Employment Law Strategist

Recent action taken by the Equal Employment Opportunity Commission ('EEOC') and the U.S. Supreme Court show that gender discrimination issues continue to influence employee relations.

Part One of this article discussed the EEOC's plans to implement its new Systemic Discrimination Initiative, describing what the initiative is, why it is important and the first two steps in the implementation: identifying systemic cases early and often, and involving lawyers from the start. The conclusion discusses the next four steps in the EEOC's plans, and what employers can expect.

The term 'wellness program' applies to a wide variety of programs designed to improve employee health, including fitness classes, smoking cessation programs, weight loss programs, and medical exams with medical goals based upon the results. Although at first glance these programs seem to be a win-win for everyone ' improved health for employees and reduced costs ' they carry with them a number of inherent legal risks.

Unfortunately, the typical employer's focus on total workers' compensation claims costs from one year to the next is incomplete and shortsighted. It fails to recognize or measure what is driving the claim costs. If the average medical cost per claim increased, was it simply a matter of medical inflation or did it have anything to do with something the employer could control? If it went down was it luck or a result of the employer's actions? What is needed are tangible and measurable metrics of factors driving claims costs. This focus has several advantages. First, it inherently takes a long-term view enabling employers to understand the underlying circumstances and conditions that are driving up work-related injury costs. Second, it isolates measures of the value of the employer's actions. This approach is much more than a difference in semantics; it not only will drive decisions in a different direction but it may also entail significant changes in an organization's management of Workers' Compensation.

Author Carol A. Wittenberg, who has served on the Major League Baseball/Players' Association salary arbitration panel for the past eight years, as well as mediating and arbitrating numerous financial disputes in the securities industry, explains the different methods of arbitration that work--and do not work--in the volatile securities industry.

When a supervisor is identified in a lawsuit as the alleged harasser, the employer may still avoid liability, under certain circumstances, as long as the harassment did not result in a 'tangible employment action.' To this end, most, if not all, employers are intimately familiar with the U.S. Supreme Court's Faragher and Ellerth decisions issued in 1998. Yet during the past eight years since the decisions, employers have faced the brunt of scrutiny from courts evaluating the application of this affirmative defense.

On May 29, the Supreme Court made it significantly easier for employers to defend against Title VII workplace discrimination claims that are based on long-ago decisions about salary and raises. By a 5-4 vote, the Court said that employees claiming they received disparate treatment based on gender or race must do so within 180 days of the original discriminatory action ' not within 180 days of their last paycheck. Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074.

Like most government agencies, however, the EEOC faces significant obstacles. Its budget is rigorously scrutinized each year. Staffing is down and the backlog of individual discrimination charges is up. Concerned members of Congress have petitioned key House appropriators for funding increases to boost the organization's frontline staffing. In light of all of this, newly appointed EEOC chair Naomi Earp has her work cut out for her. As Earp succinctly stated, '[o]ur challenge in 2007 is to make the most effective and efficient use of agency resources.' In other words, the EEOC must get more bang for its buck to remain effective. Enter the agency's new Systemic Discrimination Initiative. This two-part article discusses how EEOC plans to implement the Initiative.