Our colleague Nancy L. Gunzenhauser has a Technology Employment Law blog post that will be of interest to many of our retail industry readers: “Three States Seek to Bolster Fair Pay Laws.”

Following is an excerpt:

Following on the tails of recent updates in New York and California’s equal pay laws, New Jersey, Massachusetts, and California all have bills pending in their state legislatures that would seek to eliminate pay differentials on the basis of sex and other protected categories. …

While states are leading the charge with updates to equal pay laws, the EEOC is also stepping up equal pay enforcement with their proposal to modify the EEO-1 forms to include pay information. This push to gather more information regarding pay among various categories may lead to an increase in pay-related claims over the next few years. To help avoid such claims, employers should consider auditing job titles and compensation methods to ensure compliance with each jurisdiction’s equal pay laws.

Read the full post here.

The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer positionConfidential-shutterstock_41997904 statements to Charging Parties upon request.  The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential.  The type of information considered confidential by the EEOC includes:

  • Sensitive medical information (except for the Charging Party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
  • References to Charges filed with the EEOC by other Charging Parties

The EEOC has stated  that it will not accept an employer’s blanket or unsupported assertions of confidentiality.  If employers present confidential information with their position statements, the EEOC instructs that the information should be segregated from the position statement in separate attachments and bear one of the following designations to signify that the attachment contains information believed to be confidential and subject to protection from disclosure:

  • Sensitive Medical Information
  • Confidential Commercial Information
  • Confidential Financial Information
  • Trade Secret Information

The labels are intended to expedite the EEOC’s review of confidential information and consideration of the justification proffered to maintain confidentiality.  After its review, the EEOC has discretion to redact the information designated by the employer as confidential before releasing the position statement to the Charging Party.

Given the short amount of time often provided to respond to a Charge, and the type of information generally presented to support the position statement—e.g., employment information of non-parties and proprietary, competitive corporate information—employers should familiarize themselves with the EEOC’s new procedures for releasing employer position statements so that they are prepared to properly present and protect confidential information.

In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list.  On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.

The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC noted that sex-based considerations also encompassed gender-based considerations under Title VII. This ruling, if accepted by federal courts, would extend protection under Title VII to decisions made on the basis of sexual orientation. While only the Supreme Court can issue a final, definitive ruling on the interpretation of Title VII, EEOC decisions are given significant deference by federal courts.

Employers across the U.S. should anticipate that overt actions, practices, and harassment that could be construed as discriminatory on the basis of a worker’s sexual orientation will be challenged in federal court and subject employers to potential liability.

My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter.   In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5 here.

On June 1, 2015 the U.S. Supreme Court revived a religious discrimination claim against Abercrombie & Fitch (“Abercrombie”) after the fashion retailer denied employment to a Muslim woman because the headscarf, or hijab, worn as part of her religious observance violated the company’s dress code.  EEOC v, Abercrombie & Fitch Stores, Inc., 2015 U.S. LEXIS 3718 (June 1, 2015). In overturning summary judgment granted in favor of Abercrombie, the Court held that Title VII does not require proof that the employer had actual knowledge of the individual’s need for religious accommodation, but only that the religious practice was a motiving reason for the employer’s adverse employment action. In making this ruling, the Court found that Title VII’s requirement that employers reasonably accommodate their employees’ religious practices goes beyond merely demanding that religious practices be treated no worse than other practices, but rather gives religious practices favored treatment.

The case arose from Abercrombie’s “Look Policy,” which establishes appearance guidelines for employees. The Look Policy requires employees to wear clothing exemplifying the brand’s “casual,” “preppy” style and prohibits the wearing of “caps” — a term left undefined in the policy.

Samantha Elauf applied and interviewed for a position as a store associate.  She wore a hijab to her interview, but did not mention her religion or ask whether wearing a hijab would conflict with the Look Policy.  The interviewer suspected that Elauf wore the scarf for religious purposes, but did not ask. Rather, she sought guidance from her supervisor, who advised that the Look Policy prohibited all headgear.  For this reason, Abercrombie rejected Elauf’s application.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against Abercrombie on Ms. Elauf’s behalf alleging religious discrimination in violation of Title VII.  The EEOC claimed store managers declined to hire Ms. Elauf because they believed her hijab violated the Look Policy’s headgear ban.  The retailer responded that it did not know that Ms. Elauf was Muslim, or that she wore a hijab as part of her religious practice.  Before reaching the Supreme Court, Abercrombie successfully argued to a lower court that Ms. Elauf’s religious accommodation claim required a showing that the employer have actual knowledge of the applicant’s need for accommodation of a religious practice.

The Supreme Court rejected the retailer’s argument, finding that an employer will be liable if a desire to avoid accommodating a religious practice is a “motivating factor” in the employer’s adverse employment decision. In rendering its decision, the Court distinguished Title VII, which does not expressly include a knowledge requirement in its statutory language, from other discrimination statutes, such as the Americans With Disabilities Act, that do.

The Court noted that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice.” It declined, however, to address the issue because Abercrombie had suspected that Elauf wore the scarf for religious purposes and therefore neither side had addressed the question.

To avoid similar claims, employers should train interviewers to be alert to potential religious accommodation issues, and to refer them to Human Resources or other responsible personnel for resolution. In its application procedures employers should, as they do for ADA compliance, include disclosure of job requirements, including any applicable appearance standards and ask applicants whether they need any accommodation to comply.  The employer can then consider – and if necessary discuss with the applicant — whether and how, it can reasonably accommodate the applicant’s religious practice.

Our colleagues Steven M. Swirsky; Adam C. Solander; Brandon C. Ge; Nancy L. Gunzenhauser; and August Emil Huelle contributed to Epstein Becker Green’s recent issue of Take 5 newsletter.   In this edition, we address important employment, labor, and workforce management issues confronting retailers:

  1. Sick Leaves Laws Are Sweeping the Nation
  2. The NLRB’s New “Expedited” Election Rules Became Effective April 14, 2015—Expect a Major Uptick in Union Activity in Retail
  3. EEOC Proposes Wellness Program Amendments to ADA Regulations: The Impact on Retail Employers
  4. Security Considerations for the Retail Employer
  5. NLRB Issues Critical Guidance on Employee Handbooks, Rules, and Policies, Including “Approved” Language

Read the Full Take 5 here.

Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees.  In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.  Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender employees under Title VII.  Shortly thereafter, in December 2014, outgoing U.S. Attorney General Eric Holder released a memo announcing that the Department of Justice considers Title VII’s prohibition against sex discrimination to include discrimination based on gender identity, including transgender status.  Finally, earlier this year, on March 30, 2015, the Department of Justice filed its first lawsuit alleging an employer engaged in discrimination and retaliation against a transgender employee in violation of Title VII.

As a result, private employers may increasingly face lawsuits asserting gender identity discrimination claims and should revisit their policies– including employment, non-discrimination, and even dress code policies – to avoid the litigation of such claims.  Just last month, on April 1, 2015, Alexia (formerly “Anthony”) Daskalakis, a former employee of clothing retailer Forever 21, filed a complaint in the Eastern District of New York alleging discrimination, harassment, and retaliation on the basis of her gender, gender identity, gender expression and/or failure to conform to gender stereotypes.  Daskalakis, who was assigned male gender at birth, worked as a visual merchandiser at a Forever 21 store located in Brooklyn.  Daskalakis’s allegations arise from her manager’s conduct after she began transitioning to a woman.  The claims in Daskalakis v. Forever 21, Inc. are currently based on New York State and City non-discrimination laws, but the complaint indicates that plaintiff will file and/or seek leave to amend the complaint to include Title VII claims after receiving a Notice of Right to Sue from the EEOC.

In another recent EEOC decision, Lusardi v. McHugh, Appeal No. 0120133395, Agency No. ARREDSTON11SEP05574 (EEOC Apr. 1, 2015), the EEOC found that the Department of the Army subjected the complainant-employee to disparate treatment and a hostile work environment.  In holding that denying the employee equal access to the common women’s restroom constituted disparate treatment, the EEOC wrote: “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender” . . . and “perpetuated the sense that she was not worthy of equal treatment and respect.”  Appeal No. 0120133395 at 13.  Notably, the EEOC stated that co-workers’ confusion or anxiety regarding sharing a restroom with a transgender individual would not justify discriminatory terms and conditions of employment.   Appeal No. 0120133395 at 10-11.  The EEOC found that the Department of the Army had subjected the employee to a hostile work environment because a team leader referred to the employee by male names and pronouns and made hostile remarks after being aware that the employee identified as female.  Appeal No. 0120133395 at 17.

While the Lusardi decision has no precedential effect for private employers, it is predictive of a potential enforcement position in the event of a transgendered employee’s charge of discrimination against a private employer.  Notably, the EEOC did not declare that in all situations an employer should designate the gender-corresponding common restroom for the transgender employee’s use, but rather that the employer should develop individualized transition plans appropriate for the employee’s circumstances.  Appeal No. 0120133395 at 10.  Such a transition might even “include a limited period of time where the employee opts to use a private facility instead of a common one.”  Id.

To reduce the risk of litigating claims of gender identity discrimination and retaliation, it is important for employers to confer with counsel to ensure that all policies comply with the employer’s obligations to transgender employees under Title VII.

[1] Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012).

To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

Click here to read the full Health Care and Life Sciences Client Alert.

The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Retail employers have not been exempted from the agency’s scrutiny. A summary of recent lawsuits follows:

EEOC v. Baker & Taylor

In a complaint filed last year in Illinois, EEOC v. Baker & Taylor, Civil Action No. 13-3729 (N.D. Ill. 2013), the EEOC alleged that a company violated Title VII of the Civil Rights Act of 1964 (“Title VII”) by conditioning severance on employees signing agreements that provided, in part:

  • I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan (emphasis added).
  •  I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company. I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation (emphasis added).

In its complaint, the EEOC asserted that the forgoing provisions interfered with the rights of employees.  The EEOC’s position on the illegality of such provisions is consistent with its “Enforcement Guidance on Non-Waivable Employee Rights Under EEOC-Enforced Statutes,” published in 1997 (the “Guidance”), which provides that “[a]n employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under [Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act (“ADEA”), or the Equal Pay Act].”  In the Guidance, the EEOC explained that its position is premised on the anti-retaliation provisions of the relevant statutes, as well as the concept that interference with such rights would be “contrary to public policy.” 

The Baker & Taylor case was resolved.  As part of the settlement, the employer agreed to revise its severance agreement to include a disclaimer that the agreement is not intended to limit an employee’s right or ability to file discrimination charges with the EEOC or its state and local counterparts as well as affirmative statements regarding these employee rights.  Foreshadowing its later efforts, the EEOC, in its press release announcing the Consent Decree that was part of the settlement, stated that “the issue raised by this case and its resolution relate to a legal right that is of critical importance to all employees: the right to file a charge of discrimination and communicate with the EEOC and local Fair Employment Practices Agencies.” 


More recently, in February 2014, the EEOC filed a complaint against CVS Pharmacy, Inc. (“CVS”), asserting violations of Title VII.  Specifically, the complaint alleged that CVS had unlawfully conditioned the receipt of severance pay on employees signing “overly broad, misleading and unenforceable Separation Agreements” in violation of Section 707(a) of Title VII, which provides that when the U.S. Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by Title VII, the Attorney General may bring a civil action seeking relief.  The Agency alleged that these separation agreements interfered with employees’ rights to file charges with the EEOC or state fair employment practices agencies (“FEPAs”) and to communicate voluntarily with and participate in proceedings with the EEOC or state FEPAs. 

The EEOC’s complaint highlighted the following allegedly improper separation agreement provisions:

  • Cooperation clause requiring the employee to “promptly notify the Company’s General Counsel by telephone and in writing” upon receiving a subpoena, deposition notice, interview request, or other inquiry regarding among other things an administrative investigation.
  • Non-Disparagement clause providing that the employee will not make statements that disparage the business or reputation of the company.
  • Non-Disclosure of Confidential Information provision by which the employee agrees not to disclose confidential information, including “information concerning the Corporation’s personnel, including the skills, abilities, and duties of the Corporation’s employees, wages and benefit structures, succession plans, information concerning affirmative action plans or planning….”
  • General Release of Claims which released, among other things, “charges” and included as released “any claim of unlawful discrimination of any kind.”
  • No Pending Actions; Covenant Not to Sue provision in which the employee agrees “not to initiate or file or cause to be initiated or file, any action, lawsuit, complaint or proceeding asserting any of the Released Claims against any of the Released Parties….”

In its complaint, the EEOC found that the following disclaimer was insufficient: “Nothing in this paragraph is intended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this agreement prohibit employee from cooperating with any such agency in its investigations.” 

What is notable is that the disclaimer language used by CVS essentially tracked language suggested by the EEOC in the Guidance.  Similarly, a Consent Decree entered into by Kodak with the EEOC in EEOC v. Eastman Kodak Co., no. 06-cv-6489 (W.D.N.Y. 2006), included the following language:

Except as described below, you agree and covenant not to file any suit, charge or complaint against Releasees in any court or administrative agency, with regard to any claim, demand, liability or obligation arising out of your employment with Kodak or separation therefrom.  You further represent that no claims, complaints, charges, or other proceedings are pending in any court, administrative agency, commission or other forum relating directly or indirectly to your employment by Kodak.

Nothing in this Agreement shall be construed to prohibit you from filing a charge with or participating in any investigation or proceeding conducted by the EEOC or a comparable state or local agency.  Notwithstanding the foregoing, you agree to waive your right to recover monetary damages in any charge, complaint, or lawsuit filed by you or by anyone else on your behalf.

While the Kodak Consent Decree language had previously been acceptable to the EEOC and used by employers accordingly, the Agency apparently now wants more from employers. 

EEOC v. CollegeAmerica  

Most recently, on May 5, 2014, the EEOC filed a complaint asserting violations of the ADEA against CollegeAmerica Denver, Inc. (“CollegeAmerica”), in the U.S. District Court for the District of Colorado for conditioning an employee’s receipt of severance on an “overly broad, misleading, and unenforceable agreement.”  Among other things, the EEOC took issue with the separation agreement’s “Release of All Claims,” which released, among other things, claims for discrimination” as well as the agreement’s provisions regarding cooperation, non-disparagement, and compliance disclosures. Perhaps the CollegeAmerica case can be distinguished from other circumstances, since the EEOC took particular umbrage with the fact that CollegeAmerica affirmatively sued its former employee for violating the non-disparagement clause of its separation agreement and then sought discovery on the governmental agencies with which the former employee had communicated regarding CollegeAmerica. In addition, unlike most agreements typically now used by employers, the agreement also allegedly lacked a “carve out” for filing charges with or cooperating with the EEOC or state and local FEPAs.  

In light of the recent spate of EEOC separation agreement lawsuits, employers should strongly consider reviewing their form separation agreements. For some suggestions, please see our recent Act Now Advisory.