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Inland Press Association & Foundation - EEOC Update Paul H. Kehoe March 10, 2015
©2014 Seyfarth Shaw LLP EEOC Policy & Enforcement Potential Legislation and Oversight Priorities Full complement of Commissioners General Counsel confirmed for 4 years Policy through litigation Regulatory and Sub-Regulatory Agenda Wellness Plans Reasonable Accommodation Guidance Compensation Discrimination Pregnancy Discrimination 2
©2014 Seyfarth Shaw LLP Bills Combatting EEOC Overreach H.R. 548 - Certainty in Enforcement Act Intended to create a safe harbor against disparate impact claims related to criminal background checks H.R. 549 – Litigation Oversight Act Requires all multi-victim and systemic litigation be approved by the Commissioners Public posting of Commissioner’s votes H.R. 550 – EEOC Transparency and Accountability Act Requires good faith conciliations, including legal and factual bases for conciliation demands Reporting requirements to Congress for sanctions 3 |
©2014 Seyfarth Shaw LLP Wellness Plans, The ADA, & GINA Currently on Regulatory Agenda PPACA and Implementing Regulations From The Department of Labor, Health and Human Services, and Treasury 2 Issues Availability of Reasonable Accommodations Voluntariness Under The ADA For Outcome Based Incentives H.R. 1189, S. 620 4 |
©2014 Seyfarth Shaw LLP Reasonable Accommodation Guidance What is Reasonable? Conduct / Performance Standards Leave as a Reasonable Accommodation - Attendance as an essential function Telecommuting 5 |
©2014 Seyfarth Shaw LLP Equal Pay / Paycheck Fairness Act – Rewrites “Factor Other Than Sex” Current meaning of “Factor Other Than Sex” 5 Circuits – Legitimate Business Reason 3 Circuits – Facially Neutral Reason Proponents of PFA – The 2 Circuits create a gaping loophole; Codification of majority rule Proposed standard – Bona Fide factor other than sex Not based on or derived from sex; Job-related; Consistent with business necessity; and No alternative practice reaching the same business goal Legitimate Business Reason ≠ Job Related and Consistent with Business Necessity Unlimited compensatory and punitive damages 6
©2014 Seyfarth Shaw LLP Pregnancy Discrimination New guidance on reasonable accommodation requirements for pregnant employees under the PDA Requires reasonable accommodation for all pregnant employees regardless of: Whether any “impairment” rises to the level of a disability or Existing EEOC regulations stating that pregnancy is not a disability Attempt to influence the Supreme Court in this term’s Young v. UPS case Pregnant Worker’s Fairness Act, S. 942 and H.R. 1975 Trend in state laws 7 |
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