant and Amanda Shapiro, M.S., Consultant, DCI Consulting Group

    In an ongoing series of blog posts, we will be dissecting portions of Directive 307 to highlight the potential pitfalls with the Directive’s prescriptions for conducting pay equity analyses. At issue this week is OFCCP’s oversight regarding the increased likelihood of false positives resulting from “pay analysis groups”, the new unit of pay equity analysis, as opposed to the former similarly situated employee groupings (“SSEGs”) required by the 2006 Compensation Standards and Voluntary Guidelines.
    Full Story: