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by M. McClure on Oct 8, 2013 at 9:09 AM

EEOC The federal government shutdown continues, and although the EEOC offices are impacted by the closure, the requirement for an employee to file a charge of discrimination within 180 days of the discriminatory conduct remains.

According to the EEOC shutdown notice, which can be found on the EEOC website at http://www.eeoc.gov/eeoc/shutdown_notice.cfm, there are currently only a limited number of services available during the shutdown. Although many of the services provided by the EEOC are currently unavailable, the clock is still running for employees who are seeking to file a charge of discrimination against an employer. Thus, In Arkansas, the requirement to file a charge within 180 days of the discriminatory conduct is still in effect.

The EEOC's mediation services and the EEOC's litigation efforts are suspended during the shutdown.

 

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by M. McClure on Apr 8, 2011 at 2:31 PM

EEOC deadlines for discrimination litigationIn a recent case, Frazier v. Vilsack, the Eighth Circuit upheld the dismissal of a Title VII racial discrimination case filed one day after the expiration of the statute of limitations.  This is a clear example of how seriously courts take deadlines.  In Frazier, the employee filed his lawsuit against a government employer 96 days after the EEOC mailed him the right-to-sue letter.  Under Title VII, an employee has 90 days from the time the notice is received to file suit against the employer. 

The district court found that the right-to-sue letter did not arrive until five days after the date the letter was issued.  Therefore, the employee did not file his suit for 91 days, one day past the statute of limitations.  The Eighth Circuit noted that it was not clear whether Title VII’s statute of limitations were jurisdictional or an issue of equitable tolling, but that it did not matter.  One day late is still too late.  The employee tried to argue that he didn’t receive the right-to-sue letter until after March 18th, the day the trial court found the letter arrived, but could not provide evidence to support his claim.  He also argued that he did not always open his mail on the day it arrived, and therefore would not have had notice until after the 18th.  The Court held that such arguments had no impact on the statute of limitations.  

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by M. McClure on Jan 30, 2010 at 3:41 PM

Title VII prohibits gender discrimination based on appearanceWithout being told by their lawyers, most employers know that they shouldn't fire an employee because she's not "pretty." Some employers need a little additional coaching. 

In 1989, the US Supreme Court found that gender stereotyping was a violation of Title VII.  In Price Waterhouse v. Hopkins, the Supreme Court considered whether gender stereotyping disadvantaged a woman with a masculine appearance and mannerisms when compared to men. 

But, does discrimination occur when a female manager fires a female employee because she doesn't have a "Midwestern girl look"? That's just the question the Eighth Circuit recently answered in Lewis v. Heartland Inns.

In Heartland Inns, the plaintiff, Lewis, was by all accounts an excellent employee, and her supervisor recommended Lewis for a promotion to the hotel front-desk during the day shift. Lewis was in the new position for a month when a more senior manager, also female, visited the hotel. The senior manager did not believe that Lewis had the right "Midwestern girl look" for the front desk, and in the past the senior manager had stated that the Heartland staff should be "pretty," particularly at the front desk.  Upon meeting Lewis, the senior manager insisted on conducting her own interview of Lewis, although Lewis had already been in the front desk position for over a month.  

As might be expected, the interview did not go well.  The accounts of the interview varied between Lewis and the senior manager, but the result was Lewis' termination.

The Eighth Circuit reasoned that Lewis did not need to prove that she was disadvantaged in comparison to men, but instead, the court found that "the principle focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole." Therefore, there was no need to show that Lewis was treated poorly in comparison to men. 

Yes, this case expands the theories under which employers can be sued in the Eighth Circuit, but the rule that you should not make employment decisions based on employee's appearance really isn't news.  Unless an appearance standard is a bona fide occupational qualification (Hooters girls?), employers should just close their eyes when they make employment decisions.

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by M. McClure on Jan 16, 2010 at 8:48 AM
Filed in Discrimination | EEOC

Warning signs that the EEOC is targeting your businessThe EEOC has watched the OFCCP collect millions from employers by pursuing claims of systemic discrimination in the employers' hiring processes.  The OFCCP uses statisticians and testing specialists to uncover statistical evidence of discrimination, and this strategy has been remarkably effective for the agency. 

For the last few years, the EEOC has worked to expand individual charges into class claims, particularly in the area of failure-to-hire claims.  The EEOC will closely scrutinize any barrier to hire that the employer puts in place, such as a pre-employment tests, drug screens, or background checks. You will know that you are in the EEOC's systemic discrimination cross hairs if the EEOC issues a Request for Information (RFI) with an individual charge that requests information regarding:

  • Validation studies for pre-employment tests.
  • Hiring policy information for positions unrelated the charging party's position.
  • Background check vendors or policies.

While failure-to-hire claims are the low hanging fruit, the EEOC also looks for class claims that can be based on other seemingly neutral policies, like compensation policies. For example, if EEOC begins asking for pay data that is unrelated to the individual charge, that's a good sign that the EEOC is looking to expand the investigation outside of the individual claim. Attorneys will object to these requests as irrelevant to the charge, but the EEOC's investigative authority is broad.  The Second Circuit recently upheld the EEOC's right to subpoena nationwide records in a charged filed by an individual.  

An employer's best defense to this EEOC strategy is to get your house in order before the EEOC knocks on the door. Federal contractors who have to answer to the OFCCP are familiar with this approach and conduct self-evaluations to determine whether the company has any existing risk.  It's better to address these issues internally before a federal agency does it for you.    

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by M. McClure on Nov 13, 2009 at 12:45 PM

Prominent EEOC lawyer says pregnancy may be a protected disability under the ADAAAIt's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

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by M. McClure on May 2, 2009 at 11:28 AM
Filed in EEOC
us-eeoc-logoAn EEOC charge is administrative device though which the federal government investigates employee complaints of discrimination.  Receiving a charge seems like a big deal, but very often, it’s not.  In fact, the EEOC found evidence of discrimination or “reasonable cause” in only 4.6% of cases in 2008. EEOC.gov.  Those are pretty good odds for employers.

In Arkansas, an employee has 180 days from the alleged act of discrimination to file a charge with the EEOC.  The EEOC then asks the employer to respond to the charge, generally within 30 days, although the Little Rock office will often grant a two-week extension.  You can find a thorough explanation of the EEOC charge process at the EEOC website.

Most employers hire an attorney to investigate the charge and draft a response.  Some employers write the response in-house, particularly if the company has a human resource manager with some legal training.  The Employment Law Alliance has a great overview for drafting a charge response along with a sample response at Employment Law Alliance.

EEOC charges can also provide insight into a management issue or process problem that had not been apparent to the business owner.  Take the time to look for the underlying cause of the charge.  Is there a leadership issue that should be addressed?  Are there morale problems that need attention?  Are there policies or practices that should be updated?   By looking at the underlying cause of the charge, you may be able to prevent additional charges and improve your workplace.  

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