Wal–Mart Stores, Inc. v Dukes Ruling Extended to Hiring

In May 2013, the Sixth Circuit decided in Davis v Cintas Corp that the class certification denial was proper and dismissed the plaintiff’s individual disparate treatment claim. The case was a nationwide sex discrimination class action brought against Cintas Corporation by female applicants who were not hired for entry-level sales representative jobs. Continue reading

Standard of Causation in Title VII Retaliation Claims

In April, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v Nassar, a Fifth Circuit decision examining the appropriate standard of proof for Title VII retaliation claims. At issue is whether a plaintiff is required to prove but-for causation (e.g., the employer would not have taken an adverse employment action but for the employee’s age, race, gender, etc.) or only that the employer had a mixed motive (e.g., that an improper motive was but one of multiple reasons for the action). The mixed motive standard represents a lower standard of proof. Continue reading

Genetic Information Nondiscrimination Act (GINA) in Action

As part of its 2013 to 2016 Strategic Enforcement Plan, the EEOC identified addressing emerging and developing issues in EEO law and one of its six national priorities. This includes genetic discrimination. In May 2013, the EEOC filed and settled the agency’s first lawsuit to enforce genetic nondiscrimination rights afforded by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Continue reading

Social Media and Employment Decisions

Recently, a number of states have enacted social media privacy laws which extend to hiring and employment. Such legislation (which has been introduced, is pending, or has been signed into law in at least 35 states) limit, or prohibit, employer access to personal accounts of employees and prospective employees. Continue reading

Revisiting Criminal and Credit Records Checks

In June 2013, the EEOC filed two lawsuits, one against BMW and the other against Dollar General (EEOC v. BMW Manufacturing Co.,Inc.; EEOC v. Dolgencorp LLC d/b/a Dollar General). In both, the EEOC asserts each company discriminated against African American job applicants through the improper use of criminal background checks as an applicant screening tools which were not job-related and consistent with business necessity and resulted in disparate impact. Continue reading

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