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In a recent Letter of Determination, the U.S. Equal Employment Opportunity Commission (“EEOC”) found probable cause to believe an employer violated the Title VII rights of a transgender employee when it excluded coverage for “transgender treatment/sex therapy” services from its medical benefit plans.  Specifically, the EEOC determined that denying coverage for transition-related services constituted sex…

This next installment of our ongoing series takes a closer look into the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues. Last week, we discussed the EEOC’s changing views regarding the elements of a retaliation claim. This week, we delve deeper into the EEOC’s proposed guidance, exploring the agency’s attempt to expand the so-called “participation clause,” and to broaden the definition of protected opposition conduct. We will also examine what, in the EEOC’s employee-friendly estimation, constitutes an adverse employment action in the retaliation context.

Expansion of “Participation Activity”

Perhaps the most noteworthy aspect of the EEOC’s proposed guidance is the agency’s expansive interpretation of “participation activity.” As discussed last week, in order to prove a claim of retaliation, a plaintiff must first show that (s)he engaged in a “protected activity.” Protected activity, in turn, consists of either “opposition activity” or “participation activity.”
Continue Reading EEOC Guidance on Retaliation: An Unprecedented Interpretation of Federal EEO Law

This installment of our ongoing series on federal regulatory actions impacting employers examines the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues.

The proposed update would replace the 1998 version of the EEOC Compliance Manual on Retaliation and address the courts’ significant rulings in the decades following the current Manual’s publication. This Manual is particularly significant as the percentage of EEOC charges alleging retaliation has virtually doubled since 1998. Today, retaliation is the most frequently alleged basis of discrimination. 
Continue Reading EEOC Guidance on Retaliation: Make It Easier For Employees To Prove Their Case

Julia Fradkin contributed to the content of this post.

The latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) hit the shelves of doctors’ offices and has created additional headaches for employers already struggling with accommodating claimed mental disabilities. The DSM-5 is the standard classification of mental disorders used by mental health professionals and is the single most important guide in diagnosing mental disorders. The newest edition replaces the DSM-IV, in operation for almost two decades, and it supposedly “better characterize symptoms and behaviors of groups of people who are currently seeking clinical help but whose symptoms are not well defined by DSM-IV.”Continue Reading ‘New’ Mental Disorders To Spark Increased ADA Accommodation Requests

May 28th marks the anniversary of the effective date for the Lilly Ledbetter Fair Pay Act, the first bill signed into law by President Obama.  The Act sparked renewed focus on improving wage-equality for the American workforce and continues to be an important  goal for administrative agencies such as the Equal Employment Opportunity Commission. …

In an April 20, 2012 decision, the Equal Employment Opportunity Commission (“EEOC”) solidified its intended protection of transgender employees under Title VII of the Civil Rights Act of 1964. The EEOC made it clear that an employer that discriminates against an employee or applicant on the basis of that person’s gender identity violates Title VII’s sex discrimination prohibitions. Because transgender people lack protection from adverse employment decisions in 34 states, this EEOC decision is a watershed moment for the transgender community. It also highlights the broad range of protected categories that could subject employers to more liability for discrimination.
Continue Reading Transgender Protection Under Title VII Announced by EEOC

The "new" guidance — accessible at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm — reinforces longstanding EEOC policy prohibiting employers from using arrest and conviction records to exclude individuals from employment. More recently, the EEOC has expanded enforcement efforts to include prohibitions on employer policies that exclude candidates from employment because of criminal history, arrests, and convictions. That is because such policies adversely affect or have a "disparate impact" on minority populations that have statistically higher arrest and conviction rates. The disparate impact analysis has long been used to combat race discrimination in the workplace. The "takeaway" messages for employers are in the EEOC’s specific recommendations and stated limitations on how and when criminal background information can be used. Starters are that it must be a conviction, not an arrest, and the conviction must be for an offense related to the job in question, often a tough analysis for employers. The conviction must be relatively recent in time and be of a sufficient gravity to create legitimate concern by the employer.Continue Reading EEOC “New” Guidance on Arrest and Conviction Records