Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

Posts in Discrimination

Contributors

Showing 19 posts in Discrimination.

EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination

It is not uncommon for the Equal Employment Opportunity Commission (EEOC) to push the envelope by taking positions in litigation that exceed the plain language of the federal statutes that it is charged to enforce.  Indeed, in its 2013-2016 Strategic Enforcement Plan, the EEOC identified addressing of emerging and developing issues as a priority, specifically mentioning as one of those issues is the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”  On Tuesday, the EEOC took the next step in prosecuting its Strategic Enforcement Plan when it launched a pair of federal lawsuits alleging discriminatory employment practices based on sexual orientation,  -- prime examples of the agency’s tendency to interpret statutes as broadly as possible and beyond what Congress intended. Read More ›

EEOC Fires Shot At Hobby Lobby Ruling

Hot on the heels of the United States Supreme Court’s landmark ruling in Hobby Lobby, new guidelines issued by the EEOC caution employers against dropping contraceptives from employee health insurance plans or risk facing liability under Title VII of the Civil Rights Act for gender discrimination. 

In June, in Burwell v. Hobby Lobby Stores, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) protects closely held corporations from being compelled by the Affordable Care Act to provide certain forms of contraceptive coverage to its employees, if such coverage violates the owners’ sincerely held religious beliefs.  The following day, the Supreme Court issued rulings that suggested that the right not to provide contraceptive services extends beyond the specific methods at issue in the Hobby Lobby decision.  In the wake of these rulings, the question of whether employers will eliminate all contraceptive coverage from the insurance plans offered to their employees remains to be seen.   Read More ›

EEOC Issues New Enforcement Guidance On Pregnancy Discrimination And Related Issues, Despite Strong Dissenting Opinions By Two Commissioners

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a question and answer document and a “Fact Sheet for Small Businesses: Pregnancy Discrimination.”  The guidance was issued over the strong objection of Commissioners Constance Barker and Victoria Lipnic, who both released public statements in opposition.  Read More ›

Minnesota's Women’s Economic Security Act: What To Know and How to Comply

Hailed by supporters as a necessary step towards increased economic equality, the Women’s Economic Security Act (“WESA”) became law in Minnesota on May 1, 2014.  WESA passed the Minnesota House and Senate with broad bipartisan support, and many believe that the statute will level the playing field for female employees across Minnesota.  Nonetheless, as with any law that expands employee rights, WESA also imposes additional obligations on companies that employ individuals within the state.  As a result, it is important for employers to understand the specific rights that WESA creates, as well as the steps that they must take in order to comply with the new law.   Read More ›

EEOC Clarifies Position On Employer Obligations To Accommodate Religious Garb and Grooming At Work

The number of lawsuits and charges over the past few years involving claims of religious discrimination is on the rise. In March, the Equal Employment Opportunity Commission ("EEOC") issued a "rights and responsibilities" document regarding acceptable religious dress and grooming practices, an area of particular focus in several of the recent cases.  The default position of the EEOC is that in most cases, employers must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.  As for what constitutes a “religious” practice or belief, the EEOC casts a wide net to include not only practices followed by traditional organized religions, but also religious beliefs that, for example, are “new”, “uncommon” or “not part of a formal church or sect.”  Read More ›

Sixth Circuit Refines Heightened Standard Applicable To Discrimination Cases In The Context Of Reduction In Force

For years, employers executing reductions in force have been able to rely upon the heightened standard imposed on plaintiffs alleging discrimination in the selection process to defeat those lawsuits.  A plaintiff bringing such a case in the Sixth Circuit could not establish a prima facie case of discrimination simply by alleging that they were part of a protected class, suffered an adverse employment action, were qualified for the job, and that the job was subsequently given to a person outside the protected class.  In the context of a reduction in force, a plaintiff had to present additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled him out for discharge for impermissible reasons.  See Barnes v. GenCorp, 896 F.2d 1457 (6th Cir. 1990).  Importantly, under Barnes a reduction in force occurred only where the employee was not replaced after discharge, and assigning a discharged employee's duties to a current employee in addition to his or her current duties was not considered a "replacement."  Id. at 1465.  On April 28, 2014, the United States Court of Appeals for the Sixth Circuit rendered its decision in Pierson v. Quad/Graphics Printing Corp., refining the definition of "replacement" in a way that significantly undercuts employers' ability to rely on the heightened standard set forth in Barnes.  Read More ›

If You Conduct Criminal Background Checks on Your Employees and Job Applicants, Now is the Perfect Time to Review Your Criminal Conviction Policies

As part of its Strategic Enforcement Plan, the EEOC aims to eliminate barriers in hiring, including employment policies and practices that discriminate against racial and ethnic groups.   In particular, the EEOC has increased its focus on the use of criminal convictions in employment, implementing new enforcement guidance on the issue in April 2012.  It did not take long for the Commission to take an even stronger position, filing suit in June 2013 against two employers alleging Title VII violations for utilizing criminal background check policies that resulted in employees being terminated or job applicants being screened out for employment.  The EEOC also settled a race discrimination charge regarding criminal conviction records.  These cases, as well as the EEOC guidance, provide significant insight into how the EEOC analyzes criminal conviction policies and practices.   Read More ›

The Statute Apparently Means What It Says -- Supreme Court Grants Victory To Employers Facing Title VII Retaliation Suits

Last week, the United States Supreme Court issued its opinion in University of Texas v. Nassar, a highly anticipated decision that resolved the burden of proof faced by employees who are attempting to recover for retaliation under Title VII of the Civil Rights Act of 1964.  The Court rejected a more lenient “motivating factor” test, holding instead that the plain text of the statute required a plaintiff to show that their participation in protected activity, was the “but-for” cause for a subsequent adverse employment action.  This ruling will increase the likelihood that employers in such cases will prevail on summary judgment, or ultimately at trial, and hopefully will assist in reducing the deluge of retaliation cases that are being filed with the EEOC and the federal courts. Read More ›

Mothers At Work – Does Your Business Have A Lactation Policy?

With Mothers’ Day fast approaching, employers should take a moment to consider whether they have taken steps to comply with a fairly recent change in the law that affects their obligations to new mothers on the job.  In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) (29 U.S.C. §207) to require employers to provide reasonable break times and spaces for nursing mothers to express breast milk for their children.  Despite it being over three years since this law went into effect, many employers remain unaware of their legal obligations with regard to lactating mothers in the workplace.   Read More ›

Blasphemy or Common Sense: Should Employers Encourage Employee Complaints?

Employers implicitly understand that their company should have a formal procedure for employees to lodge internal complaints about matters such as sexual harassment, unethical business practices, unsafe conditions, or suspected violations of securities laws.  Such employee conduct, whether taken internally or externally, often is protected by various state and federal statutes such as Michigan’s Whistleblower’s Protection Act, Title VII of the Civil Rights Act, Sarbanes-Oxley Act, and the National Labor Relations Act.  Not all employers understand, however, that there are good reasons not only to adopt a formal complaint procedure, but to encourage employees to actually use it. Read More ›