Tag Archives: employer

Court rejects employer’s argument that wellness programs are insulated from ADA

A federal court has ruled in favor of the U.S. Equal Employment Opportunity Commission in a disability discrimination case over Orion Energy Systems wellness program.

The Wisconsin-based court rejected the employer’s argument that the insurance safe harbor provision in the U.S. Americans with Disabilities Act immunizes wellness plans from ADA scrutiny.

In the Orion lawsuit, EEOC v. Orion Energy Systems Inc., the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance.

The EEOC contended that this violated the ADA’s prohibition against involuntary medical exams.

Orion contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor” and thereby was excused from ADA compliance except if it operated as a subterfuge.

Orion also argued that the plan was lawful under the ADA because it was voluntary.

The district court rejected Orion’s safe harbor argument and held that the plan was subject to ADA review.

The court concluded that the EEOC’s recently issued regulations on the ADA’s safe harbor provision were within the commission’s authority.

The court further held that the safe harbor provision did not apply even without regard to the new regulations.

However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute.

The court also held that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan and indicated the case would be set for trial.

Since the defendant’s motion for summary judgment was denied, the next step in the process should be the scheduling of a trial on the retaliation claim.

“Although we disagree with the court’s holding that participation in the wellness plan here was voluntary, we are pleased with the court’s solid reasoning that the safe harbor concept does not apply here,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “It establishes that there is no easy out for employers from ADA scrutiny — they must make sure that their plans comply with that law.”

Not so secret service: LGBT group names British spy agency top employer

A UK equality organization has named Britain’s domestic spy agency its employer of the year.

Stonewall gave MI5 top marks this week among 400 employers.

The results are based in part on a confidential survey of 60,000 staff members, who are asked about workplace culture, diversity and inclusion.

The annual survey underscores the strides made by the spy agency, which failed in the past to welcome gay candidates. Critics had argued that disclosing sexual orientation would leave spies more vulnerable to blackmail.

But after the 2005 London transit attacks that killed 52 commuters, Britain’s spy agencies — both MI5 and MI6 — have led aggressive recruiting drives for candidates from diverse ethnic and sexual backgrounds.

Saks claims Title VII doesn’t apply to transgender employees

The Human Rights Campaign on Jan. 8 suspended Saks Fifth Avenue’s Corporate Equality Index score. The action was taken following Saks’ claims in response to a lawsuit that Title VII protections don’t apply to transgender employees and that the company is not legally bound by its own LGBT equality policies.

While HRC said in a news release that it honors the right of the company to defend itself against allegations of misconduct, the arguments made in Saks’ court filings go well beyond arguing the veracity of the allegations.

Leyth Jamal, a transgender former employee of Saks, filed an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964 alleging discrimination and harassment/hostile work environment based on her gender identity.

In a motion to dismiss the case and in contrast to clearly established positions of the U.S. Department of Justice and the Equal Employment Opportunity Commission, Saks claimed that the “Plaintiff’s discrimination and harassment claims fail to state a claim upon which relief can be granted because transsexuals are not a protected class under Title VII.”

Additionally, Saks claims that it is not bound by its own corporate non-discrimination policies because “employee handbooks are not contracts as a matter of law.”

The Equal Employment Opportunity Commission concluded in 2012 that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on gender identity. The decision makes clear that transgender people across the country who have experienced workplace discrimination can file a claim with the EEOC under existing federal sex discrimination law.

Likewise, in December 2014, U.S. Attorney General Eric Holder announced that the U.S. Department of Justice will recognize transgender discrimination as sex discrimination.

“Saks’ arguments are hugely concerning to us,” said Deena Fidas, director of HRC’s Workplace Equality Program. “In its court filings, Saks attempts to secure a motion to dismiss Ms. Jamal’s allegations by simultaneously calling into question the validity of its own non-discrimination policy and the larger, crucial protections afforded by Title VII. The policies our CEI advances are not window dressings for any company to prop up or disregard in the face of individual allegations of misconduct. Saks is publicly undercutting  the applicability of its own policies reported in the CEI and we must suspend Saks’ CEI score until further notice.”

HRC has contacted Saks and asked them to clarify the two issues and amend their legal filings.

Senate committee to consider ENDA July 10

The Senate Health, Education, Labor and Pensions Committee is expected to take up the proposed Employment Non-Discrimination Act on July 10. The measure, which would ban bias based on sexual orientation and gender identity in the workplace, has the support of at least 53 U.S. senators.

ENDA also is supported by a majority of U.S. voters, according to polls.

“Most Americans agree: Discrimination is wrong and it must be stopped. We need the committee to mark-up ENDA and for it to be swiftly taken-up by the full Senate,” said Rea Carey, the executive director of the National Gay and Lesbian Task Force.

Carey said, “The cruel irony of last week’s Supreme Court marriage decisions is that an LGBT couple could get married one day, and on the very next day, because we still don’t have federal laws to ban employment discrimination, those same individuals could be fired from their jobs.”

A 2008 survey found that about 42 percent of LGBT Americans had experienced employment discrimination. Other studies show that transgender Americans are disproportionately impacted by discrimination and harassment in employment.

One study, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” found that 26 percent of transgender people lost a job because of their gender identity and 50 percent were harassed for being transgender.

ENDA has been introduced in the Senate by Jeff Merkley, a Democrat from Oregon. All but three Democrats – Joe Manchin of West Virginia, Bill Nelson of Florida and Mark Pryor of Arkansas – have signed as co-sponsors. On the GOP side, only Mark Kirk of Illinois and Susan Collins of Maine are co-sponsors.

Sen. Tom Harkin, a Democrat from Iowa, scheduled the committee hearing.

“Our livelihoods depend upon a future that’s free from such discrimination,” said Carey. “We thank Senators Merkley and Kirk for championing this legislation. Now is the time for Congress to tear down this appalling barrier that keeps the American Dream out of reach for far too many LGBT people.”

However, there’s general agreement that ENDA will not advance in the GOP-controlled House. This is why activists have called on the president to sign an executive order barring contractors with the federal government from discriminating based on sexual orientation or gender identity.