And employers should take heed, because making assumptions about employees when making employment decisions can certainly make you look like an ass (and by that, I do mean the donkey-like animal and not the body part. Honestly, keep your mind out of the gutter!). That was the lesson learned by Walmart, according to a recent EEOC press release.Continue Reading Employers, “When you assume, you make an ass out of u and me.” – Oscar Wilde (or not?*)

This week, the Equal Employment Opportunity Commission announced a $6.875 million settlement (ouch!) with Scripps Clinical Medical Group over its mandatory retirement age policy. Which reminded me that the EEOC has also sued Yale New Haven Hospital for its “Late Career Practitioner Policy,” requiring certain doctors age 70+ to undergo certain medical testing. Since my husband is a doctor (of a certain age), I am particularly interested in these developments – but I note that these principles apply across all employers.Continue Reading Mandatory Retirement or Medical Exams Based on Age?

As most employers (hopefully) know, the Americans with Disabilities Act sets forth strict guidelines for when employers can require employees or applicants to undergo medical examinations or when they can ask questions that might reveal a disability. And the Genetic Information Nondiscrimination Act restricts what employers can ask about the applicant/employee’s family medical conditions. Getting this wrong can cost the employer, as a recent Equal Employment Opportunity Commission (the federal agency that enforces the ADA and other federal anti-discrimination laws) press release made clear. The EEOC gleefully announced that Dollar General agreed to settle an ADA and GINA lawsuit for $1,000,000 (!!!), based in part on illegal post-offer/pre-employment questions that were asked of applicants.Continue Reading An Applicant’s Family Medical History? Apparently, That’s the Million Dollar Question!

Maybe it’s because I’m getting older (and crossed over that 40-year old cutoff for protection under the Age Discrimination in Employment Act (ADEA) a number of years ago), but a couple of recent lawsuit announcements from the Equal Employment Opportunity Commission caught my eye – and they provide some lessons for employers who are facing an aging workforce.Continue Reading Code Words for Age Discrimination?

As I mentioned in a previous post, I am always curious as to how things turn out. But often as an employment lawyer, I am left in a state of ignorance. I give advice to employers on what to do in tricky situations, but don’t always hear whether my advice was implemented (I certainly hope so!) or what resulted (good things, hopefully!). And often I wonder what happens to the parties in high-profile cases – like Bostock v. Clayton County, one of a trio of cases in which the U.S. Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity.
Continue Reading Bostock v. Clayton County: The Epilogue… and What It Means for Employers (for Now)

A recent case caused me significant concern on behalf of employers. As you may know, before an employee may file a federal discrimination lawsuit against their employer, they must first file a charge of discrimination with the Equal Employment Opportunity Commission. (And, on a related note, just recently, the U.S. Supreme Court held that this charge-filing requirement was a procedural one that could be waived by the employer, as we discussed in our E-lert). But what happens if the EEOC never notifies the employer of the charge?
Continue Reading Penalizing the Employer for the EEOC’s Mistake?

Recently, I blogged about a press release from the Equal Employment Opportunity Commission in which it misstated the law on post-offer medical examinations under the Americans with Disabilities Act. I was hoping that was a one-off mistake. But another recent EEOC press release has given me some concern, because I believe that it again misleads employers on their obligations under the ADA – this time with regard to associational discrimination.
Continue Reading Another Misleading EEOC Press Release on the ADA…

My world shifted slightly last week, when a federal court in Texas ruled that the Equal Employment Opportunity Commission could not enforce its Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” After all, for years now I had looked to this Guidance as the EEOC’s definitive position on the use of criminal background records, particularly in hiring. I had referred clients to it, provided legal advice based on it, cited it in articles and presentations…. But now?
Continue Reading No Enforcement of the EEOC’s Criminal Background Check Guidance?

Many employers have drug-free workplace policies that require employees to disclose if they are taking prescription (and perhaps over-the-counter drugs) that could affect their ability to perform the essential functions of their job safely and/or effectively. This requirement seems pretty sensible, right? But according to the Equal Employment Opportunity Commission, it violates the Americans with Disabilities Act!
Continue Reading Be Careful Asking About Employees’ (Non)Prescription Drug Use