News for August 17, 2015

Featured this week:

In state law news:

Featured this week:

Short-lived affirmative action hiring plan for U.S. Foreign Service officers valid under Title VII
A white Foreign Service Officer’s challenge to a long-defunct, and short-lived, State Department affirmative action hiring plan, which was aimed at increasing racial diversity among the officer corps in the U.S. Foreign Service, was properly dismissed by a federal district court, the D.C. Circuit ruled. Rejecting the plaintiff’s argument that the Supreme Court’s 2009 decision in Ricci v DeStefano controlled it’s analysis of the case, the appeals court found that the challenged plan was valid and that the plaintiff failed to establish that the Department’s justifications for the plan were pretextual. (Shea v Kerry, DCCir, August 7, 2015, Srinivasan, S.)



Claims of deliberate touching, erotic dreams produce questions best saved for a jury
A female warehouse worker who alleged that several male supervisors and coworkers at Ford sexually harassed her in violation of Title VII and state law—by repeatedly touching her backside, describing erotic dreams that involved her, and making other sexual comments to her—will have a chance to present those claims to a jury, a federal district court in Michigan determined. “Inherently sexual” comments and conduct, such as what was described by the employee, created a genuine issue of material fact regarding whether she was subjected to a severe and pervasive hostile work environment. However, the employee’s remaining disability and retaliation claims would not proceed. The defendants’ motion for summary judgment was granted in part. (Marotta v Ford Motor Co, EDMich, August 11, 2015, Steeh, G.)



Immediate rejection of referred but never-before-seen electrician suggests bias
Allegations that an African-American electrician who, upon showing up for a union-referred job, was told by the company president (whom he had never met), “No, no, this is not going to work out,” told to leave, and pushed out the door, sufficiently asserted race and color bias, a federal district court in New York ruled. Denying the employer’s motion to dismiss his Title VII and state law claims, the court determined that he plausibly alleged that the president’s rejection occurred under circumstances from which unlawful bias could be inferred. (Salters v Hewitt-Young Electric, LLC, WDNY, August 11, 2015, Telesca, M.)



Whether Dollar General received but rejected plaintiff’s online application due to past ADA claim was triable issue
Denying Dollar General’s motion for summary judgment on a claim that it rejected a former employee’s online application because he previously complained of disability discrimination, a federal district court in Virginia noted that an auto-generated email called into question the retail giant’s assertion that he never completed an application, as did Dollar General’s shifting reasons for not hiring him. The plaintiff’s discrimination claim failed, though, because he admitted that his monocular vision did not limit his ability to “do everything a man with two eyes can do.” (Wilson v Dollar General Corp, WDVa, August 7, 2015, Kiser, J.)



Federal sector EEO guidance updated
The EEOC has updated its Management Directive 110, which now provides federal agencies with updated Commission policies, procedures, and guidance on the federal sector complaint process as set forth in 29 C.F.R. Part 1614. The update, which is the first major revision to MD 110 since 1999, reflects new developments in case law as the federal workplace and EEO practices have evolved. The revised directive also includes changes consistent with those made when the EEOC amended certain sections of the regulations governing the federal sector EEO process in 2012.



2015 VETS-4212 filing period now open
The VETS-4212 reporting cycle for 2015 is now open, and the filing deadline for the reports is September 30. Filing information is available on the DOL’s Veterans’ Employment and Training Service (VETS) website.



WorldatWork expects base pay for U.S. employees to make modest gains in 2016
United States employees could see a modest boost in pay for 2016 according to the 42nd annual "WorldatWork 2015-2016 Salary Budget Survey." Forecasts show the average 2016 budget for raises in the United States is projected to be 3.1 percent. Budgets increasing pay at U.S. employers have improved slightly since 2013, up from 2.9 percent to 3.0 percent in 2014 and 2015.



Aflac study shows benefits remain a key tool for retention and recruitment
In spite of major changes in the health care landscape, small-business owners looking to recruit and retain top employees still need to pay close attention to their benefits offerings. According to the 2015 Aflac WorkForces Report for Small Businesses released by Aflac, a majority of workers employed in small businesses are willing to consider a job with slightly lower pay but better benefits, while half of potential job-changers say improving their benefits package could keep them right where they are.



Unemployment unchanged in July, BLS reports
Total nonfarm payroll employment increased by 215,000 in July, and the unemployment rate was unchanged at 5.3 percent, the U.S. Bureau of Labor Statistics reported August 7. The number of unemployed persons, 8.3 million, was also unchanged. Over the year, the unemployment rate and the number of unemployed persons were down by 0.9 percentage point and 1.4 million, respectively.





In state law news:

City of Chicago to add health insurance coverage for gender reassignment services
Chicago Mayor Rahm Emanuel has announced that the City of Chicago is poised to remove the exclusion of gender reassignment services from city health care benefits; the change will be implemented for all non-union employees, and the city is working with labor partners to also remove the exclusion for union members. The change, which will apply to current city employees and their dependents, would go into effect on October 1, 2015.



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Special Report

EEOC releases report on the American workplace


The U.S. Equal Employment Opportunity Commission (EEOC), as part of the year-long celebration of its 50th anniversary, recently released American Experiences versus American Expectations. The report illustrates the significant changes to the demographics of the workforce since EEOC opened its doors in 1965 as well as the continuing challenges to equal opportunity in employment.

The new report, an update to EEOC's groundbreaking 1977 report Black Experiences versus Black Expectations, examines changes in participation in nine job categories for African-Americans, Hispanics, Asian-Americans, American Indians/Alaskan Natives, and women between 1966, the first year for which EEOC collected data, and 2013, the most recent year for which data is available. The report draws on data from EEOC's EEO-1 survey.



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