RSS Feed!

Archives

Archive for May, 2016

Prime, Inc. to Pay Over $3 Million After Court Ruled it Used Discriminatory Hiring Practices (May 31, 2016)

Tuesday, May 31st, 2016

Trucking Giant’s Same-Sex Trainer Policy Kept Women Drivers Out of Jobs, Federal Agency Charged

ST. LOUIS – New Prime Trucking, Inc., one of the nation’s largest trucking companies, will pay over $3.1 million and will make job offers to women who were victims of the company’s unlawful discriminatory hiring policy, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. The payments follow an earlier court order finding that the company violated federal law by discriminating against female truck driver applicants when it required that they be trained only by female trainers.

According to the court’s prior order, the company, which does business as Prime Inc., violated Title VII of the Civil Rights Act of 1964 by engaging in a pattern or practice of discrimination when it denied employment opportunities to women through its same-sex trainer policy. Prime adopted its policy in 2004 after it was found in a previous EEOC lawsuit to have violated Title VII based upon the sexual harassment of one of its female driver trainees. EEOC filed the present suit against Prime in September 2011 based on a discrimination charge filed by Deanna Roberts Clouse. Because Prime had very few female trainers, its same-sex trainer policy forced female trainees to wait extended periods of time, sometimes up to 18 months, for a female trainer to become available, which re­sulted in most female driver trainees being denied employment. Male applicants were promptly assigned to male trainers. Prime ceased using its same-sex trainer policy in 2013 as a result of the agency’s suit.

After the court’s order on liability, Prime agreed to pay $250,000 to Clouse to resolve her claims. Last month, Prime agreed via consent decree to pay over $2.8 million in lost wages and damages for 63 other women who were denied job opportunities. EEOC was unable to determine the precise number or identities of all women affected by Prime’s unlawful policy because, as the court found, Prime failed to “preserve the lists [of women who were put on waiting lists] and cooperate in identifying women impacted by the policy …” The order on liability and consent decree were entered in the U.S. District Court for the Western District of Missouri (EEOC v. New Prime Trucking, Inc. Civil Action No.6:11-CV-03367 MDH).

On May 27, the court permanently enjoined Prime from discriminating against applicants or employees on the basis of sex and ordered that Prime shall not implement a same-sex trainer policy or practice that creates barriers to the entry or advancement of female driver applicants or employees. The court’s order will ensure the company does not adopt a same-sex trainer policy again. The court also ordered Prime to give priority hiring consideration to the class members and make them immediately eligible for benefits without a waiting period.

“I am pleased by this latest settlement in a series of EEOC cases to address hiring barriers for women in the workplace,” said EEOC General Counsel David Lopez. “Women who were denied jobs will now be compensated and have the opportunity to be hired.”

Andrea G. Baran, regional attorney of EEOC’s St. Louis District, said, “When women break into male-dominated fields, they are often trained by men. We should not expect that these women will be sexually harassed. It is disrespectful to men everywhere to assume that they will harass women if they work together in close quarters. Rather, employers have a responsibility to adopt strict anti-harassment policies and practices and enforce them so that all employees – regardless of sex – can work and succeed together.”

EEOC St. Louis District Director James R. Neely, Jr. added, “Being male or female is not relevant to whether a person can be a good truck driver. While the trucking industry was desperately looking for drivers, Prime locked women out of their workforce rather than focus its efforts on preventing sexual harassment. Moving forward, we hope that Prime will respect the court’s injunction and provide equal opportunities to all applicants, without respect to sex.”

According to company information, Prime is one of the nation’s largest refrigerated, flatbed and tanker carriers. It is based in Springfield, Mo., and employs over 2,000 persons. Prime provides truck-freight services to customers in Mexico, the United States, and Canada.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by EEOC’s Strategic Enforcement Plan.

EEOC’s St. Louis District Office oversees Missouri, southern Illinois, Nebraska, Kansas and Oklahoma. EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website, www.eeoc.gov.

Office of Disability Employment Policy Newsletter (May 27, 2016)

Sunday, May 29th, 2016

For more information, go to www.dol.gov/odep.

#InclusionWorks — NDEAM Theme Blog

In a May 27 post on the DOL blog site, Jennifer Sheehy, Deputy Assistant Secretary of Labor for Disability Employment Policy, announced the theme for National Disability Employment Awareness Month (NDEAM) for 2016, #InclusionWorks. Noted Sheehy, “With this year’s hashtag theme, we hope to spur individuals and groups to post images and stimulate discussion on social media about the many ways “inclusion works,” and I’m looking forward to the dialogue!” While NDEAM is celebrated in October, the theme was released this month to help with advance planning for observances in the fall.

ODEP to Host Webinar on the Value of Inclusive Service and AmeriCorps Programs for Youth with Disabilities — June 9, 2:00-3:00 PM EDT

Are you interested in learning more about how to connect youth with disabilities to inclusive service and volunteer opportunities as a pathway to employment? On June 9, 2:00-3:00 PM EDT, the Office of Disability Employment Policy will host a webinar on this topic in partnership with the Corporation for National and Community Service. This webinar will provide an overview of the benefits of volunteering, detail national service programs like AmeriCorps for youth with disabilities to choose from, and feature the experiences of a service alum with a disability. AmeriCorps recruitment season is approaching this summer, so tune in to learn how to take advantage of these opportunities.

Workforce Recruitment Program Seeks Federal Employees to Recruit Students with Disabilities

The Workforce Recruitment Program (WRP) is a recruitment and referral program that connects federal and private sector employers nationwide with highly motivated college students and recent graduates with disabilities who are eager to prove their abilities in the workplace through summer or permanent jobs. The WRP is the primary pipeline bringing students and recent graduates with disabilities into federal employment. Volunteers are needed to act as WRP recruiters for the upcoming recruitment season, which runs from October 27 through November 18, 2016. Recruiters must be federal employees who can commit to conducting at least 10 30-minute phone interviews with students from across the country, and to evaluate each student candidate in writing. The required recruiter training is conducted online and can be completed in about 90 minutes. Registration is open until August 15, 2016.

PEAT Twitter Chat: Social Media and eRecruiting — June 2, 2:00-2:30 PM EDT

Join the Partnership on Employment & Accessible Technology (PEAT) and digital marketer Eliza Greenwood (@E_lizaG) on June 2, 2:00-2:30 PM EDT, to discuss how accessibility concerns can impact social media usage by job seekers and recruiters. Participants can join this real-time Twitter conversation by following and tagging their posts with the hashtag #PEATtalks.

PEAT Blog Explores Social Media, Recruiting and Accessibility

This week, the Office of Disability Employment Policy (ODEP)-funded Partnership on Employment & Accessible Technology (PEAT) issued a blog post exploring social media’s impact on recruiting and hiring job candidates. Citing research from the Society for Human Resource Management (SHRM)—an ODEP Alliance partner—the piece reports that 84% of organizations are now using social media for recruiting, up from 56% in 2011. “More and more, employers are posting job openings and information for job seekers on social media,” writes PEAT. “When these posts are not accessible, it’s yet another barrier for people with disabilities. In addition, employers are not reaching the entire talent pool that could be available to them.” The new data reinforce points made within PEAT’s TalentWorks tool, which helps employers ensure their eRecruiting tools are accessible to job seekers with disabilities.

Latest EARN Newsletter Now Available

The Employer Assistance and Resource Network on Disability Inclusion (EARN) has issued its May 25 newsletter, featuring information on the National Disability Employment Awareness Month (NDEAM) theme #InclusionWorks, Equal Employment Opportunity Commission (EEOC) news, an Office of Federal Contract Compliance Programs (OFCCP) directive, upcoming web events, and more.

Federal Communications Commission Seeks Comments on Proposed Rule Regarding Video Described Programming

The Federal Communications Commission (FCC) is now proposing revisions to its rules that would expand the availability of, and support consumer access to, video described programming, for the benefit of consumers who are blind or visually impaired. The FCC is seeking comments on its tentative conclusion regarding the costs and benefits of these proposed rules, on the proposed rules themselves, on appropriate timelines for the proposed rules, and on other possible changes to the rules to ensure that blind and visually impaired consumers have access to television programming. Comments are due on or before July 26, 2016.

Office of Disability Employment Policy Newsletter (May 20, 2016)

Tuesday, May 24th, 2016

For more information, go to www.dol.gov/odep.

ODEP Signs Alliance with Association of University Centers on Disability

Expanding the availability of resources and information on fostering an inclusive workforce is a key component of promoting the employment of individuals with disabilities. For this reason, the Office of Disability Employment Policy (ODEP) signed a formal alliance with the Association of University Centers on Disabilities (AUCD) this week. AUCD is a membership organization that brings together university-based interdisciplinary programs and community resources nationwide to achieve meaningful change for people with disabilities in all aspects of society, including the workplace.

YouthACT Transition Truths National Online Dialogue — May 19-22, 2016

Are you a young person with a disability or a youth ally of the disability community? There is an important conversation going on about what youth with disabilities (ages 13-25) need to become successful adults, and we need to hear from you! The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) and the National Collaborative on Workforce and Disability for Youth invite you to participate in our YouthACT Transition Truths National Online Dialogue. We hope youth will join this online conversation and share your ideas on the strategies and supports that can help youth and young adults with disabilities and their peers become successful adults. The YouthACT Transition Truths National Online Dialogue will take place from Thursday, May 19 until Sunday, May 22, 2016.

Job Accommodation Network Publishes New Blogs

The Job Accommodation Network (JAN) recently posted two blogs on its Ask JAN Blog site. In a May 12 post, “New Employer’s Guide to the Family and Medical Leave Act Announced at DMEC Employer Compliance Conference,” Tracie DeFreitas, JAN Lead Consultant and ADA Specialist, reflected on her trip to the Disability Management Employer Coalition’s (DMEC) annual FMLA/ADA Employer Compliance Conference. On May 13, DeFreitas posted “Avoiding ‘The Waiting Place’ After Requesting Medical Information,” in which she discussed medical information requests related to the job accommodation process.

HHS Finalizes Rule to Improve Health Equity under the Affordable Care Act

The U.S. Department of Health and Human Services (HHS) has issued a final rule to advance health equity and reduce health care disparities. Under the rule, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping. The “Nondiscrimination in Health Programs and Activities” final rule implements Section 1557 of the Affordable Care Act, which is the first federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs. Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) broadly barred discrimination based only on race, color, national origin, disability, or age. In addition to implementing Section 1557′s prohibition on sex discrimination, the final rule also enhances language assistance for people with limited English proficiency and helps to ensure effective communication for individuals with disabilities.

Office of Disability Employment Policy’s “Business $ense” (May 16, 2016)

Monday, May 16th, 2016

Accommodating Allergies and Asthma Symptoms — Nothing to Sneeze At

In most parts of the country, spring fever is in full swing. The temperature is rising, and those legendary April showers have brought May flowers — and extremely high pollen counts. As a result, millions of people are experiencing allergies or asthma symptoms, and some of them are likely in your workplace.

While allergies and respiratory issues can occur year round, spring is an especially fitting time for employers to learn about workplace accommodations that may help employees with such conditions remain productive on the job. And thanks to the Job Accommodation Network (JAN), there are a number of free resources that can help.

JAN’s Accommodation Ideas for Allergies webpage is a gateway to numerous guides, resources and effective practices that can prove useful for employees with respiratory impairments. In these publications, JAN points out that respiratory issues alone are not considered disabilities under the ADA, however, many conditions caused by respiratory-related illnesses are in fact disabilities that an employer may have to accommodate.
For example, symptoms of respiratory impairment may include labored breathing, asthma attacks, fatigue, mobility problems and heightened sensitivity to ordinary substances and chemicals. Workplace accommodations that can mitigate these symptoms include everything from providing air purification, to alternative pest management policies, to modifying the location where work is performed.

So this hay fever season — and all year round — it’s important to remember that accommodating episodic health conditions associated with allergies and asthma is nothing to sneeze at. It should be a fundamental pillar in your approach to fostering an inclusive workplace, one where employees feel comfortable requesting the supports they need to do their job better.

For more information, go to www.dol.gov/odep.

Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices Announces Online Form (May 16, 2016)

Monday, May 16th, 2016

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is pleased to announce that members of the public can now complete and submit charge forms online through OSC’s website, in addition to the methods currently available (mail, fax, or email). At this time, we are rolling out the electronic charge form in English and Spanish, and will be adding additional languages in the near future.

If you have any questions or if you suspect employment discrimination, we encourage you to contact OSC’s worker hotline at 1-800-255-7688 (Mon – Fri, 9am-5pm EST), or 1-800-237-2515 (TTY for hearing impaired).

For more information, go to https://www.justice.gov/crt/office-special-counsel-immigration-related-unfair-employment-practices.

Office of Disability Employment Policy Newsletter (May 12, 2016)

Friday, May 13th, 2016

For more information, go to www.dol.gov/odep.

National Disability Employment Awareness Month — #InclusionWorks

The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) has selected the theme for 2016’s National Disability Employment Awareness Month (NDEAM) — #InclusionWorks. Observed in October, NDEAM is a nationwide campaign celebrating the skills and talents workers with disabilities bring to our workplaces. Led nationally by ODEP, NDEAM’s true spirit lies in the many grassroots observances held nationwide every year. Each spring, the theme for the year’s celebration is announced to help organizations and groups plan their events. The hashtag theme is intended to spur both individuals and groups to post images and stimulate discussion on social media about the many ways “inclusion works.”

Talent Matters: Leveraging Disability-Inclusive Outreach and Recruitment Strategies — June 30, 1:00-2:30 PM ET

To help employers learn effective outreach and recruitment strategies to attract qualified individuals with disabilities, the Employer Assistance and Resource Network on Disability Inclusion (EARN) is hosting a webinar on ways to build a disability-inclusive talent pipeline. This panel presentation will focus on partnering with community-based organizations and connecting with service providers that can identify and prepare individuals with disabilities for specific workforce needs. This webinar, to be held June 30, 1:00-2:30 PM ET, will be of particular interest to disability program managers, diversity and inclusion professionals, human resources professionals, managers and hiring officials, from both the private and public sectors.

Latest EARN Newsletter Now Available

The Employer Assistance and Resource Network on Disability Inclusion (EARN) has issued its May 11 newsletter, featuring information on Mental Health Month, two articles on disability issues published by the Society for Human Resource Management, upcoming web events, and more.

PEAT Talks: Sharing Success from the WWW+W4A Accessibility Hackathon — May 19, 2:00-2:30 PM ET

The Partnership on Employment & Accessible Technology (PEAT) will hold its next PEAT Talk on May 19, 2:00-2:30 PM ET. This special installment of the monthly speaker series will focus on the outcomes of the WWW+W4A Accessibility Hackathon sponsored by Google Montreal and PEAT. The event, held on April 13, challenged participants to take a popular web-based product used widely in workplaces and schools and make it accessible to all users. During this PEAT Talk, the winners will present their innovations to help mark Global Accessibility Awareness Day (GAAD).

“Driving Your Own Success” — Careers & the disABLED Magazine Features ODEP Employee

In a recent article in Careers & the disABLED magazine, “Driving Your Own Success,” Lois Vidaver profiled employees in the Federal government and military sectors as models for people with disabilities considering careers in these fields. Highlighted among them was Nathan Cunningham, policy advisor in the U.S. Department of Labor’s Office of Disability Employment Policy. Cunningham described his own career path and provided advice for job seekers, including the importance of skills such as clear written and oral communications, flexibility, self-motivation, and critical, interdisciplinary thinking. “Although definitions of success and skill-attainment may vary for different people in different fields, a few skills stand out to me as particularly important across careers, and I continue to hone them as I take on new responsibilities,” Cunningham said.

EEOC Releases Publication on Leave and the Americans with Disabilities Act

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new resource document that addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). The document, entitled “Employer-Provided Leave and the Americans with Disabilities Act,” is intended to help educate employers and employees about workplace leave under the ADA to prevent discriminatory denials of leave from occurring. It consolidates existing guidance on ADA and leave into one place, addressing issues that arise frequently regarding leave as a reasonable accommodation, including the interactive process, maximum leave policies, “100 percent healed” policies, and reassignment. It also provides numerous examples that illustrate existing legal requirements and obligations for both employees and employers.

FTA Launches National Aging and Disability Transportation Center Website

The U.S. Department of Transportation’s Federal Transit Administration (FTA) has unveiled a new website focused on increasing access to transportation for older adults, people with disabilities, and caregivers. The National Aging and Disability Transportation Center (NADTC) site offers resources, webinars, publications, and technical assistance on accessible community transportation options.

Federal food service contractor settles charges of gender-based hiring discrimination for entry-level Michigan, Kentucky, Wisconsin warehouse jobs (May 2016)

Thursday, May 12th, 2016

Gordon Food Service Inc. to pay women $1.85M in back wages, benefits

WYOMING, Mich. – For a second time, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs has determined that a Michigan-based, federal food service contractor systematically discriminated against 926 qualified women seeking entry-level warehouse laborer jobs.

In agreements with the department, Gordon Food Service, Inc. of Wyoming will pay a total of $1.85 million to female applicants, hire 37 female applicants and stop using a strength test that OFCCP found to be discriminatory.

An OFCCP investigation of GFS, which has not admitted liability, found that the company systematically eliminated qualified women from the hiring process through various discriminatory means, including the unlawful use of the strength test. The women had applied for laborer positions at four warehouses in Brighton and Grand Rapids, Michigan; Kenosha, Wisconsin; and Shepherdsville, Kentucky. Investigators determined the company’s discriminatory hiring practices resulted in the hiring of only six females while GFS hired nearly 300 males throughout the investigation period.

GFS, which provides products to the U.S. Departments of Defense and Agriculture and to the Federal Prison System, has entered into three conciliation agreements to resolve the discrimination findings. The women affected by the alleged discrimination reside primarily in Illinois, Indiana, Kentucky, Michigan and Wisconsin.

“Too often we find ‘tests’ like the one used in this case that exclude workers from jobs that they can in fact perform,” said Patricia A. Shiu, director of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. “In this case, women were denied good-paying jobs. We are making sure that these women are compensated and that some are able to get the work they sought when positions become available.”

In 2007, GFS settled charges of sex discrimination in hiring for similar entry-level labor jobs at its Grand Rapids and Brighton warehouses. In that case, the company provided $450,000 in back pay and interest to the affected women.

Since 2010, GFS has won nearly $4.5 million in federal contracts to provide perishable and non-perishable foods. GFS is one of North America’s largest food distribution companies with more than 170 U.S. locations. In addition to its government contracts, the company supplies restaurants, schools, universities and hospitals.

OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Collectively, these laws make it illegal for contractors and subcontractors doing business with the federal government to discriminate in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. In addition, contractors and subcontractors are prohibited from discharging or discriminating against applicants or employees who inquire about, discuss or disclose their compensation or that of others, subject to certain limitations. For more information, visit http://www.dol.gov/ofccp/.

OFCCP recently launched the Class Member Locator. The purpose of the CML is to identify applicants and/or workers who have been impacted by OFCCP’s compliance evaluations and complaint investigations and who may be entitled to a portion of monetary relief and/or consideration for job placement. If you think you may be a class member who applied to one of the designated facilities of Gordon Food Service, Inc., between January, 2010, and September, 2012, please visit our website at: http://www.dol.gov/ofccp/CML/index.htm, where you can also find information about other recent OFCCP settlements, or call 877-716-9783.

OFCCP Announces a Webinar on the Revised FAAP Directive (May 2016)

Thursday, May 12th, 2016

The Office of Federal Contract Compliance Programs (OFCCP) issued Directive (DIR) 2013-01, Revision 1 on April 28, 2016. This directive, available on OFCCP’s Web site, outlines how contractors apply for and maintain functional affirmative action programs (FAAP).

To learn more about OFCCP’s FAAP Program and DIR 2013-01 Revision 1, please join us for an informational webinar on May 19, 2016. During the one hour webinar, contractors will learn about the FAAP program and how to apply for a FAAP agreement. Contractors are invited to submit questions before and during the webinar.

To register for the May 19th webinar, please use the following link: https://dolevents.webex.com/dolevents/onstage/g.php?MTID=ec7d039c911ed15abcc0e65b01e4d5766. Or, go to www.dol.gov/ofccp to locate the registration link.

View the directive at:https://www.dol.gov/ofccp/regs/compliance/directives/Dir2013_01_Revision1.html.

Political Affiliation Discrimination by Seena Foster

Thursday, May 12th, 2016

Political affiliation discrimination occurs when an adverse action is taken against a person based on the person’s political affiliation or beliefs. Political affiliation discrimination may arise in federally-assisted programs and activities as well as in the workplace. As the equal opportunity professional for your agency or organization, you must know the federal civil rights laws that apply to your agency or organization, and whether those laws prohibit discrimination on the basis of political affiliation.

We are going to explore two areas where political affiliation discrimination is prohibited by federal civil rights laws—one example involves federally-assisted programs and activities under the Workforce Innovation and Opportunity Act (WIOA), and the second example involves employment decisions of public employers.

Federally-assisted programs and activities

Starting with federally-assisted programs and activities, Section 188 of WIOA prohibits discrimination in certain workforce development programs on a variety of bases, including political affiliation or belief. Unemployment insurance benefits, employment referral services, on-the-job training, resume writing, and interview skill development are some examples of the aid, training, services, and benefits funded by the federal government through WIOA. American Job Network centers, Job Corps centers, and certain community colleges are prime examples of WIOA-Title I funded recipients and sub-recipients that are prohibited from engaging in political affiliation discrimination in delivering aid, benefits, services, and training to the public. And, any state, U.S. territory, or other recipient receiving WIOA-Title I funds also must comply with WIOA’s prohibition on political affiliation discrimination.

To provide an example of political affiliation discrimination prohibited by WIOA Section 188, let’s say that a new political party received the majority of votes in your state or U.S. territory. Members of the new party take office and they issue a Request for Proposals (RFP) for organizations and companies to apply for WIOA grant monies to deliver training to unemployed persons. Reviewers of the 100 proposals select 25 organizations and companies for the WIOA grants. Of these 25 entities, a total of 24 entities are owned by persons whose known political affiliations are aligned with those of the new party in office. Only one entity has a known political affiliation with the former party in power. Of the 75 entities not selected for the grants, 55 have known political affiliations with the former party, 5 have unknown political affiliations, and 15 have known affiliations with the new party. If the new party has, in fact, considered an entity’s political affiliation in determining whether the entity would receive a WIOA-funded grant, then the new party has engaged in political affiliation-based discrimination in violation of the nondiscrimination mandates of WIOA Section 188. As a result, the RFP process would be null and void.

So, if you administer or operate WIOA-Title I programs or activities, you are prohibited from basing your decisions regarding delivery of aid, benefits, services, or training on an applicant’s, participant’s, or beneficiary’s political affiliation or belief. As the equal professional for an agency or organization operating these programs, you must train staff and decision-makers that aid, benefits, training, and services cannot be doled out based on political affiliation. Monitor your systems of delivery to ensure continued adherence to this nondiscrimination mandate.

Public employers

Turning to the workplace, the Civil Rights Act of 1871, which applies to public employers and is codified at 42 U.S.C. § 1983, prohibits political affiliation discrimination. Public employers include state and local governments as well as other entities like publicly-funded colleges and universities, the police, and so on. This federal civil rights law requires that employment decisions, such as selection, promotion, and termination cannot be based on consideration of the employee’s or potential employee’s political affiliation or belief.

Take, for example, the case of Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011), where the Dean of a publicly-funded college of law denied a legal writing teaching position to an applicant because of the applicant’s political affiliation. Notably, the applicant’s conservative political affiliations and beliefs were apparent from her resume, which reflected a background with certain conservative educational institutions and employers. Evidence of record demonstrated that one out of 50 law school faculty members at the college was a registered Republican. And, the court noted that two, less experienced applicants were later hired for the position at issue. In the end, the court concluded that the Dean presented insufficient evidence to demonstrate that the applicant’s political affiliation was not a factor in the employment decision.

So, if you are the HR/EEO professional for a public employer, engage in training and outreach to managers and supervisors, including political appointees at the highest levels of your agency or organization, and inform them of them of their obligations and responsibilities of nondiscrimination based on political affiliation. Help them understand that political affiliation discrimination can take many forms from the more commonplace acts of non-selection, non-promotion, and termination to other acts such as engaging in hostile environment based on political affiliation, providing an adverse performance appraisal, relocating a worker to a less desirable office, and so on. Managers and supervisors should base employment-related decisions on the knowledge, skills, and abilities evident from an applicant’s educational background and experience, not the applicant’s political affiliation or belief.

However, for public employers, there is an exception to this rule that merits comment. Notably, employment decisions related to “confidential” employees and senior “policy-makers” may be based on the employee’s or potential employee’s political affiliation or belief without running afoul of federal civil rights laws. Keep in mind that this exception will apply to a very narrow category of folks working for, or seeking to work for, a public employer.

Here, we’ll take a look at another circuit court case that is illustrative. In Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285 (7th Cir. 1985), the circuit court was confronted with a newly-elected sheriff’s decision to terminate an office employee because the employee was the wife of the former sheriff who lost the election. The Seventh Circuit provides a helpful discussion on the issue of “confidential” employees and “policy-makers” in the context of political affiliation discrimination:

A public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), but there are exceptions to this principle, carved out to minimize its adverse impact on the effective functioning of government. For example, employees at the policy-making level of government can be fired on political grounds. Id. at 367-68 (plurality opinion); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309-10 (7th Cir.1983) (per curiam). Mrs. Soderbeck was not a policy maker; but if, as the defendants argue, she was the sheriff’s confidential secretary, then Kellberg could fire her without violating the Constitution. See Stegmaier v. Trammell, 597 F.2d 1027, 1038 (5th Cir.1979) (dictum). You cannot run a government with officials who are forced to keep political enemies as their confidential secretaries, and Mrs. Soderbeck was the political enemy of her husband’s political enemy, Kellberg. Any implication of the plurality opinion in Elrod v. Burns that only a policy maker is unprotected by the principle announced in that case was superseded by the broader formulation in the majority opinion in Branti v. Finkel, which allows an employee to be fired if ‘the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’ 445 U.S. at 518, 100 S.Ct. at 1294. See also Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir.1983). It need not be a policy-making office. If Rosalynn Carter had been President Carter’s secretary, President Reagan would not have had to keep her on as his secretary.

Mrs. Soderbeck, however, had been trained as a bookkeeper and her title was bookkeeper, not secretary or confidential secretary; and though she did do most of the typing in the sheriff’s office, there was evidence that if the sheriff needed something typed he would hand his handwritten draft to whoever in the office was handy. Burnett County has a population of only 12,000 and a tiny sheriff’s office whose six employees at the time of Mrs. Soderbeck’s termination did not have sharply differentiated tasks; it was only after she was fired that a position of “confidential secretary” was created with a different job description from that of the bookkeeper’s position that Mrs. Soderbeck had occupied. So while she did typing and handled legal papers, such as summonses and warrants, the other employees did these things too. She also did janitorial work, and performed domestic chores for the prisoners in the county jail (which is in the same building as the sheriff’s office and home) as jail matron and laundress–not the usual functions of a confidential secretary. And she did not take dictation–no one in the office did. If she could be fired as a confidential employee, so could anyone else employed in the office, on the theory that if an office is small enough the tasks usually performed by the boss’s personal secretary may be parceled out among all the employees.

This is not to say that Mrs. Soderbeck was, as a matter of law, an employee who could not be fired because of her political affiliation. It is to say merely that the question was sufficiently uncertain to be one for the jury to decide. The defendants argue that whether or not an employee exercises a policy-making role or is a repository of confidences that make loyalty an essential part of his job description should always be a question of law, but we cannot agree with this point, for which no authority is offered, and which has been rejected in previous cases in this and other circuits. See, e.g., Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.1981); Stegmaier v. Trammell, supra, 597 F.2d at 1034 n. 8, and cases cited there.

If you are the HR/EEO professional for a public employer seeking to terminate, or take some other adverse action, against an employee because of the employee’s political affiliation, make sure the employee falls in the category of a “policy-maker” or “confidential employee.” While job titles and job descriptions may assist in this determination but, standing alone, job titles do not determine the outcome. You’ll need to get into the weeds of the employee’s actual day-to-day job duties and functions. Concluding that an employee is, or is not, a “policy-maker” or a “confidential employee” involves very fact specific findings that must be made on a case-by-case basis.

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.

She is a member of the Human Rights Institute and Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

Labor Department’s Office of Federal Contract Compliance Programs Offers Updated Affirmative Action Directive (May 9, 2016)

Tuesday, May 10th, 2016

OFCCP published its Office of Management and Budget approved Functional Affirmative Action Program directive. The revised directive outlines the procedures contractors must follow when requesting OFCCP’s approval to develop affirmative action programs by business or functional unit. OMB approved OFCCP using the procedures included in the revised directive through April 30, 2019. Directive 2013-01, Revision 1: Functional Affirmative Action Programs, is available on OFCCP’s Web site at https://www.dol.gov/ofccp/regs/compliance/directives/Dir2013_01_Revision1.html.