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EEOC Alleges Abortion Travel Benefits Violate ADA, Title VII; Abortion Rates Tick Up; Indiana Judge Rules Ban Violates Religious Freedom

Lawyers are advising employers to beef up their health-related travel benefits to emphasize equal access for all employees as the Equal Employment Opportunity Commission begins to target employers that have expanded travel coverage for abortions.

EEOC’s charges come as new data indicate the rate of abortions accessed by Americans has ticked up, reversing a years-long decline, according to a new census from the Guttmacher Institute.

While litigation over state bans simmers in several states, abortion activists scored a win in Indiana after a judge ruled the state’s ban violates religious freedom protections enacted by statehouse Republicans. Abortion access has been temporarily restored in Indiana while litigation continues.

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Employers Seek Clarity on Reproductive Healthcare Benefits Litigation Following EEOC Commissioner Filing

Following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, many employers extended travel benefits to women residing in states where abortion or reproductive health procedures may now be unlawful. Recently, US Equal Employment Opportunity Commission (EEOC) Commissioner Andrea Lucas filed a Commissioner’s Charge against at least three companies alleging that doing so violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act of 1990 (ADA). Although these charges are not public, it’s believed they mirror a letter that Sharon Fast Gustafson, the former EEOC General Counsel, recently sent en masse to employers around the country also alleging such travel programs violate federal anti-discrimination laws. The EEOC has since issued a statement that Gustafson’s views are her own and do not necessarily reflect those of the EEOC.

When Title VII was amended in 1978 by the Pregnancy Act amendments, language was added requiring pregnancy, childbirth and related medical conditions be treated equally with other medical conductions under an employer’s “fringe benefit programs.” Lucas asserts that providing travel benefits for those seeking abortions provides preferential treatment to women, thus constituting gender discrimination. Her contention is also that travel benefits further implicate religious discrimination by favoring those who terminate pregnancies over those who, for religious reasons, carry a child to term. Her final contention is that the provision of travel benefits violates the ADA, which she claims requires parity of benefits for those with physical disabilities.

Employers are now asking whether Lucas’ and Gustafson’s position may be the beginning of litigation by the EEOC or private plaintiffs and whether they can take measures to address the legal arguments being raised.

First, it is doubtful the EEOC will be suing. While Title VII and the ADA authorize a single commissioner to file a Commissioner’s Charge, that Charge will be investigated like any other Charge of Discrimination. If cause is found, EEOC procedure requires in cases garnering public attention (which this most certainly is) that litigation may only be commenced if a majority of the Commissioners (minus the Commissioner who brought the Charge) vote in favor of doing so. In the absence of a quorum, then only the General Counsel of the EEOC may initiate suit. At this time, Lucas would not appear to have such votes.

Second, employers can and should draft around these contentions to prepare for private suits. Specifically, such travel benefits should cover not only abortion and/or reproductive health, but also all covered services or procedures that are unavailable within a covered individual’s state of residence or area, regardless of the individual’s gender, pregnancy or childbirth status, or disability status. This would make the benefits “available” to everyone.

Finally, there is a suggestion that, even with such drafting, this travel benefit will still be utilized primarily by non-Christian women, thus supporting a disparate impact claim based on religious discrimination. This is an overreach. Title VII claims require an adverse employment action such as an employee who requests but is denied a travel benefit due [...]

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Can Employers Offer COVID-19 Vaccine Incentives for Employees?

Can employers offer incentives for employees to get a COVID-19 vaccine? In short, yes. Incentives may take many forms, such as a one-time bonus, a gift card or a few extra vacation hours. Employers can get creative.

According to McDermott’s Michelle S. Strowhiro, Judith Wethall and Ludia Kwon, there are two issues to consider when implementing a vaccine incentive program for purposes of complying with employment and benefits laws: the concepts of coercion and reasonable accommodation.

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How to Build COVID-19 Employment Litigation Defenses Now

The employment and business decisions made by employers under the specter of the unprecedented COVID-19 pandemic are now being tested by plaintiffs’ lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally. This article outlines the types of claim that are emerging and are expected to increase as a result of COVID-19.

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No Good Deed Goes Unpunished: Inferior Parental Leave Policies Can Result in Discrimination Claims

To recruit and retain top talent, employers often offer benefits more generous than required under the law. Such benefits include unlimited vacation, paid maternity leave and paid paternity leave. However, a recent US Equal Employment Opportunity Commission (EEOC) lawsuit filed against Estee Lauder Companies, Inc. (Estee Lauder) reveals how even the most well-intentioned of programs can result in a discrimination lawsuit.

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Legal Update on Select Health and Welfare Plan Issues

In a presentation to the Silicon Valley Employers Forum, Susan M. Nash discussed recent updates to select health and welfare plans while outlining some potential issues. The agenda included changes to exchange notices, corrections to Form 1094 and 1095, issues regarding the Affordable Care Act (ACA) Section 1557 and the Equal Employment Opportunity Commission’s (EEOC) wellness program regulations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

View the presentations slides here.




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