Category Archives: EEOC

“LOCKER ROOM TALK” STARTED THE SEXUAL HARASSMENT LAWSUIT REVOLUTION

Donald Trump has re-popularized the term “locker room talk.”  The euphemism, which Trump used to explain away his comments about women on a videotape that emerged last week, has different meanings to different people.

Trump downplayed his comments as harmless. Many others, however, viewed Trump’s words as harassing, threatening, and demeaning.  Whatever your belief, so-called locker room talk was the main catalyst behind the explosion of sexual harassment lawsuits some 30 years ago and clearly has not gone away.

Through the real-life story of Beth Ann Faragher, this article provides readers with a historic and revealing look at Title VII — the main law which prohibits sexual harassment and discrimination.  Equally valuable, this edition of the HR Law Insider explains how and why “locker room talk” gets companies sued, and provides businesses specific tools to prevent sexual harassment.

Image result for locker room talk

TITLE VII:  HOW A YOUNG WOMAN LIFEGUARD CHANGED THE WORLD 

I had a Forrest Gump moment in 1986.  As a young  ocean lifeguard in Hollywood, Florida, I  witnessed first-hand the male-dominated culture of the Beach Patrol — in our locker room and on the beach.

Little did I know, just up the road, working with men I knew and competed against in lifeguard competitions, Beth Ann Faragher, a lifeguard with the City of Boca Raton, was on her way to making US Supreme Court history.

Sexually harassed for the better part of five years, Faragher brought claims against Boca Raton under Title VII.  After a hard-fought trial, the court found:

“From time to time over the course of Faragher’s tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women.  During that 5-year period, Chief of the Marine Safety Division Terry repeatedly touched the bodies of female employees without invitation,  would put his arm around Faragher, with his hand on her buttocks, and once made contact with another female lifeguard in a motion of sexual simulation. He made crudely demeaning references to women generally, and once commented disparagingly on Faragher’s shape. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same.”

Marine Safety lieutenant David Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her.  Another time, he pantomimed an act of oral sex. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them.”

The court of appeals, however, reversed the trial court and found in favor of Boca Raton.  This led to the landmark US Supreme Court decision in favor of Faragher in 1998.

Faragher’s odyssey began in the 1980s, a decade which witnessed an explosion of sexual harassment cases under Title VII.  That’s right, it took about 20 years for a cultural shift to “allow” cases to be brought under a law that was passed the year The Beatles started the British Invasion in America.

The Faragher decision is obviously important for its legal precedent in holding employers liable for sexual harassment.   The historic ruling also provides businesses with a road map as to how to avoid sexual harassment claims.

HOW BUSINESSES CAN PREVENT SEXUAL HARRASSMENT

The facts in Faragher lawsuit are very typical of the sexual harassment allegations I have observed over 25 years of representing businesses and individuals:  uncontrolled behavior by men in positions of power and/or an overall work culture that enables, encourages, or permits bad behavior.

Regardless of one’s beliefs about the Trump situation, allowing such talk in a work environment is a sure-fire way to be on the receiving end of an EEOC charge of discrimination.  Here are specific, time-tested tools to prevent locker room talk in your workplace and avoid the fate of Boca Raton :

  • Management and employees should receive sexual harassment and discrimination training from counsel once a year.
  • Employee handbooks should be carefully drafted and specifically reviewed during the training.
  • Sexual harassment and discrimination policies should be discussed in detail; hypotheticals should be played-out to understand how the policy will work in real time/life.
  • All businesses should have a personal relationship policy, particularly regarding supervisors and managers having relationships with those that they supervise/manage.
  • Managers should read the Faragher case — it takes 20 minutes; by understanding the underpinnings of the law, managers will know why their handbook says what it says, how to identify and prevent harassment, and what to do, and what not to do, when harassment is alleged.
  • Leaders should constantly assess company culture; live by the credo:  “There are no bad teams, only bad leaders.”
  • Leaders should focus on hiring and training those people who will fit within a culture that condemns and punishes discrimination and harassment.
  • Contact counsel when there is a potential complaint about harassment or discrimination; such complaints rarely occur, and, in my experience, are often addressed and resolved quickly and inexpensively with an experienced hand and laser focus.
  • Once a complaint of harassment is reported, understand that any discipline or negative treatment towards the complainant will bring a high risk of a retaliation claim.
  • Do not overlook inappropriate, stray comments; instead, view them as red flags to monitor or act on immediately to get ahead of a larger problem.
  • Detach and observe how managers and employees treat each other at the office, in the field, and at social events.  Thinking or saying “he’s just like that” or “that’s just who he is” is unacceptable when dealing with someone conducting themselves in a way that is unaligned with your company’s culture.
  • Do not slide:  review this bullet point list once every quarter and ask:  “is our company doing these relatively simple things to prevent and/or deal with sexual harassment and discrimination”?

CONCLUSION

To understand the root problem and cure for sexual harassment one should do more than adopt wooden, form policies from attorneys or websites.  Instead, endeavor to understand the “culture” in which sexually harassment thrives.

Once one understands the roots of sexual harassment, it is far easier to avoid it in the first instance and, failing avoidance, to identify, combat and eradicate the ugly disease.

EPILOGUE

Here is a fascinating footnote about Title VII’s enactment:  Unlike today, when congressional votes are typically cast along party lines, in 1964 Title VII’s vote occurred along geographical lines — with the North for Title VII and the South against.

The House vote:

  • Southern Democrats: 7–87   (7–93%)
  • Southern Republicans: 0–10   (0–100%)
  • Northern Democrats: 145–9   (94–6%)
  • Northern Republicans: 138–24   (85–15%)

The Senate vote:

EEOC PRESS RELEASE IDENTIFIES HR MISTAKES TO AVOID IN 2016

“Those who don’t know history are doomed to repeat it.”  Edmund Burke

The best and easiest way to avoid HR mistakes in 2016 is to observe  employers’ mistakes in 2015.  Last Thursday, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015.

The EEOC statistics offer employers an excellent guide as to the most common employee claims to avoid, and as to what laws the EEOC is most interested in enforcing in 2016.  Knowing this, businesses can avoid the fate of employers who paid over half a billion dollars to resolve claims in 2015.

RETALIATION CONTINUES TO BE THE MOST COMMON EMPLOYER MISTAKE

Kirk, old friend, do you know the Klingon proverb, ‘Revenge is a dish best served cold’?”  Star Trek II, The Wrath of Kahn.

illinois-employment-lawyer2015 EEOC data shows that retaliation charges increased by nearly 5 percent.  Retaliation was the most frequently filed charge of discrimination, with 39,757 charges, making up a whopping 45 percent of all private sector charges filed with EEOC.

Given the increasing number of retaliation claims, every employer should be intently focused on avoiding any conduct that could be deemed to be retaliation.

WHAT IS “RETALIATION”?

There are three main terms that are used to describe retaliation. Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity. Let’s understand each term:

Adverse Action
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.  Examples of adverse actions include:

  • employment actions such as termination, refusal to hire, and denial of promotion,
  • other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
  • any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful.  For example, it is unlawful for a worker’s current employer to retaliate against him for pursuing an EEO charge against a former employer.

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability.  Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals.  For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Protected Activity
Protected activity includes:

Opposition to a practice believed to be unlawful discrimination
Opposition is when an employee informs an employer that the employee believes that it is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

  • Complaining to anyone about alleged discrimination against oneself or others;
  • Threatening to file a charge of discrimination;
  • Picketing in opposition to discrimination; or
  • Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

  • Actions that interfere with job performance so as to render the employee ineffective; or
  • Unlawful activities such as acts or threats of violence.
Participation in an employment discrimination proceeding
Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid.  Examples of participation include:

  • Filing a charge of employment discrimination;
  • Cooperating with an internal investigation of alleged discriminatory practices; or
  • Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.

WHERE DO WE GO FROM HERE — WHAT TO LOOK FOR IN 2016 AND BEYOND

Retaliation is but one of many mistakes businesses can make in the “heat” of the business world.  For a snapshot of other common employer foibles, here is a comprehensive look at the 2015 EEOC statistics showing all employee charges of discrimination:

  • Retaliation: 39,757 (44.5% of all charges filed)
  • Race: 31,027 (34.7%)
  • Disability: 26,968 (30.2%)
  • Sex: 26,396 (29.5%)
  • Age: 20,144 (22.5%)
  • National Origin: 9,438 (10.6%)
  • Religion: 3,502 (3.9%)
  • Color: 2,833 (3.2%)
  • Equal Pay Act: 973 (1.1%)
  • Genetic Information Non-Discrimination Act: 257 (0.3%)

It is likely that, at least in the short term, these percentages will hold and employee charges of discrimination will continue to increase.

CONCLUSION

Stay ahead of the curve by conducting management training and employee seminars on ways to avoid retaliation and other charges of discrimination.  In addition to these tools, HR Law Insider serves as a valuable resource for businesses seeking the advantage of cutting edge HR and employment law information.

Art Bourque has guided businesses and individuals in various employment law matters, and provides seminars and management training on the topics in this article.  Mr. Bourque provides three main types of services on the issue of retaliation:

  • Management training and employee seminars to identify and prevent potential claims of retaliation
  • Day-to-day management counseling to help businesses confronted with situations where there is a risk of a retaliation claim (e.g. employer wishes to discipline or terminate an employee who may be in a protected category or have engaged in protected activity)
  • Defending retaliation claims before the EEOC and in the courts.

Contact Mr. Bourque with any questions regarding these or other employment or human resource issues.  In the interim, let this famous  clip remind us of the dark side of retaliation:

EEOC SAYS GOODBYE TO RUBY TUESDAY DISCRIMINATION

Is your business advertising for job positions?  Make sure the ads themselves are not discriminatory.

The Equal Employment Opportunity Commission (EEOC) reports that restaurant chain Ruby Tuesday, Inc. — which placed ads seeking only female employees — will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the EEOC.

The federal agency charged that Ruby Tuesday denied two male employees the opportunity to work as servers in the busy resort town of Park City, Utah in the summer of 2013.  According to the EEOC’s suit, Ruby Tuesday posted an internal announcement within a nine-state region for temporary summer positions with company-provided housing and the chance for greater earnings (Oregon, Arizona, Colorado, Iowa, Minnesota, Missouri, Nebraska, Nevada, and Utah).  However, the announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only selected women for those summer jobs, therefore blocking two male employees from transferring to the resort.

GENDER DISCRIMINATION INCLUDES DISCRIMINATION AGAINST MEN

Title VII of the Civil Rights Act of 1964 prohibits employers from giving more advantageous terms and conditions of employment to one group of individuals based on gender.  The vast majority of cases involve alleged discrimination against women.  However, men are equally protected from discrimination under Title VII — a fact about which Ruby Tuesday is now painfully aware.

Under the consent decree resolving the EEOC’s lawsuit, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination.  The company will provide training to all of its managers and employees on Title VII and job assignments in the nine-state area covered by the EEOC’s lawsuit for the duration of the three-year decree.  This includes an estimated 1,600 managers and employees at 49 different locations.  Ruby Tuesday will also report its training efforts to the EEOC, and post reminders of this resolution on its website and at its restaurants.

“Ruby Tuesday will take affirmative steps to make sure its managers do not make gender-based employment decisions again, even if it only involves temporary summer assignments,” said EEOC San Francisco Regional Attorney William R. Tamayo.  “All managers and employees should know that making personnel decisions based on an employee’s sex is rarely permitted under federal law.”

Seattle Field Office Director Nancy Sienko explained, “We hope that all employees of Ruby Tuesday will have the chance to work in Park City should the company have that need again, and that the company explores other ways to address genuine privacy concerns of temporary workers when it provides housing.”

ROLLING STONES TRIVIA

HR Law Insider hopes everyone enjoyed a restful Memorial Day weekend and honored our veterans.  As we all work back into the abbreviated workweek, here is a bit of “Stones” trivia regarding a song must of us know well:

According to Keith Richards’s autobiography, Life, Rolling Stones hit Ruby Tuesday was written about his girlfriend Linda Keith. Linda had taken up with Jimi Hendrix, and had got involved with drugs. She left Richards, and he tried to get her back. He eventually went to her parents and told them she was going down a dark path. Linda’s father went to New York to collect her, and by order of court she was grounded. Richards reports that Linda regarded this as a betrayal, and they did not speak again for many years.

Here is a solid rendition of Ruby Tuesday by the Stones — enjoy and have a great week:

 

WORKPLACE INVESTIGATIONS: SHIELD FOR BUSINESSES OR SWORD FOR PLAINTIFFS?

HR Law Insider’s last edition discussed — using the wacky world of the NFL as an example — workplace investigations.  Businesses should anticipate that their workplace investigations, or lack thereof, may be scrutinized by the EEOC, a judge, or a jury. A good investigation is an effective shield against employment claims; a bad one is a sword for plaintiffs’ lawyers.

EEOC GUIDELINES FOR WORKPLACE INVESTIGATIONS

The EEOC has published guidelines which include many of the elements of an effective investigation:

Effective Investigative Process

An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action.

If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.

It may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.

The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.

Questions to Ask Parties and Witnesses

When detailed fact-finding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.

The following are examples of questions that may be appropriate to ask the parties and potential witnesses. Any actual investigation must be tailored to the particular facts.

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you? When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

Credibility Determinations

If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

Reaching a Determination

Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator’s report. The parties should be informed of the determination.

In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.

If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.

CONCLUSION

The EEOC guidelines provide employers with an excellent understanding of how the EEOC “thinks,” how it will scrutinize employers’ investigations, and how it will decide cases.

The EEOC’s guidelines, however, are just that: guidelines.  These particular guidelines involve a hypothetical complaint of sexual harassment.  No two situations — or complaints — are  alike.  Thus,  each investigation should be planned and conducted based on the unique facts that are presented.

Companies should consult counsel when launching an investigation, making difficult decisions during the investigation, and when a final conclusion is about to be reached.

For how NOT to conduct an investigation, enjoy Inspector Clouseau in action:

 

 

FOLLOW-UP: EEOC PROPOSES NEW RULES GOVERNING WELLNESS PROGRAMS

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rule making (NPRM) on how the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of a group health plan. The NPRM proposes changes both to the text of the EEOC’s ADA regulations and to interpretive guidance explaining the regulations that will be published along with the final rule.

The following questions and answers describe what the NPRM says and what will happen now that the proposed rule has been issued:

  1. What is a wellness program? The term “wellness program” refers to programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs.  Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).
  2. How does the ADA affect workplace wellness programs?  The ADA generally restricts employers from obtaining medical information from employees but allows medical examinations of employees and inquiries about their health if they are part of a “voluntary” employee health program. Prior to the NPRM, the EEOC had not said whether employers may offer incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. However, the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (“Affordable Care Act”), allows wellness programs to offer incentives – in the form of rewards to participating employees who achieve certain health outcomes or penalties if participating employees fail to achieve health outcomes.  The proposed rule clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes. The NPRM also describes employer practices that are wellness programs and those that are not, defines what it means for an employee health program to be voluntary, and explains how ADA rules requiring employers to keep medical information confidential apply to medical information obtained as part of voluntary employee health programs.
  3. When is a wellness program considered “an employee health program” within the meaning of the ADA?  A wellness program is considered an employee health program when it is reasonably designed to promote health or prevent disease. The program must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example:
    • Asking employees to complete a HRA or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease.
    • Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard.

    However, asking employees to provide medical information on a HRA without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be reasonably designed to promote health.

  4. When is a health program considered “voluntary”?  The NPRM lists several requirements that must be met in order for participation in employee health programs that include disability-related inquiries or medical examinations to be voluntary. Specifically, an employer:
    • may not require employees to participate;
    • may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
    • may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).

    Additionally, if a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

  5. How much of an incentive may employers offer to encourage employees to participate in a wellness program or achieve certain health outcomes?  The maximum allowable incentive an employer can offer employees for participation in a wellness program or for achieving certain health outcomes, and the maximum allowable penalty an employer can impose on employees who do not participate or achieve certain health outcomes, is 30 percent of the total cost of employee-only coverage. The total cost of coverage is the amount the employer and employee pay, not just the employee’s share of the cost. For example, if a group health plan’s total annual premium for employee-only coverage (including both employer and employee contributions towards coverage) is $5,000, the maximum allowable incentive an employer could offer to an employee in connection with a wellness program that includes disability-related questions (such as questions on a HRA) and/or medical examinations is $1,500 (30 percent of $5,000).
  6. Why does the NPRM set the incentive limit at 30 percent of the cost of self-only coverage?  This is an incentive limit under HIPAA that applies to wellness programs that require employees to achieve certain health outcomes (called “health-contingent” wellness programs). EEOC’s goal in the NPRM was to provide as much consistency as possible between the ADA and HIPAA.
  7. What confidentiality requirements apply to the medical information employees provide when they participate in wellness programs?  The proposed rule does not change any of the exceptions to confidentiality requirements provided in the EEOC’s existing ADA regulations but adds a new subsection. This section says that a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan.  Wellness programs that are part of a group health plan, including those administered by employers, generally are subject to HIPAA requirements that mandate certain safeguards to protect the privacy of personal health information and set limits and conditions on the uses and disclosures of that information.
  8. Will an employer that complies with the ADA and HIPAA rules applicable to wellness programs also comply with other federal nondiscrimination laws?  The proposed rule clarifies that compliance with the ADA’s rules on voluntary employee health programs, including the proposed limit on financial incentives, does not relieve a covered entity of its obligation to comply with other employment nondiscrimination laws, such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), Title II of the Genetic Information Nondiscrimination Act (GINA), and other sections of Title I of the ADA.  Thus, for example, even if an employer’s wellness program complies with the incentive limits, the employer would violate Title VII or the ADEA if its program discriminates on the basis of race, sex, national origin, or age.
  9. What is the purpose of this proposed rule and what happens next?  The NPRM is a notice alerting the public that the EEOC plans to change the ADA regulations and interpretive guidance as they relate to employee health programs and is seeking comments about the proposed revisions. Anyone who wants to comment has 60 days to do so, until June 19, 2015. Members of the public may comment on anything in the proposed rule and in the interpretive guidance accompanying the rule. However, the Commission has identified some specific issues of particular interest to aid in the development of a final rule, such as whether any additional safeguards are necessary to ensure that employees’ participation in wellness programs is voluntary.  The EEOC then will evaluate all of the comments it receives and make revisions in response to those comments. The Commission will then vote on a final rule. After the Commission approves it, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.
  10. What should employers do until a final rule is published to make sure their wellness programs comply with the ADA?  While employers do not have to comply with the proposed rule, they may certainly do so. It is unlikely that a court or the EEOC would find that an employer violated the ADA if the employer complied with the NPRM until a final rule is issued. Moreover, many of the requirements explicitly set forth in the proposed rule are already requirements under the law. For example, employers should make sure they:
    • do not require employees to participate in a wellness program;
    • do not deny health insurance to employees who do not participate; and
    • do not take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.

    Additionally, employers must provide reasonable accommodations that allow employees with disabilities to participate in wellness programs and obtain any incentives offered. For example, if attending a nutrition class is part of a wellness program, an employer must provide a sign language interpreter, absent undue hardship, to enable an employee who is deaf to participate in the class. Employers also must ensure that they maintain any medical information they obtain from employees in a confidential manner.