Thursday, September 11, 2014

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power

An interesting release from the EEOC. Non job-related medical inquiries are prohibited under the Americans With Disabilities Act, as well as many state laws. Although gender identity disorders are excluded from the ADA as a disability (unless there is a physical cause), the prohibition on non-job related medical inquiries apply to everyone, regardless of disability. Thus, requests for medical and surgical status might very well be prohibited by the ADA and similar state laws.

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power Company Violated Two Federal Laws by Making Invasive and Irrelevant Inquiries Through Its Medical Releases, Federal Agency Charges 

MINNEAPOLIS - Shoreview, Minn.-based Cummins Power Generation violated federal law by requiring an employee to submit overbroad medical release forms to have a fitness for duty examination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information.

Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said. The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA).

 Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases. The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, and under Title II of GINA, which prohibits the acquisition of genetic information, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Cummins Power Generation, Civil Action 0:14-cv-03408-SRN-SER) was filed in U.S. District Court for the District of Minnesota, and is assigned to U.S. District Judge Susan Richard Nelson.

"The EEOC doesn't challenge Cummins' request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employees don't give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far. The EEOC is here to make sure employers follow the requirements of ADA - and of GINA, which is a newer statute that everyone needs to understand and observe."

The EEOC's Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at

Wednesday, August 27, 2014

Important New Resource for Employees From Lambda Legal

Below is a press release from Lambda Legal for its new "Know Your Rights At Work" online resource. It has excellent practical tips for what to do if you experience harassment or other discrimination. I highly recommend it. It's the kind of thing you'll wish you read before if you start having a problem at work. The website URL is

Lambda Legal Launches “Know Your Rights At Work” for LGBT and HIV+ People 

 “Among callers to our Legal Help Desk, workplace issues are a top concern year after year—second only to relationship recognition.”

 (New York, August 27, 2014) — As Labor Day approaches, Lambda Legal has launched its newest section of the Know Your Rights information hub. Know Your Rights Workplace provides information for LGBT and HIV+ people who face discrimination at work. “Among callers to our Legal Help Desk, workplace issues are a top concern year after year—second only to relationship recognition,” said Greg Nevins, Counsel and Workplace Fairness Project Strategist based in Lambda Legal’s Southern Regional Office in Atlanta. “We hope the Know Your Rights Workplace resource will help people advocate for themselves as well as assist them if issues arise.”

 The Know Your Rights: Workplace hub provides a wide range of information about the rights of employees who are LGBT or HIV positive. This hub will soon be mobile friendly as well as translated into Spanish and is a user-friendly tool for LGBT and HIV + people. It includes legal and advocacy guidance on an array of issues including:

 - What to Do If You Experience Discrimination
- The Laws that Protect You - HIV Discrimination in the Workplace
- What to Do if You are Fired
- Gender Identity Discrimination
- Your Job Search
- Immigrant Rights
- Good Company Policies
- How Unions Can Help
- Same-Sex Spousal and Partner Benefits

 This is the third Know Your Rights hub Lambda Legal has launched joining Know Your Rights: Teens and Young Adults and Know Your Rights: Transgender. The organization is planning additional Know Your Rights hubs in the coming year.

 Check out Lambda Legal’s Know Your Rights Workplace resource page:

Tuesday, August 26, 2014

Do you have to be friendly to customers that stalk you? Costco Says Yes

Do you have to be friendly to customers that stalk you? Costco says yes, but not according to the EEOC, which is suing Costco.

"John Rowe, the EEOC district director in Chicago, said that the agency's administrative investigation revealed that the employee repeatedly complained to her managers at the Glenview, Ill., Costco where she worked about being pursued, approached, and confronted in the Costco by the man.  In addition, Rowe said, the employee eventually obtained an order of protection against the warehouse member for the unwelcome stalking.

"The employee's efforts weren't enough for Costco," Rowe said.  "One of her managers apparently told the young woman that he agreed the man was 'not right' and that Costco would monitor the situation.  But what actually happened was that when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer."

Read more:

Can non-sexual harassment be used to bolster a sexual harassment claim?

Yes, according to the Second Circuit federal Court of Appeals, covering New York, Connecticut and Vermont.

"The evidence of harassment is quite brief. The supervisor left plaintiff three inappropriate notes in 1998 and 1999. He also summoned her to his hotel room on a business trip and said he thought of her while he was taking a shower. He also insisted that she see him in person at work and not communicate with him by email or phone. The supervisor then denied her certain promotions and denied her opportunities to work from home and take vacation even though male counterparts were able to do these things. The district court dismissed the hostile work environment case, saying there was not enough sexual harassment within the statute of limitations.

The Court of Appeals (Walker, Cabranes and Parker) reinstates the claim. "Moll’s Complaint includes both sexually overt and facially sex-neutral incidents to allege a sex-based hostile work environment. The district court should have considered all incidents in their totality—including sex-neutral incidents—before it dismissed Moll’s hostile work environment claims for failure to allege an actionable incident within the applicable statute of limitations."

Read more here:

Thursday, August 14, 2014

Employer investigating falsity of discrimination charge not guilty of retaliation against employees

Normally, a employee who is subjected to an investigation because he or she reported discrimination has a pretty good claim for illegal retaliation. But in this case, the Second Circuit federal Court of Appeals (covering NY, CT and VT federal courts) says there's no retaliation.  

In this case, the employees reported, in their complaint to the EEOC for race discrimination, that, among other things, they were confronted by  officers of a different race, who apparently accused them of racially-motivated conduct.  In their internal report to the employer, however, they left out this detail. The employer, a law enforcement agency with obvious skills in investigation, then conducted an investigation of the complaining officers, finding that their EEOC complaint was false because of the omitted details. 
The Court of Appeals said the employer was justified in investigating the discrepancy between the internal harassment complaint and the more provocative EEOC charge arising from the same event. If the employer has a solid justification for investigating the plaintiffs, then the employer wins. The Court bounced this case out of court partly because of the special status of the employer as a law enforcement agency, noting that law enforcement officials are required to file reports accurately, and thus the employer has a greater interest in disciplining officers who do not take that obligation seriously than do most employers.

Sunday, August 10, 2014

"At will" employment vs. "right to work" laws: Not the same

I am often confronted with confusion between "right to work" laws and the principle of "at-will employment." People will say: "I'm not protected from discrimination because mine is a 'right to work' state."

Not so. You are protected from discrimination, whether you live in a "right to work" state or not, since every state in the Union prohibits employment discrimination of various kinds. .

However, you are subject to being fired without cause by your employer in every state in the Union, save one.

Every state in the United States, except one, is an "at-will employment" state.  That means that an employer can fire you for any reason, or no reason at all, so long as it is not an illegal reason, such as race or sex discrimination. The only exception is Montana, which prohibits firing an employee who has completed six months of employment unless there is cause related to their employment. See MCA § 39-2-904.

The concept of a "right to work" state is entirely different. It refers to the right of employees to decide for themselves whether or not to join or financially support a union. A union cannot prevent you from working for the employer, even if you decide not to join the union. The union cannot create a "closed shop" agreement with the employer, in which the employer agrees not to hire employees unless they are union members. You can see which states are "right to work" states here.

To review: In a "right to work" state you cannot be required to join a union in order to work.  Nonetheless, you are protected from discrimination by state and federal law (and sometimes municipal law).  However, with the exception of discriminatory reasons, your employer may fire you for any reason or no reason at all, except in Montana.

Thursday, August 7, 2014

Check your references: "It was a lawyer."

Here's a great idea if you're looking for a new job post-transition. Make sure your old employers aren't slandering you and/or making a mess of your gender history.

 Personal story: When I was terminated at the time of my transition 15 years ago, I had a firm check my references. I had contacted my prior employer to explain that I did not want them to reveal my gender transition, and to respond appropriately to inquiries in my new name. I hired a reference-checking firm, which called my prior employer.

 Long story short, when asked what I did for the firm, the stilted response, after an oddly long pause, was "It was a lawyer." I've moved on since then, and let's hope they have as well.

 I have decided to make this reference-checking a standard part of my practice, and found the firm Allison & Taylor online, who seem to be reputable.

Here's their blurb:

 "Looking for a job is tough. Applying, interviewing, and waiting for call backs can be very stressful. Don’t let your references be another cause for concern during this stressful time. Let Allison and Taylor find out for sure what your former employer has to say about you.

Here is what one of Allison and Taylor’s client said after getting their reference report:

 “This report provided great peace of mind, knowing that a former boss had a favorable opinion of my efforts and and work ethic. I was quite relieved!”

 Don’t just assume your former boss will say something good about you. Be sure and have that peace of mind.