Age Discrimination Complaints Must Be Specific

Discrimination Protection: The Age Discrimination in Employment Act forbids age discrimination against employees who are age 40 or older. Discrimination based on age involves treatment by an employer when an employee is treated less favorably because of his or her age. Age discrimination can include any aspect of employment including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Employment Policies. An employer’s policy can be discriminatory even when it applies to employees of all ages if it has a negative impact on individuals who are age 40 or older and there is no basis in a reasonable factor other than age.
Trends in Legal Practice. Following a lawsuit in Chicago earlier this year where an adjunct professor was not hired because of her age (66), the Equal Employment Opportunity Commission (“EEOC”) has proposed a regulation to remove birth and graduation dates from job applications. While the status of this regulation is currently unclear it is important for employers and employees to understand their rights. The standard under Nebraska law to establish a claim of intentional age discrimination allows a plaintiff to either present direct evidence of such discrimination or prove his or her claim through circumstantial evidence using the familiar McDonnell Douglas burden-shifting framework. An employee must then prove a causal connection between the alleged discriminatory actions and the resulting negative impact suffered. This action must be based on a specific business practice or particular policy and cannot be sustained by a mere allegation of multiple scenarios which could be determined to be age discrimination. Additionally, age cannot be a pretext when an employer is able to prove other reasons for their negative actions.

Nebraska does allow age to factor into an employer’s decision or policy when the requirements of the job would reasonably require an individual of a certain age.

© 2017 Vandenack Weaver LLC
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by M. Tom Langan, II

The EEOC recently released new procedures that permit an employer’s position statement to be released to the charging party.  A position statement is typically the employer’s first opportunity to respond to a charging party’s complaint.  Prior to this change, whether the position statement could be disclosed varied depending on the applicable EEOC office.  This change was designed to bring uniformity to the process.  In light of this change, employers should complete their position statement with the understanding that it will likely be shared with the charging party. The EEOC encourages employers to refer to, but not actually identify, any confidential information that is part of their response.  The actual confidential information should then be provided under a separate attachment that generally will not be shared with the charging party. The change is effective retroactive to January 1, 2016.

© 2016 Vandenack Williams LLC
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Corporate Wellness Programs Receive Scrutiny From the EEOC

The United States Equal Opportunity Commission (EEOC) has filed a petition, their third in three months, regarding a corporate wellness program. The latest petition alleges that Honeywell International, Inc. violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) through the administration of workplace biometric screening.

The program is similar to those seen at companies across America. The employee receives health care discounts and other financial benefits for undergoing workplace biometric screening and choosing healthy lifestyles. The EEOC claims the program violates the law because it is an involuntary, non-work related, medical inquiry. Second, the EEOC alleges the employer is illegally inducing employees to provide family medical history. If the court views the program similarly, it would be a violation of the ADA and GINA.

It is unclear what this challenge will mean for corporate wellness programs.  In the short term, with the end of year approaching, it will unlikely have an immediate impact. However, it will be important to monitor the evolution of the challenges because it could  change how these programs must be administered or even whether these programs can be offered.

© 2014 Parsonage Vandenack Williams LLC

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Pregnancy Discrimination: The EEOC Provides Employers With Updated Guidance

By Eric W. Tiritilli.

An employee announces she is pregnant, but after the congratulations and good wishes are shared, the questions becomes what, if anything, must an employer do to comply with the Pregnancy Discrimination Act (“PDA”)?  Unfortunately, it had been over 30 years since the EEOC last updated its guidance to employers regarding their obligations under the PDA.  Recently, the EEOC issued new enforcement guidance, an employer Q&A and a fact sheet to aid employers.

As the EEOC noted in its press release – the basic law of the PDA hasn’t changed – as an employer may not discriminate against an employee because they are pregnant and a pregnant employee “must be treated the same as other persons similar in their ability or inability to work”; however, the updated guidance for employers provides important information regarding the EEOC’s interpretation of the law including how the PDA interacts with the Americans with Disabilities Act and provides examples of “best practices” to follow to avoid discrimination.

© 2014 Parsonage Vandenack Williams LLC

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