Week in Review

April 27, 2015

$400K may be the cost of keeping women off oil rigs
On the eve of trial, Unit Drilling Company agreed to pay $400,000 and furnish other relief to settle a systemic sex discrimination lawsuit that the EEOC filed against the nationwide oil drilling company in 2012. According to the commission, Unit Drilling violated Title VII by refusing to hire any women nationwide on its oil rigs. Unit Drilling Company is a wholly owned subsidiary of Unit Corporation. When women applied for jobs at Unit Drilling, they were told that the company did not hire women, according to the EEOC's complaint. Rejected female applicants testified that Unit employees had told them the company did not hire women because it only had "man camps," that women were "too pretty," and that their presence would "distract the men," the EEOC said in an April 22 statement. After a long battle that included several discovery disputes, and just before the case was ready to go to trial, Unit Drilling and the EEOC signed a consent decree resolving the case; the court approved and entered the decree on April 22. The decree requires Unit Drilling to pay $400,000 to five women whom, the EEOC alleges, the company refused to hire because they are women. "Hiring discrimination is a very high priority issue for the EEOC," remarked EEOC District Director Rayford Irvin. "Our investigation showed that women have not been able to get in the door to be considered or hired at Unit Drilling. This complete refusal to consider or hire any women is a blatant violation of federal law. Employers need to consider all applicants for all jobs."

State voluntary veterans' preference laws keep marching along
Flying somewhat under the radar is a plethora of new state laws that authorize private employers to establish voluntary veterans' preference employment policies. These laws allow employers to implement a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Some laws include promotion; others do not so specify. Some specify a veterans' preference for retention during a reduction in force. A few extend the preference to spouses under certain conditions. Almost all state in some fashion that granting a veterans' preference won't violate any local or state equal employment opportunity law or regulation, including antidiscrimination provisions. Take, for example, California. California AB 1383 is working its way through the state assembly. It would amend Title 2 of the Government Code by adding an article that would allow private employers with one or more employees a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. Veteran is defined in the bill as an individual who served in the U.S. Armed Forces on active duty and who was discharged or released with an honorable discharge. Alabama has a similar bill (S.B. 269) pending in both its House and Senate. Arizona enacted a law (H. 2094) April 6 of this year. Florida's law (H. 7015, L. 2014), enacted last year, extends further and allows preference in hiring to an honorably discharged veteran; the spouse of a veteran with a service-connected disability; the un-remarried widow or widower of a veteran who died of a service-connected disability; or the un-remarried widow or widower of a member of the U.S. Armed Forces who died in the line of duty under combat-related conditions. Georgia also sent its voluntary veterans' preference bill (HB 443) to the governor on April 6, 2015. What about Title VII? The Equal Employment Opportunity Commission Compliance Manual notes that federal, state, or local laws that confer special rights or privileges on veterans with respect to hiring are not affected by Title VII. However, if the veterans' preference is not required by a local, state, or federal law (and these private employer laws are voluntary), the situation is not quite as clear.


EEOC issues long-awaited proposed rule on application of ADA to employer wellness programs

Emphasizing confidentiality and allowing employer incentives, the EEOC has published its Notice of Proposed Rulemaking (NPRM) describing how the ADA applies to employer wellness programs that are part of group health plans. Notably, the proposed rule does not address the extent to which Title II of GINA affects an employer's ability to condition incentives on a family member's participation in a wellness program, which the agency said it will address later. Although the proposed rule was officially published on April 20, it was made available in the public inspection portion of the Federal Register on April 16th. Public comments can be submitted for 60 days from that date (until Friday, June 19). The agency has also published a Fact Sheet for Small Business and a Q&A document for the general public, both of which are posted on the agency's website. The EEOC's press release says its proposed rule would provide "much needed guidance to both employers and employees" about how wellness programs offered as part of an employer's group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act.


Another drilling company resolves EEOC suit; disability discrimination alleged

In a continuing trend of settlements resolving lawsuits targeting the gas and oil drilling industry, the EEOC announced on April 22, that a Tulsa-based drilling contractor will pay a former employee $59,000 to settle a disability discrimination lawsuit brought by the commission. The company had forced a derrick hand at its Alice, Texas, location off the job because he was taking prescribed medications to treat chronic pain associated with a degenerative disk condition, according to the agency. The EEOC asserted that the company ultimately fired the derrick hand despite his doctor's determination that he was fit to return to work. In addition, the EEOC held that the company engaged in unlawful disability-related inquiries and medical exams of employees, and required all employees to disclose prescribed medications and over-the-counter drugs to management. The EEOC also challenged practices that essentially barred from employment workers who took prescribed medications that the company deemed capable of impairing job performance, regardless of whether the employee was actually affected by the medication, and even when the employee was cleared by a doctor to work while taking the medication.