Employment Law Update – Summer 2013

    By Labor & Employment

    EEOC Files First GINA Lawsuits

    Although the Genetic Information Nondiscrimination Act (‘GINA’) has been on the books since November of 2009, the Equal Employment Opportunity Commission (‘EEOC’) had not filed a lawsuit against an employer alleging genetic discrimination until now.

    In May of 2013, the EEOC filed a lawsuit against an Oklahoma fabric distributor. According to the lawsuit, a temporary employee applied for, and received, an offer of permanent employment as a memo clerk. During a post-offer medical examination, the employee was required to fill out a questionnaire that included a host of questions about her family medical history, including whether any family member suffered from heart disease, hypertension, cancer, tuberculosis, diabetes, and the like. During the examination, the doctor identified possible signs of carpal tunnel syndrome and suggested further evaluation. Although the employee’s personal doctor found no indication of carpal tunnel syndrome, the employer rescinded its offer of employment based on its belief that the employee did, in fact, suffer from the syndrome. The lawsuit started as a claim for disability discrimination under the Americans with Disabilities Act (‘ADA’); however, during its investigation, the EEOC learned of the family medical history questionnaire and added a claim under GINA. The parties reached a quick settlement to the tune of $50,000 and an agreement by the employer to provide certain notices and training to curb future discrimination.

    Less than two weeks after settling the Oklahoma case, the EEOC filed yet another GINA lawsuit against a nursing and rehabilitation center in New York. As in the Oklahoma lawsuit, the EEOC alleged that the employer inappropriately requested family medical history information during post-offer medical examinations. This lawsuit remains pending.

    Practical Pointer

    In addition to prohibiting the use of genetic information in making employment decisions, GINA prohibits employers from requesting genetic information from employees (except under limited circumstances). The EEOC has identified ’emerging and developing issues in employment law’ (including genetic discrimination), as one of the six national priorities identified in its recent national Strategic Enforcement Plan. As such, employers are encouraged to audit their hiring process, including their post-offer medical examination procedures, to be sure they do not run afoul of GINA.

    New Virginia Law Affirms Right Not to Disclose Employee Data

    Over the years, the K&C Employment Team has advised employers to be extremely wary of disclosing personal information about their employees. A new law passed by the General Assembly, effective July 1, 2013, provides companies with additional legal support for this good human resources practice. The statute defines an employee’s ‘personal identifying information’ as home or mobile telephone number, e-mail address, or shift times and work schedules. The new law does not prohibit the disclosure – the employer retains the discretion to disclose the information if warranted – but provides that the employer ‘shall not . . . be required to disclose‘ the data. Exceptions exist for disclosures mandated by a subpoena, civil discovery, a warrant or court order, or federal law. But in the absence of those circumstances, the new statute confirms that Virginia employers retain the right to decline to disclose personal details about their employees.

    Retaliation Claim Against Virginia Tech Goes Forward

    The federal court of appeals in Richmond recently reminded us of a principle that bears repeating: former employees can win retaliation suits even if the conditions about which they complain are not illegal. In a case involving Virginia Tech, the court of appeals dismissed all of the three female plaintiffs’ Equal Pay Act claims, but sent one plaintiff’s retaliation claim under Title VII back to the district court for trial. Maron v. Virginia Polytechnic Institute and State Univ. Ms. Maron, who had complained about sex-based pay disparities, was told by her female manager – during a meeting intended to discuss her personal use of email – that she had ‘shown very poor judgment’ and that she needed to ‘stop pursuing the things that [she was] pursuing or [she would] ruin [her] career in a very public way.’ The manager also told her she ‘needed to become invisible’ and ‘stay off the radar for the next six months at a minimum,’ while she would be ‘watching [her] very, very closely.’

    The court found that these statements could reasonably be perceived as threats to terminate Ms. Maron’s employment. The court also found that they could reasonably be found to be sufficient to dissuade a reasonable employee from complaining about discrimination. Thus, reasoned the court, a jury could find in Ms. Maron’s favor on her retaliation claims.

    Practical Pointer

    Retaliation was the most common discrimination charge filed with the EEOC last year. Also, remember that retaliation claims are sometimes riskier and harder to defend than typical discrimination claims. With these factors in mind, supervisors should be instructed to be very careful in communicating with an employee who has filed a claim.

    Sometimes, the natural reaction of a supervisor accused of discrimination may be to do or say something that could be perceived to be retaliatory. Accordingly, never allow a counseling session on one topic (email abuse) to wander into another area (complaints about discrimination) on which the manager may not be as prepared. And it’s seldom a good idea to tell an employee that complaining about possible discrimination could ‘ruin your career in a very public way.’

    OBAMACARE Deadlines are Looming

    Most large employers are aware that the employer mandate to offer health insurance to full-time employees or face potential penalties kicks in on their 2014 insurance renewal date (January 1, 2014 for calendar year plans). What many employers don’t fully understand is the importance of July 1, 2013 and October 1, 2013 in preparing for the mandate.

    Since the determination of ‘large’ employer status and the identification of ‘full-time’ employees are based on 2013 employment demographics, any changes in employment practices designed to avoid or minimize the impact of the mandate need to be in effect by July 1, 2013. For example, if an employer plans on reducing certain employees’ hours in order to make them ‘part-time’ for 2014, the reduction in hours needs to be implemented by July 1st.

    Secondly, employers are required to notify all employees of the rollout of the new health insurance marketplace (formerly ‘exchange’) by October 1, 2013 and the model notice is now available for review and completion. Since the notice may create significant confusion among employees, planning needs to get underway to determine how to complete the employer portions of the notice. Employers also need to determine what additional supplementary materials they intend to distribute and whether they’re going to offer employee educational meetings.


    John will be on hand to present an insightful workshop on health care reform as part of K&C’s 29th Employment Law Update on July 18, 2013 at the Hampton Roads Convention Center. To register, contact Julia Rhody at (757) 624.3209.

    What Was He Thinking?

    According to allegations in a pending California case, Rangel v. Am. Med. Response, Deanna Rangel’s joking comments questioning her supervisor’s masculinity resulted in her supervisor unzipping his pants and pulling out his testicles while stating, ‘I’ll show you I have balls . . . ‘ Ms. Rangel also testified that her supervisor ‘spanked’ her on other occasions and used very derogatory terms in referring to her and other female employees. Whether he was joking or not, this supervisor ultimately resigned to avoid being discharged.

    Although the case has not yet concluded, the judge has indicated that the alleged exposure of genitals alone was sufficient to support a sexual harassment claim. The judge went on to state that such behavior does not have to be motivated by sexual desire to be actionable. This should not be surprising to employers and sends a strong message to employers to monitor their workplaces to prevent such inappropriate conduct even if both parties to alleged ‘horseplay’ are willing participants.

    It should also not be surprising that this case was immediately nominated for the K&C Employment Team’s list of ‘Most Outrageous Employment Cases.’ By popular demand, this list will again be published later this year.

    Leading Health Care Reform Advisor Joins K&C Labor & Employment Team

    The K&C employment law team is pleased to welcome its newest member, John M. Peterson to the firm’s Norfolk office. A Hampton Roads native, John has more than 39 years of law and public accounting experience in the areas of retirement plans and employee benefits. Prior to joining Kaufman & Canoles, John was a partner with Dixon Hughes Goodman, CPAs. For a number of years, John taught employee benefits as an Adjunct Professor at William & Mary Law School.

    John’s practice focuses on all aspects of health care reform, particularly planning for the employer mandate. He frequently educates employers and lawyers on the ins and outs of health care reform through speaking engagements and CLEs. John’s experience makes him uniquely qualified to help employers prepare for this new law.

    29th Annual Employment Law Update – Your Prescription For Compliance

    As many companies experience the symptoms brought on by everyday employment law headaches, K&C is pleased to announce a program designed to provide employers with a treatment plan for success. The 29th Annual Employment Law Update – Your Prescription for Compliance will be held at the Hampton Roads Convention Center on Thursday, July 18th.

    The K&C Employment Law Team and representatives from a number of government agencies will present a variety of educational workshops designed to prescribe solutions for your employment law maladies. This program will also feature a special luncheon presentation by Gary Namie, Ph.D., a nationally recognized expert on how to prevent workplace bullying and Director of the Workplace Bullying Institute. Additional topics include: Healthcare Reform; Dealing with Problem Absenteeism; Safe Interviewing/Hiring Practices; Handling Theft and Drugs in the Workplace; Employee Discipline & Discharge; and more.

    The 29th Annual Employment Law Update will help employers diagnose employment law headaches and comply with recent changes in employment law. For more information, contact Julia Rhody at (757) 624.3209.

    This program has been approved for 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at


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