LIEB BLOG

Legal Analysts

Showing posts with label eeoc. Show all posts
Showing posts with label eeoc. Show all posts

Friday, November 01, 2024

EEOC's New Affirmative Action Guidance Heightens Employer Risk for Reverse Discrimination Suits Post-SCOTUS Harvard Decision

Tuesday, March 12, 2024

Shedding Light on Pay Disparities: What You Need to Know from EEOC's Latest Data

Today, we bring to your attention the recent release of pivotal data by the U.S. Equal Employment Opportunity Commission (EEOC). This data, encompassing information from 2017 and 2018, provides an insightful glimpse into the state of pay disparities in American workplaces., which is illegal based on the Equal Pay Act. To learn more about the Equal Pay Act, take a CLE from Attorney Andrew Lieb here.


Key EEOC Findings:

The EEOC's data dashboard reveals a troubling reality: pay disparities based on sex and race persist across nearly every industry and state. Here are some crucial highlights:

  • Gender Disparities: The data unequivocally shows that men continue to outearn women, with the median pay band for men consistently higher than that for women. In 2018, this gap was particularly pronounced, with men's median pay band being one or even two bands higher than women's.
  • Racial Disparities: The disparities deepen when considering race and ethnicity. Black or African American women and American Indian or Alaska Native women find themselves in the lowest median pay bands, reflecting a distressing pattern of inequality.
  • Industry and Job Category Trends: Across various industries and job categories, men consistently occupy higher median pay bands compared to women. While some sectors exhibit equal median pay bands, such as Accommodation and Food Services, these instances remain exceptions rather than the norm.
  • Geographical Disparities: Disparities are not confined to specific industries or job categories but are pervasive across different states. For instance, in 2018, Wyoming, Louisiana, and West Virginia exhibited significant differences in median pay bands between men and women.

Implications for Legal Action:

The release of this data underscores the urgency of addressing pay discrimination in the workplace. Here's what you need to know:

  • Equal Pay Act and Title VII: The EEOC enforces both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, which prohibit pay discrimination based on sex, race, color, national origin, and religion. If you believe that you have experienced pay discrimination, you may have legal grounds to pursue a case and if you live in a State, like New York, you can go back up to 3 years on the state's anti-discrimination law to bring your case.
  • Data as Evidence: The aggregated data provided by the EEOC can serve as compelling evidence in legal proceedings. If you find that your pay is unfairly lower compared to colleagues of a different
    gender or race in similar roles, this data can bolster your case.
  • Consultation: If you suspect pay discrimination in your workplace or have questions about your rights, we encourage you to seek legal consultation. Lieb at Law, P.C. is here to provide guidance and support as you navigate the complexities of employment law.
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Wednesday, October 18, 2023

Understanding the EEOC's Rising Focus on Disability Discrimination: A Call to Action

Recent trends have seen the Equal Employment Opportunity Commission (EEOC) significantly bolster its scrutiny on workplace discrimination, particularly on the front of disability discrimination. As advocates for those who face injustice, Lieb at Law, P.C. delves into these trends and urges those affected to seek their rightful legal recourse.


The EEOC’s Stand
The EEOC's resolve to combat disability discrimination has been noticeably robust. In its recently concluded fiscal year, the EEOC filed a staggering 144 lawsuits, a 55% increase from the previous year. Of these, 48 lawsuits were laser-focused on disability discrimination. That's a 77% rise from the 27 filed in the fiscal year of 2022. To be clear, this is in addition to the countless number of private lawsuits in federal and state courts throughout the country plus all of the administrative claims resolved at places like state / county / city divisions of human rights. 


Other Discrimination Categories
While disability discrimination took center stage, the EEOC has also been active in pursuing cases involving retaliation, race, and religion discrimination. This underscores the broader drive to ensure fair treatment for all, regardless of one's personal attributes or beliefs.


Notable Cases
A recent case that highlights this mounting concern involved Alliance Ground International, a cargo logistics company based in Chicago. The EEOC alleges the company discriminated against a deaf individual, refusing him employment. In another case, the EEOC sued Union Pacific Railroad for terminating employees they considered "color vision deficient." These are but a few examples among many, revealing a troubling pattern of discrimination.


Mental Health: An Emerging Concern
Adding to the spectrum of disability discrimination, the EEOC has started to spotlight employers who fail to accommodate mental impairments. Recent cases have encompassed issues related to autism spectrum disorder, ADHD, depression, anxiety, and PTSD.


Complexities of the ADA
The Americans with Disabilities Act (ADA) is a lifeline for many. However, its complexity can often be a double-edged sword. On one side, it offers protection to the disabled, but on the other, its intricacies can lead employers astray, sometimes unintentionally.


A Growing Regulatory Landscape
With the EEOC's budget set to grow by $26 million in the upcoming fiscal year, their vigilance is only expected to intensify. Topics like racial justice, diversity, equity, inclusion, and systemic discrimination are likely to gain even more prominence.


Your Right to Fair Treatment
No one should suffer discrimination in silence. The numbers and the cases are clear indicators that disability discrimination is an alarming concern that needs addressing. If you or someone you know has faced discrimination of any form, it's crucial to understand your rights and take action.


Lieb at Law, P.C.: Advocates Against Discrimination
At Lieb at Law, we stand steadfast in our mission to support and represent those who've been discriminated against. Armed with expertise, experience, and a deep understanding of the complexities surrounding the ADA, we're here to guide you every step of the way.


Have you faced discrimination? Don't suffer in silence. Reach out to Lieb at Law, P.C. today, and let us champion your cause.







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Tuesday, June 27, 2023

Analyzing the Legal Implications of the Pregnant Workers Fairness Act

The U.S. employment law landscape has been transformed with the implementation of the Pregnant Workers Fairness Act (PWFA). This law, endorsed by President Joe Biden, extends protections to employees dealing with pregnancy, childbirth, or related conditions. The U.S. Equal Employment Opportunity Commission (EEOC) will now begin processing discrimination charges under this fresh statute, opening a new chapter in labor rights.


Legal Provisions:

The PWFA mandates employers to provide reasonable accommodations for pregnancy, childbirth, or related conditions, except when these adjustments impose an undue hardship on the employer. The PWFA thus augments protections under Title VII of the Civil Rights Act. As EEOC Chair Charlotte A. Burrows stated, the PWFA aids workers in securing their entitlements under this new law.


EEOC's Role and Resources:

The EEOC has introduced educational materials to aid workers and employers in understanding the new law. These include a "Know Your Rights" video series, a revised poster, and a guide to the PWFA. The EEOC is also set to accept discrimination charges under PWFA.


The Bottom Line:

The Pregnant Workers Fairness Act fills a gap in employment rights, fostering a more equitable and inclusive working environment. It is a substantial step towards legally addressing the unique challenges faced by pregnant workers, fostering a fair workspace for all.


If you are a victim, you can bring a discrimination case and recovery monetary damages for your lost pay and emotional distress. You have rights. 



Thursday, March 23, 2023

EEOC Reports That They Recovered Record High Amount of $513 Million in Compensation for Victims of Discrimination in 2022

The U.S. Equal Employment Opportunity Commission (EEOC) recently released its 2022 Annual Performance Report, revealing that it collected a record-breaking $513 million in compensation for victims of discrimination. This amount was collected from 65,000 charges of discrimination, which resulted in 91 lawsuits in federal court. The majority of these charges were based on allegations of sex and retaliation discrimination, followed by disability, race, national origin, age, and religion.


Most importantly, discrimination charges were up almost 20% year-over-year.




Thursday, February 09, 2023

Hearing Disabilities in the Workplace per EEOC

At the end of January, 2023, EEOC released Hearing Disabilities in the Workplace and the Americans with Disabilities Act, which is a terrific resource for the 15% of american adults who have some trouble hearing and want to know their rights at work. 


If you are hearing impaired, remember that the ADA is just the floor of your rights so you should always have your attorney examine whether your state or locality provides your with additional protections. To illustrate, the ADA only applies to employers with 15 or more employees, but states, like NY have no minimum employee threshold for anti-discrimination laws to apply (the New York State Human Rights Law at Executive Law 296), which has been the law of the state since February 8, 2020. 


Regardless, the EEOC's released document is a great resource because it includes a series of question-and-answers for both job applicants and employees. 


Of greatest interest, you should look at the examples of accommodations that should be provided for those with a hearing related disability. The list of examples includes:

  • Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
  • A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
  • Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
  • Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
  • Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
  • A voice carry-over telephone, captioned telephone, text telephone, or TTY.
  • Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids. 
  • Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

The point is that those with a disability have a right to enjoy equal employment opportunities and if they aren't afforded such a right by their employer or prospective employer, they can sue and they should win big damages.



Tuesday, January 03, 2023

Pregnant Workers Fairness Act Passed into Law

As part of funding the federal government on December 29, 2022, by way of the Consolidated Appropriations Act, 2023, President Biden signed a new employment discrimination law that will be effective on June 27, 2023, the Pregnant Workers Fairness Act

This new anti-discrimination law requires US employers to provide reasonable accommodations to address their employee's limitations related to "pregnancy, childbirth, or related medical conditions," except if such accommodations would constitute an "undue hardship on the operations of the business" of the employer. 

If employers had any doubt, they should immediately and proactively adjust their policy manuals and spell-out how covered employee(s) can request to engage in the "interactive process" where such employee(s) can help to identity reasonable accommodations that would allow them to otherwise perform their essential functions of their job.

Make no mistake, the new law makes clear that employers cannot require covered employees to take leave, even paid leave, if a reasonable accommodation is otherwise available.

Moving forward, pregnancy, childbirth, or related medical conditions no longer need to constitute a disability under the Americans with Disabilities Act for an accommodation to be statutorily required to be made available to employees throughout the United States.


  

 

Monday, November 28, 2022

Court - Discrimination Statute of Limitations Friction between NYS Human Rights Law & EEOC Right to Sue

In New York State and under the New York State Human Rights Law, a discrimination lawsuit generally must be commenced within three-years of the wrong complained of for the lawsuit to be timely and actionable. 


However, a federal employment discrimination case must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the wrong for a federal claim, under Title VII, to be actionable. Yet, no federal lawsuit can be filed until the EEOC issues a right to sue letter.


So, what happens when an employee wants to file both a federal and state claim? Specifically, what happens if the right to sue letter isn't issued until after the expiration of the three-year New York State deadline? 


The Appellate Division, First Department, just answered that question in Gabin v Greenwich House, Inc.


The court ruled that NYS Administrative Code section 8-502(d) tolls (a/k/a, freezes) the counting of the three-year period under state law during the period from when a charge is first filed with the EEOC until the right to sue letter is issued.






Tuesday, September 27, 2022

Employment Discrimination - Federal Sector - Regulatory Changes Coming

Did you know that employees of the federal government have special rules to sue their employer for employment discrimination? For example, these employees only have 45 days to initiate their complaint after the discriminatory event or they are foreclosed from bringing a case.


Now, the Equal Employment Opportunity Commission (EEOC) is proposing an amendment to the regulation that governs these types of discrimination cases, 29 CFR 1614.


The proposed amendment is a step forward by embracing the EEOC's Electronic Public Portal, but it's not nearly enough for these employees who are often a day late and a dollar short in bringing their claims. What really needs to happen is to provide federal sector employees with extended timelines to bring their cases, which match that available to private sector employees (180 days or 300 days depending on local discrimination laws). 


That said, the proposed regulatory change is designed "to authorize the Commission to transmit its hearing and appellate decisions and other documents to registered complainants through the EEOC Electronic Public Portal," which makes sense. 


To comment on this proposed rule, identified by RIN Number 3046-AB23, go to https://www.regulations.gov and follow the instructions for submitting comments.




Tuesday, May 17, 2022

Workplace Discrimination FAQs

Is employment discrimination illegal?

 

Yes, discrimination in employment is illegal in the United States. Depending on the state you live in, there may be even greater protections, rights, and damages available to victims of workplace discrimination.

 

What qualifies as employment discrimination?

 

The laws enforced by the US Equal Employment Opportunity Commission (EEOC), and your individual state, entitle victims to sue for compensation in the event of unfair treatment based on their protected status or protected class.

 

While these vary from state-to-state, they may include the following: race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

 

Does discrimination have to be intentional to warrant compensation?

 

No. Regardless of whether the discrimination was unintentional or caused by implicit biases, you are entitled to fair compensation.

 

What is the most common workplace discrimination?

 

The most common types of discrimination in the workplace include racial discrimination, age discrimination, sex or gender discrimination, and disability discrimination.

 

Can an independent contractor sue for discrimination?

 

In many places, you can sue for workplace discrimination whether you are an employee, a domestic worker, or an independent contractor. If you are unsure of whether or not this applies in your state or locale, it’s best to consult with a skilled employment discrimination lawyer.

 

Who do workplace discrimination laws apply to? 

 

You have a right to compensation if you are discriminated against by anyone in the workplace. This could include a boss, coworker, vendor, client, patron, temp agency, or franchisor. 


Where can discrimination occur?


While workplace discrimination often occurs in the office, it can happen anywhere—over a conference call, in a meeting, at a holiday party, or at a work lunch—so long as you were fulfilling your work responsibilities at the time of the discriminatory incident. 

 

How do I know if I have been discriminated against at work?

 

Federal and state laws prevent hiring managers from changing available compensation, rates of pay, hours, or availability of employment based on your protected class status. Wages must be substantially equal between genders and, in cities like New York City, wage transparency will be required when jobs are advertised.

 

If you have been treated unfairly in any of these ways, have been spoken to in a demeaning way, or have been subjected to offensive jokes or comments based on your protected class status, then you may have a case for workplace discrimination and should consider reaching out to an experienced New York discrimination lawyer.

 

Can I be fired for speaking out against discrimination?

 

Not legally, no. If you are speaking out against discrimination in the workplace, you are protected from retaliation. This is true regardless of whether you are speaking out for yourself or on behalf of someone else. If you or a loved one have been fired or treated unfairly for speaking out against discrimination at work, we would love to take on your case and ensure that you receive the compensation that you deserve. Give us a call.

 

Can you sue for workplace discrimination?

 

Yes. Not only is it possible to sue for workplace discrimination, but Lieb at Law, P.C. has helped countless individuals recover compensatory damages and punitive damages for the pain inflicted by this unlawful act. Workplace discrimination is a violation of your rights and should never be tolerated.

 

How long do I have to sue for workplace discrimination?

 

Typically, federal law requires that you make a filing within 300 days of the discrimination (this may be cut down to 180 days based on your state’s laws, or even to 3 months if you work in education in places like New York).  However, certain state law claims can be brought up to 3 years after the incident. So, you should call right away and let us determine if you still have time to bring your case. 

 

What can I recover if I sue for workplace discrimination?

 

Employment discrimination claims can result in very high awards because they are designed to compensate victims for lost back-pay, lost front-pay, and experiencing emotional distress / loss of dignity. Additionally, the law provides that victims can recover other forms of compensatory damages, punitive damages, and their attorneys’ fees. In fact, the perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. However, we are ethically required to advise you that our prior results do not guarantee a similar outcome. So, you should contact us today and get a tailored evaluation of your specific situation.



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Friday, May 13, 2022

AI Employment Decisions Cause Disability Discrimination Per EEOC / DOJ

Many employers utilize artificial intelligence or algorithms to select new employees, monitor performance, and determine pay or promotions. There are scored tests and resume analysis that are both common place in the big business world. However, the EEOC and DOJ just shot a cannon across the bow of big business' boat by stating that "[t]hese tools may result in unlawful discrimination against people with disabilities in violation of the Americans with Disability Act (ADA)."


To determine if discrimination has occurred, consider the following questions:

  1. Was there an accommodations policy available and made known to employees / applicants?
    1. If not, there likely was discrimination.
  2. Does the AI / algorithm ask about the precise nature of the disability / medical condition? 
    1. If so, there likely was discrimination. 

If either of these questions ring true, or if you are working with such AI / algorithms with employment decisions, you should consult with a discrimination attorney and/or review the EEOC / DOJ Guidance Here



Wednesday, March 16, 2022

Caregiver Discrimination Update by EEOC

Last week, we reported that Caregiver Discrimination Protection passed the NYS Senate


Interestingly, this week, the US Equal Employment Opportunity Commission (EEOC) published an update on Caregiver Discrimination Under Federal Employment Discrimination Laws


This document reminds employers and employees that "it would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives."


In fact, there are 18 FAQ reminders that should be studied by anyone who has the responsibility to balance caring for another with their job responsibilities. 


Also, employers should review the document and focus in on the Best Practices for Workers with Caregiving Responsibilities to update their EEO policies. 




Tuesday, June 15, 2021

Federal Court Upholds Employer's Mandatory Vaccination Policy

The United States District Court for the Southern District of Texas held that the Houston Methodist Hospital's policy requiring employees to be vaccinated against COVID-19, under the threat of termination, is lawful.


In Bridges et al. v. Houston Methodist Hospital et al., 117 hospital employees sued the hospital for "unlawfully forcing its employees to be injected with one of the currently-available vaccines or be fired." The plaintiffs alleged that they were wrongfully terminated and compared the vaccination requirement to "forced medical experimentation during the Holocaust."  


Citing to EEOC guidance (which is not binding) stating that employers can mandate COVID-19 vaccinations subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs, the Court dismissed plaintiffs' wrongful termination claim (Texas law only protects employees from being terminated for refusing to commit a criminal act). The Court also dismissed the plaintiffs' claims that requiring vaccinations is against public policy because the employees were not coerced to take the vaccine (clearly distinguishing a mandatory vaccination policy from plaintiffs' absurd example of forced injections in concentration camps). Rather, the hospital is trying to protect against a spread of COVID-19 and employees "can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else." The Court equated a mandatory vaccination policy to changing an employee's schedule or office location in the sense that "every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain." 


This is the first of likely many challenges to employer mandatory vaccination policies. Do you think permitting employers to implement mandatory vaccination policies is against public policy? If so, why?



Thursday, January 28, 2021

Atheists & Agnostics are Protected from Discrimination at Work per EEOC

The EEOC just released its Compliance Manual on Religious Discrimination and lack of religious faith is protected from discrimination at the workplace.

You hear that? Atheists & agnostics - you matter too!


Here is what the manual states:

Definition of Religion

Comment: Some commenters expressed concern that the draft did not make sufficiently clear that Title VII protects against discrimination based on a lack of religious faith.

Response: The Commission has made additions to reference repeatedly that discrimination based on a lack of religious faith is prohibited.


Friday, January 08, 2021

Systemic Employment Discrimination Enforcement Brought to you by the EEOC - Be Warned

The Equal Employment Opportunity Commission (EEOC) just launched a new website detailing how it pursues systemic discrimination cases against businesses throughout the US.

It's like a shot across the bow of your boat if you own or manage a business - they are coming for you if you don't start implementing Diversity, Equity, and Inclusion (DEI) initiatives now. 

When implementing your DEI initiatives focus on these 4 main categories, which EEOC targets for systemic employment discrimination enforcement:
    1. Hiring / Promotion / Assignment / Referral
    2. Policies / Practices
    3. Lay-off / Reduction in Force / Discharge Policies 
    4. ADA (disability) / GINA (genetic info) 

The EEOC defines systemic as "pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” 

Basically, it means that they are looking for more than just one plaintiff (think, class action, just a little different). 

The new EEOC website lists the top 10 systemic enforcements topics, which you should review immediately to avoid a charge from the EEOC:
    1. Use of background checks
    2. Denying women jobs in fields such as truck drivers, dockworkers, laborers
    3. Refusal to hire African American, Hispanics and older workers for front of the house positions
    4. Ending staffing agency use of referring applicants based on customer preferences
    5. Widespread sexual harassment of teenagers in fast food chains
    6. Racially hostile displays such as nooses and racist graffiti
    7. Eliminating tap on the shoulder recruiting in favor of job posting
    8. Challenging policies of issuing attendance points for medical related absences, without accounting for disabilities
    9. Challenges of deportation made against employees complaining of discrimination
    10. Challenges to abuse of vulnerable workers who were subject to years of confinement, abuse, deplorable conditions, and reduced pay following charges of discrimination

If you aren't concerned yet, be warned that in "2020, OGC resolved 33 systemic cases, recovering $69.9 million for approximately 25,000 individuals."

Do you have your policies, practices, and procedures in place to prevent EEOC from charging your company? 





Wednesday, October 14, 2020

Employment Discrimination - NEW EEOC Rule Clarifies Right to Bring Lawsuit

On October 14, 2020, the EEOC issued a final rule, 29 CFR 1601 & 1626, for charges of employment discrimination. The key to this rule is to clarify that just because EEOC makes a "no cause" determination, that doesn't mean there is no discrimination and a victim can still hire an attorney and pursue a private lawsuit against their employer. While this change is minor in law, it's very important to clarify victim's rights.

Specifically, the rule now includes a notice to the victim of their right to file a lawsuit (within 90 days of receipt of the determination) and clarifies that a "no cause" determination doesn't mean that the "claims have no merit." Now, the Dismissal and Notice of Rights will read as follows:

The EEOC issues the following determination: The EEOC will not proceed further with
its investigation, and makes no determination about whether further investigation would
establish violations of the statute. This does not mean the claims have no merit. This
determination does not certify that the respondent is in compliance with the statutes. The
EEOC makes no finding as to the merits of any other issues that might be construed as
having been raised by this charge.

To be clear, the point of this change is to make sure everyone understands that "even
after the EEOC has decided not to proceed further with its investigation, private proceedings or
litigation may lead to court findings of discrimination or settlements for the charging parties."

Additionally, the rule clarifies deferrals to state agencies and it provides for the digital transmission of documents by way of providing access to a system with a unique login to retrieve documents. However, don't worry if you aren't tech savvy because the EEOC will mail hard copies to the parties if the system records no access for a reasonable time.




Friday, October 09, 2020

Guess how much employers pay, on average, in litigation costs in defending discrimination cases?

According to the EEOC, they pay $174,000 and attorneys' fees on cases that go to trial are between $195,000-$279,000.


You should get your training to prevent discrimination at your workplace today - sexualharassmenttrainingny.com or call 646.216.8038






Guess how much employers pay, on average, to settle discrimination cases?

According to the EEOC, they pay $45,466 to settle cases in conciliation before lawsuit (it only goes up from there).




Employment Discrimination Lawsuit Rules Are Changing

On October 9, 2020, the EEOC submitted a proposed rule in the Federal Register to change the conciliation procedures in an employment discrimination lawsuit. 

Basically, a conciliation is a required mediation of the discrimination case undertaken after EEOC finds reasonable cause for a charge, but before a lawsuit is filed. Historically, the process has been a mystery for employers as EEOC kept the steps, charges, and process secret. This mystery has resulted in approximately 1/3 of employers refusing to participate in conciliation even though the process is confidential and can't constitute evidence against such employer (unless otherwise agreed upon in writing).

The proposed rule requires that "the Commission will provide to the respondent, if it has not already done so:

(1) A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;

(2) a summary of the Commission's legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred;

(3) the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and

(4) identification of a systemic, class, or pattern or practice designation. The Commission also proposes to specify that the respondent participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission."

These rules are terrific and will result in increased settlements because an employer now has the ability to ascertain risk and then, strategically engage in meaningful settlement discussions in the conciliation process rather than blindly throwing money at a situation to make it go away. 


We encourage you to comment on the proposed rule should you have any suggestions to enhance its effectiveness by writing your thoughts, up until November 9, 2020, and sending them by mail, with reference to RIN Number 3046-AB19, to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.




Monday, August 10, 2020

Don’t Fire Your Employee for Taking Opioids so Fast – Lawsuit Alert

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.

To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:

1. Determine if the opioid use is legal or illegal.
  • The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
  • Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

2. Provide Reasonable Accommodations.
  • Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
  • Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
  • It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
  • Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.

3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.

4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.

You can access EEOC’s guidance HERE and HERE.