Wyatt Employment Law Report

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Court Upholds Large Judgment Against EEOC For Bringing Frivolous Lawsuit

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:


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EEOC Holds Public Meeting To Explore the Use of Credit Histories as Employee Selection Criteria

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission (EEOC) held a public Commission meeting on October 20, 2010, to take testimony from various stakeholders, social scientists and the Federal Trade Commission regarding the growing use of credit histories by employers in making hiring decisions.

 As stated in the EEOC’s press release, “High unemployment has forced an increasing number of people to enter or re-enter the job market,” said EEOC Chair Jacqueline A. Berrien.  “As a result, an ever increasing number of job applicants and workers are being exposed to employment screening tools, such as credit checks, that could unfairly exclude them from job opportunities.  Today’s discussion provided important input into our agency’s work to ensure that the workplace is made free of all barriers to equal opportunity.”

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Federal Stimulus Plan Spending Means More OFCCP Compliance Reviews

By Michelle D. Wyrick

The federal government’s stimulus plan spending has resulted in an increase in federal contracting, which has in turn caused an increase in affirmative action enforcement efforts. The Office of Federal Contract Compliance Programs (“OFCCP”) is authorized to conduct compliance reviews to ensure that contractors who received funds under the 2009 American Recovery and Reinvestment Act (“ARRA”) comply with affirmative action requirements contained in Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. The OFCCP expects to conduct at least 450 compliance evaluations of new and existing contractors over the next year, although the OFCCP will track its ARRA-related enforcement activities separately from its other enforcement activities. The OFCCP has posted its directive on procedures for scheduling and conducting compliance evaluations of ARRA-funded contractors at http://www.dol.gov/esa/ofccp/arra_data/ARRA_Directive_Transmittal288.pdf.  It has also posted a corresponding document containing frequently asked questions at http://www.dol.gov/esa/ofccp/arra_data/ARRA_FAQs.pdf.

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Supreme Court Rules Against City of New Haven in Test Bias Case

By George J. Miller

On June 29, 2009, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Ricci v. DeStefano. This case involved the issue of racial bias in connection with the use of test results for purposes of promotion to the ranks of lieutenant and captain in the New Haven, Connecticut fire department. In 2003, the city administered objective examinations to identify firefighters best qualified for promotion. The test results showed that white candidates had outperformed racial minority candidates to such an extent that, except for two Hispanic candidates, no racial minority candidates would be promoted to existing vacancies. Because of this outcome, city officials expressed concern that the tests had discriminated against minority candidates. The city feared that if it certified the test results, a lawsuit would ensue which could find the city liable for race discrimination in the promotion process. Consequently, after much deliberation, the city decided not to certify the test results. As a result, no one was promoted, including  Continue reading