Employment & Labor Insider

The Equal Employment Opportunity Commission has been on a tear this week, suing employers right and left, and getting some "wins" including a couple of big settlements . . .

Train-wreck boss. The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas) vacated a summary judgment decision for a Tex-Mex restaurant franchisor that had been sued by the EEOC because its franchisee was sexually harassing two employees. (Robin always says "allegedly" - why didn't she say "allegedly" this time?) According to the court's decision, the franchisee admitted that his restaurant was a "grab-assy place," that he patted one employee so hard on her bottom that she got a bruise, that he hit her, too, that he asked the other employee "to go out of town with him," and asked her "to have a child with him, but not in a 'meaningful' way," that he sent her an invitation that said, "Pants okay, but not necessary," and that he posted a sign at his restaurant "to lighten the mood" that said "Notice: sexual harassment in this area will not be reported. However, it will be graded."

Lookin' good for the EEOC, I would say!

Now it's time for your spinach: The court held that the EEOC might be able to sue the corporate franchisor even though only the franchisee was named in the women's charges, and even though the women had an attorney when they filed their charges. So the decision in favor of the franchisor was vacated, and the lower court will have to decide whether to apply an exception to the general rule that you can't sue an employer unless you name it in the charge.

In follow-up to last week's post on Ray Rice and how employers should handle domestic violence situations, please read Jena McGregor's article in Wednesday's Washington Post, "What if Ray Rice worked in an average company?" I was quoted in the article.

Too much information! Jon Hyman of the Ohio Employer's Law Blog beat me to this one. The EEOC has filed suit against Cummins Power Generation for allegedly asking some quite intrusive questions in connection with an employee's fitness-for-duty examination. According to the lawsuit, the questions not only violated the Americans with Disabilities Act because they were more broad than necessary, but they also violated the Genetic Information Nondiscrimination Act because they asked for information about the employee's family history, which as we all know is considered "genetic information."

The lawsuit, which is all we have right now, doesn't say what prompted Cummins to ask for the fitness-for-duty evaluation. But it does allege that Cummins asked for the employee to sign a release for "all information concerning medical advice, care, treatment, or supplies provided to me" and "all information related to or forming the basis of any medical, mental health, and/or substance abuse evaluation, recommendations, and/or determinations." He was also given "a diagnostic assessment form" that asked for information about his family history of "psychiatric, chemical dependency, suicide, and major medical issues."

JRACWBN = Job-Related And Consistent With Business Necessity

Any request for medical information from a current employee, even if in connection with a legitimate fitness-for-duty evaluation, must be "job-related and consistent with business necessity" to be lawful under the ADA. As Jon says, employers can't use the fitness-for-duty evaluation as a fishing expedition. And an employer can never ask for information about an employee's family history.

If you have not already done so, please get over to Phil Miles' Lawffice Space blog, where he is hosting the September Awesomely Bad/Awesome Employment Law Blog Carnival. It's just full of awesomely bad/awesome stuff!

(Please note that Cummins has not yet had an opportunity to respond to the lawsuit, so everything we're saying right now is from the point of view of the EEOC only.)

Also this week, the EEOC sued a nursing home in New York because the nursing home allegedly asked for family history information in post-offer, pre-employment medical examinations, and again annually after hire. In this case, the EEOC is suing on behalf of a class of thousands of individuals. Apparently, the "Employee Assessment" used by the nursing home came to light after a single individual filed a charge alleging pregnancy discrimination. It appears that the nursing home may have provided the assessment in responding to the pregnancy charge, which caused the EEOC to bring a class action under GINA instead.

Beware of the GINA! Also, be sure you consult with qualified counsel before you submit documents to the EEOC in responding even to charges that you consider routine.

I did a podcast earlier this week on "JRACWBN" with my colleague and friend Will Aitchison for the Labor Relations Information System. We also talked briefly about the GINA restrictions on family history information. Please tune in!

EEOC sues over lack of pregnancy accommodation. As far as I know, this is the EEOC's first lawsuit in the area of pregnancy accommodation. In July, the Commission issued an Enforcement Guidance on this subject, laying out its position that an employer had to accommodate pregnancy-related conditions that were also ADA disabilities (not too controversial) and also pregnancy-related conditions that were temporary if it offered accommodations to employees with temporary work-related conditions (very controversial). This same issue is going to be heard by the Supreme Court on December 3, so we'll have a definitive decision sometime next year. The EEOC, like the rest of us, will have to abide by whatever the Supreme Court decides.

Anyway, on Wednesday, the EEOC sued Chicago-area Roseland Community Hospital, alleging that the hospital refused to make reasonable accommodations for the pregnancy of a mental health counselor. The lawsuit doesn't provide much detail, but the EEOC's press release says that the employee had a high-risk pregnancy and could not "restrain disorderly or combative patients." A male security guard, on the other hand, was temporarily unable to do this but was given the accommodation of a desk job.

Big bucks. The agency also got a couple of really big settlements this week too - one in a pattern-or-practice race discrimination case, and one in a female-on-female sexual harassment case.

OTHER CONSTANGY NEWS THAT MAY INTEREST YOU . . .

The Fall 2014 edition of The Retailer, chock-full of labor and employment news of interest to employers in the retail industry. Our executive editors are Toby Dykes and Tam Yelling.

Still more from the OFCCP! Cara Crotty is back with all you need to know about the proposed rule on "pay transparency." (She must be getting tired.)

And only five more shopping days until the webinar you won't want to miss, Your Handbook Is Probably Illegal! It's not too late to register for this webinar, which will be from 1 to 2:30 p.m. Eastern on Wednesday, September 24. Presenters are Jena Cottreau, "gladiator" Cliff Nelson, and Leigh Tyson.