Tag Archives: EEOC

Christian Care Center of Johnson City to Pay $90,000 to Settle ADA Case Filed by EEOC

The EEOC has the power to, and will,  sue employers who it believes have violated the laws it enforces.  It recently sued the Christian Care Center of Johnson City, Tennessee for disability discrimination based on the Center’s firing of an HIV positive LPN.  The case settled for $90,ooo.  You can read more about it in the EEOC Press Release which is linked below.


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EEOC Equal Pay Directed Investigation

Recently I attended a presentation given by Shirley Richardson, the Deputy Director for the EEOC – Memphis District. Ms. Richardson focused on the EEOC’s current Strategic Initiatives. I previously wrote about those initiatives here.

One of the EEOC’s Strategic Initiatives is enforcing equal pay laws. One method the EEOC can use to enforce equal pay laws is an Equal Pay Directed Investigation. A Directed Investigation can be conducted without an EEOC Charge being filed.

Basically, the EEOC will send a letter to the employer stating that it is conducting an investigation and will ask to review the pay records for male and female employees. The Directed Investigation is similar to an audit by the Department of Labor, but the focus is on whether discrimination has occurred on the basis of gender.

Employers should conduct an internal audit of their payroll records to ensure that men and women are paid equally for equal work. Discrepancies in pay between men and women must be tied to legitimate, non- discriminatory reasons which are applicable to the job. These reasons could include differences in education, experience and seniority.

The failure to conduct an internal equal pay audit may result in problems for the employer if it faces an EEOC Charge or Directed Investigation. Be proactive and conduct the audit now to avoid problems in the future.

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What To Do When The EEOC Comes Knocking

Recently the EEOC listed the 10 states which produced the most charges of discrimination in 2012.  To my suprise Tennessee was 10th on the list.

If your business receives an EEOC Charge (or a charge from a state human rights agency such as the Tennessee Human Rights Commission) you should take the following steps:

1. Litigation Hold- Immediately take steps to preserve all documents which might be relevant to the allegations in the charge.  This process, commonly referred to as a litigation hold, requires you to preserve hard copies as well as electronically stored information, and to suspend normal document retention/destruction practices and policies.

2. Notify your insurer- If you have Employment Practices Liability Insurance send the carrier written notice of the charge.  The failure to do so could result in the insurer denying coverage based on your failure to promptly notify it of the allegations.

3. Notify your attorney- Because statements made in the position statement and the response to the request for information are admissions which can be used against you, and the failure to assert certain defenses might result in  a waiver,  it is important that you get your attorney involved at the outset. If you have EPLI insurance the insurer will likely provide an attorney for you.

4. Investigate- If the charge presents allegations which are new or that have not previously been investigated a prompt, thorough investigation should be conducted.

5. Need to Know- In order to reduce “water cooler gossip” and to avoid retaliation claims,  you should only provide information about the charge to those who have a legitimate need to know the information.

The EEOC charge is often the first stage of what becomes lengthy, costly litigation.  Make sure you are taking the proper steps at the outset to give your business the best possible chance of prevailing.

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Fifth Circuit Holds Title VII Protects Nursing Mothers From Being Fired For Expressing Breast Milk

Recently the U.S. Court of Appeals for the Fifth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act,  protects nursing mothers from being fired for lactating or expressing breast milk.  The plaintiff was allegedly fired after asking to use a breast pump at work.  In reaching its decision the Court held that firing someone because of lactation or breast pumping is sex discrimination.

This is a big victory for the EEOC, who brought the case on behalf of the plaintiff.  This win also highlights one of the EEOC’s priorities in its Strategic Enforcement Plan, which is to identify emerging areas in equal employment law, including pregnancy-related issues.

Most employers know that the Fair Labor Standards Act was amended in 2010 to require them to provide both a reasonable break time and a place, other than a bathroom, for an employee to express breast milk for up to a year after a child’s birth.  The Fifth Circuit has now made it clear that Title VII also protects employees who are fired for expressing breast milk.

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What to expect from the EEOC in 2013

Late last month the EEOC issued its Strategic Enforcement Plan for 2013.  The Plan sets forth 6 priorities:

1. Eliminating Barriers in Recruitment and Hiring;

2. Protecting Immigrant, Migrant and Other Vulnerable Workers;

3. Addressing Emerging and Developing Issues;

4. Enforcing Equal Pay laws;

5. Preserving Access to the Legal System; and

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Based on these priorities I recommend employers take the following steps:

1. Conduct an internal “equal pay audit” to ensure that male and female employees are being paid the same for equal work;

2. Conduct anti-harassment training for your entire workforce;

3. Conduct an internal audit of your compliance with immigration laws, including Form I-9, and;

4. Conduct an internal audit to ensure that there are not discriminatory differences in pay for any employees.

Any issues that are discovered should be corrected.

Happy New Year!

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