US Equal Employment Opportunity Commission Archives

COVID-19 Laws and Regulations: A Midyear Update

by McDermott Will & Emery | Jul 22, 2021 | Employee Benefits, Employment, Health and Welfare Plans

As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.

Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.

“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”

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Buyers’ Immunity Under Employment Law Is a Myth

by Elvira Kras | Jul 17, 2019 | Employment

There are three focal points in every successorship case: (1) notice to the purchaser; (2) continuity of the business; and (3) the ability of the seller to provide relief.

Reading the tripartite test for successor liability, it is enticing to conclude that a deal is safe. This is what the Greeks called hubris. Remember Oedipus, who also thought he could escape the prophecy of his fate? Even when it appears one of those factors ought to result in a buyer escaping successorship liability, any reading of those factors needs to be grounded in the case law because it sweeps more than a literal reading of those tripartite factors might suggest.

Even a quick look at the case law reveals the magnitude of the doctrine’s scope.

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Originally published by Law360, July 2019.

Making a Splash in the Global Employment Pool: The Challenge of Multiple Employment Laws

by Marjorie C. Soto Garcia and Michelle S. Strowhiro | Sep 18, 2018 | Employment

US businesses expanding abroad, and international businesses moving into the United States, can find the differences between employment laws both unexpected and costly.

Companies of all sizes are eager to expand their businesses, and their workforce, into new markets. US employers already know that operating in multiple states can feel like operating in different countries because of state- and locality-specific employment laws. But if operating in California versus Wyoming is comparing pools to puddles, then operating in the United States versus other countries is comparing puddles to oceans.

US-based companies looking to expand abroad, and foreign companies opening their first US locations, must proceed with caution before jumping in. One error can commit a business to employing its workforce until retirement, cost months and a small fortune to terminate the employment relationship, or keep it embroiled for years in class action litigation.

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Federal Appellate Court Finds That Title VII Bans Gender Identity Discrimination

by Brian Mead and Todd Solomon | May 31, 2018 | Employment

The US Court of Appeals for the Sixth Circuit ruled on March 7, 2018, that workplace discrimination on the basis of gender identity and gender expression violates Title VII of the Civil Rights Act of 1964. The language of Title VII does not expressly prohibit discrimination on the basis of gender identity. However, the US EEOC has taken a broad approach to enforcing Title VII’s prohibition on sex discrimination, arguing that it includes both gender identity and sexual orientation.

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Federal Appellate Court Finds That Title VII Bans Sexual Orientation Discrimination

by Todd Solomon | Mar 15, 2018 | Employee Benefits, Employment, Health and Welfare Plans, Retirement Plans

On February 26, 2018, the US Court of Appeals for the Second Circuit (covering Connecticut, New York and Vermont) ruled that workplace discrimination on the basis sexual orientation violates Title VII of the Civil Rights Act of 1964 (Title VII).

The language of Title VII does not expressly prohibit discrimination on the basis of sexual orientation. However, in 2015, the US Equal Employment Opportunity Commission (EEOC) took the position that Title VII prohibits sexual orientation discrimination under the purview of prohibited sex discrimination. In 2016, the EEOC began filing sexual orientation discrimination lawsuits enforcing that position.

Circuit courts are divided on the question of whether claims of sexual orientation discrimination are viable under Title VII. In March of 2017, the Eleventh Circuit held that sexual orientation discrimination does not violate Title VII. The Seventh Circuit held the opposite the following month, and the Supreme Court declined to decide the split in December. With its en banc decision in Melissa Zarda et al. v. Altitude Express, dba Skydive Long Island, et al., the Second Circuit sided with the EEOC and the Seventh Circuit.

As a result of the decision, employers may see increased litigation in the area of sexual orientation discrimination. To protect against potential lawsuits, employers should consider updating their nondiscrimination policies to prohibit discrimination on the basis of sexual orientation and gender identity. In addition, employers should perform sexual orientation harassment training for employees and managers.

The decision also raises potential concerns for employee benefit plans. Although the Employee Retirement Income Security Act of 1974, as amended (ERISA) generally preempts state laws that relate to employee benefit plans, ERISA does not preempt other federal laws, including Title VII. While certain spousal benefits and rights under qualified retirement plans are required by federal law to be extended to same-sex spouses, the same explicit mandates do not apply to welfare plans. Employers should consider whether any of their employee benefit plans discriminate against employees with same-sex spouses (e.g., excluding same-sex spouses from coverage under a self-funded medical plan). Such distinctions may be ripe for legal action as a result of the decision and the EEOC’s ongoing enforcement efforts.

He Said/She Said: Pronoun Use and the Evolving Landscape of Transgender Rights in the Workplace

by Alison L. Nadel | Dec 14, 2017 | Employment, Labor

The rights of transgender individuals have become a more prominent civil rights issue in recent years, and employers should be aware of how laws in this area impact their employment policies and treatment of transgender employees.

Court to the Equal Employment Opportunity Commission: “Try Again” on Wellness Rules

by Anthony A. Bongiorno and Megan Mardy | Aug 29, 2017 | Employee Benefits, Employment, Health and Welfare Plans

In October 2016, the American Association of Retired Persons (AARP) sued the US Equal Employment Opportunity Commission (EEOC) in the US District Court for the District of Columbia seeking an injunction against the latest iteration of wellness program regulations. The final EEOC regulations issued last year offer employers a roadmap for offering employee wellness programs that pass muster as “voluntary” examinations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). In response, AARP argued that the EEOC failed to adequately justify the new rules and abused its regulatory power by reversing course on its long-standing position against wellness programs.

As Federal Progress Stalls, State, Local and Private Initiatives March Towards Pay Equity

by McDermott Will & Emery and Evan A. Belosa | Aug 10, 2017 | Employee Benefits, Employment, Executive Compensation, Labor

Pay equity, the concept that gender differences should not affect compensation, is a concept easy to support, yet has been stubbornly hard to achieve. Federal law has become calcified in addressing the stubborn pay gap between men and women. State and local initiatives, along with private actors, have increasingly taken steps in the past year to address pay equity.

Score on Wellness Lawsuits—Wellness Plans 3, EEOC 0?

by McDermott Will & Emery | Sep 27, 2016 | Employment, Health and Welfare Plans

On September 19, 2017, in the ongoing lawsuit the US Equal Employment Opportunity Commission (EEOC) brought against Orion Energy Systems Inc. (Orion) regarding its wellness program, a Wisconsin federal judge found that Orion’s wellness program was voluntary. The employees have a choice between participating in the program or paying the full price for health benefits. The final results of this case remain to be seen since the judge also held that the EEOC can apply its new rules on such wellness programs retroactivity.

EEOC Model Wellness Program Notice

by McDermott Will & Emery | Jun 16, 2016 | Employee Benefits, Employment, Health and Welfare Plans

Today, the EEOC issued its model notice to be used in conjunction with wellness programs that ask disability related inquiries or require medical examinations. The notice requirement applies prospectively to employer wellness programs as of the first day of the plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentive permitted under the regulations. An employer’s HIPAA notice of privacy practices may suffice to satisfy the ADA notice requirements if it contains the ADA-required information. However, given the timing requirements for distribution of the HIPAA notice and the fact that the EEOC rules apply to wellness programs outside of the group health plan, a separate ADA notice may be required.

Questions and Answers: Sample Notice for Employees Regarding Employer Wellness Programs

Sample Notice for Employer-Sponsored Wellness Programs