Monday Morning Minute
In This Issue
Illinois: Class Action BIPA Without Harm?
Gustafson Named General Counsel for EEOC
Pregnancy Discrimination Continues to Be an Issue for Employers
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                  August 12, 2019


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Spognardi Baiocchi's Monday Morning Minute has regularly covered Illinois' Biometric Information Privacy Act, which has been a scourge on unsuspecting Illinois employers seeking improved time management and access controls. BIPA was passed in 2008 and guards against the unlawful collection, storage, and distribution of biometric information. Illinois was the first state to pass such an Act and it is the only law that allows private individuals to file a lawsuit for damages from such violation.
The Ninth Circuit ruled on Thursday that plaintiffs, in a class action lawsuit which alleges Facebook's face scanning practices violated the Illinois Biometric Privacy Act ("BIPA"), alleged a concrete injury to support their claims, and that the district court did not abuse its discretion in certifying the class.   The Circuit held that plaintiffs have alleged a concrete and particularized harm that was sufficient to confer Article III standing where the statutory provisions at issue were established to protect plaintiffs' concrete interests in privacy, not merely procedural rights.
Facebook previously urged the Ninth Circuit Court to overturn a lower court's decision to certify a class of Illinois users who allege the company's practices were violating BIPA because it would lead to a large damage award even though no users had been harmed in fact. However, the Court determined that the development of a face template using facial-recognition technology without consent invades an individual's private affairs and concrete interests and therefore was sufficient to establish injury for standing .
Spognardi Baiocchi will keep you advised of developments. Call our Firm if you have problems in this area.  

The U.S. Senate confirmed Sharon Fast Gustafson, an attorney from Arlington, VA to serve as the EEOC's general counsel for the next four years. The general counsel position has been vacant since David Lopez, President Obama's appointee, resigned in 2016. Ms. Gustafson has worked as a legal practitioner representing both employers and employees for years. She also represented the plaintiff in a landmark Supreme Court case, Young v. United Parcel Service, ruling that employers must provide reasonable accommodations for pregnant employees.
The EEOC is a bipartisan commission comprised of the chair, vice chair and its commissioners. The members work together to develop and approve different policies, issue charges of discrimination and authorize lawsuits. The EEOC has five commissioner spots, three from the current president's political party and two from the opposing party. The Senate approved Janet Dhillon to chair the EEOC in May, so the agency now has three spots filled meaning the majority can now issue new policies, guidance, and regulations. Dhillon was first nominated by Trump in 2017.
Employers should not expect the EEOC's direction and enforcement efforts to change drastically, however there may be changes in the agency's approach to policy and litigation enforcement with new leadership

You would not think this would still be an issue in today's day and age, but it is! The EEOC has recently settled two cases in August against employers (one in Florida and one in Arizona) for discriminating against women who were pregnant.  

In the Arizona matter, Matrix Medical, a  nationwide health care company headquartered in Scottsdale, Arizona, found itself in trouble with the EEOC after it rescinded a job offer to a candidate within a week of finding out she was pregnant.  Matrix will pay $150,000 and issue a letter of apology to the individual.  Matrix is also required to review and revise its equal employment opportunity policies and its personal leave-of-absence policy to include a provision that pregnant employees may take leave during their first six months of employment.  As part of the settlement, it is also required to train its supervisors on Title VII and other anti-discrimination laws.  

In another matter in Florida, the Glenridge on Palmer Ranch, an upscale retirement community in Sarasota, Florida failed to further interview an applicant for a position after asking her when she planned on having another baby.  Instead Glenridge offered the position to another female, an older one for whom it did not believe would or could become pregnant. Glenridge will pay $70,000, adopt and distribute an updated policy against sex discrimination, conduct annual training on sex discrimination for its hiring officials, and post a notice about the lawsuit in order to settle its matter with the EEOC.  

This is a good reminder for employers to make sure its hiring managers are asking appropriate, open ended questions when interviewing candidates.  It is also a good time to remind those same hiring managers that he or she should not rely upon or use inappropriate information revealed during an interview to make a decision on hiring. 

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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