FOIA requests to the EEOC, workplace discrimination over vaccination status, limited common elements in planned communities, how to question employees about vaccination status, and more in Our Social Media Posts This Week, Apr. 25 – May 1, 2021.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

how to request foia
information from the eeoc

In the post on Sunday 4/25/21 we learned how to request FOIA information from the EEOC. You  know, requests under the Freedom of Information Act. The EEOC now has a new system that is supposed to make it easier to request information (and to get responses). The EEOC’s public site contains annual reports and more as noted in the post. But other records may need a FOIA request. Often the records relate to a lawsuit that has been or will be filed. FOIA requests must be submitted in writing and reasonably describe the records sought. Make sure the EEOC can easily find what you seek. The types of information to include in a request are noted I the post. And where do you send the FOIA request? It depends on what is sought, so see the post. Once a request is received, the EEOC acknowledges receipt and advises when a response is expected, along with the FOIA tracking number and contact information. After that, the timing follows the track noted in the post. Be aware that 9 categories of records are exempt from disclosure: information that is classified to protect national security, exclusively related to an agency’s internal personnel rules and practices, and 7 other categories (as listed and described in the post). There is also a possible back door type of request – see the post.

TAKEAWAY: When seeking records from the EEOC, know what you want, specifically, and how to get it. Ask an employer lawyer to help if needed.

workplace discrimination over vaccination status – how to stay the course

The post on Monday 4/26/21 talked about addressing workplace discrimination over vaccination status. To be vaccinated or not to be vaccinated … that is the question of the day (and week and month …). And the answer can cause a division among employees and problems for employers. Few employers outside of the healthcare and food service industries are mandating vaccination. So, can an employer only bring back to the workplace those who have been vaccinated? Or prioritize them? Or only let vaccinated employees interact with the public? Probably, with the few exceptions noted in the post. And unless and until a state adopts a law that changes that answer. Some are trying – see the post. And some of the things proposed in the pending state-level legislation makes illegal discriminating against unvaccinated employees (or applicants in some cases). Examples are listed in the post. The proposed legislation goes farther than the return-to-work issue; some are so broad as to consider vaccination status a protected characteristic.

TAKEAWAY: Know applicable federal and state law and follow it to get through the pandemic and vaccination tunnel.

mystery water bill for condo –
how this could happen to you

The post on Tuesday 4/27/21 said ‘It’s a shocker:’ Single mother receives mystery $1,200 water bill for condo. For enough water to fill the condo’s swimming pool 4 times! The person rents a second-floor condo. The bill showed they used almost 10 times their normal usage in December 2020. The next bill, for January 2021, was better but still $982. Then it returned to normal after that. Of course she could not pay the bills – her service was even shut off for 2 days due to non-payment. So, what happened? She searched for leaks (see the post for the result). But it took the news media team to find the cause – and it could happen in any condominium or townhouse community. See the post. The association confirmed there were no leaks in the line between the meter and her unit. How did other tenants or owners solve this problem? See the post.

TAKEAWAY: Know what common or limited common elements or utilities are associated with your unit – whether condo or townhouse – before you move in.

how broad is the legal definition of “on the basis of sex”?

From the post on Wednesday 4/28/21 we learned that the Supreme Court’s Title VII “On the Basis of Sex” ruling is spawning unintended consequences in the lower courts. Yep, no surprise. We are again talking about the Court’s Bostock v. Clayton County case in which it held that the phrase “on the basis of sex” in the context of employment discrimination includes sexual preference and gender identity. For more details behind the decision, see the basis. What follows in the wake of that decision are many questions, including whether the ruling applies to other laws that use the same phrase (including Title IX). While the Supreme Court specifically tied its decision to Title VII, lower courts don’t have that luxury. Some have extended Bostock to Title IX – see the post. Others have gone further and expanded the Court’s definition to include “perceived sexual orientation”. (Yep, see the post). A federal court in Pennsylvania broadened the definition of sex to include “gender stereotyping” – a link to the decision handed down 10/9/2020 is in the post. Other courts have gone even broader, going beyond discrimination statutes to others like the ACA (see the post for more details).

TAKEAWAY: The only way to know how broad is the reach of the definition of “on the basis of sex” is to keep up with applicable court cases – or consult an employment lawyer.

settlement in disability discrimination and retaliation lawsuits

In the post on Thursday 4/29/21 we saw that Valley Tool is to pay $32,500 to settle an EEOC disability discrimination and retaliation lawsuit. Valley Took is a precision machine shop facility. The EEOC sued, alleging that instead of allowing a sorter with sickle cell disease to take leave when the disorder made her too ill to work, Valley Tool removed her from the schedule and more as noted in the post. And the cherry? Valley Took did not keep medical records separate from personnel files. The EEOC charged it with violating the ADA when conciliation failed. So now the case has settled. Valley Tool will pay the money and other things as in the post to settle that case. But that’s not all. There was another suit field near the same time itn eh same court that settled around the same time, that one revolving around retaliation. And for what did Valley Tool settle that one? See the post.

TAKEAWAY: Don’t take adverse action against an applicant or employee on the basis of a protected characteristic – or treat someone in a protected class differently than others as a result of the reason for protection.

the almighty injunction – what it can and cannot do for a community association

The post on Friday 4/30/21 was about the almighty injunction – what it can and cannot do for a community association. We all know that planned communities – ones with condo and homeowner associations – are governed by covenants and rules and that all residents must follow those restrictions. Something that can be a help to associations in enforcing the restrictions is an injunction. It is a legal order from a court requiring compliance with the restriction (which might be doing something or refraining from doing something). Monetary relief might not even come into play. So, when might an injunction be granted? If the association has taken other steps to try to resolve the matter and failed (as noted in more detail in the post). And why might it be important for an association to request an injunction? So as not to set precedent and … see the post. And once an injunction is granted, there is more relief available to the association upon violation of the injunction. Some examples of actions available to a court are listed in the post.

TAKEAWAY: Know the possible ramifications of violation of the Governing Documents – consult a community association lawyer for assistance.

how to ask employees if theyve been vaccinated – without having to call your lawyer first!

Finally, in the post yesterday 5/1/21, we talked about how to ask employees if they’ve been vaccinated without having to call your lawyer first. We keep taking about vaccinations and return to work because the issue is constant and evolving (in different variations, similar to the underlying coronavirus itself). So how does an employer ask an employee if s/he has been vaccinated without running afoul of any laws? First, EEOC Guidance. It is ok to ask about vaccination status. Just a yes or no question, nothing that requests information about a medical condition that might implicate disability laws. That might be sufficient – see the post. If not, then get proof of vaccination, but limited as noted in the post. Then stop. If you venture farther down the road, you might run into the ADA or GINA (and need legal assistance). Why should you NOT ask for the reason if someone is not vaccinated? See the post. And why should you be careful asking how the vaccination process went? Seems simple, but again, see the post. And can managers ask about someone’s medical status relative to leave? Yes, but within certain parameters as noted in the post. To get you through all of this, there are some steps and tips listed at the end of the post.

TAKEAWAY:   As with many laws in the employment context, so too vaccination can be a minefield for employers – get assistance from an employment lawyer before taking action.

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