One question often asked by our Blawg visitors is . . .

I have trouble keeping track of deadlines and key dates under all the new laws and regulations. Help me cut through all the legal blah blah blah. What do I REALLY need to know about?

Ask and you will receive. Here are some dates you might want to put on your calendar. Each of these items was addressed in our webinar last week. For a replay, click here.

• February 22: Enforcement of the HITECH Act’s personal health information (PHI) requirements began. Click here for more.
• March 9: Public hearing on OSHA’s proposed rule to revise the OSHA 300 Log to include musculoskeletal disorders (MSDs). Click here for more.
• April 1: H-1B filing season opens.
• April 5: Effective date of the Mental Health Parity Act. If your plan covers mental illness/substance abuse, it must treat those conditions the same as other covered conditions. Click here for more.
• April 19: Deadline for public comments on the EEOC’s proposed rule addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). Click here for more.

Hope this is helpful.

An Iowa judge has ordered the Equal Employment Opportunity Commission (EEOC) to pay more than $4 million in fees and costs incurred by a defendant in a sexual harassment lawsuit that was dismissed by the court.

In 2007, the EEOC filed a lawsuit alleging that CRST Van Expedited had subjected more than 200 female drivers to sexual harassment and had failed to take steps to remedy the alleged harassment.

Last year, Chief Judge Linda Reade of the Northern District of Iowa dismissed all of the EEOC’s claims. “The EEOC has presented the court with anecdotal evidence to show that some members of CRST’s management occasionally violated CRST’s anti-sexual harassment policy by failing to respond appropriately to sexual harassment in the workplace,” Judge Reade wrote. “However, the EEOC has not compiled the failings of CRST’s managers in any meaningful way to show that CRST has a pattern or practice of tolerating sexual harassment in its workplace.”

The EEOC’s argument, said Reade, “boils down to little more than bald assertions.” According to the judge, the EEOC’s litigation approach “was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial.”

The law firms that represented the defendants reported that they billed more than 20,000 hours on the case and originally sought more than $7 million in fees and expenses.

“The EEOC believes the court’s decisions in the case were wrongfully decided and the agency will be appealing,” said EEOC Deputy General Counsel James Lee.

Click here for more.

According to the National Law Journal, the EEOC will soon release statistics showing that age claims declined in the past year — defying all conventional wisdom.

The EEOC says that age claims were down 7% last year. That’s pretty shocking, especially considering all the RIF activity nationwide and the EEOC’s announced intention to more aggressively enforce the law. The 7% drop is a stark contrast to the 30% increase the prior year.

“The facts are turning out different than people thought in terms of age discrimination charge numbers,” said EEOC Assistant Counsel Carol Misaskoff. “What is sort of anecdotally appearing to people is not what we’re seeing in the numbers.”

The EEOC has updated its required Equal Employment Opportunity is the Law poster to include information on the Genetic Information Non-discrimination Act (GINA) and the ADA Amendments Act of 2008, as well as updates from the Department of Labor.

Click here to print out or order the new poster from the EEOC web site.

The President has nominated P. David Lopez as General Counsel of the Equal Employment Opportunity Commission (EEOC).

A 1988 graduate of Harvard Law School, Lopez is a thirteen-year veteran of the EEOC. He currently serves as the Supervisory Trial Attorney with the EEOC’s Phoenix District Office. According to the EEOC, Lopez has “successfully tried several cases” in a “wide variety of legal bases.”

Click here for the official White House announcement of Mr. Lopez’s nomination.

A Colorado prison agreed to pay $1.3 million to 21 female former employees who alleged numerous disturbing acts of sexual harassment.

The EEOC charged that:

• several female employees were threatened with termination if they didn’t perform sex acts;
• after one female employee complained of harassment, she was placed in an isolated location where she was raped by the man against whom she had complained;
• two chiefs of security were allowed to resign after “numerous complaints of sexual harassment and rape,” including forcing a female officer to have sex or be fired, as well as repeated incidents of inappropriate touching and lewd comments;
• male employees were allowed to openly view pornography, tell sexual jokes and make inappropriate sex-related comments on a regular basis; and
• female employees who complained about the harassment faced severe retaliation from male managers who ostracized them, unfairly scrutinized their work, accused them of misconduct and assigned them to the worst and most dangerous assignments at the prison.

In the settlement, the defendants refused to admit any liability.

“We at the EEOC see an unfortunately high number of sexual harassment cases, but what allegedly happened here was shocking,” said Acting Chair Stuart Ishimaru. “No working woman should ever have to endure harassment and requests for sexual favors by managers in order to earn a paycheck — or suffer retaliation for complaining about the illegal harassment.”

What Should Employers Do?

To avoid anything remotely similar happening in your workplace, (1) implement an anti-harassment policy that includes multiple avenues through which to complain, (2) conduct regular anti-harassment training, (3) promptly and thoroughly investigate any and all complaints of harassment, (4) take prompt and appropriate corrective action and (5) avoid any form of retaliation.

(Click here for more on this case from the EEOC.)

One of the best ways to stay out of court is to (1) keep tabs on what sorts of things the EEOC is suing employers for and then (2) don’t do those things.

The EEOC announced a whopping 38 new lawsuits this past week. If you’d like to spend more time with lawyers, judges and juries, just do any of the following . . .

Sexual Harassment and Gender Discrimination

Almost a third of the new cases fall into this category. Here’s what not to do:

• ignore repeated complaints about “higher-ups” who use “sexual epithets” and engage in “threatening physical and verbal sexual conduct” (here);
• apply anti-nepotism policies inconsistently to male and female employees (here);
• fail to have a clearly articulated harassment complaint procedure and fail to take steps to stop a manager from using his position to harass several female employees (here);
• punish an employee who complains of sex harassment by cutting her hours, taking away her company vehicle and then firing her without explanation (here);
• fail to take adequate steps to address a “campaign of sexual comments, threats and unwanted touching” by managers against female teenage employees (here); and
• fail to stop repeated sex-based harassment such as unwelcome touching, requests for sexual favors, physical intimidation, name-calling, anonymous notes and/or retaliation (here, here, here, here, here, here, here and here).

Pregnancy Discrimination

Please don’t:

• make sexist comments like ”a pregnant woman should be at home,” fire a pregnant employee the day she turns in her maternity leave paperwork and then fire her husband three weeks later for “associating” with her (here);
• remove a pregnant employee from a position for safety/risk reasons without an in-depth analysis (here);
• refuse to accommodate a pregnant employee’s request for additional leave time due to doctor-ordered bed rest (here); and
• fail to rehire an employee after she resigned due to a pregnancy-related medical condition (here).

Disability Discrimination

What not to do in this area . . .

• refuse to provide reasonable accommodations to disabled applicants during pre-employment training (especially if you’re a disability services company) (here);
• refuse to hire someone solely because of a back ailment (here) or learning disability (here);
• refuse to discuss a deaf employee’s accommodation requests, “pick on” the employee, force the employee to “work in the back of the store away from the public,” and then “eliminate her work hours entirely” (here); and
• discharge an employee who was involuntarily hospitalized (here).

Race and National Origin Discrimination

Don’t:

• tell a minority applicant during the hiring process that she is “obviously qualified,” then refuse to hire her because she is “unqualified” and then hire a less qualified non-minority applicant (here);
• refuse to hire non-Hispanic applicants for housekeeping positions (here);
• refuse to hire an applicant solely because they don’t speak Spanish when it’s not required for the job (here);
• screen out applicants on a nationwide basis based on credit history and criminal charges/convictions without considering potential job-relatedness (here);
• systematically favor employees of one national origin over another (here); and
• fail to take adequate steps to address a racially hostile work environment, including racial slurs, graffiti and nooses (here, here, here and here).

Age Discrimination

Somewhat surprisingly, there was only one new age-discrimination suit.

Don’t:

• make hiring decisions based on age and then fail to retain employment records related to the hires (here).

Retaliation

Many of the above cases also included retaliation claims. Here are some “what not to do’s” from other new cases that focus almost exclusively on retaliation.

Don’t:

• fire an employee for refusing to drop a discrimination complaint against another employer with whom management has a “close relationship” (here);
• terminate an employee for refusing to drop a restraining order against a co-worker (here); and
• retaliate against employees who complain of discrimination (here, here and here).

All of the above are merely allegations made by the EEOC and are not established facts at this point. Stay tuned to see how these cases play out.

Just a gentle reminder that the EEO-1 filing deadline is September 30.

Generally speaking, the EEO-1 must be filed by all federal contractors with 50 or more employees. For everything you could ever possibly want to know about the EEO-1, visit the EEOC’s web site here.

True to promises made by the Obama Administration, employers can expect to see much more aggressive enforcement of federal anti-discrimination laws in the very near future.

Here’s the latest . . .

New Wage and Hour Compliance Officers

Labor Secretary Hilda Solis has publicly emphasized increased enforcement as a priority, focusing primarily on the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division. The Wage and Hour Division alone plans to hire more than 200 new compliance officers to enforce the Fair Labor Standards Act (FLSA) and other statutes.

Agency Budget Increases

Budgets for the Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) are on the rise for the first time in years, with significant increases planned for 2010. The EEOC will undoubtedly use those resources to pursue its renewed emphasis on systemic (i.e., class-wide) discrimination.

Department of Justice

U.S. Attorney General Eric Holder announced a few days ago that the Department of Justice (DOJ) will increase the budget for the Civil Rights Division by $22 million and hire more than 50 civil rights attorneys to enforce various federal laws, including the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 and the Immigration Reform and Control Act (IRCA). The Division has already started filing far more “friend of the court” briefs in private discrimination matters.

Other Enforcement Activities

Other agencies are upping the enforcement ante as well. Immigration Customs and Enforcement (ICE) recently announced that it is issuing notices of investigation (NOIs) to 652 employers nationwide. OFCCP announced that it will audit recipients of federal stimulus money. OSHA announced a new National Emphasis Program (NEP), targeting companies whose reported injury history is significantly less than the norm.

What Does All This Mean for Employers?

It’s pretty simple: follow the law. Employers that don’t are likely to face tougher audits and enforcement than has been seen in decades.

Want to avoid being a defendant in an EEOC lawsuit?

One of the easiest ways to find out what’s on the EEOC’s radar is to keep tabs on the lawsuits it’s filing. Here’s the latest, all from just the past week:

Accommodate Reasonable Religious Requests

Four Caribbean Rastafarian public safety officers asked for religious accommodation because their dreadlocks didn’t fit under their hats as required by company policy. When the employer refused, the employees filed claims for religious and national origin discrimination.

In another case, the EEOC sued an employer for refusing to allow a hairstylist to take off Sundays, despite her request to do so based on “sincerely held religious beliefs.”

The verdicts: $40,000 settlement in the dreadlocks case and $26,500 settlement in the stylist case, plus injunctive relief including revised policies and training in both cases.

The EEOC’s take: “Employers are obligated to explore how they may accommodate employees’ or applicants’ religious beliefs. In addition to time off for religious services, this may also include accommodations such as allowing time and space for prayer during the workday or, as in this case, making adjustments to grooming and uniform policies.”

Click here and here for more.

Don’t Retaliate

 An employer’s only African-American manager complained about unfair treatment. The employer allegedly responded by retaliating against the employee, giving him an unfavorable performance evaluation, putting him on an overly burdensome performance plan and allowing him to be subjected to racial slurs.

In another case, the EEOC sued an employer for allegedly firing an employee in retaliation for her filing a sex discrimination charge.

The verdicts: $40,000 settlement plus equitable relief in the first case and $84,750 settlement in the second case. Click here and here for more.

Reasonably Accommodate Disabilities

The EEOC sued an employer for allegedly refusing to provide accommodations that would have allowed an employee diagnosed with Parkinson’s disease to continue a successful sales career. The requested accommodations included moving the employee closer to his assistant to reduce walking and providing computer equipment to reduce writing. Instead of agreeing to the requests, the employer allegedly put the employee on a performance plan due to falling sales and then fired him before the 90-day improvement period expired.

The verdict: $65,000 settlement plus injunctive relief including revised policies and training for all employees. Click here for more.

Address Harassment Immediately

Seven female restaurant employees complained of sexual harassment by male co-workers. When the employer allegedly “did nothing to stop or prevent the abuse,” the employees sued.

The verdict: $60,000 plus injunctive relief including revised policies and training for all employees. Click here for more.

Don’t RIF Wrong

An employer allegedly terminated six African-American employees under the guise of a layoff and then immediately hired Hispanic employees to replace each of them. The EEOC sued for race and national origin discrimination.

The verdict: $44,700 plus injunctive relief. Click here for more.

Don’t let this happen to you. In addition to monetary and injunctive relief, the negative PR resulting from media coverage of the EEOC’s press releases can cripple a company.

Stay tuned for more valuable lessons from the EEOC.