Today we are sharing the third article of a six part series that Seyfarth Shaw LLP is publishing on Inside Counsel. The full article is available here and set out below.
Over the last year the EEOC has trumpeted its focus of filing high-impact and high-profile cases. The EEOC’s Strategic Enforcement Plan also reinforced the Commission’s efforts to continue addressing emerging and developing legal issues in the years to come. To that end, the EEOC has initiated cases alleging novel theories including disability discrimination based on the Genetic Information Nondiscrimination Act (GINA), HIV status, and inability to provide urine samples. The EEOC is also pursuing unique sex discrimination lawsuits under theories that discriminating against people because they are transgender or breast pumping in the workplace violates Title VII.
Critics have complained that the EEOCs efforts to expand legal theories strains the EEOC’s resources and such pursuits are arguably outside of the Commission’s purview. Be that as it may, the EEOC’s recent activity highlights that employers should take care that they do not run afoul of “edge of the envelope” theories.
The cases below highlight several of the EEOC’s high-profile pursuits, which are off the beaten path that the Commission typically follows.
The EEOC’s first pursuit of a GINA Case
GINA prohibits discrimination against applicants and employees on the basis of genetic information. On May 7, 2013, the EEOC filed — and the quickly settled — its first lawsuit under GINA in EEOC v. Fabricut, Inc. In this case, Rhonda Jones worked for her employer in a temporary position. Jones’ employer then offered her a permanent job and required her to take a drug test. Her employer also required Jones to undergo a physical at Knox Laboratory. During her physical, Jones filled out a questionnaire where she disclosed the existence of disorders in her family medical history. After Jones disclosed this information, her employer allegedly required her to undergo medical testing to evaluate if she suffered from carpal tunnel syndrome (CTS) and required Jones to have her personal physician evaluate her for CTS. Jones provided her employer with the physician’s finding that she did not have CTS, and Knox Laboratory allegedly informed Jones’ employer with contradictory information that Jones did have CTS.
The EEOC subsequently filed suit alleging the employer’s conduct violated GINA and the Americans With Disabilities Act (ADA). The employer agreed to settle the lawsuit for $50,000.
EEOC files suit for not hiring applicant due to positive HIV status
On Sept. 12, 2013, the EEOC filed suit against a Popeye’s Chicken franchise for allegedly refusing to hire an applicant because he was HIV-positive. In the applicants’ interview, he allegedly told the interviewer that he was HIV-positive. The EEOC claims that the employer immediately informed the applicant that he could not work for Popeye’s given his condition.
The EEOC filed suit in the U.S. District Court for the Eastern District of Texas on the basis of the applicants’ HIV-positive status. This is believed to be the first ever EEOC-initiated lawsuit to pursue allegations of discrimination based on HIV status.
Refusing to hire based on inability to provide urine samples may violate the ADA
This year, the EEOC filed suit against Kmart claiming that the retailer refused to employ an applicant because he did not provide a urine sample for drug testing. In EEOC v. Kmart Corp. et al., Kmart offered Lorenzo Cook an associate position and required him to submit a drug screening prior to the start of his employment. Cook allegedly told Kmart that he could not provide a urine sample due to a kidney ailment. Kmart allegedly informed Cook that its policies required he take a urinalysis, and because Cook did not take the test, Kmart denied Cook the job.
The EEOC subsequently filed suit in the U.S. District Court for the District of Maryland alleging Kmart violated the ADA for failing to provide Cook with a reasonable accommodation. Kmart viciously denied the allegations and claimed that it offered Cook a job with Kmart. This matter appears to be heating up, so stay tuned to find out whether the courts think that a “shy bladder” is considered a disability within the purview of the ADA.
The EEOC rules discrimination against people because they are transgender is illegal
On July 8, 2013, the EEOC adopted the position that employment discrimination against transgender individuals is a form of sex discrimination in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives. In this case, job applicant Mia Macy applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the ATF informed Macy that it would hire her pending a background check. Macy later informed the ATF that she was transitioning from male to female. Shortly later, the ATF informed Macy that her position was no longer available due to budget restraints. The ATF, however, subsequently hired another person for the position Macy interviewed for.
When Macy initially filed her complaint with the EEOC, it rejected her claim and stated that anti-transgender discrimination was not covered by Title VII. Macy appealed and the EEOC subsequently heard her case. In the EEOC’s July 8, 2013 decision, it found that “actions based on transgender status are actions based on sex and therefore covered by Title VII, the ATF’s actions were discrimination based on sex and therefore prohibited by Title VII.” The EEOC’s decision — although not binding on courts — is binding on all federal agencies and departments.
Breast pumping is protected under Title VII
On May 30, 2013, the 5th Circuit overturned the Southern District of Texas’ finding that lactation is not a form of sex discrimination covered by Title VII in EEOC v. Houston Funding II, Ltd. In this case, the EEOC alleged that an employer unlawfully discriminated against a worker on the basis of her sex because she wanted to express breast-milk while at work. The district court rejected the EEOC’s argument and held that even assuming that the “real reason” the worker was fired was because she wanted to pump breast-milk at work, “firing someone because of lactation or breast-pumping is not sex discrimination” because “lactation is not pregnancy, childbirth, or a related medical condition.” On appeal, the 5th Circuit unanimously overturned the district court and held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination in violation of Title VII.
Implications for employers
In light of these trends, employers facing pending charges or complaints should be conscious of the EEOC’s focus on untraditional discrimination charges. The EEOC has signaled that it intends to file suit more aggressively in upcoming years. Thus, employers should expect the EEOC to direct even more resources, in terms of both attorneys and money, at these high-profile cases, and to look for more opportunities to file even more of these cases in the coming year.