Equal Employment Opportunity Commission Archives

Transgender Health Benefits: Best Practices and Legal Considerations

by Erin Steele, Jacob Mattinson and Todd Solomon | Sep 3, 2019 | Employee Benefits, Employment, Health and Welfare Plans

A growing number of medical organizations, courts and administrative bodies have stated that transition-related medical care is medically necessary and should be covered by employer-sponsored medical plans. Access to employer-sponsored healthcare coverage for transgender workers has become an issue of focus for civil rights advocacy groups such as Lambda Legal and the American Civil Liberties Union, and there has been an uptick in discrimination lawsuits filed against health plans and insurers denying such care.

These trends highlight the importance of weighing the legal and business considerations that come with providing (or not providing) comprehensive health benefits for transgender workers. Health plan sponsors and insurers should consider how the decision to provide or exclude transition-related medical coverage will affect their legal compliance, overall costs and workplace culture—all of which are discussed in this article.

Access the full article.

Originally published in Benefits Magazine, August 2019.

Understanding Equal Pay Laws and Avoiding and Defending Pay Equity Claims

by Evan A. Belosa | Jan 11, 2017 | Employment, Executive Compensation

The federal government’s focus on pay equity and pay data, and the passage of groundbreaking equal pay laws in a number of states, has been one of the biggest employment law developments of 2016. Litigation involving pay equity claims has also risen in the past year. Given the increased focus on pay equity from these multiple sources, employers are well-advised to examine their compensation policies and practices. Understanding and applying the varying tests for pay equity under federal and state statutes can pose a challenge, however.

To learn more, please join us for an in-depth webinar on Tuesday, January 24, 2017 at 12:00-1:00pm EST.

Flambeau Inc. Wellness Program Testing Falls Within ADA Safe Harbor

by McDermott Will & Emery | Jan 19, 2016 | Benefit Controversies, Employee Benefits, Health and Welfare Plans

On December 30, 2015, a federal judge in the Western District of Wisconsin ruled in favor of Flambeau, Inc. and against the Equal Employment Opportunity Commission (EEOC) in holding that Flambeau’s medical exams as part of its wellness program and self-insured medical plan did not violate the Americans with Disabilities Act (ADA).

Read the full article.

EEOC to Clarify and Expand Wellness Program Incentives Related to the Genetic Information Nondiscrimination Act

by McDermott Will & Emery | Nov 13, 2015 | Employee Benefits, Employment, Health and Welfare Plans

On October, 30, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), as they relate to employer wellness programs. Title II of GINA protects employees from employment discrimination based on their genetic information, including the health status of workers’ families.

Read the full article.

EEOC Proposed Rules Provide Long-Awaited Guidance for Wellness Programs

by McDermott Will & Emery | Sep 15, 2015 | Employment, Health and Welfare Plans

Susan M. Nash wrote this bylined article about the Equal Employment Opportunity Commission’s (EEOC) long-awaited guidance on when it will enforce the Americans with Disabilities Act (ADA) against employers who sponsor certain types of employee wellness programs. “Although still in proposed form, the proposed rule provides insight into EEOC’s approach toward regulating employer wellness programs,” Ms. Nash wrote.

Read the full article in Corporate Wellness Magazine.

EEOC Issues Guidance on Employer Provided Wellness Programs

by Jacob Mattinson | Apr 28, 2015 | Employment, Health and Welfare Plans

The Equal Employment Opportunity Commission (EEOC) released a long-awaited proposed rule amending regulations implementing Title I of the Americans with Disabilities Act to provide guidance regarding the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. The proposed rule provides insight into the EEOC’s approach to regulating employer wellness programs, so employers should consider reviewing their wellness programs for consistency with the proposed rule.

Read the full article.

New Guidance on Background Checks Issued by the FTC and EEOC

by McDermott Will & Emery | Apr 29, 2014 | Employment

Last month, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) issued joint guidance addressing the use of background checks in employment decisions. The guidance does not offer new requirements related to background checks, but rather serves as a reminder to employers of their obligations under federal law when they use background checks, and creates a user-friendly guide to applicants and employees regarding their rights with respect to background checks.

The guidance consists of two documents – one for employers, “Background Checks: What Employers Need to Know,” and one for applicants and employees, “Background Checks: What Job Applicants and Employees Should Know.” The first document, “What Employers Need to Know,” offers guidance to employers on their existing legal obligations under the Fair Credit Reporting Act (FRCA), a federal law enforced by the FTC, and federal non-discrimination laws enforced by the EEOC. The document reminds employers that under FCRA employers must obtain written permission from job applicants and employees before conducting a background check, and must notify applicants and employees that background reports may be used to make decisions about employment. In addition, the agencies reaffirm that employers must not discriminate based on a person’s race, color, national origin, sex, religion, age (40 or older) or disability when requesting or using background information for employment. Finally, the guidance discusses the requirements related to the retention, preservation and disposal of personnel or employment records.

The second document, “What Job Applicants and Employees Should Know,” describes applicants’ and employees’ rights under federal law when an employer conducts background checks. The agencies remind applicants and employees that it is lawful for potential employers to ask about applicants’ or employees’ backgrounds or require a background check, as long as the employer does not unlawfully discriminate. The guidance also states that employers must not ask for medical information until they offer an applicant a job, and can only ask for genetic information under limited circumstances (for example, when an employer offers health or genetic services as part of a voluntary wellness program, or if the information is required to comply with the Family and Medical Leave Act). Finally, the guidance explains that when applicants have been turned down for a job or denied a promotion based on information in their background reports, they have the right to review the report for accuracy.

This marks the first time the two agencies have jointly issued guidance, which seems to indicate that both agencies have a vested interest in enforcing the laws related to employer use of background checks, and perhaps serves as a signal to employers that both agencies consider this topic a priority. Employers should consider reviewing the new guidance, and ensure that their policies and practices with respect to background checks comply with federal law, as well as applicable state and local law.

New EEOC Rule Significantly Increases Employer Burdens in ADEA Disparate Impact Cases

by McDermott Will & Emery | Jun 12, 2012 | Employment

by Stephen D. Erf, Chris C. Scheithauer and Heather Egan Sussman.

The Equal Employment Opportunity Commission (EEOC) recently amended its regulations under the Age Discrimination in Employment Act (ADEA) concerning disparate impact claims. The final rule, which became effective on April 30, 2012, is likely to impose significant administrative burdens on employers as well as increase potential litigation exposure and costs of ADEA claims.

To read the full article, click here.

EEOC Issues Guidance on Use of Criminal Background Checks in Employment Decisions

by McDermott Will & Emery | May 3, 2012 | Employment

by Heather Egan Sussman, Stephen D. Erf and Sabrina Dunlap

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on using arrest and conviction records when making employment decisions. The guidance, which is available here, passed by a 4-1 vote of EEOC commissioners, and consolidates and supersedes the EEOC’s prior policies on this topic.

The agency decided to re-evaluate its policy on the use of criminal background checks in employment decisions after the U.S. Court of Appeals for the Third Circuit suggested to the EEOC in a 2007 case that the agency provide analysis and updated research on the use of background checks in employment. Since 2007 the EEOC has examined social science and criminological research, as well as court decisions and state and federal laws, to assess the effect of the use of criminal records and background checks in employment decisions. Of particular concern to the EEOC are the arrest and incarceration rates for certain minority groups, and the potential that the use of criminal records and background checks in employment decisions could have a disparate impact on people in those groups.

While the new guidance does not change the EEOC’s fundamental position on applying principles of Title VII of the Civil Rights Act (the federal law prohibiting employment discrimination based on race, color, religion, sex, national origin, etc.) to an employer’s use of criminal records in the workplace, it does offer more in-depth analysis of disparate treatment and disparate impact, and provides employers with clearer rules on the proper use of criminal records and background checks. In particular, the guidance explains in detail how employers can establish a defense to claims of disparate impact by showing that employment decisions based on criminal records or background checks are job-related and consistent with business necessity.

In addition to the guidance, the EEOC issued a Q&A, available here. (Note that certain states have further restrictions regarding how such information is gathered and used.) Please stay tuned for a more detailed discussion of the guidance and its implications for employers.

Final EEOC Regulations for the ADA Amendments Act, Published on March 25, 2011

by Jackie Sinn | Apr 5, 2011 | Employment, Privacy and Data Security

by Heather Egan Sussman and Stephen Erf

The Equal Employment Opportunity Commission (EEOC) recently released the final regulations intended to simplify implementation of the Americans with Disabilities Act Amendments Act (ADAAA). In the ADAAA, which went into effect on January 1, 2009, Congress directed the EEOC to revise its Americans with Disabilities Act (ADA) regulations to conform them to changes made by the ADAAA. Though the ADAAA and these final regulations do not change the definition of a covered “disability” under the ADA—a physical or mental impairment that substantially limits one or more major life activities—the ADAAA and the final regulations made significant changes to how those terms are to be interpreted. In particular, the regulations set forth a list of principles to guide the determination of whether a person has a disability, and provide that the definition should be construed as broadly as possible under the law. The most significant changes to the ADA are as follows:

The principles outlined in the final regulations provide that an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.
“Mitigating measures” such as medication and assistive devices must not be considered when determining whether someone has a covered disability – so, if an employee’s condition would qualify without medication or assistive devices, then person should be considered to have a covered disability (interestingly, this does not include the ordinary use of contact lenses or eyeglasses).
Physical and mental impairments that are episodic (such as epilepsy) or in remission (like cancer) are disabilities if they could be “substantially limiting” when active.
The final regulations explain that the term “major life activities” includes “major bodily functions,” such as the immune system, normal cell growth, and brain and endocrine functions.

The final regulations state that the question of whether an individual meets the definition of disability should not demand “extensive analysis,” and that the focus in cases brought under the ADA should be whether covered entities have complied with their non-discrimination and reasonable accommodation obligations and whether discrimination has occurred, not whether the individual meets the definition of a covered disability. The intended effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA, though whether that is true in practice, and how the EEOC chooses to enforce the changes, remains to be seen.

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