Although many tend to think the days of intentional gender or race discrimination in hiring are long gone, the U.S. Equal Employment Opportunity Commission recently held a public meeting focusing on this very topic. Why is the EEOC focusing on discriminatory hiring? According to the EEOC’s press release, disparate treatment in hiring is widespread despite the fact that many employers today invest a significant amount of time and effort in diversifying their workforce in order to gain a competitive edge. The EEOC’s General Counsel, P. David Lopez, believes that minorities are unlawfully denied employment opportunities due to employers’ efforts to conform to discriminatory customer preferences, hiring managers’ reliance on prohibited stereotypes about certain jobs, and the use of narrow recruiting procedures which fail to attract a diversified applicant pool.

Over the past two years, failure to hire complaints have comprised only 6% of all charges filed with the EEOC. The most common were age discrimination cases. Yet, a plaintiff’s employment lawyer and several EEOC officials who testified at the meeting claimed that such discrimination is underreported and urged the EEOC to invest additional resources in investigation of systemic, pattern and practice cases of discriminatory hiring. A management-side attorney who testified at the hearing acknowledged the value of employer training in this area, but advised against implementing a “one size fits all” approach to mandatory training or other EEOC programs. The attorney also recommended that the Commission update its 1998 Best Practices of Private Sector Employers report.
 

EEOC Chair Jacqueline Berrien indicated that employers can expect the EEOC to implement more vigorous enforcement efforts targeting potential cases of disparate treatment in hiring. Specifically, we will likely see an increase in the number of EEOC-initiated charges and pattern and practice cases. EEOC investigators may also begin to more closely analyze employers’ EEO-1 and/or OFCCP reports, and rely on information gathered from their investigation of other charges in order to identify targets for investigation of possible systemic discrimination in hiring.

How can employers prepare for this enforcement initiative? While courts have recognized that employers must use subjective, business judgment when hiring employees, the use of objective criteria in evaluating applicants better ensures that selection procedures are applied in a nondiscriminatory manner. Employers will be better equipped to defend failure to hire claims if they: 1) maintain records of the hiring process, including, when possible, applications submitted through the internet; 2) provide diversity training for all employees to emphasize the importance of a diverse workforce; 3) update equal employment opportunity polices and take action against managers who fail to follow those policies; 4) conduct periodic internal audits to assess potential disparate impact in hiring practices and to ensure that employment decisions are job-related; and 5) provide up-to-date training for managers involved in the hiring process.
 

In a huge victory for the nation’s largest private employer, the United States Supreme Court ruled on June 20, 2011, that a class comprised of an estimated 1.5 million former and current female Wal-Mart employees could not proceed with a class action lawsuit alleging gender discrimination under Title VII of the Civil Rights Act of 1964. Due in part to the sheer magnitude of the proposed class, the case – Wal-Mart Stores, Inc. v. Dukes – has received an enormous amount of media attention. At least within legal circles, the decision is likely to continue to receive attention for years to come because it has a significant impact on the standard used to determine whether the claims of diverse plaintiffs have enough in common to be certified as a class action.   The decision will make it much more difficult for very large groups of plaintiffs to litigate their employment-related claims together and thereby increase their economic leverage in litigation.

The issue before the Court was whether the former and current employees could proceed with their claims together in the form of a class action sex discrimination lawsuit. The plaintiffs alleged that Wal-Mart discriminated against female employees by denying them equal pay and/or promotions. More specifically, the plaintiffs contended that the discrimination was due to Wal-Mart’s pay and promotions policy. The policy generally left pay and promotion decisions to the broad discretion of managers and supervisors. There was little oversight of such decisions by upper management. The plaintiffs contended that this broad discretion fostered a discriminatory corporate culture that included the use of gender stereotypes in pay and promotion decisions.
 

Wal-Mart countered by arguing that the plaintiffs could not satisfy the legal prerequisites for a class action. Under federal law, in order to be certified as a class, the plaintiffs must demonstrate that there are questions of law or fact common to the class. Wal-Mart contended that the plaintiffs could not meet this “commonality” standard because their individual experiences with the Company were so vastly different, decision-making was decentralized, and the only written policy that was relevant was one that prohibited all forms of discrimination. In other words, Wal-Mart argued there was no evidence of an illegal policy or practice common to all of the plaintiffs.

Ultimately, the Supreme Court agreed with Wal-Mart. The Court held that while the plaintiffs all alleged gender discrimination in pay or promotions, the mere evidence of a common injury (i.e., all members alleging a Title VII violation) does not meet the commonality standard. The Court explained that it was the plaintiffs’ burden to show “significant proof” that the Company operated under a “general policy of discrimination.” The Wal-Mart employees, however, could not point to any such policy. If anything, the Court noted that Wal-Mart’s policy was just the opposite of a uniform corporate policy. Each manager and supervisor had significant discretion in making pay and promotion decisions. The plaintiffs did argue that the practice of giving managers and supervisors discretion was a policy which had a discriminatory disparate impact. While acknowledging that such a policy could theoretically be the basis for a Title VII disparate impact claim, the Court concluded that this theoretical possibility was not sufficient alone to satisfy the commonality requirement. Instead, that policy of discretion had to be tied to a specific employment practice which, in turn, tied the 1.5 million claims together. The Court concluded that the plaintiffs had no such evidence, finding that the plaintiffs’ statistical evidence regarding pay and promotion, anecdotal accounts of discrimination by a fraction of the class members, and testimony from a sociologist about the impact of Wal-Mart’s corporate culture, were all insufficient to satisfy the plaintiffs’ burden of showing commonality.
 

The subpoena power of the EEOC is very broad, and entitles the EEOC to obtain information relevant to its investigation of a charge of discrimination. But a federal district court recently concluded that there are limits to that power, and that it does not necessarily entitle EEOC to obtain information about corporate-wide policies or other potential claimants when the information sought will not shed light on the charge it is investigating.

The case arose when the former employee of a nursing home owned by the University of Pittsburgh Medical Center (“UPMC”) filed a charge of disability discrimination. According to the Court’s opinion, the nursing home responded to the charge by contending the former employee had been discharged pursuant to a policy which provided for a maximum medical leave of 14 weeks. The EEOC then served a subpoena on UPMC, not just the nursing home, demanding production of information on every UPMC employee, not just nursing home employees, terminated pursuant to the policy since July 1, 2008. UPMC has approximately 48,000 employees, the nursing home 170.
 

EEOC sought the information to investigate a corporate-wide application of the leave policy and to determine if there were other potential ADA claimants. The EEOC’s theory was that application of the policy could deprive employees of additional unpaid leave as a reasonable accommodation. UPMC objected to the subpoena and refused to comply, so EEOC sought to enforce the subpoena in court. The Court rejected that effort, concluding that the subpoena was an improper fishing expedition.

In reaching this conclusion, the Court relied on a 2010 decision from the United States Court of Appeals for the Third Circuit, EEOC v. Kronos, Inc., which holds that in order to be valid, an EEOC subpoena must seek information relevant to the charge under investigation. The Court noted that although the EEOC need not ignore facts that might be related to other claims of discrimination if it uncovers them during its investigation of a pending charge, the ability to pursue such facts does not give the EEOC “unconstrained investigative authority.” The information it seeks must still be relevant to the charge under investigation, and/or arise out of its investigation of the charge. The Court concluded that neither standard was satisfied in the case before it. The information was not relevant to the charge under investigation because the only reason EEOC wanted it was to conduct a broader investigation of UPMC’s corporate leave policy, and to find other potential claimants. EEOC offered no explanation of how the requested information might shed light on the charge under investigation. And the subpoenaed information did not arise out of the investigation of the charge, because it was clear from the facts that EEOC had not conducted any investigation of the facts related to the charge before issuing the subpoena.
 

The U.S. Supreme Court’s recent decision in Staub v. Proctor Hospital is a timely reminder of the importance of conducting thorough and objective workplace investigations. By holding that an employer may be liable based on the discriminatory animus of a supervisor who influenced, but did not ultimately make, an adverse employment decision, the case resolves a split in the various U.S. Circuit Courts of Appeals concerning the so-called “cat’s paw” theory of discrimination.

Staub, an Army Reservist, sued his former employer under the Uniformed Services Employment and Reemployment Rights Act (USERRA), arguing that his termination was caused by his supervisor’s obvious hostility to his military obligations. Although the ultimate decision maker was not similarly biased, the plaintiff argued that the employer was nevertheless liable under a “cat’s paw” theory: that the unbiased supervisor was the dupe or tool of the biased supervisor. The Seventh Circuit Court of Appeals rejected the plaintiff’s argument and dismissed the case on summary judgment. The Supreme Court reversed, ruling that an employer can be liable under a “cat’s paw” theory if it can be shown that the supervisor’s bias was a proximate cause of the challenged employment action. The case was remanded to the lower court for further consideration.
 

In its decision, the Supreme Court specifically considered the effect internal investigations may have on employer liability in “cat’s paw” cases. It noted that liability may be avoided in some instances if the employer can demonstrate that the adverse action followed an independent investigation that was not tainted by the biased supervisor’s recommendation. If, however, the investigation takes into account the biased supervisor’s recommendation without independently determining that the ultimate adverse action was justified, the biased supervisor’s recommendation remains a causal factor, opening the door to liability.

In light of the Staub decision, it is critical that employers review their workplace practices to ensure that internal investigation are conducted in a thorough and objective manner. Click here for a few tips on conducting effective investigations.

Diane M. Pietraszewski contributed to this post.
 

Does this sound familiar? An employee fired for cause, who is either unable or unwilling to accept responsibility for his/her own poor performance, commences litigation claiming unlawful discrimination. The pending litigation forces the employer into a Morton’s Fork dilemma of either: (1) paying an in terrorem settlement to avoid the exorbitant costs of discovery, subsequent motion practice and potential trial; or (2) incurring the exorbitant costs of discovery, subsequent motion practice and potential trial to hopefully win the case several years down the road.

Unfortunately, this scenario has become all too familiar to employers. Until recently, the predicament facing employers has largely been a function of the ease with which a would-be plaintiff employee may patch together a complaint and survive a motion to dismiss. Indeed, forcing an employer into time consuming and expensive litigation has been merely a matter of asserting the following conclusory, false syllogism: (1) I am a member of a protected class (as is literally everyone); (2) I was terminated from my job; (3) therefore, I was terminated from my job because I am a member of a protected class.

Fortunately, however, two recent cases from federal courts in New York may evidence an emerging trend of taking a more favorable view of motions to dismiss in employment discrimination cases, a trend that may help employers avoid the difficult choice between settling early or enduring the expense of prolonged litigation 

In Zucker v. Five Towns College, the plaintiff was a 69 year old college admissions recruiter. After being terminated by the College, Mr. Zucker sued alleging unlawful age discrimination. While the College sought dismissal of Mr. Zucker’s claims by filing a pre-answer motion to dismiss, Mr. Zucker tried to avoid dismissal by arguing that the mere fact his replacement was younger than him was sufficient to entitle him to discovery. Citing the College’s arguments, United States District Judge Joanna Seybert rejected Mr. Zucker’s argument. Judge Seybert held that in order to survive a motion to dismiss, a plaintiff is required to plead concrete facts demonstrating that the employment decision was motivated by discriminatory animus as opposed to what could be a whole array of legitimate considerations. Judge Seybert also held that being replaced by someone outside of the plaintiff’s protected class does not, standing alone, salvage a claim:

[I]f such barebones allegations sufficed to state a claim, then any time an ADEA-covered employer terminated an employee over age forty, the employer would be unable to replace that employee with someone younger without exposing itself to potential liability for age discrimination. And Defendants similarly argue, correctly noting that every employee is a member of multiple protected classes. Thus, unless a terminated employee is being replaced by a virtual clone, his/her replacement will almost certainly be outside of one of the Plaintiff’s protected classes (e.g., could be younger and/or a different gender, race, religion, national origin). The Court agrees with this reasoning. And the Court has no desire to abrogate [Federal Rule of Civil Procedure] 8’s gate-keeping function in employment discrimination cases, enabling nearly every fired employee to subject his employer to burdensome, expensive discovery.

More recently, and relying on Judge Seybert’s decision in Zucker, Judge Colleen McMahon in the Southern District of New York granted a motion to dismiss a race discrimination claim in Ochei v. Mary Manning Walsh Nursing Home Co. Judge McMahon specifically rejected the “false syllogism” that a decision to terminate someone’s employment necessarily flows from his/her protected class. Rather, according to Judge McMahon, the complaint must plead specific facts demonstrating the causal connection between the adverse action and the protected class:

Where there is no reason to suspect that an employer’s actions had anything to do with membership in a protected class, other than plaintiff’s bald assertion that she was a member of such a class, and the people who made decisions about her employment were not, no claim is stated. 
                                                                              ***
To protect employers from precisely this sort of untenable situation, naked assertions by plaintiff that some protected demographic factor motivated an employment decision, without a fact-specific allegation of a causal link between defendant’s conduct and the plaintiff’s membership in a protected class, are simply too conclusory to withstand a motion to dismiss.

The decisions in Zucker and Ochei should give employers pause before quickly settling cases or plowing straight into expensive discovery. While a pre-discovery motion to dismiss may not always be available, such a motion should be given careful consideration.

Jessica Satriano contributed to the writing of this post.
 

After more than five years of litigation, a defendant school board member was recently awarded over $136,500 in attorneys’ fees and costs from the plaintiff’s counsel in an employment discrimination case. An employer’s recovery of its attorney’s fees in an employment discrimination case is a fairly rare event. Under the federal anti-discrimination laws, when an employee sues his/her employer for discrimination and wins, the employee is considered to be the “prevailing party” and is therefore entitled to recover the reasonable amount of attorneys’ fees incurred in proving that he/she was unlawfully discriminated against. When the sued employer wins, the employer is likewise the prevailing party. However, the employer is generally not able to recoup the attorneys’ fees that were incurred in defending the claims. The policy behind this rule is a belief that an individual who has meritorious discrimination claims may nonetheless chose not to sue to enforce his or her rights out of fear that the individual may lose and have to pay the former employer’s attorneys’ fees. For that reason, the law builds in extra hurdles which victorious employers must overcome. For a prevailing defendant employer to be awarded fees, the employer must typically show that the claim was frivolous and should never have been brought in the first place. In other words, it must show that the employee’s claim had no foundation in either law or fact.

In Capone v. Patchogue-Medford Union Free School District, one of the defendants made that showing. The case arose when an employee terminated by a school district for misconduct sued the district and individual Board of Education members claiming that his termination violated the anti-discrimination laws. One of the Board members sued was Tina Marie Weeks, who had actually voted against terminating the employee. Throughout the litigation, Ms. Weeks argued that the discrimination claims brought against her were frivolous. Ms. Weeks’ attorneys repeatedly put the plaintiff’s attorney on notice of that position, citing binding caselaw, and further advised the attorney that if the frivolous claims were not withdrawn, Ms. Weeks would seek a full fee shift against the plaintiff and his counsel. The frivolous claims were not withdrawn and Ms. Weeks moved for an award of the full amount of attorneys’ fees incurred by her during the litigation. The District Court granted the motion, and ordered plaintiff’s counsel to pay Ms. Weeks over $116,000 in attorneys’ fees and $20,500 in litigation costs.

Hopefully, the Capone decision will serve as a deterrent to future frivolous litigation. When defendant employers are faced with frivolous claims, plaintiff’s counsel should be put on notice, in writing, early on in the litigation and frequently thereafter that their case is frivolous in fact and law. Plaintiffs’ counsel should further be advised that both counsel and the client may be subject to a full fee shift if the frivolous case is not withdrawn. If they do so, defendant employers may be spared the cost of litigating claims which should never have been brought.
 

Last month, New York’s Appellate Division, Second Department determined that offering health insurance coverage to employees’ same-sex domestic partners, but not to opposite-sex domestic partners, does not necessarily constitute sexual orientation discrimination. Putnam/Northern Westchester BOCES v. Westchester County Human Rights Commission.

The case arose when the Joint Governance Board of the Putnam/Northern Westchester Board of Cooperative Educational Services, which provides health care benefits to employees of school districts in Putnam and Northern Westchester counties, extended health care benefits to same-sex domestic partners. Thereafter, a teacher in the Croton Harmon Union Free School District sought coverage for her opposite-sex domestic partner. The Board denied the request, and the teacher brought a claim before the Westchester County Human Rights Commission, alleging discrimination based on marital status and sexual orientation. The teacher prevailed in a hearing before a Human Rights Commission Administrative Law Judge, and the Board commenced a proceeding to overturn the Commission’s determination. The Appellate Division, Second Department did so. The Court concluded that the Board decided to offer the benefit only to same-sex partners because same-sex partners could not lawfully marry in the State of New York, and so could not obtain the benefits offered to employee spouses. Because that was the reason for the Board’s action, the Court concluded the action was not the result of sexual orientation discrimination. The Court also overturned the Commission’s finding of marital status discrimination, because the benefits sought by the teacher did not turn on marital status. In fact, the benefits she was seeking were made available to unmarried couples.
 

Miriam Regalado and her fiancée Eric Thompson worked for North American Stainless (NAS). Regalado filed a sex discrimination charge against NAS with the EEOC. Three weeks later, NAS fired Thompson. Those were the facts presented to the United States Supreme Court when it unanimously decided on January 24, that Thompson could bring a Title VII retaliation claim against NAS even though Thompson never engaged in Title VII protected activity. The Supreme Court’s holding in the case, Thompson v. North American Stainless, LP, effectively broadens the scope of Title VII’s anti-retaliation provisions to protect individuals who have a significant association with or relation to employees who have engaged in protected conduct.

Of course, Title VII makes it illegal for an employer to “discriminate” against an employee who files a charge with the EEOC. But Thompson never filed a charge, Regalado did. The Court surmounted this difficulty by finding that Title VII’s anti-retaliation provision should be construed to prohibit a broad range of employer conduct – a range of conduct much broader than actions which affect the terms and conditions of employment of the employee who filed the charge. Quoting from its decision in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006), the Court reiterated that “discrimination” under the anti-retaliation provision includes any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court then concluded logically that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.” The Court acknowledged that its decision might create difficulty in determining precisely which types of relationships will be sufficient to conclude that retaliation against the third party would dissuade the individual who engaged in protected activity, but declined to provided a bright line rule. It stated that firing a close family member will “almost always” meet the standard, and retaliating against a “mere acquaintance” will almost never meet it, but declined to provide further guidance.
 

Finding that the firing of Thompson could be illegal retaliation against Regalado, did not, however, end the inquiry. After all, it was Thompson, not Regalado, who sued for retaliation. To answer the question of whether Thompson could bring a claim against NAS, the Court had to determine what the term “person aggrieved” means in the Title VII provision which permits a “person aggrieved” to bring an action in court. In deciding that question, the Court rejected NAS’s argument that it means the employee who was retaliated against. Instead, the Court concluded that the term means anyone with an interest which Title VII arguably seeks to protect. Thompson fell within this zone of interests because Title VII is designed to “protect employees from their employers’ unlawful actions.” Because, assuming NAS’s motive was retaliatory, NAS tried to punish Regalado by harming Thompson, Thompson was within the Title VII zone of interests. So even though it was Regalado, not Thompson, who suffered illegal retaliation when Thompson was fired, Thompson was still a “person aggrieved” who was allowed to sue. It thus appears that the zone of interests test can be satisfied any time the employer’s action against a third party constitutes prohibited retaliation, thereby allowing the third party to bring a claim.

The significance of the Court’s decision is obvious: the holding invites more retaliation claims by persons “associated with” an employee who has engaged in Title VII protected activity. Essentially, the Court has created a new protected classification, the definition of which is unclear. As a result, an employer must now carefully consider the potential for a retaliation claim any time it takes any adverse employment action against someone, particularly family members, “associated with” an employee who has engaged in protected activity.
 

Last month we posted on the EEOC’s GINA regulations and discussed the inadvertent disclosure exception and family medical history. This post follows up by discussing the impact of the regulations on FMLA certifications and by providing some recommended affirmative steps employers should take now.

As we discussed last month, the regulations recognize that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the Family and Medical Leave Act (“FMLA”) or an accommodation under the Americans with Disabilities Act (“ADA”). The regulations, however, create a “safe harbor” for employers who use the following language when requesting medical information to certify an employee’s own serious health condition under the FMLA:
 

The Genetic Information Nondisclosure Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers should not use the “safe harbor” language when they are requesting information to certify a family member’s serious health condition, as opposed to the employee’s own serious health condition. GINA includes an additional exception that allows employers to ask for “family medical history” when seeking certification of a family member’s serious health condition.

In light of the new GINA regulations, employers should take affirmative steps to reduce the risk of inadvertently obtaining genetic information about their employees, including the following:

• Update FMLA certification forms to include “safe harbor” language, when appropriate.
• Include “safe harbor” language on other requests for medical information, such as requests for documentation of an employee’s need for an accommodation and fitness-for- duty certification.
• Inform health care providers not to gather family medical history or other genetic information during fitness-for-duty examinations or during medical examinations to certify an individual’s ability to perform his or her job.
• Educate HR personnel, managers and supervisors about what constitutes protected genetic information and how to avoid making inadvertent requests for such information.
• Ensure that internal policies and procedures comply with the new GINA regulations.
• Review workplace “wellness programs” to ensure that the health assessment and other forms do not require the disclosure of genetic information without the employee’s prior voluntary, knowing, and written authorization.
• Post the new EEO poster which contains added information about GINA.
• Ensure that the genetic information, like medical information, is maintained in a confidential file, separate from the employee’s personnel file.
   

Sensibly, the EEOC does not make any effort to conceal its enforcement “playbook.” To the contrary, it publishes an annual Performance and Accountability Report so that employers and other stakeholders will have a better understanding of how the agency has used, and intends to use, its financial and human resources. The 2010 Performance and Accountability Report, released in mid-November 2010, contains the EEOC’s assessment of its performance as the federal agency with the broadest responsibility for enforcing the civil rights laws. Based on information contained in the report, a few general observations about the direction of the Agency can be made.

1. The EEOC’s Financial and Human Resources Continue To Grow.

For fiscal year 2010, the EEOC received a $367.3 million appropriation (a 7% annual increase). Most of this increased funding was used to add personnel. EEOC employed 2,385 FTE employees during 2010 (an 11% increase since 2007) and plans to grow its work force by 8% in 2011 to 2,577 FTE employees. More resources and more employees should result in more aggressive enforcement efforts by the EEOC.

2.  Greater Resources Will Enhance EEOC's Strategic Enforcement Initiative.

In April, 2006, the EEOC launched a program designed to identify, investigate, and litigate “systemic cases” – cases involving an allegedly discriminatory pattern, practice, or policy which has a broad impact on an industry, profession, company, or geographic location. This systemic initiative is one of the EEOC’s top priorities, because such cases affect large numbers of individuals.

At the close of fiscal year 2010, the EEOC was conducting 465 systemic investigations, involving more than 2,000 charges, and had completed work on 165 systemic investigations – resulting in 29 settlements or conciliation agreements that recovered $6.7 million. Systemic cases are highly complex and require greater resources (for example, expert analysis by statisticians, industrial psychologists, and labor market economists). As a result, it is likely that the EEOC will devote a substantial portion of its expanding resources and staff to its systemic initiative. The message for employers is simple. Review your written employment policies and your unwritten employment practices to insure compliance with recent changes in the law.

3.   Employers Should Seriously Consider The EEOC’s Mediation Program.

Despite its expanding resources and personnel, the EEOC has continued to struggle to meet its time target for resolving private sector discrimination charges. During fiscal year 2010, only 38.3% of the private sector charges filed with the EEOC were resolved in less than 180 days - substantially less than the EEOC’s 2010 target (48%) and much worse than its performance in 2005 (66%). In fact, the Office of Inspector General has identified the continued rise in private-sector charge inventory as one of the most significant management challenges facing the EEOC. In its defense, however, EEOC did receive a record number of discrimination charges during fiscal year 2010 (99,922).

Delays in investigating and making a determination on pending discrimination charges can have a significant monetary impact on employers. Considering that the standard remedy for disparate treatment discrimination is back pay and benefits, an employer’s potential financial exposure escalates during the time that a discrimination charge is pending before the EEOC. For that reason, an employer defending a discrimination charge should seriously consider using the EEOC’s mediation program – which has earned praise from both charging parties and employers. Indeed, during fiscal year 2010, 96.7% of all participants reported that they would use the EEOC’s mediation program in the future. Participating in the EEOC’s mediation program might produce a timely and successful resolution and will not derail or substantially delay the EEOC’s investigative process should mediation not prove successful.

A version of this post was previously published in the Rochester Business Alliance, Regional Chamber of Commerce Newsletter for January/February 2011.

 

GINA, the Genetic Information Nondiscrimination Act, took effect more than a year ago. Last month, the EEOC issued final regulations on GINA, as well as question and answer guidance on what the regulations mean for employers. The regulations are effective January 10, 2011. Most employers will not deliberately seek specific genetic information about employees or applicants and will not ever have to worry about many aspects of GINA. Because, however, GINA defines the term “genetic information” to include family medical history, the statute and regulations do raise some practical concerns for many employers who may end up with such information unintentionally. This post discusses those practical concerns.

What Does Gina Prohibit?

GINA was passed out of concern that employers might obtain information about an individual’s genetic predisposition toward certain medical conditions and use that information to weed out individuals who might create a future risk of increased costs based on potential disease. GINA prohibits an employer from discriminating in any term or condition of employment based on an employee’s or applicant’s “genetic information.” It also prohibits an employer (with narrow exceptions) from requesting, requiring or purchasing genetic information.

Practical Concerns: Family Medical History

Some of you reading this are no doubt thinking that you need not worry about GINA because your organization never asks employees for their genetic information. Even if your organization does not do so, you still have to be concerned about GINA. The term “genetic information” includes an employee’s or applicant’s family medical history (and several other types of information). The idea is that if an employer knows an employee’s mother died from breast cancer, it will believe the employee is likely to contract breast cancer at some point, and will act on that assumption to the employee’s detriment. And employers are very likely at some point to come into possession of information about employees’ family medical history, either through an otherwise legitimate request for employee medical information or through happenstance. GINA’s regulations deal with both situations.

The “Water Cooler” Exception

Both the statute and the regulations contain an exception to the ban on obtaining genetic information when the information is obtained inadvertently. This so called ‘water cooler” exception was designed to cover a supervisor who accidentally comes into possession of information about family medical history, for example, when she overhears an employee talking about family medical history. The exception also applies, however, when a supervisor receives information about family medical history in response to a general question about the well being of an employee or an employee’s family member, for example, in response to questions like, “how are you?” or “how’s your daughter?” The inadvertent acquisition exception also applies to information obtained through social media, for example where a supervisor and employee are connected on a social networking site and the supervisor thereby obtains information about family medical history posted on the site by the employee.

Legitimate Requests for Employee Medical Information

Employers may also come into possession of family medical history when an employee’s health care provider sends the information to the employer in connection with an entirely legitimate employer request for employee medical information. The inadvertent disclosure rules can also apply to information obtained in this fashion, but employers should take special precautions. The regulations state that when an employer makes a lawful request for employee health information (for example to support an employee request for an ADA reasonable accommodation, or to support a claim for sick leave) the employer should warn the employee and/or the health care provider not to provide genetic information, including family medical history. The regulations contain suggested language for the warning. The warning should be in writing, but may be oral if the employer does not typically make requests for employee medical information in writing. Failure to provide the warning does not mean that the employer has violated GINA, but, if the employer receives family medical history in response, it will be required to show that it did not make the request in a way that was likely to result in the employer obtaining family medical history or other genetic information. Because the employer will have that burden if it does not provide the required warning, it is prudent to use the recommended warning language.

An employer may also come into possession of information about family medical history when it obtains the results of a post-offer medical examination or a fitness-for-duty examination. GINA prohibits an employer from requesting family medical history in connection with such an examination. Moreover, the regulations require an employer to give a written warning not to provide such information to the health care provider conducting the examination. If the health care provider gives the employer such information anyway, the employer is required to take reasonable steps to ensure it does not happen again.

FMLA Leave to Care for a Sick Family Member

The regulations permit an employer to receive family medical history information when the employee has requested FMLA leave to care for a family member with a serious health condition, and the employer seeks substantiation of the need for leave.

Confidentiality Obligations

If an employer does come into possession of family medical history information, it must keep that information confidential, and may only disclose it under limited circumstances. While the information cannot be maintained in the employee’s personnel file, it may be stored in an employee’s separate ADA file.
 

Several news stories over the past few weeks illustrate the potential expense and embarrassment public and private sector employers can experience from a class action employment discrimination lawsuit.  In the private sector, class action discrimination claims have been pursued with increased frequency over the past five years. These lawsuits have proven to be costly for both large and smaller employers. For example, the Rochester Democrat and Chronicle reported on August 10, 2009, that Elmer W. Davis Company, a commercial roofing contractor in Upstate New York, entered into a consent decree under which it agreed to pay $1,000,000 to resolve a class action race discrimination lawsuit brought by the Equal Employment Opportunity Commission. Msnbc.msn.com reports that the million dollar payout was the largest EEOC settlement ever in the Rochester area.

Elmer W. Davis Company’s settlement can now be added to a long list of multi-million dollar class action settlements. Large class action settlements have affected many national employers in virtually every type of business, including Coca-Cola ($192 million), Texaco ($176 million), State Farm Insurance ($156 million), Home Depot ($104 million), Federal Express ($55 million), Abercrombie & Fitch ($50 million), and Wal-Mart ($17.5 million). Many of these settlements have received considerable publicity and, as is the case with the Elmer W. Davis Company’s settlement, required these companies to implement training, monitoring, and other remedial programs in addition to making large settlement payments to the plaintiff class and its counsel.
 

These potential class action problems are not limited to private sector employers. Forbes.com recently reported that the federal government is defending itself from a class action discrimination claim brought by representatives of applicants for temporary census taker jobs. The plaintiff group, which potentially consists of up to 100,000 minority applicants, alleges that the U.S. Census Bureau discriminated by rejecting applicants with criminal records. The complaint was filed in the Southern District of New York in March 2010 and challenges, among other things, the U.S. Census Bureau’s alleged practice of rejecting applicants with arrest records, even when those arrests did not result in convictions. The complaint was recently amended and now also relies upon a letter that the EEOC’s former Acting Chair Stuart Ishimaru apparently sent to the Census Bureau in July 2009 after his agency received inquiries from many applicants who claimed to have been disqualified because of their prior arrest records. The complaint states that Mr. Ishimaru warned in his letter that the information the EEOC had gathered suggested that the “Census Bureau’s approach [was] overbroad and may run afoul” of Title VII.

The Daily Labor Report and Law 360° have also reported over the past few weeks on a number of other class action discrimination cases in which employers are facing multi-million dollar claims; these reports indicate that the employers have received mixed results in these cases. All of these cases highlight the need for employers of all sizes, in all industries, to take steps to address and to minimize potential class action discrimination problems. These steps can include implementing preventative and compliance measures, such as internal audit and review of hiring, promotional, and termination policies, and implementing procedures and safeguards for identifying and promptly responding to troubling claims involving pattern and practice discrimination allegations or multiple similarly situated employees.