Wyatt Employment Law Report


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The AARP’s Position on EEOC Wellness Program Rules

insurance_photoBy Amanda Warford Edge

While the focus in the Bluegrass state over the past couple of weeks has been on horses and bourbon, a lobbying group for older Americans — the AARP — has asked a federal judge in Washington, D.C. to rule that the EEOC’s new guidelines for employee wellness programs are illogical and arbitrary.  According to the AARP, the guidelines allow companies to violate workers’ medical privacy rights.  The AARP filed its summary judgment motion on Friday, April 28.  The lawsuit was initially filed in October 2016.  Wellness programs, of course, include programs where an employer provides incentives for workers to quit smoking, lose weight or undergo preventative health screenings, among other things.  Workers who participate in such programs are usually asked by employers to provide certain confidential medical information.

Previously, the EEOC had maintained that any financial incentive rendered wellness programs involuntary.  In adopting new guidelines last year, the EEOC ruled that Continue reading


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Do Your Severance Agreements Violate Federal Law?

By Michelle Wyrick

Resume near laptop --- Image by © Kate Kunz/Corbis

In light of the enforcement positions taken recently by the Securities and Exchange Commission (“SEC”) and the Occupational Safety and Health Administration (“OSHA”), which administer several whistleblower statutes, employers (and especially publicly-traded companies) should review the release provisions in their severance agreements and update them if needed.

For many years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers may not require employees who sign severance and release agreements to waive their rights to file charges with the EEOC or to participate in EEOC investigations.  The EEOC, however, has permitted employers to require employees to waive any right to monetary recovery in connection with any EEOC charges filed.  See EEOC Enforcement Guidance Non-Waivable Employee Rights under Equal Employment Opportunity Commission (EEOC) Enforced Statutes.

Now, the SEC has taken a more restrictive position.  Last month, the SEC fined two companies for using severance agreements that restricted Continue reading


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Seventh Circuit Rejects Claim of Sexual Orientation Discrimination

By Jordan M. White

rainbow flagJust last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at Continue reading


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EEOC Boasts “Substantial Progress” of Systemic Program

By Courtney Ross Samford

Last week, the EEOC released a review of its efforts to combat systemic discrimination over the last decade.  The review, which comes on the 10th anniversary of its 2006 Systemic Task Force Report, boasts that the EEOC “has made substantial progress in building a systemic program that is strategic, nationwide, coordinated, and supported across the agency.”

According to Chair Jenny Yang, the “EEOC’s systemic program has opened up job opportunities for women in traditionally male industries, for African Americans and Latinos barred by background checks, workers with disabilities screened out by medical inquiries, and for older workers shut out by stereotyping” and “worked to remove discriminatory obstacles to equal opportunity and to institute promising practices in thousands of workplaces.”

The review notes that every district has initiated systemic investigations and lawsuits, and that investments in hiring and training have led to a 250 percent increase in systemic investigations over the last five years.  According to the EEOC, its systemic litigation program has Continue reading


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EEOC Issues New Resource Document Addressing Employer-Provided Leave and the Americans with Disabilities Act

By Michelle Tolle High

EEOCOn May 9, 2016, the U.S. Equal Employment Opportunity Commission issued a new resource document addressing the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act.  According to the EEOC, the document does not create a new agency policy, but is a resource document explaining how existing EEOC policies and guidance apply to specific situations.  It is intended to consolidate the existing guidance on ADA and leave into one document, and to address issues that frequently arise regarding leave as a reasonable accommodation.  In addition, the document addresses undue hardship issues and the amount or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact of such leave on an employer’s operations.

The resource document provided by the EEOC indicates that some employers may not know that they have to modify existing policies that limit the amount of leave employees can take when an employee with a disability needs additional leave as a reasonable accommodation.  It also addresses the fact that Continue reading


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EEOC Weighs In On Bathroom Issue for Transgender Employees

By Michelle Wyrick

Following recent news reports about Target’s bathroom controversy and North Carolina’s bathroom law, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet outlining its views on bathroom access rights for transgender employees under Title VII of the Civil Rights Act.  You can view the Fact Sheet here.

According to the EEOC, Title VII’s prohibition on sex discrimination also prohibits discrimination based on gender identity and sexual orientation.  Consequently, denying a transgender employee access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination.  An employer cannot require an employee to provide proof of surgery or any other medical procedure in order to use a particular restroom.  Nor can an employer avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom (although an employer can make a single-user restroom available to all employees who choose to use it).  The hostility or discomfort of other employees cannot overcome the right of a transgender employee to use the restroom corresponding with his or her gender identity.  Moreover, contrary state law is no defense.  Sorry, North Carolina.


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Is It Time for an Internal Audit to See if Your Company’s Compensation is in Compliance with the Law? What We Can Learn From the U.S. Women’s Soccer Team Suit

By Sharon L. Gold

wage increaseThis month, five members of the U.S. Women’s National Soccer team filed a wage disparity complaint with the EEOC against the U.S. Soccer Federation.  The Women’s team alleges that despite the fact that they are doing equal work, they are not receiving equal pay as the Men’s National Soccer Team.  The Women’s team alleges their top-tier players earn between 38% and 72% of their male counterparts, although the Women’s Team is more successful.  One article noted that in 2015, they were paid far less for winning the tournament than the men were paid to lose their tournament.  The EEOC will investigate the complaint and then make a decision as to the validity of the women’s claims.

The EEOC has jurisdiction over claims alleging discrimination in pay under the Equal Pay Act of 1963, Title VII, ADEA, and ADA.  The EPA requires that men and women be given equal pay for equal work.  In order for jobs to be considered equal, they must be substantially equal.  In order to make this assessment, the EEOC looks to Continue reading