Rojgar Job News

Earlier this week, the Judiciary Committee (by a 25-16 vote) approved of Senate Bill 132, being labelled by it’s proponents as the “Time’s Up” bill but covers both harassment and discrimination cases. I covered an announcement of this a while back.   As the bill moves closer to consideration now to the state Senate, it’s time for employers to start paying attention to what’s in the bill.  The CBIA has expressed concerns about some aspects of the bill. Here are a few highlights: To require employers to provide every employee with information concerning the “illegality of sexual harassment and remedies available to victimes of sexual harassment”. To require employers of  three or more employees (currently set at 50) to provide two hours of sexual harassment prevention training and with such training being provided not just to supervisory employees, but  all employees. To eliminate affirmative defenses that employers oth...

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers. However, that appears to be just a small part of a wider political battle that is about to be raised. Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers. They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.   The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect). According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws: Require that any notice of sexual harassment remedies and policies...

The supervisor did it. Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”. While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened. (And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.) So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”. What then? Firing? Perhaps. But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the stand...

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them. One area that we can evaluate is whether the training that is provided is effective. A report yesterday from NPR concluded that training is just not working at many workplaces.  The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability. For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed. But I’ve wondered whether we could be doing more. Indeed, the EEOC issued a report last year highlighting the problems with existing training programs. In its executive summary, it noted two big issues with the current model of training: “ Training Must Chang...

A while back, I had a good discussion with a colleague on a topic with no real firm answers. No, it wasn’t on whether the Yankees are better franchise than the Red Sox.  The answer to that is unequivocally yes.  (Sorry, Sox fans.) Rather: When is a employee-related issue a legal one? Or alternatively, when can human resources handle the issue on it’s own? What comes to mind at first is the old Justice Potter Stewart quote of, “I know it when I see it” but that seems unsatisfying. For some smaller employers, the answer may lean more heavily towards “legal” in part because there may not be an in-house human resources professional to call on. But on the flip side, there are some other employers that might rely heavily (perhaps overly so) on their HR contacts to handle matters, trying to avoid unnecessary legal expenses. What I’ve concluded is what I’ve started with — there are no real answers to the question. But I can outline...

Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show. As always, I’m thankful for the invite. My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues. So, is age discrimination still a problem? The answer is plainly “yes”. A related question, though is how MUCH of a problem? And is it getting better or worse? By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent. Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy. An article by The New York Times over the winter raised concer...

Yesterday I had the opportunity (along with my fellow Shipman & Goodwin partner Peter Murphy) to speak as part of the Commission on Human Rights and Opportunities’ (CHRO) 75th Anniversary celebration. The panel — The Barriers to Employment Legal Update and Panel Discussion  — was chock full of the types of insights, data and analyses that is so often overlooked in this Twitter generation. We spent a good 90 minutes talking about the changes that have been going on at the CHRO and talked about what types of changes could be made in the future. Frankly, it’s far too much for one blog post. So I’m going to tackle them in a few posts.  Today’s post: The re-emergence of the Case Assessment Review. Indeed, if you haven’t been before the CHRO in the last year, you may be unaware that this is perhaps one of the biggest changes to the agency procedure over the last year. Hyperbole? Actually no. At least not when you look at the statistics r...

Last year I talked about how the new era of sexual harassment claims was coming.  The open question was: Would the number of claims actually increase? The answer to that is now known: Yes. The Equal Employment Opportunity Commission released its preliminary data regarding workplace harassment today. And it’s findings shouldn’t be a surprise if you’ve been paying attention. Among the notable pieces of data: Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY 2017. The EEOC recovered nearly $70M for victims of sexual harassment through administrative enforcement and litigation, up from $47.5M in FY2017. Reasonable cause findings in harassment claims increased to nearly 1200, up from 900 in FY 2017. And public interest is skyrocketing: The EEOC’s website traffic to its sexual harassment page more than doubled in the last year. In Connecticut, the Commission on Human Rights and Opportunities hasn’t yet rele...

It’s sometimes easy to forget that the government shutdown has very real-world implications. Case in point? The Equal Employment Opportunity Commission. As of now, it’s closed.  The agency has even posted a notice about it on its’ website.  That doesn’t mean that the time limits for filing a charge have been extended.   Generally, federal claims must be filed within 300 days of the alleged discrimination. As noted by the EEOC, “These time limits may not be extended because of the shut-down.” The EEOC thus encourages employees considering filing claims “within 30 days of your time expiring” or unsure “your time expires”, to not wait to file. For employers with matters at the EEOC, mediations have been cancelled.  It is unclear from the shutdown notice whether the EEOC will continue to press the time frames for submitting position statements, but given the lack of action on anything pressing, the agency w...

Earlier this month, the EEOC released its statistics regarding charges for 2018.  I love looking at these because there are certain trends that always pop out. (You can see some prior years here and here.) Here are five big takeaways that employers in Connecticut can learn from these numbers. Charges Continue to Go Down — a Lot.  For the seventh year in a row, the number of charges processed by the EEOC continued to go down.  In 2018, the EEOC handled 76,418 charges, a 9.3 percent drop from 2017.  This is down substantially from the high water mark in 2011 of 99,947 and the lowest total in general since 2006. But, Some Claims are Way Up.  Perhaps not surprisingly given the attention that continues to be paid to the #metoo movement, sexual harassment claims are up. In 2018, the EEOC received 7,609 sexual harassment charges — a 13.6 percent increase from 2017. Sex Harassment Claims are Also More Costly .  The EEOC received $56.6M in mo...

Over the weekend, President Trump tweeted out that several prominent “‘Progressive’ Democrat Congresswomen” (who, it shouldn’t have to be said but does, are all American citizens, most of whom were born in the United States) should  “go back and help fix the totally broken and crime infested places from which they came.” This language has, rightly, been condemned.  But I wondered — what does employment law have to say about this type of language in the private workplace context? Do COURTS conclude that this language can be used to find employment discrimination? As it turns out, courts have quite a bit to say. For example, in Brewster v. City of Poughkeepsie, a District Court refused to overturn a jury verdict against an employer where there was evidence that a similar comment was made to the Plaintiff who was of Cuban national origin. When asked on direct examination if anything was said to her in the station about her race...

Last night, I had the opportunity to attend a terrific little CLE program at the Hartford County Bar Association about practicing before administrative agencies in the state.  And while the discussion regarding the Department of Children and Family Services wasn’t exactly helpful for my own practice, a short presentation by Charles Krich of the Commission on Human Rights and Opportunities was. He offered up a description about the CHRO practice but even more helpful, offered up practice tips and descriptions of the pet peeves of CHRO staff. Among the pet peeves? “Lack of communication makes things difficult. There are some firms, particularly complainant representation, that are difficult to schedule with.” I won’t share all his secrets here on a blog, but as it turns I’ve got the perfect opportunity coming up to talk about this and more. Next week, my colleague Chris Engler and I are presenting “When the CHRO and EEOC Come Calling: Strategies fo...

Can I test my employees for COVID-19? Over the course of the last few months, it feels like the answer to that question has been Yes, No, and It Depends. And maybe all three at the same time. In fact, if you look at my post from April 2020, you’ll see the differences in the guidance between then and, as I’ll explain below, now. Quite simple, with more science, we’re starting to get greater clarity on what testing is permissible for employees. For antibody testing, the CDC recently updated its interim guidance to state that antibody test results “should not be used to make decisions about returning persons to the workplace.” Antibody testing, as it turns out, is not yet the panacea yet that many were hoping for. As a result, on June 17, 2020, the EEOC  also updated its guidance on whether antibody testing could be used by employers as a condition of permitting employees to return to the workplace. The short answer is “No”, it cannot be used...

On January 23, 2019, we reported that the Supreme Court had agreed to review a decision from the Fifth Circuit Court of Appeals, Ft. Bend County v. Davis, which would answer conclusively whether the pre-filing administrative exhaustion requirement is jurisdictional (meaning that failure to fully exhaust administrative remedies would bar litigation) or non-jurisdictional and thus subject to waiver. The Supreme Court issued its decision on June 3, 2019 and ruled that administrative exhaustion is non-jurisdictional and subject to waiver. In Ft. Bend County , Ms. Davis filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment and retaliation. While Ms. Davis’ charge was pending, she was fired, allegedly for going to a church event instead of working as scheduled on a Sunday. Ms. Davis never formally amended her EEOC charge to allege religious discrimination in addition to her other theories, but nonetheless sued on that basis (among others) afte...

As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”).  On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, Sixth, and Eighth Circuits in holding that without evidence that an underlying physiological disorder caused the individual’s extreme obesity, a plaintiff’s weight does not qualify as an impairment under the ADA or the Equal Employment Opportunity Commission’s (“EEOC”) interpretive guidance. In Richardson v. Chicago Transit Authority , the plaintiff, a bus driver weighing nearly 600 pounds, claimed that his employer took adverse action against him because of his morbid obesity in violation of the ADA.  However, his employer – the Chicago Transit Authority, Chicago’s mass transit operato...

As we have reported previously (here, here, here and here), sweeping changes to employer obligations under the Equal Employment Opportunity Commission’s (EEOC) EEO-1 reporting requirements are under way. By September 30, 2019 , employers must report 2017 and 2018 pay data for their workforce (referred to as “Component 2” data), broken down by race/ethnicity and sex. On July 15, 2019, the EEOC officially opened to employers the Component 2 EEO-1 online filing system. Per the EEOC, the file upload process will become available in August 2019. Our lawyers have authored an alert that contains a summary of employer obligations based on the most up-to-date guidance provided by the EEOC. The alert can be found on our website here. Please contact us for assistance in gathering materials, or with any questions that arise. We will issue updated guidance is it becomes available.

On August 9, 2019, Illinois Governor JB Pritzker signed into law the Illinois Workplace Transparency Act (“WTA”), imposing new requirements and modifying existing laws in ways that will impact nearly all Illinois employers – and may be a signal of things to come in other US states.  The WTA aims to address concerns raised through the #MeToo movement regarding the frequency of sexual harassment occurrences and concealment of claims of such unlawful conduct.  But the WTA also goes beyond concerns regarding sexual harassment and addresses prohibitions against other unlawful employment practices and concealment of such claims, and creates broad restrictions on confidentiality provisions that are commonly included in employment and separation agreements, amending the Illinois Human Rights Act to expand protected categories under the law and require disclosures about legal claims of unlawful employment practices, and limiting the use of arbitration agreements. ...

As we have previously reported here, companies with at least 100 employees must collect and report 2017 and 2018 employee pay data information, broken down by race/ethnicity, sex, and job category (“Component 2 data”) as part of their annual EEO-1 report. This Component 2 data remains due to be filed with the EEOC by September 30, 2019. However, on September 12, 2019 the EEOC published in the Federal Register a formal notification to employers that it does not intend to renew its collection of the Component 2 data at this time. The EEOC specifically referenced its duty to “balance the utility of the data to its enforcement programs against the burden the data collection as structured imposes on the employers who must submit it.” The EEOC went on to conclude that it will consider the information it obtains through this year’s Component 2 data collection (which remains ongoing, as noted above, until September 30, 2019), before deciding whether to move forward...

Our colleague Brent Owen at the FrESH Law Blog (which covers perspectives on Environmental, Safety, and Health law) recently provided an update to his prior post addressing the US Supreme Court’s then-pending decision in  Kisor v. Wilkie .  In that case, decided in late June 2019, the Court addressed the  Auer  standard of deference that is applied by courts to administrative agencies’ interpretations of their regulations.  Although  Kisor did not involve an employment dispute per se , the decision has broad implications for agency action, including those taken by agencies that regulate employment matters, i.e., the U.S. Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board.  Since the Court’s decision, district courts have begun applying the  Auer  standard post- Kisor, including in employment cases, as discussed in Brent’s insightful post, which appe...

On October 22, 2019, a Tennessee federal district court dismissed a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) under the Americans with Disabilities Act (“ADA”) against West Meade Place LLP (“WMP”), a skilled nursing facility, after finding on summary judgment that the EEOC failed to establish that former WMP employee Carma Kean was disabled, as that term is defined under the ADA. In EEOC v. West Meade Place LLP , the EEOC, acting on behalf of Ms. Kean, alleged that she had anxiety and that during “flare-ups” of this condition, she was unable to work.  The EEOC alleged that WMP violated the ADA because it failed to accommodate Ms. Kean’s condition by providing her with requested time off work, and also engaged in disability discrimination when it terminated Ms. Kean’s employment.   In order to establish a prima facie case of a failure to accommodate or ot...