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EEOC ISSUES PUBLICATIONS ON RIGHTS OF JOB APPLICANTS, EMPLOYEES WITH HIV

“The U.S. Equal Employment Opportunity Commission (EEOC) today issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.

The White House has issued a National HIV/AIDS Strategy (NHAS) for the United States. One of the steps identified by the Strategy is to reduce stigma and eliminate discrimination associated with HIV status and services. EEOC has a long history of enforcing the nondiscrimination rights of individuals with HIV infection in employment. During Fiscal Year 2014 alone, EEOC resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000.00 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations. EEOC now extends these efforts by issuing two documents that explain these rights.

We are proud to be a part of the National HIV/AIDS Strategy,” said EEOC Chair Jenny Yang. “Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”

Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. It also answers questions about the process for obtaining an accommodation; possible accommodations; the privacy rights of people who have HIV infection; the employer’s obligation to keep medical information confidential; and the role of EEOC in enforcing the rights of people with disabilities.

Helping Patients with HIV Infection Who Need Accommodations at Work explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation. It also answers questions about the types of accommodations that may be available; the ADA’s protections against employment discrimination based on having the condition or on the need for accommodation; the importance of disclosing the need for an accommodation before a problem occurs; and what to do when an employer raises safety concerns.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/eeoc-issues-publications-on-the-rights-74987/

OBAMA SUPPORTS “BAN THE BOX” FOR FEDERAL JOB APPLICATIONS

“President Obama said Monday he was directing federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective government employees about their criminal histories on job applications.

Speaking at Rutgers University in Newark, N.J., where he highlighted programs meant to ease the reentry of former inmates into society, Obama said the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.”

It’s unclear how many federal agencies would be affected by Obama’s action. Many agencies already delay asking about criminal history until later in the hiring process, but Obama is directing the Office of Personnel Management to issue guidance making that practice universal across the federal government.

“It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”

And while civil rights groups applauded the move, many had hoped for an even more sweeping executive order. The American Civil Liberties Union called the move “an important first step,” but called on him to follow up with an order that would apply not only to federal employees, but federal contractors. Obama has used 15 similar orders during his presidency to force companies doing business with the government to raise the minimum wage, adopt non-discrimination policies and grant workers paid time off.

“While the president is with us in spirit, his administration is not yet ready to make an executive order a reality,” said Wade Henderson of The Leadership Conference on Civil and Human Rights.

White House spokesman Frank Benenati said the president prefers congressional action on contractors  “as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration.”

Sen. Cory Booker, D-N.J., who is sponsoring that legislation with Sen. Ron Johnson, R-Wis., said Monday that he’s “really happy to see the president continue to push the envelope” and bring attention to the issue.

But the ban-the-box effort, he said,  “should be done legislatively, so that the stroke of another president’s pen can’t undo it.”

Obama highlighted offender reentry programs Monday in New Jersey as part of a nationwide tour to build support for Congress to overhaul the criminal justice system.

His first stop in Newark was a tour of Integrity House, a halfway house and drug rehabilitation center that gets 85% of its referrals from the criminal justice system. Meeting with former prison inmates who are now residents of the house, Obama said the center does “outstanding work with folks with addiction issues,” and said he hoped his visit would “highlight what is working” across the country.

Obama highlighted the story of Dquan Rosario, who served time in prison for drugs but then, at age 37, went back to school and is now an emergency medical technician in Newark. Obama said Rosario’s story shows it’s never too late for a second chance.

“There are people who have gone through tough times. They’ve made mistakes. But with a little bit of help, they can get on the right path. That is what we have to invest in, that is what we need to believe in,” Obama said.”

 

Originally posted by USA Today. Full article at http://www.usatoday.com/story/news/politics/2015/11/02/obama-tells-federal-agencies-ban-box-federal-job-applications/75050792/

EEOC GOES HOLLYWOOD: COMMISSION TO PROBE GENDER DISCRIMINATION AGAINST FEMALE DIRECTORS

“Several women directors say that they have received notices from the Equal Employment Opportunity Commission asking to set up interviews in an apparent start to an investigation over gender discrimination in Hollywood.

According to a copy of the letter obtained by Variety, the EEOC is asking directors to speak with them so that “we may learn more about the gender-related issues” they are facing in entertainment. The letter indicated that the interviews would be conducted in the month of October.

In May, the ACLU of Southern California called on the EEOC to investigate “the systemic failure to hire women directors at all levels of the film and television industry.”

They cited figures showing hiring of women directors in entertainment well behind their proportion of the population. In one of the figures cited, women made up just 7% of directors were in the 250 top grossing films in 2014, two percentage points lower than it was in 1998, according to a study from the San Diego State University Center for the Study of Women in Television & Film. According to a recent report from the Directors Guild of America, the number of TV episodes directed by women in 2014-15 was just 16%, albeit a modest gain from a year earlier.

Director Maria Giese, who made the initial inquiry with the ACLU four years ago, said that she had received an EEOC letter and was hoping to set up an interview in the coming weeks.

She has been writing about the issue on her own blog, Women Directors in Hollywood, and last month gave a speech to Hollywood Business and Professional Women in which she outlined the history of past legal efforts as well as push back she has gotten from the DGA.

Among those who also received a letter was Lori Precious, who said that she was “euphoric” that the EEOC appeared to be moving forward with an inquiry.

Although there have been efforts in the past to investigate gender discrimination in Hollywood, “the real problem is it just never turns into change,” Precious said. The EEOC also conducted a report on race and sex discrimination in Hollywood in the 1980s.

Another recipient was Melanie Wagor, who said that “everybody is ecstatic and really thankful for the ACLU and the EEOC for taking this seriously.”

A spokeswoman for the EEOC said that federal law does not allow them to confirm or deny the existence of a charge.

But she said that the “EEOC will continue to vigorously enforce Title VII’s nondiscrimination requirements. Title VII prohibits covered employers from discriminating on the basis of sex. … We also encourage the industry to publicly address the serious issues raised by the ACLU and to take proactive steps to address these issues.”

The ACLU of Southern California had been gathering anecdotal information from 50 women directors, resulting in a 15-page letter sent to the EEOC, the federal Office of Federal Contract Compliance Program and the state Department of Fair Employment and Housing.

“Women often reported the pervasive perception that hiring women directors is viewed as more ‘risky’ than hiring men; even men with less experience,” the ACLU letter stated. “This perception is particularly harmful where multiple decisionmakers must agree each time a director is hired, and each decisionmaker is wary of hiring outside the standard (male) norm.”

Among other things, the letter said that even women who have initial success are not hired consistently or their careers stall, or they are not trusted with bigger budget projects at the same rate as their male peers.

“Both research and the anecdotal evidence we gathered showed serious gender disparities in opportunities, even for women whose films debut at prestigious festivals,” the letter stated.

A spokesman for the Alliance for Motion Picture and Television Producers said they had no comment.

The letter was critical not just of studio and network hiring practices — including the reliance on lists in deciding who to hire — but also of the role of talent agencies and the DGA.

The ACLU letter concluded that the guild’s efforts to increase the hiring of women “are ineffective and some practices may perpetuate discrimination.”

The letter cited “a widespread perception that the DGA leadership did not prioritize increasing the number of women directors hired and at times expressed hostility or blocked efforts of female members to make the issue a higher priority.” Although the guild has worked with studios to create “shadowing” programs and fellowships for women directors and ethnic minorities, the ACLU letter said that many women view the programs as “condescending to women, especially where women directors are required to participate as an express or implied condition of getting work, while comparably experienced men are not.”

The DGA sued two studios, Warner Bros. and Columbia Pictures, over hiring practices in 1983, but the class-action litigation was dismissed two years later after a federal judge ruled that the guild had a conflict of interest in representing the class. Among other things, the judge, Pamela Rymer, wrote that the DGA, as the collective bargaining agent, itself faced triable questions as to whether its procedures also contributed to discrimination. What followed was an agreement between the DGA and the studios requiring employers make “good faith efforts” to hire women and minority directors and to provide a report on the sex and ethnicity of those hired.

The DGA had no comment on Tuesday.

At the time the ACLU released its letter, the DGA said in a statement that the “lack of network and studio action to hire more women and minority directors is deplorable. The DGA has been a long-standing advocate pressuring the industry to do the right thing, which is to change their hiring practices and hire more women and minority directors.”

But it said that the ACLU had made “no effort to contact the DGA concerning the issues raised in its letters. The ACLU’s assertions reflect this lack of investigation as to the Guild, and ignore its efforts to combat discrimination against women directors and to promote the employment of women directors.

“There are few issues to which the DGA is more committed than improving employment opportunities for women and minority directors, it is time for change,” the guild said.

Bonnie Eskenazi, partner at the law firm Greenberg Glusker, said that “assuming there is an investigation and there is found to be discrimination, then how do you fashion a remedy which will actually make a difference?”

“I don’t think you can solve this problem without a long-term follow up,” she said.

She believes that it is time to “think outside the box,” and said that she is at work on an idea in which a “film gender czar” would be empowered to recommend action for employers to take to improve hiring practices.

“Unless there is a central body that can be responsible for taking action, then nothing will happen,” she said.

News of the EEOC’s issuance of letters was first reported by the Los Angeles Times.”

 

Originally posted by Variety.  Article can be found at http://variety.com/2015/biz/news/eeoc-women-directors-gender-discrimination-aclu-1201611731/

CALIFORNIA ACTS TO OUTLAW PRE-EMPLOYMENT MANDATORY AGREEMENTS TO ARBITRATE LABOR CODE CLAIMS

“In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy starting January 1, 2016. AB 465 would create a new statute that prohibits employers from requiring a candidate to “waive any legal right, penalty, remedy, forum, or procedure for a violation of [the Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner… or any court or other governmental entity.” The section explicitly covers “an agreement to accept private arbitration.” The bill makes it unlawful to threaten, or retaliate or discriminate against, a person who refuses such a waiver. An employee may recover reasonable attorney’s fees incurred in enforcing rights under the new statute.

Even if the bill becomes law, certain forms of pre-employment arbitration agreements would remain enforceable, even if they cover Labor Code violations. For instance, those agreements that are knowing and truly voluntary—i.e., not made as a condition of employment—would be valid, but the employer would have the burden of proving these facts if challenged. Further, the new statute would not apply to persons registered with a self-regulatory organization under the Securities Exchange Act of 1934 or employees represented by counsel in negotiating the agreement.

AB 465 is principally backed by organized labor, with the California Labor Federation, AFL-CIO sponsoring the bill. A lobbyist for the federation cited an uptick in the instances of low-wage workers being unable to recover unpaid wages before the California Labor Commissioner due to an arbitration agreement they did not understand or know they signed. The bill is opposed by many groups, including the Civil Justice Association of California and the California Chamber of Commerce. The chamber has identified AB 465 as one of the 2015 Job Killers, citing the increased burden on the judicial system and noting likely preemption by the Federal Arbitration Act.

If AB 465 becomes law, the long-term legal impact is unclear. Not only will it prohibit pre-employment, mandatory agreements to arbitrate Labor Code violations, but it may also reach class action waivers, which the California Supreme Court recently upheld in the employment context. The substantive reach of the prohibition is also unclear, expressly covering a “legal right, penalty, forum, or procedure” for a Labor Code violation, but remaining silent on other employment-related statutes such as the Fair Employment and Housing Act (codified in the Government Code). Moreover, the statute will almost certainly be challenged under the Federal Arbitration Act, which reflects a liberal policy favoring arbitration enforceability and pre-empts state rules that disfavor arbitration. The ambiguity in breadth and pre-emption uncertainty leave employers in an unenviable position if the bill becomes law.

AB 465 (and the other employment-related bills described below) remain on Governor Brown’s desk for consideration, and we will continue to monitor and report on developments.”

 

Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/california-legislature-acts-to-outlaw-73929/

BMW SETTLES EEOC CRIMINAL BACKGROUND CHECK SUIT FOR 1.6 MILLION

“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.

The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.

At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.

According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.

Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background

checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.

The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “

Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821

UBER BACKGROUND CHECKS MISSED CRIMINAL RECORDS

“The background-check service that ride-hailing company Uber uses to screen potential drivers did not flag the criminal records of 25 drivers who gave thousands of rides to customers in Los Angeles and San Francisco, prosecutors said Wednesday.

The findings were made public in an amendment to a consumer protection lawsuit filed last year by the district attorneys for Los Angeles and San Francisco. The suit alleges that Uber has misled customers about the safety of the app-based ride service, including how they screen potential drivers.

In the amended 62-page civil complaint, prosecutors detailed the criminal histories of 25 people who gave rides to passengers in Los Angeles and San Francisco in the last two years.

“I support technological innovation,” San Francisco Dist. Atty. George Gascón said in a prepared statement. “Innovation, however, does not give companies a license to mislead consumers about issues affecting their safety.”

The Times reported this month that four Uber drivers cited at Los Angeles International Airport had criminal records that would bar them from driving a taxi in Los Angeles.

Whether ride-hail drivers should be held to the same background-check standards as taxi drivers has been the subject of hours of testimony at Los Angeles City Hall, as lawmakers prepare to vote on a permit process that would allow Uber and its main competitor, Lyft, to pick up passengers at LAX.

Prospective Uber drivers are not required by state law to submit fingerprints as part of their background checks. The company says its background-check service identifies all criminal convictions in the last seven years.

By contrast, the Los Angeles Department of Transportation runs the prints of potential taxi drivers through federal criminal databases.

Uber and Lyft use services that can process screenings within days. They have both argued that using fingerprint checks would be redundant.

In a prepared statement, Uber spokeswoman Eva Behrend said that no background check is “100% foolproof.” Running fingerprints through state and federal databases can flag the criminal records of people who have been arrested but not convicted, “which can discriminate against minorities,” she said.

According to the amended lawsuit complaint, one driver was convicted of second-degree murder in Los Angeles and spent 26 years in prison. He gave a different name when he applied to drive for Uber, and a background report said he had no known aliases and no criminal history, the complaint said. The driver gave 1,168 rides over seven months, according to the prosecutors’ court filing.

Using fingerprints and checking federal databases would have identified the man’s criminal history, prosecutors said.

Prosecutors also said they found three unlicensed drivers who used someone else’s account to drive for Uber.

Five drivers had convictions for driving under the influence in the last seven years, the complaint said, and some still drive for Uber. The company has said it bars applicants with convictions for DUI in the preceding seven years.

Several drivers were convicted of fraud, including one driver convicted in 2010 of 29 felony counts of theft, grand theft, filing false or fraudulent real estate deeds, and money laundering, according to the complaint.”

ANOTHER CIRCUIT COURT RULES PAID SUSPENSION IS NOT ADVERSE EMPLOYMENT ACTION FOR TITLE VII

“Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.

The case, Jones v. Southeastern Pennsylvania Transportation Authorityinvolved an employee who was suspended with pay while her employer investigated allegations that she had submitted fraudulent timesheets. She didn’t suffer any loss of income or compensation. She was off workwith pay. Nevertheless, the employee sued her employer claiming, among other things, sex discrimination and sexual harassment.

In evaluating whether or not the paid suspension could be considered discriminatory, the Third Circuit observed that Title VII prohibits discrimination with respect to decisions concerning hiring, firing, compensation and other terms and conditions of employment. Because suspending an employee with pay does not neatly fall within these categories, the court concluded that such a paid suspension could not be an adverse employment action for Title VII purposes. The lack of an adverse employment action similarly negated the plaintiff’s sexual harassment claim.

All in all, the decision is good for employers and ensures that those who do go the extra mile to suspend with pay do not get burned for doing so. Although the decision does not guarantee that an employee will not sue over a paid suspension, it does effectively curtail a Title VII claim in this context – and particularly in the Circuits that have adopted this rule. And doing so makes perfect sense: it smacks of unfairness that a company which pays an employee on leave might then be forced to also pay to fend off a discrimination or harassment claim filed by the very same employee who was on the paid suspension.

Practically, what does this case mean for employers? They have a choice to make: (a) pay the suspended employee and eliminate the potential for a discrimination claim; or (b) choose not to pay the suspended employee and accept the risk that the employee – and a court – would find the lack of payment as an adverse employment action.

Whatever choice employers make, they also must make certain they handle similar decisions uniformly and not in a way that would be perceived as discriminatory: selectively suspending some employees with pay but not others (i.e. those who are not be in protected classes) would only create a bigger problem. As with everything in the employment arena, employers constantly must evaluate the risks and benefits of their individual actions, while simultaneously keeping the big picture in mind.”

Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/not-all-good-deeds-are-punished-paid-suspension-not-adverse-employment-action-title-

TRUCKING FIRM TO PAY UP IN EEOC PRE-EMNPLOYMENT EXAM CASE

“An Indianapolis trucking firm has agreed to pay $200,000 to settle an Equal Employment Opportunity Commission disability discrimination case, in which it was charged with requiring pre-employment medical exams.

The EEOC said Tuesday that Indianapolis-based Celadon Trucking Services Inc. violated the Americans with Disabilities Act by subjecting applicants to medical exams before making a conditional offer of employment, and discriminating against applicants based on disability or perceived disability.

The agency said that on June 30, the U.S. District Court in Indianapolis ruled that the company violated the ADA by conducting unlawful medical inquires and exams of applicants for over-the-road truck driving positions, and that in two cases, it unlawfully dismissed two class members from a driver orientation program because of their disabilities, in violation of the ADA.

In addition to paying $200,000 in damages to 23 former Celadon applicants, the settlement requires the company to train its management employees on disability discrimination, among other provisions.

“The law is clear: Celadon cannot subject applicant drivers to disability-related inquiries and medical examinations without first extending to these applicants a conditional job offer,” said Laurie A. Young, regional attorney of the EEOC’s Indianapolis district office, in a statement.

“Celadon’s policies must conform to the requirements of the ADA. We are satisfied that this settlement serves the public interest, and we are confident that the relief obtained will prevent the recurrence of this type of discrimination,” Ms. Young said.

Celadon’s attorney could not immediately be reached for comment.

Earlier this year, an Arkansas trucking firm was ordered to pay $477,399 in an EEOC disability discrimination lawsuit in which it was charged with subjecting its truck-driver workforce to overly broad medical inquiries.”

Originally posted by Business Insurance. Article can be found at http://www.businessinsurance.com/article/20150804/NEWS06/150809951/trucking-firm-to-pay-up-in-eeoc-pre-employment-exam-case?tags=%7C338%7C70%7C75%7C80%7C83%7C302

SEC CLARIFIES WHISTLE BLOWER PROTECTIONS AGAINST EMPLOYER RETALIATIONS

“The Securities and Exchange Commission has issued an interpretive rule clarifying that whistleblowers are protected by retaliation by employers even if they have not reported their concerns to the SEC first.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 included a section offering incentives and protections to individuals who report possible violations of the federal securities laws, including protections against employer retaliation. The SEC issued rules in 2011 spelling out how the whistleblower protections would work, but there was some ambiguity when the SEC specified how whistleblowers should report a tip to the SEC in order to qualify for a whistleblower award, and those who would be protected from employer retaliation.

In particular, questions arose over whether an employee who first reported the matter internally to their employer, such as a compliance department, would be protected from retaliation from that same employer, or only those who reported directly to the SEC.

“Our interpretation best comports with our overall goals in implementing the whistleblower program,” said the SEC in the rule it issued last week. “Specifically, by providing employment retaliation protections for individuals who report internally first to a supervisor, compliance official, or other person working for the company that has authority to investigate, discover, or terminate misconduct, our interpretive rule avoids a two-tiered structure of employment retaliation protection that might discourage some individuals from first reporting internally in appropriate circumstances and, thus, jeopardize the investor-protection and law-enforcement benefits that can result from internal reporting. Under our interpretation, an individual who reports internally and suffers employment retaliation will be no less protected than an individual who comes immediately to the Commission. Providing equivalent employment retaliation protection for both situations removes a potentially serious disincentive to internal reporting by employees in appropriate circumstances. A contrary interpretation would undermine the other incentives that were put in place through the Commission’s whistleblower rules in order to encourage internal reporting.”

The Government Accountability Project, a whistleblower protection advocacy organization, and Labaton Sucharow LLP, a law firm that specializes in securities class-action lawsuits, wrote a letter Tuesday to SEC chair Mary Jo White thanking her for the interpretive rule, but also asked for further protections.

They pointed out that the new rule clarifies that any disclosure protected by the Sarbanes Oxley Act is shielded from retaliation under its Whistleblower Program. In effect, according to them, protection extends to disclosures within a corporation, to other law enforcement audiences, or to the public. Protection also extends to any violation of federal law, not just those enforced by the SEC. However, they cautioned that the SEC should take additional measures to address the remaining vulnerabilities they identified in a petition last summer to the SEC.

“Our July 2014 petition emphasized that new and creative forms of corporate prior restraint are preventing disclosures from happening at all, making academic the issue of subsequent retaliation,” wrote GAP legal director Tom Devine and Labaton Sucharow partner Jordan Thomas. “Merely presenting employees with nondisclosure agreements creates a chilling effect, and there are no rights for refusing to agree—only for violating one with protected speech. Further, corporations regularly file breach of contract lawsuits, theft of corporate records actions, and other litigation attacks outside the employment context. Realistically, to prevent a chilling effect on the flow of evidence necessary for SEC oversight, it is necessary to go beyond interpretations that restrict harassment of incumbent employees.” ”

Article posted by Accounting Today. Original article at http://www.accountingtoday.com/news/audit-accounting/sec-clarifies-whistleblower-protections-employer-retaliation-75468-1.html

SCOTUS HOLDS THAT EEOC CONCILIATION EFFORTS ARE SUBJECT TO LIMITED JUDICIAL REVIEW

I. Procedural Background and Party Positions

“After investigating a gender discrimination claim against Mach Mining, the EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The EEOC sent a letter inviting Mach Mining and the claimant to participate in informal conciliation proceedings. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had failed – pursuant to the statutory mandate that conciliation discussions remain private, the evidence record did not reflect what negotiations, if any, took place in the interim. The EEOC then sued Mach Mining in federal court.

In its responsive pleadings, Mach Mining asserted, as an affirmative defense, that the EEOC had not attempted to conciliate in good faith. The EEOC responded by arguing: (1) that conciliation efforts were not subject to judicial review; and (2) that the two letters sent to Mach Mining provided sufficient proof that the EEOC had fulfilled its statutory duty to conciliate. The district court agreed with Mach Mining, holding that the adequacy of the EEOC’s conciliation efforts was subject to judicial review. The EEOC appealed, and the Seventh Circuit reversed the District Court, finding that the EEOC’s statutory obligation to conciliate was unreviewable. Mach Mining then sought review in the United States Supreme Court, andcertiorari was granted.

The parties presented unwavering and starkly opposite arguments to the Supreme Court. The EEOC’s position was that Title VII allotted complete discretion to the Commission; therefore, its conciliation efforts were not subject to judicial review. The only concession made by the EEOC was that, if the Court were to deem the conciliation process reviewable, then the EEOC’s letters to Mach Mining provide sufficient evidence of the Commission’s compliance with the statutory mandate to conciliate – as long as the EEOC issues two letters, courts have no authority to consider any other evidence regarding the conciliation process. Mach Mining, on the other hand, argued that courts should be able to employ the NLRA’s standard of “good-faith bargaining” with regard to the EEOC’s conciliation efforts, which would require courts to delve deeply into the facts surrounding each and every conciliation process.

II. The Opinion

In a unanimous opinion, authored by Justice Kagan, the Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But [the Court found] that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015). Sounds good in theory, right? To unpack this holding, one must look at each of the issues addressed by the Court and, more importantly, the issues that were not addressed.

First, the Court had to dispose of the EEOC’s argument, and Seventh Circuit’s holding, that the EEOC’s conciliation efforts were not judicially reviewable. To do so, the Court cited case law precedent that applies a “strong presumption” favoring judicial review of administrative action. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). The Court reasoned that, because the EEOC’s participation in conciliation efforts is a mandatory prerequisite to filing a lawsuit under Title VII, courts must be able to exercise some oversight in the process. As the Court stated:

Yes, [Title VII] provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission.

Mach Mining, 135 S.Ct. at 1652 (emphasis in original) (citations omitted). The Court’s view was predicated on the idea of culpability:

Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.

Id. at 1652-53.

Having determined that the EEOC’s conciliation efforts are subject to judicial review, what, then, is the scope of such review? The Court denied each side’s proposed standard. First, the Court denied the EEOC’s argument for “the most minimalist form of review imaginable,” reasoning that “a court needs more than the two bookend letters the Government proffers” in order to verify the Commission’s compliance with Title VII. Id. at 1653. Likewise, the Court rejected Mach Mining’s proposed framework, similar to that used in the NLRA, because the NLRA and Title VII serve different purposes. While Title VII is focused strictly on results – to eliminate unlawful discrimination in the workplace – the NLRA aims to create a “sphere of bargaining” in which both sides are obligated to bargain fairly. Id. at 1654. To treat Title VII conciliation like labor negotiations, the Court held, would be to adopt rules that “do not properly apply to a law that treats the conciliation process not as end in itself, but only as a tool to redress workplace discrimination.”Id. The Court additionally noted that Mach Mining’s proposed scope of judicial review would undermine the EEOC’s discretion and confidentiality mandated by Title VII. See id. at 1655.

The Court held that the appropriate scope of review enforces Title VII’s requirements, “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further.” Id. at 1653. As the Court explains:

[Title VII] demands…that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an ‘endeavor’ to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute.

Id. at 1655-56. To show, then, that the EEOC did not comply with Title VII during conciliation, an employer must provide credible evidence (typically by sworn affidavit) indicating that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” which would then allow a court to conduct the necessary factual inquiry to decide the dispute.

III. Lingering Issues

So, the Court has defined Title VII conciliation as a tool to remedy workplace discrimination (nothing new there). What is interesting, however, is that the Court inferentially mandated that the remedy of the allegedly discriminatory practice be the beacon of conciliation. How does that work? Let’s say, for example, that Mach Mining had said during conciliation, “Okay, EEOC, we know there is a problem. We will hire the claimant, pay her the wages she would have earned up to her first day of work and adjust our hiring practices and facilities accordingly.” By the Court’s ruling, this would seem to be a sufficient offer to remedy the alleged discrimination. But, what if the EEOC rejects this proposal? What if the EEOC wants to make an example out of Mach Mining? Can they do that? Sure they can. The Court does not disturb the extensive discretion allotted to the EEOC in determining a satisfactory settlement or in determining its motive for accepting or rejecting settlement. As you can see, although the Court’s holding has established the allowance of judicial review, it does not allow courts to interpret the rationality of the EEOC’s positions. Courts may only determine whether the Commission went through the proper procedures and put the employer on notice of the claim. For a results-oriented statute, as the Court described Title VII, this scope of judicial review does not seem to facilitate the results that Title VII theoretically endeavors to achieve. ”

 

Originally posted by The National Law Review.  Article can be found at http://www.natlawreview.com/article/us-supreme-court-holds-eeoc-conciliation-efforts-are-subject-to-limited-judicial-rev