EEOC Adopts New Four Year Strategic Enforcement Plan

By Kathleen Jennings (

On October 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced a new four-year strategic enforcement plan (SEP). In December 2012, the EEOC implemented its previous SEP, which established substantive area priorities and set forth strategies to integrate all components of EEOC’s private, public, and federal sector enforcement to have a sustainable impact in advancing equal opportunity and freedom from discrimination in the workplace. The EEOC adopts the SEP for Fiscal Years 2017-2021 to set forth its continued commitment to focus efforts on those activities likely to have strategic impact in advancing equal opportunity and freedom from discrimination in the workplace. The EEOC defines strategic impact as a significant effect on the development of the law or on promoting compliance across a large organization, community, or industry. This focus on strategic impact requires EEOC to shift attention in certain areas and to reduce resources spent on activities that may not have strategic impact.

The EEOC’s substantive area priorities for Fiscal Years 2017-2021 are:

1. Eliminating Barriers in Recruitment and Hiring.

2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.

3. Addressing Selected Emerging and Developing Issues.

4. Ensuring Equal Pay Protections for All Workers.

5. Preserving Access to the Legal System.

6. Preventing Systemic Harassment.

The categories listed above a very broad, so it hard to determine from this list what specific issues the EEOC may target for enforcement and litigation. However, one of the more interesting items is No. 3—Addressing Selected Emerging and Developing Issues. The following issues currently fall within this category:

a) Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;

b) Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);

c) Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;

d) Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and

e) Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad.

The last two items on this list—involving increased scrutiny regarding temporary workers, staffing agencies, independent contractor relationships and the on-demand or “gig” economy and “backlash discrimination” based on religion, race or national origin against Muslims or Sikhs or people of Arab, Middle Eastern or South Asian descent — are new additions to the EEOC’s enforcement priorities.

The EEOC has become more active in filing litigation in recent years. These new enforcement priorities offer some insight into the types of cases the EEOC is likely to target for litigation.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and also provides training and counseling to employers in employment matters. She can be contacted at

©2016 Wimberly Lawson

“Locker Room Talk” in the Workplace

By Kathleen Jennings (

At a recent training session, a male employee asked me the following question: “If a bunch of guys are working together and we want to tell dirty jokes, what is the harm if no females are around?” My response was that this type of talk is not appropriate for the workplace, regardless of who is around to hear it. Employees are free to tell all the jokes they want to when they are outside of work, but when they are at work, they need to follow company policies, including the policy against harassment in the workplace. Harsh? Maybe; but my job is to protect this company from sexual harassment claims.

The reality is that a company that is subject to Title VII of the Civil Rights Act of 1964, as amended (generally, a company with 15 or more employees) has a duty to prevent and address sexual harassment in the workplace. That means a company should have a clear, well-disseminated written policy against harassment in the workplace and a user-friendly procedure that employees can utilize to report possible harassment. When a company receives a complaint of possible harassment, it has a duty to investigate that complaint and take prompt, effective remedial action, if necessary. The worst response to a complaint of possible harassment is to ignore it or simply dismiss it as “just locker room talk.”

Workplace harassment may take many forms. It may be, but is not limited to, words, signs, offensive jokes, cartoons, slurs, pictures, posters, email jokes or statements, pranks, intimidation, physical assaults, physical contact or violence. Harassment refers to any action or conduct that creates an intimidating, offensive, or hostile environment or that interferes with work performance. Conversations that include vulgar descriptions of sexual organs could be considered harassment, if they are severe (extremely offensive) or pervasive. The repetition of those types of comments in the workplace means that they are more likely to rise to the level of harassment because they are pervasive. If these comments are made by members of management, the consequences to the company can be even more severe.

Practice Tip: A company should train its managers and supervisors–at least annually–on how to recognize, avoid, and address possible sexual harassment in the workplace. The best way for a company to avoid costly sexual harassment litigation (or minimize its liability should litigation be filed) is maintain a strong culture that harassment in the workplace will not be tolerated.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and also provides training and counseling to employers in employment matters. She can be contacted at

©2016 Wimberly Lawson

EEOC Issues Updated Guidance on Retaliation

By Kathleen Jennings (

According to the EEOC, retaliation is the most frequently alleged basis of discrimination in all sectors, including the federal government workforce. In order to address the proliferation of retaliation claims, on August 25, 2016, the EEOC issued updated, EEOC Enforcement Guidance on Retaliation and Related Issues, superseding the previous guidance issued in 1998. This guidance explains the law on retaliation issues with concrete examples, where the Commission agrees with those interpretations. Where the lower courts have not consistently applied the law or the EEOC’s interpretation of the law differs in some respect, this guidance sets forth the EEOC’s position and explains its analysis. In other words, this new Guidance represents the EEOC’s interpretation of Title VII retaliation law. It is not binding on the courts.

The various topics explained in the new guidance include:

•The scope of employee activity protected by the law;

•Legal analysis to be used to determine if evidence supports a claim of retaliation;

•Remedies available for retaliation;

•Rules against interference with the exercise of rights under the ADA;

•Detailed examples of employer actions that may constitute retaliation.

Retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, protected activity. Protected activity includes “participating” in an EEO process or “opposing” discrimination. These two types of protected activity arise directly from two distinct statutory retaliation clauses that differ in scope. Participation in an EEO process is more narrowly defined to refer specifically to raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws, but it is very broadly protected. By contrast, opposition activity encompasses a broader range of activity by which an individual opposes any practice made unlawful by the EEO statutes.

The protection for opposition is limited, however, to those individuals who act with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it. That means that the violation that the employee complains about does not have to have merit, the employee must simply have a “reasonable good faith belief” that a violation occurred. For example, if an employee complains that he or she is being sexually harassed, and the employer conducts an investigation and determines that harassment did not occur, the complaining employee is still protected from retaliation as long as he or she had a reasonable good faith belief that harassment occurred. As a practical matter, this means that an employer cannot punish an employee for making an unsupported complaint of harassment (or discrimination) unless the employer has strong evidence that the employee knew that the complaint was false when he or she made it.

While the Guidance does not have the force of law, it does show how the EEOC will approach retaliation claims. Not surprisingly, the EEOC takes an expansive view of each of the elements of those claims.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at

©2016 Wimberly Lawson

The Unemployment Hearing–a Trap for the Unprepared Employer

By Kathleen Jennings (

The simple unemployment hearing. It appears to be a low stakes proposition for an employer to contest the unemployment benefits of a terminated employee. However, the stakes may be higher than just the payment or denial of unemployment benefits. If management or supervisory witnesses testify under oath at the hearing, it is possible that they may make admissions that can be used against the employer in litigation brought by that same terminated employee. In other words, if the terminated employee later files a complaint for discrimination or harassment, anything the employer’s witnesses said at the unemployment hearing can be used against the employer in the litigation.

Moreover, anything the employee says at the unemployment hearing can be used against him or her also. Thus, an unemployment hearing can be an opportunity to gain information and admissions from a potential plaintiff.

Our advice: an employer should have an attorney present at any contested administrative hearing. Counsel can prepare and advise company witnesses and also use the hearing as an opportunity to cross-examine a potential plaintiff.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at

©2016 Wimberly Lawson

Time is Money: 21 States File Suit to Block New Overtime Rule

On Tuesday, 21 states, including Georgia, filed a lawsuit in a federal district court in Texas challenging the Department of Labor’s new rule expanding overtime pay. The rule, set to take effect Dec. 1, will require employers to pay overtime to salaried workers earning less than $47,500 a year, double the current threshold of $23,660. A coalition of business groups also filed a challenge to the rule. Both of Tuesday’s lawsuits said the DOL abused its authority by increasing the salary threshold so drastically, and also failed to account for regional variations in the cost of living.

At this point, the lawsuits have no effect on the effective date of the new rule, which will have a significant impact on many employers. To stop the implementation of the new rule, the parties will need to convince a court to enter an injunction before December 1. We will be watching this situation closely. In the meantime, employers need to continue preparing for the December 1 effective date.

Questions? Need more information? Contact Larry Stine ( or Betsy Dorminey ( at (404) 365-0900.


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©2016 Wimberly Lawson

Never Underestimate the Generosity of a Civil Jury

By Kathleen Jennings (

“You never know what a jury is going to do.” This is something we regularly tell clients when considering settlement or a jury trial. As lawyers, we can evaluate a case based upon the facts and the law, and we also try to account for such intangibles as witness likeability. However, it is impossible to predict how a jury of 6 or 12 or more people, probably none of them lawyers, will evaluate the same evidence and witnesses. Although we make an effort to screen out potential jurors who may harbor a particular bias or bad feeling about our client or employers in general, we cannot eliminate the social or experiential factors that may affect each jurors’ own perception of the case.

An example of a jury verdict that was not predicted by the defense comes to us from South Carolina. In a personal injury case filed against Target, a jury in Anderson County awarded the plaintiff $4.6 million dollars. This case arose out of an unfortunate situation where the plaintiff’s young daughter found a used hypodermic needle in a parking lot of a Target store. The child picked it up, and the plaintiff swatted it out of her hand, causing the needle to stick in the plaintiff’s hand. After her injury, the plaintiff received medical treatment, including testing for HIV and hepatitis. She was also prescribed medication because of the potential risk that she would contract HIV. She has tested negative for both HIV and hepatitis thus far, documents show.

How do we know that this verdict came as a surprise to the defense? Because before trial, the defense rejected a $12,000 settlement demand from the plaintiff. The defense had offered $750.00 to settle the case.

It is probable that the case will now go up on appeal. Regardless of the result of the appeal process, news of a verdict of this magnitude cannot be erased from public consciousness.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at

©2016 Wimberly Lawson


The increase in the minimum salary threshold for the Fair Labor Standards Act’s (FLSA) overtime exemption takes effect December 1, 2016, which will be here sooner than you think. Will your company be ready?

Under the new rules, the minimum weekly salary that an otherwise exempt executive, administrative or professional employee must receive for the employer to be relieved of the obligation to pay overtime will rise from $455/week to $913/week ($47,476 per year). This salary threshold will be updated automatically every three years, based on wage growth over time, to keep pace with inflation.

Remember — in addition to being paid on a salary basis, in excess of the minimum, the employee also must meet the “job duties” test to qualify for the exemption. This means that their job duties must be executive, administrative, or professional and require the exercise of discretion (judgment). In most cases, the employee’s primary duty must be managing the enterprise, or a department or component of the enterprise, and he or she must supervise 2 or more full-time employees. They must have the ability to hire, fire, promote, or discipline other employees, or at least the power to influence those decisions. Alternatively, their primary duty must include non-manual work or the performance of work requiring advanced knowledge, requiring the exercise of discretion and independent judgment.

If this sounds complicated, that’s because it is. The law reports are full of misclassification cases, disputes about whether the employee’s actual duties (titles are meaningless) qualify them for the exemptions. A mistake can cost the employer thousands of dollars in back wages, liquidated damages, and attorneys’ fees. And an employer who thought an employee was exempt usually has no time records to speak of, and is at the mercy of the employee’s recollection as to the number of unpaid overtime hours worked. In large part, this explains the dramatic rise in wage-hour litigation over the past 20 years; today, wage-hour cases are the single largest sub-group of employment-related lawsuits in the federal judicial system.

(Another potentially expensive misclassification trap is treating an employee as an independent contractor – more about that another time.)

The salary threshold change affords employers an excellent opportunity to review how employees have been classified, and to make any necessary changes. A thorough wage-hour audit will more than pay for itself by keeping your company out of trouble.


Questions? Need more information? Contact Larry Stine ( or Betsy Dorminey ( at (404) 365-0900.


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©2016 Wimberly Lawson