Gibbons Law Alert

Gibbons Law Alert

Tagged: Equal Employment Opportunity Commission (EEOC)

Supreme Court Requires “But-For” Causation for Title VII Retaliation Claims

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Posted in Discrimination

On June 26, 2013

In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) must establish that the adverse employment action at issue would not have occurred “but for” an improper motive on the employer’s part. This “but for” causation standard, as opposed to the more plaintiff-friendly “motivating factor” causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.

The U.S. Supreme Court Decides Who is a “Supervisor” for Title VII Purposes

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Posted in Discrimination

On June 25, 2013

Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court’s 2012 Term. The Vance case concerns who is considered a “supervisor” for purposes of establishing an employer’s liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined “supervisor” to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of “supervisor” proposed by the federal government, appearing as amicus curiae, and found in the EEOC’s Enforcement Guidelines, which links “supervisor” status to the ability to exercise direction over the victim’s daily work.

Susan L. Nardone to Speak at Upcoming NJBIA Employment Seminar

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Posted in Discrimination

On April 8, 2013

Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar on Friday, April 12, 2013, at Forsgate Country Club. Ms. Nardone’s panel, “The EEOC: the New Sheriff in Town?,” will discuss how the EEOC’s actions and enforcement priorities can impact New Jersey businesses.

What to Expect from the EEOC in 2013

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Posted in Discrimination

On April 1, 2013

At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.

Employers are Required to Use New Form to Comply with the Fair Credit Reporting Act

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Posted in Policies and Handbooks

On January 25, 2013

Employers must use an updated form in order to comply with the Fair Credit Reporting Act (“FCRA”), which covers background checks for job applicants and existing employees. The new form is for use effective January 1, 2013. No other provisions of the FCRA have changed. The FCRA Regulates the Use of Consumer Information – The FCRA regulates the use of consumer information. Consumer Reporting Agencies (“CRAs”) compile consumer information into detailed “consumer reports,” which may be used by employers for hiring and retention decisions. Employers also may conduct their own investigative consumer reports, which are covered by the Act as well. The FCRA provides notice and authorization requirements for the use of consumer reports and investigative consumer reports.

New Requirements for NJ Employers and for Employers Conducting Business in Newark, NJ

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Posted in Discrimination

On October 3, 2012

Beginning November 12, 2012, the State of New Jersey will require employers to post a new “equal pay” notice in the work place, to provide the notice to employees and to obtain an acknowledgment of receipt. Effective November 18, 2012, the City of Newark will impose restrictions on employers conducting hiring in the City with regard to the use of criminal background checks for job applicants.

EEOC v. United Airlines, Part II — Denying a Disabled Employee’s Request to Fill a Vacant Position as an Accommodation Because More Qualified Candidates are Available Remains Problematic Under the ADA

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Posted in Disability

On September 12, 2012

Four months ago we reported on the decision of the United States Court of Appeals for the Seventh Circuit upholding United Airlines’ position in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) that United did not violate the Americans with Disabilities Act (ADA) by its policy of filling vacant positions with the most qualified candidate even though another employee, unable to perform his own job because of a disability, had applied for the vacant position as a reasonable accommodation. The three-judge panel of the Seventh Circuit that issued that decision has now vacated its opinion and has decided the case in favor of the EEOC. The panel’s reversal of its position is not that surprising. The panel originally ruled in favor of United because it felt bound by a Seventh Circuit ruling in a similar case decided in 2000, EEOC v. Humiston-Keeling. The panel, however, questioned that earlier decision in light of the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett and thus recommended that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). The EEOC promptly moved for reconsideration en banc. Each member of the court expressed the view that EEOC v. Humiston-Keeling should be overruled and, in lieu of formally rehearing the case en banc, simply directed the original panel to vacate its decision and issue a new opinion.

Denying a Disabled Employee’s Request to Fill a Vacant Position as an Accommodation Because More Qualified Candidates are Available Remains Problematic Under the ADA

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Posted in Disability

On May 11, 2012

Are employers obligated, as a reasonable accommodation, to fill a vacant position with an employee whose disability renders him unable to perform his own job when other candidates for the vacant position are more qualified? The position of the Equal Employment Opportunity Commission (EEOC) that employers have that obligation under the Americans with Disabilities Act (ADA) was recently rejected by a three-judge panel of the Court of Appeals for the Seventh Circuit. But the panel took the unusual step of recommending that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). In the great majority of circuits, the issue remains unsettled, and employers must tread carefully when responding to such accommodation requests.

New Updated FMLA Forms Issued by DOL

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Posted in Family Leave

On May 7, 2012

Without any substantive changes, new updated model Family and Medical Leave Act (FMLA) forms have been issued by the United States Department of Labor (DOL) website and are available on the DOL website (in the section for Wage and Hour Division Forms). Employers using the former model FMLA forms on the DOL website should replace their prior versions, which expired on December 31, 201, with the new versions. Employers using their own FMLA forms should include appropriate language to prevent employee disclosure of genetic information prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Such language should generally be included in the employer’s FMLA policies and other employee communications. The Equal Employment Opportunity Commission regulations suggest a “safe harbor” notice to include in such communications to effectively lessen the chance of an inappropriate disclosure of genetic information.

The EEOC Holds that Title VII Protects Transgender Employees

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Posted in Discrimination

On May 2, 2012

In a decision reversing nearly three decades of prior rulings, the Equal Employment Opportunity Commission (“EEOC”) has ruled that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” In doing so, the EEOC – the agency of the United States Government charged with the enforcement of federal anti-discrimination laws – has expanded upon the definition of discrimination “because of sex” expressly bringing transgender individuals within its purview.

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