The Equal Employment Opportunity Commission published proposed amendments to its rules due to a Supreme Court decision rejecting claims that favoritism toward older employees violated the Age Discrimination in Employment Act. Comments on the changes must be received by the EEOC by Oct. 10, 2006.

Applicants who were not hired because the employer allegedly gave preferential treatment to Asian and Filipino workers from 1999 through 2000, but didn’t learn of it until years later, cannot proceed on their discrimination claim, according to a recent Ninth Circuit decision.

The plaintiffs in the case argued that statute of limitations on their claim did not begin until they not only knew that they weren’t getting hired, but also when they learned of the alleged discriminatory intent of the employer. The Ninth Circuit says although it has never expressly addressed the question, it notes that other circuits “have concluded that the claim accrues upon awareness of the actual injury, i.e., the adverse employment action, and not when the plaintiff suspects a legal wrong.” Thus, the statute of limitations started for the applicants’ claim at the time they received notice they would not be hired “or when a reasonable person would have realized he had not been hired,” the Court says. Zolotarev v. San Francisco

A black supervisor who “closely scrutinized and criticized” the work of his two white subordinates did not create a racially hostile work environment, the Eighth Circuit rules, affirming a lower court decision.

“Although increased scrutiny might, at some point, amount to a hostile work environment, nothing in this record warrants such a finding,” the Court says, pointing out that other cases have determined that unfair criticism, being yelled at, and being subject to “heightened scrutiny” did not amount to actionable harassment. O’Brien v. USDA

A female employee who was fired after undergoing a surgical abortion can sue for discrimination under the Pregnancy Discrimination Act, the Third Circuit rules. The decision is a precedent in extending the protections of the PDA to women who elect to terminate their pregnancies.

The law prohibits employment discrimination against women who are “affected by pregnancy, childbirth, and related medical conditions.” Citing the “plain language” of the PDA, its legislative history, and Equal Employment Opportunity Commission guidelines on pregnancy discrimination, the Court says that “related medical conditions” includes an abortion. The Court says that the employee presented sufficient evidence to establish a prima facie case of discrimination, and that a trial could determine that the company’s reason for her discharge was a pretext. Doe v. C.A.R.S, Protection Plus Inc.

The new Compliance Manual on Religious Discrimination provides guidance and instructions for Equal Employment Opportunity Commission investigations and analysis of charges alleging discrimination based on religion. The information in its previous compliance manual on religious discrimination is rendered obsolete.

The 97-page manual covers the definition of what is a “religion,” including “sincerely held” beliefs, and employer inquiries into “religious nature or sincerity of belief” if a religious accommodation is requested. The EEOC has also issued a companion “best practices” guide for employers outlining policies that help in reducing or eliminating religious discrimination and harassment in the workplace.

A union worker who was subjected to progressive discipline for missing work on Sunday due to his religious commitments may proceed to trial, a federal district court rules, holding that the company did not show that the “permanent guarantee of every Sunday off” would constitute an undue hardship.

Employers are required to provide a reasonable accommodation of a religious practice or observance unless the accommodation would create an undue burden, the court opinion says. The company in this case had contended that granting the employee every Sunday off would have “breached the collective bargaining agreement, treated other employees unfairly, diminished overall morale, resulted in loss of productivity and increased wages, and created a tidal wave of similar requests.” The employee, however, pointed out that the company had accommodated his Sundays off when there was higher business volume, and that he had not been replaced with other workers when he did not work on Sunday. Since there were “questions of fact” whether the proposed accommodation would create an undue burden on the company, summary judgment was denied to the employer. Walker v. Alcoa Inc.

The Second Circuit holds for the first time that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race. The case before the Court involved a claim by a white assistant college basketball coach who said he was terminated by the school because of his marriage to a black woman. He alleged that one of the decision-makers in his termination habitually made racially offensive remarks, including using the n-word and calling his then fiancée an “Aunt Jemima.” The Court says a reasonable jury could determine that he was fired in part because he was married to a black woman, and send the case back to a lower court for a trial. Holcomb v. Iona College

In an “informal discussion” letter, the Equal Employment Opportunity Commission’s Office of Legal Counsel responds to a query from a convicted auto stripper about employment eligibility in the auto industry after prison release.

Stating that it provides “general guidance on the legality of considering a felony conviction record in an employment decision,” the letter outlines the factors an employer should take into consideration in using conviction records in an employment decision. These factors include: the nature and gravity of the offense for which the person was convicted; the amount of time that has passed since the offense or conviction; and the nature of the job held or sought. Since tow truck drivers are typically responsible for seizing and transporting cars that are abandoned, illegally parked, broken down, or being repossessed, a tow truck company could probably justify a policy that rejects those who recently completed a sentence for auto-stripping, the letter says.

A company who terminated a pregnant employee because of her “lackluster performance” cannot obtain summary judgment due to its multiple documentation failures and inability to locate the employee’s personnel file, rules the U.S. District Court for Middle District of Florida.

The company had claimed that the initial decision to fire was made three days prior to the date the employee learned she was pregnant, but could not produce documentation proving this. The Court observes that the supervisor’s notes at the time contained no references to the pending termination, in addition, the supervisor claimed to have written, and then lost an official document outlining his reasons for the termination. “Further, in direct violation of a written company policy, [the supervisor] failed to document any ‘coaching session’ he allegedly provided to Plaintiff when he became her supervisor. [He] maintains no notes describing an objective process by which he assigns the [performance appraisal] ratings. Finally, it is undisputed that Plaintiff’s personnel file, which should have been in [the supervisor’s] possession, is missing. [The company] has failed to advance any compelling reasons for these documentation and retention failures,” the Court says.

The Court notes that “witness credibility” is critical in this case, and that determination should be made by a jury. Brockman v. Avaya, Inc.

Are home health workers employed by third parties covered by the Fair Labor Standards Act companionship exemption as asserted by the U.S. Dept. of Labor? Or are such workers entitled to overtime, as the Second Circuit rules? The U.S. Supreme Court will decide whether to give deference to the DOL’s interpretation in its review. Long Island Care at Home Ltd. V. Coke.

The Justices also agreed to review a Tenth Circuit decision allowing the Equal Employment Opportunity Commission to sue Coca-Cola Bottling Co. for a firing decision made by an HR employee who had no discriminatory motive, but who had based the termination on reports made by a racially biased supervisor. BCI Coca-Cola Bottling Co. v. EEOC.

Lawsuits against employers who discriminate against workers who have caregiving responsibilities are increasing, according to Pepper Hamilton, a multi-practice law firm. “The Equal Employment Opportunity Commission attributes the rise in claims of family responsibilities discrimination (FRD) to the significant increase in the number of women working outside the home…women are still the primary caregivers in most families,” says Susan Lessack, a partner with the firm.

Lessack says FRD claims can be brought under a variety of legal theories, such as Title VII and the ADA. “For example, if a company routinely allows males to leave the workplace for personal reasons, but is more stringent when females need allowance for childcare, the female employees are likely to have a claim for FRD. If a parent misses a lot of work time to care for a disabled child and is terminated, while other employees are permitted to miss time for personal reasons, the parent might have a claim under the Americans with Disabilities Act for discrimination based on association with a disabled individual,” she says, urging employers to be cautious and ensure that employment decisions affecting caregivers are founded on solid business reasons.

Employers should be cautious about using genetic information in making employment decisions, advises the Pepper Hamilton law firm. “Employees are apprehensive that employers and health insurers may increase premiums for people who have certain genetic markers, or that insurers may deny, limit or cancel their insurance coverage,” says Pepper Hamilton associate Amy McAndrew.

According to the law firm, the Genetic Non-Discrimination Act is pending before the Congress; the Act would prohibit employers from refusing to hire applicants, discriminating against or discharging employees because of their genetic information. Even without a federal genetic nondiscrimination law, Pepper Hamilton says “creative plaintiffs” have alleged genetic employment discrimination under existing laws, including the Americans with Disabilities Act and Title VII.

A company which terminated an employee for exceeding his unpaid leave limit due to his religious observances did not discriminate against him because of his religion, the Fourth Circuit rules. The company had considered several accommodations to the employee’s need to avoid working on his weekly Sabbath and other religious holidays, but could not move the employee to a different shift or position because of his lack of seniority or required skills.

The Equal Employment Opportunity Commission, taking the case on behalf of the terminated worker, had argued that an employer provides a reasonable accommodation only when it “eliminate[s] the conflict between the religious practice and the work requirement.” The Court rejects this view, stating that the requirement in Title VII to “reasonably accommodate” religious observances means just that: “If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so. For instance, Congress could have used the words ‘totally’ or ‘completely,’ instead of ‘reasonably.’” The EEOC had further contended that the company should have allowed the worker more unpaid leave time than permitted by its policy. The Court, however, agreed with the company’s argument that given the frequency of the employee’s time-off requests and the nature of his job, the additional time off would have imposed an unfair burden on his fellow employees. EEOC v. Firestone Fibers.

Employers are facing more challenges in protecting against religious discrimination at work, particularly with unconventional religions, according to the law firm of Pepper Hamilton, LLP. Under the U.S. Supreme Court’s definition of religion as a “sincere and meaningful belief,” it does not require a concept of God, or afterlife, says Partner Robert Ludolph. Purely “moral and ethical beliefs” can be considered religious, as long as they are held with the strength of religious convictions, he says. Unconventional religions such as Wicca, Asatru (based on Norse paganism of the Viking Age), and Creationism have to be recognized by employers. Ludolph says employers are obligated to reasonably accommodate an employee’s religion, and prove undue hardship to the business if they cannot.

Federal Express learned a hard lesson when it paid $55 million to settle a class-action suit alleging race and national-origin discrimination, says George Lenard, managing partner of Harris Dowell Fisher & Harris, LC. FedEx employees had challenged the company’s “Basic Skills Test” used for hiring and promotion, claiming the test excluded minorities at a higher rate than others. “This lawsuit was based on the theory that employment practices violate federal discrimination law if they have a disproportionate impact on minorities and are not properly justified by business needs,” says Lenard in an article for Kennedy Information Recruiting Trends.