Clothing retailer Abercrombie & Fitch (“Abercrombie”) refused to hire Samantha Elauf (“Elauf”), a practicing Muslim, because the headscarf required by her religion violated Abercrombie’s “Look Policy” prohibiting “caps” of any kind. Although Elauf’s interviewer informed the store manager that she believed “Elauf wore her headscarf because of her faith,” the store manager directed her not to hire Elauf. Elauf did not mention her faith and/or religion to her interviewer or the store manager prior to their decision. After Abercrombie refused to hire Elauf, the EEOC sued Abercrombie on Elauf’s behalf, claiming religious discrimination under Title VII. The District Court granted the EEOC summary judgment on the issue of Continue reading
By Sharon L. Gold
On November 17, 2014, after the end of EEOC’s fiscal year (FY 2014), the EEOC released its Performance and Accountability Report (PAR) that discussed the agency’s goals and outcomes and provided statistics for the past year. Some highlights of the PAR:
- According to the PAR, in FY 2014, the EEOC met, partially met or exceeded its target results in all 14 measures of its 2012-2016 Strategic Enforcement Plan. The EEOC obtained $296.1 million in monetary damages for claimants alleging employment discrimination in the private and state and local government sector. The EEOC obtained $22.5 million through litigation involving private sector employers and $74 million for public sector employees.
- There were 88,778 charges in FYI 2014, which was down about 5,000 from FY 2013. The EEOC claims that fewer charges were resolved than in FY 2013 (9,810 less) because of the government shut-down and sequestration. Although there was a hiring freeze early on in the year, the EEOC hired 300 new employees at the end of the year. EEOC Chair Jenny R. Yang states in the PAR that she hopes that increased hiring and investments in technological advances will help with the agency more quickly and efficiently investigate charges.
- In FY 2014, the EEOC’s education and outreach program sponsored 3,512 free trainings and events. The National Training Institute trained over 18,000 people at 420 events. The NTI focuses on the Strategic Enforcement Plan priorities.
- The EEOC’s mediation program resolved 7,846 disputes out of the 10,221 mediations that were conducted, resulting in $144.6 million in compensation for the claimants.
- The EEOC filed 133 lawsuits this year, which included 105 individual suits, 11 non-systemic class suits, and 17 systemic suits. The 136 merits lawsuits were resolved and obtained $22.5 million for the claimants. At the end of the year, the EEOC had a backlog of 228 cases on its active docket.
- The EEOC continued to focus on systematic enforcement, completing 260 systemic investigations that resulted in 78 settlements and $13 million in monetary relief.
- Systemic lawsuits make up the largest proportion of active suits, consisting of 25 percent of all active merits suits and 13 percent of total merits filings this year.
The main takeaway from the EEOC’s PAR is that it is evident that the EEOC is continuing to aggressively pursue systematic discrimination claims. Also, it is apparent that the EEOC’s backlog continues to be a problem for both parties involved in the dispute. Hopefully the additional staff hired this year will decrease the time a charge is pending.
The Press Release about the Performance and Accountability Report is available at:
The Performance and Accountability Report is available at:
By Edwin S. Hopson
On July 21, 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.
The Executive Order is an amendment to Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965, and enforced by the Labor Department’s Office of Federal Contractor Compliance Programs.
Commenting on his action, “…the President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.”
For more information about Executive Order 11246, see:
by Michael D. Hornback
On January 14, 2014, the U.S. Court of Appeals for the Sixth Circuit reversed a grant of summary judgment in favor of the employer, finding that a jury should determine whether the lateral transfer of an employee constituted an adverse employment action. Continue reading
By Edwin S. Hopson
The U.S. Court of Appeals for the Sixth Circuit in EEOC v. Peoplemark, ___ F3rd ___, No. 11-2582 (2013) recently affirmed a judgment against the U.S. Equal Employment Opportunity Commission in the sum of $751,942 for attorney fees and costs sought by Peoplemark, which claimed that EEOC’s action brought against it was frivolous. The Court of Appeals, in a 2-1 decision, agreed that EEOC’s claim that the company had a policy of denying employment to convicted felons and that it was unlawful and had a disparate impact on African-Americans lacked merit and was frivolous. The company early on in the process had established that it had in fact hired convicted felons. It would not be surprising if the EEOC sought review of this decision by the U.S. Supreme Court.
The Court of Appeals decision can be found at:
By Glen M. Krebs
The U.S. Citizenship and Immigration Services (USCIS) is reminding all employers that beginning today, May 7, 2013, they must start using the revised Form I-9, Employment Eligibility Verification (Revision 03/08/13)N for all new hires and reverifications.
All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States.
Note: the revision date for the new Form I-9 is printed on the lower left corner of the form. Also, employers need not and should not complete a new Form I-9 for existing employees if a properly completed Form I-9 is on file.
USCIS advises that a Spanish version of Form I-9 (revision 03/08/13)N is available on its website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version for reference, but must complete and retain the English version of the I-9 form.
The revised forms are available at www.uscis.gov/I-9. And for more information, you may call 888-464-4218. Government representatives are available Monday through Friday, from 8 a.m. to 5 p.m. USCIS also maintains a website, I-9 Central, to support Form I-9 users.
To order forms, you can contact USCIS at 1-800-870-3676. For free downloadable forms and information on USCIS programs, immigration laws, regulations, and procedures, you can visit www.uscis.gov.
By Emily C. Lamb
The end of the year is a time of joy and celebration as much of the American workforce observes one or more of the religious holidays. Yet employers sometimes struggle as to how to celebrate these holidays while recognizing the diversity of religious beliefs. As the holiday season rolls into full swing, it is particularly important for employers to remember their obligation to accommodate employees’ requests to observe religious practices.
Both Federal and state law make it unlawful for employees to discriminate against employees on the basis of religion. “Religion” includes all aspects of religious observance, practice, and beliefs. It includes not only traditionally recognized religions, but also unorganized religions and non-traditional belief systems. Employers must make reasonable accommodations to the sincerely held religious beliefs of employees when the accommodations can be made without undue hardship. In other words, an employer must accommodate an employee’s religious beliefs unless the employer can show that the accommodation request imposes more than minimal cost to the operation of the employer’s business.
One commonly recognized reasonable accommodation is granting employees time off for religious observances. While many employers in the United States provide time off for the traditional Christian holidays, the ever growing diversity of the American workforce means that employers need to be able to accommodate a variety of religious beliefs and practices. This means that employers should adopt a more flexible attitude towards employees whose religious beliefs don’t coincide with a traditional work schedule.
One approach is to use “floating holidays,” which allow employees to take paid time off for holidays that are not included on the company calendar. Another approach is to permit employees to work calendared holidays in exchange for paid days off to celebrate non-calendared religious holidays. A third and increasingly popular option is the use of paid time off. This highly flexible approach gives employees a set number of hours of paid leave which the employees may use for any reason, including holidays.
Religious observance requests are not necessarily limited to time off of work. They may include a variety of requests ranging from exceptions to dress code standards, modifications of work schedules, and authorization of various expressions of religion in the workplace such as the display of religious symbols. As with requests for time off, employers should remain flexible and make reasonable accommodations to the religious needs of employees where such accommodations can be made without undue hardship.
Employers always need to be mindful of all requests for religious accommodation. This is especially important during this time of year when employers are likely to make requests to observe an array of religious holidays. By remaining flexible and engaging with employees to determine how to best accommodate employees’ requests while maintaining a successful work environment, employers can fulfill their legal obligations while enabling their employees to fully celebrate the holiday season.