| Government Compliance - Religious Accommodation in the Workplace: Federal Contractors' Version of Hobby Lobby Dilemma
by Sandra Zeigler, Esq. and Jacquelyn Peterson - Jul, 2014
Hobby Lobby was decided under the Religious Freedom Restoration Act (RFRA). The Department of Health and Human Services (HHS) argued that for-profit corporations could not have religious beliefs and should not be considered "persons" under the Act. The Court disagreed with HHS, finding that the term "persons," as used in the Act, did apply to closely held corporations. Sandra Scott Zeigler, Esq., a recognized authority on Fede...
Square Peg in a Round Hole: Practical Issues for LGBT Enforcement
by Sandra Zeigler, Esq. - Aug, 2014
On July 21, 2014, President Obama issued an amendment to Executive Order 11246 adding "sexual orientation" and "gender identity" to the list of protected bases covered by that order. The Department of Labor was directed to prepare regulations within 90 days to implement the amendments. The Department notes, in a fact sheet on the new amendments, that many contractors already have voluntary, internal prohibitions against di...
Religious Accommodation in the Workplace: Federal Contractors' Version of the Hobby Lobby Dilemma
by Sandra Zeigler, Esq. - Jul, 2014
On June 30, 2014, the United States Supreme Court rendered its decision in Sylvia Burwell, Secretary Of Health And Human Services, Et Al., Petitioners V. Hobby Lobby Stores, Inc., Et Al. Nos. 13-354 and 13-356 (Hobby Lobby). Hobby Lobby was decided under the Religious Freedom Restoration Act (RFRA). Hobby Lobby and two other closely held companies had faced massive fines for refusing to cover four contraceptives that they beli...
EEO-1 Report and Voluntary Disclosure
by Sandra Zeigler, Esq. - Jun, 2014
On February 14, 2010, Mercury News reported that Google, Apple, Yahoo, Oracle and Applied Materials had successfully convinced the U.S. Department of Labor (DOL) not to release race and gender data from their EEO-1 report under the Freedom of Information Act (FOIA) because releasing such data would cause "commercial harm." CNN made a similar FOIA request on August 18, 2011 for EEO-1 data on 17 technology companies that refused...
Similarly Situated in Termination and Promotion Cases
by Sandra Zeigler, Esq. - May, 2014
The determination of who is "similarly situated" is critical to the outcome of a discrimination case. It is the agency's burden to prove that its calculations are correct and based on appropriate pools for comparison. The most obvious and common avenue of defense for a contractor is to challenge the construction of the pools used in the discrimination analysis. In order to successfully mount this kind of challenge the contract...
Similarly Situated in Compensation
by Sandra Zeigler, Esq. - Apr, 2014
In hiring, termination and promotion cases, the analysis examines each step of the decision making process to determine who should have been equally likely to be selected for the particular employment event. For example, in hiring at each stage you look at who remained eligible to progress to the next stage. Ultimately, the investigation should arrive at the final stage where selection rates of the remaining eligible individua...
Similarly Situated - What Does It Mean and Why is it Important?
by Sandra Zeigler, Esq. - Mar, 2014
The determination of who is similarly situated is central to the prosecution and defense of a discrimination case. This is because determining whether discrimination actually occurred is a comparative exercise. Whether in self-audits or in the defense of allegations of discrimination, it is important for contractors to understand how to identify who is similarly situated to whom for purposes of equal opportunity analysis....
Unemployment Status Discrimination and OFCCP Enforcement
by Sandra Zeigler, Esq. - Feb, 2014
Recently the administration called on corporations to pledge not to use unemployment status as a selection criterion in their hiring decisions. According to various media reports at least 300 corporations have taken this pledge including a number of major federal contractors. The purpose of this article is to discuss whether and to what extent the laws currently enforced by OFCCP can be used to address this issue. OFCCP en...
Contract Compliance in the Context of Transgender Discrimination
by Sandra Zeigler, Esq. - Jan, 2014
I recently received, from former OFCCP colleagues, a copy of an article posted on Buzzfeed.com on December 4, 2013. The headline read, "Federal Official Refuses to Say Whether Office is Protecting Trans Workers." Apparently, the only response the agency was willing to offer was a reiteration that, "OFCCP follows Title VII precedent in everything." The purpose of this article is to shed some light on what that response may actu...
OFCCP and Data Transparency
by Sandra Zeigler, Esq. - Nov, 2013
Contractors are expected to scrupulously document their efforts to broaden recruitment, detect discrimination and to prepare for potential OFCCP compliance evaluations. OFCCP should similarly be expected to document and make readily available to the public its enforcement accomplishments. Doing so would be consistent with the pledge of government transparency on which this administration prides itself. It would sensitize contr...
OFCCP's New "Model Conciliation Agreement for Compensation"
by Sandra Zeigler, Esq. - Oct, 2013
Addendum A to Chapter 8 of the revised OFCCP Federal Contract Compliance Manual (FCCM) dated July 2013 is a "Model Conciliation Agreement for Compensation" (hereafter, Model CA). Chapter 8H01 entitled, "Contents of A Conciliation Agreement" discusses the standard text conciliation agreement that has been the template for all OFCCP conciliation agreements for years. There is no discussion in this section of the Model Conciliati...
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