About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

Legal Update: Obesity Per Se is Impairment

Just a few months earlier, Michigan was the only state to have appearance as a protected characteristic. Add to this Montana, where the state supreme court ruled that obesity without an underlying physiological condition is covered by the Montana Human Rights Act in BNSF Railway Co. v. Feit, No. OP 11–0463, MT 7/6/2012. The action originated as a disability discrimination complaint in which Feit was upheld by the Montana Department of Labor and Industry. BNSF is incorporated in Delaware and sought review in federal, rather than state, court. The U.S. District Court for Montana asked the state supreme court for a determination of obesity under state law which, relying on EEOC interpretive guidance, found that weight outside normal range constituted an impairment. The ruling did not extend to a determination of whether Feit’s situation constituted a disability. The case is getting attention because of EEOC’s guidance playing a role, which might be taken up by other courts. Continue reading

Legal Update: Job Analysis Generalized

The Second Circuit upheld a fire department promotional test in M.O.C.H.A. Society v. City of Buffalo, Nos. 11-2184-cv, 10-2168-cv, 7/30/2012. The two docket numbers are there because of separate appeals for testing in 1998 and 2002. In both cases district court (same judge) granted summary judgment to the city on disparate treatment regarding the 1998 testing and on the overall testing procedure in 2002. The court ruled for the city on disparate impact after a bench trial regarding the 1998 test and foreclosed litigation on what was essentially the same situation in 2002. Here’s what makes the case interesting, straight from the opinion of the Court of Appeals:

Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? We answer that question in the affirmative based on the record developed in these related cases. While employer-specific data may make it easier for an employer to carry his burden in the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity.

The appellate court noted that the trial judge, John T. Curtin, had longstanding experience with promotions in the Buffalo Fire Department, starting with a 1978 finding of a pattern-or-practice of discrimination against African Americans, Latinos, and women. Presumably Judge Curtin would be no pushover for a weak showing of validity. Continue reading

Legal Update: Limits of ADA in State and Federal Govt

Some government employees may be feeling a little more unprotected in the workplace. The first case discussed here involves state and local officials. The second involves feds.

Last month’s update described a case (Okwuv. McKim, No. 11-15369, 9thCir. 6/12/2012) that refused to allow a disability claim against state officials individually under § 1983 where the Americans with Disabilities Act (ADA) does not permit suit against a state agency. The court ruled that the ADA provides exclusive federal remedy for disability discrimination. Watch out if you’re a state or local official in Seventh Circuit territory and someone has an age discrimination charge. The Age Discrimination in Employment Act (ADEA) does not preclude suing state officials under § 1983; so ruled the appellate court in Levin v. Madigan, No. 11-2820, 7thCir. 8/17/2012. Levin is a fired assistant attorney general in Illinois. He alleged sex discrimination (Title VII), age discrimination (ADEA), and violation of constitutional equal protection (§ 1983). He sued the state and five employees individually. The trial court ruled that Levin was a policy making official and so was not covered by Title VII and the ADEA. But the court also ruled that an age discrimination claim could be made under § 1983 and that the individual defendants did not have qualified immunity, i.e., they could not claim they were simply doing their jobs as state officials. Continue reading

Legal Update: EEOC going up and down in court over investigation tactics

As expected, EEOC sought Eighth Circuit en banc review of its case regarding CRST Van Expedited, Inc. A panel of the appellate court ruled that the agency cannot use litigation discovery to identify claimants, and has to investigate for each individual claimant. Initially EEOC had filed for a rehearing, as well as for rehearing en banc. The panel decided to rehear and dismissed the rehearing en banc petition as moot.  Then the panel, upon rehearing, affirmed itself on May 8. EEOC refilled its petition for rehearing en banc, and the full appellate court voted not to take up the case.

Meanwhile, the agency is touting a district court ruling in the Seventh Circuit, EEOC v. United Road Towing, Inc., No. 1: 10-cv-02259, N.D. Ill., 5/16/2012, a disability case where the court ruled that the agency could bring suit for 17 claimants not identified before suit was filed. The court indicated that under Seventh Circuit precedent the court should not review EEOC investigations to determine if a particular investigation supports claims in a class action.

But in the Ninth Circuit, a district court faulted EEOC regarding good faith conciliation (i.e., settlement talks) in EEOC v. Evans Fruit Co., No. CV-10-3033-LRS (E.D. Wash., 5/24/2012) and has ordered mediation. The court cited the CRST case.

That court noted that the Ninth and Sixth Circuits tend to be deferential to EEOC actions.  But a Sixth Circuit district court has not been so inclined in EEOC v. Nestle Prepared Foods, No. 5:11-mc-00358 (E.D. Ky. 2012). The court denied the Commission’s request to enforce a subpoena seeking information for every employee whom the employer referred for or who actually submitted to a medical examination based on a charge of genetic information discrimination by a single employee.

Also in the Sixth Circuit, EEOC is trying to reverse a district court award of $750K to the defendant (EEOC v. Peoplemark, No. 11-2582, 6th Cir.) over a failed case involving use of criminal history for hiring. Affirmation of the award is supported by amicus briefs from some management groups who think that the agency should be slapped for pursuing a case it knew could not succeed.

Then a federal district court in Texas tossed out most of EEOC’s suit regarding widespread discrimination against blacks and Hispanics (hiring, retaliation) against a sporting goods retailer, at least for now.  The case is EEOC v. Bass Pro Outdoor World LLC, No. 4:11-cv-03425, S.D.Tex., 6/1/2012.  The court found that a handful of alleged racist incidents, although disturbing, did not amount to a pattern-or-practice case. The court also was not happy with allegations of retaliation where no claimants were named, nor with claims outside the charge filing deadline.  However, the court kept the allegations of record-keeping violations in play and gave leave for EEOC to amend its complaint, indicating that a plausible claim likely could be stated with more narrow allegations or more extensive facts. Texas is in the Fifth Circuit.

EEOC has also been on the receiving end of discovery action.  The for-profit university in EEOC v. Kaplan, No. 1:10-cv2882 (N.D. Ohio) has gotten the court to order the agency to identify claimants and to disclose its own practices regarding use of credit history for employment decisions.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

Legal Update: Commuting Accommodation Not Required in Sixth Circuit

A reasonable under the Americans with Disabilities Act (ADA) might be to alter an employee’s work schedule.  But a wrinkle that has come up recently is whether the employer must accommodate an employee’s commute with a schedule change.  The Sixth Circuit ruled that it did not in Regan v. Faurecia Auto Seating, 6th Cir., No. 11-1356, 5/10/2012.  Regan has narcolepsy; she can fall asleep at work or when driving, although the condition is mostly controlled with medication.  She informed the company of her condition when she was hired in 2005. Two things happened in 2008 that changed her commuting pattern. Continue reading

Legal Update: Fair Pay Act is Back, and Gone

Sen. Barbara Mikulski (D-MD) and six other Senate Democrats tried to revive the controversial legislation. A version passed the House in 2009, but stalled in the Senate.

Some supporters of the Lily Ledbetter Fair Pay Act, which might have been expected to provide some momentum, balked at the additional proposed legislation, at least until the results of Ledbetter became known. The last major action in the Senate was the failure to bring the bill to a vote in November 2010. There was a repeat of that on June 5. Equal pay for women has been a stated priority of the Obama Administration. Interestingly, the number of sex-based pay discrimination charges has declined slightly from 2,268 in 2009 to 2,191 in 2011 (Brower, 2012). Brower also indicated that the number of EEOC pay-related suits is down in the Obama Administration compared to activity during the Bush years.

With the formation of a federal interagency task force on pay equity by the current Administration, we might have expected litigation headlines. It’s been quiet, although there have been news reports that EEOC has been piloting approaches to pay discrimination cases.

EEOC did not fare well in a recent Equal Pay Act (EPA) case, EEOC v. Port Authority of NY and NJ, No. 10 Civ. 7462, S.D.N.Y., 5/17/2012. The case involved the Port Authority’s non-supervisory in-house attorneys, and the allegation was sex discrimination in failing to provide equal pay for equal work. EEOC argued that claimants and comparators all had the same title and job code, were all valuated on the same performance competencies, and had no job descriptions (allegedly not at all) identifying different duties.

As the court noted, the argument was essentially “an attorney is an attorney is an attorney.” But the court wasn’t buying it.

EPA hinges on a showing that responsibility, skill, and effort are equal. EEOC covered responsibility, but not the other two factors. “Abstract generalities” that could apply to any attorney will not do. Having the same title or job code does not establish same job content. “It strains credulity to argue that Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform. The allegations as a whole simply do not rise to the requisite level of facial plausibility.” Case dismissed, for failure to state an EPA claim for which relief may be granted.

In addition, last month we had a case in the Seventh Circuit where the panel seems to be urging reconsideration of the circuit’s position on refusing to consider assignment to a vacant position as a reasonable accommodation. The decision in Port Authority would seem to be in line with an argument that an attorney (or someone in another occupation) may not be fungible across assignments. Assignment to a vacant position might be reasonably expected to be considered, but it still would not be reasonable if it created undue hardship for the employer. As noted previously, violation of seniority provisions seems to qualify as undue hardship, but there is no clear judicial guidance and a circuit split on this kind of accommodation.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

Legal Update: Scotus and Pinball Litigation

These two cases concern government employees. The first provides the pinball analogy, courtesy of Justice Alito.  The case is Elgin v.  Department of the Treasury, No. 11-45, 6/12/2012. The case concerns four former federal employees who were discharged or constructively discharged because they had not registered for military service. Federal law (5 U.S.C. §3328) bans such people from employment by a federal executive agency.  The challenge to agency action was based on Constitutional grounds: bill of attainder, prohibited by the First Amendment (“attainder” means being tainted and involves loss of civil rights as punishment for a crime; it had been used in British law to cause forfeiture of the property of the attainted to the government or feudal lord and was sometimes used to single out individuals for special punishment); and sex discrimination since the military service requirement applies only to males, based (presumably) on the Fifth Amendment’s guarantee of due process. The Civil Service Reform Act (CSRA) established the U.S. Merit Systems Protection Board (MSPB) to deal with federal employee appeals from agency action; further appeal is to the Federal Circuit Court of Appeals. Only for specified discrimination situations can the employee go to another federal court. Continue reading

Legal Update: Smoke Signals

Is smoking the new frontier for EEO actions? Hospitals and other health institutions (the National Institutes for Health in the Washington metro area comes to mind) proclaim that they are smoke-free. Some employers are going a step further and have become smoker-free. The reason is that these employers, regardless of their business, have a stake in keeping health benefit costs down. Having healthy workers would help achieve that goal, and smoking is unhealthy.

Under federal law smokers are not a protected class. But does smoking implicate protected classes? Smoking itself is an activity, not a disability. Nicotine addiction might be an impairment, but it may or may not be a disability under federal law. Another angle is whether smokers tend to be more prevalent in some race/ethnic groups. The Centers for Disease Control issued a report last year indicating that smoking rates varied by industry, but did not go into demographics. Continue reading

Legal Update: Spawn of Ricci

The Court will be asked to straighten out the aftermath of Ricci v. Destefano. It has not yet decided whether to grant certification in Briscoe v. New Haven, No. 11-1024, petition for cert 2/15/2012. The case that has revived the fight over tests administered in 2003.

Michael Briscoe, an African American firefighter, brought the suit that the city said it was trying to avoid when it canceled promotion lists that would have benefitted Ricci et al. District court, while somewhat sympathetic to Briscoe‘s suit, said that the Supreme Court had spoken regarding promulgation of the lists and Briscoe should have intervened in Ricci to ensure that his situation were taken into account. Among other things, Briscoe argued that the city could have weighted the written test results differently and had less adverse impact. Continue reading

Legal Update: Who is the Supervisor?

Who is a supervisor? The Court isn‘t sure and is asking the U.S. Solicitor General (SG) for help. The SG provides amicus curiae briefs on issues in which the federal government has a stake, and sometimes the Court invites an analysis of a disputed legal issue. The Court invited the SG to file a brief expressing the government’s view on the definition of the term “supervisor” for the purpose of imposing vicarious liability on an employer for harassment in violation of Title VII (Vance v. Ball State Univ., U.S., No. 11-556, SG invited to file brief 2/21/12). The Seventh Circuit had ruled in this racial discrimination that the alleged harasser was a co-worker, not a supervisor. Vance is arguing that the circuits are split on the issue. Ball State acknowledges that there is a circuit split, but claims that Vance’s alleged harasser would not be a supervisor under any theory. The major alternatives are between someone with personnel action authority and someone who directs the daily work of others. Continue reading