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Mary O’NeillRegional Attorney

Phoenix District OfficeU.S. Equal Employment Opportunity

CommissionMarch 10, 2015

EEOC Laws Overview

EEOC Process

EEOC SEP Priorities

Criminal Background Checks

EEOC Arrest and Conviction Guidance

American with Disabilities Act

Domestic Violence and Employment Discrimination

Laws EEOC enforces:◦ Title VII of the Civil Rights Act of 1964 (race,

national origin, color, sex, and religion)

◦ Equal Pay Act (including Lilly Ledbetter Fair Pay Act of 2009)

◦ Americans with Disabilities Act (ADA) (including Amendments)

◦ Genetic Information Nondiscrimination Act (GINA)

◦ Age Discrimination in Employment Act (40+)

◦ Rehabilitation Act of 1973

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The Equal Pay Act

Sex based wage discrimination

(1.5 % of charges-95 charges)

Lilly Ledbetter Fair Pay Act of 2009

TITLE VII OF THE CIVIL RIGHTS ACT of 1964

Race -21.3% (1,318) National Origin-16.1% (992)

Color-3.6%

Sex -33.1 % (2,047)Religion-4.7% (291)

The Americans With Disabilities Act

Americans With Disabilities Act

Amendments Act (ADAAA)-31.6% (1,950 charges)

Genetic Information Nondiscrimination Act (GINA) of 2008 -.3% (18)

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Age Discrimination in Employment Act

26.9% (1,664 charges)

Age 40 +

Employee

Temporary worker

Job applicant

Former employee

Undocumented workers too!

Photo via flickr/bongo vongo

Enforce Federal Employment Discrimination Statutes

Issue Regulations and Guidance Interpreting Those Statutes

Receive and Investigate Charges of Discrimination

Enforce Statutes through Conciliation and Litigation

Engage in Outreach and Education Efforts to Constituent Groups

Employee can file

Third party can file

Commissioner’s charge

Photo via flickr/bongo vongo

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Employer/ Employee >15 Employees-Title VII, ADA, GINA >20 Employees-ADEA 300 days to file charge from last act of

discrimination 180 days for ACRD 1 or more employees for sexual harassment

under the ACRA

Intake Questionnaire, Walk-Ins, Mail-Ins… MOU between ACRD and EEOC-Geography Intake Interview Charge drafted Charge served on Employer within 10 days EEOC Requests Position Statement from Employer or ADR Mediation? RFIs/ Subpoenas/ Interviews/ Investigation LOD/ Dismissal/ Notice of Right to Sue-90 days/Conciliation Litigation FOIA/ Section 83 Disclosure of Files

Do a very detailed Intake Questionnaire Have documents and written chronology Have witnesses names, emails, addresses, and

statements Letters of representation from lawyers must be on file

to discuss the case with the agency Give copies of emails, texts, audio and videotapes EEOC Intake interviews conducted M-T-Th-Fri from

8:00 a.m. to 3:00 p.m. Unperfected charges will get served. Please have CP

cooperate ADR ACRD-appts, walk-ins, online

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

INTAKE QUESTIONNAIRE

Please immediately complete the entire form and return it to the U.S. Equal Employment Opportunity Commission

(“EEOC”). REMEMBER, a charge of employment discrimination must be filed within the time limits imposed by law,

generally within 180 days or in some places 300 days of the alleged discrimination. Upon receipt, this form will be reviewed

to determine EEOC coverage. Answer all questions as completely as possible, and attach additional pages if needed to

complete your response(s). If you do not know the answer to a question, answer by stating “not known.” If a question is not

applicable, write “N/A.” (PLEASE PRINT)

1. Personal Information

Last Name: _______________________________ First Name: _______________________________ MI _______________

Street or Mailing Address: _______________________________________________ Apt or Unit #: ____________________

City: _____________________________ County: ____________________ State: _________ Zip: _____________________

Phone Numbers: Home: (_____) _________________________ Work: (_____) ____________________________________

Cell: (_____) _________________________ Email Address: ___________________________________________________

Date of Birth: ______________ Sex: Male Female Do You Have a Disability? Yes

No

Please answer each of the next three questions.

i. Are you Hispanic or Latino? Yes No

ii. What is your Race? Please choose all that apply. American Indian or Alaskan Native Asian White

Black or African American Native Hawaiian or Other Pacific Islander

iii. What is your National Origin? _________________________________________________________________________

Please Provide The Name Of A Person We Can Contact If We Are Unable To Reach You:

Name: Relationship: ________________________________

Address: __________________________________ City: ____________________ State: ______ Zip Code: _____________

Home Phone: (____) _________________________ Other Phone: (____) _________________________

I believe that I was discriminated against by the following organization(s): (Check those that apply)

Employer Union Employment Agency Other (Please Specify) _________________________________

2. Organization Contact Information (Employer or Union Name)

Organization #1 Name: ________________________________________________________________________________

Address: ________________________________________ County: ______________________________________________

City: ____________________________ State: ____ Zip: ____________ Phone: (____) ______________________________

Type of Business: __________________ Job Location if different from Org. Address: _______________________________

Human Resources Director or Owner Name: ____________________________________ Phone: (____) ________________

Number of Employees in the Organization at All Locations: Please Check (√) One

Less Than 15 15 – 100 101 – 200 201 – 500 More than 500

Organization #2 Name: _________________________________________________________________________________

Address: ________________________________________ County: ______________________________________________

City: _________________________________ State: ____ Zip: __________ Phone: (____) ___________________________

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EEOC Form 5 (5/01)

CHARGE OF DISCRIMINATION Charge Presented To: Agency(ies) Charge No(s):

This form is affected by the Privacy Act of 1974. See enclosed Privacy Act Statement and other information before completing this form.

FEPA

X EEOC

Arizona Attorney General's Office, Civil Rights Division and EEOC

State or local Agency, if any Name (indicate Mr., Ms., Mrs.) Home Phone (Incl. Area Code) Date of Birth

xxx xxx xxx

Street Address City, State and ZIP Code

xxx

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.) Name No. Employees, Members Phone No. (Include Area Code)

xxx xxx xxx

Street Address City, State and ZIP Code

xxx

Name No. Employees, Members Phone No. (Include Area Code)

Street Address City, State and ZIP Code

DISCRIMINATION BASED ON (Check appropriate box(es).) DATE(S) DISCRIMINATION TOOK PLACE

Earliest Latest

RACE COLOR SEX RELIGION NATIONAL ORIGIN xxx

RETALIATION AGE DISABILITY OTHER (Specify below.)

CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY – When necessary for State and Local Agency Requirements

I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief. I declare under penalty of perjury that the above is true and correct.

SIGNATURE OF COMPLAINANT

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year)

Date Charging Party Signature

Name, Address, Phone Number of employer

Contact Information of someone we can contact other than you

Names and Job Titles of all involved officials

Comparators

Names and Contact Info of all Witnesses

Witness Statements

Names of others who are similarly situated

Employer policies and handbook

All documentary evidence – notices, pictures, recordings, etc.

Written Statement

Journal or outline in time sequence

What will be the employer’s defense

Why discrimination and not just unfair

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Description or documentation of disability

Description or documentation of what accommodation(s) you need from your employer

2. Protecting Immigrant, Migrant and Other Vulnerable Workers.

The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies

affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

Examples?

1. Eliminating Barriers in Recruitment and Hiring.

• The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

An example of barriers in Hiring

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Title VII of the Civil Rights Act of 1964,

as amended, prohibits employment discrimination based on race, color, religion,

sex, or national origin.

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National Employment Law Project

www.nelp.org

64.6 Million

U.S. Adults

with Criminal

Records

Total of

232.5 Million

U.S. Adults

73%

19%

7%

Companies that Perform

Criminal Background Checks

All job candidates 73%

Selected job candidates

19%

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National Employment Law Project

www.nelp.org

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Info widely available: Internet & “consumer reporting agencies”

Most employers use criminal background checks for some or all jobs

Legal & social science developments

Federal, state, and local governments foster reentry and employment

More working-age people have criminal records, especially African Americans and Hispanics

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◦ Basics are the same as 1987 and 1990 EEOC guidance documents

◦ Now responds to employer questions

Federal laws requiring background checks and exclusion from jobs

Employer best practices

Does not prohibit employers from using or obtaining criminal background checks.

Does prohibit using that information in a discriminatory way.

Avoids bright line rules.

Provides detailed examples and best practices.

CC image courtesy of Jack Spades on Flickr

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Employers cannot treat job applicants with the same criminal records differentlydue to race, color, religion, sex, national origin

Proof◦ biased statements

◦ similarly situated people treated differently

◦ inconsistencies in the hiring process

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Which one is the convicted felon?33

5%

14%

17%

34%

0%

5%

10%

15%

20%

25%

30%

35%

40%

Callback (Criminal Record) Callback (No Record)

African Americans

Whites

National Employment Law Project

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Uniform, neutral policy BUT it results in disproportionate, unjustified exclusion

DEFENSE: Unless “job related and consistent with business necessity”, it’s illegal.

CC image courtesy Gabe Photos on Flickr

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Particular policy or practice

Disparate impact based on race, national origin, or another Title VII basis

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Green v. Missouri Pacific Railroad (1977 decision) -- African American Vietnam-era conscientious objector excluded by a blanket exclusion from working for the Missouri Pacific Railroad.

El v. Southeastern Pennsylvania Transportation Authority (2007 decision) -- African American 55-year-old paratransit driver-trainee, who was fired when the employer discovered a conviction for a sole, violent offense that occurred 40 years ago.

Waldon v. Cincinnati Public Schools (2013 decision) – two African Americans were fired for prior convictions after many years of excellent service (along with an additional ten employees, nine of whom were African-American).

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Little research on the correlation between criminal record and propensity to commit crimes at the workplace.

People who were arrested had same risk of being arrested as general population after 4-7 years of no arrests. Alfred Blumstein and Kiminori Nakamura, “‘Redemption’ in an Era of Widespread Criminal Background Checks,” (2009)

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Targeted Screen + Individualized Assessment

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1) Nature and gravity of the offense or conduct

2) Time that has passed since the offense, conduct and/or completion of the sentence

3) Nature of the job held or sought

CC image courtesy of wainwright.photography on Flickr

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Employer should… Inform the individual that s/he may be

excluded due to evidence of past criminal conduct

Provide an opportunity for the individual to explain

Consider whether the individual’s additional information supports or undermines the exclusion

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Consider…

Inaccuracy of criminal record

Age at conviction

Consistency, quality, and length of employment history before and after

Rehabilitation efforts

Employment/character references

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◦ Guidance Example 5:

Automatic exclusion in online job application

◦ Guidance Example 6:

Automatic exclusion without individualized assessment for current employees with good record

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The cost of corrections consumed $74 billion a year in U.S, $9 billion in California. (U.S. Bureau of Justice Statistics, 2007)

Reduced output of goods and services of people with felonies and prison records is $57-$65 billions in losses. (CEPR, 2010)

One study showed most people recidivated within 3 years after imprisonment. (U.S. Bureau of Justice Statistics, 1994)

Employment has been shown to significantly reduce recidivism.

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• Eliminate across-the-board policies.

• Identify essential job requirements, how jobs are performed, and target specific offenses that demonstrate unfitness for job.

• Train managers, hiring officials, & decision makers.

• Do not ask about convictions on job applications.

• Provide opportunities for explanations

• When asking questions about criminal records, limit inquiries to convictions for which exclusion would be job-related and consistent with business necessity.

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• Document the policy’s rationale

• Employers may want to record justification for policies and procedures

• Keep a record of consultations and research used to craft policy

• Keep criminal record information confidential.

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For additional information about the topics we discussed during the presentation, please reference the following sites:

◦ Enforcement Guidance: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

◦ Qs and As: http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

◦ What You Should Know Fact Sheet: http://www.eeoc.gov/eeoc/newsroom/wysk/arrest_conviction_records.cfm

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65 Million Need Not Applyhttp://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1

Cities Pave the Way: Promising Reentry Policies http://www.nelp.org/page/-/SCLP/2010/CitiesPavetheWay.pdf?nocdn=1

U.S. Department of Labor Civil Rights Guidelines Governing Background Checks and Federally-Funded Workforce Development Programs http://wdr.doleta.gov/directives/attach/TEGL/TEGL_31_11.PDF

Webinar: Understanding New DOL Guidance http://www.nelp.org/page/-/SCLP/Webinar/Webinar_DOL_WIA_CrimRecGuidelines.pdf?nocdn=1

FCRA Factsheet, “What to Know When You Look for a Job” http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt080.pdf

U.S. Reentry Council Reentry MythBustershttp://www.nationalreentryresourcecenter.org/documents/0000/1090/REENTRY_MYTHBUSTERS.pdf

49National Employment Law Project

www.nelp.org

2. Protecting Immigrant, Migrant and Other Vulnerable Workers.

The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

EEOC v. Henry’s Turkeys-Iowa jury-$240 million for a class of men with intellectual disabilities—

NOTE: charge filed by a third party!

EEOC v. Global-LA/ Hawaii-$19 million verdict for exploited Thai workers.

EEOC v. Spud Seller-COLO-sexual harassment of potato workers.

EEOC v. Harris Farms -CA-sexual harassment of farmworker woman

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3. Addressing Emerging and Developing Issues.

The EEOC will target emerging issues in equal

employment law, including issues associated with

significant events, demographic changes, developing

theories, new legislation, judicial decisions and

administrative interpretations.

EXAMPLES:◦ LGBT Issues

◦ ADA/Title VII Pregnancy, Reasonable Accommodation Issues

◦ Issues under “Qualification Standards” under the ADA

4. Enforcing Equal Pay Laws.

The EEOC will target compensation systems and practices that discriminate based on gender.

5. Preserving Access to the Legal System. • The EEOC will target policies and practices that

discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.• The EEOC will pursue systemic investigations and

litigation and conduct a targeted outreach campaign to deter harassment in the workplace.

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EEOC v. Sonic-NM-$2 million

EEOC v. IHOP-NM-$1 million

EEOC v Pitre Buick-NM-over $2 million

EEOC v Dart Energy-COLO-$1.2 million

Holmes & Holmes-UT-statutory caps

……………

We took 6,176 charges, resolved about 3,000.

Enforcement got almost $8,000,000 in monetary. benefits FY 2013. Average caseloads are over 100.

Legal got over $8,900,000 in benefits in FY 2013.

ADR has over 78% resolution rate; 96.7% would use EEOC ADR again.

ADR conducted over 290 mediations; R Acceptance 32%; 78% CP Acceptance.

Many, many people covered…….(i.e. people with mental health issues, intellectual disabilities, epilepsy, diabetes, cancer…..)

Prohibits overt discrimination-hiring, terms & conditions, firing….

Requires Employers to provide Reasonable Accommodations for known impairments unless undue hardship!

Medical Inquiries limited Confidentiality Anti-Retaliation Provisions

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A physical or mental impairment that substantially limits a major life activity;

A record of such an impairment;

Being regarded as having such an impairment

Definition of “disability” construed broadly

Mitigating measures (other than ordinary corrective lenses) would not be considered

Impairment can be disability even if episodic or in remission

Mitigating measures include:

(1)medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc.

(2)Use of assistive technology

(3)Reasonable accommodations

(4)Learned behavioral or adaptive neurological modifications

Include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

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The term “major life activities” also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Broader definition of “regarded as” disabled that would cover anyone subjected to an action “prohibited by this Act” because of a real or perceived physical or mental impairment

“Regarded as” would exclude impairments that are transitory (less than six months) and minor

Individuals “regarded as” disabled not entitled to reasonable accommodation

• Employers, absent undue hardship, must provide reasonable accommodation requested for…• Actual disability - physical or mental impairment

that substantially limits one or more major life activities (which include major bodily functions)

• “Record of” a disability - past history of a substantially limiting impairment.

• Impairment – “substantially limiting” needn’t be a high degree of functional limitation

• A change in the workplace or in the way things are usually done that an individual needs because of a disability

• May include • Time off for treatment,

• Modified work schedules, or

• Reassignment to a vacant position.

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ADA prohibits different treatment or harassment at work based on an actual or perceived impairment.

Could include impairments resulting from domestic or dating violence, sexual assault or stalking.

Employer has to provide reasonable accommodations for disabilities.

ADA prohibits different treatment or harassment at work based on an actual or perceived impairment.

Could include impairments resulting from domestic or dating violence, sexual assault or stalking.

Employer has to provide reasonable accommodations for disabilities.

The ADA prohibits retaliation for protected activity.

The ADA also prohibits interference with an employee’s exercise of his or her rights under the statute.

Breach of confidentiality under ADA.

W h y R e p o r tworkplace discrimination & harassment?

• EEOC can investigate, find a solution in court or out of it, and try to make sure it doesn’t happen again to anyone else. Do it for yourself, but also for your friends and co-workers, your family and children.

• Third Parties can file charges.

• Commissioner’s charges.

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