Employment Law Update - Legal-mail no. 2017-11
Posted on Aug. 21, 2017

This is Legal-mail no. 2017-11 prepared for interested HR professionals trying to deal with the complex American employment laws. 







EEOC NOT CHANGING MUCH UNDER TRUMP SO FAR: After presidential elections, when the White House changes hands between the two major American political parties, the staffing and approaches of various federal agencies often change too. Change is starting, but so far not much has changed, at the Equal Employment Opportunity Commission (EEOC). President Donald Trump recently nominated Janet Dhillon, a corporate general counsel, to serve as EEOC chair, if confirmed by the Senate. Trump still has one other EEOC appointment to make, and when that nominee is confirmed, the EEOC will have a majority of Republican appointees. The acting EEOC chairperson is a Republican appointee too, but that role did not lead to major changes to the EEOC’s recently-published agenda, which looks quite similar to EEOC agendas followed for the past few years. Moreover, the EEOC so far has not reversed the position it took that sexual orientation bias is prohibited by existing law banning sex bias. The Trump Department of Justice has taken the opposite position in a case pending before a federal appeals court.


EEOC SUES FOR FAILURE TO OFFER TELECOMMUTING IN SMELLS CASE: The EEOC has sued a North Carolina employer under the Americans With Disabilities Act (ADA) for allegedly failing to offer telecommuting as an accommodation for a call center worker with a respiratory condition making her extra-sensitive to workplace scents. The employee, bothered by fragrances, scents, and odors she encountered at work, allegedly asked her supervisor three times to let her work from home. The EEOC said that even though the employee was allowed medical leave, the supervisor’s actions effectively denied the accommodation request without analyzing or explaining how it was an undue hardship on the employer.


COMPANIES PAY OVER id="mce_marker"0 MILLION TO SETTLE EEOC CLAIMS: Speaking of the EEOC, two national companies recently agreed to pay over id="mce_marker"0 million each to settle EEOC claims. One settlement, by a national outdoor goods retailer, involved a class action lawsuit filed by the EEOC and pending in Texas federal court. The lawsuit alleged that the company systemically excluded black and Hispanic applicants from employment. The settlement, which still must be approved by the court, also requires the defendant employer to engage in numerous recruiting and hiring efforts to increase the diversity of its workforce. The other case involved an automobile maker which settled allegations of racial and sexual harassment made by black and female employees. The auto case also involved allegations of retaliation.


REMINDER ABOUT IMPORTANCE OF GOOD JOB DESCRIPTIONS: A Connecticut federal court has allowed a disability discrimination (failure to accommodate) claim to go to a jury trial, primarily because the involved employer had not adequately described essential job functions at issue. The involved plaintiff/employee worked at a clinic and due to knee difficulties, asked to be relieved of the duty of escorting patients from the building lobby into the clinic itself. The employer declined to relieve her of this duty, claiming it was an essential job function.  The court concluded that a jury should decide this point, in part because this duty was not spelled out in the employer’s job description. The EEOC has noted that although it is not the only evidence, “a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions.” Other kinds of evidence that EEOC will consider include the actual work experience of present or past employees in the job, the time spent performing a function, the consequences of not requiring that an employee perform a function, and the terms of a collective bargaining agreement. Clearly, however, the best evidence is the written job description itself, and if the employer in this particular case had used an adequate one, it likely would have won this case on summary judgment.


EMPLOYERS AND THE ECLIPSE: Employers are dealing with the fun and problems of workplace distraction/productivity that come with the total eclipse, set to unfold on Monday, August 21, 2017 during the prime part of the workday. Some are worried that employees will suffer eye injuries from not viewing the eclipse with proper eye protection, see http://www.hrhero.com/hl/articles/2017/08/11/solar-eclipse-presents-opportunities-for-fun-at-work-but-be-careful/. Other businesses are worried about the logistics of eclipse madness, such as traffic problems, overcrowding, etc., seehttp://www.postregister.com/articles/solar-eclipse-featured-news/2017/06/20/expect-traffic-jams-and-big-crowds-eclipse. Scant attention, however, has been paid to the real significant workplace distraction that will occur on the same day. Many news outlets are reporting that at the very moment of total eclipse, pop star singer Bonnie Tyler will sing her famous song, “Total Eclipse of the Heart,” see http://time.com/4902109/total-eclipse-of-the-heart-bonnie-tyler-cruise/. The moment this happens, computers around the world, including in the workplace, may crash as people desperately search for live streams of the moment of synchronization between the forces of love, nature, and rock and roll: “Once upon a time I was falling in love, but now I'm only falling apart, and there's nothing I can say, a total eclipse of the heart.” Good luck dealing with it all, bright eyes.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012