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SHRM Notice (June 2019): 

Employee Can Proceed with Bias Lawsuit Despite Failure to File EEOC Charge

An employer waited too long after an employee filed a discrimination lawsuit to point out that the worker failed to properly file a charge with the Equal Employment Opportunity Commission (EEOC) before suing in court. Therefore, the employer forfeited its argument that the lawsuit should be dismissed because the employee failed to exhaust administrative remedies, the U.S. Supreme Court affirmed.

In the case, Fort Bend County, Texas v. Davis, the Supreme Court ruled in a unanimous opinion that "the requirement to file charges with the Equal Employment Opportunity Commission or similar state agencies isn't a jurisdictional issue."  In other words, the onus is on employers to assert in a timely way that a plaintiff failed to meet the charge-filing requirements under Title VII of the Civil Rights Act of 1964, or they waive that defense, said JoLynn Markison, an attorney with Dorsey & Whitney in Minneapolis. 

Employers and their counsel should bring any procedural defects to the court's attention at the earliest practical juncture, said David Morrison, an attorney with Goldberg Kohn in Chicago.

The high court clarified, however, that employees cannot simply ignore Title VII's administrative exhaustion requirement. An employee could still have a claim tossed out of court if she or he doesn't first file a charge with the EEOC or relevant state agency, said Paul Goatley, an attorney with Fisher Phillips in Louisville, Ky., and Jeffrey Fritz, an attorney with Fisher Phillips in Boston, in a joint statement.

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Take Immigration Seriously:

The U.S. Department of Homeland Security's Immigration and Customs Enforcement (ICE) imposed substantial fines on a small transportation employer for I-9 form violations. The majority of the fines were upheld by the 2nd U.S. Circuit Court of Appeals.

Section 274A(b) of the Immigration and Nationality Act requires employers to verify that their employees are legally authorized to work in the United States. Employers must prepare the Employment Eligibility Verification Form (known as the I-9 form) within three days of hire. An employer may be "considered to have complied" with the I-9 requirements if there is only a "technical or procedural" mistake on the form. However, failure to prepare an I-9 at all constitutes a substantive violation pursuant to Immigration and Naturalization Service guidance.

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Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

The Age Discrimination in Employment Act (ADEA) covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.

The Equal Pay Act (EPA) covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.
 

     Supply or Service - with federal contracts/subcontracts, totaling more than $50,000, with less than 50 employees

    Supply or Service - with federal contracts/subcontracts totaling more than $50,000, with more than 50 employees

    Supply or Service with federal contracts/subcontracts totaling over $10,000, but less than $50,000, with more than 15   employees

    Supply or Service without federal contracts or subcontracts (with at least 15 or more employees)

    Construction - with federal contracts/subcontracts or federally assisted construction contracts totaling less than $10,000

    Construction - with federal contracts/subcontracts or federally assisted construction contracts in excess of $10,000

    Construction - with no federal contracts/subcontracts or federally assisted construction contracts

    Agency is a federal government agency

    Facility is city, state, or county government

    Facility - university/college (higher education), with federal contracts/ subcontracts of $50,000 or more

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 TO REVIEW THE EEOC OBLIGATIONS FACT SHEET FOR SMALL BUSINESSES ~ CLICK HERE

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Here is additional jurisdiction information from the OFCCP web site:

What entities are subject to the requirements of Executive Order 11246?

 If a business or organization has a Federal contract, subcontract, or federally assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single Federal contract, subcontract, or Federally assisted construction contract in excess of $10,000.00; (2) has Federal contract or subcontracts that combined total in excess of $10,000.00 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount will be subject to requirements under one or more of the laws enforced by OFCCP.

 If a State or local government has Government contracts, is it subject to the requirements of Executive Order 11246?

 Yes, if the contracts meet the threshold for coverage. However, the requirements of Executive Order 11246 apply only to the agency, instrumentality or subdivision of the State or local government that participates in work on or under the Government contract or subcontract. Further, except for universities and medical facilities, a State or local government agency, instrumentality, or subdivision that has a Government contract is exempt from the requirement to develop and maintain a written affirmative action program.

 Our business operates as a fund depository, and an issuing and paying agent for U.S. Saving Bonds and savings notes; therefore, are we required to comply with the Affirmative Actions Program (AAP) obligations under Executive Order (E.O.) 11246, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended, 38 U.S.C. 4212 and Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended?

 The E.O. 11246 implementing regulations at 41 CFR 60-1.40(a) and 60-2.1(b) state, in relevant part, that any nonconstruction (Supply and Service) contractor that serves as a depository of Government funds in any amount or a financial institution which is an issuing and paying agent for U.S. saving bonds and saving notes in any amount must develop an affirmative action program. To view the above regulation, click on http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-1/41CFR60-1.40.htm.

 Under Section 503, a Government contractor with 50 or more employees and a Government contract of $50,000 or more must develop a Section 503 affirmative action program. 41 CFR 60-741.40(a). The Section 503 regulations define a Government contract as "any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services." 41 CFR 60-741.2(i). The term "nonpersonal services" as used in this section includes fund depository. 41 CFR 60-741.2(i)(4). Thus, the agreement to serve as a Federal funds depository is a "Government contract." To view the regulation, click on http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-741/41CFR60-741.2.htm.

 Under Section 503, however, all government contracts must meet the dollar threshold amount of $50,000 for coverage. Therefore, if you serve as a depository for Federal funds of $50,000 or more, or have an agreement valued at $50,000 or more to be an issuing and paying agent for savings bonds and notes, you would be obligated to develop and maintain a Section 503 affirmative action program.

 The same holds true under VEVRAA as under Section 503 for any Government contractor with 50 or more employees and a contract of $50,000 or more to serve as a depository of Federal funds or as an issuing and paying agent for savings bonds and notes, if the Government contract was entered into before December 1, 2003. To view the regulation, click on .

 However, the Jobs for Veterans Act (JVA) amended VEVRAA by raising the dollar threshold amount required for contract coverage to $100,000. The new threshold applies to contracts entered on or after December 1, 2003. Accordingly, if your business or organization became a fund depository or an issuing and paying agent for savings bonds and notes on or after December 1, 2003, it would also be subject to the written AAP requirement under VEVRAA if the contract is for $100,000 or more.

 Is a financial institution that is covered by the Federal Deposit Insurance Corporation (FDIC) for insurance coverage subject to the Affirmative Actions Program (AAP) requirements under Executive Order 11246, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended, 38 U.S.C. 4212 and Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended?

 Financial institutions with federal share and deposit insurance are considered to be government contractors within the meaning of the regulations implementing Executive Order 11246, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended, 38 U.S.C. 4212 and Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended. These three programs enforced by the Office of Federal Contract Compliance Programs (OFCCP) require equal employment opportunity by government contractors.

The implementing regulations for Executive Order 11246 (41 CFR 60-1.3), have consistently defined a government contract as any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. The term "nonpersonal services" as used in this section includes, but is not limited to, the following services: utilities, construction, transportation, research, insurance, and fund depository. This definition explicitly includes agreements for insurance. To review the definition, click on http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-1/41CFR60-1.3.htm .

 The implementing regulations for the VEVRAA and Section 503 programs, found at 41 CFR 60-250.2 ( http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-250/41CFR60-250.2.htm ) & 60-741.2 ( http://www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-741/41CFR60-741.2.htm) respectively, also define a government contract as any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. The term "nonpersonal services" as used in this section includes, but is not limited to, the following services: utilities, construction, transportation, research, insurance, and fund depository. This definition also explicitly includes agreements for insurance. Therefore, financial institutions with federal share and deposit insurance are considered to be government contractors.

For additional information, this position was addressed in the following preamble text to a 1996 VEVRAA proposed rule:

The purpose and application section of the 1980 final rule (Sec. 60-250.1) states that Part 60-250 applies to all Government contracts, "including Federal deposit and share insurance." The preamble to the 1980 final rule (45 FR 86218) states that OFCCP believes that Federal deposit and share insurance are contracts within the meaning of Section 4212. In the course of preparing its 1996 final rule implementing Section 503, OFCCP conducted a careful and detailed reevaluation of its position in light of changes in some of the statutes affecting the financial industry. Based upon that review, OFCCP continues to believe in the soundness of its position. However, today's proposal differs from the 1980 final rule in that it does not expressly state that the regulations cover Federal deposit and share insurance. The proposal does not otherwise make reference to the precise subject matter of particular types of covered contracts, and therefore OFCCP no longer considers it necessary to single out deposit and share insurance for express mention in the regulations. OFCCP wishes to reemphasize that it will continue to maintain its long-standing policy of imposing sanctions other than debarment of financial institutions from future deposit or share insurance, or cancellation, termination or suspension of a financial institution's deposit or share insurance for violations of Section 4212.

To review the entire text of the 1996 VEVRAA proposed rule, click on http://www.dol.gov/esa/regs/fedreg/proposed/96_23638.htm.

Is a hospital or other health care provider covered under the laws enforced by OFCCP as a result of the reimbursements it receives for medical care and services provided to Medicare or Medicaid patients?

The provider agreements, pursuant to which hospitals and other health care providers receive reimbursement for services covered under Medicare Parts A and B, and the provider agreements that hospitals and other health care facilities have entered into with State Medicaid agencies, are not covered Government contracts under the laws enforced by OFCCP. Accordingly, a hospital or other health care provider is not covered under the laws enforced by OFCCP if its only relationship with the Federal government is as a participating provider under Medicare Parts A and B and Medicaid. Please note that a hospital or other health care provider may be a covered contractor because of other contractual arrangements, such as providing health care to active or retired military under a contract with the Department of Veterans' Affairs or the Department of Defense. Likewise, a teaching hospital doing research for a university that has a contract with the Federal government may be covered.
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FACT SHEET: Taking Action to Support LGBT Workplace Equality is Good For Business

America is built on the fundamental promise that if you work hard, and play by the rules, you can get ahead. But today, millions of Americans in most states in the country go to work every day fearing that they could lose their jobs simply because of who they are or who they love. No current federal law adequately protects lesbian, gay, bisexual, and transgender (LGBT) workers from employment discrimination. This is completely contrary to our values as Americans – and it’s also bad for business.

President Obama declared 2014 a year of action – working with Congress where they’re willing, but acting where he can when they refuse to take action. As part of this commitment to expanding opportunity for hardworking Americans, today, the President will sign an Executive Order prohibiting federal contractors from discriminating against LGBT employees and prohibiting discrimination based on gender identity in federal employment.

At a critical time for our nation’s economy, we need all of our workers to be focused on making the most of their talent, skill, and ingenuity, rather than worrying about losing their job due to discrimination. The economy functions best when workers are matched to the jobs with the best fit, maximizing their productivity, increasing wages and helping the bottom line for businesses. Discrimination is not just wrong, it also can keep qualified workers from maximizing their potential to contribute to the strengthening of our economy. For decades, companies have found that benefits and inclusive, flexible, and supportive workplace policies make it easier and more cost effective to recruit, retain, and motivate employees. The same logic applies to extending these basic protections and policies to LGBT workers.

American workers should be judged by one thing only: their ability to get the job done. That’s why the President has long supported federal legislation to explicitly prohibit employers across the country from discriminating on the basis of sexual orientation or gender identity. For forty years, Congress has considered various pieces of legislation meant to address LGBT workplace equality. Last November, the Senate passed the Employment Non-Discrimination Act (ENDA) with strong bipartisan support. However, the House has failed to act.

Today’s action is consistent with the President’s commitment to advancing equality for the LGBT community, as well as his commitment to expanding opportunity for American workers and strengthening American business. And it is consistent with actions being taken by employers, including many federal contractors, across the country to support workplace equality, because they recognize it improves productivity, reduces turnover and supports their bottom line.

Workplace Inequality Still Impacts Millions of LGBT Workers. Today, only 18 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity, and no federal law adequately protects LGBT workers from being fired because of who they are or who they love. According to surveys and studies, more than four in ten lesbian, gay, and bisexual people have experienced some form of employment discrimination based on their sexual orientation at some point in their lives, and 90% of transgender employees have experienced harassment, mistreatment or discrimination on the job.

Employers Are Taking Action on Their Own to Support Workplace Equality – Because They Recognize It Is In Their Interest: According to an analysis of 36 research studies by the Williams Institute at the UCLA School of Law, “LGBT-supportive policies and workplace climates are linked to greater job commitment, improved workplace relationships, increased job satisfaction, and improved health outcomes among LGBT employees.”

Fortune 500 Companies Support LGBT Workplace Equality. Most of America’s major companies know that workplace equality is important to staying competitive and retaining their best talent, and as a result, nondiscrimination policies are good for business. 91% of Fortune 500 companies already prohibit discrimination based on sexual orientation; and 61% already prohibit discrimination based on gender identity.

Small Businesses Support LGBT Workplace Equality. According to research conducted by Small Business Majority, six in ten small business owners believe that employment nondiscrimination laws improve their bottom line by helping employers attract the best and brightest employees. And of small business owners who have adopted nondiscrimination policies to protect LGBT workers, 86% report that nondiscrimination policies cost them “nothing or next to nothing,” 2% said such policies had a small but significant cost, and none said they had a substantial cost.

Many Federal Contractors Already Have Policies on LGBT Workplace Equality. Of the largest 50 federal contractors, which represent nearly half of all federal contracting dollars, 86% prohibit sexual orientation discrimination and 61% prohibit discrimination based on gender identity. In addition, the five top federal contractors, which receive nearly a quarter of all federal contracting dollars, already bar discrimination based on both sexual orientation and gender identity.

The American Public Supports LGBT Workplace Equality. A recent national survey of 1,200 registered voters found that 63% of those surveyed favor a federal law that protects LGBT people from employment discrimination. When asked specifically about LGBT nondiscrimination in federal contracting, another poll found that 73% of those surveyed favor such policies.

States and Local Jurisdictions Support LGBT Workplace Equality. Over the last several years, there has been significant progress in moving LGBT inclusive non-discrimination laws through statehouses and city halls across the nation. Since 2011, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, and Nevada have added gender identity to their existing employment non-discrimination laws. Today, 18 states and the District of Columbia have inclusive non-discrimination laws, and over 200 cities and counties – from small towns like Bozeman, Montana and Vicco, Kentucky to large cities like Houston, Texas and Atlanta, Georgia – prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Nine of the ten most populous cities in the country already have these protections in place.   

                    
Diverse Faith Communities Support LGBT Workplace Equality. A diverse range of religious communities  and organizations support workplace protections, including the Presbyterian Church (U.S.A.); United Methodist Church, General Board of Church and Society; The Episcopal Church, the United Church of Christ, Justice and Witness Ministries; and the Union of Reform Judaism. Majorities of Christian denominations polled support workplace protections, including 76% of Catholics, 75% of white mainline Protestants, 61% of minority Protestants, and 59% of white evangelical Protestants. Another poll shows that 74% of born-again Christians favor LGBT workplace protections. 

Additional Information about President Obama’s Executive Order

Executive Order 11246, issued by President Lyndon B. Johnson, prohibits federal contractors from discriminating “against any employee or applicant for employment because of race, color, religion, sex, or national origin.” President Obama’s Executive Order will add sexual orientation and gender identity to the list of protected categories.

President Obama’s Executive Order does not allow for any exemption beyond the one added by Executive Order 13279, issued by President George W. Bush, which permits religiously affiliated contractors to favor individuals of a particular religion when making employment decisions, by specifying that Executive Order 11246, “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.” In addition, under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit.

Executive Order 11246 governs only federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business in one year. It does not affect grants and President Obama’s Executive Order does not impact the administration of federal grants. The Order is administered and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). As part of these duties, OFCCP conducts compliance reviews, receives complaints from individuals who believe they have been discriminated against, and provides technical assistance to contractors regarding their contractual obligations. More information can be found at www.dol.gov/ofccp.

Executive Order 11478, issued by President Nixon, bars discrimination against federal employees on the basis of race, color, religion, sex, national origin, disability, and age, and was amended by Executive Order 13087, issued by President Clinton, to include sexual orientation. 

President Obama’s Executive Order will add gender identity to the list of protected categories.  The Equal Employment Opportunity Commission and other federal agencies already apply Title VII of the Civil Rights Act of 1964 to protect federal employees from discrimination on the basis of gender identity as a form of sex discrimination. The President believes it is important to explicitly prohibit – in both Executive Action and in legislation – discrimination on the basis of gender identity.

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The New Regulations:
Vietnam Era Veterans’ Readjustment Assistance Act
OFCCP’s New Regulations to Improve Job Opportunities for Protected Veterans

CLICK HERE FOR THE EEOC WEBSITE PAGE:  http://www.dol.gov/ofccp/regs/compliance/vevraa.htm

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New Regulations:
Section 503 of the Rehabilitation Act
OFCCP’s New Regulations to Improve Job Opportunities for Individuals with Disabilities

CLICK HERE FOR THE EEOC WEBSITE PAGE:  http://www.dol.gov/ofccp/regs/compliance/section503.htm

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Smokers have harder time getting jobs, study finds

A study comparing employment in smokers and nonsmokers showed that by 12 months, smokers were less likely to have found a job than nonsmokers, and those who did earned less than nonsmokers.

April 2016 - A one-year longitudinal study by researchers at the Stanford University School of Medicine strongly suggests that smokers remain unemployed longer than nonsmokers. And when smokers do find jobs, they earn substantially less than nonsmokers.  For details, go to: 

http://med.stanford.edu/news/all-news/2016/04/smokers-have-harder-time-getting-jobs-study-finds.html

SMOKER’S RIGHTS LAWS IN THE US – there are 29 states with laws against discriminating against smokers.  Go to:   http://www.usatoday.com/story/news/politics/2014/01/09/indiana-smokers-bill-of-rights/4389149/

This is part of Kentucky’s law:  Kentucky Revised Statutes (KRS Chapter 344)

344.040 Unlawful discrimination by employers –

http://www.lrc.ky.gov/Statutes/statute.aspx?id=32605

In a Nutshell:  As long as employees comply with workplace smoking policy, an employer may not discharge or discriminate against that employee in terms of wages, benefits, or conditions of employment because of being a smoker or nonsmoker, or require employee to refrain from using tobacco products outside of work as a condition of employment. A difference in employee contribution rates for smokers and nonsmokers in relation to an employer-sponsored health plan is a lawful practice, as well as the offering of incentives or benefits offered to employees who participate in a smoking cessation program.

 

 

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