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Pronouns and Misgendering: Answers to Common Questions From Employers
By: Emily Matta

After the U.S. Supreme Court’s Bostock decision in June 2020, which held that discrimination because of someone’s transgender status is prohibited under the umbrella of sex discrimination, the EEOC issued guidance expanding on Bostock’s practical implications. The EEOC’s guidance highlights one form of harassment that can contribute to creating a hostile work environment based on gender identity — misgendering. Here are answers to four common questions employers have regarding misgendering in the workplace.

(1) What does it mean to misgender someone?  
Transgender and non-binary employees may ask you to refer to them using language that expresses and corresponds with their gender identity — their internal sense of self and gender. Some people choose to go by a name other than the name their parents gave them at birth. And some people use pronouns that correspond with their gender identity rather than the sex they were assigned at birth. These pronouns might be gendered (e.g., she/her/hers and he/him/his) or non-gendered (e.g., singular use of they/them/their; ze/hir/hirs).  

Misgendering means intentionally or unintentionally referring to a person with language that doesn’t align with their gender identity. For example, you just hired an employee whose legal name is Alecia. During the onboarding process, the employee informs you that he is a transgender man and wishes to be called Alex and referred to using the pronouns “he/his/him.” Calling Alex “Alecia” and using the pronouns “she/her/hers” to refer to the employee would misgender him.

(2) When does misgendering rise to the level of      Continue Reading...

EEOC Updates COVID-19 Guidance for COVID-19 Testing and ADA Accommodations
By: Morgan Geffre

On September 8, the EEOC updated its guidance with respect to what employers should know about COVID-19, the ADA Rehabilitation Act, and other EEO laws. Generally, the updates act to clarify previously taken positions of the EEOC.

Two of the important clarifications involve the EEOC’s position on administering COVID-19 tests to employees, and an employers’ ability to invite employees to request disability accommodations.

  1. Employers are still able to administer COVID-19 tests if they are accurate and reliable, but the EEOC notes the consideration of false positives and negatives. The EEOC also added the disclaimer that a negative test result does not mean the employee won’t contract COVID-19, and employers should continue requiring social distancing measures.
  2. Many employers are still operating from home. In preparation for returning to the physical workplace, the EEOC allows employers to invite employees to submit requests for disability accommodations in advance of their return. This would simply start the interactive process. Those employees who do not request an accommodation in advance would not be barred from later asking.
Pay Data Reporting Is Back (For Now)!
By: Charles McClellan

After a tortured history, the EEOC’s pay-data collection requirements are back! At least for now.

Consistent with some recent federal court rulings, all employers with 100 or more employees, as of now, must submit summarized pay data for all employees for 2017 and 2018 to the EEOC by September 30, 2019. The government is appealing the court rulings, and there still is a possibility that the pay-data reporting will not happen. But pending appeal and further details regarding the format and process for reporting employee pay data, employers should begin now to collect and review 2017 and 2018 pay data and to clean up any errors.

Regulatory Background

In 2014, President Obama directed the EEOC to develop a tool for collecting pay data from employers. In September 2016, the EEOC announced that pay-data collection would be incorporated into employer’s annual EEO-1 reports, beginning in December 2017. The initial proposal required EEOC to collect pay data for at least twice before September 30, 2019.

The EEOC regulations required employers to report, within each of the 10 EEO-1 job categories and 14 gender, race, and ethnicity categories, how many employees gross W-2 wages for the prior 12-month lookback period fall within each of 12 different pay bands. The      Continue Reading...

Is EEO-1 Pay Reporting Back? Important Updates for Government Contractors
By: Charles McClellan

In 2016, with much fanfare, the EEOC adopted new summary pay-reporting requirements for all employers who file an EEO-1 report, which includes most employers with at least 100 employees and most federal government contractors with at least 50 employees and a government contract worth at least $50,000. In August 2017, before those new requirements went into effect, the Office of Management and Budget (OMB) issued an immediate stay that excused employers from having to report pay data. But on March 4, 2019, with the 2018 filing period opening in mid-March (pushed back due to the government shutdown earlier this year), a judge in the District of Columbia ruled that the OMB had no grounds to stay the pay collection rules, and the Court lifted the stay. The EEOC had purged from its website its prior guidance and instructions regarding pay collection, and it remains to be seen whether EEOC will require—or even be equipped to receive—payroll compensation data for the 2018 reporting cycle.

For government contractors subject to Section 503 of the Rehabilitation Act, which requires affirmative action to support the employment of individuals with disabilities, be on the lookout for increased OFCCP activity in this area. The agency has announced a new tool, a “Section 503 Focused Review,” to evaluate contractor’s efforts to employ individuals with disabilities. OFCCP has indicated that it will begin these Section 503 Focused Reviews at contractor headquarter locations, and it is expected to publish later this month a courtesy scheduling announcement      Continue Reading...
A Kansas Employers’ Guide to the New Year
By: Travis Hanson

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

EEOC & Title VII Litigation Trends. 2018 saw another increase in harassment and discrimination lawsuits being filed nationwide. In fact, EEOC litigation filings have doubled since 2016. One big area of movement is sexual harassment cases and charges, which rose significantly in 2018 after more than five years of decreasing numbers. We expect this trend will continue into 2019.
Another trend is the EEOC’s sustained efforts to push for inclusion of sexual orientation and gender identity as protected classes under Title VII, which prohibits discrimination, “because of sex.” The Supreme Court has long held that Title VII protects against discrimination for employees who don’t meet typical “gender norms,” such as a woman who is not feminine enough, but it has not yet addressed head-on the questions of sexual orientation or gender identity.
Over the last few years, the EEOC has taken a clear position that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sexual discrimination under Title VII.” Currently,      Continue Reading...
Kansas Agencies Ban-the-Box
By: Teresa Shulda

A growing number of employers have voluntarily decided to eliminate questions about criminal convictions and arrests from their employment applications. Koch Industries, a Kansas-based company and one of the country’s largest private employers, has been on the leading edge of the movement. Now, Kansas Governor Jeff Colyer is joining the movement with a recent executive order. 

What is the “ban-the-box” movement?
“Ban-the-box” refers to the box that has historically appeared on many job applications asking the applicant whether he or she has ever been arrested or convicted of a crime. The “ban-the-box” movement has been an effort organized by civil rights organizations composed primarily of formerly incarcerated people and their families. Statistics show that lack of employment makes it more likely that ex-offenders will re-offend, so those supporting this movement argue that employing more individuals with criminal convictions will have a positive impact on society. In essence, supporters of the movement advocate for enabling people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.
Is it legal to ask applicants about their criminal history on the application?
Maybe; maybe not. Currently, 31 states and more than 150 cities and counties have adopted laws or policies “banning” the box for government positions. In other words, public-sector employers in these states and cities cannot include inquiries on application forms that would require the applicant to disclose arrest and conviction information. Eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode      Continue Reading...
The Evolution of Title VII and Sex Discrimination
By: Teresa Shulda

It seems as though every few months we need to update our understanding of what discrimination “because of... sex” means under Title VII. Gay and lesbian employees continue to bring discrimination claims against employers, arguing that Title VII’s prohibition against discrimination “because of... sex” extends to sexual orientation discrimination. Well, it’s time for another update.

Last month, the Second Circuit Court of Appeals issued a ruling in Zarda v. Altitude Express, Inc., finding that sexual orientation discrimination is motivated, at least in part, by sex, and is thus a subset of prohibited sex discrimination under Title VII. In Zarda, the plaintiff, a skydiving instructor, claimed he was terminated due to his failure to conform to male sex stereotypes solely because he was gay. The plaintiff did not claim that he failed to conform to a masculine look or behavior. Rather, he claimed it was simply the fact that he was gay and referenced his sexual orientation to clients and coworkers that led to his termination.
The Zarda court recognized the long-standing rule that gender-based stereotyping can violate Title VII’s prohibition on discrimination “because of... sex.” For example, in Price Waterhouse v. Hopkins, a case decided in 1989, the U.S. Supreme Court found in favor of a female plaintiff who alleged that she was denied partnership, because she did not fit the male partners’ idea of what a female employee should look and act like. Male partners instructed her that she would have a better      Continue Reading...
EEOC Wellness Regulations Survive AARP Challenge
By: Jason Lacey

A federal court in Washington, D.C. has declined to issue an order that would have halted implementation of the EEOC’s wellness plan regulations under the ADA and GINA. The regulations had been challenged by AARP on the grounds that they failed to adequately protect workers’ rights. However, the court concluded there was no risk of "irreparable harm" to workers in allowing the regulations to remain on the books. This means the regulations remain in force and will apply as scheduled. 

The EEOC’s regulations are generally applicable to wellness programs beginning with the 2017 plan year. The regulations limit the incentives that employers may offer in connection with a wellness program that involves a medical examination or disability-related inquiry. Most wellness programs that involve a health risk assessment or biometric screening are covered. The incentive cannot exceed 30% of the cost of employee-only coverage under the related health plan -- or twice that amount in the case of plans that offer incentives to both employees and their spouses.The regulations also impose notice and confidentiality requirements, in addition to limiting the amount of incentives.

The EEOC’s rules apply in addition to other wellness plan rules under HIPAA and the ACA, with sometimes inconsistent results. For example:

  • Under the HIPAA and ACA regulations, there is no limit on the amount of the incentive that can be offered in a “participation only” wellness program involving completion of a health risk assessment and biometric screening, but the same wellness program generally is subject to      Continue Reading...
EEOC's Position on Sexual Orientation Based Discrimination Rejected by the 7th Circuit
By: Donald Berner

As most of you probably already know, the EEOC has taken the position that bias based on sexual orientation is sex discrimination in violation of Title VII.  In a decision issued by the 7th Circuit Court of Appeals (the first federal circuit court of appeals to hear such a case), the EEOC's position was rejected.  The Court focused heavily on following the precedent established in prior 7th Circuit cases in reaching its conclusion. that Title VII does prohibit bias on the basis of sexual orientation.

This issue is likely to make news through the remainder of 2016 and throughout 2017 as other federal circuit courts of appeals are set to hear cases raising the same issue.  In addition to further court decisions, the Equality Act is pending in Congress which would add sexual orientation and gender identity to the protected classifications currently in existence under federal law.  Stay tuned for further developments.  

EEOC Issues Final Wellness Regulations
By: Jason Lacey

The EEOC has issued final regulations under the ADA and GINA that address the extent to which employers may use incentives to encourage employees and their spouses to participate in wellness programs that involve disability-related inquiries or medical examinations. Although the regulations allow limited incentives, there are a number of conditions and restrictions. And there are some important differences between the EEOC's rules and other rules governing wellness programs, such as guidance under HIPAA and the ACA. Here are the highlights.

What Wellness Plans Are Covered?

These regulations apply to any wellness plan that involves a disability-related inquiry or medical examination. This will include most wellness plans that require completion of a health risk assessment or biometric screening. It also includes tobacco-related wellness plans that involve any type of medical test to screen for the presence of nicotine, but it does not include tobacco-related programs that merely ask an employee to certify whether they use tobacco (and do not require any other medical examinations).

In an important change from the proposed regulations, the final regulations apply to a wellness program without regard to whether the program is offered in connection with a group health plan. For example, an employer that offers a cash reward to employees for completing a health risk assessment or biometric screening may be subject to the limitations under the final regulations.

What Limits Apply to Wellness Incentives?

For a wellness plan covered by these regulations, the incentive offered to any employee may not exceed 30% of the full cost      Continue Reading...

Wellness Program Survives ADA Challenge
By: Jason Lacey

In a closely watched case, a federal judge in Wisconsin has denied the EEOC’s challenge to a wellness program maintained by Flambeau, Inc. The EEOC had sued the employer, alleging the wellness program violated the ADA.

The wellness program required employees to complete a health risk assessment and a biometric screening, but employees completing the program didn't just receive a premium reduction or other financial incentive. They were required to complete the program as a condition to obtaining coverage under the employer’s group health plan. Employees that chose not to participate in the wellness program were not allowed to enroll in the employer's health plan. 

The EEOC alleged that the wellness program violated the ADA’s prohibition against involuntary medical examinations and disability-related inquires. Although employees were not required to participate in the wellness program, the EEOC viewed the penalty for nonparticipation (loss of access to the group health plan) as too coercive, effectively making the wellness program an involuntary program. 

But the court side-stepped the question of voluntariness and concluded that a safe harbor under the ADA (which allows for bona fide underwriting activities) applied to the wellness program. Thus, the program did not violate the ADA without regard to whether it was voluntary. 

The court's decision to apply the ADA's underwriting safe harbor is consistent with a 2012 federal appeals court decision (Seff v. Broward County), but the EEOC has indicated it strongly agrees with that interpretation of the ADA. So we might expect further sparring between the EEOC and employers who choose      Continue Reading...

EEOC Proposes GINA Guidance on Wellness Plan Incentives for Spouses
By: Jason Lacey

The EEOC has released a proposed rule, a fact sheet, and a set of FAQs regarding the Genetic Nondiscrimination Act (GINA) and wellness plan incentives for spouses of employees.

Under the proposed rule, an employer may offer an incentive as part of a wellness plan for an employee’s spouse to provide information about the spouse’s current or past health status, so long as the wellness plan is part of a program that is reasonably designed to promote health or prevent disease. Some additional conditions must also be satisfied, including that the total incentive for the employee and the spouse must not exceed 30% of the total cost of the group health plan coverage in which the employee and spouse are enrolled and that the spouse provide a voluntary, written authorization.  

This guidance is limited to programs that provide incentives for spouses to provide information about their current or past health status. It does not change existing GINA guidance that prohibits offering incentives to employees, spouses, or their children to provide their own genetic information, including family medical history.

These regulations are a companion to regulations under the ADA proposed by the EEOC earlier this year relating to wellness plan incentives offered to employees in exchange for undergoing a disability-related inquiry or medical examination. Under those regulations, employers generally may offer such incentives, so long as the amount of the incentives are limited to 30% of the total cost of employee-only coverage under the employer's group health plan. 

The ADA and GINA regulations      Continue Reading...

EEOC Issues Updated Guidance on Pregnancy Discrimination
By: Teresa Shulda

The EEOC issued updated guidance with regard to the agency’s enforcement of discrimination under the Pregnancy Discrimination Act (“PDA”). You might recall that the EEOC originally issued guidance in the summer of 2014. In that original guidance, the EEOC took the position that the PDA requires employers to make accommodations to pregnant workers in the same manner that it does to other similarly situated workers. Thus, if an employer had a light-duty program it could not exclude pregnant workers from that program, even if the employer historically reserved light-duty positions for certain categories of employees, such as those injured on the job. 

This year, the Supreme Court issued its decision in Young v. UPS, which addressed some of the same issues the EEOC guidance attempted to clarify. In that case, Peggy Young was a delivery driver for UPS. When she became pregnant, her doctor placed her on lifting restrictions which would interfere with her ability to do her job, so Young requested light duty from UPS. UPS only provided light-duty work for certain categories of employees – those injured on the job, those with a disability, and those who lost their federal driving certifications. Since pregnancy didn’t fall within any of those three categories, UPS denied Young’s light-duty request and place her on leave without pay or benefits. 

Young sued under the PDA, arguing that UPS’s actions constituted sex discrimination based on her pregnancy. Young cited to the provision of the PDA that requires employers to treat pregnant women the same as      Continue Reading...

Federal Legislation Would Clarify Wellness Plan Treatment Under ADA and GINA
By: Jason Lacey

Federal legislation has been introduced that would clarify the treatment of employer wellness plans under the ADA and GINA. It is styled as the "Preserving Employee Wellness Programs Act." Under the act, any wellness plan that meets the requirements imposed by regulations issued under HIPAA and the ACA would not be treated as violating the ADA or Title I or Title II of GINA solely because the plan provides a reward. 

The legislation would respond to confusion over the EEOC's position on how employer obligations under the ADA and GINA intersect with the HIPAA and ACA rules that allow providing a reward (or penalty) to employees who participate in a "health-contingent" wellness program. Although the EEOC has never taken a formal regulatory position on the issue, it has sued several employers over their wellness programs, including at least one program that appeared to satisfy the requirements under HIPAA and the ACA (see prior articles here, here, and here). 

The EEOC is said to be working on a set of regulations to address this issue that may be near release. Employers will want to keep an eye on both these legislative and regulatory developments, as they could have an important (and hopefully helpful) impact on wellness plan design.

A copy of Senate Bill 620, the Preserving Employee Wellness Programs Act, is here

"Like a Girl" Superbowl Commercial
By: Donald Berner

During last night's Superbowl, the P&G commercial "Like a Girl" caught my attention.  It was an interesting play on how the phrase "Like a Girl" somehow represents doing a task poorly or as the commercial shows us in a not so athletic way.  From an employment law standpoint, the idea that "Like a Girl" represents a weak or poorly performed action is just the type of approach that will get employers into hot water.  So on this post-Superbowl Monday morning, give a thought to what "Like a Girl" might mean to you.  If you buy into the stereotypes portrayed in the commercial, you are likely to be exposing your company to liability at some point down the road.  As an HR professional, if you have managers/executives at your company that buy into the "Like a Girl" stereotype, its only a matter of time until those same managers/executives find themselves on the wrong side of a gender based discrimination claim or concern.  Now might be a good time to remind your management team of the perils of discrimination and your company's policies against the same. 


EEOC Concern About Targeted Job Advertisements
By: Donald Berner

Does your company utilize social media outlets to recruit employees?  If so, you might take a moment to consider the EEO risks of utilizing targeted advertising the social media sites utilize on your behalf.  If your social media hiring is being targeted to a narrow set of social media users it could leave you exposed to an accusation of discriminatory hiring practices.  The possibility that your ads are being targeted at a specific age, race, gender, or ethnic population could attract the EEOC's attention.  This risk can be particularly high if your hiring is heavily utilizing targeted advertisements of this nature. 

EEOC Catches Grief Over Wellness Plan Litigation
By: Donald Berner

The political maneuvering following the mid-term elections has begun.  As discussed in a prior post (click here), the expectation of more Congressional "oversight" continues to become a reality.  In a recent Senate hearing, the EEOC Commissioner and the EEOC General Counsel were roughed up a bit over the EEOC's recently filed wellness plan litigation.  (Click here for Jason's prior article on the litigation)  The clear message coming out of the Senate hearing was that the EEOC should think very carefully before engaging in the course of filing litigation against employers as it relates to wellness plans.  One of the criticisms directed at the EEOC was the lack of ADA guidance as it relates to wellness plans.  Look for this to get further attention as the new legislature convenes in 2015.   

EEOC Turns Up the Heat on Employer Wellness Plans
By: Jason Lacey

Adding to a flurry of recent activity (see here and here), the EEOC has challenged the wellness plan maintained by Honeywell International, alleging that it violates both the ADA and GINA. The EEOC is seeking a preliminary injunction against Honeywell that would stop further implementation of the plan.

Plan Terms. Based on the facts described in the EEOC’s court filings, Honeywell employees are asked to undergo a biometric screening that includes a blood draw. If the employee has family coverage, the employee’s spouse is asked to complete the biometric screening as well. If employees (or their spouses) do not complete the screening, they pay a “surcharge” on their annual premium of up to $2,500 (a base surcharge of $500, plus tobacco-related surcharges of $1,000 for individual coverage or $2,000 for family coverage). They also lose up to $1,500 in employer contributions to an HSA.

ADA - Voluntariness. The EEOC’s argument under the ADA is that the biometric screening under Honeywell’s plan is not voluntary and, thus, is a prohibited medical examination. Although employees are not required to submit to the biometric screening, the premium surcharges and lost HSA contributions are enough to render the screening involuntary.

ADA - Underwriting Safe Harbor. The EEOC also argues that the wellness plan is not protected by the ADA’s underwriting safe harbor. That safe harbor permits “establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on      Continue Reading...

EEOC Challenges Another Wellness Plan Under the ADA
By: Jason Lacey

The EEOC has announced (here) the filing of another lawsuit challenging an employer’s wellness plan on the basis that it violates the ADA. Like a similar case filed in August (see coverage here), the EEOC alleges that the employer’s plan fails under the ADA because it is not a voluntary program.

Background. The wellness plan at issue in this case sounds fairly typical. Employees apparently were asked to submit to a biometric screening and complete a health risk assessment. So far, so good. But employees who declined to participate in the wellness plan are said to have had their health plan coverage canceled or to have been required to pay 100% of the cost of coverage under the employer's health plan. By comparison, employees who participated in the wellness plan were only required to pay 25% of the cost of coverage under the employer's health plan.

Something Doesn’t Add Up. The facts as stated by the EEOC aren’t totally consistent. First they say health-plan coverage was canceled when employees declined to participate in the wellness plan. Then they say higher health-plan costs were shifted to employees who declined to participate in the wellness plan. It can’t be both - at least not for the same employees. So we may not have a clear picture of the plan in question at this point.

Voluntariness. But whatever the facts may be, we can see that the EEOC is clearly focused on voluntariness. According to the press release: “Having to choose between complying with      Continue Reading...

EEOC Files ADA Lawsuit Over Employer Wellness Plan
By: Jason Lacey

The EEOC has filed a lawsuit against a Wisconsin employer, alleging that the employer's wellness plan violates the ADA. According to the EEOC's press release (here), this is the first lawsuit by the EEOC directly challenging a wellness program under the ADA.

Background. Although wellness plans are increasingly common, they raise a complex array of legal issues. Regulations addressing compliance with the HIPAA nondiscrimination requirements are well-developed now. But there is virtually no guidance addressing the manner in which the ADA applies to wellness plans. In particular, the ADA prohibits employers from requiring employees to undergo involuntary medical examinations, unless those examinations are clearly job-related, and it has never been clear where the line is on "voluntariness."

Bad Facts. Unfortunately, the facts of this case are bad enough that it may not provide much meaningful guidance. The EEOC's lawsuit alleges that the employer in this case required employees to participate in its wellness program (including what sounds like a fairly typical health questionnaire and biometric screening) and penalized those who refused by requiring them to pay 100% of the cost of coverage under the employer's health plan, plus a $50/month surcharge. Additionally, there is an allegation that the employer then terminated an employee for declining to participate in the wellness program.

Results Not Typical. All of these facts, if true, go well beyond what most typical employer wellness programs require or impose and would seem to be a fairly clear violation of the ADA's voluntariness requirement. So it's not clear how much      Continue Reading...


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