Under federal law (Title VII), employers cannot discriminate because of one’s sex. While Title VII does not explicitly coverage transgender employees (i.e., someone born female who presents male, and vice-versa; also known as gender identity), the EEOC’s position is that transgender employees are protected too. Indeed, they’ve begun filing federal lawsuits on behalf of transgender employees who claim to have been discriminated against.

But, Courts have not uniformly accepted the EEOC’s position. Indeed, the state of the law here is very much unsettled.

Just before Thanksgiving, a Texas federal court considered whether an employer can discriminate under Title VII based purely on gender identity…and get away with it.

More after the jump…

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The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them “‘so-called’ wellness programs.” And not in a “yay, so-called wellness programs are super” kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act and the Genetic Information Non-Disclosure Act by both requiring medical examination and penalizing employees who decline to participate.

Back in May 2013, one of the panel experts invited to speak at an EEOC public meeting on wellness programs lamented that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of “voluntary” merits further clarification.

EEOC Commissioner Lipnic too stressed that the EEOC has a “responsibility where possible to let stakeholders know the Commission’s position on these important questions.”

And Senate Republicans, well, they don’t exactly see eye-to-eye with the EEOC on this issue.

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Have you cast your vote for The Employer Handbook as the top Labor and Employment blog in the ABA Journal’s Blawg 100? If not, please take a few secs and do it here.

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And so the EEOC has announced (here), that in February 2015, it will provide wellness-program guidance to employers “to address numerous inquiries EEOC has received about whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA.”

The EEOC believes that its new guidance “will benefit entities covered by title I of the ADA by generally promoting consistency between the ADA and HIPAA, as amended by the ACA, and result in greater predictability and ease of administration,” while imposing “no new or additional risks to employers.”

As former EEOC Chair Berrien recognized at the EEOC’s public meeting in May, there has been “broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs.” So, hopefully, the EEOC can strike a reasonable balance between the intent of these programs and federal anti-discrimination laws.

Or maybe it’s the good karma from yesterday’s Social Media @ Work giveaway.

Whatever it may be, I’ll just smile and say thank you to the ABA Journal for honoring The Employer Handbook (again) as one of the top blogs in America.

Special props also go out to the other blogs honored in the Labor and Employment Category:

Eight great honorees. But, there can be only one. That’s right, through December 19, you can cast your vote for the best Labor and Employment law blog of them all. Here’s how…

  1. Click here.
  2. Register.
  3. Scroll down the page to the “Labor and Employment” category, and click on it.
  4. Click “Vote Now!” for your favorite blog.

The whole process takes 20 seconds.

And who’s the reigning, defending, ABA Blawg 100 Champion of the World, you ask?

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Frankly, I’m disappointed, you guys.

To the 10,002 of you who read this blog, only 1 showed up at the Social Media @ Work event my firm hosted earlier in the month at the National Constitution Center in Philadelphia.

Ok, even my parents and kids skipped this one. (I almost had two of my kids in the audience. I offered some yellow post-it notes and a blue highlighter, but they bargained hard for an extra Jell-O cup, and I wouldn’t cave).

Still, there were tons of people there. And our panel of three of the top national enforcers of labor and employment laws (1, 2, and 3) offered many valuable tips and takeaways for our audience of human resources professionals, business owners, and in-house counsel. It truly was hella-awesome.

If you missed it, you missed out.

But, hey, who loves ya! I’ve convinced my firm’s marketing department to put together a monster recap e-blast, which includes links to video from the event and lotsa press coverage.

If you would like me to email you the full recap from Social Media @ Work, just drop me a line. I got your hookup.

Also, threatening to drag that employee outside and throw him in a ditch. Yeah, that may fracture a law or two. I’m thinking the Family and Medical Leave Act.

Heck, even the Taliban would frown on that.

I got more on this for you after the jump…

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Yesterday, the EEOC issued its FY 2014 Performance Report. Here is a link to the press release.

Now, I’ll admit it. I didn’t read the whole report. Blogging has got me all messed up. I can’t read anything that’s more than 250 words. So, I just stopped at the part in the report where it said that total charges dropped by 5,000 in FY14. So, I didn’t get to the part of the report that credits this blog, in particular, for the drop in charges. But, I assume it’s in there somewhere.

I also wanted to give a nice shout-out to the EEOC’s national mediation program, in which I participate as a pro-bono mediator. Of the 10,221 mediations conducted in FY14, 7,846 of ‘em settled. Based on the math I just did in my head, that’s a success rate of 97%. Ok, 77%. But, that’s still pretty darn good. Shaq’s free throw percentage is jealous.

Overall, the EEOC set 14 targets for itself, of which 7 were met and 7 were exceeded. So, kudos — kids still say kudos, right? — to the EEOC.

Finally, here are the results from Monday’s WWHRD (What Would HR Do?) where I asked the following question: If your employee posted a racist, angry racist Ferguson tweet, how would you recommend that the company respond?

  • Termination 37%
  • Suspension 31%
  • Warning 17%
  • Nothing 6%
  • Other 8%

And, I’m pleased to report that 100% of you loved the poll!