Employment Law This Week®: ACA Section 1557 Notice Requirements, Retaliation Under the ACA, Big Data Analytics, Sexual Orientation Discrimination

(1) ACA Section 1557 Notice Requirements Take Effect

Our top story: Notice requirements for Section 1557 of the Affordable Care Act have taken effect. Section 1557 prohibits providers and insurers from denying health care for discriminatory reasons, including on the basis of gender identity or pregnancy. Beginning last week, covered entities are required to notify the public of their compliance by posting nondiscrimination notices and taglines in multiple languages. Nathaniel Glasser, from Epstein Becker Green, has more.

“Covered entities should work with counsel immediately, if they haven’t done so already, to prepare their notice and ensure that they have an appropriate grievance procedure in place to handle any complaints of discrimination.  And it’s important that once those documents are in place, that you train your workforce.  Make sure that your front-line workers that are interacting with the public actually know of, for instance, the auxiliary aids and services that you provide, the language assistance services that you have available, so as to head off any issues and complaints in the future. . . . Even employers that don’t operate within the health care space have to be aware that their group health plans could be covered if they receive some sort of federal financial assistance. . . . Work with benefits counsel to make sure that your group health plan is compliant with Section 1557." For more information, click here: http://bit.ly/2exlArk

(2) Final Rule on ACA Issued by OSHA

The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA). The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints.  The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

(3) EEOC Discusses Concerns Over Big Data Analytics

The Equal Employment Opportunity Commission (EEOC) is fact-finding on “big data.” The EEOC recently held a meeting at which it heard testimony on big data trends and technologies, the benefits and risks of big data analytics, current and potential uses of big data in employment, and how the use of big data may implicate equal employment opportunity laws. Commissioner Charlotte A. Burrows suggested that big data analytics may include errors in the data sets or flawed assumptions causing discriminatory effects.  Employers should implement safeguards, such as ensuring that the variables correspond to the representative population and informing candidates when big data analytics will be used in hiring. Click here for more on big data: http://bit.ly/2e53Hly

(4) Seventh Circuit Vacates Panel Ruling on Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit may consider ruling that Title VII of the Civil Rights Act of 1964 (Title VII) protects sexual orientation. On its face, Title VII prohibits discrimination only on the basis of race, color, religion, sex, or national origin, and courts have been unwilling to go further. In this case, the Seventh Circuit has granted a college professor’s petition for an en banc rehearing and vacated a panel ruling that sexual orientation isn’t covered. Also, an advertising executive who is suing his former agency has asked the Second Circuit to reverse its own precedent holding that Title VII does not cover sexual orientation discrimination. We’re likely to see more precedent-shifting cases like these as courts grapple with changing attitudes towards sexual orientation discrimination. Click here for more on the panel’s decision: http://bit.ly/2e57Gyq

(5) Tip of the Week

October is Global Diversity Awareness Month, and we’re celebrating by focusing on diversity in our tips this month. Kenneth G. Standard, General Counsel Emeritus and Of Counsel at Epstein Becker Green, shares some best practices for creating an inclusive environment.

“The most important thing in terms of achieving the kind of diverse environment we wish is for the leadership of the entity, whatever the organization is, the leadership has to embrace diversity and inclusion and has to convey that message, that embracing, to everyone within the organization. Everyone has to get this message; it has to permeate the organizations. Supervisors, people in a position to hire, have to get that message, have to absorb it, have to live it. They’ve got to make hiring decisions based upon merit. At the same time, I think supervisors have to be willing to take a chance. Someone may have had an untraditional background, and that should not automatically disqualify that person from being considered for an opportunity.”