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ENDA Being Pursued Again

IMG_6162The Employment Non-Discrimination Act (ENDA) is proposed federal legislation to prohibit discrimination in hiring and employment decisions on the basis of sexual orientation or gender identity by businesses with 15 or more employees.

The bill prohibits preferential treatment and quotas but does not permit disparate impact suits. It also exempts religious organizations and the military. ENDA has been introduced in the United States Congress on numerous occasions since 1994.

The Senate voted 64 to 32 to pass  the most recent version.  ENDA is unlikely to pass the House.

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Anniversary of Brown v. Board of Education of Topeka, Kansas

U.S. Supreme CourtIn 1954, the United States Supreme Court released its unanimous opinion that found laws in several states requiring separate but equal educational institutions for African-Americans and whites violated the Fourteenth Amendment’s Equal Protection Clause.  Chief Justice Earl Warren framed the question as “the constitutionality of segregation in public education,” saying, “[w]e have now announced that such segregation is a denial of the equal protection of the laws.”  The Court ruled on cases from four states but the practice occurred in many more.

While the opinion did not have an immediate impact on the workplace, it was a precursor to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

EEOC Report on Discrimination 2012

eeoc image.axdThe EEOC has released its Performance and Accountability Report summarizing its fiscal year 2012.  The EEOC reports a record level of recovery in discrimination matters for the year.  The organization filed 122 lawsuits throughout the country with 20 percent of agency cases involving systemic allegations against the defendant.  Administrative enforcement (mediation, settlements, conciliation) in the private sector amounted to $365,400,000.  Through litigation, the agency recovered $44,200,000.

Input for EEOC Quality Control Plan

eeoc image.axdThe EEOC recently approved its Strategic Plan through 2016 and is now seeking input from the public on developing a Quality Control Plan (QCP) related to investigations and conciliations.  One performance measure under the Strategic Plan requires the QCP.

The EEOC requests information from individuals, employers, advocacy groups, agency stakeholders, and other interested parties.  Input must be provided by March 1, 2013.  The Agency will review the input and make appropriate portions available for meetings used to develop the QCP.  Some submitters may be invited to testify before the Commission.  The Agency’s February 12 press release is available by clicking here.

New Wilson Worley newlsetter available on requesting psychological counseling

Wilson Worley attorney George Samuel asks, “Is Requesting Psychological Counseling the Same as Requesting a Medical Exam?”  For his discussion of the recent Sixth Circuit Court of Appeals opinion in Kroll v. White Lake Ambulance Authority, click here.

Transgender protection and Retaliation through job offer

Wilson Worley employment attorney Sam Booher discusses two recent employment law developments:   (1) A recent EEOC release states that transgender individuals are protected from discrimination under Title VII; (2) A recent federal circuit court decision finds that making a job offer contingent on withdrawal of an EEOC charge of discrimination is unlawful retaliation.  For the complete discussion in the newsletter, follow this link to the Wilson Worley website.

ADEA Final Rule

You may have missed it with all the discussion of the NLRB rulings, healthcare reform act litigation, and immigration rulings; but the EEOC released a final rule earlier this year on the ADEA.   At the end of March, the EEOC issued the regulation on disparate impact and “reasonable factors other than age” under the ADEA.  The final rule makes clear that federal law prohibits practices and policies that have the effect of harming older works more than younger ones, unless the employer can establish that the practice or policy is based on a reasonable factor other than age.  In a press release, the EEOC stated, “The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law.  The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”  The EEOC has also created a Q&A page on the issue; you can view it by clicking here.