It can mean that an employee has filed a charge of discrimination with the EEOC. When that happens, the EEOC then notifies the employer of the filing and provides the name and contact information of the investigator. The EEOC will then investigate to determine if there is reasonable cause to believe discrimination occurred.

As a part of the investigative process, the EEOC will ask the employee and the employer to provide information about the facts of the charge to determine if it is valid. The EEOC may ask the employer to provide a statement of position. It is imperative that the employer do its own investigation so that it can tell its side of the story. The employer may be asked to respond to a request for information and provide copies of its personnel policies, the employee’s personnel files, the personnel files of other individuals and other relevant information. The employer may be asked to make employee’s available for interviews. Once the investigator has completed the investigation, EEOC will make a determination on the merits of the charge. If the EEOC did not dismiss the charge when it was received, it means that the EEOC determined there was some basis for going forward with an investigation. After investigating the charge, the EEOC will decide whether there is reasonable cause to believe discrimination occurred. If the EEOC determines there is reasonable cause to believe discrimination has occurred, it will issue a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation. During this process the EEOC will attempt to reach a voluntary resolution between the charging employee and the employer. If the conciliation process is not successful, the EEOC may either lawsuit in federal court or issue a Notice of Right to Sue allowing the employee to file a lawsuit.

If you have any questions about the process or need assistance in responding to an EEOC filing please get in touch at the address below. Additionally, I can provide employment law counseling, training, and claims investigation on behalf of your business.

The Americans with Disabilities Act Amendments Act (ADAAA) and its recently implemented regulations are expected to have a significant impact on business owners. The ADAAA and the new regulations now make it easier for employees to qualify as disabled. In effect the ADAAA has lowered the threshold for establishing that an impairment substantially limits a major life activity. An impairment no longer has to prevent or severely or significantly restrict a major life activity in order to be considered substantially limiting. The regulations do not require that an impairment last a particular length of time, and permit a short-term impairment to be a disability if it is substantially limiting. An impairment that does not affect someone all the time can be a disability, as can one that is episodic or in remission if it substantially limits a major life activity when active. This is still the case even if the impairment occurs briefly or infrequently.

In the future, the primary focus will be on whether discrimination occurred. An employer can discriminate if it takes a prohibited action (failure to hire, termination, or demotion) based on either an actual impairment or an impairment that the employer believes the individual has. In as much as the focus has shifted from whether a person is disabled to whether discrimination occurred, the interactive accommodation process will become more important. Employers must offer a reasonable accommodation if the need is obvious or if it is requested and the granting will not cause an undue hardship. An additional challenge for employers will arise when an employee requests unpaid medical leave as a reasonable accommodation.

If you have any questions about the impact of the ADAAA or whether your policies or procedures are in compliance, give me a call. Additionally, I can provide employment law counseling, training, response to claims, and claims investigation on behalf of your business as they relate to your compliance with employment laws.

The importance of job descriptions that accurately describe job requirements and job functions cannot be over emphasized. In a recent pregnancy discrimination case, an employer prevailed when it established that the employee’s medical restrictions prevented her from performing the requirements of her job as set forth in the employer’s job description for the employee’s position. The employee promoted pharmaceutical products, which included visiting doctors’ offices, opening and carrying large boxes, and extended periods of driving. During her pregnancy, the employee’s doctor determined the pregnancy was high-risk and placed her on house-confinement for the duration of the pregnancy. The employer terminated her because she could not perform the functions of her job. The court held that the employee did not prove she was qualified for the position because her medical restrictions would not allow her to perform the requirements of the job.

If you have any questions, give me a call. I can provide employment law counseling, training, response to claims, and claims investigation on behalf of your business.

Many company handbooks prevent employees from bringing handguns on company premises. The Texas Legislature limited their ability to do so effective September 1, 2011.  Texas has amended its Concealed Handgun law to allow Concealed Handgun License Holders or anyone “who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition” to transport and store firearms or ammunition in a locked, privately owned motor vehicle located in a parking lot, parking garage, or other parking area the employer provides for the employee.

Employers may still prohibit employees from possessing a firearm in an employer-owned or leased vehicle used by the employee in the course and scope of the employee’s employment.   Employers may continue to have policies intended to minimize workplace violence by prohibiting employees from bringing guns into the office.

Many employers have “absence control policies”, policies that create a finite period of absence from work after which employees are terminated. These may also be called “no-fault” leave policies.  These policies provide that the company will automatically terminate the employ after they have been on leave for a certain period of time.  For example, “Any employee of the Company who is absent from the workplace for six (6) consecutive months or for a total of six (6) months in any twelve-month period will be separated from employment due to unavailability for work.”

The EEOC’s position is that an employer may not automatically terminate an employee after being on leave for a certain period of time, if the employee is an employee with a disability and needs leave beyond the specific period set forth in the policy.   The EEOC takes the position that if an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

This was not always the EEOC position. Initially it approved of uniform absence control policies, but cases are pending where the EEOC has sued employers claiming that inflexible policies denied the reasonable accommodations required by the ADA.  The issue arises when an employer does not enter into the reasonable accommodation process or terminates an employee requesting additional leave time without complying with the ADA mandated interactive process.

The case law concerning leaves of absences as a form of accommodation under the ADA is still evolving.  Consequently, employers should be cautious when terminating an employee who requests a continued leave of absence and should look at each situation on a case-by-case basis avoiding inflexible policies that might discriminate against persons with disabilities.

If you have any questions about your policies or procedures or otherwise complying with Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or other anti-discrimination in employment laws give me a call.  I can provide counseling, training, response to claims, and claims investigation on behalf of your business.