What New EEOC Ruling on Age Discrimination Means to Ohio Employers

As those of us in this field know, the law is constantly changing. Laws that were passed decades ago are still in effect, but have likely been updated and amended based on court rulings and current events. On April 30, 2012, clarifications to the 45-year-old Age Discrimination Employment Act (ADEA) go into effect.

The ADEA, designed to protect those workers over the age of 40 from discrimination, is fairly straightforward when discussing individual cases of discrimination. An employer cannot terminate an employee simply because of age. But sometimes groups of older employees can be affected inadvertently by business decisions. This type of age discrimination is referred to as “disparate impact.” An employer unknowingly makes a decision that negatively affects older workers more than younger ones.

In order to prove that the employer did not discriminate against older employees, it must be shown that reasonable factors other than age (RFOA) were the reason behind the employer’s actions. The EEOC states, “An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”

So what does this mean to Ohio employers? Do you have to do a high-tech computerized analysis every time you make a staffing decision? Do you have to record your every move and prove it was not motivated by your desire to get rid of older workers? Do you have to subject your managers and supervisors to a strict training regimen on how to evaluate employees?  Do your decisions have to be based on some objective scientific equation with no subjective thought?

Obviously the answer to all of the above questions is no. In this new ruling, the EEOC provides five considerations that employers need to keep in mind when making decisions. You are not required to follow or document all of the considerations to avoid a guilty verdict in an age discrimination case. Nor would you automatically be found not guilty of discrimination because you did follow all of the considerations. Here is a summary of these guidelines given by the EEOC to help you in making fair and reasonable employment decisions:

  1. A factor is reasonable if it pertains directly to the purpose of the business. The example given by the EEOC is that of a police department testing the fitness levels of applicants. While it is possible that older applicants would not test as well as younger ones overall, the fact of the matter is that police officers need to be able to catch bad guys. So the purpose of the business supports the fitness test.
  2. The employer should make sure that the factor is fairly applied to all employees, and any managers or supervisors should be given guidance on how to fairly apply the factor.
  3. If an employment decision could be seen as discriminatory against older workers, employers should do their best to ensure that managers and supervisors use objective factors rather than subjective ones. For instance, if staff is going to be reduced based on productivity, have a set of objective statistics showing how each employee being considered for termination has been underproductive.
  4. Give specific consideration to whether or not an employment decision would adversely affect older workers as a group.
  5. Determine how much the decision would affect older workers and how many people would be affected compared to the “cost and difficulty” of making a different decision that would lessen the negative impact on older workers.

Hopefully these considerations will help you as an employer make decisions that move your business forward without negatively impacting your employees over 40. As with all employment decisions, it is best to consult with an employment law attorney if you are faced with this situation to ensure you are making informed decisions that are within the law. The Ohio employment law firm of Andrews & Wyatt is experienced in helping employers stay within the law while doing what is best for their businesses.

 

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New EEOC Decision: Transgendered Individuals Entitled to Title VII Protection

The Equal Employment Opportunity Commission (“EEOC”) issued an official opinion last week that entitles transgendered individuals to be afforded protection against employment discrimination under Title VII.  The case revolved around a transgendered woman who applied for a position with the Department of Alcohol, Tobacco, Firearms and Explosives (“ATF”) as a man, before she began her transition.  She was certified and trained for the job.  However, she was called and informed that the position was no longer available shortly after her background check was completed and the ATF was informed that she would be coming to work as a woman.

The EEOC held that this action constituted sex discrimination.  In so holding, the EEOC wrote:  “The commission hereby clarifies that the claim of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  The opinion will apply to all future EEOC enforcement actions throughout the rest of the country.  Essentially, the EEOC has expanded the class of individuals who will be afforded the protection of Title VII.

What affect will this have on employers? Employers will need to be aware of their legal responsibilities when interacting with transgendered workers or applicants.  Otherwise, the employer may find that it is defending itself in an EEOC proceeding.

 

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Unemployment Discrimination Law

A new law out of the District of Columbia may be signaling a new class of workers that will come under the protection of federal and state governments:  the unemployed.  The District of Columbia signed into law the Unemployment Anti-Discrimination Act of 2012 earlier this month.  The Act prohibits employers from refusing to hire an individual as an employee due to the person’s status of unemployment.  The law also prohibits advertisements for employment that state the employer will not consider an individual who is not currently employed.  The Act does allow an employer to refuse to hire an individual who does not hold a requisite professional or occupational license or a minimum level of education or training for the position.

Ohio Senate Bill 261 was introduced in November, 2011, which had many of the same provisions as the D.C. law.  SB 261 would make it unlawful for an employer to discriminate against job applicants on the basis of their unemployment status.  The Bill also would make it unlawful for a labor organization to limit or classify its membership based on one’s employment status.  The Bill would create a private right of action against offending employers, leaving the employer open to civil lawsuits for damages, injunctive relief, “or any other appropriate relief.”  SB 261 is still pending before the Ohio Senate.

Does this new Act out of the District of Columbia, and potentially Ohio, signal a new class of worker that will fall under federal anti-discrimination legislation? It certainly seems like a possibility given the ever expanding protection the federal and state governments give to U.S. Workers.

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NLRB Postpones Enforcement of its “Poster Rule”

The National Labor Relations Board previously passed a rule that required employers to place posters in the workplace that informed employees of their rights under the National Labor Relations Act.  That rule was scheduled to take effect on April 30, 2012.  However, the NLRB Chairman announced last week that the rule will not go into effect on April 30th due to two recent court decisions that questioned whether various provisions of the rule were enforceable.  The effective date for the new posting rule has been delayed indefinitely.

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Andrews & Wyatt Wins Court of Appeals Case

Does this sound familiar?  This is a case about a former employee who wanted to live off of undeserved workers’ compensation benefits instead of working.  On March 27, 2012, the Ohio Court of Appeals for the 10th Appellate District denied her repeated claims that she was unable to work.  In its ruling, the Court found that the former employer voluntarily abandoned the entire workforce and was thus not entitled to benefits because she refused to look for a job for over five years.  Because the case was ruled on by the 10th District Court of Appeals, it will have an effect on all future Industrial Commission (IC) hearings on this subject in the state of Ohio.

In 2004, the employee left the work force because of a work-related injury to her back. Her workers’ compensation claim was allowed for the injury and she received temporary total disability benefits (TTD).  In 2006, the Industrial Commission of Ohio ruled that her physical condition had stabilized and terminated her TTD benefits, thus finding her capable of working.

Instead of looking for job, in 2007, the employee sought to have her TTD reinstated, this time based upon a psychological condition.  However, her request was ultimately denied because the Industrial Commission found that her psychological condition also did not prevent her from working.  She then applied for permanent total disability but this too was denied, again because the Industrial Commission determined that she was capable of working.  During this entire period, the employee never looked for a job.

In a final attempt to receive TTD benefits, the employee visited another doctor in 2009 who stated that she was unable to work and was entitled to TTD benefits, retroactive all the way back to 2007. The Industrial Commission denied her claim, yet again, based upon two facts.  First, the most recent doctor did not review all of the previous medical records on the case and was not treating the patient during the time period in question.  Thus, under Ohio law, a doctor who was not seeing the patient during the claimed period of disability and has not reviewed all pertinent medical records cannot give an opinion on a patient’s physical or mental condition during that prior period of time.  Second, once the employee’s temporary total disability had ended back in 2006, she never sought employment of any kind and was considered to have voluntarily abandoned the entire workforce.

Based on the facts presented by attorneys Tom Wyatt and Jerry Cline throughout this case, the Ohio Court of Appeals found that the employee was not entitled to temporary total disability, thus saving the employer from needlessly supporting an ex-employee who had not worked since 2004.

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