Supreme Court Rules EEOC Conciliation Efforts are Subject to Limited Judicial Review

Posted on May 29th, by Editor in Audits/Due Diligence. Comments Off on Supreme Court Rules EEOC Conciliation Efforts are Subject to Limited Judicial Review

By Noreen Cull and Alejandra Lara

In Mach Mining, LLC v. EEOC, decided April 29, 2015, the United States Supreme Court unanimously held that federal courts have the authority to review whether the EEOC satisfied its statutory obligation to engage in conciliation before filing suit against an employer.

Rejecting the EEOC’s position that its conciliation efforts are beyond judicial review, the Court stated that absent such review, “the Commission’s compliance with the law would rest in the Commission’s hands alone.” However, the Court held that the “scope of the judicial review is narrow.” The review examines whether the EEOC has properly informed the employer about the specific allegations of discrimination, including what practice has harmed which employees, and whether the EEOC tried “to engage the employer in some form of discussion (whether written or oral), so as to give the employer an … Read More »


FMLA’s New Definition of “Spouse” Halted in Four States

Posted on May 26th, by Editor in Counseling & Compliance Training, Fair Pay Act Obligations. Comments Off on FMLA’s New Definition of “Spouse” Halted in Four States

By Jessica A. Burt

The Department of Labor’s revised definition of “spouse” under the FMLA was recently struck down in Texas. On March 26, 2015, in Texas v. United States, the United States District Court for the Northern District of Texas granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the Department of Labor’s Final Rule that revised the regulatory definition of “spouse” to include same-sex partners under the Federal Family and Medical Leave Act (“FMLA”).

After the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) in United States v. Windsor, which defined spouse under federal law, as a person of the opposite sex, President Obama called for a review of all relevant federal statutes to implement the decision. Under the then-existing FMLA regulation defining spouse, … Read More »


EEOC Takes on Transgender Discrimination under Title VII

Posted on May 18th, by Editor in Fair Pay Act Obligations. Comments Off on EEOC Takes on Transgender Discrimination under Title VII

By DeMaris E. Trapp

On April 21, 2014, the U.S. District Court for the Eastern District of Michigan ruled that the EEOC may proceed with sex discrimination claims on behalf of a transgender plaintiff. This litigation is one of two actions filed by the EEOC in September 2014 alleging that employers violated Title VII by discriminating against transgender employees on the basis of sex.

While the EEOC acknowledges that transgender status is not explicitly protected under Title VII provisions, the Commission has taken the position since 2012 that discrimination against an individual because that person is transgender nevertheless constitutes sex discrimination under the theory of sex-stereotyping, i.e., taking an adverse action against an employee on the basis of that person’s nonconformance to sex- or gender-based preferences.

Federal Courts Permit Transgender Plaintiffs’ Claims under Sex Stereotyping Theory 

The Commission’s two federal complaints, EEOC v. Lakeland … Read More »


New Guidance Regarding Employee Handbooks – Part Four: Permissible Rules Restricting Photography and Recording: A Snapshot

Posted on May 8th, by Editor in Audits/Due Diligence. Comments Off on New Guidance Regarding Employee Handbooks – Part Four: Permissible Rules Restricting Photography and Recording: A Snapshot

By Valerie Kahn

This post is the fourth in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules, found here and regarding Employee Conduct Rules, found here and regarding Rules Related to Company Logos, Copyright, and Trademark.   While the recent guidance was issued by the National Labor Relations Board (NLRB) (view the full Memorandum here), this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

When Do Restrictions on Photography and Recording Go Too Far?

When it comes to rules restricting an employee’s ability to take photographs or … Read More »




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