Posted tagged ‘legal trends’

A Review of the US Supreme Court Seen as Split when it comes to Employer/Employee Lawsuits

October 4, 2010

July 27, 2010

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.

While his majority percentage may suggest to some willingness to compromise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.

This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests. The nine employment-related decisions issued by the Court this term included:

  • Two ERISA cases (Conkright, Hardt);
  • Two attorneys’ fees cases (Perdue, Hardt);
  • Three arbitration cases (Stolt-Nielsen, Rent-a-Center West, Granite Rock); and
  • Important proclamations regarding: authority of the two member National Labor Relations Board (New Process Steel), timeliness of discrimination charges (Lewis), and privacy rights (Quon).

These decisions demonstrated that the Court’s conservative justices continue to play a dominant role, a trend that will likely continue at least through the next term with the pending retirement of Justice Stevens. Of these nine decisions, five were decided 5-4 or 5-3, with the conservative block constituting the majority in all but one.

The remaining four decisions were generally unanimous, with the exception of a partial dissent in Granite Rock. Of the nine decisions, five are viewed as generally favorable to employers; of the remaining four, viewed as favorable to employees, three were essentially unanimous, including the Granite Rock ruling against the viability of a new federal cause of action for tortious interference under § 301(a) of the Labor Management and Relations Act.

One landmark unanimous decision, Lewis v. City of Chicago, Case No. 08-976 (May 24, 2010), held that a plaintiff who does not file a timely charge challenging employment practice may nevertheless assert a disparate impact claim. The opinion marks a notable departure from Scalia’s concurrence in Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) during the Court’s 2008-2009 term.

At that time, Justice Scalia flirted with the notion that disparate impact claims were inherently in conflict with the “disparate treatment” prohibition of Title VII and the Equal Protection guarantees of the United States Constitution which prohibit intentional race-based decision making. He noted that Title VII’s disparate impact provisions often require “employers to evaluate the racial outcomes of their policies, and to make decisions (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.” Id. at 2682.

Scalia’s unanimous opinion in Lewis makes no mention of his prior comments in Ricci and expresses no misgivings about the viability of disparate impact claims generally, where there is no issue or claim pending that an employer’s attempt to remedy or protect against a disparate impact has resulted in potentially discriminatory race-based decision.


Retaliation Claims Take Number One Spot in EEOC Complaints

October 4, 2010

July 27, 2010

Employers beware, the need for credible complaint procedures underscored as current trends show a marked increase in complaints related to retaliation in filings with the Equal Employment Opportunity Commission (EEOC) has raised exponentially and workplace audits have ramped up to levels we’ve not seen in years.

According to EEOC data, retaliation charges more than tripled between 1992 and 2009 and now comprise 36% (93,277) of the total charges filed, making it the number one complaint filed with the EEOC.  The EEOC is the federal agency responsible for enforcing employment discrimination laws including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). 

The reason for the rise in retaliation claims is simple – they are easier to prove and the damage awards are often higher than claims of discrimination.  Retaliation claims typically assert that an employer took some adverse action against an employee because the employee exercised a legal right, such as filing a discrimination claim.  Courts often rule in favor of employees in the retaliation part of their lawsuits, even when the underlying discrimination claim is dismissed. 

Generally, unlawful retaliation occurs when an employer treats an employee differently for exercising rights under one or more of the various state or federal statutes. To prove unlawful retaliation an employee is required to establish that (1) the employee engaged in a protected activity, (2) the employer took some adverse employment action against the employee, and (3) a casual connection existed between the protected activity and the adverse employment action.  

To establish that an employee engaged in a protected activity, an employee must show that he or she (a) participated in an activity protected by law (Such as, filed a charge of discrimination, testified in support of another employee, or participated in an investigation.) or (b) opposed an unlawful employment practice.

A common example of retaliation is when an employee bypasses the company, and files an EEOC claim that accuses the supervisor of being a discriminatory behavior.  The law requires that the company treat the subordinate employee as if nothing happened, and as if the accusation was never lodged.  Obviously, a supervisor who feels unfairly accused will want to strike back at the employee that made the accusation. “Striking back” constitutes retaliation. 

The criteria for making retaliation claims follow a relatively low standard as established by the Supreme Court in the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White.  The Supreme Court held that an “adverse action” is any action by an employer that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court noted that, unlike discrimination which focuses on characteristics of a group, retaliation claims focus on the conduct of the individual.  The Court’s expansive view of what constitutes an “adverse action” allows employees to claim that almost any action taken by an employer is retaliatory, if that action deters a reasonable employee from coming forward with a complaint. 

Proactive and preventative measures taken by the employer limits even the illusion of systemic retaliatory actions.  Through meaningful and consistent management practices, the following guidelines serve to protect employers and provide a meaningful solutions-oriented workplace when issues arise:

  1. Prepare and disseminate to every employee a written internal procedure for filing a complaint.  If the current anti-discrimination policies do not address retaliation, then amend to include a non-retaliation statement that encourages employees to come forward with complaints of unlawful conduct without fear of reprisal.
  2. Train Supervisors on what constitutes retaliation and how to avoid treating employees differently.  Managers, team leaders, supervisors, etc., must be regularly trained and should understand that negative reaction to a complaint will only make the problem worse and may lead to a retaliation claim. 
  3. Conduct a thorough and unbiased investigation of every claim.  Employees should not be ignored or ostracized and the absence of an investigation has been found to be a form of retaliation.  Therefore the employer should explain the policy against retaliation and procedures for resolving a complaint to include continued assistance if the employee experiences additional problems.  All discussions with the employee should be documented — one meeting may not be enough.  It is a good practice for employers to follow up with the employee and ask whether there have been any further problems after an employee comes forward.
  4. Properly Document Complaints.  Regardless of where or how the complaint was received, it is vital that the employer document when the complaint occurred and when the supervisor became aware of the complaint, who was involved, and what the complaint entails (for example, when documenting the conversation get direct quotes from the employee if possible.)  It should be the employer’s general practice to thoroughly document all employee performance issues.  This practice also allows the employer to demonstrate that any subsequent performance problems are justified and not as a result of alleged retaliation.

Accommodating an employee that has made a complaint can sometimes be difficult, especially when that employee is believed to be a “problem employee” or the employee’s claim has no merit.  Many management teams are made up of top technical talent; however, most are not properly developed to manage people. Such a serious gap poses risk as evidenced by the marked increase in workplace audits relating to employee management. By consistently following written procedures and policies, training management teams, and by exercising caution and restraint, employers can effectively reduce the risks associated with the rise of retaliation claims.

President Issues Executive Order to Increase Federal Employment of Individuals with Disabilities

October 4, 2010

July 27, 2010

Despite a strong economy, the passage of landmark legislation, the Americans With Disabilities Act (ADA), government tax incentives, and a record low unemployment in the 1990s, the employment rate of individuals with disabilities actually decreased. Now, with unemployment looking to be a continuing issue for the American worker, individuals with disabilities may find it even more difficult to obtain employment.

According to the U.S. Census Bureau, about 54 million Americans—or approximately one out of five—have some kind of disability and 26 million of those individuals—or approximately one out of 10—have a severe disability. In the prime employable years of 21 to 64, 82% of Americans without a disability have a job or business compared with 77% of those with a non-severe disability and 26% of those with a severe disability.

To address the issue, July 26, 2010, President Obama addressed a ceremony honoring the 20th anniversary of the Americans With Disabilities Act, calling it “one of the most comprehensive civil rights bills in the history of this country.”

“Not dependence, but independence,” Obama said. He then signed an Executive Order intended to establish the Federal Government as a model employer of individuals with disabilities. The order directs several federal agencies to design model recruitment and hiring strategies for agencies seeking to increase their employment of people with disabilities, as well as mandatory training programs for both human resources personnel and hiring managers on the employment of individuals with disabilities.

The White House described the new order as a means of fulfilling a “… pledge by the President to have the federal government be a model employer of people with disabilities.  … and establishes mechanisms such as mandatory training for hiring managers, requires preparing of strategic plans by agencies to be approved by OPM and OMB, requires OPM to develop model guidelines and assistance for hiring people with disabilities, reporting to the President about progress, and publicizing results on a website as a way to promote transparency.”

The Fair Labor Standards Act (FLSA), which establishes the federal minimum wage and overtime pay requirements, contains a provision allowing for the employment of individuals with disabilities at special minimum wages (SMW).

A SMW is a commensurate wage paid a worker with a disability that is commensurate with that worker’s individual productivity as compared to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the vicinity where the worker with a disability is employed. Payment at SMWs is only permitted under certificates issued by the Wage and Hour Division (WHD) of the DOLs Employment Standards Administration.

Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations from discriminating in employment against qualified individuals with disabilities.

Title II of the ADA prohibits state and local governments from discriminating against qualified individuals with disabilities in programs, activities, and services. As a matter of practice, each agency requires federal contractors to comply with these provisions in all qualified contracts.

ADA is primarily enforced by the Equal Employment Opportunity Commission (EEOC), an independent federal agency.

Department of Labor reaffirms commitment to the ADA’s principles

October 4, 2010

The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in employment, public services, public accommodations, and services operated by private entities, transportation, and telecommunications for individuals with disabilities. As stated in the act, its purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

According to Sheridan Walker, President HirePotential, Inc., a study to understand the effect of accessible technology for the general population (with or without disabilities) was conducted by Forrester Research Inc. (2003) “In the United States, 60% (101.4 million) of working-age adults who range from 18 to 64 years old are likely or very likely to benefit from the use of accessible technology.”

With the enactment of the Health Information Technology for Economic and Clinical Health (HITECH) Act as part of P.L. 111-5, the economic stimulus bill that the President signed into law on February 17, 2009, Internet accessibility issues are about to become increasingly topical. Last week the President and Department of Labor demonstrated this fact as they announced initiatives to begin a systematic focus on ADA accommodations and accessibility progress since the law went into effect twenty years ago.

An event on Friday to celebrate the 20-year anniversary of ADA provided a unique opportunity for the Department of Labor to reaffirm its commitment to the ADA’s principles of equality, access, and inclusion; and to commit itself to ensuring that the goals of a diverse workforce and good jobs for everyone includes workers with disabilities. The keynote speaker for the event was former United States Congressman Tony Coelho, an author and sponsor of the ADA and Board Chair of the American Association of People with Disabilities (AAPD), who shared his thoughts on the impact of the ADA and the importance of initiatives designed to increase the effectiveness of the Act.

Congressman Coelho’s comments are further substantiated by a recent poll conducted to learn more about the opinions of people with disabilities, their family members and individuals who work with people with disabilities, the government sought information about how well the ADA is being implemented in their communities. Overall the results indicated that the majority of the more than 3500 respondents indicated that while they saw progress over the past 20 years, barriers to community participation and employment continue.

When asked if accessibility will become a part of the OFCCP assessment as it relates to the on-line application process, Patricia Shiu, Director of OFCCP responded, “Yes – on-line accessibility is one of the OFCCP’s focus initiatives. We consider it a critical element in ensuring that all applicants and employees have equal access to employment opportunities.” Currently, all Federal Agencies must have Section-508 Compliant web sites, and that includes anyone the Federal Government uses as a supplier/vendor.

In response, Naomi Levin from OFCCP said that “OFCCP will retain and investigate individual complaints involving a contractor’s online application system.”

The focus on accessibility is given credence by the DoJ who have long affirmed that web sites can be “places of public accommodation” and the lower courts have held that inaccessible web sites can give rise to ADA violations. A consistent argument holds that it is not economically un-feasible to make web site functions accessible.

However, the ADA, enacted on July 26, 1990, prior to widespread use of the Internet, did not specifically cover the Internet and the issue of coverage has not been definitively resolved. Although the Supreme Court has not addressed this issue there are some lower court case decisions that directly discuss the ADA’s application to the Internet.  Yet those decisions vary in their conclusions about coverage.

In Martin v. MARTA, Judge Thomas W. Thrash, Jr. stated in his order that “MARTA can do a better job of making information available in accessible formats.” The judge stated that although MARTA did provide information to people with visual impairments over the telephone, this service was not equivalent to that provided over the Internet to non-disabled passengers. Although MARTA is attempting to correct accessibility issues on its Internet site, Judge Thrash found that “MARTA must deliver on its promises”. “Until these deficiencies are corrected,” the judge stated, “MARTA is violating the ADA.” 

To attend to the shortcomings of compliance efforts, a directive for Evaluation of Online Application Systems was issued requiring online application systems to be accessible to persons with disabilities last month.  Although there is no current guidance from OFCCP, it is clear that they may ultimately require extensive redesign of websites to increase accessibility. The obvious take away is that OFCCP scrutiny can, and very likely will, lead to an increase in ADA suits for web accessibility.

OFCCP intends to publish new regulations late in 2010 for Veterans and Persons with Disabilities The Proposal is likely to strengthen requirements in AAP(s) for veterans and persons with disabilities and may include placement goals for veterans and persons with disabilities (even though no data on these groups exists!)

According to Walker, “it is clear what the courts are saying, if your company does business over the web, you need to consider if your website or web based applications give a person with disabilities the same access to information as a person  without disabilities?” She further states that “just as you provide ramp access to a building, you would provide a ramp access to your on-line site.”

Walker emphasizes that there is an upside for businesses working to increase accessibility of their on-line applications.  As a result of a technical review and upgrade, businesses also increase the on-line search and document management capability of their sites, as well as to ensure consistent branding capacity and meta-data quality.

To accomplish a system review, it is important that key transactional paths are tested and all functional pages sampled to ensure full documentation towards a plan to resolve, and implement solutions for accessibility issues.

Doing a review allows a baseline document to demonstrate “good faith efforts at compliance” with accessibility requirements, and also helps to achieve a more technical and user friendly environment with a software lifecycle enhancement through:

  • The ability to map to Internal Content Standards
  • Accessibility testing built into the QA & Development Cycle
  • Integration of accessibility into Content Management System work-flow processes

One thing is for sure, to not document, results in conciliation agreements issued by OFCCP and no longer will a more generalized outreach be sufficient.

You can connect with HirePotential by contacting Kelly Egan, Vice President Business Development or by visiting their website, The Leader in Integrating the Untapped Workforce

Affirmative Action in 2010 and Beyond: Enforcement and Compliance Strategies

October 4, 2010
July 26, 2010

In March, the Office of Federal Contract Compliance Programs (OFCCP) released its fiscal year 2011 budget request, along with its enforcement initiatives for 2010. The message is clear: OFCCP is better funded, more sophisticated, and more motivated than ever to aggressively enforce affirmative action rules and focus on systemic discrimination. Government contractors are well advised to prepare themselves for more audits and settlements, as there will be a marked increase in enforcement efforts by the OFCCP against non-construction federal contractors beginning October 2010.

OFCCP received a budget of $103 million for fiscal year 2010 under the appropriations legislation signed by President Obama on December 16, 2009. This amount was an increase of over $21 million from the fiscal year 2009 budget allotment of $82.1 million. For 2011, OFCCP has requested $113 million, a $10 million increase over 2010. With this increase in budget, OFCCP is in the process of significantly increasing its workforce and plans to increase the number of compliance evaluations by 20% in 2010.  Now, more than ever, the consequences for non-compliance places a bull’s eye on your company and can be serious: fines, negative publicity, potential civil lawsuits, and even debarment for severe cases.

“Compared with years past, OFCCP more quickly and accurately screens contractor establishments for indicators of potential discrimination … OFCCP is monitoring a larger portion of the federal contractor universe than it has in the past…We are proud of these results which demonstrate our commitment to enforcing the law,” said Charles James, deputy assistant secretary for OFCCP.

According to the OFCCP, the majority of ARRA funding and grants provided federal assistance to construction projects and therefore, special emphasis was placed on the construction industry beginning July 2009.  Their goal was to review a minimum of 360 construction contractors and 90 supply and service contractors, including at least 10% of first-time federal contractors.  These reviews are followed by quarterly compliance evaluations expected to last through September 30, 2010. If a non-construction firm, do not breathe a sigh of relief yet.  Keep in mind that once this period is over, the increased funding and staff will continue to be retained…

Diligent compliance analysis, to preserve privilege and anticipate likely audit concerns, can assist not only in improving overall compliance, but also in assuring that the company is getting the most out of its human resources program.  By understanding the most common compliance failures related to data retention and analysis, Business and HR Leaders can be better equipped with the ability to fully implement a compliant program and to successfully handle an audit.

A fact sheet with additional information about OFCCP’s enforcement results is available on its Web site at